Law & Society: Private Law eJournal最新文献

{"title":"A Challenging Ménage À Trois? Tripartism in the International Labour Organization","authors":"Claire La Hovary","doi":"10.2139/ssrn.2684455","DOIUrl":"https://doi.org/10.2139/ssrn.2684455","url":null,"abstract":"This article explores one of the foundational features of the International Labour Organization (‘ILO’) – tripartism, or in other words, the fact that it is an institution that brings together representatives of Governments, Employers and Workers – in the light of recent events that have threatened the Organization’s smooth functioning. Disagreement over the interpretation of a convention within the ILO supervisory bodies has revealed the changing balance of power between Employers and Workers, and potentially signals a need to rethink the basis of tripartism. At the same time, however, tripartism is a fundamental distinguishing feature of the ILO, one that arguably sets it apart from other international bodies, and is essential to both the organization’s mission and the generation of international labour law more generally. This article re-visits the notion of tripartism, examines the problems that its practice within the ILO raises including with regard to issues of representativity and more recent disagreements, as well as the true significance of the current crisis of tripartism and its possible impact for the ILO and international labour law.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121381019","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":"Carbon Credits As EU Like It: Property, Immunity, TragiCO2medy?","authors":"K. F. Low, Jolene Lin","doi":"10.1093/JEL/EQV020","DOIUrl":"https://doi.org/10.1093/JEL/EQV020","url":null,"abstract":"While there have been many legal studies of the European Union Emissions Trading Scheme, few have considered the effectiveness of the EU ETS as a matter of private law design. The authors propose to do so by tracing the history of the scheme, studying the English decision of Armstrong DLW GmbH v Winnington Networks Ltd [2012] EWHC 10 (Ch), [2013] Ch 156, as well as analysing the new EU Registry Regulations promulgated since then. We conclude that the EU ETS is handicapped by conceptual failings and exposes participants to unnecessary uncertainty that national courts will find difficult to resolve.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128812416","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":"New Philosophical Foundations of Tort Law?","authors":"Avihay Dorfman","doi":"10.2139/ssrn.2555525","DOIUrl":"https://doi.org/10.2139/ssrn.2555525","url":null,"abstract":"In this critical piece I take stock of current understandings of five basic distinctions in the theoretical study of tort law: First, a meta-theoretical distinction between the law’s self-presentation and a commitment to epiphenomenalism; second, between the formal and the substantive theory of the morality of tort law; third, between corrective and distributive justice; fourth, between ideal and non-ideal tort theory; and finally, between culpability and justice (or equality).","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121574398","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":"A New Framework for Determining Reasonable Royalties in Patent Litigation","authors":"Norman Siebrasse, Thomas F. Cotter","doi":"10.2139/ssrn.2528616","DOIUrl":"https://doi.org/10.2139/ssrn.2528616","url":null,"abstract":"Conventional analysis often assumes that there are only two theoretical options for calculating a reasonable royalty in patent disputes: a “pure ex ante” approach, under which a court reconstructs the hypothetical bargain the parties would have struck prior to infringement, based on the information available to them at that time; and a “pure ex post” approach, under which the court considers the bargain the parties might have reached as of some later date such as the date of judgment. The first approach avoids patent holdup — basing the royalty partly on the infringer's sunk costs — but cannot easily explain other longstanding features of how royalties are calculated, and can lead to awards that reflect the parties’ erroneous ex ante expectations. By contrast, the pure ex post approach uses more accurate information about the invention’s actual value, but it also enables the patentee to capture some of the patent’s ex post holdup value. In this Article, we show that a “contingent ex ante” framework, under which the court reconstructs the bargain the parties would have reached ex ante, based on all relevant information that is available ex post, is superior to both of the conventional approaches. More specifically, our framework enables courts to base the royalty on the most accurate information available of patent value while avoiding the holdup risk arising from the pure ex post approach. We analyze how courts can apply our approach in various settings, including cases involving SEPs, sequential infringement, regulatory uncertainty, and unexpected exogenous events.