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Articles 121 - 150 of 297
Full-Text Articles in Law and Economics
Letters Of Credit As Signals: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Clayton P. Gillette
Letters Of Credit As Signals: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Clayton P. Gillette
Michigan Law Review
Why would buyers and sellers transact with each other through a third party that charges a significant fee for its services and that typically is authorized to make payment notwithstanding noncompliance with the very prerequisites that it has been engaged to monitor? This is the puzzle that Ronald Mann's provocative and nuanced article purports to explain. Under the traditional story about the esoteric world of letters of credit, these transactions allow distant buyers and sellers to circumvent obstacles that would otherwise frustrate long-distance transactions. The traditional story explains that these credits induce buyers to approve payment prior to receiving conforming …
Informality As A Bilateral Assurance Mechanism: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Avery Wiener Katz
Informality As A Bilateral Assurance Mechanism: Comments On Ronald Mann's 'The Role Of Letters Of Credit In Payment Transactions', Avery Wiener Katz
Michigan Law Review
Ronald Mann's study of documentary defects in the presentation of commercial letters of credit is a valuable contribution to the commercial law literature in at least three respects. First, it offers a detailed and thorough empirical survey of an important though specialized aspect of commercial practice. Mann collected and coded a data sample of 500 randomly selected letter-of-credit transactions, personally evaluating each transaction to determine whether the documentary presentation by the beneficiary of the letter of credit (i.e., the seller) complied with the letter's formal terms. Then, for each case in which he found one or more documentary defects, Mann …
A Public Choice Approach To Private Ordering: Rent-Seeking At The World's First Futures Exchange: Comments On Mark West's 'Private Ordering At The World's First Futures Exchange', Omri Yadlin
Michigan Law Review
The literature on private ordering systems has expanded exponentially over the last decade. Yet, very few scholars have actually attempted to define the term "private ordering" - a failure that sometimes leads to confusion. Some scholars identify private ordering with non-state ordering. According to this view, the private legal systems Robert Ellickson, Lisa Bernstein, McMillan & Woodruff, Mark West, and others have investigated are "private" simply because their norms are not manufactured or enforced by the state. The alternative view emphasizes the decentralized feature of private ordering systems. Robert Ellickson, for example, studied "how people manage to interact to mutual …
Rethinking Relationship-Specific Investments: Subcontracting In The Japanese Automobile Industry, Yoshiro Miwa, J. Mark Ramseyer
Rethinking Relationship-Specific Investments: Subcontracting In The Japanese Automobile Industry, Yoshiro Miwa, J. Mark Ramseyer
Michigan Law Review
Longer ago than either of us cares to remember, one of us attended junior high in Tokyo. On Saturdays, he worked at a printed circuit factory. Or maybe "factory" makes it all sound too grand. A small building in back of a gas station, it had three or four punch presses. The "president" supervised matters (though he actually spent more time hanging out at the gas station), together with a sidekick who did assorted odd jobs besides. Several middle-aged women with no apparent technical education or skill ran the presses. The junior high kid spent his time trimming the sheets …
Reaffirming Relationship-Specific Investments: Comments On Miwa And Ramseyer's 'Rethinking Relationship-Specific Investments', Scott E. Masten
Reaffirming Relationship-Specific Investments: Comments On Miwa And Ramseyer's 'Rethinking Relationship-Specific Investments', Scott E. Masten
Michigan Law Review
I, too, have a work-related anecdote from my youth to relate. During one summer break from college, I had a job on the night shift in the canning plant of a Coca-Cola bottling franchisee in my hometown in New Hampshire. The process of canning tonic (known as "soda" outside of New England) consisted of three stages, beginning with the fabrication of cans in a room at one end of the building and concluding with the filling and sealing operations in a room at the other end. In between, workers in a third room inspected cans as they arrived by conveyor …
Commercial Norms And The Fine Art Of The Small Con: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Douglas G. Baird
Commercial Norms And The Fine Art Of The Small Con: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Douglas G. Baird
Michigan Law Review
The standard battle-of-the-forms story, often rehearsed in the classroom, is one in which merchants try to take advantage of their contracting opposites. A seller wants to escape the obligations that come with implied terms and seeks to disclaim them in its acknowledgment form. Its buyers do not realize they have been had until after the goods fail. Only then do they read the seller's form and discover that they are without remedy. Conspicuously absent in Dan Keating's fine article, however, is any evidence that supports this story. Some of his merchants talk about putting favorable terms in their forms, but …
