Law Commons^™

The Innovation Commons, Herbert J. Hovenkamp

All Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …

Distributive Justice And Consumer Welfare In Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

The dominant view of antitrust policy in the United States is that it is intended to promote some version of economic welfare. More specifically, antitrust promotes allocative efficiency by ensuring that markets are as competitive as they can practicably be, and that firms do not face unreasonable roadblocks to attaining productive efficiency, which refers to both cost minimization and innovation.

The distribution concern that has dominated debates over United States antitrust policy over the last several decades is whether antitrust should adopt a “consumer welfare” principle rather than a more general neoclassical “total welfare” principle. In The Antitrust Paradox Robert …

Patent Exclusions And Antitrust After Therasense, Herbert J. Hovenkamp

All Faculty Scholarship

A patent may be held invalid if it was obtained by “inequitable conduct” before the PTO during the process of patent prosecution. In its Therasense decision the Federal Circuit imposed severe requirements against those attempting to defend against a patent on the basis of inequitable conduct, insisting that inequitable conduct be measured essentially by a subjective test. Objective “reasonable person” tests such as negligence or even gross negligence will not suffice. By contrast, the Supreme Court has insisted that the conduct giving rise to a wrongful infringement action violating the antitrust laws be initially based on an objective test – …

Competition For Innovation, Herbert J. Hovenkamp

All Faculty Scholarship

Both antitrust and IP law are limited and imperfect instruments for regulating innovation. The problems include high information costs and lack of sufficient knowledge, special interest capture, and the jury trial system, to name a few. More fundamentally, antitrust law and intellectual property law have looked at markets in very different ways. Further, over the last three decades antitrust law has undergone a reformation process that has made it extremely self conscious about its goals. While the need for such reform is at least as apparent in patent and copyright law, very little true reform has actually occurred.

Antitrust has …

Export Controls: A Contemporary History, Bert Chapman

Libraries Faculty and Staff Presentations

Provides highlights of my recently published book Export Controls: A Contemporary History. Describes the roles played by multiple U.S. Government agencies and congressional oversight committees in this policymaking arena including the Commerce, Defense, State, and Treasury Departments. It also reviews the roles played by international government organizations such as the Missile Technology Control Regime, export oriented businesses, and research intensive universities.

A Technological Approach To Reforming Japan's Consumption Tax, Richard Thompson Ainsworth

Faculty Scholarship

Significant change has been forecast for the Japanese Consumption Tax. Revenue needs are pressing, and the Consumption Tax appears to be underutilized. Should the rate be doubled from 5% to 10%, or more? If so, will rate increases necessitate further structural changes – recasting this annual credit-subtraction levy into a European style credit-invoice VAT? These options have not proven to be politically palatable, but they are directions that have been under active consideration.

On October 1, 2013 the Japanese Cabinet Office announced that the Consumption Tax would rise from 5% to 8% effective April 1, 2014. The rate will increase …

Escaping Entity-Centrism In Financial Services Regulation, Anita Krug

All Faculty Scholarship

In the ongoing discussions about financial services regulation, one critically important topic has not been recognized, let alone addressed. That topic is what this Article calls the “entity-centrism” of financial services regulation. Laws and rules are entity-centric when they assume that a financial services firm is a stand-alone entity, operating separately from and independently of any other entity. They are entitycentric, therefore, when the specific requirements and obligations they comprise are addressed only to an abstract and solitary “firm,” with little or no contemplation of affiliates, parent companies, subsidiaries, or multi-entity enterprises. Regulatory entity-centrism is not an isolated phenomenon, as …

Market Collaboration: Finance, Culture, And Ethnography After Neoliberalism, Annelise Riles

Cornell Law Faculty Publications

In the wake of the disasters of March 2011, financial regulators and financial-risk management experts in Japan expressed little hope that much could be done nor did they take great interest in defining possible policy interventions. This curious response to regulatory crisis coincided with a new fascination with culturalist explanations of financial markets, on the one hand, and a resort to what I term “data politics”—a politics of intensified data collection—on the other. In this article, I analyze these developments as being exemplary of a new regulatory moment characterized by a loss of faith in both free market regulation and …

Reanalyzing Cost-Benefit Analysis: Toward A Framework Of Function(S) And Form(S), Robert B. Ahdieh

Faculty Scholarship

The analysis herein arises from the collision course between the sweeping reforms mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and a single sentence of the U.S. Code, adopted nearly fifteen years earlier and largely forgotten ever since. Few were likely thinking of Section 106 of the National Securities Market Improvement Act when the Dodd-Frank Act was enacted on July 21, 2010. As applied by the D.C. Circuit less than a year later in Business Roundtable v. SEC, however, that provision’s peculiar requirement of cost-benefit analysis could prove the new legislation’s undoing.

