The Case Against the Employee Free Choice Act (HOOVER INST PRESS PUBLICATION)

A richer account of the problem properly stresses that differences in individual levels of competence, as well as individual variations in temperament and taste, explain why, for example, some firms are organized as partnerships and others as straight employment arrangements, with many permutations in between.

Understanding differential levels of competence also helps to explain issues in areas from employment discrimination law to capital markets and tort liability. An essay is presented on the association of judicial engagement with affordable care act. It offers historical evolution under the Commerce Clause in relation with the individual mandate. It further provides information on the prophecy of judicial ineptitude which is largely self-fulfilling, by opinions at war with any handful constitutional analysis. The Proposal would so reduce the costs of infringement that the rate of infringement would increase as potential infringers find it in their interest to abandon the voluntary market in favor of judicial pricing.

As the number of nonmarket transactions increases, courts will play an ever larger role in deciding the terms on which the patented technologies of one party may be used by another party.

Richard Epstein

That will do more than reduce the incentives for innovation; it will upset the current set of well-functioning private coordination activities in the IP marketplace that are needed to accomplish the commercialization of new technologies. And that would seriously undermine capital formation, job growth, competition, and the consumer welfare the FTC seeks to promote. Like the FTC Proposal, we focus here within the context of standard-setting organizations SSOs , whose activities are key to bringing standardized technologies to market.

The FTC's proposal for regulating IP by limiting the freedom of SSOs to set their own terms would thereby replace private coordination with government hold-up. We conclude that the FTC should abandon its Proposal and support the current set of licensing tools that have fueled effective innovation and dissemination in the IP marketplace.

FTC forbearance will improve bargaining incentives, reduce administrative costs, and remove unnecessary elements of legal uncertainty in the IP system, thereby advancing consumer welfare.

Law and Regulation

One key similarity between natural law and international law is that they seek to obtain a stable social order without the intervention of any state authority capable of issuing and enforcing its commands to those subject to its rule. Among ordinary individuals in a state of nature that weakness tends to lead to a stripped-down libertarian regime that features simple rules of acquisition, contract, and protection.

The system gains its relative stability from the brute fact that between rough equals the party in the defensive posture will win out, so that great disparities in power are needed to disrupt the basic equilibrium. Similar constraints apply to nations in international affairs. Only within sovereign states is it possible to seek but not necessarily to obtain gains from the use of taxation or eminent domain powers.

The dangers implied in the use of these powers caution against the adoption of strong centralized forces in international affairs, where the risks of misapplied power are likely to outweigh the possible gains from greater centralisation of political power in international organisations.

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This article argues that this decision was wrong as a matter of statutory construction and sound as a matter of sound social policy: In particular, these principles are suspect when applied to membership organizations that care about their joint governance and common objectives. For these purposes, the exact direction of the vector is of less importance than awareness of the irreducible minimum of flux and uncertainty that comes when the Supreme Court tackles issues both large and small. It offers historical evolution under the Commerce Clause in relation with the individual mandate. The evidence in favor of the close linkage between carbon dioxide and global warming has not been clearly established and domestic American initiatives are in any even likely to produce no discernible reduction in carbon dioxide levels in the absence of any agreement that binds other nations, especially China and India.

Instead, her primary concern is to preserve continuity with existing legal doctrinal structures, which requires more fidelity to the past than any strong minimalist view of constitutional law would require. The best way to think of her work is as an effort to nudge the received judicial wisdom in her preferred direction, without attacking the intellectual foundations of the system as a whole. The article examines the justifications of the Supreme Court decision in the Citizens United v.

Federal Election Commission FEC court case concerning the issue of corporate speech in the political arena. The court ruled in favor of Citizens United, a decision criticized by many for it gives corporate interests a powerful tool to dominate political campaigns. It analyzes the Court's decision from both a constitutional and pragmatic point of view, and exposes the fundamental errors in the questions raised by its critics.

