Law and Economics Commons^™

Beyond Abstraction: The Law And Economics Of Copyright Scope And Doctrinal Efficiency, Matthew Sag

Faculty Articles

Uncertainty as to the optimum extent of protection generally limits the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. This Article explores the relationship between copyright scope, doctrinal efficiency, and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law.

The usefulness of applying this framework in either rejecting or improving doctrinal recommendations is illustrated with reference to the predominant law and economics theories of fair use. The metric-driven analysis adopted in this Article demonstrates the general robustness of the market-failure approach to …

The Empirical Roots Of The 'Regulatory Reform' Movement: A Critical Appraisal, Richard Parker

Faculty Articles and Papers

Over the past few years the debate over the economic rationality of health, safety and environmental regulation has morphed into a sustained controversy over the tests and methods by which that rationality is judged. Critics have argued that the main regulatory scorecards which comprise much of the empirical foundation for the regulatory reform movement are fundamentally flawed because they: alter agency estimates of future costs and benefits; disregard most uncertainties; and misrepresent ex ante guesses as the costs and benefits of regulation. They also zero out whole categories of benefits that cannot be quantified and/or monetized even when the benefits …

Foreword: Law, Business, And Economic Development - Current Issues And Age-Old Battles, Eric J. Gouvin

Faculty Scholarship

On March 24, 2006, the Western New England College School of Law and School of Business jointly hosted the First Annual Academic Conference sponsored by the Western New England College Law and Business Center for Advancing Entrepreneurship. The Conference capped a year of exciting developments at the Law and Business Center, which is the College's contribution to the entrepreneurship infrastructure in the greater Springfield, Massachusetts area. Economists have understood for some time that small businesses are an important engine of economic development and vitality. Across the United States, 25 million small businesses employ more than half the country's workers, create …

Working America, Lauren Snyder

NYLS Law Review

No abstract provided.

Legal Ground Rules In Coordinated And Liberal Market Economies, Katharina Pistor

Faculty Scholarship

This chapter seeks to explain the affinity between the nature of economic systems: coordinated market economies (CMEs) and liberal market economies (LMEs) on the one hand, and legal origin (civil vs common law systems) on the other. It starts with the simple observation that LMEs tend to be common law jurisdictions, and CMEs civil law jurisdictions. It proposes that the affinity between economic and legal system offers important insights into the foundations of different types of market economies and, in particular, differences in the scope of the state vs the powers of the individual. The main argument is that the …

Review Of Optional Law: The Structure Of Legal Entitlements, Omri Ben-Shahar

Reviews

The concept of "property rights" plays a prominent role in economic theory. Economists have been studying how property rights emerged as a system of allocation, replacing regimes of open access and lack of legal order. Property rights are regularly viewed by economists as the primary policy tool to control the incentives to invest in new assets (e.g., in information) and to maintain existing assets (e.g., fisheries) when contracts are incomplete. Property rights are the endowments that individuals exchange in a market economy, the equity that investors trade in financial markets. Property rights are a basic building block in economics.

Trade, Law And Product Complexity, Katharina Pistor, Daniel Berkowitz, Johannes Moenius

Faculty Scholarship

How does the quality of national institutions that enforce the rule of law influence international trade? Anderson and Marcouiller argue that bad institutions located in the importer’s country deter international trade because they enable economic predators to steal and extort rents at the importer’s border. We complement this research and show how good institutions located in the exporter’s country enhance international trade, in particular, trade in complex products whose characteristics are difficult to fully specify in a contract. We argue that both exporter and importer institutions affect international as well as domestic transaction costs in complex and simple product markets. …

Don’T Mourn – Reorganize! An Introduction To The Next Wave Organizing Symposium, Seth D. Harris

NYLS Law Review

No abstract provided.

Organizations, Movements, And Networks, Charles Heckscher

NYLS Law Review

No abstract provided.

Renewing And Maintaining Union Vitality: New Approaches To Union Growth, Fred Feinstein

NYLS Law Review

No abstract provided.

Overcoming Obstacles To Worker Representation: Insights From The Temporary Agency Workforce, Danielle D. Van Jaarsveld

NYLS Law Review

No abstract provided.

