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2013

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Articles 1 - 30 of 461

Full-Text Articles in Law

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson Dec 2013

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights and ...


Innovation And Competition Policy, Ch. 9 (2d Ed): The Innovation Commons, Herbert J. Hovenkamp Dec 2013

Innovation And Competition Policy, Ch. 9 (2d Ed): The Innovation Commons, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA ...


Distributive Justice And Consumer Welfare In Antitrust, Herbert J. Hovenkamp Dec 2013

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

Faculty Scholarship at Penn Law

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 ...


Patent Exclusions And Antitrust After Therasense, Herbert J. Hovenkamp Dec 2013

Patent Exclusions And Antitrust After Therasense, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

A patent may be held invalid if it was obtained by “inequitable conduct” before the PTO during the process of patent prosecution. In its Therasense decision the Federal Circuit imposed severe requirements against those attempting to defend against a patent on the basis of inequitable conduct, insisting that inequitable conduct be measured essentially by a subjective test. Objective “reasonable person” tests such as negligence or even gross negligence will not suffice. By contrast, the Supreme Court has insisted that the conduct giving rise to a wrongful infringement action violating the antitrust laws be initially based on an objective test – whether ...


Competition For Innovation, Herbert J. Hovenkamp Dec 2013

Competition For Innovation, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Both antitrust and IP law are limited and imperfect instruments for regulating innovation. The problems include high information costs and lack of sufficient knowledge, special interest capture, and the jury trial system, to name a few. More fundamentally, antitrust law and intellectual property law have looked at markets in very different ways. Further, over the last three decades antitrust law has undergone a reformation process that has made it extremely self conscious about its goals. While the need for such reform is at least as apparent in patent and copyright law, very little true reform has actually occurred.

Antitrust has ...


Export Controls: A Contemporary History, Bert Chapman Dec 2013

Export Controls: A Contemporary History, Bert Chapman

Libraries Faculty and Staff Presentations

Provides highlights of my recently published book Export Controls: A Contemporary History. Describes the roles played by multiple U.S. Government agencies and congressional oversight committees in this policymaking arena including the Commerce, Defense, State, and Treasury Departments. It also reviews the roles played by international government organizations such as the Missile Technology Control Regime, export oriented businesses, and research intensive universities.


A Technological Approach To Reforming Japan's Consumption Tax, Richard Thompson Ainsworth Dec 2013

A Technological Approach To Reforming Japan's Consumption Tax, Richard Thompson Ainsworth

Faculty Scholarship

Significant change has been forecast for the Japanese Consumption Tax. Revenue needs are pressing, and the Consumption Tax appears to be underutilized. Should the rate be doubled from 5% to 10%, or more? If so, will rate increases necessitate further structural changes – recasting this annual credit-subtraction levy into a European style credit-invoice VAT? These options have not proven to be politically palatable, but they are directions that have been under active consideration.

On October 1, 2013 the Japanese Cabinet Office announced that the Consumption Tax would rise from 5% to 8% effective April 1, 2014. The rate will increase again ...


Escaping Entity-Centrism In Financial Services Regulation, Anita Krug Dec 2013

Escaping Entity-Centrism In Financial Services Regulation, Anita Krug

All Faculty Scholarship

In the ongoing discussions about financial services regulation, one critically important topic has not been recognized, let alone addressed. That topic is what this Article calls the “entity-centrism” of financial services regulation. Laws and rules are entity-centric when they assume that a financial services firm is a stand-alone entity, operating separately from and independently of any other entity. They are entitycentric, therefore, when the specific requirements and obligations they comprise are addressed only to an abstract and solitary “firm,” with little or no contemplation of affiliates, parent companies, subsidiaries, or multi-entity enterprises. Regulatory entity-centrism is not an isolated phenomenon, as ...


Reflections On The Newtown Shooting One Year Later, John J. Donohue Dec 2013

Reflections On The Newtown Shooting One Year Later, John J. Donohue

John Donohue

One year has passed since the horrific Newtown school shooting of December 14, 2012, and we have likely learned all that will be known about the tragic events of that day. As we reflect back on the event and the subsequent political and legislative responses, a few points should be noted.