The Sound Of One Form Battling: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Richard Craswell
The Sound Of One Form Battling: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Richard Craswell
Michigan Law Review
Daniel Keating has provided a thoughtful and useful study of the way that businesses form contracts. In particular, he has given us a good deal of data concerning the problem known as the "battle of the forms." Commercial lawyers have, of course, been wrangling over this problem for decades, so it is no small accomplishment to be able to offer a useful contribution. In Part I below, I describe more precisely just what Keating's data does and does not illuminate. Parts II and III then focus on a particular contracting practice that Keating has identified: the practice of getting both …
The Limits Of Empiricism: What Facts Tell Us: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Dennis Patterson
The Limits Of Empiricism: What Facts Tell Us: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Dennis Patterson
Michigan Law Review
The conventional legal academic wisdom about empiricism is that empirical information is by-and-large a good thing, that we need more of it, and that empirical analysis is preferable to many scholarly alternatives now on offer in the law review literature. I do not dispute the proposition that, all things considered, empirical information is a good thing. What I question is the notion that empirical information necessarily leads to knowledge. Put differently, it is one thing to marshal the facts, and another to know what to make of the facts. I shall raise these points both in a general way and …
On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Avery Wiener Katz
On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Avery Wiener Katz
Michigan Law Review
As Daniel Keating's principal article attests, the literature on U.C.C. section 2-207 and the "battle of the forms" is both vast and intricate. 1 That fact, together with the distinguished array of commentators assembled here, makes it unlikely that I will be able to say anything substantially original on that subject. Accordingly, in the spirit of this overall symposium, I will focus the bulk of my remarks not on the substantive issues raised by Keating's article, but on his methodology. In particular, I will suggest that Keating's empirical method - the free-form, oral interview conducted personally by the principal researcher …
Private Order Under Dysfunctional Public Order, John Mcmillan, Christopher Woodruff
Private Order Under Dysfunctional Public Order, John Mcmillan, Christopher Woodruff
Michigan Law Review
Businesspeople need contractual assurance. Most transactions are less straightforward than a cash sale of an easily identifiable item. Buyers need assurance of the quality of what they are purchasing, and sellers need assurance that bills will be paid. The legal system may not always be available to provide contractual assurance - and when the law is dysfunctional, private order might arise in its place. Many developing and transition economies have dysfunctional legal systems, either because the laws do not exist or because the machinery for enforcing them is inadequate. In such countries, bilateral relationships, communal norms, trade associations, or market …
Deterrence And Damages: The Multiplier Principle And Its Alternatives, Richard Craswell
Deterrence And Damages: The Multiplier Principle And Its Alternatives, Richard Craswell
Michigan Law Review
One purpose of fines and damage awards is to deter harmful behavior. When enforcement is imperfect, however, so the probability that any given violation will be punished is less than 100%, the law's deterrent effect is usually thought to be reduced. Thus, it is often said that the ideal penalty (insofar as deterrence is concerned) equals the harm caused by the violation multiplied by one over the probability of punishment. For example, if a violation faces only a 25% (or one-in-four) chance of being punished, on this view the optimal penalty would be four times the harm caused by the …
The Assault That Failed: The Progressive Critique Of Laissez Faire, Richard A. Epstein
The Assault That Failed: The Progressive Critique Of Laissez Faire, Richard A. Epstein
Michigan Law Review
Robert Lee Hale has long been an intellectual thorn in the side of the defenders of laissez faire, among whom I am quite happy to count myself. As Barbara Fried notes in her meticulous study of Hale's work, his name is hardly a household word. But both directly and indirectly, his influence continues to be great. His best known work is perhaps Coercion and Distribution in a Supposedly Non-Coercive State, published in 1923 as a review of Thomas Nixon Carver's Principles of National Economy, itself a defense of the classical principles of laissez faire, remembered today only for the drubbing …
Subversive Thoughts On Freedom And The Common Good, Larry Alexander, Maimon Schwarzschild
Subversive Thoughts On Freedom And The Common Good, Larry Alexander, Maimon Schwarzschild
Michigan Law Review
