Martin Shapiro
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0009
- Subject:
- Political Science, Comparative Politics
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law ...
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The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Shapiro’s paper, which was originally published in The State and Freedom of Contract (ed. Harry Scheiber, Stanford University Press) in 1998) first introduces the Lex Mercatoria (the law of merchants) in relation to freedom of contract and contract law, and then discusses globalizing tendencies in contract law, doctrine, and jurisprudence, before moving on to globalizing tendencies in contract practice, using the legal doctrine of conflict of laws as a baseline for measurement of globalization tendencies. Here, Lex Mercatoria (or general principles of law) often play a substantial part in the resolution of contract disputes, particularly where arbitration is involved. Shapiro goes on to deal with the unification of private law in the United States in the 1920s (the trans-state harmonization of contract law), which he uses as a benchmark to assess the massive post-Second World War movement to a global law of contract. Aspects addressed include the globalization of contracting practice and law, the American-style contract (in relation to franchising law and mineral (non-oil) development contracts), and developments in business organization and law institutions.Less
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Shapiro’s paper, which was originally published in The State and Freedom of Contract (ed. Harry Scheiber, Stanford University Press) in 1998) first introduces the Lex Mercatoria (the law of merchants) in relation to freedom of contract and contract law, and then discusses globalizing tendencies in contract law, doctrine, and jurisprudence, before moving on to globalizing tendencies in contract practice, using the legal doctrine of conflict of laws as a baseline for measurement of globalization tendencies. Here, Lex Mercatoria (or general principles of law) often play a substantial part in the resolution of contract disputes, particularly where arbitration is involved. Shapiro goes on to deal with the unification of private law in the United States in the 1920s (the trans-state harmonization of contract law), which he uses as a benchmark to assess the massive post-Second World War movement to a global law of contract. Aspects addressed include the globalization of contracting practice and law, the American-style contract (in relation to franchising law and mineral (non-oil) development contracts), and developments in business organization and law institutions.
Kshama V. Kaushik and Kaushik Dutta
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780198072614
- eISBN:
- 9780199081592
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198072614.003.0009
- Subject:
- Economics and Finance, Economic History
This chapter evaluates India's chances of achieving an economic growth rate of more than nine percent under its Eleventh Five-Year Plan. While the Indian economy is going through its most remarkable ...
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This chapter evaluates India's chances of achieving an economic growth rate of more than nine percent under its Eleventh Five-Year Plan. While the Indian economy is going through its most remarkable phase of growth, lack of proper economic infrastructure such as roads, airports, and communication may turn out to be the biggest roadblock in sustaining this growth. This chapter comments on the government's use of public–private partnership (PPP) route for infrastructure creation. It also identifies some areas or sectors such as energy sector, education, business laws, and corporate governance that have the potential to push the economy on either side of the tipping point.Less
This chapter evaluates India's chances of achieving an economic growth rate of more than nine percent under its Eleventh Five-Year Plan. While the Indian economy is going through its most remarkable phase of growth, lack of proper economic infrastructure such as roads, airports, and communication may turn out to be the biggest roadblock in sustaining this growth. This chapter comments on the government's use of public–private partnership (PPP) route for infrastructure creation. It also identifies some areas or sectors such as energy sector, education, business laws, and corporate governance that have the potential to push the economy on either side of the tipping point.
Andrew Bell
- Published in print:
- 2008
- Published Online:
- March 2012
- ISBN:
- 9780199541393
- eISBN:
- 9780191701221
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199541393.003.0012
- Subject:
- Law, Comparative Law
‘Commercial law’ is often used in a loose, broad sense, equivalent to ‘business law’, embracing not only the law of commercial transactions but also other topics, such as company law. In French law, ...
