LSN: Law & Economics: Private Law (Topic)最新文献

{"title":"The Failed Promise of User Fees: Empirical Evidence from the United States Patent and Trademark Office","authors":"Michael D. Frakes, Melissa Wasserman","doi":"10.2139/ssrn.2295561","DOIUrl":"https://doi.org/10.2139/ssrn.2295561","url":null,"abstract":"Despite the proliferation of user-fee financing structures of governmental agencies, little research has been conducted on the possible influence of such structures on agency decision-making. This paper attempts to fill this gap in the context of the Patent and Trademark Office (PTO). We first suggest that the PTO’s historical fee schedule and its reliance on patent grantees to subsidize patent applicants exposes the Agency to a risk that its obligatory costs will fall out of balance with its incoming fee collections. Second, we theorize the steps that the PTO may take in such instances in order to restore financial balance while allowing it to satisfy as many of its examination obligations as it can. In broad terms, we contend that a budget constrained PTO will distort its examination practices in an effort to increase the average fee income generated per application reviewed and/or to decrease the average examination costs incurred per application processed. We hypothesize that the PTO achieves these goals through the extension of preferential examination treatment — i.e., higher granting propensities and/or shorter wait times — to some technologies over others. Building on Frakes and Wasserman (2013), which had explored the PTO’s inflationary granting response, this paper draws on novel patent-processing data and presents evidence suggesting that the PTO will attempt to maintain as much aggregate application throughput as it can during times of financial strain by prioritizing the examination of applications within those technologies that cost the PTO the least to review.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"17 8","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131747332","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":"Costly Voluntary Disclosure in a Screening Game","authors":"Paul Pecorino, Mark van Boening","doi":"10.2139/SSRN.2285718","DOIUrl":"https://doi.org/10.2139/SSRN.2285718","url":null,"abstract":"We conduct an experimental analysis of pretrial bargaining, while allowing for the costly voluntary disclosure of private information in a screening game. In this game, the theoretical prediction is that costly voluntary disclosures will not occur. This hinges on the prediction that the person making the offer will extract all the joint surplus of settlement from the player making the costly disclosure. If fairness considerations prevent this from occurring, then we may observe costly disclosures when none are predicted to occur. Our chief finding is that plaintiffs with a strong case reveal their private information 42% of the time, when the theoretical prediction is that they should do so 0% of the time. Fairness considerations appear to be important in explaining the deviation from theory. For a plaintiff with a strong case, the return to revealing private information is approximately zero, while theory predicts that this return should be negative.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124662259","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":"Competition in Information Technologies: Standards-Essential Patents, Non-Practicing Entities and FRAND Bidding","authors":"Herbert Hovenkamp","doi":"10.2139/SSRN.2154203","DOIUrl":"https://doi.org/10.2139/SSRN.2154203","url":null,"abstract":"Standard Setting is omnipresent in networked information technologies. Virtually every cellular phone, computer, digital camera or similar device contains technologies governed by a collaboratively developed standard. If these technologies are to perform competitively, the processes by which standards are developed and implemented must be competitive. In this case attaining competitive results requires a mixture of antitrust and non-antitrust legal tools. FRAND refers to a firm’s ex ante commitment to make its technology available at a “fair, reasonable and nondiscriminatory royalty.” The FRAND commitment results from bidding to have one’s own technology selected as a standard. Typically the FRAND commitment is not a promise to charge any particular price, but only a price that meets FRAND expectations. This permits members of a standard setting organization (SSO) to focus on technical issues and worry about the price later. Two important questions that a FRAND commitment typically leaves open is the royalty base and the royalty rate. A strong case can be made that the base should be the smallest saleable unit containing the patented technology. While that base is not entirely free from problems, it does provide a more-or-less common currency. The FRAND obligation that the rate be nondiscriminatory typically, but not always, provides a set of yardsticks for measuring the rate. The non-practicing entity (NPE) that voluntarily declines to participate in an SSO process should generally be held to the FRAND royalty as its measure of its damages, even though its particular patents are not FRAND-encumbered. In this case a “reasonable” royalty is the royalty that the patent holder would have obtained in the competitive market in which it might have participated. The case for limiting NPE damages in this way is strongest when the NPE had actual or objectively reasonable knowledge of the SSO process but declined to participate. The case is weakest when the SSO’s processes were not well communicated to outsiders or the NPE in question was not permitted to participate. FRAND commitments should “run with the patent,” in the sense that owners of FRAND-encumbered patents should not be able to free them simply by assigning the patents to someone else. One fundamental principle of property law is that a property owner cannot transfer away a larger interest than it owns. The entire FRAND commitment process would be worthless if patent holders were able to evade it by the simple device of assigning encumbered patents in order to remove the encumbrance. The