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Full-Text Articles in Law

Qalys And Policy Evaluation: A New Perspective, Matthew D. Adler Dec 2005

Qalys And Policy Evaluation: A New Perspective, Matthew D. Adler

Faculty Scholarship at Penn Law

“QALYs” (Quality-Adjusted Life Years) are a metric for health and longevity very widely employed by health researchers. Surveys are used to assign health states a quality ranking on zero-one scale, with zero representing a health state no better than death and one perfect health. The total QALY value of a health profile is calculated as the time spent in its component health states, each weighted by its quality. Until a few years ago, despite the huge academic literature on QALY measurement, this approach was seldom used by policymakers in the U.S. But there have been recent signs of governmental ...


Ip And Antitrust Policy: A Brief Historical Overview, Herbert J. Hovenkamp Dec 2005

Ip And Antitrust Policy: A Brief Historical Overview, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The history of IP/antitrust litigation is filled with exaggerated notions of the power conferred by IP rights and imagined threats to competition. The result is that antitrust litigation involving IP practices has seen problems where none existed. To be sure, finding the right balance between maintaining competition and creating incentives to innovate is no easy task. However, the judge in an IP/antitrust case almost never needs to do the balancing, most of which is done in the language of the IP provisions. The role of antitrust tribunals is the much more limited one of ensuring that any alleged ...


Equity Analysis And Natural Hazards Policy, Matthew D. Adler Nov 2005

Equity Analysis And Natural Hazards Policy, Matthew D. Adler

Faculty Scholarship at Penn Law

What is an “equitable” policy for mitigating the impacts of hurricanes, earthquakes, floods, and other natural hazards? Economists tend to see “equity” or “distribution” as irreducibly political and subjective. But, in truth, equity analysis and cost-benefit analysis are on a par. Both require a normative justification. Moreover, normative argument can help us structure equity analysis, just as it can cost-benefit analysis. This chapter, written for a forthcoming book on natural hazards policy after Katrina, argues that equity is a normative consideration distinct from efficiency or overall well-being. It then argues that equity is individualistic, not group-based; ex post, not ex ...


Patent Portfolios, Gideon Parchomovsky, R. Polk Wagner Nov 2005

Patent Portfolios, Gideon Parchomovsky, R. Polk Wagner

Faculty Scholarship at Penn Law

This article presents a new theory of patent value, responding to growing empirical evidence that the traditional appropriability premise of patents is fundamentally incomplete in the modern innovation environment. We find that for patents, the whole is greater than the sum of its parts: the true value of patents lies not in their individual worth, but in their aggregation into a collection of related patents, a patent portfolio. The patent portfolio theory thus explains what is known as “the patent paradox”: in recent years patent intensity—patents obtained per research and development dollar—has risen dramatically even as the expected ...


Tradable Pollution Permits And The Regulatory Game, Jason S. Johnston Nov 2005

Tradable Pollution Permits And The Regulatory Game, Jason S. Johnston

Faculty Scholarship at Penn Law

This paper analyzes polluters' incentives to move from a traditional command and control (CAC) environmental regulatory regime to a tradable permits (TPP) regime. Existing work in environmental economics does not model how firms contest and bargain over actual regulatory implementation in CAC regimes, and therefore fail to compare TPP regimes with any CAC regime that is actually observed. This paper models CAC environmental regulation as a bargaining game over pollution entitlements. Using a reduced form model of the regulatory contest, it shows that CAC regulatory bargaining likely generates a regulatory status quo under which firms with the highest compliance costs ...


Federalism And Antitrust Reform, Herbert J. Hovenkamp Oct 2005

Federalism And Antitrust Reform, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Currently the Antitrust Modernization Commission is considering numerous proposals for adjusting the relationship between federal antitrust authority and state regulation. This essay examines two areas that have produced a significant amount of state-federal conflict: state regulation of insurance and the state action immunity for general state regulation. It argues that no principle of efficiency, regulatory theory, or federalism justifies the McCarran-Ferguson Act, which creates an antitrust immunity for state regulation of insurance. What few benefits the Act confers could be fully realized by an appropriate interpretation of the state action doctrine. Second, the current formulation of the antitrust state action ...


The Fair Value Of Cornfields In Delaware Appraisal Law, Lawrence Hamermesh, Michael L. Wachter Oct 2005

The Fair Value Of Cornfields In Delaware Appraisal Law, Lawrence Hamermesh, Michael L. Wachter

Faculty Scholarship at Penn Law

The Delaware Supreme Court’s opinions in Weinberger and Technicolor have left a troublesome uncertainty in defining the proper approach to the valuation of corporate shares. That uncertainty – increasingly important as going private mergers become more frequent – can be resolved by a blend of financial and doctrinal analysis. The primary problem—the potential opportunism by controlling shareholders in timing going private mergers—can be addressed by a more complete understanding of corporate finance. The definition of fair value must include not only the present value of the firm’s existing assets, but also the future opportunities to reinvest free cash ...


