Law Commons^™

Targeted Reform Of Commercialized Intercollegiate Athletics, Matt Mitten, Jim Musselman, Bruce Burton

Matt Mitten

This article observes that American society’s passion for intercollegiate sports competition is an extremely powerful, naturally evolved cultural force. The marketplace responds to cultural forces, and the commercialization of college sports directly reflects the marketplace realities of our society. For example, colleges and universities rationally utilize their intercollegiate athletic programs, particularly NCAA Division 1 FBS football and basketball, as a means to achieve a wide range of legitimate objectives of higher education. Thus, the authors advocate that university athletic department revenues should continue to be exempt from federal taxation, specifically the unrelated business income tax (UBIT), despite the increasingly commercialized …

Property Vs. Political Holdouts. The Case Of The Tgv Rail Line Lyon-Budapest In Italy, Livia C. Navone

Livia C. Navone

While the law and economics literature commonly justifies the takings power on the ground that it is necessary to overcome holdouts and, thus, allow efficient development projects to move forward, this paper shows that the standard theory is highly incomplete. It conveniently ignores the ability of politically powerful groups to block development projects by exercising their de facto veto power over proposed projects. Such groups do not necessarily have rights in any properties directly affected by the project. Consequently, once these groups, which I label “political holdouts,” are added to the analysis, it becomes clear that the payment of just …

Down The Rabbit Hole: The Madness Of State Film Incentives As As "Solution" To Runaway Production, Adrian H. Mcdonald

Adrian H. McDonald

This working paper is a "sequel" to my first law review article on runaway productions called "Through the Looking Glass": Runaway Productions and "Hollywood Economics," published in The University of Pennsylvania Journal of Labor and Employment Law in August 2007.

Since 2007, there has been a race to the bottom as virtually every state has enacted significant, if not detrimentally generous, tax incentives to lure film and television production. The efficacy of these incentives is evaluated at length, with particular attention paid to the origin and implementation of tax incentives in California, Massachusetts and Louisiana - states with colorful backgrounds …

Down The Rabbit Hole: The Madness Of State Film Incentives As As "Solution" To Runaway Production, Adrian H. Mcdonald

Adrian H. McDonald

This working paper is a "sequel" to my first law review article on runaway productions called "Through the Looking Glass": Runaway Productions and "Hollywood Economics," published in The University of Pennsylvania Journal of Labor and Employment Law in August 2007.

Since 2007, there has been a race to the bottom as virtually every state has enacted significant, if not detrimentally generous, tax incentives to lure film and television production. The efficacy of these incentives is evaluated at length, with particular attention paid to the origin and implementation of tax incentives in California, Massachusetts and Louisiana - states with colorful backgrounds …

The True Cost Of Economic Rights Jurisprudence, Max Mccann

Max McCann

This Article discusses the distinction between economic and individual rights in contemporary political and legal discourse. As discussed herein, the phrase economic rights typically invokes notions of the ability to spend, save, and transfer wealth freely, as well as other related issues, such as the deregulation of industry and tax reform. In contrast, individual rights conjures ideas of being free in one’s person, including reproductive rights, free speech, and freedom of assembly.

With both historic and recent examples, this Article argues that the distinction between economic and individual rights is problematic at best. Rights spring forth from human interests, and …

The Supreme Court's Assault On Litigation: Why (And How) It Might Be A Good Thing For Health Law, Abigail R. Moncrieff

Abigail R. Moncrieff

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend has had a significant impact on health law; the Court’s decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend of eliminating private rights of action in …

How Do Local-Level Legal Institutions Promote Development?, Varun Gauri

Varun Gauri

This paper develops a framework and some hypotheses regarding the impact of local-level, informal legal institutions on three economic outcomes: aggregate growth, inequality, and human capabilities. It presents a set of stylized differences between formal and informal legal justice systems, identifies the pathways through which formal systems promote economic outcomes, reflects on what the stylized differences mean for the potential impact of informal legal institutions on economic outcomes, and looks at extant case studies to examine the plausibility of the arguments presented. The paper concludes that local-level, informal legal institutions can support social substitutes for the enforcement of contracts, although …

Toward A Better Competition Policy For The Media, Maurice E. Stucke, Allen P. Grunes

