Law Commons^™

United States Antitrust Policy In An Age Of Ip Expansion, Herbert J. Hovenkamp

All Faculty Scholarship

The idea that there is a tension between antitrust and the intellectual property laws is readily exaggerated. The tension that exists results mainly from our uncertainty about the optimal amount and scope of IP protection. In general, antitrust draws clearer lines than intellectual property law does, although one should not push the point too far. Antitrust policy as manifested in the courts has achieved a fair amount of consensus today. By contrast, deep uncertainty remains about fundamental questions concerning the socially optimal outcome of IP disputes. In addition, while the antitrust statutes are for the most part public regarding provisions …

Evaluating Environmental Policies, Lori Snyder Bennear, Cary Coglianese

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For too long, environmental policymaking has relied on trial and error, without adequate or systematic learning from either the trials or the errors. Systematic program evaluation research has been remarkably scarce relative to the overall number of environmental policies adopted in the United States, as well as relative to the amount of evaluation research found in other fields, such as medicine, education, or transportation safety. This paper examines the role that program evaluation should play in environmental policy making, distinguishing such research from other types of analysis, including risk assessment, cost-effectiveness analysis, and cost-benefit analysis. It explains the kinds of …

Does Criminal Law Deter? A Behavioral Science Investigation, Paul H. Robinson

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Having a criminal justice system that imposes sanctions no doubt does deter criminal conduct. But available social science research suggests that manipulating criminal law rules within that system to achieve heightened deterrence effects generally will be ineffective. Potential offenders often do not know of the legal rules. Even if they do, they frequently are unable to bring this knowledge to bear in guiding their conduct, due to a variety of situational, social, or chemical factors. Even if they can, a rational analysis commonly puts the perceived benefits of crime greater than its perceived costs, due to a variety of criminal …

Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas

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Plea-bargaining literature predicts that parties strike plea bargains in the shadow of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes. Agency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments: overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems but sometimes overcompensate. The …

Pleas' Progress, Stephanos Bibas

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No abstract provided.

Shifting Sands: The Limits Of Science In Setting Risk Standards, Cary Coglianese, Gary E. Marchant

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Regulators need to rely on science to understand problems and predict the consequences of regulatory actions, but over reliance on science can actually contribute to, or at least deflect attention from, incoherent policymaking. In this article, we explore the problems with using science to justify policy decisions by analyzing the Environmental Protection Agency's recently revised air quality standards for ground-level ozone and particulate matter, some of the most significant regulations ever issued. In revising these standards, EPA mistakenly invoked science as the exclusive basis for its decisions and deflected attention from a remarkable series of inconsistencies. For example, even though …

Pari Passu And A Distressed Sovereign's Rational Choices, William W. Bratton

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No abstract provided.

E-Rulemaking: Information Technology And The Regulatory Process, Cary Coglianese

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In order to channel interest in e-rulemaking toward effective and meaningful innovations in regulatory practice, the Kennedy School of Government's Regulatory Policy Program convened two major workshops, bringing together academic experts from computer sciences, law, and public management along with key public officials involved in managing federal regulation. This paper summarizes the discussions that took place at these workshops and develops an agenda for future research on information technology and the rulemaking process. It highlights the institutional challenges associated with using information technology in the federal regulatory process and suggests that in some cases existing rulemaking practices may need to …

Seeking Truth For Power: Informational Strategy And Regulatory Policy Making, Cary Coglianese, Richard Zeckhauser, Edward A. Parson

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Whether regulating mutual funds or chemical manufacturers, government's policy decisions depend on information possessed by industry. Yet it is not in any industry's interests to share information that will lead to costly regulations. So how do government regulators secure needed information from industry? Since information disclosed by any firm cannot be retrieved and can be used to regulate the entire sector, industry faces a collective action problem in maintaining silence. While collective silence is easy to maintain if all firms' interests are aligned, individual firms' payoffs for disclosure can vary due to heterogeneous effects of regulation and differing expectations about …

Bankruptcy's Home Economics, David A. Skeel Jr.

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This essay began its life as a commentary on Elizabeth Warren’s article “The New Economics of the American Family” at the American Bankruptcy Institute's 25th Anniversary Symposium of the Bankruptcy Code in 2003. (Both the Warren article and my commentary were published in the symposium in the American Bankruptcy Institute Law Review.) “The New Economics of the American Family” was drawn in many respects from then-Professor Warren’s co-authored book, The Two Income Trap. The essay refers to both, though it puts particular emphasis on the article. The essay begins by briefly describing the basic thesis of the article-- …

Copyright And Product Differentiation, Christopher S. Yoo

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Existing economic analyses generally frame copyright as presenting a conflict between promoting efficient levels of access to creative works on the one hand and providing sufficient incentives to support their creation on the other. The supposed irreconcilability of the access-incentives tradeoff has led most scholars to regard copyright as a necessary evil and to advocate limiting copyright protection to the lowest level still sufficient to support creation of the work. In this Article, Professor Christopher Yoo breaks with the conventional wisdom and proposes a new approach to copyright law based on the economics of product differentiation. This differentiated products approach …

Human Rights And National Security: The Strategic Correlation, William W. Burke-White

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No abstract provided.

