Amitai Aviram
This working paper is hosted by The Berkeley Electronic Press (bepress) and may not be commercially reproduced without the permission of the copyright holder. http://law.bepress.com/uiuclwps/papers/art72
Abstract
The production of law – including the choice of a law’s subject matter, the timing of its enactment and the manner in which it is publicized and perceived by the public – is significantly driven by an extra-legal market in which politicians and private parties compete over the opportunity to engage in bias arbitrage. Bias arbitrage is the extraction of private benefits through actions that identify and mitigate discrepancies between objective risks and the public’s perception of the same risks.
Politicians arbitrage these discrepancies by enacting laws that address the misperceived risk and contain a “placebo effect” – a counter-bias that attempts to offset the pre-existing misperception. If successful, politicians are able to take credit for the change in perceived risk, while social welfare is enhanced by the elimination of deadweight loss caused by risk misperception.
However, politicians must compete with private parties such as insurers, experts and the media, who can engage in bias arbitrage using extra-legal means. This article analyzes methods in which parties engage in bias arbitrage and the effect of interaction between potential bias arbitrageurs on the production of law.
Rabu, 27 Agustus 2008
Beyond Interstate Recognition in the Same-Sex Marriage Debate
Gary J. Simson
This content in this repository is hosted by The Berkeley Electronic Press (bepress) and may not be commercially reproduced without the permission of the copyright holder. http://lsr.nellco.org/cornell/lsrp/papers/43
Abstract
The national same-sex marriage debate has been dominated for the past decade by the interstate recognition issue. This article seeks to shift the focus of the debate to same-sex marriage prohibitions themselves and their incompatibility with several limitations of federal constitutional law.
After showing the legal irrelevance of the Defense of Marriage Act to the interstate recognition issue, the article addresses the proper resolution of that choice-of-law issue through the lens of a well-known New York Court of Appeals decision. In that case, despite New York’s ban on uncle-niece marriage, the New York high court - one of the most respected state supreme courts over the years in choiceof- law matters - applied Rhode Island law to uphold the validity of an uncle-niece marriage in Rhode Island between two New Yorkers. On its face, the case appears to offer powerful support for recognizing an out-of-state same-sex marriage that is valid where formed, but as the article demonstrates, the court’s choice of law is so difficult to defend that it actually militates against interstate recognition of same-sex marriage.
However, as the article’s juxtaposition of the uncle-niece and same-sex marriage recognition issues highlights, same-sex marriage recognition is not simply a matter of choice of law. While the Constitution leaves states free to allow or ban uncle-niece marriage, states do not have such latitude in legislating about samesex marriage. The article maintains that prohibitions on same-sex marriage violate the Due Process, Equal Protection, and Establishment Clauses.
This content in this repository is hosted by The Berkeley Electronic Press (bepress) and may not be commercially reproduced without the permission of the copyright holder. http://lsr.nellco.org/cornell/lsrp/papers/43
Abstract
The national same-sex marriage debate has been dominated for the past decade by the interstate recognition issue. This article seeks to shift the focus of the debate to same-sex marriage prohibitions themselves and their incompatibility with several limitations of federal constitutional law.
After showing the legal irrelevance of the Defense of Marriage Act to the interstate recognition issue, the article addresses the proper resolution of that choice-of-law issue through the lens of a well-known New York Court of Appeals decision. In that case, despite New York’s ban on uncle-niece marriage, the New York high court - one of the most respected state supreme courts over the years in choiceof- law matters - applied Rhode Island law to uphold the validity of an uncle-niece marriage in Rhode Island between two New Yorkers. On its face, the case appears to offer powerful support for recognizing an out-of-state same-sex marriage that is valid where formed, but as the article demonstrates, the court’s choice of law is so difficult to defend that it actually militates against interstate recognition of same-sex marriage.
However, as the article’s juxtaposition of the uncle-niece and same-sex marriage recognition issues highlights, same-sex marriage recognition is not simply a matter of choice of law. While the Constitution leaves states free to allow or ban uncle-niece marriage, states do not have such latitude in legislating about samesex marriage. The article maintains that prohibitions on same-sex marriage violate the Due Process, Equal Protection, and Establishment Clauses.