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‘Commercial law’ is often used in a loose, broad sense, equivalent to ‘business law’, embracing not only the law of commercial transactions but also other topics, such as company law. In French law, droit commercial is understood in this wider sense. It is a vast domain, covering a multitude of diverse topics: sale, hire, banking, insurance, partnership and company law, commercial leases, competition law and more. This chapter looks at a number of fundamental issues: the place of commercial law within the general scheme of French private law, its scope and, in general terms, the practical implications of its application. It then considers a limited number of specific topics: the persons involved in commerce, the special characteristics of the property they employ in their business, and the regime applied to businesses in difficulty.Less
‘Commercial law’ is often used in a loose, broad sense, equivalent to ‘business law’, embracing not only the law of commercial transactions but also other topics, such as company law. In French law, droit commercial is understood in this wider sense. It is a vast domain, covering a multitude of diverse topics: sale, hire, banking, insurance, partnership and company law, commercial leases, competition law and more. This chapter looks at a number of fundamental issues: the place of commercial law within the general scheme of French private law, its scope and, in general terms, the practical implications of its application. It then considers a limited number of specific topics: the persons involved in commerce, the special characteristics of the property they employ in their business, and the regime applied to businesses in difficulty.
ALLAN WALKER VESTAL
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780199264353
- eISBN:
- 9780191718496
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199264353.003.0012
- Subject:
- Law, Comparative Law, Company and Commercial Law
This chapter focuses on the accomplishments of the decade-long reform of unincorporated law. It identifies three essential features involved in the US experience. It argues that norm entrepreneurs ...
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This chapter focuses on the accomplishments of the decade-long reform of unincorporated law. It identifies three essential features involved in the US experience. It argues that norm entrepreneurs proceeded without a coherent, underlying theory to guide their experimentation. They acted because it was in their power to do so and not because of any consensus-based justifications.Less
This chapter focuses on the accomplishments of the decade-long reform of unincorporated law. It identifies three essential features involved in the US experience. It argues that norm entrepreneurs proceeded without a coherent, underlying theory to guide their experimentation. They acted because it was in their power to do so and not because of any consensus-based justifications.
Marius Emberland
- Published in print:
- 2006
- Published Online:
- March 2012
- ISBN:
- 9780199289837
- eISBN:
- 9780191700545
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199289837.003.0001
- Subject:
- Law, Human Rights and Immigration
This book investigates the ways in which human rights articulate with business law and practice, adopting as a facilitatory starting point approaches to the issue common in international law and ...
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This book investigates the ways in which human rights articulate with business law and practice, adopting as a facilitatory starting point approaches to the issue common in international law and constitutional law. More closely, it examines the level of protection offered company interests by the European Convention on Human Rights (ECHR). The book thus offers a study of the doctrinal response developed in Strasbourg by the European Court of Human Rights to claims for ECHR protection submitted by or on behalf of companies. It is important to appreciate that under the ECHR, the notion of companies enjoying rights protection is not disputed in principle: the Court does not per se regard corporate litigation with suspicion. This does not mean, however, that the protection of corporate interests is plain sailing in terms of ECHR law. The particular features of the corporate person and the interests pursued by such, combined with the particular structure of the ECHR and its international supervision, sometimes pose interpretative and practical challenges in terms of ECHR guarantees.Less
This book investigates the ways in which human rights articulate with business law and practice, adopting as a facilitatory starting point approaches to the issue common in international law and constitutional law. More closely, it examines the level of protection offered company interests by the European Convention on Human Rights (ECHR). The book thus offers a study of the doctrinal response developed in Strasbourg by the European Court of Human Rights to claims for ECHR protection submitted by or on behalf of companies. It is important to appreciate that under the ECHR, the notion of companies enjoying rights protection is not disputed in principle: the Court does not per se regard corporate litigation with suspicion. This does not mean, however, that the protection of corporate interests is plain sailing in terms of ECHR law. The particular features of the corporate person and the interests pursued by such, combined with the particular structure of the ECHR and its international supervision, sometimes pose interpretative and practical challenges in terms of ECHR guarantees.
Colleen Honigsberg and Robert J. Jackson
- Published in print:
- 2019
- Published Online:
- September 2019
- ISBN:
- 9780226599403
- eISBN:
- 9780226599540
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226599540.003.0009
- Subject:
- Law, Company and Commercial Law
For many of our most innovative companies, corporate law is difficult to define. These companies—whose profits flow in part from regulatory arbitrage—are subject to a complex framework of state, ...