Equidad Pensional Y Salario Base. La Interpretación Judicial Como Base De Inequidad, Fernando Castillo Cadena Dec 2013

Equidad Pensional Y Salario Base. La Interpretación Judicial Como Base De Inequidad, Fernando Castillo Cadena

Fernando Castillo Cadena

This paper addresses the current problem of interpretation of what should be understood as basic salary for the settlement of the pension bond type A mode 2, for members who move to individual savings scheme, showing how interpretations of the Constitutional Court and the Labor Appeal Chamber of the Supreme Court do not conform to the financial and economic content the law provides, and therefore, create problems of pension equity.


Fiscal Rules As An Instrument Of Fiscal Consolidation (Chosen Issues), Krystyna Niziol Dec 2013

Fiscal Rules As An Instrument Of Fiscal Consolidation (Chosen Issues), Krystyna Niziol

Bocconi Legal Papers

Chosen issues connected with fiscal rules will be analyzed in this paper. These rules can be used as an instrument of fiscal consolidation, which aim is to limit deficit and public debt. This issue is particularly important in times of a sovereign debt crisis, which many EU countries have to cope with. Regulations of the EU and Polish Fiscal Law concerning the analyzed issues will be discussed in this paper.


Market Collaboration: Finance, Culture, And Ethnography After Neoliberalism, Annelise Riles Dec 2013

Market Collaboration: Finance, Culture, And Ethnography After Neoliberalism, Annelise Riles

Cornell Law Faculty Publications

In the wake of the disasters of March 2011, financial regulators and financial-risk management experts in Japan expressed little hope that much could be done nor did they take great interest in defining possible policy interventions. This curious response to regulatory crisis coincided with a new fascination with culturalist explanations of financial markets, on the one hand, and a resort to what I term “data politics”—a politics of intensified data collection—on the other. In this article, I analyze these developments as being exemplary of a new regulatory moment characterized by a loss of faith in both free market ...


Reanalyzing Cost-Benefit Analysis: Toward A Framework Of Function(S) And Form(S), Robert B. Ahdieh Dec 2013

Reanalyzing Cost-Benefit Analysis: Toward A Framework Of Function(S) And Form(S), Robert B. Ahdieh

Faculty Scholarship

The analysis herein arises from the collision course between the sweeping reforms mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and a single sentence of the U.S. Code, adopted nearly fifteen years earlier and largely forgotten ever since. Few were likely thinking of Section 106 of the National Securities Market Improvement Act when the Dodd-Frank Act was enacted on July 21, 2010. As applied by the D.C. Circuit less than a year later in Business Roundtable v. SEC, however, that provision’s peculiar requirement of cost-benefit analysis could prove the new legislation’s ...


Anticompetitive Patent Settlements And The Supreme Court's Actavis Decision, Herbert J. Hovenkamp Nov 2013

Anticompetitive Patent Settlements And The Supreme Court's Actavis Decision, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

In FTC v. Actavis the Supreme Court held that settlement of a patent infringement suit in which the patentee of a branded pharmaceutical drug pays a generic infringer to stay out of the market may be illegal under the antitrust laws. Justice Breyer's majority opinion was surprisingly broad, in two critical senses. First, he spoke with a generality that reached far beyond the pharmaceutical generic drug disputes that have provoked numerous pay-for-delay settlements.

Second was the aggressive approach that the Court chose. The obvious alternatives were the rule that prevailed in most Circuits, that any settlement is immune from ...


The Competitive Advantage Of Weak Patents, William Hubbard Nov 2013

The Competitive Advantage Of Weak Patents, William Hubbard

Boston College Law Review

Does U.S. patent law increase the competitiveness of U.S. firms in global markets? This Article argues that, contrary to the beliefs of many U.S. lawmakers, U.S. patent law currently undermines the ability of U.S. firms to compete in global markets because strong U.S. patent rights actually weaken an overlooked but critical determinant of U.S. competitiveness: rivalry among U.S. firms. Intense domestic rivalry drives firms to improve relentlessly, spawns related and supporting domestic industries, and encourages the domestic development of advanced factors of production—like specialized labor forces. U.S. patents restrict rivalry ...


Social Enterprise: Who Needs It?, Brian Galle Nov 2013

Social Enterprise: Who Needs It?, Brian Galle

Boston College Law Review

State statutes authorizing firms to pursue mixtures of profitable and socially beneficial goals have proliferated in the past five years. In this invited response essay, I argue that for one large class of charitable goals, the so-called “social enterprise” firm is often privately wasteful. Although the hybrid form is a bit more sensible for firms that combine profit with simple, easily monitored social benefits, existing laws fail to protect stake-holders against opportunistic conversion of the firm to pure profit-seeking. Given these failings, I suggest that social enterprise’s legislative popularity can best be traced to a race to the bottom ...


