Law and Economics Commons^™

Patents As Credentials, Jason Rantanen, Sarah E. Jack

Washington and Lee Law Review

The conventional explanation for why people seek patents draws on a simple economic rationale. Patents, the usual story goes, provide a financial reward: the ability to engage in supracompetitive pricing by excluding others from practicing the claimed technology. People are drawn to file for patents because that is how these economic rewards are secured. While scholars have proposed variations on the basic exclusionary mechanism, and there is a general acknowledgement that patents can affect a firm’s reputation, the actual mechanisms of patents’ effect on individuals — human beings — remains relatively uncharted. In this Article we offer a concrete theory …

Blame It On The Blockchain: Cryptocurrencies Boom Amidst Global Regulations, Jorge Galavis

University of Miami International and Comparative Law Review

Blockchain technologies created the most valuable digital currency in the world; Bitcoin. Bitcoin uses a Blockchain to be decentralized and widely accessible: Blockchains work by recording all transactions into online ledgers that are saved onto many separate blocks across the internet. Coins that use Blockchain technology are inherently difficult to modify, and transactions are permanently recorded because of the redundancy and reliability of the Blockchain system. So, this widely-available means of exchange has gained appeal as an online alternative to traditional currencies and securities. Blockchain coins gain popularity as currencies where there is reason to doubt the existing traditional currencies …

If Not Now, When? Us Tax Treaties With Latin America After Tcja, Reuven S. Avi-Yonah

Law & Economics Working Papers

Since the 1990s, the US tax treaty network has expanded to include most large developing countries. However, there remains a glaring exception: The US only has two tax treaties in Latin America (Mexico and Venezuela), and one pending tax treaty (Chile). The traditional explanation for why the US has no treaty with, for example, Argentina or Brazil is the US refusal since 1957 to grant tax sparing credits to developing countries. Before the Tax Cuts and Jobs Act of 2017 (TCJA), this explanation was wrong, because the combination of deferral and cross-crediting meant that tax holidays in a source country …

Does Customary International Tax Law Exist?, Reuven S. Avi-Yonah

Law & Economics Working Papers

Customary international law is law that “results from a general and consistent practice of states followed by them from a sense of legal obligation.” “International agreements create law for states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.” Does customary international law (CIL) exist in tax? There are over 3,000 bilateral tax treaties, and they are about 80% identical to each other, but do they create CIL that binds in the absence of a binding treaty, like for example the …

Regulatory Review In Anti-Regulatory Times, Daniel A. Farber

Chicago-Kent Law Review

This article investigates the role of cost-benefit analysis during an antiregulatory period. The period since 2016 has seen several new developments, including the first vigorous use by Congress of its power to overturn recently issued regulations and the creation of novel deregulatory mechanisms layered on top of cost-benefit analysis. This period also contains important examples of sharply reversed CBAs, in which regulations that were said to have large net benefits under Obama are instead said to have net costs under Trump. The Trump Administration’s regulatory review initiatives focus heavily on costs, with limited attention to benefits. Case studies of three …

Globalization, Tax Competition And The Fiscal Crisis Of The Welfare State: A Twentieth Anniversary Retrospective, Reuven S. Avi-Yonah

Law & Economics Working Papers

Twenty years ago I wrote “Globalization, Tax Competition, and the Fiscal Crisis of the Welfare State” (113 Harv. L. Rev. 1573 (2000)), which argued that “[t]he current age of globalization can be distinguished from the previous one (from 1870 to 1914) by the much higher mobility of capital than labor… The mobility of capital is linked to tax competition, in which sovereign countries lower their tax rates on income earned by foreigners within their borders in order to attract both portfolio and direct investment. Tax competition, in turn, threatens to undermine the individual and corporate income taxes, which traditionally have …

