Law Commons^™

How Can Open Source And Closed Source Software Business Structures Mutually Exist, Yugank Goyal, Padmanabha Ramanujam

Yugank Goyal

The phenomenon of producing Open Source Software based on unconstrained access to source code and the swift growth of the open source business structure of producing software fuelled by Linux Operating System and Apache Web Server have raised important questions, which are of immense scholastic interest. Accordingly many scholars in the last few years have endeavoured to clarify as to why thousands of top-quality programmers contribute freely to an open source product which is a public good. However, there has hardly been any attempt to explain how open source and closed source business structure of producing software can coexist. This …

Tripartism In Ireland, Jon Foster

Jon Foster

Over the past few years, the term “PIIGS” has become synonymous with economic concerns and fears of collapse. The acronym, which currently refers to the European countries of Portugal, Italy, Ireland, Greece, and Spain: was originally just ‘PIGS’ , used to group the similar economies of Southern Europe when considering them for acceptance into the European Monetary Union. Nevertheless, as a result of the global financial crisis, this term soon came to identify economically weak and overly indebted nations. However, unlike Italy, Greece, and Portugal, who had before the crisis demonstrated relatively slow growth, modest unemployment, and a propensity to …

Imperial Ignition: Ecological Debt, Greenhouse Development Rights And Climate Change, Jonathan Stribling

Jonathan Stribling

This paper argues for legal principles to remedy the harm done to those least responsible for yet most affected by climate change. It examines approaches to developing the concepts of ecological and climate debt in U.S. law. This paper argues for the importance of understanding ecological debt and particularly “climate debt” in order to sustainably remedy climate change. The paper also argues that the principles of capacity and responsibility, which are the basis of the Greenhouse Development Rights (GDR) framework, are critical to remedying climate debt and should be included in global climate negotiations and U.S. environmental law.

Damages To Business Interests, R. Steven Thing

R. Steven Thing

No abstract provided.

Development Lending To Municipalities By The World Bank Group, Asheesh Bhalla

Asheesh Bhalla

The World Bank Group has recently shifted its development lending policies to have a greater focus on lending to municipalities and developing financial institutions and systems of market creation at the local level. The author reviews this policy shift, and the consequences of such policy changes on local government institutions and law.

Governing China’S Financial Disputes In The Aftermath Of The Global Financial Crisis Of 2008, Shahla F. Ali, Robin (Hui) Huang

Shahla F. Ali

In light of the recent global financial crisis of 2008, this article critically compares how China’s national arbitration commissions and local courts are responding to new challenges brought about by an increase in the number of banking related disputes. Drawing on comparative case analysis, the article examines the operation of CIETAC and the Shanghai Courts financial dispute resolution mechanisms in resolving financial disputes. Drawing on insights from selected case findings, the article provides insight into which institution is in the best position to handle financial-related cases, discusses prospects for coordination between the two and sets out proposals for further reform. …

The Creation And Destruction Of Price Cartels: An Evolutionary Theory, William Bradford

william bradford

This Article sketches the goals of antitrust law, describes the causes and effects of anticompetitive pricing generally and supracompetitive pricing specifically, explains the inability of antitrust law to suppress some instances of supracompetitive pricing, establishes the importance of trust between firms as a necessary condition for supracompetitive pricing, and illustrates how the strategic exchange of information is crucial to the creation and destruction of trust and thus to the evolution and devolution of price cartels. Part II develops a positive theory that explains and predicts the evolution and devolution of price cartels as a function of the ability of rival …

Judicial Intervention As Risk Reduction, Juliet P. Kostritsky

Juliet P Kostritsky

JUDICIAL INTERVENTION AS RISK REDUCTION J. P. Kostritsky Employing an economics-based consequentialist approach to contract interpretation (focusing on the prospective effect and the factors that might justify intervention) this Article attempts to identify the precise parameters of an optimal framework for contract interpretation. Such a framework would seek to maximize gains from trade. The issue in such cases is always, given the words the parties used, what is the best (surplus maximizing) interpretation of the bargain. Courts can achieve that interpretation by, in part, minimizing the interpretive risk that parties face when they draft an express contract but fail to …

A Consequentialist Approach To Interpretation, Probabilistic Mechanisms, And Risk: Let’S Not Limit Courts’ Techniques Of Common Law Adjudication; Rethinking Judicial Intervention From Contracts To The Chrysler Bankruptcy, Juliet P. Kostritsky

Juliet P Kostritsky

Employing an economics-based consequentialist approach to contract interpretation (focusing on the prospective effect and the factors that might justify intervention) this Article attempts to identify the precise parameters of an optimal framework for contract interpretation. Such a framework would seek to maximize gains from trade. The issue in such cases is always, given the words the parties used, what is the best (surplus maximizing) interpretation of the bargain. Courts can achieve that interpretation by, in part, minimizing the interpretive risk that parties face when they draft an express contract but fail to completely resolve all possible issues. This Article uses …