To help navigate …

Causation In Tort Law: A Reconsideration, Keith N. Hylton

Faculty Scholarship

Causation is a source of confusion in tort theory, as well as a flash point for the debate between consequentialist and deontological legal theorists.¹ Consequentialists argue that causation is generally determined by the policy grounds for negligence, not by a technical analysis of the facts.² Conversely, deontologists reject the view that policy motives determine causation findings.

Causation has also generated different approaches within the consequentialist school. Some take an essentially forward- looking approach to formalizing causation analysis, finding causation analysis to be subsumed within the Hand Formula.⁴ Another approach within the consequentialist school closely examines the incentive …

Anticompetitive Patent Settlements And The Supreme Court's Actavis Decision, Herbert J. Hovenkamp

All Faculty Scholarship

In FTC v. Actavis the Supreme Court held that settlement of a patent infringement suit in which the patentee of a branded pharmaceutical drug pays a generic infringer to stay out of the market may be illegal under the antitrust laws. Justice Breyer's majority opinion was surprisingly broad, in two critical senses. First, he spoke with a generality that reached far beyond the pharmaceutical generic drug disputes that have provoked numerous pay-for-delay settlements.

Second was the aggressive approach that the Court chose. The obvious alternatives were the rule that prevailed in most Circuits, that any settlement is immune from antitrust …

Is New Governance The Ideal Architecture For Global Financial Regulation?, Annelise Riles

Cornell Law Faculty Publications

A central challenge for international financial regulatory systems today is how to manage the impact of global systemically important financial institutions (G-SIFIs) on the global economy, given the interconnected and pluralistic nature of regulatory regimes. This paper focuses on the Financial Stability Board (FSB) and proposes a new research agenda for the FSB’s emerging regulatory forms. In particular, it examines the regulatory architecture of the New Governance (NG), a variety of approaches that are supposed to be more reflexive, collaborative, and experimental than traditional forms of governance. A preliminary conclusion is that NG tools may be effective in resolving some …

Leveraging Paraguay’S Hydropower For Sustainable Economic Development, Perrine Toledano, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

While internationally Paraguay is known for being the largest hydropower exporter in the world, the domestic economy suffers from regular outages and high system losses. The country is largely dependent on agricultural production, which has led to volatile economic performances in the past resulting from climatic circumstances and commodity price fluctuations. To address these two key policy challenges, the Government of Paraguay has approached The Earth Institute to: 1) explore the potential of a climate risk management system and sustainable agriculture activities to mitigate environmental vulnerability and 2) develop a high-level strategic plan to use Paraguay’s vast hydropower resources for …

How Much Is That Lawsuit In The Window; Pricing Legal Claims, Maya Steinitz

Faculty Scholarship

This article poses the question: How should parties to litigation finance agreements – third party funding or contingency fees – deal with the inherent difficulty in pricing legal claims? It answers that a practical solution would be to use staged funding. Staged funding side-step the impossibility of accurately pricing litigation ex ante by allowing re-pricing and exit that are pegged to information disclosure. Done right, staging allows all parties to minimize the effects of uncertainty, better price their bargain, optimize the distribution of the proceeds of litigation between its different investors – far beyond practices common today. Staged funding also …

It’S Critical: Legal Participatory Action Research, Emily Houh, Kristin (Brandser) Kalsem

Faculty Articles and Other Publications

The ongoing community-based research project that we describe in this article will contribute, we hope, to an understanding of the fringe economy by offering insights into what remains “unexplained” in the current existing literature, namely the gender and race disparities relating to who uses “alternative financial service” (AFS) products. This article likewise contributes to a growing body of literature within Critical Race Theory and Critical Race Feminism that deals with economic inequalities and how they are inextricably and structurally linked to race and gender subordination. By explicitly incorporating “participatory action research” (PAR) values and methods into our work as critical …

