Columbia Law School最新文献

{"title":"The Economic Impact of Laws that Weaken Encryption","authors":"G. Barker, W. Lehr, M. Loney, D. Sicker","doi":"10.2139/ssrn.3866902","DOIUrl":"https://doi.org/10.2139/ssrn.3866902","url":null,"abstract":"The focus of this report is to assess the available evidence of the impact on the Australian and global economies of the Australian Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (better known as “TOLA”). TOLA created a framework by which law enforcement and intelligence agencies, or LEIAs, could request or require information technology providers, or in the terminology of TOLA – Designated Communications Providers (DCPs) – to provide assistance in accessing the content of encrypted data, which may involve sharing of confidential company information or the development of new capabilities. <br><br>Our analysis leads us to conclude that TOLA has the potential to result in significant economic harm for the Australian economy and produce negative spillovers that will amplify that harm globally. By significant, we mean economic harms measurable in the multiple billions of dollars that are broad-based and likely to be (primarily) realised in coming years. <br><br>Section 3 provides a brief overview of TOLA’s history and legal impact. After an abbreviated and fast process, TOLA was passed in December 2018. Subsequently, TOLA has been subject to multiple reviews, each of which has recommended modifications to the legislation and its application. Section 4 explains the critical role that encryption plays in securing digital data and highlights some of the technical implications of introducing expanded capabilities to circumvent encryption. Section 5 addresses the potential economic impacts of TOLA. The conclusion that emerges from this analysis is that TOLA risks incurring significant future economic costs that are unlikely to be offset by future compensating economic benefits. This conclusion is warranted even though a precise quantification of the net economic impact is not feasible based on the data and research available to date, in part due to the opacity that TOLA creates. <br><br>There are numerous mechanisms identified by which TOLA may impose economic harms. For example, TOLA increases business uncertainty. Second, TOLA can harm the brand image of DCPs with operations in Australia that are vulnerable to the threat TOLA poses for the digital security of their products and services.Internet users, concerned that their data may be rendered less secure due to TOLA may opt to take their business elsewhere. Such responses can reduce DCP revenues and increase DCP operating costs as DCPs adopt work-around strategies to offset the TOLA-related threats. These direct effects need not be limited to DCPs that receive TOLA notices: they may be incurred by DCPs in anticipation of receiving a TOLA notice or by other entities concerned about the impact of TOLA. Those entities need not be limited to DCPs but may include their customers. In aggregate, these direct and indirect effects are likely to be broad-based and accumulate over time as effects ripple through the economy. Third, perhaps the single biggest source of adverse e","PeriodicalId":10506,"journal":{"name":"Columbia Law School","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72759031","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Antitrust Compliance: Collusion","authors":"J. Paha, Florence Thépot","doi":"10.1017/9781108759458.059","DOIUrl":"https://doi.org/10.1017/9781108759458.059","url":null,"abstract":"Focusing on collusive behavior, this chapter outlines the complexity associated with both the ex ante design of antitrust compliance programs and the ex post assessment of their impact. Following an interdisciplinary review of relevant literature, the chapter provides a structured cost–benefit approach to compliance and challenges the idea that compliance cannot be rationalized. We recognize that measurement of compliance programs may be particularly difficult in light of the importance of less-tangible factors such as corporate culture. Yet, the chapter proposes that a principled approach to compliance would considerably support the work of practitioners. Future research should concentrate on studying the interaction effects of compliance mechanisms and corporate culture. Such large-scale empirical studies on individual and firm-specific factors of compliance might be promoted and coordinated by competition authorities.","PeriodicalId":10506,"journal":{"name":"Columbia Law School","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72546502","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Corporate Law and the Theory of the Firm: Reconstructing Corporations, Directors, Owners, and Investors","authors":"W. Huber","doi":"10.2139/ssrn.3547632","DOIUrl":"https://doi.org/10.2139/ssrn.3547632","url":null,"abstract":"Dozens of judicial opinions have held that shareholders own corporations, that directors are agents of shareholders, and even that directors are trustees of shareholders’ property. Yet, until now, it has never been proven. These doctrines rest on unsubstantiated assumptions. <br><br>In this book the author performs a rigorous, systematic analysis of common law, contract law, property law, agency law, partnership law, trust law, and corporate statutory law using judicial rulings that proves shareholders do not own corporations, that there is no separation of ownership and control, directors are not agents of shareholders, and shareholders are not investors in corporations. Furthermore, the author proves the theory of the firm, which is founded on the separation of ownership and control and directors as agents of shareholders, promotes an agenda that wilfully ignores fundamental property law and agency law. However, since shareholders do not own the corporation, and directors are not agents of shareholders, the theory of the firm collapses.