George Mason Law Review最新文献

{"title":"Commercial Law's Complexity","authors":"D. Frisch","doi":"10.31228/osf.io/aj5fv","DOIUrl":"https://doi.org/10.31228/osf.io/aj5fv","url":null,"abstract":"This Article proceeds as follows. Part I briefly surveys prevailing ideas about the social costs of complexity and identifies additional costs that have escaped the attention of earlier commentators. The aim is to demonstrate why reducing the complexity of the commercial law system matters. Part II describes three legislative responses-two already enacted �and one proposed- representing efforts to mediate the tension between the need for precise regulation and the generation of overly complex rules that often results. Part III provides a closer examination of these legislative responses and demonstrates that, taken together, they create an opportunity for the implementation of two strategies that may help to simplify the law by reconceptualizing its structure in a way that can be termed \"minimalist.\" Part IV illustrates the application of these strategies by concrete examples demonstrating the benefits to be realized by their adoption.","PeriodicalId":311129,"journal":{"name":"George Mason Law Review","volume":" 12","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114051489","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":"Justice Thomas's Kelo Dissent: The Perilous and Political Nature of Public Purpose","authors":"C. N. Brown","doi":"10.31228/osf.io/6qdn2","DOIUrl":"https://doi.org/10.31228/osf.io/6qdn2","url":null,"abstract":"The exercise of eminent domain in the United States has victimized politically disadvantaged groups like minorities and the poor the most. As Professor Ilya Somin aptly noted in his recent book, The Grasping Hand, \"[w}ealthy and politically connected property owners rarely suffer from economic development ... takings, because politicians and developers are usually savvy enough to avoid targeting them.\" Whether it is government taking private property for highways, roads, or schools, the common thread that weaves through all of these examples -- from the beginning of the country until now -- is that political actors have always decided whose property was to be taken. Since the beginning of time, the least powerful groups have always had the least political influence. And, people with the least political power are the people who pay the price of eminent domain.","PeriodicalId":311129,"journal":{"name":"George Mason Law Review","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115624787","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":"Dead Men Reproducing: Responding to the Existence of Afterdeath Children","authors":"B. Lewis","doi":"10.2139/SSRN.1256442","DOIUrl":"https://doi.org/10.2139/SSRN.1256442","url":null,"abstract":"Medical advances currently available permit dead men to reproduce. Sperm can be successfully stored for at least ten years. Therefore, a man's heirs may be created years after his death. Recently, this event has gone from a possibility to a reality. More and more women are choosing to conceive children using the sperm of their dead husbands or boy friends. Widows of soldiers killed in the wars in Iraq and Afghanistan have conceived children through artificial insemination using their dead husbands' sperm. The process of creating afterdeath children can occur in two contexts. Scenario One - Prior to going to war, the man has his sperm extracted and placed in a sperm bank. If the man does not return from the war, his wife or girl friend uses his stored sperm to create his child. Scenario Two - The man is killed in the war. His wife or girl friend has the doctor harvest sperm from his dead body. Then, she uses that sperm to conceive his child. Either scenario results in the existence of an afterdeath child that needs financial support. The law has not kept pace with the reproductive technology. Hence, when the mothers of the posthumously conceived children file social security surviving children claims on behalf of their children, the claims are often rejected. The children are denied benefits because the agency is not equipped to deal with \"survivors\" who did not exist at the time that the insured worker died. The resolution of these Social Security cases often turns on the manner in which the children are classified under the states' intestacy systems. If the child is eligible to inherit under the intestacy system, the child is entitled to social security survivor's benefits. The legal issue examined in this article is: whether a posthumously conceived child should have the opportunity to inherit from his or her father. The resolution of that issue is important because the existence of posthumously conceived children has the potential to impact the distribution of a man's estate. If the man dies with a validly executed will leaving his estate to his children, the question becomes whether or not posthumously conceived children should be included in the definition of \"children\". In the event that a man dies without a will, the question to be resolved is whether or not posthumously conceived children should be considered heirs under the intestacy system. As long as the possibility exists for dead men to reproduce, the courts and the legislatures must take steps to deal with the rights of the resulting children. Any system put in place must balance the interests of the state, the existing heirs, the decedent, and the posthumously conceived child. To guarantee a fair balance, state legislatures must give posthumously conceived children the opportunity to inherit from their deceased fathers. Nonetheless, the opportunity to inherit should not be a right to inherit. Consequently, the legislatures should only give posthumously conceived children the chance","PeriodicalId":311129,"journal":{"name":"George Mason