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This article seeks to answer a fundamental antitrust question: does crime pay? Do the current overall levels of U.S. cartel sanctions adequately discourage firms from engaging in illegal collusion? Seven years ago our research showed that the unfortunate answer was clearly that, yes, criminal collusion usually is profitable! The expected costs (in terms of criminal fines and prison time, civil damages, etc.) was significantly less than expected gains to the price fixers. Sadly, the most recent data re-affirm this conclusion. The great majority of companies participating in illegal cartels make a profit even after they pay all the penalties. The current level of sanctions is only 9 to 21 percent of optimality, so it follows that current overall sanction levels should be quintupled. To move modestly in this direction, we propose five specific recommendations. Only the first and possibly the last would require new legislation. First, legislation should add prejudgment interest to both private treble damage actions and criminal fines. Second, the U.S. Sentencing Commission should double its current presumption that cartels raise prices by an average of 10 percent. (Hundreds of independent estimates show that median cartel overcharges since 1990 have averaged 23 percent, and the mean overcharge has been more than 35 percent for domestic cartels, and 56 percent for international cartels.) Third, the budget of the Antitrust Division should be increased significantly. Fourth, as Judge Douglas Ginsburg and others have recommended, the DOJ should insist, in its plea bargaining negotiations, that corporate defendants agree not to hire or re-hire anyone who has been convicted of price fixing for a specified (and long) period. Finally, the United States should implement a whistleblower reward or bounty system for individuals who turn in cartels. Together, these proposals would more nearly deter price fixing optimally. They would save victimized consumers and businesses from paying billions of dollars per year in cartel overcharges.
John M. Connor & Robert H. Lande, Does Crime Pay? Cartel Penalties and Profits, 33 Antitrust 29 (2019). Page 6
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Menstrual injustice is the oppression of menstruators, women, girls, transgender men and boys, and nonbinary persons, simply because they menstruate. Acts of menstrual injustice occur every day in the United States. The narrative of menstruation is that it is a taboo, shameful, and that menstruators are dirty, impure, even dangerous. Menstruation has been shunned generally from public discourse as a result. This narrative negatively impacts menstruators. Menstruators are essentialized as women, often of means, excluding transgender men and nonbinary persons, and menstruators who experience poverty or are young. Menstruating workers, especially low-wage workers, are harassed, penalized, or fired for heavy bleeding and suffering from pain. Menstruators are subjected to indignities and control. Society expects menstruators to be solely and invisibly responsible for their menstruation without recognizing it as part of the necessary reproductive life cycle. Menstruators suffer economic disadvantage. They also suffer health disadvantages due to inadequate health research.By analyzing the pervasiveness and variety of acts of menstrual injustice, this Article argues that menstrual injustice is another example of structural intersectionality. Menstrual injustice is not merely the operation of patriarchy, the structural oppression of women, but rather structural intersectionality, the overlapping forms of domination such as patriarchy, white supremacy, transphobia, classism, and ableism. Menstrual injustice is structural intersectionality because it is the manifestation of oppressive power that affects different persons based upon their location, such as those at the intersection of gender and age, as seen by menstrual injustices toward school girls; those at the intersection of gender and gender identity, as seen by the menstrual injustices toward transgender males and nonbinary persons who menstruate but are often excluded as menstruators; and those at the intersection of gender, race, class, and carceral status, as seen by the menstrual injustice towards menstruators who are incarcerated and are disproportionately of color and low income. But menstrual injustice has not received nearly enough attention. Lawyers, legislators, and advocates have started addressing some of these injustices. This Article looks at the good work that has been done and suggests ways in which future work can continue to address all menstrual injustices. This Article argues that menstrual injustice and actions to counter it should be examined through the lens of structural intersectionality. By using this lens, the focus can include the unequal treatment of women and men. Arguments against such things as the lack of menstrual products and the so called “tampon tax” include this focus as one argument in favor of change. In addition, by using this lens, the focus also can be on menstrual injustice as the operation of “overlapping systems of gender, race, and class [as well as other forms of oppression].” This lens brings into focus the essentialization, harassment, discrimination, insults and indignities, and economic and health disadvantage that impacts the wide array of menstruators in different ways. This Article suggests that by using the lens of structural intersectionality and building from the strengths of the intersectionality of menstruators, society can identify more menstrual injustices and build towards menstrual justice more effectively.
Margaret E. Johnson, Menstrual Justice, 53 U.C. Davis Law Review 1 (2019). Page 13
North Carolina Journal of International Law
The phrase “environmental refugee” summons a compelling image of someone forced to relocate due to climate change. The phrase has been used effectively to raise awareness of such diverse problems as the rising sea levels that are submerging some Pacific islands, as well as the increased impact of natural disasters like hurricanes and earthquakes which cause a mixture of temporary and permanent migration. As climate change accelerates, and its human costs become ever clearer, it is completely appropriate and necessary to respond to these migrations, and a number of international initiatives are underway to do so. As these initiatives go forward, however, it will be increasingly important to be careful and precise about the phrase “environmental refugee.” First, as a legal term, the phrase is dubious. It implicitly harnesses the language, norms, and protections of the United Nations Convention Relating to the Status of Refugees (Refugee Convention), which fits only a small subset of climate change migrants. Second, at a time when the Refugee Convention itself is under enormous strain, the phrase, with its expansive umbrella of applicability, is also problematic from a policy standpoint. Regional refugee instruments are often broader than the Refugee Convention itself, but the Convention is the particular focus of this Article. This Article begins with an assessment of the circumstances in which the word “refugee” is appropriate for climate change migrants and demonstrates that while the Convention can and will cover individuals in some limited settings, it will be utterly inadequate to protect the broader range of populations needing to migrate. Having established these limitations, the Article then considers the costs of using the word in other contexts. Those costs include the diversion of resources into the project of expanding the Convention, through the slow and arduous work of developing new precedents and understandings to protect climate change. There is also a great risk of weakening the international system’s support for the Convention itself as it stretches to address problems for which it was never designed. The Article ends with a justification for a complementary protection regime, and a brief examination of what such a regime might look like.
Elizabeth Keyes, Environmental Refugees? Rethinking What’s in a Name, 44 North Carolina Journal of International Law 461 (2019). Page 14
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