Copyright And Free Expression: The Convergence Of Conflicting Normative Frameworks, Shyamkrishna Balganesh

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Recent attempts to expand the domain of copyright law in different parts of the world have necessitated renewed efforts to evaluate the philosophical justifications that are advocated for its existence as an independent institution. Copyright, conceived of as a proprietary institution, reveals an interesting philosophical interaction with other libertarian interests, most notably the right to free expression. This paper seeks to understand the nature of this interaction and the resulting normative decisions. The paper seeks to analyze copyright law and its recent expansions, specifically from the perspective of the human rights discourse. It looks at the historical origins of modern …

The Social And Moral Cost Of Mass Incarceration In African American Communities, Dorothy E. Roberts

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No abstract provided.

Insuring Liability Risks, Tom Baker

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Recent dramatic increases in prices for medical liability insurance, directors and officers insurance, and other lines of commercial liability insurance, together with the exit of some insurers from those lines of business, has placed liability insurance on the public agenda. At the same time, asbestos and environmental losses continue to mount under general liability insurance policies sold long ago, when no one could have predicted the extent or cost of such losses. In combination, these and other related events have raised serious concerns about the insurability of liability risks and have prompted calls for dramatic efforts to roll back the …

The Recently Revised Marriage Law Of China: The Promise And The Reality, Charles J. Ogletree Jr., Rangita De Silva De Alwis

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In April 2001, the Standing Committee of the Ninth National People's Congress (NPC), China's highest legislative body, passed the long-debated and much awaited amendments to the Marriage Law on the closing day of its twenty-first session. As stated by one PRC commentator, "In the 50 years since the founding of the New China, there has not been any law that has caused such a widespread concern for ordinary people."'

Even though the recent revisions to the marriage laws have been hailed as some of the most significant and positive changes in family law in China, thus far no empirical evaluation …

Fear Assessment: Cost-Benefit Analysis And The Pricing Of Fear And Anxiety, Matthew D. Adler

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Risk assessment is now a common feature of regulatory practice, but fear assessment is not. In particular, environmental, health and safety agencies such as EPA, FDA, OSHA, NHTSA, and CPSC, commonly count death, illness and injury as costs for purposes of cost-benefit analysis, but almost never incorporate fear, anxiety or other welfare-reducing mental states into the analysis. This is puzzling, since fear and anxiety are welfare setbacks, and since the very hazards regulated by these agencies - air or water pollutants, toxic waste dumps, food additives and contaminants, workplace toxins and safety threats, automobiles, dangerous consumer products, radiation, and so …

The Role Of Government In Corporate Governance, Cary Coglianese, Elizabeth K. Keating, Michael L. Michael, Thomas J. Healey

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Numerous corporate scandals in the past several years have fueled widespread debate over proposals for government action. The central challenge for government is how to restore corporate integrity and market confidence without overreacting and stifling the dynamism that underlies a strong economy. To examine this challenge, the Center for Business and Government's Regulatory Policy Program organized a conference in May 2004 on The Role of Government in Corporate Governance. The conference brought together government officials, business leaders, and academic researchers to discuss three fundamental public policy issues raised by recent corporate abuses. First, who should regulate corporate management - government …

Procedure, Politics And Power: The Role Of Congress, Stephen B. Burbank

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No abstract provided.

E-Rulemaking: Information Technology And The Regulatory Process: New Directions In Digital Government Research, Cary Coglianese

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Electronic rulemaking, or e-rulemaking, offers the potential to overcome some of the informational challenges associated with developing regulations. E-rulemaking refers to the use of digital technologies in the development and implementation of regulations. The use of these technologies may help streamline and improve regulatory management, such as by helping agency staff retrieve and analyze vast quantities of information from diverse sources. By taking better advantage of advances in digital technologies, agencies might also be able to increase the public's access to and involvement in rulemaking. Part I of this article details the rulemaking process, outlining the procedures agencies must currently …

The Feeney Amendment And The Continuing Rise Of Prosecutorial Power To Plea Bargain, Stephanos Bibas

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No abstract provided.

The Psychology Of Hindsight And After-The-Fact Review Of Ineffective Assistance Of Counsel, Stephanos Bibas

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No abstract provided.

Jurisdictional Conflict And Jurisdictional Equilibration: Paths To A Via Media, Stephen B. Burbank

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No abstract provided.

Atypical Pneumonia And Ambivalent Law And Politics: Sars And The Response To Sars In China, Jacques Delisle

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No abstract provided.

"Announcement" By Federal Judicial Nominees, Geoffrey C. Hazard Jr.

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No abstract provided.

Lawyer For The Situation, Geoffrey C. Hazard Jr.

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No abstract provided.

Ripstein, Rawls, And Responsibility, Stephen R. Perry

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No abstract provided.

"The Shame Of It All": Stigma And The Political Disenfranchisement Of Formerly Convicted And Incarcerated Persons, Regina Austin

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No abstract provided.

Of Predatory Lending And The Democratization Of Credit: Preserving The Social Safety Net Of Informality In Small-Loan Transactions, Regina Austin

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No abstract provided.

Supreme Court Forecasting Project: Legal And Political Science Approaches To Supreme Court Decision-Making, Theodore Ruger, Pauline T. Kim, Andrew D. Martin., Kevin M. Quinn

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No abstract provided.