Richard Epstein is a rare and forceful voice against the conventional academic wisdom of our time. Legal scholarship of the past few decades overwhelmingly supports more government regulation and more power for the courts, partly in order to control businesses for environmental and other reasons, but more broadly in hopes of achieving egalitarian outcomes along the famous lines of race, gender, and class. Epstein is deeply skeptical that any of this is the shining path to a better world. Epstein's moral criterion for evaluating social policy is to look at how fully it allows individual human beings to satisfy their …
A New Economic Theory Of Regulation: Rent Extraction Rather Than Rent Creation, Douglas Ginsburg
A New Economic Theory Of Regulation: Rent Extraction Rather Than Rent Creation, Douglas Ginsburg
Michigan Law Review
Once upon a time, people believed that the government regulated various indus tries in "the public interest." The idea was that certain conditions, such as "natural monopoly" or the ability to externalize significant costs, caus ed markets to fail and governments to step in to correct that failure. Econmnic regulation predicated upon market failure can be dated conveniently to the Interstate Commerce Act of 1887, in which the Congress established the Inters tate Commerce Commission to regulate railroads in the interests of shippers, principally farmers and small businesses. The legal notion of "affectation with the public interest" dates back much …
Lawyers, Law, And Contract Formation: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Robert K. Rasumssen
Lawyers, Law, And Contract Formation: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Robert K. Rasumssen
Michigan Law Review
Attempting to infuse the austerity of theory with a dose of reality, an intrepid group of legal scholars has left the security of the office and ventured into the work-a-day world of commercial practices. The information that they have gathered and are sharing with the rest of us is furthering our understanding of the interaction between commercial law and commercial practice. Embedded in much of the research they have generated is the not-so-flattering conclusion that law professors suffer from a self-serving bias. Those of us in the academy engage in the assumption, often unstated or even unacknowledged, that the law …
Limiting Patentees' Market Power Without Reducing Innovation Incentives: The Perverse Benefits Of Uncertainty And Non-Injunctive Remedies, Ian Ayres, Paul Klemperer
Limiting Patentees' Market Power Without Reducing Innovation Incentives: The Perverse Benefits Of Uncertainty And Non-Injunctive Remedies, Ian Ayres, Paul Klemperer
Michigan Law Review
Uncertainty and delay in patent litigation may have unforeseen virtues. The combination of these oft-criticized characteristics might induce a limited amount of infringement that enhances social welfare without reducing (or without substantially reducing) the profitability of the patentee. Patent infringement is generally viewed as socially inefficient because infringement reduces the patentee's ex ante incentive to innovate. Limited amounts of infringement combined with increased patent duration, however, can substantially reduce the distortionary ex post effects of supracompetitive pricing without reducing the patentee's ex ante incentives to innovate. Indeed, this Article derives a legal regime that preserves the incentive to innovate by …
Exit And Voice In The Age Of Globalization, Eyal Benvenisti
Exit And Voice In The Age Of Globalization, Eyal Benvenisti
Michigan Law Review
The "globalization" of commerce provides ever-growing opportunities for producers, employers, and service providers to shop the globe for more amenable jurisdictions. While they enjoy a "race to the top," an international "race to the bottom," spawned by decreasing relocation costs, threatens to compromise the achievements of the welfare state and lower standards of consumer protection. National governments, weakened by competition that entails leaner budgets, find it increasingly difficult to cooperate in the appropriation of crucial shared natural resources, seriously endangering these assets while damaging the environment. Not only does the growing global competition create both efficiency losses and social-welfare problems, …
The Efficient Norm For Corporate Law: A Neotraditional Interpretation Of Fiduciary Duty, Thomas A. Smith
The Efficient Norm For Corporate Law: A Neotraditional Interpretation Of Fiduciary Duty, Thomas A. Smith
Michigan Law Review
To economically oriented corporate law professors, distinguishing between directors' fiduciary duty to shareholders and a duty to the corporation1 itself smacks of reification - treating the fictional corporate entity as if it were a real thing. Now the orthodox view among corporate law scholars is that the corporate fiduciary duty is a norm that requires firm managers to "maximize shareholder value." Giving the corporation itself any serious role in the analysis of fiduciary duty, the thinking goes, obscures scientific insight with bad legal metaphysics. Some recent scholarship and legislation, such as constituency statutes, have challenged this "shareholder primacy" view. Contestants …
Private Ordering At The World's First Futures Exchange, Mark D. West
Private Ordering At The World's First Futures Exchange, Mark D. West
Michigan Law Review