Coming Up For Air: The Constitutionality Of Using Eminent Domain To Condemn Underwater Mortgages, Andrew Peace Nov 2013

Coming Up For Air: The Constitutionality Of Using Eminent Domain To Condemn Underwater Mortgages, Andrew Peace

Boston College Law Review

Following the Great Recession, home prices in many areas capsized, leaving many homeowners “underwater.” Today, home prices have not yet returned to pre-recession levels, leading many commentators to fear that these underwater mortgages will default and bring about a flood of new foreclosures. Local governments are now contemplating using the power of eminent domain to condemn these mortgages and reduce the principal owed. This move would allow homeowners to build equity and, in turn, reduce the fear of default and foreclosure. This Note analyzes the constitutionality of using eminent domain in this manner and discusses whether it would pass constitutional ...


Check Fraud And The Common Law: At The Intersection Of Negligence And The Uniform Commercial Code, Melissa Waite Nov 2013

Check Fraud And The Common Law: At The Intersection Of Negligence And The Uniform Commercial Code, Melissa Waite

Boston College Law Review

Common law negligence claims persist in check fraud cases despite the Uniform Commercial Code’s loss allocation provisions in Articles 3 and 4. Absent an explicit preemption provision, courts disagree as to whether, when, and to what extent the Code preempts these common law claims. As a result, the courts’ varying analytical approaches to common law negligence claims often create seemingly conflicting results. This Note reviews the current loss allocation rules in check fraud scenarios and examines recent preemption case law. It argues in favor of the comprehensive rights and remedies analysis used by the majority of courts to determine ...


Us/Eu Trade For Cross-Border Alternative Societies Labor And Industrial Relations In The Transatlantic Free-Trade Agreement Guidelines, Michele Faioli Nov 2013

Us/Eu Trade For Cross-Border Alternative Societies Labor And Industrial Relations In The Transatlantic Free-Trade Agreement Guidelines, Michele Faioli

Michele Faioli

No abstract provided.


What Do We Worry About When We Worry About Price Discrimination? The Law And Ethics Of Using Personal Information For Pricing, Akiva A. Miller Nov 2013

What Do We Worry About When We Worry About Price Discrimination? The Law And Ethics Of Using Personal Information For Pricing, Akiva A. Miller

Akiva A Miller

New information technologies have dramatically increased sellers’ ability to engage in retail price discrimination. Debates over using personal information for price discrimination frequently treat it as a single problem, and are not sufficiently sensitive to the variety of price discrimination practices, the different kinds of information they require in order to succeed, and the different ethical concerns they raise. This paper explores the ethical and legal debate over regulating price discrimination facilitated by consumers’ personal information. Various kinds of “privacy remedies”—self-regulation, technological fixes, state regulation, and legislating private causes of legal action—each have their place. By drawing distinctions ...


The Fable Of Entry: Bounded Rationality, Market Discipline, And Legal Policy, Avishalom Tor Nov 2013

The Fable Of Entry: Bounded Rationality, Market Discipline, And Legal Policy, Avishalom Tor

Avishalom Tor

Legal scholars have recently advanced a behavioral approach to the law and economics school of thought, replacing the traditionally assumed rational actor with an empirically based, boundedly rational decision maker. In response, advocates of traditional law and economics have asserted that boundedly rational behavior is of little significance for the analysis of economic activities in market environments, most notably because competitive pressures will eliminate such behavior. This article argues, however, that bounded rationality has important effects on the market even under conditions of intense competition. Through a study of the competition among new entrants into industry, this analysis examines the ...


Ranks And Rivals: A Theory Of Competition, Avishalom Tor, Stephen M. Garcia, Richard Gonzalez Nov 2013

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

Avishalom Tor

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 ...


The Methodology Of The Behavioral Analysis Of Law, Avishalom Tor Nov 2013

The Methodology Of The Behavioral Analysis Of Law, Avishalom Tor

Avishalom Tor

This article examines the behavioral analysis of law, meaning the application of empirical behavioral evidence to legal analysis, which has become increasingly popular in legal scholarship in recent years. Following the introduction in Part I, this Article highlights four central propositions on the subject. The first, developed in Part II, asserts that the efficacy of the law often depends on its accounting for relevant patterns of human behavior, most notably those studied by behavioral decision scientists. This Part therefore reviews important behavioral findings, illustrating their application and relevance to a broad range of legal questions. Part III then argues that ...


