Law Commons^™

Intellectual Property As A Law Of Organization, Jonathan M. Barnett

Jonathan M Barnett

The incentive thesis for patents is challenged by the existence of alternative means by which firms can capture returns on innovation. Taking into account patent alternatives yields a robust reformulation of the incentive thesis as mediated by organizational form. Patents enable innovators to make efficient selections of firm scope by transacting with least-cost suppliers of commercialization inputs. These expanded transactional opportunities reduce the minimum size of the market into which any innovator—or the supplier of any other technological or production input—can attempt entry. Disaggregation of the innovation and commercialization process then induces the formation of secondary markets in disembodied technology …

Property As Process: How Innovation Markets Select Innovation Regimes, Jonathan M. Barnett

Jonathan M Barnett

It is commonly asserted that innovation markets suffer from excessive intellectualproperty protections, which in turn stifle output. But empirical inquiries can neither confirm nor deny this assertion. Under the “agnostic” assumption that we cannot assess directly whether intellectual-property coverage is excessive, an alternative query is proposed: can the market assess if any “propertization outcome” is excessive and then undertake actions to yield a socially preferable outcome? Grounded in the “bottom up” methodology of new institutional economics, this process-based approach takes the view that innovator populations make rent-seeking investments that continuously “select” among a range of “innovation regimes” that trade off …

The Worst Test Of Truth: The "Marketplace Of Ideas" As Faulty Metaphor, Thomas W. Joo

Thomas W Joo

In his famous dissent in Abrams v. United States, Justice Holmes proclaimed that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This Article critiques the basic argument against speech regulation that has developed from the “marketplace of ideas” metaphor: that speech should be “free” because markets are “free,” and because free markets produce “truth.” These assertions about markets are taken for granted, but they portray markets and market regulation inaccurately; thus economic markets provide a poor analogy for the deregulation of speech.

First Amendment jurisprudence invokes the …

Interfaces Between Csr, Corporate Law And The Problem Of Social Costs, Benedict Sheehy

Benedict Sheehy

Abstract: CSR is an increasingly seen as the preferred approach to addressing the social impacts of industrial production. These social impacts, however, come in the first instance from production and not the corporation. The legal corporation facilitates social costs secondarily. Much of the thinking about CSR fails to adequately take account of the systemic nature of social costs, the legal nature of the corporation and social costs and the so the systemic failure of law to deal with them. This article addresses the interface between the three concepts and related issues of CSR, social costs and corporate law.

Contract Law And Modern Economic Theory, Daniel A. Farber

Daniel A Farber

No abstract provided.

From Plastic Trees To Arrow's Theorem, Daniel A. Farber

Daniel A Farber

No abstract provided.

Licensure Of Health Care Professionals: The Consumer's Case For Abolition, Charles H. Baron

Charles H. Baron

While state medical licensure laws ostensibly are intended to promote worthwhile goals, such as the maintenance of high standards in health care delivery, this Article argues that these laws in practice are detrimental to consumers. The Article takes the position that licensure contributes to high medical care costs and stifles competition, innovation and consumer autonomy. It concludes that delicensure would expand the range of health services available to consumers and reduce patient dependency, and that these developments would tend to make medical practice more satisfying to consumers and providers of health care services.

Csr And Law As Alternative Regulatory Systems, Benedict Sheehy

Benedict Sheehy

Abstract: CSR (Corporate Social Responsibility) is an increasingly important area of corporate and legal concern. In addition to problems defining the meaning of the term and understanding the implications for, there is a lack of understanding how it can, does and should interact with law. This paper answers this gap using a method used in the sociology of law, systems theory. The paper argues that CSR can be understood as a response to social costs and law’s apparent failure to curb those costs. It focuses the examination on social costs generated by large industrial organisations and how they are regulated …

The Sherman Act And The Balance Of Power, David K. Millon

David K. Millon

None available.

The Law Of Corporate Purpose, David Yosifon

David G. Yosifon

Delaware corporate law requires corporate directors to manage firms for the benefit of shareholders, and not for any other constituency. Delaware jurists have been clear about this in their case law, and they are not coy about it in extra-judicial settings, such as speeches directed at law students and practicing members of the corporate bar. Nevertheless, the reader of leading corporate law scholarship is continually exposed to the scholarly assertion that the law is ambiguous or ambivalent on this point, or even that case law affirmatively empowers directors to pursue non-shareholder interests. It is shocking, and troubling, for corporate law …

Imfing With Your Economic Rights: The Greek Tragedy Of The Eurozone, James C. Brady

James C Brady

While international human rights law promulgates that economic, social and cultural rights (economic rights) be supported just as fervently as civil and political rights, the reality is, they are not. The Greek debt crisis and resulting austerity measures demonstrate how a growing world economy is having an increasingly large impact on economic rights. States treat economic rights obligations similar to how businesses treat risk – that is, states seek to reduce their obligations like businesses seek to reduce their risk. As a result, economic rights remain second fiddle to their civil/political counterpart and a victim of supranational monetary monoliths like …

The Sherman Act And The Balance Of Power, David K. Millon

David K. Millon

None available.

