Restoring Bankruptcy’s Fresh Start

The discharge injunction, which allows former debtors to be free from any efforts to collect former debt, is a primary feature of bankruptcy law in the United States. When creditors have systemically violated debtors’ discharge injunctions, some debtors have attempted to challenge those creditors through a class action lawsuit in bankruptcy court. However, the pervasiveness of class-waiving arbitration clauses likely prevents those debtors from disputing discharge injunction violations outside of binding, individual arbitration. This Note first discusses areas of disagreement regarding how former debtors may enforce their discharge injunctions. Then, it examines the types of disputes that allow debtors to collectivize in bankruptcy court. Without seeking to resolve either disagreement, this Note assumes debtors may collectivize in this context and employs an “inherent conflict” test that looks to whether disputes over discharge injunction violations are arbitrable. Because the “inherent conflict” test likely leads to the conclusion that courts must enforce class-waiving arbitration clauses, this Note argues that Congress should amend the Bankruptcy Code not only to provide debtors an express right of action under § 524 and the ability to collectivize, but also to prohibit the arbitration of these claims. Doing so will give full effect to the discharge injunction and fulfill the promise to debtors that they can truly begin anew after bankruptcy

Use of Enforcement Techniques in Eliminating Glass Ceiling Barriers

Glass Ceiling ReportGlassCeilingBackground9UseofEnforcement.pdf: 3253 downloads, before Oct. 1, 2020

CBA at the PTO

What are the costs and benefits of patent laws? While Congress and the courts are often able to evade this difficult question, there is one institutional actor that is not only well-advised but also required to consider costs and benefits: the Patent and Trademark Office, which—as an administrative agency—is required by executive order to conduct cost-benefit analysis of all economically significant regulations. Yet the agency’s efforts have been less than satisfactory. In its cost-benefit analysis, the PTO overlooks crucial functional considerations, misunderstands basic precepts of patent economics, and resists quantification when quantification is required. In combination, these shortcomings suggest that the PTO has not correctly measured the social costs and benefits of the rules it creates, in part because it has adopted an overly limited view of the welfare effects of intellectual property and the agency’s own role in promoting or discouraging IP. In other instances, the PTO has promulgated rules that will likely have tremendous economic significance without recognizing their importance or conducting a cost-benefit analysis. These errors cast doubt on whether the PTO’s regulations will increase or diminish social welfare. Before the PTO is granted any additional substantive authority, reform will be necessary

Splitting Blacks?: Affirmative Action and Earnings Inequality within and Across Races

Critics have said that affirmative action is at best ineffective and at worst counterproductive. In particular, it has been argued that if affirmative action helps anybody, it helps only the highly educated cream of the minority population, and may perversely work to the detriment of the unskilled and uneducated. This study finds that minority males earn higher wages in sectors where affirmative action is prevalent, indicating that it has increased the demand for minority males. I also find evidence of this effect for both the lowly and highly educated, suggesting that affirmative action under the Executive Order has not contributed to the economic bifurcation of the minority community.