Economic Evolution, Jurisdictional Revolution, Dustin Buehler

Dustin Buehler

In June 2011, the Supreme Court issued its first personal jurisdiction decision in two decades. In J. McIntyre Machinery, Ltd. v. Nicastro, the Court considered whether the placement of a product in the “stream of commerce” subjects a nonresident manufacturer to personal jurisdiction in states where the product is distributed. The Court issued a fractured opinion with no majority rule, with some justices expressing reluctance to “refashion basic jurisdictional rules” without additional information on “modern-day consequences.” This Article explores the consequences of these rules by providing the first law-and-economics analysis of personal jurisdiction. A descriptive analysis initially demonstrates that jurisdictional …

To Empower, Prohibit, Or Delegate?: Regulatory Strategies For Modernizing The Consumer Credit Market, Yoon-Ho Alex Lee, K. Jeremy Ko

Yoon-Ho A Lee

A number of proposals currently exist to bolster regulation in the market for consumer credit products. How should regulators evaluate their various options? Our diagnosis of the market—based on a review of empirical evidence and economic models—is that consumer are failing to minimize the economic cost of debt as a result of lack of information, lack of expertise, or lack of self-awareness. Consequently, the market lacks competitive dynamics and fails to eliminate welfare-reducing products. We view the space of regulatory options as a triangle with three nodes—empowerment, prohibition, or delegation—depending on whether a particular decision regarding consumer credit arrangement should …

To Empower, Prohibit, Or Delegate?: Regulatory Strategies For Modernizing The Consumer Credit Market, Yoon-Ho A. Lee

Yoon-Ho A Lee

A number of proposals currently exist to bolster regulation in the market for consumer credit products. How should regulators evaluate their various options? Our diagnosis of the market—based on a review of empirical evidence and economic models—is that consumer are failing to minimize the economic cost of debt as a result of lack of information, lack of expertise, or lack of self-awareness. Consequently, the market lacks competitive dynamics and fails to eliminate welfare-reducing products. We view the space of regulatory options as a triangle with three nodes—empowerment, prohibition, or delegation—depending on whether a particular decision regarding consumer credit arrangement should …

Is Competition The Solution Or The Problem? An Analysis Of U.S. Mortgage Securitization, Michael N. Simkovic

Michael N Simkovic

This article’s original contribution to the literature about the causes of the U.S. mortgage crisis of the late 2000s is to analyze two important causes that have thus far only been discussed in passing. First, this article provides evidence that fragmentation of the securitization market in the mid-2000s and competition between mortgage securitizers undermined securitizers’ ability to control originators, and that such competition led to a race to the bottom on underwriting standards. Second, this article provides evidence of a shift in market power away from securitizers and toward originators during the mid-2000s, and argues that this shift in power …

Anticompetitive Product Design In The New Economy, John M. Newman

John M. Newman

Claims alleging anticompetitive product design and redesign lie at the very core of one of antitrust law’s most challenging dilemmas: the intersection between innovation and regulation, invention and intervention. For over three decades, courts and scholars have struggled to determine the proper analytical framework within which to address such cases. Meanwhile, the very industries in which challenged conduct occurs have been undergoing fundamental changes.

As demonstrated by the ongoing and recent antitrust litigation involving high-technology firms Apple, Intel, and Microsoft, distinctive features characterize most product markets in what has been called the “New Economy”—and increasingly has become simply “the economy.” …

Law, Institutions And Corruption Cleanups In Africa, John Mukum Mbaku

JOHN MUKUM MBAKU

SINCE INDEPENDENCE, VIRTUALLY ALL AFRICAN COUNTRIES HAVE suffered and continue to suffer from extremely high rates of bureaucratic corruption. Today, corruption remains one of the most important constraints to social, political and economic development. Despite the efforts made, in several countries, to deal with corruption and other forms of political opportunism (e.g., rent seeking), these phenomena remain entrenched in these countries and continue to constrain entrepreneurship and creation of the wealth that is needed to deal with extremely high rates of poverty and material deprivation. Part of the reason why many African countries have not been able to effectively cleanup …

Nafta And Cafta-Dr:The Latin American Reality, Diego M. Vincenzi

Diego M Vincenzi

No abstract provided.

Tort-Related Risk Costs And The Hand Formula For Negligence, Richard S. Markovits

Richard S. Markovits

No abstract provided.

A Distortion-Analysis Protocol For Economic-Efficiency Analysis: A Third-Best-Economically-Efficient Response To The General Theory Of Second Best, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Law Firms Competing On The “Edge Of Chaos”: Pro Bono’S Role In A Winning Competitive Strategy, Tom Spahn

Tom Spahn

My Article takes an interdisciplinary approach to arguing that robust pro bono practices can give law firms a strategic advantage in the modern economy. I use modern economic theories, from game theory to complexity theory, to consider a pro bono practice’s role in responding to both internal and external competitive pressures. This leads to several key insights, such as pro bono’s ability to offset the dead-weight loss incurred when oligopolistic firms merge, its power to cause a paredo improvement to a firm’s position by moving it away from a non-cooperative Nash equilibrium, and the iterative recombination effect that such a …

Loving The Cyber Bomb? The Dangers Of Threat Inflation In Cybersecurity Policy, Jerry Brito, Tate Watkins

Jerry Brito

Over the past two years there has been a steady drumbeat of alarmist rhetoric coming out of Washington about potential catastrophic cyber threats. For example, at a Senate Armed Services Committee hearing last year, Chairman Carl Levin said that “cyberweapons and cyberattacks potentially can be devastating, approaching weapons of mass destruction in their effects.” Proposed responses include increased federal spending on cybersecurity and the regulation of private network security practices.