Authority and Authorities
Frederick Schauer
This working paper is hosted by The Berkeley Electronic Press (bepress) and may not be commercially reproduced without the permission of the copyright holder. http://law.bepress.com/uvalwps/uva publiclaw/art92
Abstract
Although there is a rich jurisprudential literature dealing with the concept of authority in law, the lessons from this jurisprudential tradition have never been connected with the practice by which authorities – cases, statutes, constitutions, regulations, articles, and books, primarily – are a central feature of common law legal argument, legal reasoning, and judicial decision-making. This disconnect between thinking about the nature of authority and reflecting on law’s use of authorities has become even more troublesome of late, because controversies about the citation of foreign law, the increasing use of no-citation and no-precedentialeffect rules in federal and state courts, and even such seemingly trivial matters as whether lawyers, judges and legal scholars should cite or rely on Wikipedia all raise central questions about the idea of authority and its special place in legal reasoning. In seeking to close this gap between the jurisprudential lessons and their contemporary application, this Essay casts doubt on the traditional dichotomy between binding and persuasive authority, seeks to understand the distinction among prohibited, permissive, and mandatory legal sources, and attempts to explain the process by which so-called authorities gain (and sometimes lose) their authoritative status.
This working paper is hosted by The Berkeley Electronic Press (bepress) and may not be commercially reproduced without the permission of the copyright holder. http://law.bepress.com/uvalwps/uva publiclaw/art92
Abstract
Although there is a rich jurisprudential literature dealing with the concept of authority in law, the lessons from this jurisprudential tradition have never been connected with the practice by which authorities – cases, statutes, constitutions, regulations, articles, and books, primarily – are a central feature of common law legal argument, legal reasoning, and judicial decision-making. This disconnect between thinking about the nature of authority and reflecting on law’s use of authorities has become even more troublesome of late, because controversies about the citation of foreign law, the increasing use of no-citation and no-precedentialeffect rules in federal and state courts, and even such seemingly trivial matters as whether lawyers, judges and legal scholars should cite or rely on Wikipedia all raise central questions about the idea of authority and its special place in legal reasoning. In seeking to close this gap between the jurisprudential lessons and their contemporary application, this Essay casts doubt on the traditional dichotomy between binding and persuasive authority, seeks to understand the distinction among prohibited, permissive, and mandatory legal sources, and attempts to explain the process by which so-called authorities gain (and sometimes lose) their authoritative status.
Lost Opportunity: Bush v. Holmes and the Application of State Constitutional Uniformity Clauses to School Voucher Programs
Jamie S. Dycus
This content in this repository is hosted by The Berkeley Electronic Press (bepress) and may not be commercially reproduced without the permission of the copyright holder. http://lsr.nellco.org/yale/student/papers/29
Abstract
This article analyzes the Florida Supreme Court’s recent decision in Bush v. Holmes, in which the court struck down Florida’s school voucher program as a violation of Florida’s constitutional uniformity clause. It argues that the court erred by applying a simplistic and ahistorical definition of uniformity, and recommends that future courts applying state constitutional uniformity clauses to school voucher schemes take a different approach.
Specifically, it argues that courts in future cases should begin by acknowledging frankly the necessity of determining the meaning of uniformity. Next, drawing on case law and historical evidence, they should fashion definitions of uniformity that accurately reflect the purposes for which their states’ uniformity clauses were adopted. Finally, in applying these definitions, they should take account of relevant empirical data.
This article does not generalize about the outcomes courts in other states might reach, if they followed this approach. Nor does it express a normative judgment about what outcome state courts should reach, as a general matter, when applying uniformity clauses to school choice programs. But it contends that the approach described here will produce outcomes more solidly grounded in historical, doctrinal, and empirical reality than the outcome reached by the Florida Supreme Court in Holmes.
This content in this repository is hosted by The Berkeley Electronic Press (bepress) and may not be commercially reproduced without the permission of the copyright holder. http://lsr.nellco.org/yale/student/papers/29
Abstract
This article analyzes the Florida Supreme Court’s recent decision in Bush v. Holmes, in which the court struck down Florida’s school voucher program as a violation of Florida’s constitutional uniformity clause. It argues that the court erred by applying a simplistic and ahistorical definition of uniformity, and recommends that future courts applying state constitutional uniformity clauses to school voucher schemes take a different approach.
