Law and Economics Commons^™

Microsoft And Trinko: A Tale Of Two Courts, Spencer Weber Waller

ExpressO

In this comment for an upcoming symposium in the Utah Law Review in honor of the retirement of John Flynn, I examine the 2001 opinion of the DC Circuit in Microsoft and the Supreme Court's 2004 opinion in Trinko and compare them as attempts to comprehensively define the law of monopolization. Using the insights of the legal process school, I examine which opinion succeeds as a form of reasoned elaboration and which opinion will gain acceptance among lower courts and commentators in this vital area of antitrust law. I conclude that the Microsoft opinion should stand the test of time …

The Secret Is Out: Patent Law Preempts Mass Market License Terms Barring Reverse Engineering For Interoperability Purposes, Daniel Laster

ExpressO

As patent protection has emerged to protect software, courts and commentators have mistakenly focused on copyright law and overlooked the centrality of patent preemption to limit contract law where a mass market license which prohibits reverse engineering (RE) for purposes of developing interoperable products leads to patent-like protection. Review of copyright fair use cases on RE and Congress’s policy favoring RE for interoperability purposes in the Digital Millennium Copyright Act reinforce the case for patent preemption. Also, the fundamental freedom to RE embodied in state trade secret law, coupled with federal patent and copyright law and policies, cumulatively should override …

Poisoning The Well: Law & Economics And Racial Inequality, Robert E. Suggs

Faculty Scholarship

The standard Law & Economics analysis of racial discrimination has stunted our thinking about race. Its early conclusion, that laws prohibiting racial discrimination were unnecessary and wasteful, discredited economic analysis of racial phenomena within the civil rights community. As a consequence we know little about the impact of racial discrimination on commercial transactions between business firms. Laws do not prohibit racial discrimination in transactions between business firms, and the disparity in business revenues between racial minorities and the white mainstream dwarfs disparities in income by orders of magnitude. This disparity in business revenues is a major factor in the persistence …

“It’S The [Tort System], Stupid:” Consumer Deductibles; How To More Equitably Distribute The Risks Of Medical Malpractice And Adequately Compensate Victims Without Statutory Damage Caps., Bradford Luke Ledbetter

ExpressO

No abstract provided.

Regulating Contract Formation: Precontractual Reliance, Sunk Costs, And Market Structure, Ofer Grosskopf, Barak Medina

ExpressO

This Article challenges the plausibility of the prospect of underinvestment in precontractual reliance (PCR). We argue that a negotiating party is motivated to invest in PCR not only through her expectation to extract the benefits that the investment yields (Added-Value Motivation), but also through the effect of the investment on her position vis-à-vis her competitors (Competition-Based Motivation). We demonstrate that under plausible assumptions, when a negotiating party operates in a relatively competitive market, the Competition-Based Motivation is frequently sufficient to induce optimal PCR, even without appropriate contractual provisions or legal intervention.

We suggest several normative implications. First, legal intervention that …

Equal Treatment Of Foreign Shareholders In Transnational Securities Class Action Against A Foreign Issuer—A Chinese Example, Clark Yao

ExpressO

As the world economy and financial markets become increasingly more integrated, cross-boarder securities transaction becomes a daily event. Because Unite States has the world’s largest and arguably most liquid capital markets, it has attracted a significant number of foreign companies to cross-list their stocks in a U.S. stock exchange. Unavoidably, such transactions will not only bring out fortune, but also disputes between transacting parties. Relying on the powerful federal securities law , U.S. investors who have bought or sold such stocks have routinely sued foreign stock issuers through class action when the stock prices went down, alleging their loss is …

Justice And The Evolution Of The Common Law, Richard O. Zerbe

ExpressO

Empirical evidence shows, and theory suggests, that the common law tends toward economic efficiency. While various theories attempt to explain this phenomenon, no single one is well accepted. This article provides a simple explanation. It suggests that efficiency arises as a matter of justice. Justice is sought because justice-seeking is a social norm with its own sanctioning force. Justice is sought and efficiency achieved because they substantially overlap. Limitations in the traditional definition of efficiency, however, ensure that efficiency is not congruent with justice. This paper suggests that it can be: the congruence of justice and efficiency will be greater …

