Law and Economics Commons^™

Comparative Antitrust Federalism: Review Of Cengiz, Antitrust Federalism In The Eu And The Us, Herbert J. Hovenkamp

All Faculty Scholarship

This brief essay reviews Firat Cengiz’s book Antitrust Federalism in the EU and the US (2012), which compares the role of federalism in the competition law of the European Union and the United States. Both of these systems are “federal,” of course, because both have individual nation-states (Europe) or states (US) with their own individual competition provisions, but also an overarching competition law that applies to the entire group. This requires a certain amount of cooperation with respect to both territorial reach and substantive coverage.

Cengiz distinguishes among “markets,” “hierarchies,” and “networks” as forms of federalism. Markets are the least …

Antitrust And Nonexcluding Ties, Herbert J. Hovenkamp

All Faculty Scholarship

Notwithstanding hundreds of court decisions, tying arrangements remain enigmatic. Conclusions that go to either extreme, per se legality or per se illegality, invariably make simplifying assumptions that frequently do not obtain. For example, by ignoring double marginalization or tying product price cuts it becomes very easy to prove that a wide range of ties are anticompetitive. At the other extreme, by ignoring foreclosure possibilities one can readily conclude that ties are invariably benign.

Ties have historically been thought to produce two kinds of competitive harm: “leverage,” or extraction; and foreclosure, or exclusion. The two theories are not mutually exclusive. Indeed, …

Enfoques Teóricos De Las Reglas Por Defecto En El Derecho De Contratos: Complementariedades, Coincidencias Y Contradicciones, Daniel Monroy

Daniel A Monroy C

El artículo muestra una lectura crítica en lo que respecta a la noción, las funciones y el diseño de las reglas por defecto en el derecho de contratos a partir de tres enfoques teóricos a saber: la perspectiva jurídica tradicional; la visión del Análisis Económico del Derecho (AED) en su versión clásica y; el enfoque del denominado behavioral law and economics (BL&E). El documento destaca con particular atención que en lo correspondiente a la noción y las funciones de las reglas por defecto en el derecho de contratos, existe un alto nivel de coherencia entre la perspectiva jurídica tradicional por …

Neoclassical Labor Economics: Its Implications For Labor And Employment Law, Michael L. Wachter

All Faculty Scholarship

Whereas law and economics appears throughout business law, it never caught on in legal commentary about labor and employment law. A major reason is that the goals of the National Labor Relations Act (NLRA), the country’s foundational labor law, are at war with basic principles of economics. The lack of integration is unfortunate if understandable. Notwithstanding the NLRA’s normative goal to keep wages out of competition, economic analysis applies as centrally to labor markets as to any other market.

One of the NLRA’s primary goals is to equalize bargaining power. Its drafters envisioned achieving this goal through procedural and substantive …

The Striking Success Of The National Labor Relations Act, Michael L. Wachter

All Faculty Scholarship

Although often viewed as a dismal failure, the National Labor Relations Act (NLRA) has been remarkably successful. While the decline in private sector unionization since the 1950s is typically viewed as a symbol of this failure, the NLRA has achieved its most important goal: industrial peace.

Before the NLRA and the 1947 Taft-Hartley Amendments, our industrial relations system gave rise to frequent and violent strikes that threatened the nation’s stability. For example, in the late 1870s, the Great Railroad Strike spread throughout a number of major cities. In Pittsburg alone, strikes claimed 24 lives, nearly 80 buildings, and over 2,000 …

Competition And Innovation In Copyright And The Dmca, 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 …

The Nature Of Risk Preferences: Evidence From Insurance Choices, Levon Barseghyan, Francesca Molinari, Joshua C. Teitelbaum, Ted O'Donoghue

Georgetown Law Faculty Publications and Other Works

The authors use data on insurance deductible choices to estimate a structural model of risky choice that incorporates "standard" risk aversion (diminishing marginal utility for wealth) and probability distortions. They find that probability distortions--characterized by substantial overweighting of small probabilities and only mild insensitivity to probability changes--play an important role in explaining the aversion to risk manifested in deductible choices. This finding is robust to allowing for observed and unobserved heterogeneity in preferences. They demonstrate that neither Kőszegi-Rabin loss aversion alone nor Gul disappointment aversion alone can explain our estimated probability distortions, signifying a key role for probability weighting.