Moral Economy And The Upper Peasant: The Dynamics Of Land Privatization In The Mekong Delta, Timothy Gorman

Department of Sociology Faculty Scholarship and Creative Works

This paper examines how people mobilize around notions of distributive justice, or ‘moral economies’, to make claims to resources, using the process of post‐socialist land privatization in the Mekong Delta region of southern Vietnam as a case study. First, I argue that the region's history of settlement, production, and political struggle helped to entrench certain normative beliefs around landownership, most notably in its population of semi‐commercial upper peasants. I then detail the ways in which these upper peasants mobilized around notions of distributive justice to successfully press demands for land restitution in the late 1980s, drawing on Vietnamese newspapers and …

Innovation, Ip Rights, And Anticompetitive Exclusion, Herbert J. Hovenkamp

All Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters will be updated frequently. The author uses …

Resource Movement And The Legal System, Herbert J. Hovenkamp

All Faculty Scholarship

In "The Problem of Social Cost" Ronald Coase considered several common law disputes among neighbors whose economic activities conflicted with one another. For example, Sturges v. Bridgman was a nineteenth century nuisance case involving a pediatrician whose practice was hindered by his neighbor, a confectioner whose operation required a noisy mechanical mortar & pestle. Coase showed that if high transaction costs did not interfere, private bargaining would provide a solution which he characterized as efficient -- namely, that the right to continue would be given to the person who valued it most. For example, if the pediatrician valued the right …

Transfer Pricing: Un Guidelines -- Brazil, Richard Thompson Ainsworth

Faculty Scholarship

The UN Practical Manual on Transfer Pricing for Developing Countries endeavors to provide “clearer guidance on the policy and administrative aspects of applying transfer pricing analysis.” Chapter 10 is particularly noteworthy. It sets out specific country practices. The rules in Brazil, China, India and South Africa are offered as templates for developing countries to follow.

This article considers the Brazilian contribution to Chapter 10. Although some writers believe that developing countries should adopt the Brazilian model this article suggests otherwise. Even though it is a theoretically simple system, some aspects of the Brazilian model consistently work to the fiscal disadvantage …

Defying Conventional Wisdom: The Case For Private Antitrust Enforcement, Joshua P. Davis, Robert H. Lande

All Faculty Scholarship

The conventional wisdom is that private antitrust enforcement lacks any value. Indeed, skepticism of private enforcement has been so great that its critics make contradictory claims. The first major line of criticism is that private enforcement achieves too little — it does not even minimally compensate the actual victims of antitrust violations and does not significantly deter those violations. A second line of criticism contends that private enforcement achieves too much — providing excessive compensation, often to the wrong parties, and producing overdeterrence. This article undertakes the first ever systematic evaluation of these claims. Building upon original empirical work and …

Public Debt In The United States And Germany: A Constitutional Perspective, Stephen Utz

Faculty Articles and Papers

No abstract provided.

Reverse Payments, Perverse Incentives, Murat C. Mungan

Scholarly Publications

No abstract provided.

On Duopoly And Compensation Games In The Credit Rating Industry, Robert J. Rhee

UF Law Faculty Publications

Credit rating agencies are important institutions of the global capital markets. If they had performed properly, the financial crisis of 2008-2009 would not have occurred, and the course of world history would have been different. There is a near universal consensus that reform is needed, but none as to the best approach. The problem has not been solved. This Article offers the simplest fix proposed thus far, and it is contrarian. This Article accepts the central role of rating agencies in the regulation of bond investments, the realities of a duopoly, and the issuer-pay model of compensation. The status quo …

Injunctive And Reverse Settlements In Competition-Blocking Litigation, Keith N. Hylton, Sungjoon Cho

Faculty Scholarship

We distinguish standard settlements, in which the status quo is preserved, and injunctive settlements, which prohibit the defendant's activity. The reverse (payment) settlement is a special type of injunctive settlement. We examine the divergence between private and social incentives to settle and policies that would minimize socially undesirable injunctive and reverse settlements (e.g., banning reverse settlements). The results are applied to competition-blocking litigation, such as patent infringement and antidumping.