Should Automakers Be Responsible For Accidents?, Kyle D. Logue

Articles

Motor vehicles are among the most dangerous products sold anywhere. Automobiles pose a larger risk of accidental death than any other product, except perhaps opioids. Annual autocrash deaths in the United States have not been below 30,000 since the 1940s, reaching a recent peak of roughly 40,000 in 2016. And the social cost of auto crashes goes beyond deaths. Auto-accident victims who survive often incur extraordinary medical expenses. Those crash victims whose injuries render them unable to work experience lost income. Auto accidents also cause nontrivial amounts of property damage—mostly to the automobiles themselves, but also to highways, bridges, or …

Fighting Fire With Fire: A Repeat Violator Policy For The Wto, Michael Goodyear

Articles & Chapters

The Trump presidency and other reactionary conservative governments present an immensely powerful danger to the World Trade Organization ("WTO"). The WTO is largely built on Members' willingness to comply with its rules, and the current Dispute Settlement Understanding ("DSU") is too weak to deter an avowed enemy of the WTO such as President Trump. This poor enforcement system particularly hurts developing countries, which lack the power under the DSU to effectively deter economic giants like the United States. The recent Doha Round was supposed to create a more effective enforcement mechanism under the DSU, but it fell apart before any …

Merger Negotiations In The Shadow Of Judicial Appraisal, Brian Broughman, Audra Boone, Antonio Macias

Vanderbilt Law School Faculty Publications

The recent surge in appraisal litigation has sparked debate over the desirability of appraisal and how this remedy should be structured. Much of this debate is based on untested assertions about appraisal's ex ante effect on the structure and pricing of takeovers. Systematically investigating this effect, we find evidence that target shareholders receive higher abnormal returns as the strength of the appraisal remedy increases. We find no evidence that bidders offer a lower up- front price as a means to pay off dissenting shareholders after a sale. Further- more, threat of appraisal does not appear to limit takeover activity or …

Sovereign Resilience: Reviving Private-Sector Economic Institutions In Indian Country, Robert J. Miller

BYU Law Review

No abstract provided.

Community Economic Development Is Access To Justice, Anthony J. Luppino, Scott L. Cummings, Edward W. De Barbieri, Christyne Vachon, Steven Henry Hobbs, Brian Kingsley Krumm, Anika Singh Lemar, Brandon M. Weiss, Robert J. Miller, K. Sabeel Rahman, Alexandra Sickler, Paul R. Tremblay

Faculty Works

What gaps exist in the justice system that result in a need for services provided by community economic development attorneys? What is the evidence that those gaps actually exist? How do we know that community economic development practitioners fill those gaps, and in what way? These are merely a few of the questions addressed in this collection. At the Association of American Law Schools (AALS) annual meeting in San Diego in January 2018, legal scholars gathered to discuss this evolution as part of the discussion group, “Community Economic Development Is Access to Justice.” The goal of the discussion group was …

Socioeconomic Influences On Property Crime Rates: A Study In Virginia's Counties, Mary Passley

Student Scholar Showcase

Most research on factors and causes of crime, whether property or violent crime, focuses on individuals’ behavior or their surrounding environment. In this research, I explore the idea of socioeconomic factors correlated to property crime. I conducted a retrospective design to fully explore United States Census data and crime data gathered by the Bureau of Justice Statistics to discover statistically significant variables connected to property crime. Significant findings were shown by average people per house and retail sales per capita in all counties. Additional significant findings were percent employment change and percent with high school degree or higher in low …

Eating Our Way To Their Extinction: What Florida Should Learn From California On Banning Shark Fin Soup And The Shark Fin Trade, Bettina Tran

Seattle Journal of Environmental Law

Currently, it is legal to possess, sell and purchase shark fins in 38 states, Florida included. Fishermen are allowed to harvest sharks all around the world with minimal surveillance and weak regulation, causing greed to push a 400-million-year old species to the brink of extinction. Florida’s current statue is completely ineffective and toothless when it comes to shark conservation. The State needs to amend its shark fin law prohibiting the trade in all detached shark fins, for any purpose, by anyone to discontinue fueling a cruel practice. There is a federal bill pending in congress that would ban the trade …