The rhetoric of “cyber doom” employed by proponents of increased federal intervention, however, lacks clear evidence of a serious threat that can be verified by the public. As a result, …

“Charitable” Discrimination: Why Taxpayers Should Not Have To Fund 501(C)(3) Organizations That Discriminate Against Lgbt Employees, Austin R. Caster

Austin R Caster

Until now, the first amendment protection of religious liberty has allowed—and even publicly funded—discrimination against LGBT employees, but this article argues that Christian Legal Society v. Martinez changes that analysis. According to Bob Jones University v. United States, organizations that base admissions decisions on racial discrimination violate public policy and cannot receive taxpayer funding. Similarly, Christian Legal Society v. Martinez shows us that universities do not have to fund student organizations that discriminate on the basis of sexual orientation. Therefore, because discrimination based on an immutable minority trait bars taxpayer funding in one instance, this article argues it should also …

Why Europe Should Say No To The Proposed Framework Of Economic Governance: A Legal And Policy Analysis In Light Of The Establishment Of The European Stability Mechanism And The Euro Plus Pact, Vasileios Paliouras

Vasileios Paliouras

The eurozone sovereign debt crisis, despite all the pain and suffering that has caused to the peoples of the affected countries of the European periphery, has the potential to serve the purpose of European integration, if the right signals are transmitted to the political establishment of Europe. Clearly, the crisis has challenged the basic premise that underpinned the creation of the Economic and Monetary Union (EMU), namely that coordination of economic policies would be enough to safeguard the consensus over the common currency. During the last year the leaders of eurozone Member States have taken unprecedented action to make up …

Tort-Related Risk Costs And The Hand Formula For Negligence, Richard S. Markovits

Richard S. Markovits

No abstract provided.

A Distortion-Analysis Protocol For Economic-Efficiency Analysis: A Third-Best-Economically-Efficient Response To The General Theory Of Second Best, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Best Practices To Incorporate The Informal Economy Into The Formal Economy., Omar E. Garcia-Bolivar

Omar E Garcia-Bolivar

This paper is about the best practices used to incorporate the informal economy into the formal economy. It is based on experience implementing legal changes in developing countries to empower the poor.

Gender And Partner Compensation At America's Largest Firms, Marina Angel

Marina Angel

Abstract

This study compiled the largest research sample on the gender gap in compensation at the 200 largest law firms by combining two large databases to examine the compensation disparities between men and women partners. The analysis elucidates the question of whether the difference is because women are less productive than men partners or because they are women. The Am Law 100 and 200 studies include gross revenue, profits, number of equity and non-equity partners, and the total number of lawyers at each firm. The Vault/MCCA Law Firm Diversity Programs study (Vault/MCCA) includes the gender ratios at each Am Law …

The Market In Unmatured Tort Claims: Twenty Years Later, Stephen G. Marks

Stephen G Marks

In 1989, Professor Robert Cooter argued for changes in the law that would facilitate the development of a market in unmatured tort claims. And yet it remains unadopted in all jurisdictions. There is a reason for this. In this paper I reexamine the proposal as to its likely intended and unintended effects. This article argues that, for such a market to work, three modifications must be made. First, the tort awards must be based on optimal-deterrence-damages rather than full-compensation damages. (The paper provides an explanation of full-compensation damages, optimal-deterrence damages, and optimal-insurance damages.) Second, potential tortfeasors must not be allowed …

“Offsetting” Crisis? – Climate Change Cap And Trade Need Not Contribute To Another Financial Meltdown, Victor B. Flatt

Victor B Flatt

Much of the fear of a cap and trade system to control greenhouse gases concerns the financial instruments that will be created in such a system and the concern that they will lead to another financial crisis. This belief may have been a major contributor to the defeat of cap and trade in the U.S. Senate. However, greenhouse gas cap and trade systems can be structured to avoid the problem of toxic assets that led to the financial crisis while still retaining real greenhouse gas control with an efficient market. Given that cap and trade still exists in many greenhouse …

Shute: The Math Is Off, Tom Cummins

Tom Cummins

This year marks the twentieth anniversary of the Court’s decision in Carnival Cruises v. Shute. Reversing the common law rule that forum selection clauses in form contracts are presumptively unenforceable, the Court reasoned that such clauses should be enforced because consumers “benefit in the form of reduced [prices] reflecting the savings that the [firm] enjoys by limiting the fora in which it may be sued.” The Court’s calculation was off, however, because it failed to account for the latent costs of such clauses. This Essay begins the project of getting the math (and, perhaps, the law). The thesis is that …

Tort-Related Risk Costs And The Hand Formula For Negligence, Richard S. Markovits

Richard S. Markovits

No abstract provided.