Bargaining For Takings Compensation, Abraham Bell, Gideon Parchomovsky Sep 2005

Bargaining For Takings Compensation, Abraham Bell, Gideon Parchomovsky

Faculty Scholarship at Penn Law

Efficiency and fairness require paying full compensation to property owners when their property is taken by eminent domain. Yet, to date, the evidentiary challenge of proving subjective value has proved insurmountable, and current law requires condemnees to settle for fair market value. This Article proposes a self-assessment mechanism that can make full compensation at subjective value practical. Under our proposal, property owners must be given the opportunity to state the value of the property designated for condemnation. Once property owners name their price, the government can take the property only at that price. However, if the government chooses not to ...


Discounts And Exclusions, Herbert J. Hovenkamp Aug 2005

Discounts And Exclusions, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The discounting practices of dominant firms has emerged as one of the most problematic areas of private antitrust enforcement against single-firm conduct. The most difficult discount practices to assess are bundled, or multi-product discounts in situations where no significant rival produces every product that is included in the bundle. A debate has emerged over whether such discounts are properly assessed under a legal test that analogizes them to predatory pricing or to tying. Defendants typically prefer predatory pricing analogies, requiring a showing that the price of the assembled bundle was below a relevant measure of cost, such as marginal cost ...


Why Defer To Managers? A Strong-Form Efficiency Model, Richard E. Kihlstrom, Michael L. Wachter Jul 2005

Why Defer To Managers? A Strong-Form Efficiency Model, Richard E. Kihlstrom, Michael L. Wachter

Faculty Scholarship at Penn Law

We compare the efficiency with which management discretion and shareholder choice regulate hostile tender offers. This is the first paper in a long running debate that rigorously compares these legal rules to analyze both the critical informational assumptions and the interplay of those assumptions with principles of financial market efficiency. A critical innovation of our model is its focus on an informed management’s choice among alternative corporate policies under the protection of the business judgment rule, but where agency costs exist. We assume that corporate assets and reinvestment opportunities are efficiently priced by financial markets, but that markets never ...


Unilateral Refusals To License In The U.S., Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley Jun 2005

Unilateral Refusals To License In The U.S., Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley

Faculty Scholarship at Penn Law

Most antitrust claims relating to intellectual property involve challenges to agreements, licensing practices or affirmative conduct involving the use or disposition of the intellectual property rights or the products they cover. But sometimes an antitrust claim centers on an intellectual property owner's refusal to use or license an intellectual property right, perhaps coupled with efforts to enforce the intellectual property right against infringers. The allegation may be that the intellectual property right is so essential to competition that it must be licensed across the board, or that a refusal to license it to one particular party was discriminatory, or ...


How Do Corporations Play Politics? The Fedex Story, Jill E. Fisch Jan 2005

How Do Corporations Play Politics? The Fedex Story, Jill E. Fisch

Faculty Scholarship at Penn Law

No abstract provided.


Institutional Competition To Regulate Corporations: A Commment On Macey, Jill E. Fisch Jan 2005

Institutional Competition To Regulate Corporations: A Commment On Macey, Jill E. Fisch

Faculty Scholarship at Penn Law

No abstract provided.


Symbiotic Federalism And The Structure Of Corporate Law, Marcel Kahan, Edward B. Rock Jan 2005

Symbiotic Federalism And The Structure Of Corporate Law, Marcel Kahan, Edward B. Rock

Faculty Scholarship at Penn Law

No abstract provided.


Do Institutions Matter? The Impact Of The Lead Plaintiff Provision Of The Private Securities Litigation Reform Act, Stephen Choi, Jill E. Fisch, A. C. Pritchard Jan 2005

Do Institutions Matter? The Impact Of The Lead Plaintiff Provision Of The Private Securities Litigation Reform Act, Stephen Choi, Jill E. Fisch, A. C. Pritchard

Faculty Scholarship at Penn Law

When Congress enacted the Private Securities Litigation Reform Act in 1995 (“PSLRA”), the Act’s “lead plaintiff” provision was the centerpiece of its efforts to increase investor control over securities fraud class actions. The lead plaintiff provision alters the balance of power between investors and class counsel by creating a presumption that the investor with the largest financial stake in the case will serve as lead plaintiff. The lead plaintiff then chooses class counsel and, at least in theory, negotiates the terms of counsel’s compensation.

Congress’s stated purpose in enacting the lead plaintiff provision was to encourage institutional ...


Beyond Network Neutrality, Christopher S. Yoo Jan 2005

Beyond Network Neutrality, Christopher S. Yoo

Faculty Scholarship at Penn Law

No abstract provided.


On The Regulation Of Networks As Complex Systems: A Graph Theory Approach, Daniel F. Spulber, Christopher S. Yoo Jan 2005

On The Regulation Of Networks As Complex Systems: A Graph Theory Approach, Daniel F. Spulber, Christopher S. Yoo

Faculty Scholarship at Penn Law

No abstract provided.


