Law and Economics Commons^™

Is Law An Economic Contest? French Reactions To The Doing Business World Bank Reports And Economic Analysis Of The Law, Anne-Julie Kerhuel, Bénédicte Fauvarque-Cosson

Georgetown Law Faculty Publications and Other Works

The economic analysis of law has provoked strong reactions among French academics, in particular since 2004 when the first of the Doing Business reports was published. French jurists have joined forces to expose the methodological limits inherent to these reports, which rated France a long way behind other legal systems allegedly more able to facilitate business. In its first part, this article examines the various reactions to these reports, almost all of which were published in French only. In the second part, the focus is on the position of economic analysis in French law, its role, and, in particular, the …

Introducing Classcrits: Rejecting Class-Blindness, A Critical Legal Analysis Of Economic Inequity, Athena D. Mutua

Journal Articles

In 2007, two workshops at the University at Buffalo launched a project bringing together legal scholars interested in exploring the relationship between law and economic inequality. This article provides an overview of the workshops’ key understandings and discussions. The essay suggests that these understandings, informed by critical legal scholarship, constituted a set of shared assumptions among the participants and informed the groups’ rejection of class blindness, a society-wide blindness to the existence and use of economic power. Discussing some of the functional similarities of gender, race and class blindness, the article argues that feminist and critical race scholars’ critiques of …

Internet Nondiscrimination Principles: Commercial Ethics For Carriers And Search Engines, Frank Pasquale

Faculty Scholarship

Unaccountable power at any layer of online life can stifle innovation elsewhere. Dominant search engines rightly worry that carriers will use their control of the physical layer of internet infrastructure to pick winners among content and application providers. Though they advocate net neutrality, they have been much less quick to recognize the threat to openness and fair play their own practices may pose.

Just as dominant search engines fear an unfairly tiered online world, they should be required to provide access to their archives and indices in a nondiscriminatory manner. If dominant search engines want carriers to disclose their traffic …

The Future Of The Economic Analysis Of Law In Latin America: A Proposal For Model Codes, Juan Javier Del Granado, M C. Mirow

Faculty Publications

Nothing excites civilian lawyers and judges more than commissions for codification. Codification is more than an academic enterprise. Codification projects directly cut across the interface between law and life. ALACDE intends to harness this Latin American interest in codification to bring the economic approach to Latin America. A new-generation law and economics civil and commercial code will be a conscious project to restate Roman law's usefulness for coping with today's problems. Through law and economics, Roman law will renew itself. As a paradigmatic private-law system, Roman law is eminently amenable to a state-of-the-art fusion with law and economics. Sensitivity to …

Economic Analysis Of Labor And Employment Law In The New Economy, Kenneth G. Dau-Schmidt, Alan Hyde, Michael Risch, Jagdeep Bhandari, Richard Block

Articles by Maurer Faculty

No abstract provided.

Review Of Jonathan Baron, Against Bioethics, Chad Flanders

All Faculty Scholarship

This is a short review of a recent book by Jonathan Baron, entitled "Against Bioethics."

The Transatlantic Divergence In Legal Thought: American Law And Economics Vs. German Doctrinalism, The, Kristoffel Grechenig, Martin Gelter

Faculty Scholarship

Law and economics has become an integral part of U.S. legal scholarship and the law school curriculum. Ever since the legal realist movement, scholars mostly view the law from an external perspective. It may be surprising to many in the United States that European legal scholarship has been largely resistant to this development. Law is typically viewed "from the inside," that is as an autonomous discipline independent from the other social sciences. Most legal scholarship is doctrinal, meaning that legal scholars employ interpretative methods in order to systematically expose the law and to find out what the law is, frequently …

The Methodology Of The Behavioral Analysis Of Law, Avishalom Tor

Journal Articles

This article examines the behavioral analysis of law, meaning the application of empirical behavioral evidence to legal analysis, which has become increasingly popular in legal scholarship in recent years. Following the introduction in Part I, this Article highlights four central propositions on the subject. The first, developed in Part II, asserts that the efficacy of the law often depends on its accounting for relevant patterns of human behavior, most notably those studied by behavioral decision scientists. This Part therefore reviews important behavioral findings, illustrating their application and relevance to a broad range of legal questions. Part III then argues that …

When Second Comes First: Correcting Patent’S Poor Secondary Incentives Through An Optional Patent Purchase System, Jordan Barry

ExpressO

As research has advanced, technologies have become more closely knit, and the relationships between them—both complementary and competitive—have become increasingly important. Unfortunately, the patent system’s use of monopoly power to reward innovators creates inefficient results by overly encouraging the development of substitute technologies and discouraging the development of complementary technologies. This paper explains how an optional patent purchase system could help ameliorate such problems and discusses the implications of such a system.

