Legal History eJournal最新文献

{"title":"Anti-Dumping as Insurance Policy: What the 'Grey Area' Measures Tell Us","authors":"Dan Ciuriak, D. Bienen, Timothée Picarello","doi":"10.2139/ssrn.2226026","DOIUrl":"https://doi.org/10.2139/ssrn.2226026","url":null,"abstract":"A general argument in support of trade remedies is that they act as an insurance policy that allows countries to take on deeper commitments in trade negotiations than they would otherwise be willing to make. This paper reviews both the negotiating history of major trade liberalization initiatives and the largely unexploited history of the use of so-called “grey area” measures in the pre-WTO era to manage pressures on domestic economies emanating from international trade to shed light on the extent to which this argument holds true. The negotiating history makes clear that across-the-board liberalization in the absence of perfect knowledge about the possible consequences in terms of trade pressures depends on the availability of contingent protection. Economic theory demonstrates that such an insurance role is welfare enhancing. The history of use of grey area measures in the pre-WTO period as successive waves of trade liberalizing initiatives were being implemented to manage excessive pressures in a context where the trade flows were not characterized as “unfair” but simply disruptive makes clear that that they were clear substitutes for trade remedies. This history provides the linchpin that allows the identification of the on-going use of trade remedies as an implicit continuation of the management of transient trade pressures. While the use of trade remedies may be defended as welfare enhancing on these grounds, with the individual instances of application of measures analogous to claims on a pre-existing insurance policy, the paper concludes that the design of trade defense laws and the emphasis on “unfair” trade in their justification, makes them ill-suited for this role.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129567815","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Evolving Populisms of Antitrust","authors":"Sandeep Vaheesan","doi":"10.2139/ssrn.2222368","DOIUrl":"https://doi.org/10.2139/ssrn.2222368","url":null,"abstract":"Some scholars divide the history of U.S. antitrust law into eras of “populism�? and “economics�? and assert a fundamental conflict between the two concepts. Generally, the period from the late 1970s to the present is described as economic, and the mid-twentieth century era is labeled populist. A review of Supreme Court antitrust decisions reveals a more complex picture. From the enactment of the Sherman Act in 1890, the Court’s antitrust rulings have officially espoused the protection of non-elite groups from the power of big business – a populist goal – and aimed to advance this objective through economically informed rules. Populism versus economics is a false dichotomy. The populism and economics underlying antitrust jurisprudence have changed over time. In the decades following the passage of the Sherman Act, the Supreme Court often spoke of protecting small producers and displayed, at most, only secondary concern for consumers. The Court in the early era proscribed certain horizontal and vertical restraints but viewed many forms of dominant firm and horizontal conduct more favorably. Starting in the late 1930s, the Court assumed consumer protection as a principal aim of the antitrust laws but continued to champion the cause of small businesses as well. Antitrust economics took a skeptical posture toward many big business practices and treated many forms of horizontal and vertical conduct as inherently problematic. Since the 1970s, the Court has held that the antitrust laws exist only to protect consumers and also adopted the view that most forms of business conduct can benefit consumers. Although some scholars argue that antitrust law should seek to maximize “economic efficiency�? and ignore distributional consequences, the courts should continue to interpret the antitrust laws as a consumer protection regime. First and foremost, Congress, as revealed in the legislative histories of the antitrust laws, showed an interest in preventing large firms from using their market power to raise prices and transfer wealth from consumers. The Congressmen that drafted the antitrust statutes showed no awareness of the neoclassical concept of efficiency, let alone an intention to promote it. Second, consumer-oriented antitrust enforcement, in respecting Congressional intent, can prevent regressive wealth transfers from consumers to producers and play an important part in containing growing economic inequality. Third, in light of how consumers often cannot organize politically on account of their vast numbers, the federal courts can serve as trustees for this group and protect its interests from better-organized producer groups. Last, just as antitrust can help consumers, consumers can provide vital popular support for antitrust enforcement.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"79 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127113452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Causation and Foreseeability","authors":"Mark F. Grady","doi":"10.4337/9781781006177.00013","DOIUrl":"https://doi.org/10.4337/9781781006177.00013","url":null,"abstract":"This paper critiques the theory of causation offered by Steven Shavell and proposes a new theory that more successfully predicts the results of proximate cause cases. Two doctrines of proximate cause exist: “direct consequences” and “reasonable foresight.” We can explain case law best if we assume that both doctrines must be satisfied in order for negligence liability to exist. Thus, the two doctrines do not represent alternative conceptions of proximate cause as some analysts have proposed. Proximate cause limitations are prominent when a party has inadvertently, as opposed to deliberately, omitted a reasonable precaution. Actors cannot efficiently reduce their inadvertent lapses to zero. In situations in which the defendant’s conduct has been “possibly efficient,” causation doctrines truncate liability. This truncation has the effect of preserving efficient activity levels and preventing actors from substituting inefficiently durable precaution for nondurable precaution.