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For many of our most innovative companies, corporate law is difficult to define. These companies—whose profits flow in part from regulatory arbitrage—are subject to a complex framework of state, federal, and local laws, the overlap of which can create inconsistency and ambiguity. Using marketplace lending as a case study, we document extraordinary uncertainty faced by many of America’s most cutting-edge businesses. Marketplace lenders built their business on the longstanding assumption that they were exempt from state usury law because marketplace loans are originated by state or nationally chartered banks, which have enjoyed federal preemption of state usury caps for a century. But in a 2015 ruling the Second Circuit suddenly concluded that only loans held by banks enjoy preemption from state usury law, reactivating interest-rate caps for billions of dollars of loans and decreasing the supply of credit for higher-risk borrowers. We argue that this type of legal uncertainty is increasingly prevalent for American corporations and can stifle innovation, and that the true challenge for the corporate lawyers of the future will be to convince the wide range of actors now producing business law to produce predictable and consistent rules for the firms they seek to govern.Less
For many of our most innovative companies, corporate law is difficult to define. These companies—whose profits flow in part from regulatory arbitrage—are subject to a complex framework of state, federal, and local laws, the overlap of which can create inconsistency and ambiguity. Using marketplace lending as a case study, we document extraordinary uncertainty faced by many of America’s most cutting-edge businesses. Marketplace lenders built their business on the longstanding assumption that they were exempt from state usury law because marketplace loans are originated by state or nationally chartered banks, which have enjoyed federal preemption of state usury caps for a century. But in a 2015 ruling the Second Circuit suddenly concluded that only loans held by banks enjoy preemption from state usury law, reactivating interest-rate caps for billions of dollars of loans and decreasing the supply of credit for higher-risk borrowers. We argue that this type of legal uncertainty is increasingly prevalent for American corporations and can stifle innovation, and that the true challenge for the corporate lawyers of the future will be to convince the wide range of actors now producing business law to produce predictable and consistent rules for the firms they seek to govern.
Jonathan H. Adler
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199859344
- eISBN:
- 9780190620929
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199859344.003.0011
- Subject:
- Political Science, American Politics
This chapter in Business and the Roberts Court examines the Roberts Court’s approach to environmental cases. Overall, business interests have won more cases than they have lost in the Roberts Court. ...
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This chapter in Business and the Roberts Court examines the Roberts Court’s approach to environmental cases. Overall, business interests have won more cases than they have lost in the Roberts Court. Most of the business wins occurred in relatively narrow cases that had little effect on preexisting law, while some of the losses are quite dramatic and will have profound effects on economic interests. Whether or not the Court is sympathetic to business interests in environmental cases, it appears to have been sympathetic to government interests, but quite unsympathetic to environmentalist litigants and reluctant to expand litigation opportunities in environmental cases.Less
This chapter in Business and the Roberts Court examines the Roberts Court’s approach to environmental cases. Overall, business interests have won more cases than they have lost in the Roberts Court. Most of the business wins occurred in relatively narrow cases that had little effect on preexisting law, while some of the losses are quite dramatic and will have profound effects on economic interests. Whether or not the Court is sympathetic to business interests in environmental cases, it appears to have been sympathetic to government interests, but quite unsympathetic to environmentalist litigants and reluctant to expand litigation opportunities in environmental cases.
Dale D. Murphy
- Published in print:
- 2006
- Published Online:
- March 2012
- ISBN:
- 9780199216512
- eISBN:
- 9780191696008
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199216512.001.0001
- Subject:
- Law, Public International Law
In order to understand international economic regulations, it is essential to understand the variation in competing corporations' interests. Political science theories have neglected the role of ...