Globalization Of Law Firms: A Survey Of The Literature And A Research Agenda For Further Study, D. Daniel Sokol

UF Law Faculty Publications

The international expansion of law firms plays a critical role in understanding the business of law and the nature of globalization. This article responds to two articles on law firm expansion in the Indiana University - Bloomington Law School symposium on the Globalization of the Legal Profession. The article utilizes management studies' theoretical work on internationalization and applies it to law firm expansion to explain law firm strategic decision-making. The author creates a six part taxonomy for types of law firm expansion and provides a snapshot of the increasing U.S./U.K. dominance of capital markets, corporate and mergers and acquisitions legal …

Biomedical Ethics And The Law: A Critical Perspective, Keith N. Hylton

Faculty Scholarship

Health law, a fast growing field of scholarship, appears to consist largely of two schools. One focuses on health care antitrust, taking as its fundamental premise the notion that health care markets should be distinguished from and treated differently than other markets. This premise underlying health care antitrust is based on a few recurring features of health care markets, such as informational asymmetry, that are taken as sufficient bases for treating them differently.¹ The other school of health law is biomedical ethics, which has taken on increasing importance in view of the many tradeoffs that arise when health care …

Should Property Or Liability Rules Govern Information?, Mark A. Lemley, Philip J. Weiser

Publications

This Article focuses on an unappreciated and significant aspect of the debate over property rules in the technology law context. In particular, it argues that the classic justification for legal entitlements protected by a property rule - i.e., a right to injunctive relief - depends on the ability to define and enforce property rights effectively. In the case of many technology markets, the inability to tailor injunctive relief so that it protects only the underlying right rather than also enjoining noninfringing conduct provides a powerful basis for using a liability rule (i.e., awarding the relevant damages to the plaintiff) instead …

Privatization And The Law And Economics Of Political Advocacy, Alexander Volokh

ExpressO

A common argument against privatization is that private providers, motivated by self-interest, will advocate changes in substantive policy. In this Article, I evaluate this argument, using, as a case study, the argument against prison privatization based on the possibility that the private prison industry will distort the criminal law by advocating incarceration.

This “political influence” argument applies at least as well to public provision: Government agencies, too, lobby for changes in substantive law. In the prison industry, for instance, it is unclear whether private firms advocate incarceration to any significant extent, but public guard unions are known to do so …

Copyright's Empire: Why The Law Matters , Alina Ng

ExpressO

Two separate and distinct movements have colonized research in the field of intellectual property. Law and economics has deepened our understanding of the justification for granting monopoly rights over intellectual property. In recent years, economic theories have been used to support the growth of the commons – the free environment, where intellectual property plays little role in generating new creative works and innovation. The second movement is law and technology that has sought to increase understanding of intellectual property through the exploration of how technologies either provide freedoms or impose limitations to how creative works and innovation are created and …

The Group Dynamics Theory Of Executive Compensation, Michael B. Dorff

ExpressO

The corporate governance debate has focused recently on executive compensation. While defenders of the status quo assert that CEO compensation – and corporate governance generally -- is efficient, critics contend that boards have been captured by powerful CEOs who demand excessive pay unconditioned on their performance. Both sides argue that the evidence garnered from CEO compensation justifies their positions on legal reform of corporate governance as a whole. Defenders of the status quo argue that the system works well as is, as demonstrated by the enormous success of U.S. corporations. Critics concerned about managerial power propose reforms that will increase …

Patent Reform And Differential Impact, Matthew J. Sag, Kurt Rohde

ExpressO

This article presents a new method of analyzing patent reform proposals through the use of differential impact analysis.

Congressional efforts to address the crisis of confidence in the U.S. patent system have failed up to the present day. If Congress is to have any hope of passing much needed legislative reform to the Patent Act, the supporters of patent reform will have to unite behind a streamlined set of proposals that directly address the most pressing and unambiguous defects of the current patent system. To that end, we have proposed applying a test of differential impact to enable Congress to …

Public Services Meet Private Law, Michael I. Krauss

ExpressO

Public services are provided at various levels, and for various reasons, by governments to corporate and private citizens. Recently, an important movement in tort theory has sought to allow governments to recoup the cost of public services as tort damages from wrongdoers, especially from wrongdoers of the corporate variety. Much of the latest thrust in tort law, which consists of attorneys-general's suits against corporations, relies implicitly on a challenge to the common law's "free public services doctrine."

Recently, scholarship emanating largely from plaintiff-oriented sources has sought to appeal to free-market and law-and-economics scholars (who are often defense-oriented) by emphasizing the …

The Marginal Incentive Of Insider Trading: An Economic Reinterpretation Of The Case Law, Kristoffel R. Grechenig

ExpressO

Commentators on insider trading are divided into two camps, one in favor of regulation, the other in favor of deregulation. The arguments for the two positions are manifold but not irreconcilable. I show that important gains to social welfare come with insider trading on negative information (sales), whereas losses often result from the use of positive information (purchases). Thus, I look at a regulation that allows insiders to use negative but not positive non-public information. Because positive information will be disclosed much sooner than negative information, the marginal incentive (and marginal gain to social welfare, respectively) of insider trading as …

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

ExpressO

Uncertainty as to the optimum extent of protection has generally limited 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.