Law Review","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123814550","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 Modernization of European Antitrust Enforcement: The Economics of Regulatory Competition","authors":"B. Depoorter, F. Parisi","doi":"10.2139/SSRN.699802","DOIUrl":"https://doi.org/10.2139/SSRN.699802","url":null,"abstract":"In this article we analyze the expected effects of regulatory overlap in European competition law resulting from Regulation 1/2003. Drawing upon recently developed economic theories of regulatory competition, our model foresees a number of qualitative adjustments resulting from this reform. On one hand, the direct applicability of the exemption provision should increase the overall amount of exemptions. On the other hand, a decentralized system permits private litigants' forum shopping, and parallel enforcement by multiple national competition authorities will drive up the number of infringement findings. Although the precise direction of substantive competition law is unclear, the overall effect is higher levels of regulatory activity. This entails not only greater administrative costs but also suggests increased transaction costs for doing business in the post-Regulation 1/2003 European Union.","PeriodicalId":311129,"journal":{"name":"George Mason Law Review","volume":"84 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131895657","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":"Don't Disintegrate Microsoft (Yet)","authors":"Alan J. Meese","doi":"10.2139/SSRN.288115","DOIUrl":"https://doi.org/10.2139/SSRN.288115","url":null,"abstract":"During the Clinton Administration, the United States sought to disintegrate Microsoft to remedy the firm's purported monopolistic conduct. The remedy proposed by the United States would have divided Microsoft into two firms. One, the Oppco, would have retained the firm's operating system business. The other firm, the Appco, would have retained the firm's applications business, including Internet Explorer and Microsoft's Office Suite. The United States did not rebut the presumption that the integration of Microsoft's operating system and applications business was procompetitive. Instead, the government claimed that disintegration of Microsoft would lower the so-called \"applications barrier to entry,\" a barrier that Microsoft's unlawful conduct purportedly \"raised.\" Most importantly, the government claimed that an independent Appco would probably transform Microsoft's Office Suite into a form of middleware, the existence of which would lower the \"applications barrier to entry\" and thus facilitate the emergence of operating systems competitive with Windows. This paper argues that the district court erred when it granted the government's petition for disintegration. Simply put, the court's factual findings did not support any element of the story supporting the government's request for relief. There was, for instance, no finding that Microsoft \"raised\" the applications barrier; that barrier existed before, during, and after the conduct at issue in this case. Similarly, there was no finding that Microsoft unlawfully maintained that barrier, i.e., that, but for Microsoft's anticompetitive conduct, middleware would have emerged and lowered the applications barrier to entry. Moreover, there was no finding that an independent Appco would, in fact, have the ability or incentive to transform Microsoft's Office Suite into a form of middleware. Finally, there was no finding that Appco would be the only source of middleware capable of lowering the applications barrier to entry. The absence of the sort of findings necessary to justify disintegration was a necessary consequence of the government's litigation strategy. The government did not undertake to prove that Microsoft's conduct actually reduced social welfare. Instead, the United States chose to rely upon outmoded antitrust rules that reduced its burden at trial. For instance, the government relied upon the per se rule against tying contracts, which bans certain ties regardless of their competitive effect. Moreover, the government relied upon precedents suggesting that non-standard contracts entered by a monopolist are presumptively unlawful, regardless of their actual effect. By lightening its load at the trial stage, the United States deprived itself of the sort of factual findings necessary to justify the destruction of presumptively beneficial integration. Absent further findings that validate the government's story, Microsoft should remain intact.","PeriodicalId":311129,"journal":{"name":"George Mason Law Review","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121435096","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":"Preserving Competition: Economic Analysis, Legal Standards and Microsoft","authors":"R. Cass, Keith N. Hylton","doi":"10.2139/SSRN.202738","DOIUrl":"https://doi.org/10.2139/SSRN.202738","url":null,"abstract":"In a recent symposium issue of the George Mason Law Review, Steven Salop and R. Craig Romaine use the Microsoft litigation as a focus for discussion of antitrust law. Salop and Romaine argue that each of the allegations against Microsoft could constitute evidence of a design by Microsoft to reduce competition and to preserve or extend monopoly power. They argue as well that the right legal standard to apply in monopolization cases is a \"competitive effects\" test that balances the benefits and harms of the monopolist's conduct. This article exposes problems with their approach, explains why it departs from current antitrust standards, and urges an approach consistent with current standards.","PeriodicalId":311129,"journal":{"name":"George Mason Law Review","volume":"1120 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116071473","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}