New Institutions For Worker Representation In The United States: Theoretical Issues, Alan Hyde

NYLS Law Review

No abstract provided.

Next Wave Organizing And The Shift To A New Paradigm Of Labor Law, Jim Pope

NYLS Law Review

No abstract provided.

The Immigrant Workers Project Of The Afl-Cio, Rosanna M. Kreychman, Heather H. Volik

NYLS Law Review

No abstract provided.

Working Today, Sarah N. Kelly, Christine Tramontano

NYLS Law Review

No abstract provided.

The Workplace Project, Emily Stein

NYLS Law Review

No abstract provided.

Canadian Softwood Lumber And “Free Trade” Under Nafta, Sydney M. Cone Iii

NYLS Law Review

No abstract provided.

The Law And Sociology Of Boilerplate, Todd D. Rakoff

Michigan Law Review

In my view, the scholarship presented at this symposium demonstrates that, in order to analyze form contracts and boilerplate successfully, one must carry out a set of operations that embodies an approach I will call law and sociology. But I presume I was invited to be a commentator at this conference on boilerplate not because the article I wrote on one branch of the subject awhile back exemplified this methodological approach, but because it took a rather strong substantive position. And so I think I ought first to say a brief word about that. The article in question concerned contracts …

Ranks And Rivals: A Theory Of Competition, Avishalom Tor, Stephen M. Garcia, Richard Gonzalez

Journal Articles

Social comparison theories typically assume a comparable degree of competition between commensurate rivals on a mutually important dimension. In contrast, however, the following set of studies reveals that the degree of competition between such rivals depends on their proximity to a standard. Studies 1-3 test the prediction that individuals become more competitive and less willing to maximize profitable joint gains when they and their commensurate rivals are highly ranked (e.g., #2 vs. #3) than when they are not (e.g., #202 vs. #203). Studies 4-6 then generalize these findings, showing that the degree of competition increases not only for high ranks …

The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett

Journal Articles

This Article challenges a foundational assumption about eminent domain - namely, that owners are systematically undercompensated because they receive only fair market value for their property. The Article shows that, in fact, scholars have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of eminent domain. The Article examines three ways that Takers (i.e., non-judicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high-subjective-value properties. Second, Takers frequently must pay more compensation in the form of relocation assistance. Third, Takers and property owners …

State Action Antitrust Exemption Collides With Deregulation: Rehabilitating The Foreseeability Doctrine, Elizabeth Trujillo

Faculty Scholarship

The state action antitrust exemption, also known as the state action immunity doctrine, is used by antitrust defendants to shield themselves against antitrust liability in instances where their anticompetitive conduct, if not under the aegis of state policy, would have been deemed a violation of federal antitrust law. Under the Midcal test, a court may grant state action immunity to a defendant if it is proven that the alleged anticompetitive conduct is pursuant to a clearly-articulated state policy and has been actively supervised by the state.

This paper evaluates the role, function, and definition of the state action exemption in …

"We Shall Not Be Moved": Urban Communities, Eminent Domain And The Socioeconomics Of Just Compensation, James J. Kelly Jr.

Journal Articles

If eminent domain is to serve true community development, statutory reforms must limit its propensity to abuse while still preserving its effectiveness. The first part of this article offers a normative legal theory of eminent domain as constrained by both the availability of alternative means of achieving public objectives and the inability of some condemnees to be made whole by cash compensation. The consideration of the land needs of both the condemnor and the condemnee is crucial to the respective evaluations of public use and just compensation as limitations on eminent domain. In the context of urban redevelopment, the theory …

Public Law Limitations On Privatization Of Government Functions, Paul R. Verkuil

Articles

The privatization movement is on the verge of succeeding too well. The fact that some of what government does can be done better and cheaper by the private sector has gained such momentum that the public sector is sometimes seen as redundant or irrelevant. But the economist's make-or-buy choice simply fails to capture the full range of responsibilities that government faces in deciding whether to outsource a particular function to private contractors.

