Georgetown University Law Center

About: Georgetown University Law Center is a based out in . It is known for research contribution in the topics: Supreme court & Public health. The organization has 585 authors who have published 2488 publications receiving 36650 citations. The organization is also known as: Georgetown Law & GULC.

Using Leverage to Preserve Monopoly: Discussion of Katz and Shapiro Paper

Abstract: This paper is a conference discussion of the Katz and Shapiro article "Antitrust Analysis of Software Markets," as part of a recent Progress and Freedom Foundation Conference titled, "Competition, Convergence and the Microsoft Monopoly." The paper analyzes some aspects of exclusionary vertical conduct and applies that analysis to the Microsoft-Netscape "browser wars" and the Microsoft-Sun "Java wars." The main issue stressed is the applicability of the single monopoly profit theory to monopoly leveraging allegations. in the examples, monopoly leveraging into a second market may be a rational anticompetitive strategy to preserve or enhance the firm's monopoly power in the first product.

The 2020 Vertical Merger Guidelines: A Suggested Revision

Abstract: The FTC and DOJ requested comments on their draft Vertical Merger Guidelines in January 2020. This article is a complete alternative set of suggested Vertical Merger Guidelines that reflects and supplements the approach explained in the comments submitted by the author along with Jonathan. Baker, Nancy Rose and Fiona Scott Morton, as well as their other comments, and might be read in conjunction with those comments. This suggested revision of the Agencies’ draft expands the list of potential competition harms and provides illustrative examples. It expands and unifies the discussion and treatment of potential competitive benefits. It deletes the quasi-safe harbor and suggests the circumstances under which competitive harms raise lessened concerns on the one hand and heightened concerns on the other.

Sharing the Burden of Ebola Vaccine Related Adverse Events

Abstract: Based upon past experience with other vaccines, the proposed administration of Ebola vaccines (once testing has been completed) will inevitably result in at least some adverse events that will give rise to legal liabilities of only crudely estimable magnitude at this time. Manufacturers, beneficiary governments (e.g., Guinea, Liberia, Sierra Leone), supporting governments (e.g. U.S., U.K.), individuals suffering adverse events, and populations benefiting from widespread vaccination against the Ebola virus all have a shared interest in recognizing, understanding, and managing potential liability as effectively as possible within the framework of a global public health response. There are multiple options available to the global public health community in addressing potential legal liabilities associated with Ebola vaccines, including (1) requiring manufacturers to pay any valid claims, (2) establishing a sui generis product liability insurance scheme for Ebola vaccine claims, (3) agreeing that beneficiary governments compensate their residents for adverse events, (4) issuing declarations of immunity by beneficiary and supporting governments, (5) calling upon beneficiary governments to appear in judicial proceedings on behalf of manufacturers, and/or (6) creating one or more mechanisms for supporting governments to pay for claims relating to adverse events of Ebola vaccine administration.

Relative Plausibility and its Critics

Abstract: Within legal scholarship there is a tendency to use (perhaps overuse) “paradigm shift” in ways far removed from the process famously described by Thomas Kuhn. Within the field of evidence, however, a phenomenon very similar to a paradigm shift, in the Kuhnian sense, is occurring. Although not on the scale of the transformation from Newtonian to Einsteinian physics or other tectonic shifts in science, the best understanding of juridical proof is shifting from probabilism to explanationism. For literally hundreds of years, proof at trial was assumed to be probabilistic. This assumption was given sustained scholarly attention and support beginning with the 1968 publication of John Kaplan’s path-breaking article that generated a rich literature explaining virtually all aspects of juridical proof as probabilistic, from the basic nature of relevancy through the processing of information to the final decision about the facts. Although probabilism quickly became the dominant paradigm, some analytical difficulties were detected quite early (“anomalies” or “irritants” in the words of Kuhn), beginning with L. Jonathan Cohen’s demonstration of certain proof paradoxes. These were extended by Ronald Allen, who also demonstrated the incompatibility of Bayesian reasoning with trials and proposed an analytical alternative. Again a complex literature ensued with the defenders of the dominant paradigm attempting to explain away the anomalies or to shield the probabilistic paradigm from their potentially corrosive effects (in what in fact on a very small scale is precisely what Kuhn explained and predicted with respect to paradigm shifts in science). Over the last two decades, these anomalies have become too irritating to ignore, and the strengths of the competing paradigm involving explanatory inferences (referred to as the relative plausibility theory) have become too persuasive to dismiss. Thus the paradigm shift that the field is now experiencing. We provide here a summary of the relative plausibility theory and its improvement on the probabilistic paradigm. As Kuhn noted, not everybody gets on board when paradigms shift; there are holdouts, dissenters, and objectors. Three major efforts to demonstrate the inadequacies of relative plausibility have recently been published. We analyze them here to demonstrate that their objections are either misplaced or unavailing, leaving relative plausibility as the best explanation of juridical proof. It is interesting to note that two of the three critiques that we discuss actually agree with the inadequacies of the probabilistic paradigm (they provide alternatives). The third concedes that explanationism may provide a better overall account of juridical proof but tries to resuscitate a probabilistic interpretation of burdens of proof in light of one particular analytical difficulty (i.e., the conjunction problem, which arises from the fact that proof burdens apply to the individual elements of crimes, civil claims, and defenses). In analyzing the alternative positions proposed by our critics, we demonstrate that their accounts each fail to provide a better explanation than relative plausibility.

Does Tax Matter? Evidence on Executive Compensation After 162(m)'s Repeal

Abstract: As part of the most sweeping federal tax reform in a generation, the Tax Cuts and Jobs Act (“TCJA”) radically altered the tax treatment of compensation paid to senior executives of public companies Prior to the TCJA, payment of such compensation in excess of one million dollars was non-deductible except to the extent the compensation was performance-based The TCJA eliminated the exception so that all senior executive compensation above one million dollars is now non-deductible regardless of whether it is performance-based or not This reform provides a natural experiment to study the role of tax law in influencing managerial pay decisions, an issue that has been debated for decades by scholars and policymakers Did the elimination of the performance-based pay exception influence senior executive compensation decisions? Using a novel empirical design, we find no evidence that the repeal of the performance-based pay exception changed the most significant and salient compensation features, namely the proportion of performance-based pay to total pay and the overall amount of pay On the other hand, when we move from headline compensation features to smaller technical ones, our data suggests that the tax change has had a significant influence This suggests that tax rules may be only consequential in shaping executive compensation when no one else is paying attention otherwise