Transitions are times of danger in virtually all areas of human life. More accidents are likely to occur when cars go in and out of parking spaces, or when planes take off or land. More medical mishaps are likely to happen in hospitals when there is a change in shifts between nurses. The same pattern holds in the law of pharmaceutical patents, during the transition from a fully proprietary regime to one that allows for as many firms as possible to market a generic version of a once-protected pharmaceutical patent.

To pass judgment on these issues, it is often necessary to ask the thankless question of whether the supposed advances in science exceed the preclusive effect that arises if the original product is removed from the Orange Book—or official FDA registry of drugs available for sale—in ways that limit competition. Many modern writers have criticized the notion that property consists of a bundle of rights in some determinate thing as a weak conception that invites increased government control over private property, especially real estate.

This article rejects that conception for the following reasons. First, the notion of property as a bundle of rights long antedates the Progressive era, when it lay at the center of both Roman and common law views of property. Second, the bundle-of-rights theory does not imply that private property has no determinate meaning. To the contrary, traditional systems of private property all had a coherent bundle of rights that included exclusive possession, use, development and disposition of property that belonged to the original owner who acquired by first possession.

But it had the far greater advantage of allowing for gains from trade. The use of this system, moreover, implies strong protection against state control, so long as it is understood that the state must pay for each stick in the bundle that it takes and is never allowed to say that it can take one or more sticks for free so long as the original owner keeps some residual sticks. The design of new constitutions is fraught with challenges on both issues of structural design and individual rights. As both a descriptive and normative matter it is exceedingly difficult to believe that one structural solution will fit all cases.

The high variation in nation size, economic development, and ethnic division can easily tilt the balance for or against a Presidential or Parliamentary system, and even within these two broad classes the differences in constitutional structure are both large and hard to measure. The only confident claim is that some system of separation of powers coupled with checks and balances is needed. Deciding which system, however, is far harder.

In contrast, that same level of doubt does not arise in connection with the correct specification of individual right. Strong systems of negative rights on matters of liberty, property, religion, and speech are preferable across a wide range of social organizations. On the other hand, any effort to create systems of positive entitlements will fail because of the negative effects that they have on wealth creation and the inability to define or limit the scope of the relevant entitlements.


The article offers information and opinions about the Durbin Amendment of the U. Constitution, the constitutional rights of debit card companies, and government regulation of monopolies and competitive companies. The article discusses some issues confronted by the U. It offers a brief overview of the legislative scheme and explores the country's law of trade secrets. It also argues that the Biosimilars Act raises significant issues under the Fifth Amendment of the Constitution, particularly the protection of trade secrets. The article offers information and opinions about direct democracy in U.

The author offers observations about the Gettysburg Address given by former U. President Abraham Lincoln and discusses the role of individuals in the U. Constitution, the problems with referendum and ballot initiatives in the democratic process, and the need for limited government in the U.

This Article examines the relative strength of two imperfect accounting rules: The manifest inaccuracy of historical cost is well known and, paradoxically, one source of its hidden strength. Because private parties know of its evident weaknesses, they look elsewhere for information. In contrast, mark to market for hard-to-value assets has many hidden weaknesses.

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In this Article we show how it creates asset bubbles and exacerbates their negative collateral consequences once they burst. It does the former by allowing banks to adopt generous valuations in up-markets that increase their lending capacity. It does the latter by forcing the hand of counterparties to demand collateral, even when watchful waiting and inaction is the more efficient course of action when downward cascades generated by mark-to-market accounting might trigger massive sell-offs at prices below true asset value. The fears of private suits and regulatory sanctions on counterparties can compound the problem.

Mark to market generates the functional equivalent of bank runs for which the functional equivalent of the automatic-stay rule in bankruptcy is the appropriate response. Reprinted by permission of the publisher. News coverage on debit cards has increased exponentially since Senator Richard Durbin proposed his amendment to the Dodd-Frank financial reform legislation in March The Amendment gained a lot of initial traction in the Congress, and, with no Congressional hearings in either house, was signed into law on July 21, These fees are not set by the Amendment itself, which only contains an explicit instruction limiting these fees to the "incremental costs" associated with the "authorization, clearance, or settlement" of a discrete debit card transaction.