New Game Plan Or Business As Usual? A Critique Of The Team Production Model Of Corporate Law, David K. Millon

David K. Millon

None available.

Corporate Legitimacy, Economic Theory, And Legal Doctrine, Richard M. Buxbaum

Richard M. Buxbaum

No abstract provided.

Implementing Dodd-Frank: A Review Of The Cftc‟S Rulemaking Process: Testimony, Michael Greenberger

Michael Greenberger

The Relationship of Unregulated OTC Derivatives to the Meltdown. It is now accepted wisdom that it was the non-transparent, poorly capitalized, and almost wholly unregulated over-the-counter (“OTC”) derivatives market that lit the fuse that exploded the highly vulnerable worldwide economy in the fall of 2008. Because tens of trillions of dollars of these financial products were pegged to the economic performance of an overheated and highly inflated housing market, the sudden collapse of that market triggered under-capitalized or non-capitalized OTC derivative guarantees of the subprime housing investments. Moreover, the many undercapitalized insurers of that collapsing market had other multi-trillion dollar …

The Role Of Science In The Uruguay Round And Nafta Trade Disciplines, David A. Wirth

David A. Wirth

The central theme of this article is the necessity for deference to decision-making processes of national regulatory authorities in the application of these new trade disciplines and the need for trade-based reviews of national regulatory measures to operate within clearly defined limits. Accordingly, this article first examines and summarizes the relevant texts, including the original 1947 GATT, the Uruguay Round, and the NAFTA texts on standards. Next, the article considers the role of science in the standard-setting process with reference to the copious literature on this topic. Finally, the article takes up the difficult question of the application of the …

At War With The Environment, David A. Wirth

David A. Wirth

In this Article, Professor Wirth reviews the book National Defense and the Environment by Stephen Dycus, a recognized expert in both environmental and national security law. The emphasis of the book is on containing and remediating the environmental excesses of the American defense-industrial complex, with a domestic policy focus. While Professor Wirth considers Dycus’ work an intellectually rewarding and refreshing new entry into the ongoing environment-as-security colloquy, he does not consider the book to be accessible to a general audience given the book’s fundamentally legalistic nature.

Restoring The Natural Law: Copyright As Labor And Possession, Alfred C. Yen

Alfred C. Yen

In this Article, Professor Yen explores the problems associated with viewing copyright solely as a tool for achieving economic efficiency and advocates for the restoration of natural law to copyright jurisprudence. The Article demonstrates that economics has not been solely responsible for copyright’s development and basic structure, but has rather developed along lines suggested by neutral law, despite modern copyright jurisprudence. The Article considers the consequences of extinguishing copyright’s natural law facets in favor of the blind pursuit of efficiency and concludes by exploring the implications of restoring natural law thinking to copyright jurisprudence.

Justice, The Bretton Woods Institutions And The Problem Of Inequality, Frank J. Garcia

Frank J. Garcia

The Bretton Woods Institutions are, together with the WTO, the preeminent international institutions devoted to managing international economic relations. This mandate puts them squarely in the center of the debate concerning development, inequality and global justice. While the normative analysis of the WTO is gaining momentum, the systematic normative evaluation of the World Bank and the International Monetary Fund is comparatively less developed. This essay aims to contribute to that nascent inquiry. How might global justice criteria apply to the ideology and operations of the Bank and Fund? Political theory offers an abundance of perspectives from which to conduct such …

Is Free Trade "Free?" Is It Even "Trade?" Oppression And Consent In Hemispheric Trade Agreements, Frank J. Garcia

Frank J. Garcia

In order for free trade as a policy to deliver fully on its social promise, it must be both “free” and “trade.” In fact, it must be free, in the sense of voluntary, to be trade at all. In other words, for normative and practical reasons, free trade requires that global economic relations be structured through agreements which reflect the consent of those subject to them. The neoliberal trading system today only imperfectly lives up to this obligation. In this essay, I will examine the role of consent in trade agreements, drawing on examples from CAFTA as representative of important …

