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

{"title":"Incomplete Contracts, Contingent Fiduciaries, and a Director’s Duty to Creditors","authors":"A. Keay, Hao Zhang","doi":"10.2139/SSRN.1788602","DOIUrl":"https://doi.org/10.2139/SSRN.1788602","url":null,"abstract":"This article presents economic arguments for extending a limited form of fiduciary duty to creditors. It clarifies the two components of debtor-firm opportunism against creditors: director-opportunism and shareholder-opportunism. The analysis, carried out within the economic perspective of incomplete contracts, focuses on three elements: incomplete contracts, self-interest seeking individuals, and consequential ex post opportunism. The emphasis is on suggesting that the catalyst for a fiduciary duty is the presence of opportunistic behaviour, rather than arguing that it will depend on when a firm is in, near, or in danger of insolvency.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"172 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121138653","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 Financial System Capacities in China and India","authors":"Franklin Allen, R. Chakrabarti, Sankar De, Jun Qian, Meijun Qian","doi":"10.2139/ssrn.1260947","DOIUrl":"https://doi.org/10.2139/ssrn.1260947","url":null,"abstract":"In this paper we examine and compare the formal systems of law and finance in China and India and the alternative institutional arrangements and governing mechanisms in the two countries, and the relation between the development of these systems and their economic growth. China differs from most of the countries studied in the law, institutions, finance, and growth literature: Its legal and financial systems as well as institutions are all underdeveloped, but its economy has been growing at a very fast rate. More importantly, the growth in the Private Sector, where applicable legal and financial mechanisms are arguably poorer than those in the State and Listed sectors, is much faster than that of the other sectors. The system of alternative mechanisms and institutions plays an important role in supporting the growth in the Private Sector, and they are good substitutes for standard corporate governance mechanisms and financing channels. Despite its English commonl aw origin and British-style judicial system and democratic government, there is enough documented evidence to suggest that the effective level of investor protection and the quality of legal institutions in India are quite weak as well. Once again, this has evidently not prohibited growth. We find that to a large extent Indian firms conduct business outside the formal legal system and do not rely on formal financing channels from markets and banks for most of their financing needs. Instead, firms across the board, and in particular, small and medium firms, use non-legal methods based on reputation, trust and relationships to settle disputes and enforce contracts, and rely on alternative financing channels such as trade credits to finance their growth. The scope, methodologies, and results of our paper paint a more complete picture of the law-finance-growth nexus and how businesses and investors respond to the limitations of legal system and formal financial system than existing studies.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116775231","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":"Making Sense of Nation-Level Bankruptcy Filing Rates","authors":"Ronald J. Mann","doi":"10.2139/ssrn.1012739","DOIUrl":"https://doi.org/10.2139/ssrn.1012739","url":null,"abstract":"Increased rates of consumer bankruptcy filings are a policy concern around the world. It is not easy, however, to explain the variations in per capita filing rates from country to country. Some of the variation is attributable to different levels of indebtedness. Some is attributable to different cultural attitudes about financial failure. And some is attributable to the accessibility of the legal system as a remedy for irremediable financial distress. This paper analyzes the differences in nation-level, per capita filing rates. I start with a model that uses economic variables to explain nation-level variations in filing rates. The economic and statistical significance of the coefficients on country dummy variables in that model suggests that noneconomic variables also play an important role in explaining differences in filing rates. Two findings are salient. First, the bulk of the uniquely high filing rate in the United States is attributable to economic conditions, not cultural attitudes or the legal system. Second, after controlling for economic conditions, Canada's filing rate is by far the highest of any of the countries for which adequate data is available. The paper then undertakes to explain those findings. It considers both why Canada's propensity to file is so much higher than that of the U.S., and why Australia's is so much lower. Generally, back-end issues related to the timing of a discharge and the payments required to obtain it are relatively unimportant. Back-end issues matter primarily to the relatively small sector of bankruptcy filers with significant income or assets. For the great mass of potential filers (who have little or no income or assets), the most important issues are front-end barriers to filing, whether they come from procedural obstacles or from cultural attitudes about financial distress (as reflected in civil disabilities imposed on bankrupts).","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125893536","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":"Economic