Once the challenge was decisively rejected by the Eighth Circuit, 4 the program went into effect on October 1, At no point does this Article take the position that gridlock, or the associated anticommons, is not a serious issue in the design of a legal system. But gridlock is not the major source of social dislocation; nor is private ownership the major source of gridlock. More concretely, this Article examines the other important sources of economic distortion that are unrelated to economic gridlock from private action.

These include the use of excessive government subsidies as with health care ; misguided government licenses as with broadcast licenses ; the unwise use of government power to create gridlock situations as with employment law ; the excessive role of government permitting as with real estate development ; and the use of creative private techniques to overcome gridlock as with patent licensing as a way to combat the patent thicket.

Thereafter, this Article explains how traditional common law rules did a better job of controlling for gridlock than many current initiatives, by narrowly defining the class of actionable harms to exclude competitive loss, blocked views, and hurt feelings. It closes with an explanation of how broad definitions of harm slow down decisions in the public sector, thereby impeding the use of the eminent domain power that could otherwise respond to gridlock issues.

The article presents the author's insights regarding the ruling of the U. Florida Department of Environmental Protection. It says that the conceptual conflict experienced by the Supreme Court regarding the doctrine of judicial takings is triggered by the divided system of rights under the country's federalist system. It notes that the case showed a much needed way to address the authority given to state courts.

Meanwhile, it discusses the rules of property law, particularly in land, water and beaches. The article offers author's observations and explorations about the relationship of ordinary and legal languages and note some arguable differences between them. He mentions the plain meaning of the three key terms plain, meaning and context, and the survival of law. He states that his task is to explain why languages works and its great importance. He adds that the language which describes and evaluates human action could develop in a fashion that did not reflect the social objectives.

Many advocates for using compulsory licensing CL for pharmaceutical patents in developing countries like Thailand rest their case in part on the purported use of CL in the United States. In this Article we take issue with that proposition on several grounds. As a textual matter, the "commercially reasonable terms" language in Article 31 of TRIPS, even when qualified by the Doha declaration, prevents any host nation from using whatever royalties it wants in its CL arrangements, especially those that are below marginal cost.

As a theoretical matter, we argue that the basic presumption in favor of voluntary licenses for intellectual property IP should apply in the international arena, in addition to the domestic one. In the international context, voluntary licenses are of special importance because they strengthen the supply chain for distributing pharmaceuticals and ease the government enforcement of safety standards. Next, this Article analyzes several of the key illustrations of purported CL for drug patents in the United States and shows that the use of CL elsewhere deviates in material ways from the standard US practices.

These are the compulsory copyright licenses for music, the limited statutory exemptions for pharmaceuticals and medical procedures, the award of damages instead of injunctions after eBay Inc v MercExchange, LLC, government takings, and the use of compulsory licenses in antitrust settlements. Whatever the ultimate desirability of these American doctrines, none of them seeks to reduce the payment on licenses to the marginal cost of the licensed goods. Any need to help poor people gain access to vital drugs should not rely on CL, but instead should rely on tools precisely aimed at that purpose, including direct government purchases of patented drugs from their manufacturers at negotiated prices.

The article questions the constitutionality of Proposition 8, which eliminates the right of same-sex couples to marry in the U. The article discusses the issue on the U. It notes that the arguments in term limits are to which view consistent with the highest values of democracy. It is stated that the constitutional amendment for term limits refuses to exempt incumbents who hold public office. An essay is presented on the opinion of U. City of Chicago court case.

