Digital Commons Network^™

The "Public Use" Requirement In Eminent Domain Law: A Rationale Based On Secret Purchases And Private Influence, Daniel B. Kelly

ExpressO

This article provides a rationale for understanding and interpreting the “public use” requirement within eminent domain law. The rationale is based on two factors. First, while the government often needs the power of eminent domain to avoid the problem of strategic holdout, private parties are usually able to purchase property through secret buying agents. The availability of these buying agents makes the use of eminent domain for private parties unnecessary (and indeed, undesirable). The government, however, is ordinarily unable to make secret purchases because its plans are subject to democratic deliberation and known in advance. Second, while the use of …

Regulatory Status Of Voip In The Post-Brand X World, Jerry Ellig

ExpressO

During the past several years, the Federal Communications Commission has engaged in a series of rulemakings to determine the regulatory status of Voice over Internet Protocol (VoIP). The Supreme Court’s Brand X decision clarifies that even if the FCC’s determination conflicts with that of a court, the FCC’s judgment holds sway as long as the decision is reasonable. We believe that VoIP should be classified as an information service, rather than a telecommunications service, for several reasons. First, the Internet Protocol nature of VoIP technology means that it functions like an information service, rather than a telecommunications service. Second, in …

Informal Economy: Is It A Problem, A Solution Or Both? The Perspective Of The Informal Business, Omar E. Garcia-Bolivar

ExpressO

This paper deals with the informal economy. For many it is a solution, for others it is a problem. What can the law do to incorporate the informal economy into the formal economy? Does it really matter? What are the challenges?

Are We Unnecessarily Serving Up Civil Liberties On A Patriot Platter?, Kyle A. Clark

ExpressO

This paper seeks to identify the general cognitive biases and overall measurement errors inherent in recent studies seeking to measure the effects of terrorism. Such biases lead to unprincipled conclusions founded upon incomplete information. These problems are exacerbated by inaccurate measures of the true impact of terrorism on the economy, the human psyche, policy-making and the world community. Such measurement errors severely diminish the probative value of the studies and lead to merely speculative conclusions. The goal of this paper is to shed light on these inaccurate conclusions in the hope that future legislation and practices aimed at curbing terrorism …

Global Pharmaceutical Patent Law In Developing Countries- Amending Trips To Promote Access For All, Angela J. Anderson

ExpressO

This comment will analyze the need to amend and revise the current global pharmaceutical patent system under TRIPS to take into account the needs of developing countries and overall public health. This comment will emphasize that the current international trade rules, which although administered by the WTO, are dictated by developed country governments and powerful pharmaceutical companies, and therefore, without reform will further diminish the access of poor people in developing countries to vital medicines. Part II of this comment will provide a general overview of the international trade law governing patents on pharmaceuticals focusing specifically on the development of …

Regulatory Reform: The New Lochnerism?, David M. Driesen

ExpressO

This article explores the question of whether contemporary regulatory reformers’ attitudes toward government regulation have anything in common with those of the Lochner-era Court. It finds that both groups tend to favor value neutral law guided by cost-benefit analysis over legislative value choices. Their skepticism toward redistributive legislation reflects shared beliefs that regulation often proves counterproductive in terms of its own objectives, fails demanding tests for rationality, and violates the natural order. This parallelism raises fresh questions about claims of neutrality and heightened rationality that serve as important justifications modern regulatory reform.

Poisoning The Well: Law & Economics And Racial Inequality, Robert E. Suggs

Faculty Scholarship

The standard Law & Economics analysis of racial discrimination has stunted our thinking about race. Its early conclusion, that laws prohibiting racial discrimination were unnecessary and wasteful, discredited economic analysis of racial phenomena within the civil rights community. As a consequence we know little about the impact of racial discrimination on commercial transactions between business firms. Laws do not prohibit racial discrimination in transactions between business firms, and the disparity in business revenues between racial minorities and the white mainstream dwarfs disparities in income by orders of magnitude. This disparity in business revenues is a major factor in the persistence …

Regulating Contract Formation: Precontractual Reliance, Sunk Costs, And Market Structure, Ofer Grosskopf, Barak Medina

ExpressO

This Article challenges the plausibility of the prospect of underinvestment in precontractual reliance (PCR). We argue that a negotiating party is motivated to invest in PCR not only through her expectation to extract the benefits that the investment yields (Added-Value Motivation), but also through the effect of the investment on her position vis-à-vis her competitors (Competition-Based Motivation). We demonstrate that under plausible assumptions, when a negotiating party operates in a relatively competitive market, the Competition-Based Motivation is frequently sufficient to induce optimal PCR, even without appropriate contractual provisions or legal intervention.