Analyzing Vertical Mergers To Avoid False Negatives: Three Recent Case Studies, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This article analyzes three recent vertical mergers: a private antitrust case attacking the consummated merger of Jeld-Wen and Craftmaster Manufacturing Inc. (“CMI”) that was cleared by the DOJ in 2012 but subsequently litigated and won by the plaintiff, Steves & Sons in 2018; and two recent vertical merger matters investigated and cleared (with limited remedies) by 3-2 votes by the Federal Trade Commission in early 2019 -- Staples/Essendant and Fresenius/NxStage. There are some factual parallels among these three matters that make it interesting to analyze them together. First, the DOJ’s decision to clear Jeld-Wen/CMI merger appears to be a clear …

College Athletics: The Chink In The Seventh Circuit's "Law And Economics" Armor, Michael A. Carrier, Marc Edelman

Michigan Law Review Online

If any court is linked to the “law and economics” movement, it is the Seventh Circuit, home of former Judge Richard Posner, the “Chicago School,” and analysis based on markets and economics. It thus comes as a surprise that in college-athletics cases, the court has replaced economic analysis with legal formalisms. In adopting a deferential approach that would uphold nearly every rule the National Collegiate Athletic Association (NCAA) claims is related to amateurism, the court recalls the pre- Chicago School era, in which courts aggressively applied “per se” illegality based on a restraint’s form, rather than substance. While the …

Online Terms As In Terrorem Devices, Colin P. Marks

Maryland Law Review

Online shopping has quickly replaced the brick-and-mortar experience for a large portion of the consuming public. The online transaction itself is rote: browse items, add them to your cart, and check out. Somewhere along the way, the consumer is likely made aware of (or at least exposed to) the merchant’s terms and conditions, via either a link or a pop-up box. Such terms and conditions have become so ubiquitous that most consumers would be hard-pressed to find a merchant that doesn’t try to impose them somewhere on their website. Though such terms and conditions are pervasive, most consumers do not …

Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William Simon

Indiana Law Journal

Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.

This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial …

Procompetitive Justifications In Antitrust Law, John M. Newman

Indiana Law Journal

The Rule of Reason, which has come to dominate modern antitrust law, allows defendants the opportunity to justify their conduct by demonstrating procompetitive effects. Seizing the opportunity, defendants have begun offering increasingly numerous and creative explanations for their behavior.

But which of these myriad justifications are valid? To leading jurists and scholars, this has remained an “open question,” even an “absolute mystery.” Examination of the relevant case law reveals multiple competing approaches and seemingly irreconcilable opinions. The ongoing lack of clarity in this area is inexcusable: procompetitive-justification analysis is vital to a properly functioning antitrust enterprise.

This Article provides answers …

Deputizing Family: Loved Ones As A Regulatory Tool In The "Drug War" And Beyond, Matthew J.B. Lawrence

Faculty Scholarly Works

Many laws use family members as a regulatory tool to influence the decisions or behavior of their loved ones, i.e., they deputize family. Involuntary treatment laws for substance use disorder are a clear example; such laws empower family members to use information shared by their loved ones to petition to force their loved ones into treatment without consent. Whether such deputization is helpful or harmful for a patient’s health is a crucial and dubious question discussed in existing literature, but use of family members as a regulatory tool implicates important considerations beyond direct medical impacts that have not been as …

The Fire Rises: Refining The Pennsylvania Fireworks Law So That Fewer People Get Burned, Sean P. Kraus

Dickinson Law Review (2017-Present)

On October 30, 2017, the General Assembly of Pennsylvania passed an act that repealed the state’s fireworks law, which had prohibited the sale of most fireworks to Pennsylvanian consumers for nearly 80 years. The law’s replacement generally permits Pennsylvanians over 18 years old to purchase, possess, and use “Consumer Fireworks.” Bottle rockets, firecrackers, Roman candles, and aerial shells are now available to amateur celebrants for holidays like Independence Day and New Year’s Eve. The law also regulates a category of larger “Display Fireworks,” sets standards for fireworks vendors, and introduces a 12-percent excise tax on fireworks sales that serves to …