The author mentions that conflicting idea exists in Easterbrook's argument presentation. He discusses arguments implying that one argument demands the U. Supreme Court to review historical arguments on cases involving the implementation of second and 14th amendments of the U. Ever since the controversial Supreme Court decision in Massachusetts v. This article argues that this decision was wrong as a matter of statutory construction and sound as a matter of sound social policy: On the present state of the evidence, the case for strong restraints on carbon dioxide emissions has not been made.

The evidence in favor of the close linkage between carbon dioxide and global warming has not been clearly established and domestic American initiatives are in any even likely to produce no discernible reduction in carbon dioxide levels in the absence of any agreement that binds other nations, especially China and India. In the short term at least an approach of watchful waiting seems preferable to any massive initiative. In the interim, efforts to deal with other greenhouse gases and to encourage wide spread technological improvements are more attractive policy alternatives. The subject of this symposium issue is the status of the unitary executive under the American Constitution.

Is that power one that can be exercised unilaterally and at will, or is it one that can only be exercised for cause or with the concurrence of the legislative branch, or some portion thereof? Article II does not address the endless permutations of removal, which are difficult enough in connection with ordinary employment contracts that are negotiated without any constitutional overlay.

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Instead, it only offers a skeletal account of the executive branch. The Vesting Clause reads: He shall hold his Office during the Term of four Years. As is typical, the Constitution contains no definitions section that might shed light on these sparse provisions. Their explication is left to judicial interpretation based, at least in part, on common usage at the time.

As is always the case in novel ventures, the text is not sufficiently developed to resolve future legal disputes. This Article examines the appropriate level of constitutional protection against outside governments that condemn property located within a given local municipality that uses tax increment financing TIF to fund local improvements.

The standard TIF arrangement does not provide the TIF lenders with liens against any particular asset, because to do so would be to abandon the tax-exempt status of the municipal bonds that are issued. Yet these agreements guarantee that the local government that issued the bonds will take no steps to compromise their repayment from incremental tax dollars. These protections allow TIF bonds to trade in ordinary financial markets. The bonds may, however, prove vulnerable to loss when the private and public property within the local municipal district is condemned by an outside government, as happened in City of Chicago v ProLogis, where the Illinois Supreme Court denied the bondholders claim.

I believe that these TIF bonds should have been treated as property under the Takings Clause and not as a mere "expectation" devoid of constitutional protection. This topic opens the way for a larger consideration of how to value divided interests in real property under the Takings Clause as a matter of modern finance theory in light of the powerful public choice issues that lurk in the background of this, and all other, takings disputes. The article offers information on the reactions of conservatives and libertarians to the administration of U.

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It mentions that Obama is perceived as a man of the Left while others see him as a political moderate but not a socialist in the sense that he does not believe government should own the means of production but goes for regulating private production firms. It cites that the attitude of Obama toward the federal courts is seen as his way of giving emphasis on legislative transformations.

The article reviews the book "The Constitution in ," edited by Jack M. Balkin and Reva B.

Although instrumentalism distances itself from notions of individual wrongs—focusing instead on tort law as a tool of social control with loss prevention at its heart—Prof. Epstein argues that there are good instrumental reasons for directing attention to the doer—victim relationship. In addition, he argues that Goldberg and Zipursky have offered a theory short on facts: Their lack of fact density explains why they are unable to come up with a single account of tort law that covers all of the diverse elements that fall within its scope.

Epstein disaggregates the various elements of different torts from one another in order to retell the entire story in a coherent fashion. I take the opposite position and treat this supposed disintegration of private property as evidence of its robust nature, not only for land but for all forms of intellectual property. Low transaction costs facilitate the creation of efficient regimes of property rights.

I use this framework to critique modern intellectual property rights cases that limit the use of injunctive relief in intellectual property cases, impose limits on the terms of private licenses of intellectual property, and compromise the protection that intellectual property receives against government confiscation.