No. 29: The New Brain Drain from Zimbabwe

All the signs point to the existence of a growing exodus of skilled Zimbabweans from the country. Although the precise dimensions and impacts of this “brain drain” have yet to be determined, the Zimbabwean government has recently sought to stem the tide with various policy measures. The education and health sectors appear to be the hardest hit although professionals in other sectors have also been leaving in numbers. The Southern African Migration Project (SAMP) has undertaken a multi-country study of the brain drain within and from the Southern African Development Community (SADC). SAMP’s primary contribution is to examine the skills base of a country and, on the basis of nationally-representative surveys, determine the future emigration potential of skilled people who remain. In other words, SAMP provides critical policy-relevant information on the likely course of the brain drain in the future and the effectiveness of policy measures that might be deployed to slow or reverse the brain drain. The Zimbabwean survey was conducted in 2001. A representative sample of 900 skilled Zimbabweans was interviewed to obtain information on personal and household economic circumstances; attitudes towards current and future economic, social and political circumstances; likelihood of emigration in the future; and attitudes towards measures designed to keep them in the country. The majority of the respondents (844) were African. Thus, the survey results are focused primarily on the emigration potential of black Zimbabweans. The white sample was too small to say anything of significance about white intentions. The respondents were drawn from a wide variety of professions and sectors and therefore represent a broad cross-section of skilled Zimbabweans. The first significant finding is that 57% of the sampled population have given a “great deal” of thought to emigrating from Zimbabwe (with another 29% having given the matter some thought). Only 13% have given it no consideration. A comparison with South Africa is germane since that country is widely believed to be undergoing a crippling brain drain. In South Africa, only 31% of the skilled population have given a great deal of thought to emigrating, with 31% having not thought about it at all. In terms of gender breakdown, more women than men have given a great deal of thought to emigrating (62% versus 54%), which is the opposite of the South African scenario. In age terms, it is Zimbabweans in the 25-35 age group who have given most thought to emigrating. Nevertheless, levels of dissatisfaction are so high that the majority in each age group have given at least some thought to leaving. As SAMP has demonstrated elsewhere, thinking about leaving and actually doing so are not the same thing. The survey therefore sought to establish the extent to which skilled Zimbabweans have made a mental commitment to leaving within a certain time frame. Respondents were therefore asked about the likelihood of their leaving within the next six months, two years, and five years. Over a quarter (27%) said it was likely or very likely that they would leave in six months. Fifty five percent were committed to emigrating within the next two years. And 67% said they were committed to emigrating within the next five years. These are sobering statistics, unmatched in any other country in the region in which SAMP has done similar research. They suggest that the pool of future emigrants in Zimbabwe remains massive. The firmest indication of migration potential, however, is whether a person has acted on their desires by applying for emigration documentation. Many emigrants do not, of course, apply until they are already overseas. However, the survey found that nearly 20% of the resident skilled population had either applied for or were in the process of applying for a work permit in another country. Another question addressed by the survey concerns the “permanence” of intended or likely emigration. This is an important issue. Are people so disillusioned that they wish to leave forever or would they return if conditions improved for them at home? The survey found that 51% expressed a strong desire to leave permanently (for longer than 2 years), compared with only 25% who have a strong wish to only leave temporarily. Again, 43% said they would prefer to stay in their most likely emigration destination for more than 5 years. This is not therefore a population that sees emigration as temporary exile. Why are so many Zimbabweans thinking seriously about leaving? The reasons for this extraordinary state of affairs can be analysed at two levels. First, it is possible to point to economic and political events over the last decade as the primary cause of emigration and high future potential. These events are too well-known to be repeated here. Instead, this survey sought to obtain the opinions of skilled Zimbabweans themselves, to statistically measure levels and forms of dissatisfaction and disillusionment and relate these to high emigration potential. The survey discovered extremely high levels of dissatisfaction with the cost of living, taxation, availability of goods, and salaries. But the dissatisfaction goes deeper than economic circumstances to include housing, medical services, education and a viable future for children. South Africans actually show similar levels of economic dissatisfaction but they are far more optimistic about the future than Zimbabweans. Asked about the future, there was deep pessimism amongst skilled Zimbabweans, with the vast majority convinced that their personal economic circumstances would only get worse. They were also convinced that social and public services would decline further. The respondents were also asked about their perceptions of political conditions in the country. Here, too, there was considerable negativity and pessimism. Ratings of government performance were extremely low. Various measures have been mooted in Zimbabwe with a view to keeping skilled people in the country, including compulsory national service and bonding. A coercive approach to the brain drain has not worked particularly well elsewhere and often have the opposite effect to that intended. The survey showed that such measures would only add to the burden of discontent and for around 70% of respondents would make absolutely no difference to their emigration intentions. Zimbabwe faces an immense challenge in stemming the exodus to other countries within Africa and oversees. The basic conclusion of this study is that coercive measures will not work and that the best way to curb the high rates of skilled labour migration lies in addressing the economic fundamentals of the country which will ultimately improve living standards. Regretably, most skilled Zimbabweans are very pessimistic that this will happen in the foreseeable future