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In order to understand international economic regulations, it is essential to understand the variation in competing corporations' interests. Political science theories have neglected the role of individual firms as causal actors. Theories of institutions have neglected to examine the creation of business law. Economic theories have neglected to apply concepts of asset specificity to social regulations in competitive industries. This book aims to fill these voids with a company-based explanation. Its theoretical findings open a ‘black box’ in the literature on international political economy and elucidate a source of regulatory differences and similarities. Counter-intuitive case studies reveal how business and governments actually interact. They also contribute to both sides of current debates over corporate social responsibility. They examine diverse topics including offshore finance, flags-of-convenience, CFC production, capital requirements, the importation and sale of ‘dolphin-lethal’ tuna, and the advertising of infant formulae. By exploring powerful corporations' investment profiles and regulatory strategies, this book explains why globalization sometimes results in a ‘race to the bottom’, sometimes in higher common regulations, and sometimes in regulations that differ between countries. Uniquely, it then explains which regulatory outcome is likely to occur under specified conditions. The explanation incorporates economics, political science, studies of regulatory capture, examinations of transaction costs, firms' regulatory strategies, and the roles of international institutions.Less
In order to understand international economic regulations, it is essential to understand the variation in competing corporations' interests. Political science theories have neglected the role of individual firms as causal actors. Theories of institutions have neglected to examine the creation of business law. Economic theories have neglected to apply concepts of asset specificity to social regulations in competitive industries. This book aims to fill these voids with a company-based explanation. Its theoretical findings open a ‘black box’ in the literature on international political economy and elucidate a source of regulatory differences and similarities. Counter-intuitive case studies reveal how business and governments actually interact. They also contribute to both sides of current debates over corporate social responsibility. They examine diverse topics including offshore finance, flags-of-convenience, CFC production, capital requirements, the importation and sale of ‘dolphin-lethal’ tuna, and the advertising of infant formulae. By exploring powerful corporations' investment profiles and regulatory strategies, this book explains why globalization sometimes results in a ‘race to the bottom’, sometimes in higher common regulations, and sometimes in regulations that differ between countries. Uniquely, it then explains which regulatory outcome is likely to occur under specified conditions. The explanation incorporates economics, political science, studies of regulatory capture, examinations of transaction costs, firms' regulatory strategies, and the roles of international institutions.
Jonathan H. Adler
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199859344
- eISBN:
- 9780190620929
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199859344.003.0001
- Subject:
- Political Science, American Politics
The Supreme Court under Chief Justice Roberts is often described as a “probusiness” court, favoring the interests of business groups and large corporations over those of consumers, workers, and the ...
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The Supreme Court under Chief Justice Roberts is often described as a “probusiness” court, favoring the interests of business groups and large corporations over those of consumers, workers, and the public at large. This introductory chapter to Business and the Roberts Court surveys commentary on the Supreme Court’s approach to business-related cases, considers what it could mean for the Supreme Court to be probusiness, and summarizes the book’s chapters. Taken together, the analyses in this book suggest that there are aspects of the Court’s approach to business-related cases that are definitely advantageous to business groups, but that this appears to be the result of other doctrinal commitments and legal policy preferences, and not the result of favoritism toward business litigants and their interests.Less
The Supreme Court under Chief Justice Roberts is often described as a “probusiness” court, favoring the interests of business groups and large corporations over those of consumers, workers, and the public at large. This introductory chapter to Business and the Roberts Court surveys commentary on the Supreme Court’s approach to business-related cases, considers what it could mean for the Supreme Court to be probusiness, and summarizes the book’s chapters. Taken together, the analyses in this book suggest that there are aspects of the Court’s approach to business-related cases that are definitely advantageous to business groups, but that this appears to be the result of other doctrinal commitments and legal policy preferences, and not the result of favoritism toward business litigants and their interests.
Lawrence M. Friedman
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780190070885
- eISBN:
- 9780190070922
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190070885.003.0025
- Subject:
- Law, Legal History
This chapter discusses changes in American law in the twentieth century covering land use, environmental law, intellectual property, regulation of business, and business law. The twentieth century ...
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This chapter discusses changes in American law in the twentieth century covering land use, environmental law, intellectual property, regulation of business, and business law. The twentieth century was a century of land-use controls. An important legal invention was zoning. The central idea of zoning is to divide a town or city into zones or segments and to regulate what kinds of land use are allowed in each of these segments. Some zones will be limited to one-family houses, others will be open to apartment buildings, stores and offices, and even to factories. New York City was a pioneer in the zoning movement. After the state passed an enabling act, New York City adopted the first comprehensive zoning ordinance (1916). Zoning soon spread to city after city. By 1930, it was pretty much the rule in both large and small cities and in the suburbs as well.Less
This chapter discusses changes in American law in the twentieth century covering land use, environmental law, intellectual property, regulation of business, and business law. The twentieth century was a century of land-use controls. An important legal invention was zoning. The central idea of zoning is to divide a town or city into zones or segments and to regulate what kinds of land use are allowed in each of these segments. Some zones will be limited to one-family houses, others will be open to apartment buildings, stores and offices, and even to factories. New York City was a pioneer in the zoning movement. After the state passed an enabling act, New York City adopted the first comprehensive zoning ordinance (1916). Zoning soon spread to city after city. By 1930, it was pretty much the rule in both large and small cities and in the suburbs as well.