Specifically, it argues that courts in future cases should begin by acknowledging frankly the necessity of determining the meaning of uniformity. Next, drawing on case law and historical evidence, they should fashion definitions of uniformity that accurately reflect the purposes for which their states’ uniformity clauses were adopted. Finally, in applying these definitions, they should take account of relevant empirical data.
This article does not generalize about the outcomes courts in other states might reach, if they followed this approach. Nor does it express a normative judgment about what outcome state courts should reach, as a general matter, when applying uniformity clauses to school choice programs. But it contends that the approach described here will produce outcomes more solidly grounded in historical, doctrinal, and empirical reality than the outcome reached by the Florida Supreme Court in Holmes.
Access to Justice in Italy
Vincenzo Varano
Alessandra De Luca
Vincenzo Varano and Alessandra De Luca (2007) “Access to Justice in Italy,” Global Jurist: Vol. 7: Iss. 1 (Advances), Article 6. Available at: http://www.bepress.com/gj/vol7/iss1/art6
Abstract
This article examines the present situation of access to justice in Italy, trying to highlight the most important trends concerning lawyer fees and legal aid, as well as the structure of civil procedure, including the operation of the justices of the peace and ADR developments. What becomes immediately apparent is a deep crisis hich is centered on delay, whereas the costs of justice are substantially lower in Italy than in most other European countries.
Alessandra De Luca
Vincenzo Varano and Alessandra De Luca (2007) “Access to Justice in Italy,” Global Jurist: Vol. 7: Iss. 1 (Advances), Article 6. Available at: http://www.bepress.com/gj/vol7/iss1/art6
Abstract
This article examines the present situation of access to justice in Italy, trying to highlight the most important trends concerning lawyer fees and legal aid, as well as the structure of civil procedure, including the operation of the justices of the peace and ADR developments. What becomes immediately apparent is a deep crisis hich is centered on delay, whereas the costs of justice are substantially lower in Italy than in most other European countries.
Why Precedent in Law (and Elsewhere) Is Not Totally (or Even Substantially) About Analogy
Frederick Schauer
This working paper is hosted by The Berkeley Electronic Press (bepress) and may not be commercially reproduced without the permission of the copyright holder. http://law.bepress.com/uvalwps/uva publiclaw/art91
Abstract
Cognitive scientists and others who conduct research on analogical reasoning often claim that the use of precedent in law and elsewhere is an application of reasoning by analogy. In fact, however, law’s principle of precedent, as well as the way in which precedent is used in ordinary argument, is quite different. The typical use of analogy in legal argument, including the use of analogies to earlier decisions, involves the retrieval of a source analog (or exemplar) from multiple candidates in order to help make the best decision now. But the legal principle of precedent requires that a prior decision be treated as binding, even if the current decision maker disagrees with that decision. When the identity between a prior decision and the current question is obvious and inescapable, precedent thus imposes a constraint quite different from the effect of a typical argument by analogy. The importance of drawing this distinction between analogy and precedent is not so much in showing that a common claim in the psychological and cognitive science literature is mistaken, but that making decisions under the constraints of binding precedent is itself an important form of decision deserving to be researched in its own right, but which has been ignored because of the erroneous conflation of constraint by precedent with reasoning by analogy.
This working paper is hosted by The Berkeley Electronic Press (bepress) and may not be commercially reproduced without the permission of the copyright holder. http://law.bepress.com/uvalwps/uva publiclaw/art91
Abstract
Cognitive scientists and others who conduct research on analogical reasoning often claim that the use of precedent in law and elsewhere is an application of reasoning by analogy. In fact, however, law’s principle of precedent, as well as the way in which precedent is used in ordinary argument, is quite different. The typical use of analogy in legal argument, including the use of analogies to earlier decisions, involves the retrieval of a source analog (or exemplar) from multiple candidates in order to help make the best decision now. But the legal principle of precedent requires that a prior decision be treated as binding, even if the current decision maker disagrees with that decision. When the identity between a prior decision and the current question is obvious and inescapable, precedent thus imposes a constraint quite different from the effect of a typical argument by analogy. The importance of drawing this distinction between analogy and precedent is not so much in showing that a common claim in the psychological and cognitive science literature is mistaken, but that making decisions under the constraints of binding precedent is itself an important form of decision deserving to be researched in its own right, but which has been ignored because of the erroneous conflation of constraint by precedent with reasoning by analogy.