College of Law Faculty Scholarship

It is difficult to formulate meaningful competition policy when there is a fierce debate over the current competitiveness of the media industry. After addressing the importance of the marketplace of ideas in our democracy, our article examines the current state of the media industry, including the response of traditional media to audience declines, the growth of new media, the impact of media consolidation (including its impact on minority and women ownership), and the role of the Internet. In response to recent calls for liberalizing cross-ownership rules to protect traditional media, our article outlines why conventional antitrust policy is difficult to …

The Imperfect Is The Enemy Of The Good: Anticircumvention Versus Open Innovation, Wendy Seltzer

Wendy Seltzer

Digital Rights Management, law-backed technological control of usage of copyrighted works, is clearly imperfect: It often fails to stop piracy and frequently blocks non-infringing uses. Yet the drive to correct these imperfections masks a deeper conflict, between the DRM system of anticircumvention and open development in the entire surrounding media environment. This conflict, at the heart of the DRM schema, will only deepen, even if other aspects of DRM can be improved. This paper takes a systemic look at the legal, technical, and business environment of DRM to highlight this openness conflict and its effects.

Scholars have described DRM’s failures …

Vietnam's Eligibility To Receive Trade Benefits Under The U.S. Generalized System Of Preferences, Alexander H. Tuzin

Alexander H. Tuzin

Last year, Vietnam officially requested to receive trade benefits under the U.S. Generalized System of Preferences (GSP) as a beneficiary developing country. The accompanying article initially examines the role of GSP programs within the WTO system, and then provides a comprehensive analysis of Vietnam’s prospects for receiving trade benefits under the U.S. GSP system. Vietnam remains a very poor country, and it could benefit considerably from preferential treatment under the U.S. GSP program. However, Vietnam’s compliance with the GSP eligibility criteria is problematic. In particular, Vietnam’s protections for both intellectual property rights and worker rights are inadequate. Ultimately, this article …

What Internet Intermediaries Are Doing About Liability And Why It Matters, Mark Maccarthy

Mark MacCarthy

Abstract: In Who Controls the Internet? Goldsmith and Wu answer that intermediaries control it. Internet service providers, payment systems, search engines, and auction sites provide the infrastructure necessary for Internet transactions. These localized enterprises can be influenced by governments to block illegal transactions. Goldsmith and Wu conclude that this ends the hope of Internet exceptionalists such as Johnson and Post that the Internet would be governed by self-organizing communities of users. In addition, some commentators such as Mann and Belzley suggest that intermediary liability is the right public policy if intermediaries are the least cost avoiders. In this paper, I …

Procedimientos Concursales A La Luz Del Análisis Económico Del Derecho, Fernando Castillo Cadena

Fernando Castillo Cadena

No abstract provided.

One Size Does Not Fit All: A Framework For Tailoring Intellectual Property Rights, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

The United States and its trading partners have adopted cultural and innovation policies under which the government grants one-size-fits-all patents and copyrights to inventors and authors. On a global basis, the reasons for doing so vary, but in the United States granting intellectual property rights has been justified as the principal means of promoting innovation and cultural progress. Until recently, however, few have questioned the wisdom of using such blunt policy instruments to promote progress in a wide range of industries in which the economics of innovation varies considerably.

Provisionally accepting the assumptions of the traditional economic case for intellectual …

How Do Local-Level Legal Institutions Promote Development?, Varun Gauri

Varun Gauri

This paper develops a framework and some hypotheses regarding the impact of local-level, informal legal institutions on three economic outcomes: aggregate growth, inequality, and human capabilities. It presents a set of stylized differences between formal and informal legal justice systems, identifies the pathways through which formal systems promote economic outcomes, reflects on what the stylized differences mean for the potential impact of informal legal institutions on economic outcomes, and looks at extant case studies to examine the plausibility of the arguments presented. The paper concludes that local-level, informal legal institutions can support social substitutes for the enforcement of contracts, though …

Implications Of Reputation Economics Of Regulatory Reform Of The Credit Rating Industry, Paul Lasell Bonewitz

Paul Lasell Bonewitz

Credit rating agencies have for years maintained that they would never intentionally issue or maintain inaccurate ratings due to the damage their reputation, and therefore their business, would suffer as a result. The reputation of credit rating agencies perhaps never suffered more than when thousands of structured debt securities proved to hold inflated ratings in the run-up to the credit crisis. Yet credit rating agencies remain as engrained as ever in the global financial system. What is more, Congressional testimony shows that credit rating agencies had the ability to rate more accurately than they did, but intentionally failed to do …

Negotiating In The Shadow Of “Bad Faith” Refusal To Settle: A Game Theory Model Of Medical Malpractice Pre-Trial Settlements And Insurance Limits, Theodore H. Frank, Marie Gryphon