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128211781","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":"Efficient Contextualism","authors":"Peter M. Gerhart, Juliet P. Kostritsky","doi":"10.5195/lawreview.2015.362","DOIUrl":"https://doi.org/10.5195/lawreview.2015.362","url":null,"abstract":"This Article recommends an economic methodology of contract interpretation that enables the court to maximize the benefits of exchange for the parties and thereby enhance the institution of contracting. We recommend a methodology that asks the parties to identify the determinants of a surplus maximizing interpretation so that the court can determine whether the determinants raise issues that need to be tried. We thus avoid the false choice between textualist and contextualist methodologies, while allowing the parties and the court to avoid costly litigation. For textualist courts, our methodology helps the judge determine when the terms the parties used are ambiguous enough to require the court to consider context. For contextualist courts, it streamlines the interpretive inquiry by identifying which contextual facts are important and why, which allows courts to avoid or streamline trials. Our method therefore allows courts to avoid the problems of textualism (which can make easy cases difficult) and anything-goes-contextualism (which can make difficult cases unmanageable). Our methodology reflects a model of bargaining that emphasizes the divergent interests and preferences of the parties. Although both parties seek to minimize the costs of contracting, the parties have divergent views about those costs and about the tradeoffs each must make to minimize those costs. Accordingly, we deny that courts can find the meaning of a disputed term in the intent of the parties. Instead, we believe that courts must identify (a) the set of obligations that, in the context of the parties’ private projects and undisputed terms, increase contractual surplus and (b) the party who is in the best position to avoid the dispute (and thus lower the cost of contracting) by identifying the terms on which the parties disagree ex ante. We present a structured analytical framework that courts and other enforcers should use to determine which interpretation offered by the parties maximizes the surplus, given the undisputed terms of the contract and the bargaining position of the parties. Courts and other enforcers should not try to influence how other contractors act, except by faithfully determining the surplus maximizing interpretation; nor should they seek to determine what obligations other contracting parties might have undertaken, nor on how hypothetical bargainers might have bargained.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121912081","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":"Virtual Worlds – A Legal Post-Mortem Account","authors":"Edina Harbinja","doi":"10.2966/SCRIP.110314.273","DOIUrl":"https://doi.org/10.2966/SCRIP.110314.273","url":null,"abstract":"This paper addresses the lack of legal literature in the area of death and virtual worlds. It sheds light on the legal status of different in-game assets, assessing whether these could fit within the notions of property or other relevant legal concepts such as intellectual property, usufruct, or easements. Having determined this, the paper goes on to explore the possibilities regarding the transmission of these assets on death. The author does not share views of a great portion of the legal literature arguing for recognition of \"virtual property\" as a concept. Rather, this paper proposes an alternative solution in order to reconcile different interests arising in VWs; primarily, those of developers and players. Recognising a phenomenon of consitutionalisation of VWs, this article suggests a solution in the form of servitudes (usufruct). Virtual usufruct is herein conceived as player's entitlement to use the VW account and profit from it, if applicable. It is suggested that the entitlement to use the account expires on death, but that it allows a player's personal representative/executor to gain access to the account and extract any possible monetary value. This solution would enable players to take more control over their virtual assets and heirs to potentially benefit from valuable VW accounts.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124262871","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 Intellectual Property Conundrum: Individual Property Rights v. Cultural Development","authors":"E. Youngstrom","doi":"10.2139/ssrn.2523588","DOIUrl":"https://doi.org/10.2139/ssrn.2523588","url":null,"abstract":"The premise behind modern intellectual property rights is to incentivize innovation. However, the modern intellectual property rights regime has three fundamental flaws that cut against its premise to kindle innovation. First, the modern regime conflicts with humans' innate learning and innovating process. Second, the modern regime restricts access to information, which stifles innovation evidenced by empirical studies. Third, the current formation of the social tradeoff is not effective, so it does not benefit society. In sum, the modern regime does not increase technological achievements, i.e. cultural development. These factors suggest alternative legal policies should be adopted, so governments can create laws that foster cultural development. Thus, if the end goal is truly to promote humanity’s wellbeing, then intellectual property rights must be reformed because they stifle innovation and criminalize creativity.