Legislation And Legitimation: Congress And Insider Trading In The 1980s, Thomas W. Joo

ExpressO

Legislation and Legitimation:

Congress and Insider Trading in the 1980s

Abstract

Orthodox corporate law-and-economics holds that American corporate and securities regulation has evolved inexorably toward economic efficiency. That position is difficult to square with the fact that regulation is the product of government actors and institutions. Indeed, the rational behavior assumptions of law-and-economics suggest that those actors and institutions would tend to place their own self-interest ahead of economic efficiency. This article provides anecdotal evidence of such self-interest at work. Based on an analysis of legislative history—primarily Congressional hearings—this article argues that Congress had little interest in the economic policy …

Net Neutrality: Hearing Before The Senate Committee On Commerce, Science And Transportation, 109th Cong., Feb. 7, 2006 (Statement Of J. Gregory Sidak, Visiting Prof. Of Law, Geo. U. L. Center), J. Gregory Sidak

Testimony Before Congress

No abstract provided.

Choice, Consent, And Cycling: The Hidden Limitations Of Consent, Leo Katz

Michigan Law Review

Most legal scholars assume that if V consents to allow D to do something to him, such consent makes D's actions legally and morally acceptable. To be sure, they are willing to make an exception when consent is given under a specified list of conditions: Force, fraud, incompetence, third-party effects, unequal bargaining power, commodification, paternalism - all of these may be grounds for rejecting the validity of V's consent. We might call scholars who take this view of consent quasi-libertarians. In this Article, I argue against the quasi-libertarian view of consent. My central claim is that the validity of consent …

The Dark Side Of Multilateralism: An Assessment Of The Position Of The Developing World In The International Trading System, Marwa H. El-Saghir

Archived Theses and Dissertations

No abstract provided.

Implementation Of Sarbanes-Oxley: New Rules For Lawyers And What Lawyers Think, Olga Yevglevskaya-Wayne

ExpressO

This paper discusses practical implications of Sarbanes-Oxley for lawyers. Emphasis is on the new federal rules of professional responsibility the Act sets up. The paper includes the views of various renowned practitioners interpreting and using these rules. The paper also contains suggestions for how the Securities and Exchange Commission could potentially improve those areas that are proving problematic for attorneys so as to better effectuate the purpose of this major new law, in light of its legislative history and intent, which are also discussed in the paper.

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 …

Law, Economics, And Accommodations In The Internal Labor Market, Seth Harris

ExpressO

This article argues that employers can derive economic benefits from providing their incumbent employees with accommodations in some, perhaps many, circumstances. Thus, an economically rational employer should welcome negotiations over accommodations with their incumbent employees with disabilities as a fertile opportunity to reap increased benefits from its relationship with those employees.

The article applies “internal labor market theory” to assess how employers benefit from providing accommodations. This labor economics theory considers the causes and effects of barriers to competition found in the labor market consisting of an employer’s incumbent workforce. Internal labor market theory holds that these barriers to competition …

Reform In Lieu Of Change: Tastes Great, Less Filling, Jonathan G.S. Koppell

Publications from President Jonathan G.S. Koppell

In this response to Light, Koppell argues that the increasing frequency of reform may reflect Congress's inability to make significant changes to the substance of entrenched government programs. Moreover, he observes that the more profound evolution in government has been the movement toward the market-based provision of services, which has created a demand for new competencies in the public sector.

Intellectual Property: The Practical And Legal Fundamentals, Thomas G. Field Jr

Law Faculty Scholarship

Patents, copyrights, trademarks and related interests are known as intellectual property (IP). It has not been long since patents especially were regarded in U.S. courts, and the Supreme Court in particular, as tools of monopolists, and their owners often fared poorly. However, people have come increasingly to view privately funded innovation as critical to national economic well-being and to agree that such innovation cannot occur unless companies that succeed in the marketplace can recoup their research, development and marketing costs. That is a major function of IP, and, particularly within the past dozen years, IP has been seen, both here …

The Importance Of Defining "War": Terrorism, Torture, Humanitarian Intervention And Private Military Companies, Joseph Runzo, Ph.D.