Theodore H. Frank

Recent empirical studies of Texas data by Hyman et al, Zeiler et al, and Silver et al suggest that insurance limits affect settlements of medical malpractice cases. Writing separately, Silver argues that insurance limits act as a de facto cap on malpractice payouts, that plaintiffs are being underpaid as a result, and that therefore legislative caps on damages are unnecessary. But this hypothesis is inconsistent with the data, which indicates that forty-seven percent of cases in which plaintiffs obtain verdicts above policy limits are subsequently settled above policy limits. We propose to reconcile the data by accounting for the effects …

Commerical Logic And The Doha Round: Will Pope's Encyclical Letter Impact Global Trade And Development Planning, Karen A. O'Rourke

Karen A. O'Rourke

Abstract: Relying on the Church’s principles of social doctrine , the Encyclical Letter released June29,2009, underscore the needed policy focus to create new forms of engagement both at the level of international “private” economics and at the level of private -public partnerships that support international commerce and development. Emphasis is placed on the broad concepts of authentic human development within a new context of a fully humane global economy where forms of future commercial enterprise can be based on reciprocity and where commercial logic and the current notions of economic utility are not opposed to new forms of economic democracy. …

Myths About Mutual Fund Fees: Economic Insights On Jones V. Harris, D. Bruce Johnsen

D. Bruce Johnsen

Mutual funds stand ready at all times to sell and redeem common stock to the investing public for the net value of their assets under management. In the language of transaction cost economics, they are open-access common pools subject to virtually free investor entry and exit. The Investment Company Act (1940) requires mutual funds to be managed by an outside advisory firm pursuant to a written contract, which normally pays the adviser a small share of net asset value, say, one-half of one percent per year. Following 1970 amendments to the Investment Company Act imposing a fiduciary duty on advisers …

Why Japanese Entrepreneurs Don't Give Up Control To Venture Capitalists, Zenichi Shishido

Zenichi Shishido

The biggest difference in the incentive bargains between entrepreneurs and venture capitalists in the US and Japan is that American entrepreneurs abandon control while Japanese entrepreneurs do not. Years ago, Black & Gilson tried to explain the difference by the existence and non-existence of liquid IPO markets. Although now there are multiple liquid IPO markets in Japan, Japanese entrepreneurs are still reluctant to abandon control of their companies to venture capitalists. While there must be many complementary reasons, such as different market situations, different social norms, etc., for the difference, I will raise a hypothesis that it can be partly …

Tying, Price Discrimination And Antitrust Policy, Herbert Hovenkamp

Herbert Hovenkamp

ABSTRACT

A tying arrangement is a seller’s requirement that a customer may purchase its “tying” product only by taking its “tied” product. In a variable proportion tie the purchaser can vary her purchases of the tied product. For example, a customer might purchase a single printer, but either a contract or technological design requires her to purchase varying numbers of printer cartridges from the same manufacturer. Such arrangements are widely considered to be price discrimination devices, but their economic effects have been controversial.

Price discrimination comes in various “degrees.” In third degree price discrimination the seller isolates two or more …

Cases And Materials On Privatization, Alexander Volokh

Alexander Volokh

These are the materials for my course on privatization, and the draft for an eventual casebook.

Does The Nba Still Have Market Power? Exploring The Implications Of An Increasingly Global Market For Men's Basketball Player Labor, Marc Edelman

Marc L Edelman

In the March 2002 case Fraser v. Major League Soccer, the First Circuit Court of Appeals upheld a jury’s finding that America’s twelve Major League Soccer clubs (“MLS”) compete in an international market for men’s professional soccer labor. The court then held that the MLS clubs do not have enough market power to collude illegally under Section 1 of the Sherman Act. At the time when Fraser was decided, few believed the case would become relevant to America’s other professional sports leagues. Indeed, at that time, most other American sports clubs did not compete with foreign clubs for premier men’s …

The Regulation Of Structured Debts: Why? What? And How?, Cyrus C. Y. Chu

Cyrus C. Y. Chu

This article contributes to the legal theoretical foundation of the regulation of structured notes. We shall first anatomize the most typical kind of structured note, the collateralized debt obligation (CDO). We analyze the similarity between a CDO and a constructed pledged mortgage, point out the embedded fuzzy information behind this structured mortgage, and then identify the implicit externality of this mortgage construction. We argue that CDOs can be treated as properties instead of contracts, and the usual notion of numerus clausus does support more severe regulations on such properties. Most existing literature has emphasized the moral hazard problem of investment …

Os “Quora” Nos Tribunais Superiores E A Legitimidade De Seus Precedentes: A Decisão Sobre O Recurso Prematuro No Superior Tribunal De Justiça., Nelson Rodrigues Netto

Nelson Rodrigues Netto

No abstract provided.