Basel Iii And Credit Risk Measurement: Variations Among G20 Countries, Matt Schlickenmaier

San Diego International Law Journal

Most countries require banks to hold extra capital to protect against unforeseen financial calamities; banks with riskier loans must hold more capital than those with safer loans. Basel II, a set of international banking standards, allows banks to measure a loan’s risk in different ways: some banks make their own judgments; others use outside agencies. The recent mortgage crisis prompted banks to reevaluate these methods, in part due to banks having failed to perceive the high level of risk inherent in securitized mortgages. The international community’s response was Basel III, an updated version of its previous standards. This Comment will …

Antitrust And The Costs Of Movement, Herbert J. Hovenkamp

All Faculty Scholarship

Antitrust is rightfully concerned about the structure of markets as well as the bargaining that occurs in them. As a result, the absolute cost of redeploying resources can be just as important as the transaction costs of arranging for their movement. This paper examines several broad themes in antitrust, considering the role of various assumptions about the costs of getting resources moved toward superior positions and the ability of the antitrust system to facilitate this movement. Part II very briefly examines structuralism as a theory underlying antitrust enforcement, particularly its assumptions about the difficulty and costs of moving resources. Harvard …

Competition In Information Technologies: Standards-Essential Patents, Non-Practicing Entities And Frand Bidding, Herbert J. Hovenkamp

All Faculty Scholarship

Standard Setting is omnipresent in networked information technologies. Virtually every cellular phone, computer, digital camera or similar device contains technologies governed by a collaboratively developed standard. If these technologies are to perform competitively, the processes by which standards are developed and implemented must be competitive. In this case attaining competitive results requires a mixture of antitrust and non-antitrust legal tools.

FRAND refers to a firm’s ex ante commitment to make its technology available at a “fair, reasonable and nondiscriminatory royalty.” The FRAND commitment results from bidding to have one’s own technology selected as a standard. Typically the FRAND commitment is …

International Financial Standards And The Explanatory Force Of Lex Mercatoria, Cally Jordan

Faculty Papers & Publications

The global financial crisis has cast a strong light on some hitherto obscure corners of the financial world, provoking an outpouring of calls for concerted international action. “Hard law” having disappointed, can “soft law”, in the form of international financial standards, substitute for traditional national legislation. This article examines some of the difficulties associated with the “international standards as soft law” discourse.

First of all, conceptual problems in the “soft law” discourse itself reveal profoundly different patterns of legal thought cutting across national boundaries, resulting in different understandings of international financial standards. Secondly, recent experience, over the past decade, with …

“Advancing With The Times: Industrial Design Protection In The Era Of Virtual Migration”, Horacio E. Gutiérrez

IP Theory

No abstract provided.

Farming Alone? What’S Up With The ‘‘C’’ In Community Supported Agriculture, Antoinette Pole, Margaret Gray

Department of Political Science and Law Faculty Scholarship and Creative Works

This study reconsiders the purported benefits of community found in Community Supported Agriculture (CSA). Using an online survey of members who belong to CSAs in New York, between November and December 2010, we assess members’ reasons for joining a CSA, and their perceptions of community within their CSA and beyond. A total of 565 CSA members responded to the survey. Results show an overwhelming majority of members joined their CSA for fresh, local, organic produce, while few respondents joined their CSA to build community, meet like-minded individuals or share financial risk with farmers. Members reported that they do not derive …

Rethinking Microfinance, Lan Cao

Faculty Publications

No abstract provided.

Is Greed Good? A Catholic Perspective On Modern Usury, William M. Woodyard, Chad G. Marzen

Brigham Young University Journal of Public Law

No abstract provided.

