Law Commons^™

La Insoportable Levedad Del Legislador Argentino En Materia De Derecho De Autor Digresiones Jurídico-Económicos En Torno Al Proyecto Legislativo Que Propone Extender La Duración De Las Obras Fotográficas, Maximiliano Marzetti

Maximiliano Marzetti

Este aporte tiene una doble finalidad, catártica y educativa. Por un lado quiero desahogarme al ver como la historia se repite: la vetusta ley de propiedad intelectual N° 11.723 sólo se retoca para extender privilegios económicos de un sector y no en beneficio del bien común. Por otro, continúo mi prédica para intentar convencer a colegas y legisladores para que se adentren en el fabuloso mundo de la multidisciplina. Necesitamos legisladores que sepan de derecho, economía y ciencias sociales, o al menos que sepan escuchar a quienes saben.

Destination-Based Cash-Flow Taxation: A Critical Appraisal, Wei Cui

Wei Cui

This Article offers the first comprehensive appraisal in both the legal and economic literatures of proposals for adopting destination-based cash flow taxation (DCFT) of multinational corporations. The DCFT was a key recommendation for reforming corporate taxation in the U.K., and has subsequently attracted wide attention as a way to fundamentally reform international taxation in the U.S., Europe and elsewhere. The core intuition of the DCFT is to tax profits earned by mobile capital by reference to immobile factors. I distinguish three versions of the DCFT for implementing this intuition: 1. formulary apportionment of business profits by reference to locations of …

"Globalization And Legal Culture. The Influence Of Law & Economics’ Blogs In Developing Countries,", Críspulo Marmolejo

Críspulo Marmolejo

This paper considers the relationship between blogs and Law and Economics from two perspectives: some aspects of the law and economics approach to blogging, and the influence of blogs in the diffusion of Law and Economics. The article explores how blogs are a modern way of low cost domestic journalism, in a context in which the increasingsize of the blogosphere is a current challenge in terms of free speech and quality of the information. At the same time, blogs such as “The Volokh Conspiracy” are playing an interesting role in the American legal academia as areal instrument to analyze the …

Ice Skating Up Hill: Constitutional Challenges To Sec Administrative Proceedings, Thomas Glassman

Thomas S Glassman

Since the inception of the Dodd-Frank Act the Securities and Exchange Commission has come under fire for its increased use of administrative proceedings in adjudicating the agency’s enforcement actions. That criticism has come to several suits in federal court claiming constitutional challenges to the system generally and most recently, the Administrative Law Judges themselves. Until June of 2015, when Hill v. the SEC took place in federal court, the Government was unbeaten in when arguing against these constitutional challenges. Hill, however found that it was likely the SEC had hired their Administrative Law Judges unconstitutionally. The SEC Administrative Law Judges …

Access To Justice, Costs, And Legal Aid, James P. George

James P. George

If the ideal of justice is not pervasive in the United States, the issue of justice is-not so much in its rendition, but in its penetration of news, politics and entertainment. Current media issues include the death penalty--erroneous convictions and the lack of lawyers for appeals; tort reform--conflicting data on medical malpractice litigation and a perceived abuse of class actions; and the judiciary itself--judicial selection, political attacks on so-called "activist judges," and the sometimes hidden issue of court budgets. Within this fascination, the multiple problems in accessing justice are lost.

This article is excerpted from a report done for the …

Reimposable Discounts And Medieval Contract Penalties, James P. George

James P. George

Penalty damages in contract -- contrary to Anglo-American law since the late Middle Ages -- ironically are common as reimposed discounts in modern consumer contracts. The reimposable discount is a late-twentieth-century sales scheme that combines legal puffery with illegal penalties. These pitches are used to sell furniture, appliances, cell phones, cars, to rent apartments, and to promote elective eye surgery. The offers are tempting and often heavily marketed in the media.

The common premise is that if the buyer acts now, the seller will discount the good or service by reducing the price, or by postponing the first payment and …

Jurisdictional Implications In The Reduced Funding Of Lower Federal Courts, James P. George

James P. George

This article argues two related propositions. First, if Congress were to eliminate all funding for lower federal courts, its constitutional authority to regulate those courts would become as meaningless as the empty courthouses. Second, Congress breaches its duty to furnish a forum at a point short of full defunding, and with that breach, Congress's regulatory power over private civil disputes otherwise litigable in state courts--preempted and removable state law claims--becomes constitutionally invalid. The first fact setting of full defunding is hypothetical; the second has been underway for several years.