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115545506","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Adjudicating Acts of State","authors":"Chimène I. Keitner","doi":"10.1163/9789004257283_004","DOIUrl":"https://doi.org/10.1163/9789004257283_004","url":null,"abstract":"An apparent paradox lies at the heart of modern transnational human rights litigation. On the one hand, relevant actors in the international community have agreed that certain actions performed by individuals on behalf of states are so offensive to basic notions of human freedom and dignity that no state’s officials should be able to engage in them with impunity. On the other hand, the principles of sovereign equality and non-interference in the affairs of other states (absent U.N. Security Council authorization) continue to animate basic understandings of the structure of international society and the limits of international law. One of the central puzzles for international law remains the problem of enforcement. Increasingly, where individual actors violate international legal norms, interested parties seek to use the judicial machinery of foreign states to impose legal consequences for such violations. I have referred to this phenomenon as “horizontal” enforcement because, legally speaking, states are situated on an equal or horizontal plane vis-a-vis each other. Some view horizontal enforcement as presumptively illegitimate, based on the idea that one sovereign cannot sit in judgment on the acts of another sovereign. Others maintain that recognition of the idea of “universal jurisdiction” to prescribe, adjudicate, and enforce prohibitions on certain types of specifically defined and universally condemned conduct (such as torture, genocide, war crimes, crimes against humanity, and piracy) necessarily entails an acceptance of horizontal enforcement by foreign states, in addition to “vertical” enforcement by international bodies. Courts and commentators continue to grapple with defining the circumstances under which horizontal enforcement may be warranted. This contribution focuses on horizontal enforcement in the form of civil proceedings against current or, more often, former foreign officials. It focuses on the practice of the United States, although civil proceedings (and criminal proceedings joined by parties civiles) have also been brought against foreign officials in other countries. Part II sets forth the distinction between status-based (ratione personae) and conduct-based (ratione materiae) immunity for individual officials. Part III traces the late nineteenth-century origins of the act of state doctrine in U.S. courts to earlier, eighteenth-century understandings of conduct-based immunity. Although the act of state doctrine subsequently took on a different, narrower meaning in litigation involving foreign expropriations, Part IV concludes by suggesting that understanding the connection between early formulations of the act of state doctrine and claims to conduct-based immunity can help define the circumstances under which U.S. courts can and should impose legal consequences on foreign defendants for internationally unlawful conduct.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133634781","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Adam Smith's Theory of Money and Banking","authors":"N. Curott","doi":"10.2139/ssrn.2136133","DOIUrl":"https://doi.org/10.2139/ssrn.2136133","url":null,"abstract":"This paper resolves a long-running debate in the economics literature – the debate over Smith’s theory of money and banking – and thereby revolutionizes current understanding about the history and evolution of monetary analysis. Smith did not present either the real-bills theory or a price-specie-flow theory of banknote regulation, as generally presumed, but rather a reflux theory based upon the premise that the demand for money is fixed at a particular nominal quantity. This theory denies that an excess supply of money can ordinarily make it into the domestic nominal income stream or influence prices or employment. The essence of Smith’s theory is not, as the real bills interpretation would suggest, that banknotes are elastic credit instruments that accommodate changes in demand; rather, it is that the supply of money, including banknotes, is forced to regulate itself to a fixed demand. And unlike Hume’s price-specie-flow mechanism, Smith’s specie-flow mechanism does not point to changes in domestic relative to world prices as the factor motivating the trades that restore monetary equilibrium.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114178488","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Legacy of Social Darwinism: From Railroads to the 'Reinvention' of Regulation","authors":"Yair Sagy","doi":"10.2139/SSRN.2150760","DOIUrl":"https://doi.org/10.2139/SSRN.2150760","url":null,"abstract":"According to accepted wisdom, new paradigms of regulation are upon us. This Article challenges this conception. It revisits the work of the leading regulator and theoretician of regulation in post-Civil War U.S., Charles Francis Adams, Jr., and argues that contemporary regulation reverts to Adams' theory of regulation, rather than introducing a revolutionary chapter to the intellectual history of regulation in the United States. The Article operates on three levels. On one level, it offers a new interpretation of Adams' seminal theory by revealing the hold that Herbert Spencer and Social Darwinism had on his work. On another level, the article uncovers the influence evolutionary thinking had on the rise of the American administrative state in general, and on the work of one of its greatest regulators in particular. Finally, in exposing the imprint of Social Darwinism in Adams' theory of regulation and connecting this theory to present models of regulation, the Article unearths and explores key theoretical foundations of much of contemporary thinking and practice in the field of administrative regulation. Thus, the Article reveals that the legacy of Social Darwinism, which originated in nineteenth century U.S. regulation, persists to this day.