Victimización Y Justicia Por Mano Propia En Uruguay, Maximo Rossi, Fernando Borraz, Cecilia Chouhy

Maximo Rossi

This article analyzes the attitude of the Uruguayans towards the subjection to the law in the prosecution and punishment of offenders. Specifically, it addresses the approval of people taking justice into their own hands and justification for police action outside the law when capturing delinquents. The LAPOP database (Latin American Public Opinion Project, Vanderbilt University) conducted in 2008 is used for this purpose. Analyzing probit estimates, it is observed that the justification of people taking justice into their own hand is related to the respondent’s experience and situation. Having been victimized in recent months, feeling unsafe in their neighborhood and …

The Fed’S New Model Of Supervision For “Large Complex Banking Organizations”: Coordinated Risk-Based Supervision Of Financial Multinationals For International Financial Stability, Cynthia C. Lichtenstein

Cynthia C. Lichtenstein

Large internationally active financial institutions, in particular multinational banks, have the capacity to create profound disturbances in the globalized financial markets in the event of failure. For that reason, these entities are supervised and examined in a manner that is completely different than the ordinary business corporation. This piece describes the new methodology that has been developed by the United States' central bank, the Board of Governors of the Federal Reserve System or "the Fed" for short, since 1995, for examining what the Fed calls "large complex banking organizations" or LBCOs and indicates how the system in fact carries out …

Los Acuerdos De Libre Comercio Norte-Sur Desde La Perspectiva Del Análisis Económico Del Derecho De Los Contratos, Iván A. Rojas V, José Manuel Alvarez

Iván Rojas V

The Female-Firm Under-Performance Hypothesis And Gender Disparity In The Laws, Mohammad Amin

Mohammad Amin

Using firm-level data on developing countries, the present paper explores and extends the well-known female-firm under-performance hypothesis. Using firm-size as the measure of performance, we contribute to the literature in three important ways. First, in contrast to existing studies that focus on the gender of the owner(s), we focus on the gender of the top manager of the firm. Hence, a new dimension of female vs. male-firms is suggested. Second, we argue that the gender-based difference in firm-size in favor of men need not be uniform across countries. Specifically, we argue that it is likely to be larger in countries …

Beyond Coase: Emerging Technologies And Property Theory, Christopher S. Yoo

All Faculty Scholarship

In addition to prompting the development of the Coase Theorem, Ronald Coase’s landmark 1959 article on the Federal Communications Commission touched off a revolution in spectrum policy. Although one of Coase’s proposed reforms (that spectrum should be allocated through markets) has now become the conventional wisdom, his other principal recommendation (that governments stop dedicating portions of the spectrum to particular uses) has yet to be fully embraced. Drawing on spectrum as well as Internet traffic and electric power as examples, this Article argues that emerging technologies often reflect qualities that make defining property rights particularly difficult. These include the cumulative …

Regulatory Challenges For Mvnos In Latin America, Víctor Pavón-Villamayor

Víctor Pavón-Villamayor

No abstract provided.

An End To End-To-End? A Review Essay Of Barbara Van Schewick’S Internet Architecture And Innovation, Adam Candeub

Federal Communications Law Journal

Amidst much controversy, the FCC released its landmark "network neutrality" order in December 2010. This regulation prohibits Internet service providers, such as Verizon or Comcast, from discriminating in favor of traffic or content that they own or with which they are affiliated. Professor Barbara van Schewick's recently published book, Internet Architecture and Innovation, could not be timelier. Employing a variety of economic and technical arguments, van Schewick defends the type of regulation the FCC passed as necessary to preserve the Internet's potential for innovation. My central critique of Internet Architecture is its deployment of economic theories on one side of …

The Connection Between Competitiveness And International Taxation, Michael S. Knoll

All Faculty Scholarship

The term “competitiveness” is a highly elastic concept that has been used in a myriad of different ways. However, in discussions of the connection between international taxation and competitiveness, there are two conceptions of competitiveness that are frequently used, but are not always clearly distinguished from one another. One conception emphasizes the competition between firms to be profitable and grow by acquiring productive assets. The other conception focuses on the competition between states to attract investment capital and people by varying their regulations.

Those two conceptions of competitiveness each imply a distinct definition of a domestic industry and a different …

Trial Selection Theory And Evidence, Keith N. Hylton, Haizhen Lin

Faculty Scholarship

This chapter presents a review of trial selection theory. We use the term “trial selection theory” to refer to models that attempt to explain or predict the characteristics that distinguish cases that are litigated to judgment from those that settle, and the implications of those characteristics for the development of legal doctrine and for important trial outcome parameters, such as the plaintiff win rate. Using this definition, trial selection theory can be said to have started with Priest and Klein (1984).