La Competencia Entre Productos Y Sistemas Jurídicos, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

No abstract provided.

Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova

Saule T. Omarova

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

Bankruptcy Or Bailouts?, Kenneth Ayotte, David Skeel

Kenneth Ayotte

The usual reaction if one mentions bankruptcy as a mechanism for addressing a financial institution’s default is incredulity. Those who favor the rescue of troubled financial institutions, and even those who prefer that their assets be promptly sold to a healthier institution, treat bankruptcy as anathema. Everyone seems to agree that nothing good can come from bankruptcy. Indeed, the Chapter 11 filing by Lehman Brothers has been singled out by many the primary cause of the severe economic and financial contraction that followed, and proof that bankruptcy is disorderly and ineffective. As a result, ad-hoc rescue lending to avoid bankruptcy …

Externalidades Y Reglas De Tutela De Titularidades: Algunas Nociones Preliminares, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

No abstract provided.

The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, Samuel R. Olken

Samuel R. Olken

In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and …

Book Review: The Microsoft Antitrust Cases - Competition Policy For The Twenty-First Century., Daniel Rubinfeld

Daniel L. Rubinfeld

No abstract provided.

Contract Theory And The Failures Of Public-Private Contracting, Wendy Netter Epstein

Wendy Netter Epstein

The market for public-private contracting is huge and flawed. Public-private contracts for services such as prisons and welfare administration tend to result in cost savings at the sacrifice of quality service. For instance, to cut costs, private prisons skimp on security. Public law scholars have studied these problems for decades and have proposed various public law solutions. But the literature is incomplete because it does not approach the problem through a commercial lens. This Article fills that gap. It considers how economic analysis of contract law, in particular efficiency theory and agency theory, bear upon the unique problems of public-private …

La(S) Escuela(S) Del Análisis Económico Del Derecho: Hacia La Necesidad De Diferenciar Perspectivas, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

No abstract provided.

La Relación Entre El Derecho Y La Economía: Breve Itinerario Del Surgimiento Del Law & Economics, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

No abstract provided.

A Comparison Of The Jurisprudence Of The Ecj And The Efta Court On The Free Movement Of Goods In The Eea: Is There An Intolerable Separation Of Article 34 Of The Tfeu And Article Of 11 Of The Eea?, Jarrod Tudor

Jarrod Tudor

Article 11 of the European Economic Area (“EEA”) and Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) prohibit quantitative restrictions on the free movement of goods. The EEA is monitored by the European Free Trade Area Court (“EFTA Court”) and the TFEU is monitored by the European Court of Justice (“ECJ”). In theory, the EFTA Court and the ECJ should interpret Article 11 and Article 34 in the same manner in order to promote harmonization of the law on the free movement of goods and allow for further economic integration between EFTA and the EU. …

The Free Movement Of Capital In Europe: Is The European Court Of Justice Living Up To Its Framers' Intent And Setting An Example For The World?, Jarrod Tudor

Jarrod Tudor

The benefits to free movement of international financial flows are numerous but include an efficient asset market and the opportunity for economic growth and development for countries engaged in an agreement allowing for such freedom. The free movement of capital is one of the four pillars of the Treaty on the Function of the European Union (TFEU) along with the free movement of goods, services, and labor. Article 63 of the TFEU prohibits limitations on the free movement of capital while Article 65 of the TFEU allows for some exceptions. Not only does the free movement of capital doctrine suppose …

Cleaning The Muck Of Ages From The Windows Into The Soul Of Income Tax, John Passant

John Passant

The aim of this paper is to provide readers with an insight into Marx’s methods as a first step to understanding income tax more generally but with specific reference to Australia’s income tax system. I do this by introducing readers to the ideas about the totality that is capitalism, appearance and form, and the dialectic in Marx’s hands. This will involve looking at income tax as part of the bigger picture of capitalism, and understanding that all things are related and changes in one produce changes in all. Appearances can be deceptive and we need to delve below the surface …

Some Basic Marxist Concepts To Understand Income Tax, John Passant

John Passant

The paper introduces readers to some basic Marxist concepts to give the building blocks for an alternative understanding of tax and perhaps even to inspire some to use these concepts and ideas in their future research. It argues that the tax system reflects the phenomena of wealth and income and that there is a deeper reality obscured and ignored by the income tax system as an outcrop of a capitalist system which does the same. This deeper reality is that capital exploits workers and that profit, rent, interest and the like are the money form of the unpaid labour of …

The Self, The Stasi, The Nsa: Privacy, Knowledge, And Complicity In The Surveillance State, Richard Warner, Robert H. Sloan

Richard Warner

We focus on privacy in public. The notion dates back over a century, at least to the work of the German sociologist, Georg Simmel. Simmel observed that people voluntarily limit their knowledge of each other as they interact in a wide variety of social and commercial roles, thereby making certain information private relative to the interaction even if it is otherwise publicly available. Current governmental surveillance in the US (and elsewhere) reduces privacy in public. But to what extent?

