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Item Five-Four: Dissecting Supreme Court Tightly Split Decisions(2024) Sullivan, Jr., Frank; Georgakopoulos, Nicholas L.Item The Shifting Regulation and Competition Interface(2024) Huffman, MaxAntitrust and market regulation, rather than being “flip sides of the same coin,” populate a spectrum that ranges from a truly laissez faire economic system at one end to a command economy at the other. Competition policy and regulation have different strengths and will thus be preferred in different settings, as well as at different times in the chronology of industry growth. While competition policy might be favoured early in the growth of an industry, when the efficient outcomes are unknown and unknowable, regulation is a preferred approach when the industry is mature, innovation has slowed, and gains come from operational efficiencies rather than techno- logical changes. Their different strengths may also emerge independent of chronology: competition policy is a preferred market oversight mechanism when efficient outcomes are consistent with larger social, political, environmental – etc. – goals. Where efficient outcomes deviate from those, however, market regulation is the better alternative. The reality of the regulation-competition interface belies the binary of these as alter- native approaches to market oversight. Competition policy may be more or less regulatory in nature and enforcers take on regulation-like approaches when their goals diverge from competitive equilibria. Competitive equilibria in labour markets are unlikely to produce worker protections that serve broader social goals. This is because labour markets reflect durable monopsony power, with workers locked into employment relationships and unable to bargain effectively. The resulting equilibrium will see firms that are both employers and producers favouring efficiencies in consumer markets, where they are more likely to encounter competition, over labour markets, to the detriment of workers. Competition policy gives way to regulation as prohibitions on no-compete covenants and exemptions for labour organization intrude on marketplace competition1. In a market of gig economy platforms, characterized by diffuse buyers, diffuse sellers, and a consolidated intermediary – the platform – which is protected by entry barriers including network effects and capital intensiveness, the competitive equilibrium will see surplus wealth gained by the platform. This outcome does not prevent substantial social benefits, including those realized by workers and consumers on the platform. For example, evidence suggests that the US-based gig platform Uber brought eco- nomic opportunity to developing world locations as underemployed workers became independent businesspersons and consumers had cheaper and safer means of trans- port. Regulating to protect consumers (safety regulation) and workers (minimum earnings regulation) can protect non-competition social goals including safety and equity of wealth distribution2. The market for artificial intelligence technologies is nascent, fast developing, and far from fully understood. This is also a market in which innovation is crucial, and comprehensive regulation would undermine the experimental process by which technologies are developed. But the unrestricted growth of this market presents risks that demand interventions. Regulation can establish parameters within which competition might flourish, through forbidding edge-case applications, encouraging standardization of technologies, and monitoring markets to identify enduring inequities early. Regulation and competition policy populate a spectrum of market oversight options, at the extremes operating individually and, in the heartland, playing a complementary role. As policymakers and enforcers continue to emphasize goals that competitive equilibria cannot achieve, regulation will play an increasingly important role.Item Background as Foreground: Section Three of the Fourteenth Amendment and January 6th(2024) Magliocca, Gerard N.Item The Long Arm of the SEC in the Regulation of Digital Currencies(2023) Emmert, FrankItem Disaster! Tax Legislation in Crises(2024-02) Hoffer, StephanieCongress cuts and pastes in times of crisis. This Article, a study of tax legislation passed in response to natural disasters and national crises during the years 2000–2020, documents and examines Congress’s use of recurring provisions from one disaster relief bill to the next. Of 272 individual statutes included in the study, Congress drew 200 from prior legislation. Far from being cabined, as they appeared when passed, these recurring tax relief statutes affected taxpayers over a broad geography throughout the entire twenty-year study period. Data also shows that recurring provisions tended to expand in scope over time. Many required taxpayers who claimed them either to hold assets or to expend resources in socially favored ways, affording relief to those who already had means. In addition, recurring tax provisions often designated a federal declaration of disaster as their on-switch, leaving taxpayers who suffered equivalent economic harm outside of disaster areas without relief despite being similarly situated for tax purposes. With these and other findings, the study documents the likelihood that recurring crisis-motivated tax relief provisions are potential contributors to both the racial wealth gap and the overall wealth gap and that they also may work against the interests of newly established or very small businesses. Recurrence in the crisis-motivated tax context is of genuine immediate concern. The study shows that recurring provisions tended to ossify over time, with Congress permanently codifying some and repeatedly incorporating others into recurring tax disaster relief packages. At the same time, destabilization of environmental and geopolitical conditions may necessitate Congress’s more frequent use of cut-and-paste. Recurrence does not have to be a bad guy, though. With its tendency to extend and broaden relief measures over time and place, recurrence done without politicization and with proper advance consideration of its likely long-term distributional effects could be a constructive means of balancing interests of timeliness, efficiency, and the equitable distribution of resources.Item Cryptocurrencies: The Impossible Domestic Law Regime?