Notas Sobre El Análisis Económico Del Derecho En La República Dominicana, Mónika Infante Henríquez

Mónika Infante Henríquez

El Análisis Económico, a través de las herramientas que proporciona la microeconomía, permite determinar los objetivos y los fines del Derecho, y llevarlos a cabo de la manera socialmente menos costosa. El propósito de este libro es introducir al lector a la teoría del análisis económico del derecho o Law & Economics, presentando aplicaciones en el ámbito del derecho privado y del derecho público. El libro recoge una serie de publicaciones que se han realizado en el país utilizando el enfoque económico para analizar cuestiones jurídicas. Es una recopilación de artículos y documentos de investigación han sido publicados en la …

Thwack!! Take That, User-Generated Content!: Marvel Enterprises, Inc. V. Ncsoft Corp., Carl M. Szabo

Carl M Szabo

Dear Madam or Sir: As seen in the attached note, I am to make two contributions. First, I address the issue of copyright liability of websites for infringement by the website users. A constant struggle as old as the constitution itself, the issue of copyright protection now makes its way into the virtual world of the internet. While the issue of copyright liability has been seen in hundreds of comments and notes from courts and attorneys alike, the issue of copyright liability on the internet remains an open question that if not addressed could endanger the protection afforded to authors …

The Future Of Harmonization: Soft Law Instruments And The Principled Advance Of International Lawmaking, Robert A. Pate

Robert A Pate

With vast amounts of financial and intellectual capital already being spent on international harmonization, inefficiencies infecting the lawmaking process render it ineffective and threaten the goodwill of the whole enterprise. This paper represents a synthesis of some of the most meaningful criticism about the perceived failures of the classic vehicle for harmonization—international conventions. In it, we have highlighted these failures, looked for their underlying causes, and searched for compelling soft law alternatives. This paper seeks to show that, above all, conventions suffer from over ambition. By intervening in the legal marketplace, underestimating national distrust and legal conflict, and insisting on …

Preserving Human Potential As Freedom: A Framework For Regulating Epigenetic Harms, Fazal Khan

Fazal Khan

Epigenetics is a rapidly evolving scientific field of inquiry examining how a wide range of environmental, social, and nutritional exposures can dramatically control how genes are expressed without changing the underlying DNA. Research has demonstrated that epigenetics plays a large role in human development, and disease causation. In a sense, epigenetics blurs the distinction between “nature” and “nurture” as experiences (nurture) become a part of intrinsic biology (nature). Remarkably, some epigenetic modifications are durable across generations, meaning that exposures from our grandparents’ generation might affect our health now, even if we have not experienced the same exposures. In the same …

The Illegal Actions Of The Federal Reserve: An Analysis Of How The Nation’S Central Bank Has Acted Outside The Law In Responding To The Current Financial Crisis, Chad Emerson

Chad Emerson

Abstract

The Illegal Actions of the Federal Reserve:

An Analysis of How the Nation’s Central Bank Has Acted Outside the Law in Responding to the Current Financial Crisis

In the Spring of 2008, the United States Federal Reserve Bank, under the Chairmanship of Ben Bernanke, took emergency measures in an attempt to forestall a national, if not international, economic meltdown. The actual effectiveness of these unprecedented measures has been hotly-debated. Unfortunately, regardless of their efficacy, the Federal Reserve acted outside the scope of its legal authority in taking several of these actions.

This essay will analyze how the Federal Reserve …

Virtual Territoriality, Edward J. Janger

Edward J. Janger

Abstract Virtual Territoriality Edward J. Janger David M. Barse Professor Brooklyn Law School Current efforts to unify the laws of secured credit and bankruptcy are predicated on the belief that regularizing the law of debtor’s rights and creditor’s remedies will cause global business to flourish, and benefit both developed and less-developed countries. Certain and predictable remedies for creditors will facilitate lending and development, and coordination among courts will create opportunities to protect the going concern value of troubled businesses. The benefits that accompany such legal harmonization may, however, come at a price. Centralizing control of a bankruptcy case may create …