The question matters because adequate self-realization requires adequate privacy in public. That in turn depends on informational norms, social norms that …

In Defense Of, Or Offensive To Farms? Hog Farming And The Changing American Agricultural Industry, Shi-Ling Hsu

Shi-Ling Hsu

American agriculture is inexorably concentrating into the hands of a small number of large conglomerates. Expanding farms pursuing scale economies would also normally have to abide by a system of environmental and other laws that would, in theory, require farms to account for negative externalities. If those laws were observed and enforced, they would help strike a balance between the greater profitability and the larger externalities of larger farms. But these laws are not widely observed and not rigorously enforced, upsetting this balance and giving large-scale farms a cost advantage while insulating them from corresponding responsibilities.

Perhaps nowhere in agriculture …

Las Externalidades Y El Criterio De Imputación En La Responsabilidad Extracontractual: Estrategia De Precios Vs. Estrategia De Sanciones (Primera Parte), Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations

David Gamage

Under the traditional consideration doctrine, a promise is only legally enforceable if it is made in exchange for something of value. This doctrine lies at the heart of contract law, yet it lacks a sound theoretical justification – a fact that has confounded generations of scholars and created a mess of case law. This paper argues that the failure of traditional justifications for the doctrine comes from two mistaken assumptions. First, previous scholars have assumed that anyone can back a promise with nominal consideration if they wish to do so. We show how social norms against commodification limit the availability …

Behavioral Regulation Of Individual Ghg Emissions: Reconceiving The Internal/Social Divide In Norm Theory, Alex Geisinger

Alex Geisinger

The demand for smarter regulation with low enforcement costs, coupled with the compelling argument that individual behavior must be regulated in any comprehensive response to climate change, has increased the desire for new forms of behavioral regulation. One of these new behavioral tools is normative regulation. Normative regulation harnesses the internal and social enforcement mechanisms of community norms as a means of changing individual behavior. Normative regulation holds significant promise for influencing many different types of behaviors—including energy conservation. However, the use of normative regulation is hampered by a well-entrenched belief in legal scholarship that social enforcement is available only …

Antitrust And Information Technologies, Herbert Hovenkamp

Herbert Hovenkamp

Technological change strongly affects the use of information to facilitate anticompetitive practices. The effects result mainly from digitization and the many products and processes that it enables. These technologies also account for a significant portion of the difficulties that antitrust law encounters when its addresses intellectual property rights. Changes in the technologies of information also affect the structures of certain products, in the process either increasing or decreasing the potential for competitive harm. For example, digital technology affects the way firms exercise market power, but it also imposes serious measurement difficulties. In purely digital markets intellectual property rights are crucial …

Employee Say-On-Pay: Monitoring And Legitimizing Executive Compensation, Robert J. Rhee

Robert Rhee

This Article proposes the adoption of employee say-on-pay in corporate governance. The board would benefit from an advisory vote of employees on executive compensation. This proposal is based on two considerations: firstly, the benefits of better monitoring and reduced agency cost in corporate governance; secondly, the link between executive compensation and income inequity and wealth disparity in the broader economy. If adopted, shareholders and employees would monitor executive performance and pay at different levels. Shareholders through the market mechanism can only monitor at the level of public disclosures and share price. Employees can leverage private information. Non-executive managers in particular …

Dirty Debts Sold Dirt Cheap, Dalie Jimenez

Dalie Jimenez

More than 77 million Americans have a debt in collections. Many of these debts will be sold to debt buyers for pennies, or fractions of pennies, on the dollar. This Article details the perilous path that debts travel as they move through the collection ecosystem. Using a unique dataset of 84 consumer debt purchase and sale agreement, it examines the manner in which debts are sold, oftentimes as simple data on a spreadsheet, devoid of any documentary evidence. It finds that in many contracts, sellers disclaim all warranties about the underlying debts sold or the information transferred. Sellers also sometimes …

Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Riz Mokal

Riz Mokal

Assessing Racial Disparities In Parole Release, Stéphane Mechoulan, Nicolas Sahuguet

Stéphane Mechoulan

No abstract provided.