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 …

A Health Care Autopsy, Marc Gans

Marc Gans

This paper analyzes each of the factors responsible for the rapid rise in health care spending in this country. This includes an in-depth analysis of prescription drug expenditures, which has been the fastest growing component of health care costs. Lastly, this paper will address whether there is anything particularly unique about health care spending in California.

Plus Factors And Agreement In Antitrust Law, William E. Kovacic, Robert C. Marshall, Leslie M. Marx, Halbert L. White

Michigan Law Review

Plus factors are economic actions and outcomes, above and beyond parallel conduct by oligopolistic firms, that are largely inconsistent with unilateral conduct but largely consistent with explicitly coordinated action. Possible plus factors are typically enumerated without any attempt to distinguish them in terms of a meaningful economic categorization or in terms of their probative strength for inferring collusion. In this Article, we provide a taxonomy for plus factors as well as a methodology for ranking plus factors in terms of their strength for inferring explicit collusion, the strongest of which are referred to as "super plus factors."

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.

The Role Of Science In The Uruguay Round And Nafta Trade Disciplines, David A. Wirth

David A. Wirth

The central theme of this article is the necessity for deference to decision-making processes of national regulatory authorities in the application of these new trade disciplines and the need for trade-based reviews of national regulatory measures to operate within clearly defined limits. Accordingly, this article first examines and summarizes the relevant texts, including the original 1947 GATT, the Uruguay Round, and the NAFTA texts on standards. Next, the article considers the role of science in the standard-setting process with reference to the copious literature on this topic. Finally, the article takes up the difficult question of the application of the …

At War With The Environment, David A. Wirth

David A. Wirth

In this Article, Professor Wirth reviews the book National Defense and the Environment by Stephen Dycus, a recognized expert in both environmental and national security law. The emphasis of the book is on containing and remediating the environmental excesses of the American defense-industrial complex, with a domestic policy focus. While Professor Wirth considers Dycus’ work an intellectually rewarding and refreshing new entry into the ongoing environment-as-security colloquy, he does not consider the book to be accessible to a general audience given the book’s fundamentally legalistic nature.

Deepwater Drilling: Law, Policy, And Economics Of Firm Organization And Safety, Mark A. Cohen

Vanderbilt Law Review

Nathan Richardson 64 Vand. L. Rev. 1853 (2011) Although the causes of the Deepwater Horizon spill are not yet conclusively identified, significant attention has focused on the safety-related policies and practices-often referred to as the safety culture-of BP and other firms involved in drilling the well. This Article defines and characterizes the economic and policy forces that affect safety culture and identifies reasons why those forces may or may not be adequate or effective from the public's perspective. Two potential justifications for policy intervention are that: (1) not all of the social costs of a spill may be internalized by …

Efficient Breach Of International Law: Optimal Remedies, 'Legalized Noncompliance,' And Related Issues, Eric A. Posner, Alan O. Sykes

Michigan Law Review

In much of the scholarly literature on international law, there is a tendency to condemn violations of the law and to leave it at that. If all violations of international law were indeed undesirable, this tendency would be unobjectionable. We argue in this Article, however that a variety of circumstances arise under which violations of international law are desirable from an economic standpoint. The reasons why are much the same as the reasons why nonperformance of private contracts is sometimes desirable- the concept of "efficient breach," familiar to modern students of contract law, has direct applicability to international law. As …

Restoring The Natural Law: Copyright As Labor And Possession, Alfred C. Yen

Alfred C. Yen

In this Article, Professor Yen explores the problems associated with viewing copyright solely as a tool for achieving economic efficiency and advocates for the restoration of natural law to copyright jurisprudence. The Article demonstrates that economics has not been solely responsible for copyright’s development and basic structure, but has rather developed along lines suggested by neutral law, despite modern copyright jurisprudence. The Article considers the consequences of extinguishing copyright’s natural law facets in favor of the blind pursuit of efficiency and concludes by exploring the implications of restoring natural law thinking to copyright jurisprudence.

Damages To Business Interests, R. Steven Thing

R. Steven Thing

No abstract provided.

Justice, The Bretton Woods Institutions And The Problem Of Inequality, Frank J. Garcia

Frank J. Garcia

The Bretton Woods Institutions are, together with the WTO, the preeminent international institutions devoted to managing international economic relations. This mandate puts them squarely in the center of the debate concerning development, inequality and global justice. While the normative analysis of the WTO is gaining momentum, the systematic normative evaluation of the World Bank and the International Monetary Fund is comparatively less developed. This essay aims to contribute to that nascent inquiry. How might global justice criteria apply to the ideology and operations of the Bank and Fund? Political theory offers an abundance of perspectives from which to conduct such …

Is Free Trade "Free?" Is It Even "Trade?" Oppression And Consent In Hemispheric Trade Agreements, Frank J. Garcia

Frank J. Garcia

In order for free trade as a policy to deliver fully on its social promise, it must be both “free” and “trade.” In fact, it must be free, in the sense of voluntary, to be trade at all. In other words, for normative and practical reasons, free trade requires that global economic relations be structured through agreements which reflect the consent of those subject to them. The neoliberal trading system today only imperfectly lives up to this obligation. In this essay, I will examine the role of consent in trade agreements, drawing on examples from CAFTA as representative of important …

Nafta And The Creation Of The Ftaa: A Critique Of Piecemeal Accession, Frank J. Garcia

Frank J. Garcia

No abstract provided.