Richard J. Lazarus
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199859344
- eISBN:
- 9780190620929
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199859344.003.0004
- Subject:
- Political Science, American Politics
This chapter in Business and the Roberts Court documents the emergence of a highly specialized, elite Supreme Court bar that disproportionately represents business interests. The Court grants the ...
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This chapter in Business and the Roberts Court documents the emergence of a highly specialized, elite Supreme Court bar that disproportionately represents business interests. The Court grants the petitions filed by the expert members of the bar at a significantly higher rate and they also prevail on the merits more frequently. This chapter documents the extent of the modern bar’s domination of the Court’s docket, arguments, and rulings and considers the extent to which business interests that serve as the bar’s primary clients are enjoying heightened success before the Court as a result.Less
This chapter in Business and the Roberts Court documents the emergence of a highly specialized, elite Supreme Court bar that disproportionately represents business interests. The Court grants the petitions filed by the expert members of the bar at a significantly higher rate and they also prevail on the merits more frequently. This chapter documents the extent of the modern bar’s domination of the Court’s docket, arguments, and rulings and considers the extent to which business interests that serve as the bar’s primary clients are enjoying heightened success before the Court as a result.
J. Mitchell Pickerill
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199859344
- eISBN:
- 9780190620929
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199859344.003.0003
- Subject:
- Political Science, American Politics
This chapter in Business and the Roberts Court provides an empirical analysis of the Roberts Court’s decisions in business-related cases in comparison to its predecessors. At an aggregate level, the ...
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This chapter in Business and the Roberts Court provides an empirical analysis of the Roberts Court’s decisions in business-related cases in comparison to its predecessors. At an aggregate level, the empirical analysis in this chapter indicates that the Roberts Court can be accurately characterized as business friendly. It would not be accurate to characterize the Roberts Court’s record as a sharp break from the past. To the contrary, the record is best viewed as a continuation of a long-term trend that was initiated by Nixon’s appointees to the Court, fully entrenched by Reagan and Bush’s appointees, and accepted by Clinton’s appointees. In this sense then, the Roberts Court’s predisposition toward economic and business interests is best explained by understanding the relationship of the Court to the broader political regime within which it operates and where it is situated in political time.Less
This chapter in Business and the Roberts Court provides an empirical analysis of the Roberts Court’s decisions in business-related cases in comparison to its predecessors. At an aggregate level, the empirical analysis in this chapter indicates that the Roberts Court can be accurately characterized as business friendly. It would not be accurate to characterize the Roberts Court’s record as a sharp break from the past. To the contrary, the record is best viewed as a continuation of a long-term trend that was initiated by Nixon’s appointees to the Court, fully entrenched by Reagan and Bush’s appointees, and accepted by Clinton’s appointees. In this sense then, the Roberts Court’s predisposition toward economic and business interests is best explained by understanding the relationship of the Court to the broader political regime within which it operates and where it is situated in political time.
Bradley W. Joondeph
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199859344
- eISBN:
- 9780190620929
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199859344.003.0002
- Subject:
- Political Science, American Politics
This chapter in Business and the Roberts Court provides an empirical analysis of the Roberts Court’s decisions in business-related cases exploring whether there is an identifiable “probusiness” ...