We suggest several normative implications. First, legal intervention that …

Implementation Of Sarbanes-Oxley: New Rules For Lawyers And What Lawyers Think, Olga Yevglevskaya-Wayne

ExpressO

This paper discusses practical implications of Sarbanes-Oxley for lawyers. Emphasis is on the new federal rules of professional responsibility the Act sets up. The paper includes the views of various renowned practitioners interpreting and using these rules. The paper also contains suggestions for how the Securities and Exchange Commission could potentially improve those areas that are proving problematic for attorneys so as to better effectuate the purpose of this major new law, in light of its legislative history and intent, which are also discussed in the paper.

Explanation, Human Nature, And Tort Theory, Jeffery L. Johnson

ExpressO

The article argues that, as they are usually stated, corrective justice theories of torts and economic efficiency theories fail to contradict one another. Thus, although the literature typically sees these approaches as doing conceptual battle, it takes a good deal of philosophical analysis to discover a theoretical framework from which to assess one perspective as superior to the other. Indeed, in many cases the corrective justice scholar appears to be talking past the economic lawyer, and vice versa.

The article then goes on to suggest that the one perspective from which we can see a genuine conflict between the explanations …

Toward An Ecology Of Intellectual Property: Lessons From Environmental Economics For Valuing Copyright's Commons, Frank Pasquale

Faculty Scholarship

The fair use defense in copyright law shields an intellectual commons of protected uses of copyrighted material from infringement actions. In determining whether a given use is fair, courts must assess the new use's potential effect on the market for the copyrighted work. Fair use jurisprudence too often fails to address the complementary, network, and long-range effects of new technologies on the market for copyrighted works. These effects parallel the indirect, direct, and option values of biodiversity recently recognized by environmental economists. Their sophisticated methods for valuing natural resources in tangible commons can inform legal efforts to address the intellectual …

The Taxation Of Aquaculture In Canada: A Comparison With The Taxation Of Agriculture And Its Policy Implications, Faye Woodman

Articles, Book Chapters, & Popular Press

In Canada, at both the federal and the provincial government levels, the tax rules applicable to agricultural producers under the Income Tax Act and other taxing statutes often apply with relatively few modifications to the aquaculture sector. The agriculture rules differ in significant aspects from those applied to other taxpayers. They also tend to be more generous. Thus, the aquaculture sector operates under regimes of taxation in Canada that may be characterized as preferential, but may also have been developed with the needs and circumstances of agriculture, not aquaculture, in mind. This chapter will examine the rationales underlying the various …

Ranks And Rivals: A Theory Of Competition, Avishalom Tor, Stephen M. Garcia, Richard Gonzalez

Journal Articles

Social comparison theories typically assume a comparable degree of competition between commensurate rivals on a mutually important dimension. In contrast, however, the following set of studies reveals that the degree of competition between such rivals depends on their proximity to a standard. Studies 1-3 test the prediction that individuals become more competitive and less willing to maximize profitable joint gains when they and their commensurate rivals are highly ranked (e.g., #2 vs. #3) than when they are not (e.g., #202 vs. #203). Studies 4-6 then generalize these findings, showing that the degree of competition increases not only for high ranks …

Runoff And Reality: Externalities, Economics, And Traceability Issues In Urban Runoff Regulation, Donald J. Kochan

Donald J. Kochan

It has long eluded regulators and private enforcers how to control the imposition of negative externalities. This paper will examine: (1) Whether existing authorities (like the Clean Water Act) are capable of providing regulation of urban runoff; (2) Whether, in light of economic controls, regulation of these activities are necessary; (3) A summary of recent runoff litigation; and (4) What is next; what should be next? Although each of these questions form background, the primary emphasis currently anticipated for this presentation is on traceability, collective action, and free rider problems that motivate regulation in this area. Often runoff is described …