question of injunctive relief is only a little more complex. A FRAND commitment is on its face an offer to license to all who employ that patent in their standards-compatible product. True, the precise royalty terms are typically not specified in advance, but that entails that the FRAND royalty will be determined by reference to common indicia such as rates paid for similar technologies in the same or perhaps an","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125689164","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 Trespass Fallacy in Patent Law","authors":"Adam Mossoff","doi":"10.2139/ssrn.2126595","DOIUrl":"https://doi.org/10.2139/ssrn.2126595","url":null,"abstract":"The patent system is broken and in dire need of reform; so says the popular press, scholars, lawyers, judges, congresspersons, and even the President. One common complaint is that patents are now failing as property rights because their boundaries are not as clear as the fences that demarcate real estate — patent infringement is neither as determinate nor as efficient as trespass is for land. This Essay explains that this is a fallacious argument, suffering both empirical and logical failings. Empirically, there are no formal studies of trespass litigation rates; thus, complaints about the patent system’s indeterminacy are based solely on an idealized theory of how trespass should function, which economists identify as the “nirvana fallacy.” Furthermore, anecdotal evidence and other studies suggest that boundary disputes between landowners are neither as clear nor as determinate as patent scholars assume them to be. Logically, the comparison of patent boundaries to trespass commits what philosophers call a “category mistake.” It conflates the boundaries of an entire legal right (a patent), not with the boundaries of its conceptual counterpart (real estate), but with a single doctrine (trespass) that secures real estate only in a single dimension (physical fences). As all law students learn in their first-year Property courses, estate boundaries are defined along the dimensions of time, use, and space, as represented in doctrines like future interests, easements, nuisance, and restrictive covenants, among others. The proper conceptual analog for patent boundaries is “estate boundaries,” not fences. In sum, the trespass fallacy is driving widely accepted critiques of today’s patent system that are empirically unverified and conceptually misleading.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127143173","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 Reflections on Freedom of Establishment of Non-Profit Entities in the EU","authors":"Stefano Lombardo","doi":"10.2139/ssrn.2115107","DOIUrl":"https://doi.org/10.2139/ssrn.2115107","url":null,"abstract":"This article deals with the exclusion of non-profit-making entities from the right of freedom of establishment of Articles 49 and 54 TFEU. The article analyses the historical reasons for this exclusion. It is argued that the exclusion from freedom of establishment is no longer justified on the basis of two elements. Firstly, the development of the jurisprudence of the European Court of Justice in the fields of competition law, free movement of capital and tax law makes such exclusion systematically no longer tenable. Secondly, a law and economics treatment of non-profit firms as organisations that efficiently provide goods and services in alternative to for-profit firms weakens the reasons for the exclusion. The article proposes a uniform, European notion of non-profit entity based on a law and economics analysis of this type of firm for the purposes of Article 54 TFUE as opposed to possible different national notions. The article then analyses briefly the hypothesis of regulatory competition among jurisdictions for the provision of the law regulating the corporate governance of non-profit entities.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123057799","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":"Why do Shareholder Derivative Suits Remain Rare in Continental Europe?","authors":"Martin Gelter","doi":"10.2139/ssrn.2000814","DOIUrl":"https://doi.org/10.2139/ssrn.2000814","url":null,"abstract":"The objective of this symposium piece is to explore why shareholder derivative suits are rare in Continental Europe, while they are the central mechanisms of corporate governance enforcement in the United States. I focus on Germany, France and Italy, and provide more limited references regarding derivative suits in Austria, Belgium, the Netherlands, Spain, and Switzerland. The two points I seek to make can be summarized under the headings of the “Anna Karenina Principle” and “The Path of Least Resistance.”Jared Diamond popularized the “Anna Karenina Principle” based on the first line of Leo Tolstoy’s classic novel, according to which “all happy families are alike.” Diamond varies the idea to explain that an animal species, to be susceptible to domestication by humans, needs to meet a list of criteria. It fails the test if a single one is not met. An analogous point can be made for derivative suits. Only the US and Japan seem to “get it right” with respect to all necessary criteria to make derivative litigation an attractive model for shareholders. In other words, no single factor suffices to explain the scarcity of derivative litigation in Continental Europe. Each country fails the test with respect to at least one criterion, most fail with respect to several. I survey the available explanations and additional ones, focusing on minimum share ownership requirements, the allocation of litigation risk, access to information, and limitations regarding potential defendants.The small number of derivative suits is often seen as a reason why Continental European corporate law is underenforced. While I do not attempt to disprove this claim, I suggest that that there is a significant degree of corporate law enforcement in Continental Europe. If derivative suits are difficult, disgruntled shareholders will take the “Path of Least Resistance” and resort to other enforcement mechanisms. I therefore address other ways in which shareholders can seek judicial recourse that do not take the shape of derivative litigation, namely rescission suits, which are common in several countries, but subject to a particularly intense debate in Germany; criminal enforcement, on which shareholders are able to “piggyback” e.g. in France; and the Dutch model of judicial “inquiry proceedings.” Each of these provides makes it easier for shareholders to seek redress than derivative suits, who are likely to seek the “path of least resistance” in litigation. While the success of these mechanisms that corporate law is equally strongly enforced as it is in the United States, we can identify some partial functional equivalents.