Rwanda -- Cutting-Edge Vat Compliance, Richard Thompson Ainsworth, Goran Todorov

Faculty Scholarship

On August 26, 2013 the Ministerial Order on Modalities of Use of Certified Electronic Billing Machine, No. 002/23/10TC of 31/07/2013, was published in the Official Gazette of Rwanda. This Order has set loose a technology revolution in VAT compliance that promises business efficiencies, and revenue enhancements that are only imagined in more developed countries. To open the door to technology Rwanda has taken the traditional digital invoice security model, and connected it to a central security portal at the Rwanda Revenue Authority (RRA). Rwanda will now be able to securely monitor transactions in close to real-time (oversight is on-demand).

Dice – Digital Invoice Customs Exchange, Richard Thompson Ainsworth, Goran Todorov

Faculty Scholarship

A digital invoice customs exchange (DICE) is a technology-intensive tax compliance regimen for VAT/GST that utilizes invoice encryption to safeguard transactional data exchanged between seller and buyer in both domestic and import/export contexts while simultaneously notifying concerned jurisdictions of the transaction details.

DICE facilitates real-time VAT/GST enforcement as well as real-time commercial contract verification. It is a commercial invoice validation system that prevents tax evasion, most notably missing trader fraud and the non-declared import of trade-able services. DICE mimics the most effective administrative enforcement effort ever undertaken by the US IRS – the requirement to disclose the social security numbers …

Vat -- East African Community: The Tradable Services Problem World-Class Solution, Richard Thompson Ainsworth, Goran Todorov

Faculty Scholarship

The value added taxes (VATs) of the East African Community (EAC) are open to manipulation and are leaking revenue from tradable services transactions. The EAC’s response has been to adopt a unique Reverse VAT mechanism. Something more is needed – a Digital Invoice Customs Exchange. Together these adjustments will provide a world-class solution to a world-wide problem. The EAC appears to be moving in this direction.

The vulnerability of the EAC VATs to tradable services is not surprising. The EAC borrowed VAT designs from the major VAT models, the EU VAT and the New Zealand Goods and Services Tax (NZ …

Tackling Vat Fraud: Thirteen Ways Forward, Richard Thompson Ainsworth

Faculty Scholarship

In a May 31, 2006 Communication to the Council, the European Parliament, and the European Economic and Social Committee, the European Commission indicated a need to develop a coordinated strategy to improve the fight against fiscal fraud [COM (2006) 254 final]. Although the Communication considers fiscal fraud broadly (VAT, excise duties and direct taxes) the most pressing need seems to be for a VAT strategy that will effectively deal with carousel fraud.

This paper considers thirteen proposals that deal with missing trader intra-community fraud (MTIC):

(1) Common VAT (origin system) (2) Vanistendael’s foreign tax offices proposal (3) CVAT (Compensating VAT) …

American Vat – The Carousel Fraud Threat: Will The Eu Show The Us The 'Way Forward', Richard Thompson Ainsworth

Faculty Scholarship

On Thursday, March 29, 2007 the European Commission, Directorate-General for Taxation and Customs Union, will host a one-day Conference on Fiscal Fraud – Tackling VAT Fraud: Possible Ways Forward. The conference is based on the Communication of May 31, 2006 explaining the need to develop a coordinated strategy to improve the fight against fiscal fraud. This paper indicates that the EU examination of carousel fraud points the way forward for advocates of a US VAT as well.

About 40% of EU VAT fraud appears to be 'missing trader intra-community' (MTIC) or carousel fraud. The best estimates of EU losses to …

Mitigating The Problem Of Vulture Holdout: International Certification Boards For Sovereign Debt Restructurings, John A. E. Pottow

Law & Economics Working Papers

The Great Recession has brought greater sovereign debt defaults, which in turn has brought a surfeit of academic explorations and policy discussions of sovereign debt restructuring. The purpose of this article is to offer yet one more idea for the hopper of what to do with the seemingly intractable problem of restructuring sovereign bond debt. The field does not lack for statutory and contractual proposals, from SDRM to CACs, but it is not yet sufficiently saturated that another proposal cannot join the mix. The proposal is for the establishment of international certification boards that can give a stamp of approval …