Law Commons^™

Can Simple Mechanism Design Results Be Used To Implement The Proportionality Standard In Discovery?, Jonah B. Gelbach

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I point out that the Coase theorem suggests there should not be wasteful discovery, in the sense that the value to the requester is less than the cost to the responder. I use a toy model to show that a sufficiently informed court could design a mechanism under which the Coasean prediction is borne out. I then suggest that the actual information available to courts is too little to effect this mechanism, and I consider alternatives. In discussing mechanisms intended to avoid wasteful discovery where courts have limited information, I emphasize the role of normative considerations.

Framing A Purpose For Corporate Law, William W. Bratton

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This article seeks to frame a short statement of purpose for corporate law on which all reasonable observers can agree. The statement, in order to succeed at its intended purpose, must satisfy two strict conditions: first, it must have enough content to be meaningful; second, it must be completely uncontroversial, both descriptively and normatively. The exercise, thus described, involves avoiding the issues that occupy center stage in discussions about corporate law while at the same time highlighting the discussants’ generally held presuppositions. Three closely interconnected issues arise. First, whether the statement of the purpose of corporate law should speak in …

Implementing Antitrust's Welfare Goals, Herbert J. Hovenkamp

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United States antitrust policy is said to promote some version of economic welfare. Antitrust promotes allocative efficiency by ensuring that markets are as competitive as they can practicably be, and that firms do not face unreasonable roadblocks to attaining productive efficiency, which refers to both cost minimization and innovation. One important welfare debate is whether antitrust should adopt a “consumer welfare” principle rather than a more general “total welfare” principle.

The simple version of the consumer welfare test is not a balancing test. If consumers are harmed by reduced output or higher prices resulting from the exercise of market power, …

Rethinking Summary Judgment Empirics: The Life Of The Parties, Jonah B. Gelbach

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No abstract provided.

Distributive Justice And Consumer Welfare In Antitrust, Herbert J. Hovenkamp

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The dominant view of antitrust policy in the United States is that it is intended to promote some version of economic welfare. More specifically, antitrust promotes allocative efficiency by ensuring that markets are as competitive as they can practicably be, and that firms do not face unreasonable roadblocks to attaining productive efficiency, which refers to both cost minimization and innovation.

The distribution concern that has dominated debates over United States antitrust policy over the last several decades is whether antitrust should adopt a “consumer welfare” principle rather than a more general neoclassical “total welfare” principle. In The Antitrust Paradox Robert …

Originality, Gideon Parchomovsky, Alex Stein

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In this Essay we introduce a model of copyright law that calibrates authors’ rights and liabilities to the level of originality in their works. We advocate this model as a substitute for the extant regime that unjustly and inefficiently grants equal protection to all works satisfying the “modicum of creativity” standard. Under our model, highly original works will receive enhanced protection and their authors will also be sheltered from suits by owners of preexisting works. Conversely, authors of less original works will receive diminished protection and incur greater exposure to copyright liability. We operationalize this proposal by designing separate rules …

Miscalculating Welfare, Michael B. Dorff, Kimberly Kessler Ferzan

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In their quest to maximize efficiency, law and economics scholars often produce novel, creative, and counterintuitive legal rules. Indeed, legal economists have argued for baby selling, against anti-discrimination laws in the workplace, and for insider trading. In this essay, we discuss some concerns about this form of legal scholarship that privileges the creative and counterintuitive over the fair, mundane, and intuitive. Drawing on a range of empirical evidence, this essay argues that the failure to include, and to give sufficient weight to, fairness preferences undermines legal economists' policy recommendations. Specifically, after setting forth three examples of this phenomenon, in the …

The Efficient Consumer Form Contract: Law And Economics Meet The Real World, Michael I. Meyerson

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"Law and economics" has been hailed by its supporters as the only intellectually valid means for analyzing legal issues. Its critics have dismissed law and economics as amoral and biased against the poor. Ironically, each side in this frequently acrimonious debate has much to offer those in the opposing camp. This Article reflects a modest attempt to bridge the chasm.

One need not believe that money is everything in order to believe that the effect a given legal rule has on total societal wealth is relevant in decisionmaking. But this admission does not consign one to a legal world where …