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132743423","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Mobilization and Poverty Law: Searching for Participatory Democracy Amongst the Ashes of the War on Poverty","authors":"W. Bach","doi":"10.2139/ssrn.2022020","DOIUrl":"https://doi.org/10.2139/ssrn.2022020","url":null,"abstract":"In 1964, at the height of the Civil Rights Movement, the federal government launched Community Action, a program that was to be designed and implemented with the maximum feasible participation of the poor. Today in governance theory, we are told once again that participation by affected communities in the mechanisms of governance have the ability to deepen democracy – to yield better policy and to engage new voices in the mechanisms of democracy. Mobilization and Poverty Law: Searching for Participatory Democracy Amongst the Ashes of The War on Poverty turns to history to explore a question central to both governance theory and community lawyering: Do the participatory democracy mechanisms of new governance theory have the ability, or can they be wielded by advocates and poor communities, to render poverty more responsive to community needs? To answer this question, Mobilization and Poverty Law provides a detailed chronicle of the creation and implementation of Community Action and maximum feasible participation and highlights the extraordinary story of its implementation in Durham, North Carolina. The article offers a definition against which to measure whether participation was “robust” and concludes that three factors were crucial in realizing robust participation: 1. the existence of the statutory participatory mandate; 2. the flexibility wielded by administrators in implementing the mandate; and 3. the choice by the agency to fund autonomous, community-controlled groups as a mechanism to realize robust participation. The article ends with two primary conclusions, one directed at new governance and the second directed at those invested in community lawyering. For new governance, the history suggests that participatory structures, as currently constituted, are likely to lead to little more than tokenism. For advocates committed to support the efforts of communities to build and wield political power, however, the article offers a more hopeful suggestion. Embracing what Scott Cummings has termed “constrained legalism,” the article suggests that advocates might take a page from history and, like our predecessors, seek to create, out of the tokenistic nods to participatory governance in current policy, programs and structures that might yield both robust participation and poverty policy that, in the eyes of poor communities, actually meets their needs.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"82 9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128167349","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Decline of the Patent Registration Exam","authors":"Christi J. Guerrini","doi":"10.2139/SSRN.2031295","DOIUrl":"https://doi.org/10.2139/SSRN.2031295","url":null,"abstract":"The quality of patent examinations conducted by the U.S. Patent and Trademark Office (PTO) has long vexed the patent community, and the subject features prominently in virtually every report on the PTO’s operations. By contrast, policymakers and academics have paid relatively little attention to the quality of the PTO’s performance of its non-examining functions. One of these functions is to promote the integrity of the U.S. patent system by regulating patent prosecutors, or those who prepare patents and negotiate their issuance by the PTO. This Article analyzes the PTO’s management of one aspect of that regulatory system: the written examination that is an essential part of the process of registering to prosecute patents before the PTO. It traces the substantive and administrative evolution of the exam from its first administration in 1934 to the present day based on an analysis of eighty-one registration exams administered over the course of forty-nine non-consecutive years. The story that this collection tells is that the exam became increasingly rigorous and comprehensive for at least the first few decades of its history. But as the twentieth century came to an end, resource limitations took precedence over quality when the PTO introduced changes to the exam that have had the effect of impairing its validity, reliability, and fairness. This Article describes the exam’s failures in terms of modern psychometric standards that apply to professional licensure exams, and it explores their consequences for the patent prosecution profession and the PTO. It concludes with suggestions for improvement.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"83 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132480623","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The History of Corporate Governance","authors":"B. Cheffins","doi":"10.2139/SSRN.1975404","DOIUrl":"https://doi.org/10.2139/SSRN.1975404","url":null,"abstract":"“Corporate governance” first came into vogue in the 1970s in the United States. Within 25 years corporate governance had become the subject of debate worldwide by academics, regulators, executives and investors. This paper traces developments occurring between the mid-1970s and the end of the 1990s, by which point “corporate governance” was well-entrenched as academic and regulatory shorthand. The paper concludes by surveying briefly recent developments and by maintaining that analysis of the inter-relationship between directors, executives and shareholders of publicly traded companies is likely to be conducted through the conceptual prism of corporate governance for the foreseeable future.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123408686","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Human Rights Investment Filters: A Defense","authors":"A. Follesdal","doi":"10.1017/CBO9781139003292.008","DOIUrl":"https://doi.org/10.1017/CBO9781139003292.008","url":null,"abstract":"Do investors have an obligation to not invest in corporations that contribute to human rights violations? – Even when such divestment neither causes changes in the corporations, nor prevents the violations? Is there a justification of divestment that holds up even in the face of general breaches of the norms? Can such a justification avoid reliance on controversial religious views? And are there any grounds to believe that such divestment may be effective against human rights violations, even in the absence of a powerful hegemon that sanctions violations of the norms? The affirmative answers below draw on theories of legitimacy and distributive justice that regard SRI as part of a response to the challenges of globalization. Section 1 frames the issues, drawing on the discussions among Quakers on divesting from the slave trade in the 18th century. Sections 2 and 3 provide a normative defense for some minimal human rights filters on investments under economic globalization. Section 4 addresses several objections.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"84 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133788274","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}