(2022-10) Frank, EmmertItem “Not a Lawyer’s Contract:” Reflections on FDR’s Constitution Day Address(2023-02-15) Magliocca, Gerard N.Franklin Roosevelt’s oration marking the sesquicentennial of the Constitution’s proposal is the most profound discussion of our founding document by a modern president. Delivered in the immediate aftermath of the Court-packing crisis and against the backdrop of the global rise in fascism and communism, the Constitution Day Address is a time capsule from a pivotal moment and a source of insights into timeless questions. The Address is also the most thoughtful defense of the New Deal ever offered up by its leader, as there is no equivalent of The Federalist for the 1930s. Nevertheless, there is little scholarly or judicial commentary on FDR’s remarks, perhaps because he attacked the legal profession in the speech; a sentiment captured best by his line that the Constitution is “a layman’s document, not a lawyer’s contract.” This Article provides the first comprehensive account of President Roosevelt’s Constitution Day Address and explains that his remarks speak to the modern problem of “democratic backsliding.”Item The California SHIMBY Movement: Social Housing in my Backyard(2023) Gilgoff, JulieThe social housing movement represents a powerful coordinated effort to create publicly owned and permanently affordable housing. Social housing provides the most democratic, cost-effective, and sustainable solution to the housing crisis by permanently recycling public subsidies through resale restrictions on newly constructed and rehabilitated homes, while avoiding racially segregated patterns often associated with traditional public housing. Part of a larger international movement, California Senate Bill 555 (SB 555): Stable Affordable Housing Act of 2023 aims to address California’s housing shortfall through a resale-restricted, rather than market-based model. With documented success internationally in Vienna, Austria, and Singapore, as well as domestically with policies like the 1937 Housing Act, SB 555 marks a divergence from decades of government housing strategy to stimulate private sector production of low- and moderate-income units rather than creating publicly owned housing removed from the speculative market. As a complement to Yes in My Backyard (“YIMBY”) development, Americans should familiarize themselves with the newest and yet-to-emerge acronym, Social Housing in My Backyard (“SHIMBY”), that embraces both new construction and rehabilitation strategies, and holds the potential to transform the U.S. housing system.Item Blockchain and Private International Law – The Perspective of the United States of America(2023) Emmert, FrankLawyers in the United States apply rules on ‘conflict of laws’ rather than ‘private international law’ when it comes to the applicable substantive law, jurisdiction of one forum versus another, and the recognition and enforcement of foreign judicial decisions. These conflict rules are largely the same whether the conflict is between sister states in the U.S. (California, New York, Ohio, etc.) or between a foreign jurisdiction and the U.S. This should make things relatively easy. However, many areas of law, such as contract law, labour law, tort liability, as well as real and personal property law, are matters of state law in the U.S. Disputes in these areas of law have to be brought in state court or, if they can be brought in federal court, for example based on diversity jurisdiction, they will still be subject to state law. Unfortunately, state law is often not codified at all or at least not comprehensively, and it is certainly not uniform across the 50+ jurisdictions in the U.S. This includes the conflict rules. Therefore, analysis of Private International Law as applied to a given blockchain and digital currency transaction or dispute in the U.S. potentially requires analysis of statutory material and – more likely – case law from a variety of states where the matter could be brought to court. This will be hard, if not impossible, for foreign lawyers. The problem is exacerbated by the fact that the U.S. allows several options for creating jurisdiction over foreign parties that are commonly referred to as exorbitant jurisdictions. For example, the so-called transient jurisdiction of a forum can be established by serving a natural person or an executive representing a corporation while they are merely travelling through the forum state. Private parties can reduce their exposure with carefully crafted contracts containing suitable choice of law and arbitration clauses, although this obviously does not work in tort cases and in disputes with regulatory agencies like the SEC and the CFTC. Therefore, the chapter elaborates not just on conflict rules but also on blockchain and cryptocurrency regulation and regulatory authorities in the U.S.Item The War in Ukraine and the Legitimacy of the International Criminal Court(2022) Dutton, Yvonne M.; Sterio, MilenaThe news of the many atrocities being committed as the war in Ukraine rages on has prompted a chorus of calls seeking to hold perpetrators accountable. Heralded as a critical player is the International Criminal Court (the ICC or “Court”). Unlike in the past where states have decried requests to increase the Court’s budget or refused to cooperate with the Office of the Prosecutor’s (“OTP”) efforts to gather evidence or arrest suspects, states are generously donating funding and other resources to bolster the Court’s likelihood of bringing successful prosecutions. This Article argues that the unique situation surrounding state support for the ICC’s critical role in prosecuting crimes resulting from the Russian invasion may enhance the legitimacy of the Court. International institutions like the ICC can be legitimate both objectively and subjectively. Objective legitimacy is present if the institution’s processes conform to normative positive performance criteria; for example, it provides due process to defendants standing trial. Subjective legitimacy is present when the relevant audience believes that the institution is properly carrying out its functions and fulfilling its mandate. This Article focuses on subjective, or perceived, legitimacy—specifically as it relates to how states perceive the Court. It does so because it is states to whom the Court must turn to receive funding and. other assistance. If that audience does not perceive the Court as legitimate, it will be less likely to continue to support, it. This Article suggests that if the ICC can carry out a successful investigation in Ukraine, leading to possible prosecutions, the outcome for the ICC is that states and all interested, stakeholders may begin to perceive the Court as an institution corresponding to its founding mandate to end. impunity for the most serious international crimes. If states do not continue to support the Court, however, these important outcomes for victims and for the Court may be lost.