This Article illuminates the public dimension of government functions. By exploring the public-private distinction and relating it to constitutional, statutory, and administrative requirements, it structures an argument that …

Behavioral Genetics And Crime, In Context, Owen D. Jones

Vanderbilt Law School Faculty Publications

This Article provides an introduction to some of the key issues at the intersection of behavioral genetics and crime.

It provides, among other things, an overview of the emerging points of consensus, scientifically, on what behavioral genetics can and cannot tell us about criminal behavior. It also discusses a variety of important implications (as well as complexities) of attempting to use insights of behavioral genetics in legal contexts.

The Unexpected Value Of Litigation: A Real Options Perspective, Joseph A. Grundfest, Peter H. Huang

Publications

In this Article, we suggest that litigation can be analyzed as though it is a competitive research and development project. Developing this analogy, we present a two-stage real option model of the litigation process that involves sequential information revelation and bargaining over the surplus generated by early settlement. Litigants are risk-neutral and have no private information. The model generates results that, we believe, have analytic and normative significance for the economic analysis of litigation

From an analytic perspective, we demonstrate that negative expected value (NEV) lawsuits are analogous to out of the money call options held by plaintiffs and that …

Property Rules And Liability Rules, Once Again, Keith N. Hylton

Faculty Scholarship

In recent years, new articles presenting rigorous analyses of bargaining incentives have overturned some of the fundamental claims made by Calabresi and Melamed in their seminal article on property rules and liability rules published in 1972. In particular, the proposition that property rules are socially preferable to liability rules when transaction costs are low appears to be either no longer valid or severely weakened under the new analyses. This paper reexamines the property rule versus liability rule question in light of the contributions of the recent bargaining theory literature. In contrast to this literature, I find that the fundamental propositions …

The Digital Vat (D-Vat), Richard Thompson Ainsworth

Faculty Scholarship

The most sustained U.S. tax policy debate of the past 30 years concerns proposals to replace and/ or supplement the Federal Income Tax with a consumption tax. Public finance economists and legal tax policy scholars challenged and defended the current income tax system on grounds of fairness, efficiency, and simplicity.

This debate over revamping the national taxing scheme has not been argued purely in the academic forum. Concrete legislative proposals have been advanced for a national retail sales tax, a European-style Value Added Tax, as well as a whole host of what David Bradford calls "the two-tiered consumption taxes."

From …

Boilerplate Today: The Rise Of Modularity And The Waning Of Consent, Margaret Jane Radin

Michigan Law Review

Thanks to the vision of Omri Ben-Shahar and the excellence of the scholars contributing to this symposium, students of the law of commercial exchange transactions will now understand how important and interesting, and indeed exciting, boilerplate really is. The various presentations are so rich that my assigned task of commentary cannot approach an adequate summation. Instead of attempting such a task, therefore, I will take up a slightly different one. My commentary will relate some of the ideas presented in the symposium to two themes that I think are significant for the groundwork of contract today: the growing modularity of …

The H’Aint In The (School) House: The Interest Convergence Paradigm In State Legislatures And School Finance Reform, Bryan Adamson

Faculty Articles

The purpose of this essay is to examine recent school funding litigation to illuminate the interest convergence paradigm, using the school finance reform controversy in Ohio as an example. Part I describes how the school finance reform debate is an extension of our nation's desegregation history. Part II looks at the school funding controversy in Ohio, highlighting legislator and citizen attitudes toward school finance litigation and public school funding along racial and geographic lines. Part III identifies six interests which emerge in the school funding dispute, arguing that these interests must be taken into account by legislators in crafting school …

The Entrepreneur And The Theory Of The Modern Corporation, Charles O'Kelley

Faculty Articles

The foremost description of the classic entrepreneur, immediately prior to the Great Depression and now, was presented by Frank Knight in his seminal work, Risk, Uncertainty, and Profit. In this Article, I will explicate Knight's theory of the entrepreneur and show how it relates to both the Berle-Means Paradigm and the nexus-of-contracts theory of the corporation. My effort here is in part intellectual history and in part the tentative beginnings of a new positive account of the corporation. In the latter regard, this Article takes only the first step in what may prove a quite exhaustive effort to re-plow the …