Redesigning The International Lender Of Last Resort, Patrick Bolton, David A. Skeel Jr. Jan 2005

Redesigning The International Lender Of Last Resort, Patrick Bolton, David A. Skeel Jr.

Faculty Scholarship at Penn Law

No abstract provided.


The Microfoundations Of Standard Form Contracts: Price Discrimination Vs. Behavioral Bias, Jonathan Klick Jan 2005

The Microfoundations Of Standard Form Contracts: Price Discrimination Vs. Behavioral Bias, Jonathan Klick

Faculty Scholarship at Penn Law

No abstract provided.


Towards A Differentiated Products Theory Of Copyright, Christopher S. Yoo Jan 2005

Towards A Differentiated Products Theory Of Copyright, Christopher S. Yoo

Faculty Scholarship at Penn Law

The well-known “access-incentives” tradeoff that lies at the heart of the standard economic analysis of copyright follows largely from the assumption that copyright turns authors into monopolists. If one instead analyzes copyright through a framework that allows for product differentiation and entry, the access-incentives tradeoff becomes less significant. By increasing producer appropriability and profit, increased copyright protection can stimulate entry of competitors producing similar works, which in turn results in lower prices, increased product variety, and increased access. This approach would also broaden set of available policy instruments, although disentangling the effects of one from another can be quite complicated.


The New Dividend Puzzle, William W. Bratton Jan 2005

The New Dividend Puzzle, William W. Bratton

Faculty Scholarship at Penn Law

No abstract provided.


Wealth, Utility, And The Human Dimension, Jonathan Klick, Francesco Parisi Jan 2005

Wealth, Utility, And The Human Dimension, Jonathan Klick, Francesco Parisi

Faculty Scholarship at Penn Law

Functional law and economics, which draws its influence from the public choice school of economic thought, stands in stark contrast to both the Chicago and Yale schools of law and economics. While the Chicago school emphasizes the inherent efficiency of legal rules, and the Yale school views law as a solution to market failure and distributional inequality, functional law and economics recognizes the possibility for both market and legal failure. That is, while there are economic forces that lead to failures in the market, there are also structural forces that limit the law’s ability to remedy those failures on ...


The Academic Tournament Over Executive Compensation, William W. Bratton Jan 2005

The Academic Tournament Over Executive Compensation, William W. Bratton

Faculty Scholarship at Penn Law

No abstract provided.


Environmental Trade Measures, The Shrimp-Turtle Rulings, And The Ordinary Meaning Of The Text Of The Gatt, Howard F. Chang Jan 2005

Environmental Trade Measures, The Shrimp-Turtle Rulings, And The Ordinary Meaning Of The Text Of The Gatt, Howard F. Chang

Faculty Scholarship at Penn Law

No abstract provided.


Welfare, Dialectic, And Mediation In Corporate Law, William W. Bratton Jan 2005

Welfare, Dialectic, And Mediation In Corporate Law, William W. Bratton

Faculty Scholarship at Penn Law

No abstract provided.


Architectural Censorship And The Fcc, Christopher S. Yoo Jan 2005

Architectural Censorship And The Fcc, Christopher S. Yoo

Faculty Scholarship at Penn Law

No abstract provided.


Corporate Shaming Revisited: An Essay For Bill Klein, David A. Skeel Jr. Jan 2005

Corporate Shaming Revisited: An Essay For Bill Klein, David A. Skeel Jr.

Faculty Scholarship at Penn Law

No abstract provided.


The Rule Of Capture And The Economic Dynamics Of Natural Resource Use And Survival Under Open Access Management Regimes, Jason S. Johnston Jan 2005

The Rule Of Capture And The Economic Dynamics Of Natural Resource Use And Survival Under Open Access Management Regimes, Jason S. Johnston

Faculty Scholarship at Penn Law

By reviewing the bioeconomic dynamics of natural resource harvest under open access/rule of capture management, this article demonstrates the falsity of the widely held contemporary view that market incentives lead to unsustainable natural resource use. The formal bioeconomic models teach that it is the relative speed of market versus natural dynamics that determines when and if open access harvest leads to resource collapse. If the rate at which harvesters exit from the harvest industry when harvests are low is rapid relative to the natural rate of growth in the harvested stock, the level of both the resource stock and ...


Liability Insurance As Tort Regulation: Six Ways That Liability Insurance Shapes Tort Law In Action, Tom Baker Jan 2005

Liability Insurance As Tort Regulation: Six Ways That Liability Insurance Shapes Tort Law In Action, Tom Baker

Faculty Scholarship at Penn Law

Leaving aside difficult to interpret doctrinal developments, such as the abrogation of traditional immunities, liability insurance has at least the following six impacts on tort law in action. First, for claims against all but the wealthiest individuals and organizations, liability insurance is a de facto element of tort liability. Second, liability insurance limits are a de facto cap on tort damages. Third, tort claims are shaped to match the available liability insurance, with the result that liability insurance policy exclusions become de facto limits on tort liability. Fourth, liability insurance makes lawsuits against ordinary individuals and small organizations into repeat ...