Rankings, Standards, And Competition: Task Vs. Scale Comparisions, Avishalom Tor, Stephen M. Garcia Nov 2013

Rankings, Standards, And Competition: Task Vs. Scale Comparisions, Avishalom Tor, Stephen M. Garcia

Avishalom Tor

Research showing how upward social comparison breeds competitive behavior has so far conflated local comparisons in task performance (e.g. a test score) with comparisons on a more general scale (i.e. an underlying skill). Using a ranking methodology (Garcia, Tor, & Gonzalez, 2006) to separate task and scale comparisons, Studies 1–2 reveal that an upward comparison on the scale (e.g. being surpassed in rank), rather than in the mere task (e.g., being outperformed), is necessary to generate competition among rivals proximate to a standard (e.g. ranked #3 vs. 4, near “the top”); rivals far from a standard (e.g. ranked #203 vs. 204), on the other hand, still tend to cooperate. Study 3 illustrates this finding with player trades in Major League Baseball. Study 4 further shows how an implicit scale comparison, instead of the commonly assumed explicit task comparison, may account for those classical competition findings in the literature. Study ...


Incentives To Create Under A "Lifetime-Plus-Years" Copyright Duration: Lessons From A Behavioral Economic Analysis For Eldred V. Ashcroft, Avishalom Tor, Dotan Oliar Nov 2013

Incentives To Create Under A "Lifetime-Plus-Years" Copyright Duration: Lessons From A Behavioral Economic Analysis For Eldred V. Ashcroft, Avishalom Tor, Dotan Oliar

Avishalom Tor

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals' incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals' optimistic bias regarding their future longevity and their subadditive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased incentives to ...


Behavioral Antitrust: A New Approach To The Rule Of Reason After Leegin, William J. Rinner, Avishalom Tor Nov 2013

Behavioral Antitrust: A New Approach To The Rule Of Reason After Leegin, William J. Rinner, Avishalom Tor

Avishalom Tor

The Supreme Court’s recent decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., which replaced the longstanding per-se rule against resale price maintenance (RPM) with a rule of reason approach, has resurrected the debate over RPM. Legal and economic proponents of this practice again point to its potential procompetitive benefits, while RPM detractors emphasize its possible anticompetitive consequences. Despite their disagreements regarding the overall RPM evaluation, however, scholars, the Court, and the limited empirical data appear near-unanimous in agreeing that such arrangements can either increase or decrease efficiency. Consequently, the RPM debate predominantly revolves around theoretical assertions regarding ...


On Contractual Defaults And Experimental Law And Economics, Avishalom Tor Nov 2013

On Contractual Defaults And Experimental Law And Economics, Avishalom Tor

Avishalom Tor

Sloof et al.'s [2006] elegant study of default breach remedies illustrates both the potential and limitations of experimental law and economics (ELE). Potentially, the rigorous methodology of experimental economics can provide fully controlled tests of relationships among legally significant variables. Human behavior is context-dependent, however. The validity of ELE would therefore be limited if it were, for example, to disregard legal institutions and context in an automatic adherence to all conventions of experimental economics.


Law, Bubbles, And Financial Regulation, Erik F. Gerding Nov 2013

Law, Bubbles, And Financial Regulation, Erik F. Gerding

Erik F. Gerding

This introductory chapter of the book "Law, Bubbles, and Financial Regulation" outlines how financial regulation can fail when it is needed the most. The dynamics of asset price bubbles weaken financial regulation just as financial markets begin to overheat and the risk of crisis spikes. At the same time, the failure of financial regulations adds further fuel to a bubble.

This book examines the interaction of bubbles and financial regulation through over three centuries of history of financial crises. This perspective reveals that law is crucial to the story of bubbles and that the legal history of the current global ...


Comment On Jana Singer's Alimony And Efficiency, Margaret F. Brinig Nov 2013

Comment On Jana Singer's Alimony And Efficiency, Margaret F. Brinig

Margaret F Brinig

No abstract provided.


The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett Nov 2013

The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett

Nicole Stelle Garnett

This Article challenges a foundational assumption about eminent domain - namely, that owners are systematically undercompensated because they receive only fair market value for their property. The Article shows that, in fact, scholars have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of eminent domain. The Article examines three ways that Takers (i.e., non-judicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high-subjective-value properties. Second, Takers frequently must pay more compensation in the form of relocation assistance. Third, Takers and property owners ...