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130465507","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":"Pharmaceutical Patent Enforcement: A Developmental Perspective","authors":"Shamnad Basheer, Jay Sanklecha, Prakruthi Gowda","doi":"10.2139/ssrn.2535763","DOIUrl":"https://doi.org/10.2139/ssrn.2535763","url":null,"abstract":"Although standards for the grant of intellectual property rights often take center stage in the literature on intellectual property and development, intellectual property enforcement is largely ignored. This paper seeks to fill this gap, albeit to a limited extent, by focusing on the standards for the grant of injunctions in patent infringement suits.This is particularly relevant, as a number of developing countries, such as India, are faced with burgeoning patent disputes disputes that have enormous implications for the future of innovation and the issue of access to patented goods, notably pharmaceuticals. Given that interim injunctions are largely dispositive of intellectual property disputes in many cases, this chapter focuses largely on such injunctions.The standards for the grant of injunctions ought to be calibrated in a manner that appropriately balances the interests of the patentee in securing timely and effective enforcement of her rights with the public interest in guarding against erroneous injunctions (i.e. where the patent turns out to be invalid or not infringed after trial). Such wrongly granted injunctions harm not only competitors against whom they are granted, but also consumers who are forced to pay a monopoly price during the subsistence of the injunction/restraining order.We recommend that, when faced with a complex patent dispute where it is difficult to legitimately assess the strength of each party’s case at the interim stage and effectively predict who is more likely to win at trial, courts move directly to the trial stage - a suggestion that is coming to be increasingly adopted by the Indian Supreme Court. We argue that this is a TRIPS flexibility that developing countries, such as India, can legitimately exploit. We also highlight issues of institutional capacity and ask: Should developing countries such as India institute specialist intellectual property courts to decide patent infringement suits? Would this make for more optimal intellectual property adjudication? Though specific to India, most of the suggestions in this chapter could prove useful for a number of other developing countries, particularly those that follow common law and are yet to experience a significant number of patent infringement cases.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120843312","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":"Inventing in the Shadow of the Patent System: Evidence from 19th-Century Patents and Prizes for Technological Innovations","authors":"B. Khan","doi":"10.3386/w20731","DOIUrl":"https://doi.org/10.3386/w20731","url":null,"abstract":"Such institutions as patent systems cannot be well understood without an assessment of technological creativity in other contexts. Some have argued that prizes might offer superior alternatives to the award of property rights in inventions. Accordingly, this paper offers an empirical comparison of patents in relation to the award of prizes for technological innovation. The data set comprises a sample of patents, as well as exhibits and prizes at annual industrial fairs in Massachusetts over the course of the nineteenth century. The patterns shed light on the factors that influenced how specific inventions and inventors attempted to appropriate returns. Prizes in general provided valuable prospects for advertisements and commercialization, rather than inventive activity per se. Prize winners typically belonged to more privileged classes than the general population of patentees, as gauged by their wealth and occupational status. Moreover, the award of prizes tended to largely unpredictable, and was unrelated to such proxies for the productivity of the innovation as inventive capital or the commercial success of the invention. Prize-oriented institutions thus appear to be less systematic and not as market-oriented as patent systems. If inventors respond to expected returns, prizes may be less effective at inducing technological creativity.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133177064","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":"Charging Orders: How Exclusive is Exclusive?","authors":"M. Lovell","doi":"10.2139/SSRN.2526543","DOIUrl":"https://doi.org/10.2139/SSRN.2526543","url":null,"abstract":"Several state LLC, LP and LLP statutes provide charging order protection for these entities which may provide substantial protection from creditors beyond that which available with a corporation. Many of these statutes indicate the charging order is the exclusive remedy available to creditors. Is charging order protection this strong? There are only limited cases on point. Recent case law in this emerging area of judicial development provides a glimpse of how exclusive the charging order currently is. These cases also inform the factors courts look at and approaches a court may take when determining how exclusive the charging order remedy is.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"553 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116515580","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}