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This chapter in Business and the Roberts Court provides an empirical analysis of the Roberts Court’s decisions in business-related cases exploring whether there is an identifiable “probusiness” trend. While such analyses are not conclusive, due to the potential for selection bias, business interests have fared reasonably well in the period studied. The “win rate” of the Chamber of Commerce is slightly greater than that of the Solicitor General’s office, and yet when the Chamber and the Solicitor General have disagreed on the merits and the government has participated as amicus curiae, the Chamber has lost more than it has won. Interestingly, as the Obama administration has less frequently embraced the interests of business, the Supreme Court has less frequently embraced the views of the Solicitor General in business-related cases.Less
This chapter in Business and the Roberts Court provides an empirical analysis of the Roberts Court’s decisions in business-related cases exploring whether there is an identifiable “probusiness” trend. While such analyses are not conclusive, due to the potential for selection bias, business interests have fared reasonably well in the period studied. The “win rate” of the Chamber of Commerce is slightly greater than that of the Solicitor General’s office, and yet when the Chamber and the Solicitor General have disagreed on the merits and the government has participated as amicus curiae, the Chamber has lost more than it has won. Interestingly, as the Obama administration has less frequently embraced the interests of business, the Supreme Court has less frequently embraced the views of the Solicitor General in business-related cases.
Roderick M. Hills
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199859344
- eISBN:
- 9780190620929
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199859344.003.0008
- Subject:
- Political Science, American Politics
This chapter in Business and the Roberts Court examines the Court’s preemption decisions. These decisions do not consistently favor business interests and seem to follow a traditional script of dual ...
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This chapter in Business and the Roberts Court examines the Court’s preemption decisions. These decisions do not consistently favor business interests and seem to follow a traditional script of dual federalism. When the Court enforces federal statutes having the purpose of breaking down regulatory barriers to freedom of contract, it plays a historically familiar and judicially congenial role of protecting a national market from state burdens on commerce. By contrast, preemption of state laws defining entitlements to health, safety, bodily integrity, and property more generally tend to raise culturally and politically divisive issues that are best handled subnationally in a federal regime. This categorization, more than any reductionist label, best explains the Roberts Court’s preemption decisions to date.Less
This chapter in Business and the Roberts Court examines the Court’s preemption decisions. These decisions do not consistently favor business interests and seem to follow a traditional script of dual federalism. When the Court enforces federal statutes having the purpose of breaking down regulatory barriers to freedom of contract, it plays a historically familiar and judicially congenial role of protecting a national market from state burdens on commerce. By contrast, preemption of state laws defining entitlements to health, safety, bodily integrity, and property more generally tend to raise culturally and politically divisive issues that are best handled subnationally in a federal regime. This categorization, more than any reductionist label, best explains the Roberts Court’s preemption decisions to date.
Joel M. Gora
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199859344
- eISBN:
- 9780190620929
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199859344.003.0009
- Subject:
- Political Science, American Politics
No case concerning corporations has attracted more attention or prompted more debate than Citizens United v. Federal Election Commission. While controversial, Citizens United may not be evidence of a ...
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No case concerning corporations has attracted more attention or prompted more debate than Citizens United v. Federal Election Commission. While controversial, Citizens United may not be evidence of a “probusiness” bias on the Court. Rather, this chapter in Business and the Roberts Court suggests that Citizens United embodied and applied classic First Amendment principles and is but one part of a larger pattern of deregulatory decisions in the campaign finance context. Citizens United was a landmark decision for free speech and political freedom in our democracy, and any benefit to business was incidental.Less
No case concerning corporations has attracted more attention or prompted more debate than Citizens United v. Federal Election Commission. While controversial, Citizens United may not be evidence of a “probusiness” bias on the Court. Rather, this chapter in Business and the Roberts Court suggests that Citizens United embodied and applied classic First Amendment principles and is but one part of a larger pattern of deregulatory decisions in the campaign finance context. Citizens United was a landmark decision for free speech and political freedom in our democracy, and any benefit to business was incidental.
Jonathan H. Adler (ed.)
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199859344
- eISBN:
- 9780190620929
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199859344.001.0001
- Subject:
- Political Science, American Politics
The Supreme Court under Chief Justice Roberts is often described as a “probusiness” court, favoring the interests of business groups and large corporations over those of consumers, workers, and the ...