Explanation, Human Nature, And Tort Theory, Jeffery L. Johnson

ExpressO

The article argues that, as they are usually stated, corrective justice theories of torts and economic efficiency theories fail to contradict one another. Thus, although the literature typically sees these approaches as doing conceptual battle, it takes a good deal of philosophical analysis to discover a theoretical framework from which to assess one perspective as superior to the other. Indeed, in many cases the corrective justice scholar appears to be talking past the economic lawyer, and vice versa.

The article then goes on to suggest that the one perspective from which we can see a genuine conflict between the explanations …

The Elasticity Of Contract, Martha M. Ertman

Faculty Scholarship

No abstract provided.

An Assessment Of Cross-National Regulatory Burden Comparisons, Thomas D. Hopkins

Fordham Urban Law Journal

The Article compares several rankings systems for national regulatory compliance costs. It finds the ranking systems are limited to differentiating between those countries least burdened by regulation from those most burdened by regulation. It concludes the rankings could be an important tool for deciding which countries would be the most promising for regulatory burden reduction initiatives.

Chart Accompanying: An Assessment Of Cross-National Regulatory Burden Comparisons, Thomas D. Hopkins

Fordham Urban Law Journal

The Article compares several rankings systems for national regulatory compliance costs. It finds the ranking systems are limited to differentiating between those countries least burdened by regulation from those most burdened by regulation. It concludes the rankings could be an important tool for deciding which countries would be the most promising for regulatory burden reduction initiatives.

Lost In Translation: The Economic Analysis Of Law In The United States And Europe, Kenneth G. Dau-Schmidt, Carmen L. Brun

Articles by Maurer Faculty

In this Essay, we examine the reasons why the economic analysis of law has not flourished in European countries as it has in the United States. In particular, we focus on three European countries-the United Kingdom, Germany, and France. We argue that differences in culture, the legal system, and the academy have led to differing degrees of success of the law and economics movement in each country. We speculate that, although there is currently less interest in the economic analysis of the law in Europe than in the United States, European interest could dramatically increase if scholars adopt more communitarian …

Penalty Defaults In Family Law: The Case Of Child Custody, Margaret F. Brinig

Journal Articles

This paper considers whether an amendment to state divorce laws that strengthens its joint custody preference operates as a traditional default rule, specifying what most divorcing couples would choose or as a penalty default rule the parties will attempt to contract around.

While the Oregon statutes that frame our discussion here, like most state laws, do not state an explicit preference for joint custody, shared custody is certainly encouraged by Section 107.179, which refers cases in which the parties cannot agree on joint custody to mediation and by Section 107.105, which requires the court to consider awarding custody jointly. In …

After The Revolution In Corporate Law, Roberta Romano

Journal of Legal Education

No abstract provided.

Prisons Of The Mind: Social Value And Economic Inefficiency In The Criminal Justice Response To Mental Illness, Amanda C. Pustilnik

ExpressO

This Article employs a “New Chicago School” law and economics analysis to examine why the staggering economic and human costs of channeling non-violent mentally ill adults and children into the criminal system not only are countenanced but embraced by voters and lawmakers. Analyzing legislation, statements by lawmakers and jurors, and historical sources, the Article contends that certain social value is created through the incarceration of this marginalized group. That is, there is a taste for the punishment of these people that incarceration satisfies but that therapeutic alternatives would not. The willingness to pay for this contestable taste keeps entrenched this …

How And Understanding Of The Second Personal Standpoint Can Change Our Understanding Of The Law: Hart's Unpublished Response To Exclusive Legal Positivism, Robin B. Kar

ExpressO

This Article describes recent developments in moral philosophy on the “second personal standpoint,” and argues that they will have important ramifications for legal thought. Moral, legal and political thinkers have, for some time now, understood important distinctions between the first personal perspective (of deliberation) and the third personal perspective (of observation, cause and effect), and have plumbed these distinctions to great effect in their thought. This distinction is, in fact, implicit the law and economics movement’s “rational actor” model of decision, which currently dominates much legal academic thought. Recent developments in value theory due to philosopher Stephen Darwall suggest, however, …

The New Deterrence: Crime And Policy In The Age Of Globalization, Patrick Keenan

ExpressO

Globalization has made it much easier for criminal activity to cross borders, but deterrence theory has not kept up with this changed reality. I draw insights from both law-and-economics and criminology literature to enrich our understanding of deterrence. I ground my theoretical discussion in the real-world problem of sex tourism as an example of the kind of unwanted activity that now crosses borders and has complicated our understanding of deterrence. I focus on two issues central to deterrence that have not gotten sufficient scholarly attention: the phenomenon of displacement and the role of status. I argue that informal sanctions, as …

A Dangerous Supplement, Daria Roithmayr

Journal of Legal Education

No abstract provided.