Functions of Collecting Societies - Collective Rights Management in the Light of Transaction Cost - and Information Economics","authors":"G. Hansen, Albrecht Bischoffshausen","doi":"10.2139/ssrn.998328","DOIUrl":"https://doi.org/10.2139/ssrn.998328","url":null,"abstract":"Together with cultural and social tasks collective management organizations (CMOs) fulfil important economic functions: They ensure the economic participation resulting from the use of works for the sake of authors and right holders when the latter cannot individually manage their rights for practical reasons or because of prohibitively high transaction costs. Thus, CMOs aim at facilitating legal access to the use of copyrighted works (ideally by setting up one stop shops) by reducing users' search and information costs. This basic economic rationale for the existence of CMOs is increasingly put into question. Not only members of the exploiting industry doubt whether transaction costs are in fact reduced by a legally defined system of collective rights management. In the face of inspiring new technological means, many see the future in a possibly more efficient rights coordination: individual rights management by means of digital rights management (DRM). The pertinent issue is whether enhanced possibilities of reducing transaction costs by means of DRM will eventually redundantise CMOs from an economic point of view. What economic functions of CMOs will persist in the digital era? What challenges do they have to meet in order to survive? Methodologically, these questions are treated by dint of transaction cost and information economics. The scientific interest of the paper regards the general question of what economic functions CMOs fulfil. On the basis of different categories of transaction costs which arise, the reduction of transaction costs by CMOs, i.e. the main argument in favour of collective rights management, shall be analysed in detail and also in comparison to individual rights management by DRM. Whereas many academic works on CMOs are prone to emphasize the rationale of collective rights management from the licensors' perspective (authors and rights holders) the paper rather focuses on the licensees' search and information costs. This approach seems promising insofar as these specific transaction costs will most probably gain in importance in the digital environment. With regard to the second methodological approach, an additional economic function of CMOs can be qualitatively explained by information economics. Cross-subsidizing of economically less successful right holders may lead to the notion of CMOs as insurance entities. Since they do not know whether their repertoire will be accepted on the market, risk-averse right holders join CMOs in order to reduce their individual risk of economic failure. In this sense, CMOs can be seen as organizations which provide uninformed authors and/ or right holders with protection vis-a-vis the powerful content industry.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"72 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115490158","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":"Patents as Credence Goods","authors":"S. Thambisetty","doi":"10.1093/OJLS/GQM021","DOIUrl":"https://doi.org/10.1093/OJLS/GQM021","url":null,"abstract":"The view of patents as well defined property rights is as simplistic as it is ubiquitous. This paper argues that in newly arising or immature technologies, patents are subject to intrinsic and extrinsic uncertainty that make them very opaque representations of the underlying inventions. The opacity is a result of unsettled legal doctrine and scientific terminology, uncertain commercial and technological prognosis, and leads to considerable ambiguity in property parameters. Patents in immature technologies do not solve Arrow’s information paradox of non-rivalrous goods because they do not represent the sharp exclusive right that is central to his thesis. In such cases patents ought to be reclassified in terms of their perceived and actual function as credence goods. The difficulty in discovering the value of these patents necessitates credence verifiers, further increasing the transaction costs of encouraging innovation. The theoretical and empirical implications of credence explored in this paper are based primarily on the Anglo-American legal protection of biotechnological inventions, but may equally be relevant to patents in other newly arising technologies.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132228978","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":"License Auctions With Royalty Contracts for (Winners and) Losers","authors":"Thomas Giebe, Elmar G. Wolfstetter","doi":"10.2139/ssrn.885286","DOIUrl":"https://doi.org/10.2139/ssrn.885286","url":null,"abstract":"This paper revisits the licensing of a non-drastic process innovation by an outside innovator to a Cournot oligopoly. We propose a new mechanism that combines a restrictive license auction with royalty licensing. This mechanism is more profitable than standard license auctions, auctioning royalty contracts, fixed-fee licensing, pure royalty licensing, and two-part tariffs. The key features are that royalty contracts are auctioned and that losers of the auction are granted the option to sign a royalty contract. Remarkably, combining royalties for winners and losers of the auction makes the integer constraint concerning the number of licenses irrelevant.