<br><br>The book corrects decades of confusion and misguided research in corporate law and the economic theory of the firm and will allow readers to understand how property law, agency law, and economics contradict each other when applied to corporate law. It will appeal to researchers and upper level and graduate students in economics, finance, accounting, law, and sociology, as well as attorneys and, accountants.","PeriodicalId":10506,"journal":{"name":"Columbia Law School","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80463159","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Some Issues on the Law of Direct Damages (US and UK)","authors":"Victor P. Goldberg","doi":"10.2139/ssrn.3509586","DOIUrl":"https://doi.org/10.2139/ssrn.3509586","url":null,"abstract":"When a contract is breached both US and UK law provide that the non-breaching party should be made whole. I propose a general principle that should guide implementation—the contract is an asset and the problem is one of determining the change in value of that asset at the time of the breach. In the simplest case, the breach of a contract for the sale of a commodity in a thick market, the change in the value of the asset is simply the contract-market differential; the contract-as-asset notion doesn’t add much. It becomes more useful as we move away from that extreme—imperfect substitutes, future deliveries, or long-term contracts. Thus, for example, it makes little sense to talk of the contract-market differential if the buyer repudiated a 20-year take-or-pay contract in the third year. The damage rule should be viewed as the price of the option to terminate. Parties might choose to make that price explicit, perhaps with liquidated damages. In the absence of an explicit exit price, the make-whole rule becomes the default option price. \u0000 \u0000The paper considers the implications of this framing for a number of questions in US and UK contract law: (1) the relation between cover and market damages in the US; (2) the English analog: the concept of the available market; (3) the measurement date following an anticipatory repudiation; (4) the relevance of post-repudiation facts (The Golden Victory problem).","PeriodicalId":10506,"journal":{"name":"Columbia Law School","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75660366","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Unconventional Monetary Policy Tools: Evolutionary Developments Since the General Financial Crisis (Presentation Slides)","authors":"Marianne Ojo D Delaney PhD","doi":"10.2139/ssrn.3500992","DOIUrl":"https://doi.org/10.2139/ssrn.3500992","url":null,"abstract":"As well as highlighting why Unconventional Monetary Policy Tools have become so important, this presentation aims to highlight wide ranging implications from monetary and stability goals, to environmental implications. With a focus on the \"Report of the Working Group and Committee on the Global Financial System Unconventional Monetary Policy Tools A Cross Country Analysis”, the presentation aims to contribute to the extant literature on the topic by proposing how the role carried out by certain unconventional monetary policy tools namely tools for forward guidance, could be harnessed to great potential through emerging technologies such as Artificial Intelligence and machine learning technologies.","PeriodicalId":10506,"journal":{"name":"Columbia Law School","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78490950","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Choice Theory: A Restatement","authors":"Hanoch Dagan, M. Heller","doi":"10.4337/9781788971621.00012","DOIUrl":"https://doi.org/10.4337/9781788971621.00012","url":null,"abstract":"This chapter restates choice theory, which advances a liberal approach to contract law. First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to be proactive in facilitating the availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to re-write the story of one’s life. The final principle concerns relational justice, the baseline for any legitimate use of the contract power. We conclude this restatement of choice theory by highlighting its most important jurisprudential payoff – how our account relates to and improves on the economic analysis of contract. Choice theory is the modest price that economic analysis must pay to account for individual freedom.","PeriodicalId":10506,"journal":{"name":"Columbia Law School","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89014417","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Music Value Gap and the Cross Subsidy to The Information and Communications Technology (ICT) Industry from The Recorded Music Industry in Canada","authors":"G. Barker","doi":"10.2139/ssrn.3343546","DOIUrl":"https://doi.org/10.2139/ssrn.3343546","url":null,"abstract":"This paper develops measures of both: <br><br>- The extent of the value gap in Canada’s recorded music industry, and <br>- The size of the cross subsidy from Canada’s recorded music industry to internet service providers (ISPs) and other actors in the Information and Communication Technology (ICT) industry. <br><br>These outcomes are both the result of decisions to adopt a weak copyright liability regime for the Internet in Canada that creates immunities from copyright liability for ISPs and ICT infrastructure firms.<br> <br>On the value gap in Canada’s recorded music industry, previous work has measured the gap between actual Canadian recorded music revenues and what they would have been had they kept up with Canadian inflation and GDP growth:<br><br>• By 2017 the annual recorded music value gap was over Cd$1.6 billion. <br>• The cumulative total Canadian recorded music value gap since 1997, or total lost, or foregone revenues in Canada over the twenty-year period, is around $19.3 billion. <br>• The average annual increase in the music industry Value Gap from 1997 to 2017 in Canada was $82 million per annum and<br>• The value gap has continued to grow, despite growth in streaming music revenues driving a slight increase in nominal revenues. Growth Canadian music market is still less than the rate of inflation and real GDP growth rate in the rest of the economy.