The Social Value Of Mortality Risk Reduction: Vsl Vs. The Social Welfare Function Approach, Matthew D. Adler, James K. Hammitt, Nicholas Treich

All Faculty Scholarship

We examine how different welfarist frameworks evaluate the social value of mortality risk-reduction. These frameworks include classical, distributively unweighted cost-benefit analysis—i.e., the “value per statistical life” (VSL) approach—and three benchmark social welfare functions (SWF): a utilitarian SWF, an ex ante prioritarian SWF, and an ex post prioritarian SWF. We examine the conditions on individual utility and on the SWF under which these frameworks display the following five properties: i) wealth sensitivity, ii) sensitivity to baseline risk, iii) equal value of risk reduction, iv) preference for risk equity, and v) catastrophe aversion. We show that the particular manner in which VSL …

Antitrust Energy, D. Daniel Sokol, Barak Orbach

UF Law Faculty Publications

Marking the centennial anniversary of Standard Oil Co. v. United States, we argue that much of the critique of antitrust enforcement and the skepticism about its social significance suffer from “Nirvana fallacy” — comparing existing and feasible policies to ideal normative policies, and concluding that the existing and feasible ones are inherently inefficient because of their imperfections. Antitrust law and policy have always been and will always be imperfect. However, they are alive and kicking. The antitrust discipline is vibrant, evolving, and global. This essay introduces a number of important innovations in scholarship related to Standard Oil and its modern …

The Relational Contingency Of Rights, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent. Our main thesis is that rights afford their holders meaningful protection only against challengers who face higher litigation costs than the rightholder. Contrariwise, challengers who can litigate more cheaply than a rightholder can force the rightholder to forfeit the right and thereby render the right ineffective. Consequently, in the real world, rights avail only against certain challengers but not others. This result is robust and pervasive. Furthermore, it obtains irrespectively of how rights and other legal entitlements are defined by the legislator or construed by …

La Demostración Jurídica Y Económica: Similitudes Interdisciplinarias Entre Hipótesis, Causas, Efectos Y Normas. La Norma Económica., José Manuel Martin Coronado

José-Manuel Martin Coronado

Hace unos días leí una entrada de blog de un joven abogado de una conocida universidad y (aparentemente) funcionario público, la cual trataba de una aparente metodología para la resolución de casos. Dado el especial interés del autor por el tema metodológico, bastante ausente entre los profesionales del derecho, creí conveniente felicitar su iniciativa. No obstante, también había un elemento de crítica, el relativo a la metodología bastante antigua y poco práctica en términos modernos (actualización, adaptabilidad, amparo informático, etc.). 1.2. Al parecer la crítica fue interpretada como algo más fuerte que la felicitación, aun cuando reitero, el citado autor …

Oportunidades De Desarrollo Productivo De La Población De Afectación Prioritaria En La Operación Estratégica Fontibón – Aeropuerto Eldorado – Engativá, Iván A. Rojas V

Iván Rojas V

The book analyzes the case of Operation Strategic Fontibón - Eldorado Airport - Engativa (OEFAE) and the implications on the urban economy of the city and potential opportunities for productive development for the population affected by the project in 2010 in Bogotá DC. El libro analiza el caso de la Operación Estrategica Fontibón - Aeropuerto ElDorado - Engativa (OEFAE) y las implicaciones sobre la economía urbana de la ciudad y las posibles oportunidades de desarrollo productivo para la población afectada por el proyecto en el 2010 en la ciudad de Bogotá DC.

The Economic Role Of The English Poor Law, 1780-1834, George R. Boyer

George R. Boyer

[Excerpt] Over the 85-year period from 1748/50 to 1832/34, real per capita expenditures on poor relief increased at an average rate of approximately 1 percent per year. There were also important changes in the administration of relief with respect to able-bodied laborers during the period. Policies providing relief outside of workhouses to unemployed and under-employed able-bodied laborers became widespread during the 1770s and 1780s in the grain-producing South and East of England. The so-called Speenhamland system of outdoor relief flourished until 1834, when it was abolished by the Poor Law Amendment Act. The aim of the thesis is to provide …