Modern derivative securities - financial instruments whose value is linked to or "derived" from some other asset - are often sophisticated, complex, and subject to a variety of rules and regulations. The same is true of the derivative instruments traded at the world's first organized futures exchange, the Dojima Rice Exchange in Osaka, Japan, where trade flourished for nearly 300 years, from the late seventeenth century until shortly before World War II. This Article analyzes Dojima's organization, efficiency, and amalgam of legal and extralegal rules. In doing so, it contributes to a growing body of literature on commercial self-regulation while …
The Political Economy Of Statutory Reach: U.S. Disclosure Rules In A Globalizing Market For Securities, Merritt B. Fox
The Political Economy Of Statutory Reach: U.S. Disclosure Rules In A Globalizing Market For Securities, Merritt B. Fox
Michigan Law Review
This Article addresses the appropriate reach of the U.S. mandatory securities disclosure regime. While disclosure obligations are imposed on issuers, they are triggered by transactions:- the public offering of, or public trading in, the issuers' shares. Share transactions are taking o n an increasingly transnational character. The barriers to a truly global market for equities continue to lessen: financial information is becoming increasingly globalized and it is becoming increasingly inexpensive and easy to effect share transactions abroad. There are approximately 41,000 issuers of publicly traded shares in the world. For an ever larger portion of these issuers, there will be …
Lochner In Cyberspace: The New Economic Orthodoxy Of "Rights Management", Julie E. Cohen
Lochner In Cyberspace: The New Economic Orthodoxy Of "Rights Management", Julie E. Cohen
Michigan Law Review
Ninety-three years ago, in Lochner v. New York, the Supreme Court struck down a maximum-working-hours law for bakers as an impermissible invasion of employer-employee liberty of contract and, by implication, of the employer's property rights in his business. Lochner came to symbolize, and was vilified for, a vision of state power as rigidly circumscribed by the operation of judicially-determined laws of social ordering. By the late 1930s, the Court had changed course and accepted that the states' police power - or, in the case of Congress, the commerce power - encompassed even protective regulation of the parameters of the private …
Competition And Cooperation, Saul Levmore
Competition And Cooperation, Saul Levmore
Michigan Law Review
When do competitors share assets and other opportunities for mutual gain? Conversely, when do they prefer to distinguish themselves by establishing firm boundaries that produce a minimum of sharing or cooperation despite potential gains from trade? Why, for example, do competing law schools in a single city cooperate so little in offering joint programs and economizing on certain costs even as they use the same casebooks in their courses and borrow from one another's libraries? Why do two competing auto makers rarely sell one another components or use the same expert advertising agency or law firm but then quite often …
Public Choice Revisited, Daniel A. Farber, Philip P. Frickey
Public Choice Revisited, Daniel A. Farber, Philip P. Frickey
Michigan Law Review
Although not the first book on public choice_ for a legal audience, Max Stearns's Public Choice and Public Law is the first full-scale textbook for law school use. An ambitious undertaking by a rising young scholar, the book provides law students with a comprehensive introduction to public choice. Public choice - essentially, the application of economic reasoning to political institutions - has become a significant aspect of public law scholarship. Indeed, in his Foreword, Saul Levmore hails public choice as "[t]he most exciting intellectual development in law schools in the last decade" (p. xi). Be that as it may, the …
Public Choice Theory And The Fragmented Web Of The Contemporary Administrative State, Jim Rossi
Public Choice Theory And The Fragmented Web Of The Contemporary Administrative State, Jim Rossi
Michigan Law Review
Since World War II, public choice theory - defined broadly as the application of the assumptions and methodology of microeconomics to describe or predict the way public officials exercise power - has grown from a fledgling movement, gaining mainstream acceptance and respect for its insights into voting behavior, judicial decisionmaking, and other public actions. Although a theory first explored by economists and political scientists, public choice's normative insights have earned credibility in recent years in academic legal literature. Public choice's acceptance in the law school curriculum is demonstrated by the recent publication of course material on the topic. However, despite …
The Future Of Enterprise Organizations, Eric W. Orts
The Future Of Enterprise Organizations, Eric W. Orts
Michigan Law Review
Both the law and business schools at the University of Michigan offer a basic course in Enterprise Organization. This tradition owes to the influence of Professor Alfred Conard, one of the leading scholars of his generation, who taught during most of his career at the University of Michigan Law School. The tradition persists in part because Enterprise Organization suggests an appropriately broad view of its topic, unlike more common course titles such as Corporations or Business Associations. We live in a world populated not only by people but also the organized legal entities we create. Business firms and nonprofit organizations …
The Political Economy Of Cooperative Federalism: Why State Autonomy Makes Sense And "Dual Sovereignty" Doesn't, Roderick M. Hills Jr.
