Emory Law Journal

ELJ OnlineVolume 64
Essays

The Rise and Rise of the One Percent: Considering Legal Causes of Wealth Inequality

Shi-Ling Hsu | 64 Emory L.J. Online 2043 (2015)

Thomas Piketty’s Capital in the Twenty-First Century, which is surely one of the very few economics treatises ever to be a best-seller, has parachuted into an intensely emotional and deeply divisive American debate: the problem of inequality in the United States. Piketty’s core argument is that throughout history, the rate of return on private capital has usually exceeded the rate of economic growth, expressed by Piketty as the relation r > g. If true, this relation means that the wealthy class—who are the predominant owners of capital—will grow their wealth faster than economies grow, which means that relatively speaking, the nonwealthy will fall behind. But even if we accept Piketty’s assertion that this has been a “historical fact,” why is r > g most of the time? Piketty offers a few economic factors and a few legal rules, but mostly demurs as to why the “forces of [wealth] divergence” generally overwhelm the “forces of [wealth] convergence.” This Essay argues that legal rules and institutions exhibit an inherent bias toward some forms of private capital and serve to inflate returns to private capital—Piketty’s r. Meanwhile, not only is it more difficult to make economic growth—Piketty’s g—keep pace, but it is more contentious. The result is that returns to private capital have indeed commonly exceeded the rate of economic growth.

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Be Careful What You Wish For: Goodyear, Daimler, and the Evisceration of General Jurisdiction

Thomas C. Arthur & Richard D. Freer | 64 Emory L.J. Online 2001 (2014)

International Shoe and its progeny permit states to assert general jurisdiction over nonresidents that have “continuous and systematic” contacts with the forum. In Goodyear Dunlop Tires Operations, S.A. v. Brown decided in 2011, and Daimler AG v. Bauman decided in early 2014, the Supreme Court made a sharp break from these cases, stating that general jurisdiction based on minimum contacts now exists only where a defendant is “at home.” The opinions in these cases are unpersuasive. While the Court purported to follow International Shoe and its two prior decisions on general jurisdiction, this simply is not so. Nor does the Court justify its use of an analogy to the traditional basis of domicile to determine to legitimate scope of contacts based jurisdiction. Arguably, an analogy to presence would be more apt. Worse, these two cases, when added to the Court’s grudging approach to specific jurisdiction, put some plaintiffs at risk of being unable to bring a defendant to justice in an American court. Goodyear and Daimler could have been decided on far narrower grounds; the Court should read them in the future to be limited to those grounds.

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