The Moral Hazard Problem In Global Economic Regulation, Frank J. Garcia

Frank J. Garcia

Global regulation of international business transactions presents a particular form of the moral hazard problem. Global firms use economic and political power to manipulate state and state-controlled multilateral regulation to preserve their opportunity to externalize the social costs of global economic activity with impunity. Unless other actors can effectively counter this at the national and global regulatory levels, globalization re-creates the conditions for under-regulated or “robber baron” capitalism at the global level. This model of economic activity has been rejected at the national level by the same modern democratic capitalist states which currently dominate globalization, creating a crisis of legitimacy …

Evaluating Imf Crisis Prevention As A Matter Of Global Justice, Frank J. Garcia

Frank J. Garcia

No abstract provided.

Trade And Justice: Linking The Trade Linkage Debates, Frank J. Garcia

Frank J. Garcia

No abstract provided.

Save The Economy: Break Up The Big Banks And Shape Up The Regulators, Charles W. Murdock

Charles W. Murdock

Save the Economy: Break Up the Big Banks and Shape Up the Regulators

The U.S. economy is still reeling from the financial crisis that exploded in the fall of 2008. This article asserts that the big banks were major culprits in causing the crisis, by funding the non-bank lenders that created the toxic mortgages which the big banks securitized and sold to unwary investors. Paradoxically, banks which were then too big to fail are even larger today.

The article briefly reviews the history of banking from the Founding Fathers to the deregulatory mindset that has been present since 1980. It …

Understanding Csr: An Empirical Study Of Private Self-Regulation, Benedict Sheehy

Benedict Sheehy

Abstract: The article is a study of an important burgeoning form of regulation—private self-regulation—in the area of Corporate Social Responsibility (CSR). Rather than taking a purely theoretical approach or a social scientific study relying publicly reported data, the article addresses the issue by way of interview based case studies. As a study in regulation it clarifies the difference between various types of self-regulation, trade associations’ codes as private self-regulation and government sponsored self-regulation. This distinction hampers efforts to understand the important aspects of motivation and compliance. This study provides empirical examination of compliance in private self-regulation. Given the impact and …

Reconsidering Competition, Maurice E. Stucke

College of Law Faculty Scholarship

In light of the financial crisis and the empirical findings from behavioral economics, policymakers should reconsider the fundamental question: what is competition? Only in understanding competition can one understand what competition can or cannot achieve under certain circumstances.

This Article reexamines one premise of competition, namely the extent to which firms, consumers, and the government are rational and act with perfect willpower. In varying this assumption, this Article maps four scenarios of competition.

Competition authorities should revisit their conception of competition, including the underlying assumptions, to better understand the competitive dynamics in different industries. In engaging in this review, competition …

Reconsidering Antitrust's Goals, Maurice E. Stucke

College of Law Faculty Scholarship

Antitrust policy today is an anomaly. On the one hand, antitrust is thriving internationally. On the other hand, antitrust’s influence has diminished domestically. Over the past thirty years, there have been fewer antitrust investigations and private actions. Today the Supreme Court complains about antitrust suits, and places greater faith in the antitrust function being subsumed in a regulatory framework. So what happened to the antitrust movement in the United States?

Two import factors contributed to antitrust policy’s domestic decline. The first is salience, especially the salience of the U.S. antitrust goals. In the past thirty years, enforcers and courts abandoned …

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.

Scamlaw And The Macroeconomy, Alan J. Meese

Popular Media

No abstract provided.

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 …

The Giants Among Us, Robin Feldman, Thomas Ewing

Robin C Feldman

The patent world is undergoing a change of seismic proportions. A small number of entities have quietly amassed vast treasuries of patents. These are not the typical patent trolls that we have come to expect. Rather, these entities have participants such Apple, Google, Microsoft, Sony, the World Bank, and non-profit institutions. The largest and most secretive of these has accumulated a staggering 30,000-60,000 patents.

Investing thousands of hours of research and using publicly available sources, we pieced together a detailed picture of these giants and their activities. We consider the potential positive effects, including facilitating rewards for forgotten inventors, creating …

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 …

Electromagnetic Pulse And The U.S. Food Security Paradigm: Assumptions, Risks, And Recommendations, Maximilian Leeds

Maximilian Leeds

This paper analyzes the systemic dangers posed to the U.S. economy by an electromagnetic pulse (EMP), either naturally occurring or maliciously generated, from a food security perspective. Section I examines the modern structure of the U.S. food supply chain, analyzing the just-in-time international distribution model and criticizing it as vulnerable to systemic shock and cascade failure. Section II examines the function and history of the electromagnetic pulse, assesses its potential to serve as a catalyst for systemic breakdown in the domestic food supply chain, and explores the current state of food security planning in the United States pertaining to this …

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 …