A Positive Theory of Strict Liability
KEITH N. HYLTON
Boston University
Review of Law & Economics, © 2008 by bepress
In spite of its tenure as the prevailing economic theory of strict liability, the proposition that strict liability should be preferred to negligence when it is desirable to reduce injurers’ activity levels rather than victims’ activity levels raises a few questions. First, when should we prefer to reduce injurers’ activity levels rather than victims’? Second, why should we not hold both victim and injurer strictly liable? This paper provides a model that answers these questions more effectively than the prevailing economic model. Themodel presented here offers specific predictions that are consistent with the detailed law on strict liability
and the appearance of strict liability in pockets rather than as an across-the-board default rule. The choice between strict liability and negligence depends on the degree to which there is a reciprocal exchange of risk among actors, and the extent to which benefits, in addition to risks, are externalized.
Boston University
Review of Law & Economics, © 2008 by bepress
In spite of its tenure as the prevailing economic theory of strict liability, the proposition that strict liability should be preferred to negligence when it is desirable to reduce injurers’ activity levels rather than victims’ activity levels raises a few questions. First, when should we prefer to reduce injurers’ activity levels rather than victims’? Second, why should we not hold both victim and injurer strictly liable? This paper provides a model that answers these questions more effectively than the prevailing economic model. Themodel presented here offers specific predictions that are consistent with the detailed law on strict liability
and the appearance of strict liability in pockets rather than as an across-the-board default rule. The choice between strict liability and negligence depends on the degree to which there is a reciprocal exchange of risk among actors, and the extent to which benefits, in addition to risks, are externalized.
A Method for Reforming the Patent System
Peter S. Menell
University of California, Berkeley
This paper is posted at the eScholarship Repository, University of California. http://repositories.cdlib.org/bclt/lts/34
Abstract
The principal recent studies of patent reform (NAS (2004), FTC (2003), Jaffe and Lerner (2004)) contend that a uniform system of patent protection must (or should) be available for “anything under the sun made by man” based upon one or more of the following premises: (1) the Patent Act requires such breadth and uniformity of treatment; (2) “discriminating” against any particular field of “technology” would be undesirable; (3) discrimination among technologies would present insurmountable boundary problems and could easily be circumvented through clever patent drafting; and (4) interest group politics stand in the way of excluding any subject matter classes from patent law or reforming the patent law requirements, duration, defenses, or remedies for a particular subject matter class. As a result, these studies consider and recommend reforms that would apply to all fields of patentable subject matter (“systemic reforms”) and largely ignore reforms that would either bar particular classes of “technology” from patent protection (e.g., software, business method, genomic sequences) or afford different classes of patentable subject matter different requirements or remedies (“categorical reforms”). This article sets forth a method for evaluating and formulating patent policy that considers both systemic and categorical reforms and sketches out how that method could be applied to the current patent “crisis.”
University of California, Berkeley
This paper is posted at the eScholarship Repository, University of California. http://repositories.cdlib.org/bclt/lts/34
Abstract
The principal recent studies of patent reform (NAS (2004), FTC (2003), Jaffe and Lerner (2004)) contend that a uniform system of patent protection must (or should) be available for “anything under the sun made by man” based upon one or more of the following premises: (1) the Patent Act requires such breadth and uniformity of treatment; (2) “discriminating” against any particular field of “technology” would be undesirable; (3) discrimination among technologies would present insurmountable boundary problems and could easily be circumvented through clever patent drafting; and (4) interest group politics stand in the way of excluding any subject matter classes from patent law or reforming the patent law requirements, duration, defenses, or remedies for a particular subject matter class. As a result, these studies consider and recommend reforms that would apply to all fields of patentable subject matter (“systemic reforms”) and largely ignore reforms that would either bar particular classes of “technology” from patent protection (e.g., software, business method, genomic sequences) or afford different classes of patentable subject matter different requirements or remedies (“categorical reforms”). This article sets forth a method for evaluating and formulating patent policy that considers both systemic and categorical reforms and sketches out how that method could be applied to the current patent “crisis.”