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117024961","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":"Owning Versus Leasing: Do Courts Matter?","authors":"Pablo Casas-Arce, Albert Saiz","doi":"10.2139/ssrn.948281","DOIUrl":"https://doi.org/10.2139/ssrn.948281","url":null,"abstract":"The authors develop a legal contract enforcement theory of the own versus lease decision. The allocation of ownership rights will minimize enforcement costs when the legal system is inefficient. In particular, when legal enforcement of contracts is costly, there will be a shift from arrangements that rely on such enforcement (such as a rental agreement) toward other forms that do not (such as direct ownership). The authors then test this prediction and show that costly enforcement of rental contracts hampers the development of the rental housing market in a cross-section of countries. They argue that this association is not the result of reverse causation from a developed rental market to more investor-protective enforcement and is not driven by alternative institutional channels. The results provide supportive evidence on the importance of legal contract enforcement for market development and the optimal allocation of property rights.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132038807","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 Economics of Trademarks","authors":"David W. Barnes","doi":"10.2139/ssrn.886045","DOIUrl":"https://doi.org/10.2139/ssrn.886045","url":null,"abstract":"Conventional wisdom holds that trademarks are nothing like other intellectual property. Copyright and patent law are theoretically based in public goods theory and designed to promote creation and disclosure of original expressions and novel, useful innovations. By contrast, trademarks are private goods and trademark law is designed to promote trade and encourage competition. This article challenges conventional wisdom by demonstrating that trademarks are a type of public good that contributes to the public stock of useful ideas just as patented and copyrighted works do. This economic perspective suggests, again contrary to conventional trademark theory, that competitive markets fail to supply an optimal amount of information about products and their sources. Conventional theory recognizes the difficulty in excluding competitors from using a supplier's trademark unless there is a legal regime to protect marks. Conventional theory fails to consider the non-rivalrous character of referential and customary trademark use by consumers, competitors, non-competitors, and commentators. The public use perspective on trademarks enriches our understanding of the structure of trademark law, the extent to which trademark law addresses the market failures associated with trademarks' public goods character, and the current debate concerning the propertization of trademarks.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122815904","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":"Penalties and Optimality in Financial Contracts: Taking Stock","authors":"Michel A. Robe, Eva-Maria Steiger, Pierre Michel","doi":"10.2139/ssrn.875177","DOIUrl":"https://doi.org/10.2139/ssrn.875177","url":null,"abstract":"A popular view of limited liability in financial contracting is that it is the result of societal preferences against excessive penalties. The view of most financial economists is instead that limited liability emerged as an optimal institution when, in the absence of a clear limit on economic agents' liability, the development of some economic activities might have been thwarted. Viewing the institution from the perspective of optimal legal system design allows us to better understand the current debate on it. We present a broad history of penalties in financial contracts to highlight the interactions between technology, legal environments, purpose of the financial relationship, and contractual provisions. We show that harsh monetary and non-pecuniary penalties are not mere relics from a bygone era and, at the same time, that limited liability is far from a recent institution. We then discuss trade-offs associated with legal mandates of either unlimited or limited liability, both for the contracting parties and for the rest of Society. We identify two broad patterns. First, the toughness of liability rules and bankruptcy laws decreases as exogenous sources of uncertainty become relatively more important, and increases with the opportunity for moral hazard (related to diligence, risk taking, or deception). Second, bankruptcy laws become more lenient as the scope for labor specialization and the returns to human capital or entrepreneurship increase.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131387147","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":"Still Looking for Lost Profits: The Case of Horizontal Competition","authors":"Mark A. Schankerman, Suzanne Scotchmer","doi":"10.2139/ssrn.896165","DOIUrl":"https://doi.org/10.2139/ssrn.896165","url":null,"abstract":"JEL Classifications: L41, K21 Abstract: When infringement of a patent dissipates profit relative to the licensing agreement that would otherwise occur, damages under the lost-profit rule deter infringement, and otherwise not. We develop this point in a general model and give two examples. However, joint profit might not be dissipated by infringement. An important example is where there are restrictions on licensing that arise from competition policy.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134052762","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}