More
The Supreme Court under Chief Justice Roberts is often described as a “probusiness” court, favoring the interests of business groups and large corporations over those of consumers, workers, and the public at large. Such accusations are often based on the selective citation of individual cases in which business interests prevailed without considering the cumulative content of the Court’s decisions and their implications for American law. This book provides a thorough examination of the Roberts Court’s approach to business-related cases and the first critical examination of the thesis that the Roberts Court is probusiness. Chapter authors consider the Roberts Court’s approach in specific areas of the law, including antitrust, securities regulation, and preemption, as well as the Court’s combined decisions across business-related issues. Taken together, the analyses in this book suggest that there are aspects of the Court’s approach to business-related cases that are definitely advantageous to business groups, but that this appears to be the result of other doctrinal commitments and legal policy preferences, and not the result of favoritism toward business litigants and their interests.Less
The Supreme Court under Chief Justice Roberts is often described as a “probusiness” court, favoring the interests of business groups and large corporations over those of consumers, workers, and the public at large. Such accusations are often based on the selective citation of individual cases in which business interests prevailed without considering the cumulative content of the Court’s decisions and their implications for American law. This book provides a thorough examination of the Roberts Court’s approach to business-related cases and the first critical examination of the thesis that the Roberts Court is probusiness. Chapter authors consider the Roberts Court’s approach in specific areas of the law, including antitrust, securities regulation, and preemption, as well as the Court’s combined decisions across business-related issues. Taken together, the analyses in this book suggest that there are aspects of the Court’s approach to business-related cases that are definitely advantageous to business groups, but that this appears to be the result of other doctrinal commitments and legal policy preferences, and not the result of favoritism toward business litigants and their interests.
A. C. Pritchard
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199859344
- eISBN:
- 9780190620929
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199859344.003.0005
- Subject:
- Political Science, American Politics
This chapter in Business and the Roberts Court considers the Court’s securities law cases. Although the Roberts Court has heard more securities law cases than its predecessors, analysis of the ...
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This chapter in Business and the Roberts Court considers the Court’s securities law cases. Although the Roberts Court has heard more securities law cases than its predecessors, analysis of the Court’s opinions suggests that the Court is not interested in the substance of the securities laws or the policies that animate them. Instead, securities law serves as a backdrop for debates over statutory interpretation and the relationship of the judiciary to the administrative state. Only in the area of securities class actions is there an inkling of engagement with the specific subject matter. Notwithstanding charges that the Roberts Court is “probusiness,” the Court has not charted a consistent course favoring corporate defendants. Instead, the Court has demonstrated a bias toward the status quo, resisting attempts to both restrict and expand the reach of Rule 10b-5 class actions.Less
This chapter in Business and the Roberts Court considers the Court’s securities law cases. Although the Roberts Court has heard more securities law cases than its predecessors, analysis of the Court’s opinions suggests that the Court is not interested in the substance of the securities laws or the policies that animate them. Instead, securities law serves as a backdrop for debates over statutory interpretation and the relationship of the judiciary to the administrative state. Only in the area of securities class actions is there an inkling of engagement with the specific subject matter. Notwithstanding charges that the Roberts Court is “probusiness,” the Court has not charted a consistent course favoring corporate defendants. Instead, the Court has demonstrated a bias toward the status quo, resisting attempts to both restrict and expand the reach of Rule 10b-5 class actions.
Thomas A. Lambert
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199859344
- eISBN:
- 9780190620929
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199859344.003.0007
- Subject:
- Political Science, American Politics
This chapter in Business and the Roberts Court examines the Court’s antitrust decisions. Whereas the Rehnquist Court decided relatively few antitrust cases, the Roberts Court has shown a greater ...