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122511946","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":"CISG Versus English Sales Law: An Unfair Competition","authors":"Qi Zhou","doi":"10.2139/ssrn.1941845","DOIUrl":"https://doi.org/10.2139/ssrn.1941845","url":null,"abstract":"This paper aims to answer the question why so many international traders choose English Sales Law instead of the CISG to govern their transactions.Through a comparison of the CISG and English Sales Law, this paper articulates the major competitive disadvantages of the CISG, and then suggests certain improvements for future reform.The discussion proceeds as follows. Section 2 sets the analysis into the historical context, reviewing briefly the developing histories of The CISG and English Sales Law. It is argued that English Sales Law has been widely used by commercial parties long before the enactment of the CISG. As a consequence, it has already established a dominant position in international trade which can hardly be challenged by the CISG. Section 3 addresses the fragmentary features of the CISG. Because of the way in which the CISG is drafted, many conflicting interests need to be balanced so that certain compromises have to be made. The CISG inevitably becomes a fragmentary body of legal rules, which undermines significantly its competitive advantages. The problems of ambiguity in the CISG and conflicting interpretations produced by its member states are evaluated in Sections 4 and 5 respectively, Finally, Section 6 concludes the discussion by offering some suggestions for future reform.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124025242","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":"Institutions as a Factor of Risk in Alternative Capital Markets","authors":"Krzysztof Waśniewski","doi":"10.2139/ssrn.1877699","DOIUrl":"https://doi.org/10.2139/ssrn.1877699","url":null,"abstract":"The present paper studies the influence of institutions upon the risk incurred in alternative capital markets, in the lines of the old institutional school of economics. A game-theoretic model is introduced, presenting the alternative capital markets as Harsanyi’s games with imperfect information, succeeding to each other in a Selten’s extensive game with imperfect recall. Market participants’ behaviour is made of strategies oriented on cash flows and indirect benefits, through the usage of discretionary freedom of choice offered by the applicable law. The overall level of risk in the market depends on whether these strategies reach, collectively, a state of Nash’s dynamic equilibrium, or not. The institution of nominated advisers, in two alternative capital markets, namely the British AIM and the Polish New Connect, is studied on the grounds of the model. The main finding is that, although the regulations of both markets create significant risk through the discretionary freedom of choice that the operators of these markets attribute to themselves, in terms of social games the markets seem to be quite stable. In conclusion, numerous hypotheses for further research are formulated, in particular that alternative capital markets are still institutionally young and experimental.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"515 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127558696","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":"Reversible Rewards","authors":"O. Ben‐Shahar, A. Bradford","doi":"10.2139/ssrn.1864043","DOIUrl":"https://doi.org/10.2139/ssrn.1864043","url":null,"abstract":"This article offers a new mechanism of private enforcement, combining sanctions and rewards into a scheme of “reversible rewards.” The enforcing party sets up a precommitted fund and offers it as reward to another party to refrain from violation. If the violator turns down the reward, the enforcer can use the money in the fund for one purpose only—to pay for punishment of the violator. The article shows that this scheme doubles the effect of funds invested in enforcement and allows the enforcer to stop violations that would otherwise be too costly to deter. It argues that reversible rewards could be used to bolster the enforcement of rights in selective areas of private and international law and could also be applied strategically in litigation in contexts where compliance incentives are otherwise weak.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"187 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131514267","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":"Law and Economics versus Economic Analysis of Law","authors":"Geoffrey P. Miller","doi":"10.2139/ssrn.1804920","DOIUrl":"https://doi.org/10.2139/ssrn.1804920","url":null,"abstract":"This paper distinguishes law and economics – conceived as an equal partnership between two disciplines – and economic analysis of law, conceived as the application of economic reasoning to legal rules and institutions. I explore the difference by contrasting Robert Aumann’s economic analysis of a text from the Talmud with an analysis of the same text conducted from within the framework of law and economics. The paper demonstrates that law and economics and economic analysis of law offer complementary means for obtaining information about the social world.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"92 6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-04-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123305451","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}