The Political Economy Of Cooperative Federalism: Why State Autonomy Makes Sense And "Dual Sovereignty" Doesn't, Roderick M. Hills Jr.
Michigan Law Review
It is commonplace to observe that "dual federalism" is dead, replaced by something variously called "cooperative federalism," "intergovernmental relations," or "marble-cake federalism." According to this conventional wisdom, state and local officials do not enforce merely their own laws in their distinct policymaking sphere. Rather, as analyzed in a voluminous literature, state and local governments also cooperate with the federal government in many policymaking areas, ranging from unemployment insurance to historic preservation. These nonfederal governments help implement federal policy in a variety of ways: by submitting implementation plans to federal agencies, by promulgating regulations, and by bringing administrative actions to enforce …
Response: Between Economics And Sociology: The New Path Of Deterrence, Dan M. Kahan
Response: Between Economics And Sociology: The New Path Of Deterrence, Dan M. Kahan
Michigan Law Review
The explosive collision of economics and sociology has long illuminated the landscape of deterrence theory. It is a debate as hopeless as it is spectacular. Economics is practical but thin. Starting from the simple premise that individuals rationally maximize their utility, economics generates a robust schedule of prescriptions - from the appropriate size of criminal penalties,1 to the optimal form of criminal punishments, to the most efficient mix of private and public investments in deterrence. Yet it is the very economy of economics that ultimately subverts it: its account of human motivations is too simplistic to be believable, and it …
Deterrence's Difficulty, Neal Kumar Katyal
Deterrence's Difficulty, Neal Kumar Katyal
Michigan Law Review
We all crave simple elegance. Physicists since Einstein have been searching for a grand unified theory that will tie everything together in a simple model. Law professors have their own grand theories - law and economics's Coase Theorem and constitutional law's Originalism immediately spring to mind. Criminal law is no different, for the analogue is our faith in deterrence - the belief that increasing the penalty on an activity will mean that fewer people will perform it. This theory has much to commend it. After all, economists and shoppers have known for ages that a price increase in a good …
Securities Disclosure In A Globalizing Market: Who Should Regulate Whom, Merritt B. Fox
Securities Disclosure In A Globalizing Market: Who Should Regulate Whom, Merritt B. Fox
Michigan Law Review
One of the most dramatic examples of increasing interaction across national boundaries in recent years has been the burgeoning volume of transnational transactions in corporate equities. Most developed capitalist countries impose affirmative obligations on issuers of corporate equity to disclose certain information about themselves. While these obligations are imposed on issuers, they are triggered by transactions. The growth in transnational transactions is thus increasingly raising difficult issues concerning the reach of differing national regimes. Given the magnitude of legal resources devoted to compliance with such disclosure regulations, they promise to feature prominently in the larger discussion of the role of …
The Immovable Object Versus The Irresistable Force: Rethinking The Relationship Between Secured Credit And Bankruptcy Policy, Lawrence Ponoroff, F. Stephen Knippenberg
The Immovable Object Versus The Irresistable Force: Rethinking The Relationship Between Secured Credit And Bankruptcy Policy, Lawrence Ponoroff, F. Stephen Knippenberg
Michigan Law Review
The last leaf in O. Henry's classic short story was hanging by a delicate thread, but it never fell. It never fell, of course, because it wasn't real; Old Behrman had painted it (and caught pneumonia for his trouble) in order to give Johnsy the will to live. The Supreme Court's decision in Dewsnup v. Timm is also hanging by a thread, following a barrage of scholarly criticism and more than four years of limiting case law and legislative incursions on the case's core conceptual rationale. But the holding in Dewsnup, unlike the last leaf, is very real. It has …