More
This chapter in Business and the Roberts Court examines the Court’s antitrust decisions. Whereas the Rehnquist Court decided relatively few antitrust cases, the Roberts Court has shown a greater interest in this area and prompted claims that the Court favors business at the expense of consumers. While some of the decisions do represent significant changes from past practice, the “probusiness/anticonsumer” characterization of the Roberts Court’s antitrust decisions is inaccurate, as it fails to appreciate the fundamental limits of antitrust, a body of law that requires judges and juries to make fine distinctions between procompetitive and anticompetitive behaviors that frequently resemble each other. Optimal antitrust rules aim to minimize the sum of decision costs and expected error costs. Each of the Roberts Court’s antitrust decisions can be defended in light of this “decision-theoretic” approach, an approach calculated to maximize the effectiveness of the antitrust enterprise, to the ultimate benefit of consumers.Less
This chapter in Business and the Roberts Court examines the Court’s antitrust decisions. Whereas the Rehnquist Court decided relatively few antitrust cases, the Roberts Court has shown a greater interest in this area and prompted claims that the Court favors business at the expense of consumers. While some of the decisions do represent significant changes from past practice, the “probusiness/anticonsumer” characterization of the Roberts Court’s antitrust decisions is inaccurate, as it fails to appreciate the fundamental limits of antitrust, a body of law that requires judges and juries to make fine distinctions between procompetitive and anticompetitive behaviors that frequently resemble each other. Optimal antitrust rules aim to minimize the sum of decision costs and expected error costs. Each of the Roberts Court’s antitrust decisions can be defended in light of this “decision-theoretic” approach, an approach calculated to maximize the effectiveness of the antitrust enterprise, to the ultimate benefit of consumers.
Matthew T. Bodie
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199859344
- eISBN:
- 9780190620929
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199859344.003.0010
- Subject:
- Political Science, American Politics
This chapter in Business and the Roberts Court looks at the Roberts Court’s labor and employment law cases through the lens of human resources. These cases, taken together, appear to show sympathy ...
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This chapter in Business and the Roberts Court looks at the Roberts Court’s labor and employment law cases through the lens of human resources. These cases, taken together, appear to show sympathy for the human resources professionals that must monitor and implement the Court’s labor and employment law decisions. In adopting an approach that is solicitous toward human resources departments and concerns, the Roberts Court reflects a willingness to empower these private institutional players. Even if labor and employment law scholars do not agree with the solicitousness, they should use the opportunity to develop a positive theory of human resources, one that directs this workforce in a just and ethical manner.Less
This chapter in Business and the Roberts Court looks at the Roberts Court’s labor and employment law cases through the lens of human resources. These cases, taken together, appear to show sympathy for the human resources professionals that must monitor and implement the Court’s labor and employment law decisions. In adopting an approach that is solicitous toward human resources departments and concerns, the Roberts Court reflects a willingness to empower these private institutional players. Even if labor and employment law scholars do not agree with the solicitousness, they should use the opportunity to develop a positive theory of human resources, one that directs this workforce in a just and ethical manner.
Brian T. Fitzpatrick
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199859344
- eISBN:
- 9780190620929
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199859344.003.0006
- Subject:
- Political Science, American Politics
In Bell Atlantic v. Twombly and Aschroft v. Iqbal the Supreme Court reinterpreted the Federal Rules of Civil Procedure to permit judges to dismiss claims at the very outset of a case whenever they ...
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In Bell Atlantic v. Twombly and Aschroft v. Iqbal the Supreme Court reinterpreted the Federal Rules of Civil Procedure to permit judges to dismiss claims at the very outset of a case whenever they think the claims are implausible. These controversial decisions are cited as prime examples of the Roberts Court’s alleged “probusiness” activism. Some of this criticism is warranted, if overstated. This chapter in Business and the Roberts Court explains why these decisions are unlikely to cause any revolution in pleading standards because such changes were already underway in lower courts. Such reforms may have been justified to recast the balance of power between plaintiffs and corporate defendants in light of the exponential increase in the nuisance value of discovery—especially e-discovery—in recent decades. If so, fee-shifting rules may have been a better way to achieve this goal.Less
In Bell Atlantic v. Twombly and Aschroft v. Iqbal the Supreme Court reinterpreted the Federal Rules of Civil Procedure to permit judges to dismiss claims at the very outset of a case whenever they think the claims are implausible. These controversial decisions are cited as prime examples of the Roberts Court’s alleged “probusiness” activism. Some of this criticism is warranted, if overstated. This chapter in Business and the Roberts Court explains why these decisions are unlikely to cause any revolution in pleading standards because such changes were already underway in lower courts. Such reforms may have been justified to recast the balance of power between plaintiffs and corporate defendants in light of the exponential increase in the nuisance value of discovery—especially e-discovery—in recent decades. If so, fee-shifting rules may have been a better way to achieve this goal.
