Law Commons^™

Modularity Theory And Internet Regulation, Christopher S. Yoo

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Modularity is often cited as one of the foundations for the Internet’s success. Unfortunately, academic discussions about modularity appearing in the literature on Internet policy are undertheorized. The persistence of nonmodular architectures for some technologies underscores the need for some theoretical basis for determining when modularity is the preferred approach. Even when modularity is desirable, theory must provide some basis for making key design decisions, such as the number of modules, the location of the interfaces between the modules, and the information included in those interfaces.

The literature on innovation indicates that modules should be determined by the nature of …

Can The Dark Arts Of The Dismal Science Shed Light On The Empirical Reality Of Civil Procedure?, Jonah B. Gelbach

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Litigation involves human beings, who are likely to be motivated to pursue their interests as they understand them. Empirical civil procedure researchers must take this fact seriously if we are to adequately characterize the effects of policy changes. To make this point concrete, I first step outside the realm of civil procedure and illustrate the importance of accounting for human agency in empirical research. I use the canonical problem of demand estimation in economics to show how what I call the “urn approach” to empirical work fails to uncover important empirical relationships by disregarding behavioral aspects of human action. I …

Are Those Who Ignore History Doomed To Repeat It?, Peter Decherney, Nathan Ensmenger, Christopher S. Yoo

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In The Master Switch, Tim Wu argues that four leading communications industries have historically followed a single pattern that he calls “the Cycle.” Because Wu’s argument is almost entirely historical, the cogency of its claims and the force of its policy recommendations depends entirely on the accuracy and completeness of its treatment of the historical record. Specifically, he believes that industries begin as open, only to be transformed into closed systems by a great corporate mogul until some new form of ingenuity restarts the Cycle anew. Interestingly, even taken at face value, many of the episodes described in the …

Coase, Institutionalism, And The Origins Of Law And Economics, Herbert J. Hovenkamp

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Ronald Coase merged two traditions in economics, marginalism and institutionalism. Neoclassical economics in the 1930s was characterized by an abstract conception of marginalism and frictionless resource movement. Marginal analysis did not seek to uncover the source of individual human preference or value, but accepted preference as given. It treated the business firm in the same way, focusing on how firms make market choices, but saying little about their internal workings.

“Institutionalism” historically refers to a group of economists who wrote mainly in the 1920s and 1930s. Their place in economic theory is outside the mainstream, but they have found new …

Recessions And The Social Safety Net: The Alternative Minimum Tax As A Countercyclical Fiscal Stabilizer, Brian Galle, Jonathan Klick

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As recent events illustrate, state finances are procyclical: during recessions, state revenues crash, worsening the effects of economic downturns. This problem is well known, yet persistent. We argue here that, in light of predictable federalism and political economy dynamics, states will be unable to change this situation on their own. Additionally, we note that many possible federal remedies may result in worse problems, such as by creating moral hazard that would induce states to take on excessively risky policy, both fiscal and otherwise. Thus, we argue that policymakers should consider so-called “automatic” stabilizers, such as are found in the federal …

Coasean Markets, Herbert J. Hovenkamp

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Coase’s work emphasized the economic importance of very small markets and made a new, more marginalist form of economic “institutionalism” acceptable within mainstream economics. A Coasean market is an association of persons with competing claims on a legal entitlement that can be traded. The boundaries of both Coasean markets and Coasean firms are determined by measuring not only the costs of bargaining but also the absolute costs of moving resources from one place to another. The boundaries of a Coasean market, just as those of the Coasean business firm, are defined by the line where the marginal cost of reaching …

The Coase Theorem And Arthur Cecil Pigou, Herbert J. Hovenkamp

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In "The Problem of Social Cost" Ronald Coase was highly critical of the work of Cambridge University Economics Professor Arthur Cecil Pigou, presenting him as a radical government interventionist. In later work Coase's critique of Pigou became even more strident. In fact, however, Pigou's Economics of Welfare created the basic model and many of the tools that Coase's later work employed. Much of what we today characterize as the "Coase Theorem," including the relevance of transaction costs, externalities, and bilateral monopoly, was either stated or anticipated in Pigou's work. Further, Coase's extreme faith in private bargaining led him to fail …

Labor Unions: A Corporatist Institution In A Competitive World, Michael L. Wachter

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Union membership, as a percentage of the private sector workforce, has been in decline for 50 years. I argue that the cause of this unrelenting decline is a single, fundamental factor – the change in the United States economy from a corporatist-regulated economy to one based on free competition. Most labor commentators have explained the decline by a confluence of unrelated economic and legal forces. Labor economists typically stress economic explanations, which vary from compositional shifts in the job structure to increased competition both domestically and internationally. On the other hand, labor law commentators naturally focus on labor law explanations, …

Welfare, Dialectic, And Mediation In Corporate Law, William W. Bratton

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No abstract provided.

Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch

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The lead counsel auction has attracted increasing attention. Auction advocates argue that auctions introduce competitive market forces that improve the selection and compensation of class counsel. The benefits of the auction, the;' claim, include lower legal fees and better representation. Careful scrutiny reveals that auction advocates have overlooked substantial methodological problems with the design and implementation of the lead counsel auction. Even if these problems were overcome, the auction procedure is flawed: Auctions are poor tools for selecting firms based on multiple criteria, compromise the judicial role, and are unlikely to produce reasonable fee awards. Although the existing record is …

Berle And Means Reconsidered At The Century's Turn, William W. Bratton

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No abstract provided.

Two Observations On Holocaust Claims, William W. Bratton

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No abstract provided.

Law And Economics Of English Only, William W. Bratton

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No abstract provided.

Deadweight Costs And Intrinsic Wrongs Of Nativism: Economics, Freedom, And Legal Suppression Of Spanish, William W. Bratton, Drucilla L. Cornell

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No abstract provided.

The New Economics Of Jurisdictional Competition: Devolutionary Federalism In A Second-Best World, William W. Bratton, Joseph A. Mccahery

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No abstract provided.

An Analysis Of Fee Shifting Based On The Margin Of Victory: On Frivolous Suints, Meritorious Suits, And The Role Of Rule 11, Howard F. Chang, Lucian A. Bebchuk

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When plaintiffs cannot predict the outcome of litigation with certainty, neither the American rule (each litigant bears its own litigation expenses) nor the British rule (the losing litigant pays the attorneys' fees of the winning litigant) would induce optimal decisions to bring suit. Plaintiffs may bring frivolous suits when litigation costs are small relative to the amount at stake; plaintiffs may not bring meritorious suits when litigation costs are large relative to this amount. More general fee-shifting rules are based not only on the identity of the winning party but also on how strong the court perceives the case to …

The Limits Of Preference-Based Legal Policy, Herbert J. Hovenkamp

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America's political institutions are built on the principle that individual preferences are central to the formation of policy. The two most important institutions in our system, democracy and the market, make individual preference decisive in the formation of policy and the allocation of resources. American legal traditions have always reflected the centrality of preference in policy determination. In private law, the importance of preference is reflected mainly in the development and persistence of common-law rules, which are intended to facilitate private transactions over legal entitlements. In constitutional law, the centrality of preference is reflected in the high position we assign …

Can Ignorance Be Bliss? Imperfect Information As A Positive Influence In Political Insitutions, Michael A. Fitts

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No abstract provided.

An Economic Approach To The Determination Of Injury Under United States Antidumping And Countervailing Duty Law, Michael S. Knoll

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No abstract provided.

Corporate Debt Relationships: Legal Theory In A Time Of Restructuring, William W. Bratton

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No abstract provided.

The "Nexus Of Contracts" Corporation: A Critical Appraisal, William W. Bratton

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No abstract provided.

Gray-Market Imports: Causes, Consequences And Responses, Michael S. Knoll

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This article explores the issue of gray-market imports. The author explains the four causes of gray-market imports and explores the possibility of private remedies in order to stem the flow of these imports. The article then turns to the possibility of protection in the public sector by discussing pertinent statutory provisions and the development of the case law in this area.

Duties To Offset Competitive Advantages, Richard B. Dagen, Michael S. Knoll

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No abstract provided.

The Economics And Jurisprudence Of Convertible Bonds, William W. Bratton

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Professor Bratton examines judicial regulation of issuer-bondholder conflicts of interest within three different, but closely related doctrinal frameworks: neoclassical contract interpretation; contract avoidance; and corporate law fiduciary restraint. After discussing the elements of convertible bond valuation and their interaction with issuer actions giving rise to conflicts of interest, he evaluates the case for judicial intervention to protect bondholder interests. He concludes that ·bondholder protective intervention is fair and tolerably efficient, provided it is kept within the bounds of contract interpretation. But he finds that more aggressive judicial intervention under the frameworks of contract avoidance and fiduciary restraint carries an unnecessary …

The Interpretation Of Contracts Governing Corporate Debt Relationships, William W. Bratton

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No abstract provided.