Journal of Law and Political Economy

In March 1923, a group of prominent political economists and tax law experts gathered in Geneva, Switzerland to discuss the post–World War I framework for a new international tax regime. Commissioned by the League of Nations, these experts produced a comprehensive report that gradually became the intellectual foundation of the modern international tax regime. Relying on archival materials and other primary sources, this article contends that the US expert Edwin R. A. Seligman played a vital role in revising the report. While scholars have noted Seligman’s influence over US tax law and policy, his pivotal role in drafting the 1923 report has only recently been acknowledged. This article builds on this recent scholarship by investigating how Seligman’s background, experiences, and ideas—particularly his analysis and advocacy of the concept of “ability to pay” and “economic allegiance”—shaped the 1923 Report, and hence the subsequent development of the modern international tax regime.

In Ontario’s far north, settler state authorities and extractive firms are engaged in coordinated tactics to gain ground amid a polarization in the positions of Indigenous leadership. Alongside a surging resistance, we also witness a resigned acceptance of critical minerals mining by some First Nations. Drawing on years of community-engaged research, I detail here the contemporary tactics of “infrastructural (dis)entitlement:” in this dynamic, infrastructural needs are both denied and fulfilled to differential effect. Infrastructural disentitlement is passive; it is not necessarily deliberate, nor is it politically or institutionally organized. But infrastructural entitlement is strategic and aggressive: Indigenous prosperity and inclusion are key elements of the contemporary liberal justification for critical minerals extraction. From this, a pattern emerges of places toward which resources are flowing and places out of which they are draining. The chronic lack of community-focused infrastructure in some remote First Nations—characterized as a form of “letting die”—creates an attritional force that undermines the communities’ capacity to defend their homelands, to the advantage of the settler state and extractive firms.

The Biden administration’s initiative to modernize regulatory review, while attempting to incorporate various criticisms of cost-benefit analysis (CBA), was hobbled by an insufficient theoretical analysis. Specifically, the administration failed to address its implicit naturalization of the economic subject, under which subjects and their preferences are regarded as exogenous givens. The justification for CBA is that it can use information regarding individual “willingness to pay” (WTP) or “willingness to accept” (WTA) to discern these preferences, and thereby create efficient policy. But if the naturalized subject is fictional, then there is nothing to discern. Subjects and their preferences are not waiting to be found; rather, they are endogenously shaped. Recognition of this endogeneity would allow for preferences, or values, constituted through democratic spaces to be no less salient to policy than those ostensibly exogenous to the market. Further, it would allow for regulatory institutions themselves to serve as those democratic spaces.

The fundamental legal, normative, and politico-economic assumptions underpinning both competition law and administrative governance are in a period of considerable flux (Harris and Varellas 2020, 3; Britton-Purdy et al. 2020, 1801-02; Khan 2019; Rahman 2018). Past calls for a renewed economic analysis of law are striking a chord with present scholars. In this issue of the Journal of Law and Political Economy, we commence a specially edited series of articles focused on the value, shortcomings, and potential improvement of quantitative analysis in competition law and regulatory decision-making. This multi-year project aims to provide guidance and insight to advocates, judges, and regulators on the proper nature and scope of quantitative methods in several important areas of law and policy.

There is an emerging belief that antitrust has failed marginalized populations. For example, exclusionary practices have helped to produce banking and food deserts in low-income communities, though antitrust has seldom intervened. But is this a problem of antitrust law? In fact, another claim is that antitrust law is just fine as opposed to how federal agencies enforce antitrust. Since agencies must decide which cases to bring, they should perhaps pay better attention to marginalized communities or draft complaints to emphasize their unique injuries. This topic is especially salient, given the ongoing debate about whether the consumer welfare standard is able to promote competition in modern markets. In essence, the root of why antitrust has yet to meet its potential of serving marginalized communities may lie with the law and its interpretation or, alternatively, people and organizations enforcing it.

In this essay, we detail the fundamental reasons for antitrust policy’s right turn toward the consumer welfare theory and against antitrust enforcement in the 1970s. Two recent articles raise questions as to the cause of this turn, with one article arguing that big business capture facilitated the right turn, while another touts a consensus around science-based economics. We argue that while the capture theory is more persuasive, power dynamics between heterogeneous business alliances shifted due to changes in the economy that eroded the incomes of the wealthiest; reductions in antitrust enforcement was one means of restoring that lost income. This essay details that economic history in support of a more nuanced capture theory.