<br><br>On the cross subsidy from Canada’s recorded music industry to Internet service providers (ISPs) and other actors in the Information and Communication Technology (ICT) industry this paper shows:<br><br>- The cross subsidy from the recorded music industry in Canada to online Ad networks’ advertising revenues was around CAD 82 million per annum in 2017. This is the estimated revenues of online Ad Networks derived from unauthorised music acquisition activity in 2017. <br><br>- The cross subsidy from the recorded music industry in Canada to internet infrastructure services firms is estimated to be as high as CAD 2.1 billion per annum in 2017. This is based on the total amount of internet services revenues that might be attibuted to unauthorised file sharing of copyright content. <br>","PeriodicalId":10506,"journal":{"name":"Columbia Law School","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80858005","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fraudulent Corporate Transactions: Reworking Regulating Silos","authors":"Dr. Paramjyot Singh","doi":"10.2139/ssrn.3868376","DOIUrl":"https://doi.org/10.2139/ssrn.3868376","url":null,"abstract":"Recent times are witness to corporate frauds of various kinds and dimensions. They effect companies and financial entities of all size, sector and region and have taken for surprise the law enforcement agencies of the very advanced and developed economies as well as the developing or the developed ones, with high growth rate. Stringent penal provisions in the capitalist west was unable to contain the malaise of fraud. Post liberalization of the economy, the occurrence of corporate fraud has increased manifold in India. The regulations introduced often lagged behind the pace of corporate development. In fact, the system of regulating financial institutions in India was always highly fragmented, outdated and ineffective. It managed regulations with the help of multitude of agencies, self-regulatory organizations and state authorities who share oversight of the financial system under a sort of adhocism, often symptomatic of a framework uncomfortably saddled with gaps in regulatory silos, legal complexities and institutional inefficiencies.","PeriodicalId":10506,"journal":{"name":"Columbia Law School","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77172321","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Google’s ‘Search Bias’ in India: What the Debate Is and How the CCI Got It Wrong","authors":"M. Singh","doi":"10.2139/ssrn.3289118","DOIUrl":"https://doi.org/10.2139/ssrn.3289118","url":null,"abstract":"Google has faced charges of abuse of dominant position in many jurisdictions across the world including India. One of the primary grounds for this charge has been favouring its own vertical or sponsored content by placing it more prominently in the search results page also known as “search bias.” The Competition Commission of India’s decision on “search bias” which came a few months after the European Commission’s Comparison Shopping decision has been a subject of much controversy not least because it took a stance quite different from that taken by the EC. This article analyses the CCI’s decision and critiques it in two ways. First, the internal inconsistencies and logical fallacies in the decision are pointed out. Three search features of Google were under the lens and this article concludes that seemingly different standards have been applied for assessing each of these three features. Second, the article refers to the academic literature available on the topic to categorise the issues in the case into three primary debates and uses this three-pronged framework to examine the CCI’s decision. Applying the framework to the case it is concluded that the CCI at best did a partial analysis of the issues which formed the crux of the case.","PeriodicalId":10506,"journal":{"name":"Columbia Law School","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87081578","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Blockchain, Business Supply Chains, Sustainability, and Law: The Future of Governance, Legal Frameworks, and Lawyers?","authors":"A. Sulkowski","doi":"10.2139/ssrn.3262291","DOIUrl":"https://doi.org/10.2139/ssrn.3262291","url":null,"abstract":"Blockchain technology has been hailed as the next disruptive leap forward in data sciences. Most legal scholarship related to the topic has focused on its relevance to finance, but it could revolutionize business supply chains. Specifically, blockchain-enabled solutions are expected to improve the reliability of data related to supply chains and to help businesses eliminate fraud, inefficiencies, waste, and harms to people and the environment. Despite the surrounding hype, this paper will explain why the promise of distributed electronic ledgers will only be realized in the context of effective governance and legal frameworks. This paper draws upon scholarly articles and the opinions of entrepreneurs actively engaged in bringing blockchain-enabled technologies to market to arrive at two sets of related conclusions. First, that the benefits of the technology — including its potential to help businesses prosper while eliminating societal and environmental harms — will only be realized in the context of enabling frameworks of law. Second, the author articulates how the role of the legal profession vis-a-vis business clients will evolve in the era of blockchain-enabled business supply chain optimization.","PeriodicalId":10506,"journal":{"name":"Columbia Law School","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88887481","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}