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Mixed Signals: Rational-Choice Theories Of Social Norms And The Pragmatics Of Explanation, W. Bradley Wendel
Mixed Signals: Rational-Choice Theories Of Social Norms And The Pragmatics Of Explanation, W. Bradley Wendel
Cornell Law Faculty Publications
The question of how societies secure cooperation and order in the absence of state enforced sanctions has long vexed law and economics scholars. Recently the concept of social norms--informally enforced rules of behavior--has occupied the attention of a large number of these theorists, who are concerned with understanding why economically rational actors would bother to follow rules whose costs seem to outweigh their benefits. Because of the prestige (or at least trendiness) of law and economics, it seems that now everyone in the legal academy is talking about social norms. This burgeoning scholarship is closely related to a wider concern …
Reconsidering Estoppel: Patent Administration And The Failure Of Festo, R. Polk Wagner
Reconsidering Estoppel: Patent Administration And The Failure Of Festo, R. Polk Wagner
All Faculty Scholarship
Last Term, in Festo Corporation v. Shoketsu Kinzoku Kogyo Kabashuki Co., the United States Supreme Court missed perhaps the most important opportunity for patent law reform in two decades. At the core of the failure to grasp the implications of "prosecution history estoppel" - a judicially-crafted principle limiting the enforceable scope of patents based on acts occurring during their application process - is the heretofore universal (but ultimately unsupportable) view of the doctrine as an arbitrary ex post limitation on patent scope. This Article demonstrates the serious flaws in this traditionalist approach, and develops a new theory of prosecution history …
Can Law And Economics Be Both Practical And Principled?, David A. Hoffman, Michael P. O'Shea
Can Law And Economics Be Both Practical And Principled?, David A. Hoffman, Michael P. O'Shea
All Faculty Scholarship
This article describes important recent developments in normative law and economics, and the difficulties they create for the project of efficiency-based legal reform. After long proceeding without a well articulated moral justification for using economic decision procedures to choose legal rules, scholars have lately begun to devote serious attention to developing a philosophically attractive definition of well-being. At the same time, the empirical side of law and economics is also being enriched with an improved understanding of the complexities of individuals' decision-making behavior. That is where the problems begin. Scholars may have better, more plausible conceptions of well-being in hand, …