Law Commons^™

Taking Outcomes Seriously, Daphna Lewinsohn-Zamir

Daphna Lewinsohn-Zamir

The goal of economic efficiency is to promote best outcomes by maximizing the satisfaction of people’s preferences. Given the crucial role of outcomes in efficiency analysis, surprisingly little attention has been devoted to the question of what an outcome actually is. Law-and-economics scholars typically disregard this issue, implicitly adopting the narrowest possible definition of outcome, namely end-results in terms of wealth. Furthermore, no attempt has been made to examine the fundamental question of what notion of outcomes individuals actually embrace.

This Article aims to fill this void by presenting an experimental study of perceptions of outcomes, conducted with both laypersons …

“One For All: The Problem Of Uniformity Cost In Intellectual Property Law.” American University Law Review 55, No.4 (May 2006): 845-900., Michael W. Carroll

Michael W. Carroll

Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. In the modern context, it is clear that innovators' needs for intellectual property protection vary substantially across industries and among types of innovation. Applying a socially costly, uniform solution to problems of differing magnitudes means that the law necessarily imposes uniformity cost by underprotecting those who invest in certain costly innovations and overprotecting those with low innovation costs or access to alternative appropriability mechanisms. This Article argues that reducing uniformity cost is the central problem for intellectual …

The Importation Of The Rule Of Reason In European Competition Law: The Implications Of Economic And Behavioral Theories And The Case Of Port Services, Davide Maresca

Davide Maresca

The regulation of international markets is nowadays faced with an important debate emerging from the study that started long ago at the Chicago School, passed through behavioral theories, and arrived in the European Union model. Two main theories set against each other concerning the market and antitrust regulation. The first one, law and economics theory, is based on the economic analysis of the costs and benefits of restraint of trade, and justifies a restraint only for economic reasons. The second, behavioral law and economics theory, is based on the empirical analysis of the regulation through instruments taken from social sciences. …

Substantive Rights In A Constitutional Technocracy, Abigail Moncrieff

Abigail R. Moncrieff

There are two deep puzzles in American constitutional law, particularly related to individual substantive rights, that have persisted across generations: First, why do courts apply a double standard of judicial review, giving strict scrutiny to noneconomic liberties but mere rational basis review to economic ones? Second, why does American constitutional law take the common law baseline as the free and natural state that needs to be protected? This Article proposes a technocratic vision of substantive rights to explain and justify both of these puzzles. The central idea is that modern substantive rights—the rights to speech, religion, association, reproduction, and parenting—protect …

Vertical Boilerplate, James Gibson

James Gibson

Despite what we learn in law school about the “meeting of the minds,” most contracts are merely boilerplate -- take-it-or-leave-it propositions. Negotiation is nonexistent; we rely on our collective market power as consumers to regulate contracts’ content. But boilerplate imposes certain information costs, because it often arrives late in the transaction and is hard to understand. If those costs get too high, then the market mechanism fails. So how high are boilerplate’s information costs? A few studies have attempted to measure them, but they all use a “horizontal” approach -- i.e., they sample a single stratum of boilerplate and assume …

Atticus Finch Looks At Fifty, Michael L. Boyer

Michael L. Boyer

At the 50th anniversary of To Kill A Mockingbird (the book and film), this piece explores the textual evidence related to Atticus Finch as a public interest lawyer as concerned with class and economic equality as racial justice. This interpretive strand has received less attention yet remains one of the most useful for post financial collapse legal professionals.

Patenting Abstractions, Miriam Bitton

Miriam Bitton

This Article explores the question of whether abstract ideas can and should be patentable. Historically, the patent system excluded abstract ideas from protection and the granting of patents was restricted to specific tangible products or processes. Recent advances in information technologies, however, have blurred the boundaries of the traditional doctrine, especially for abstract processes, and many recently filed patent applications and issued patents appear to protect abstractions per se. In view of the recent Supreme Court’s Bilski v. Kappos decision, which provided some new, but vague, guidance on subject matter eligibility thresholds, suggesting that the threshold is not as narrow …

Judicial Response Or Litigant Strategy: Examining The Success Of The U.S. Solicitor General, Jeff L. Yates, Damon Cann, Brent Boyea

Jeff L Yates

In political science the well-known “Attitudinal Model” of legal decision making dictates that judges’ sincere policy preferences drive legal outcomes. In contrast, the celebrated “Selection Hypothesis” from the law and economics literature suggests that litigants carefully consider factors affecting potential case success (including judicial ideology) and accordingly choose to settle cases in which legal outcomes can be readily predicted in the name of efficiency. Thus, judges end up adjudicating a non-random set of cases which, in the typical situation, should not lend themselves to ideological decision making. From this perspective, the influence of Supreme Court justices’ ideological preferences on outcomes …

Race, Law, And The Free Market: A Critical Law And Economics Conception Of Racism As Asymmetrical Market Failure, Andre L. Smith

Andre L. Smith

No abstract provided.

The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French

Christopher C. French

As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for …