The Moral Hazard Problem In Global Economic Regulation, Frank J. Garcia

Frank J. Garcia

Global regulation of international business transactions presents a particular form of the moral hazard problem. Global firms use economic and political power to manipulate state and state-controlled multilateral regulation to preserve their opportunity to externalize the social costs of global economic activity with impunity. Unless other actors can effectively counter this at the national and global regulatory levels, globalization re-creates the conditions for under-regulated or “robber baron” capitalism at the global level. This model of economic activity has been rejected at the national level by the same modern democratic capitalist states which currently dominate globalization, creating a crisis of legitimacy …

An End To Too Big To Let Fail? The Dodd–Frank Act’S Orderly Liquidation Authority, Thomas J. Fitzpatrick Iv, James B. Thomson

James Thomson

One of the changes introduced by the sweeping new fi nancial market legislation of the Dodd–Frank Act is the provision of a formal process for liquidating large fi nancial fi rms—something that would have been useful in 2008, when troubles at Lehman Brothers, AIG, and Merrill Lynch threatened to damage the entire U.S. fi nancial system. While it may not be the end of the too-big-to-fail problem, the orderly liquidation authority is an important new tool in the regulatory toolkit. It will enable regulators to safely close and wind up the affairs of those distressed fi nancial fi rms whose …

September 11th, John Maynard Keynes, Kenneth J. Arrow, And Me: The Nexus, David Randall Jenkins

David Randall Jenkins, Ph.D.

Opportunism, Uncertainty, And Relational Contracting - Antitrust Rules In The Film Industry, Ryan M. Riegg

Ryan M. Riegg

Behavioral Economic Issues In American & Islamic Marriage & Divorce Law, Ryan M. Riegg

Ryan M. Riegg

Behavioral Public Finance, Edward J. Mccaffery

Edward J McCaffery

These are slides from a presentation to the Gruter Institute for Law and Behavioral Research, Squaw Valley Conference, May, 2008 (at which event Michael Jensen got me to agree to post these slides as a pdf on SSRN . . . ). The task is to give an overview of what I hope to be an emerging field of behavioral public finance. Behavioral finance, as per Barberis and Thaler 2003 (and others), consists of two parts: (1) individual level heuristics and biases, which can lead to sub-optimal (inconsistent) judgment and decision-making, and (2) institutional arbitrage mechanisms. In private finance and …

Comments On Liebman And Zeckhauser, Simple Humans, Complex Insurance, Subtle Subsidies, Edward J. Mccaffery

Edward J McCaffery

These are brief comments on an excellent paper by Jeffrey Liebman and Richard Zeckhauser, prepared for a conference sponsored by the Urban Institute and Brookings on tax and health care policy. Liebman and Zeckhauser summarize the complexities involved in making optimal health insurance decisions, and offer generally cautionary notes about conflating these with tax law (a theme of the conference). Most importantly, Liebman and Zeckhauser suggest a positive role for employers in health care and insurance decisions, as better setters or framers of choice sets—witness 401(k) plans. In this Commentary, I applaud Leibman and Zeckhauser’s general work and particular observation, …

A Positive Theory Of Eminent Domain, Eric Kades

Eric A. Kades

Comentario Del Artículo De Alfonso Herranz-Loncán "Railroad Impact In Backward Economies: Spain, 1850 - 1913", Javier Agudo

Javier Agudo

Herranz-Loncán concluye que el ferrocarril sí tuvo un importante impacto en la economía española, pero no superior al experimentado en otros países como, por ejemplo, Inglaterra. ¿Cómo se explica entonces que el ferrocarril tenga el mismo impacto en un país que no tenía apenas vías de comunicación alternativas que en Inglaterra, donde ya existía una extensa y densa red de canales? La respuesta es que el transporte por ferrocarril tenía una importancia muy reducida en el total del PIB español. La economía española era una economía atrasada, y una gran parte de ella permaneció ajena al ferrocarril hasta mucho más …

Comentario Del Artículo De Joan R. Rosés Y Blanca Sánchez-Alonso "Regional Wage Convergence In Spain 1850 - 1930", Javier Agudo

Javier Agudo

Entre los años 1850 y 1930, España experimentó una importante convergencia de los salarios en las distintas regiones, al nivel de otros países europeos, si bien hay que destacar el periodo excepcional de la I Guerra Mundial, en el que aumentaron las divergencias. Los movimientos migratorios no son una variable explicativa importante en el caso de España puesto que, exceptuando los años posteriores a la I Guerra Mundial, no fueron de suficiente entidad. Hay que buscar en la creación de un mercado nacional sin barreras la causa explicativa de la convergencia de los salarios.