ILSA Journal of International & Comparative Law

As the immediate aftermath of 9-11 illustrated, war-and the threat of war-brings people in a society closer together as they look for security

The Elasticity Of Contract, Martha M. Ertman

Faculty Scholarship

No abstract provided.

Toward An Ecology Of Intellectual Property: Lessons From Environmental Economics For Valuing Copyright's Commons, Frank Pasquale

Faculty Scholarship

The fair use defense in copyright law shields an intellectual commons of protected uses of copyrighted material from infringement actions. In determining whether a given use is fair, courts must assess the new use's potential effect on the market for the copyrighted work. Fair use jurisprudence too often fails to address the complementary, network, and long-range effects of new technologies on the market for copyrighted works. These effects parallel the indirect, direct, and option values of biodiversity recently recognized by environmental economists. Their sophisticated methods for valuing natural resources in tangible commons can inform legal efforts to address the intellectual …

It’S Not About The Money: The Role Of Preferences, Cognitive Biases And Heuristics Among Professional Athletes, Michael Mccann

Law Faculty Scholarship

Professional athletes are often regarded as selfish, greedy, and out-of-touch with regular people. They hire agents who are vilified for negotiating employment contracts that occasionally yield compensation in excess of national gross domestic products. Professional athletes are thus commonly assumed to most value economic remuneration, rather than the love of the game or some other intangible, romanticized inclination.

Lending credibility to this intuition is the rational actor model, a law and economic precept which presupposes that when individuals are presented with a set of choices, they rationally weigh costs and benefits, and select the course of action that maximizes their …

Financial Moral Panic! Sarbanes-Oxley, Financier Folk Devils, And Off-Balance Sheet Arrangement, Jose M. Gabilondo

Faculty Publications

No abstract provided.

What Do We Owe Each Other In The Global Economic Order?: Constructivist And Contractualist Accounts, John Linarelli

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Recent Developments, John Merritt Lockwood

Florida State University Journal of Transnational Law & Policy

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.

Valuation In The Cost-Benefit Analysis: Choosing Between Offer Prices And Asking Prices As The Appropriate Measure Of Willingness To Pay, 39 J. Marshall L. Rev. 429 (2006), Gregory Crespi

UIC Law Review

No abstract provided.

The "Priority Statute" - The United States' "Ace-In-The-Hole", 39 J. Marshall L. Rev. 1205 (2006), Richard H.W. Maloy

UIC Law Review

No abstract provided.

Monetizing The Benefits Of Risk And Environmental Regulation, W. Kip Viscusi

Fordham Urban Law Journal

The Article responds to the school of thought reflected in the book "Priceless: On Knowing the Price of Everything and the Value of Nothing" that opposes the economists' attempts to monetize the value of environmental amenities and the value of risks to life and health. It applies the value of statistical life ("VSL") concept to regulatory decisions in order to decide whether the adoption of a regulation makes economic sense. VSL measures the value of life, as judged by measuring the amount of risk of injury workers in a particular industry are willing to take on, and the costs associated …

How Much Is That Doggy In The Window? The Inevitably Unsatisfying Duty To Monetize, Adam F. Scales

Fordham Urban Law Journal

The Article is in response to Professor Kip Viscusi's "Monetizing the Benefits of Risk and Environmental Regulation." It emphasizes several issues Viscusi's "value of a statistical life" (VSL) methodology fails to capture: (1) the distinction and difference in value between willingness to pay for a regulation and willingness to accept; (2) the fact that the many risks, for which regulations have been adopted, are so slight that the value to many is actually the value of not seeing someone else suffer harm in the absence of regulation; (3) real life irrational decision-making does not easily fit into an economic value; …

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.

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.