One common theme links these elements together. Once it is recognized that patents and copyrights should be subject to limited terms, it becomes possible to transfer most of the legal principles from the physical to the intellectual realm. Far from being dead, a unified system of property rights for tangible and intangible assets could be brought to health by intelligent legislative and judicial action. In this extensive article I revisit my earlier writings from the s that deal with tort liability in both stranger and consensual arrangements.

In so doing, I reexamine the earlier efforts by writers such as Joseph Beale and H. In addition, I explain, in connection with the critique of Jill Horwitz, why some form of a negligence system remains appropriate for medical malpractice cases. In these consensual cases, doctrines of charitable immunity for nonprofit institutions often removed the need to investigate the basis of liability. But once those were removed, a contractual system, which in practice would never embrace a strict liability rule would often turn to some form of negligence, often coupled with institutional changes, such as arbitration and explicit limitations on contractual damages.

Most of the papers in this conference volume grapple with whether the venerable federal preemption principle will block private tort rights of action based on state common law principles. Federal preemption derives from the Supremacy Clause, which stipulates that federal statutes, and the regulations adopted pursuant to them, trump any state law. Two recent Supreme Court decisions, Riegel v. Levine, now shape this debate. Taken together, these cases stand for two propositions.

First, the doctrine of express preemption is alive and well in the Supreme Court; if Congress wants to block state tort actions against defendants that have complied with federal law, all it has to do is give the word. Second, while Congress has not spoken to the matter, recent decisions of the Supreme Court make it exceedingly difficult for defendants to persuade any court, federal or state, to preempt ordinary tort law actions under theories of either field or conflict preemption.

The author explores the works of John Maynard Keynes and his book, the "General Theory of Employment, Interest and Money," as he relates to the present economic recession in the U. He distrusts Keynes' position and analysis on the past Great Depression that hit the U. He argues that Keynes' scope is weak and incomplete and claims that even the modern Keynesians do not have any solutions to offer that cannot be found within the standard economic framework. Identifying four types of slavery—chattel slavery, debt bondage, forced labor, and sex slavery—he examines the efforts and failures of governments to address them.

He explores the political, economic, geographic, and cultural factors that shape slavery today, illustrating the tragic human toll with individual stories. This concise volume examines the relationship between law, governance, and economic development and shows the main substantive and procedural legal factors that developing nations must address to promote political stability and economic growth, intended for the general informed reader as well as for policymakers in governments and civil society.

The contributors examine the interdependence of justice and liberty and define the most sensible, reasonable principles of justice as they relate to equality, property, gender, and other factors. They compare the libertarian approach to the modern liberal focus on entitlements, offer a libertarian slant on feminism and liberty, a "natural rights" approach to justice, and more.

Connect with Hoover About Hoover. Beyond Disruption Technology's Challenge to Governance. Shultz , Jim Hoagland , James Timbie. Bound to Be Free. Business Ethics in the Global Market. Can Congress Be Fixed? And Is It Broken? Five Essays on Congressional Reform. Law and Economics in Developing Countries. Edgardo Buscaglia , William Ratliff. Robert Zelnick , Eva Zelnick.

Wriston This follow-up to the author's Twilight of Sovereignty explores the consequences of the changes produced by the new economy of the Internet, defining the new rules and examining some of the promising initiatives under way to create a system of measuring and valuing assets that reflects our new economic realities.

Bound to Be Free Author: McKenzie Why is it that in the land of the free, special interests control what you eat, wear, and drive, while the government tells you how your children will be educated and how much you'll pay for life's essentials? Business Ethics in the Global Market Editor: Machan What special problems arise for managers and employees of companies when they do business in countries and cultures other than their own?

Five Essays on Congressional Reform Editor: Peter Robinson A collection of thought-provoking essays on congressional reform. Richard Geddes Examining a variety of instances in which government and private firms compete, the authors raise fundamental questions about the proper relationship between business and government in a market economy and underline the need for significant policy change regarding competition between government and private firms.

Clint Bolick Clint Bolick examines the assault on economic liberty brought about by the 19th century's Slaughter-House Cases.