Law Commons^™

The Supreme Court's Assault On Litigation: Why (And How) It Might Be A Good Thing For Health Law, Abigail R. Moncrieff

Abigail R. Moncrieff

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend has had a significant impact on health law; the Court’s decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend of eliminating private rights of action in …

How Do Local-Level Legal Institutions Promote Development?, Varun Gauri

Varun Gauri

This paper develops a framework and some hypotheses regarding the impact of local-level, informal legal institutions on three economic outcomes: aggregate growth, inequality, and human capabilities. It presents a set of stylized differences between formal and informal legal justice systems, identifies the pathways through which formal systems promote economic outcomes, reflects on what the stylized differences mean for the potential impact of informal legal institutions on economic outcomes, and looks at extant case studies to examine the plausibility of the arguments presented. The paper concludes that local-level, informal legal institutions can support social substitutes for the enforcement of contracts, although …

How Do Local-Level Legal Institutions Promote Development?, Varun Gauri

Varun Gauri

This paper develops a framework and some hypotheses regarding the impact of local-level, informal legal institutions on three economic outcomes: aggregate growth, inequality, and human capabilities. It presents a set of stylized differences between formal and informal legal justice systems, identifies the pathways through which formal systems promote economic outcomes, reflects on what the stylized differences mean for the potential impact of informal legal institutions on economic outcomes, and looks at extant case studies to examine the plausibility of the arguments presented. The paper concludes that local-level, informal legal institutions can support social substitutes for the enforcement of contracts, though …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

Penalizing Punitive Damages: Why The Supreme Court Needs A Lesson In Law & Economics, Steve P. Calandrillo

Steve P. Calandrillo

Last year’s landmark Supreme Court decision addressing punitive damages in the infamous Exxon Valdez oil spill case has brought the issue of punitive awards back into the legal limelight. This paper critically examines modern punitive damages jurisprudence using a law & economics lens and provides a dramatically different and far more principled approach to the subject.

While traditional Supreme Court jurisprudence requires morally reprehensible conduct before punitive damages may be awarded, I argue that punitives should be imposed (indeed, must for deterrence purposes) even in the absence of egregious behavior when a defendant has escaped liability previously, either intentionally or …

Penalizing Punitive Damages: Why The Supreme Court Needs A Lesson In Law & Economics, Steve P. Calandrillo

Steve P. Calandrillo

Last fall’s landmark Supreme Court decision addressing punitive damages in the infamous Exxon Valdez oil spill case has brought the issue of punitive awards back into the legal limelight. Modern Supreme Court jurisprudence, most notably BMW, State Farm, Philip Morris, and now Exxon Valdez in 2008, have concluded that such judgments are justified to punish morally reprehensible behavior and to “send a message” to evildoers. However, the Court has increasingly emphasized that the U.S. Constitution’s Due Process Clause presumptively limits punitive awards, drawing an arbitrary line in the sand of no more than ten times actual damages.

This paper critically …

The Intersection Of Judicial Attitudes And Litigant Selection Theories: Explaining U.S. Supreme Court Decision Making, Jeff L. Yates, Elizabeth Coggins

Jeff L Yates

Two prominent theories of legal decision making provide seemingly contradictory explanations for judicial outcomes. In political science, the Attitudinal Model suggests that judicial outcomes are driven by judges' sincere policy preferences -- judges bring their ideological inclinations to the decision making process and their case outcome choices largely reflect these policy preferences. In contrast, in the law and economics literature, Priest and Klein's well-known Selection Hypothesis posits that court outcomes are largely driven by the litigants' strategic choices in the selection of cases for formal dispute or adjudication -- forward thinking litigants settle cases where potential judicial outcomes are readily …

Public Use, Public Choice And The Urban Growth Machine: Competing Political Economies Of Takings Law, Daniel Lyons

Daniel Lyons

The Kelo decision has unleashed a tidal wave of legislative reforms ostensibly seeking to control eminent domain abuse. But as a policy matter, it is impossible to determine what limits should be placed upon local government without understanding how cities grow and develop, and how local governments make decisions to shape the communities over which they preside. This article examines takings through two very different models of urban political economy: public choice theory and the quasi-Marxist Urban Growth Machine model. These models approach takings from diametrically opposite perspectives, and offer differing perspectives at the margin regarding proper and improper condemnations. …

The Discourse Of "Contract" And The Law Of Marriage, Thomas W. Joo

Thomas W Joo

Marriage is often compared to a "contract." While this analogy bases the law of marriage on a presumed settled concept called "contract," it rests in fact on a contested view of "contract": that legitimate obligation must derive from consent. This focus on consent ignores another, contradictory, strand of contract law that imposes obligations without consent. The pervasiveness of the consent-centered "contract" analogy affects our understanding of "contract" as much as it affects our understanding of marriage.

Flying Passports Of Convenience, Karl T. Muth

Karl T Muth

This paper proposes an economic alternative to the legal construct of citizenship that currently dominates international law.

Análise Econômica Do Direito E A Agu, Ivo T. Gico

Ivo Teixeira Gico Jr.

No abstract provided.

In Search Of An Enforceable Medical Malpractice Exculpatory Agreement: Introducing Confidential Contracts As A Solution To The Doctor-Patient Relationship Problem, Matthew Lawrence

Matthew B. Lawrence