A Critique of the Odious Debt Doctrine
Albert H. Choi
Eric Posner
This working paper is hosted by The Berkeley Electronic Press (bepress) and may not be commercially reproduced without the permission of the copyright holder. http://law.bepress.com/uvalwps/olin/art35
Abstract
Defenders of the odious debt doctrine, which bars creditors from collecting sovereign debts that financed the personal consumption of former dictators, argue that this rule would benefit populations following dictatorships and discourage would-be dictators from staging coups in the first place. We show that optimism about the doctrine is based on unrealistic assumptions about the motives and practices of dictators. With more realistic assumptions, the odious debt doctrine could be eneficial or harmful, depending on circumstances. Defenders of the doctrine have not made the empirical case that the net benefits would be positive if the doctrine were incorporated into international law, and there is ample reason for skepticism that they would be.
Eric Posner
This working paper is hosted by The Berkeley Electronic Press (bepress) and may not be commercially reproduced without the permission of the copyright holder. http://law.bepress.com/uvalwps/olin/art35
Abstract
Defenders of the odious debt doctrine, which bars creditors from collecting sovereign debts that financed the personal consumption of former dictators, argue that this rule would benefit populations following dictatorships and discourage would-be dictators from staging coups in the first place. We show that optimism about the doctrine is based on unrealistic assumptions about the motives and practices of dictators. With more realistic assumptions, the odious debt doctrine could be eneficial or harmful, depending on circumstances. Defenders of the doctrine have not made the empirical case that the net benefits would be positive if the doctrine were incorporated into international law, and there is ample reason for skepticism that they would be.
A Comparative Approach to the Protection of Fashion Innovations
Alexander Wulf
Bucerius Law School
This paper is posted at the eScholarship Repository, University of California. http://repositories.cdlib.org/bclt/lts/39
This paper determines the relevance of industrial property rights to the development of innovations in the fashion industry. It examines how the level of innovation can remain high despite a free exchange of intellectual property – fashion designs – within the industry: The importance of innovation for a fashion business in the industry is determined by the choice of it’s competitive strategy. That is, either to be an innovator who creates fashion innovations or to be an imitator who adopts them once they have proven their ability to prevail in the market. The success of innovators depends largely on their ability to react to fashion trends, reinforced by the social role of fashion products and to the extent of their potential to confer status on the owner. Thus the duration of a temporary monopoly gained by an innovation is limited not only by the market entrance of imitators – a period of time that can be prolonged by making use of industrial property rights protection – but also by the constant changes in fashion, a process barely affected by the utilization of intellectual property rights protection. A monopoly maintained by using intellectual property rights might very well not extend the product life cycle beyond the limits posed by the shifting changes of fashion; moreover, an extended life cycle maintained in these circumstances could seriously limit the innovators agility in satisfying consumer demand in line with fashion trends and provoke an inappropriate allocation of resources to developing unfashionable innovations, resulting in a much greater risk of product failure.
Bucerius Law School
This paper is posted at the eScholarship Repository, University of California. http://repositories.cdlib.org/bclt/lts/39
This paper determines the relevance of industrial property rights to the development of innovations in the fashion industry. It examines how the level of innovation can remain high despite a free exchange of intellectual property – fashion designs – within the industry: The importance of innovation for a fashion business in the industry is determined by the choice of it’s competitive strategy. That is, either to be an innovator who creates fashion innovations or to be an imitator who adopts them once they have proven their ability to prevail in the market. The success of innovators depends largely on their ability to react to fashion trends, reinforced by the social role of fashion products and to the extent of their potential to confer status on the owner. Thus the duration of a temporary monopoly gained by an innovation is limited not only by the market entrance of imitators – a period of time that can be prolonged by making use of industrial property rights protection – but also by the constant changes in fashion, a process barely affected by the utilization of intellectual property rights protection. A monopoly maintained by using intellectual property rights might very well not extend the product life cycle beyond the limits posed by the shifting changes of fashion; moreover, an extended life cycle maintained in these circumstances could seriously limit the innovators agility in satisfying consumer demand in line with fashion trends and provoke an inappropriate allocation of resources to developing unfashionable innovations, resulting in a much greater risk of product failure.
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