Sunday, November 07, 2004

Circul ideilor...continuare, azi citeva "jurnale" ale profesorilor

Dupa cum spune "Papa" Dick Posner in articolul sau(merita o lectura acest articol..., iata mai jos citeva idei,diferite de cea de mai sus pe care cei interesati o vor gasi in articol, pe care din pacate nu am timp sa le traduc...

Most articles by law professors today are still, as they were a century ago, rather narrowly, conventionally doctrinal. Typically, they criticize a key case or lines of cases as inconsistent with doctrine emerging from other cases. Good law students can evaluate and improve such articles today as always. But—and this is true not only at the leading law schools—many law faculty today have, for good or ill, broken the doctrinal mold.

Their work now draws very heavily on sources other than legal doctrine, whether it is economics, history, political or moral philosophy, psychology, statistics, epistemology, anthropology, linguistics—even literary theory. The use of insights from these fields in analyzing law has given rise in recent decades to a cornucopia of interdisciplinary fields of legal studies ("law and . . . " fields), ranging from law and economics (the largest and most influential) to feminist jurisprudence and critical race theory.
), unul dintre locurile interesante in care gaseste teoria dreptului in revistele americane sint "jurnalele" editate de profesori (printre care putem include working paper series, ca laborator de idei). Iata mai jos citeva dintre ele (ii sint indatorat lui Aaron S. Edlin, editorul bepress-ului, care le anunta), din care am selectat posibile articole de interes pentru juristii romani.

The University of Virginia John M. Olin Program in Law and Economics Working Paper Series

EDITOR: George G. Triantis, Perre Brown Professor of Law,
University of Virginia School of Law

Anup Malani and Albert Choi, "Are Non-Profit Firms Simply
For-Profits in Disguise? Evidence from Executive
Compensation in the Nursing Home Industry
" (August 2,
2004). University of Virginia Legal Working Paper Series.
University of Virginia John M. Olin Program in Law and
Economics Working Paper Series

It is relatively well-established that there are
differences between executive compensation at for-profit
and non-profit firms. In particular, the latter employ
performance bonuses with much lower frequency than the
former. The question this paper addresses is: do these
differences imply that for-profit and non-profit firms have
different objectives? Do non-profit care about, e.g.,
quality or quantity of production, rather than profits?
This paper answers in the negative. Observed differences in
wage contracts can be explained by the fact that non-profit
firms operate in a different regulatory environment than
for-profits. In particular, IRS regulations discourage
non-profit firms from using performance incentives on pain
of paying tax penalties and perhaps losing their tax-exempt
status. A non-profit firm which seeks to maximize profits
would respond to this constraint by substituting away from
performance bonuses (carrots) towards incentives based on
the risk of firing (sticks). The result will be higher base
salary, to compensate risk-averse executives for the use of
as blunt an instrument as firing, and a higher overall
salary, because non-profits have a smaller set of feasible
contracts from which to choose. We test these predictions
on a unique, facility-level data set of executive
compensation at 2700 nursing homes in 2001 and 2002. Not
only do we find support for our predictions, but we also
find that compensation rises with profits, but not with
quality or quantity. This last result is notable because it
demonstrates that the tax-regulation explanation for
non-profit executive compensation is not only more
parsimonious, but likely more accurate than the
different-objectives explanation.

Eric A. Posner, Alexander Triantis, and George G. Triantis,
"Investing in Human Capital: The Efficiency of Covenants
Not to Compete
" (October 13, 2004). University of Virginia
Legal Working Paper Series. University of Virginia John M.
Olin Program in Law and Economics Working Paper Series

Covenants not to compete (CNCs) are used in employment
contracts to prevent employees from working for other
employers. The legal enforcement of CNCs varies across
jurisdictions in the U.S.: some states ban them (notably,
California) while a majority of other states enforce CNCs
when they reasonably protect a legitimate interest of the
employer. The discrepancy in the legal policy regarding
CNCs is reflected in an academic debate over the economic
efficiency of these covenants. One side argues that CNCs
are bad because they restrict labor mobility; the other
side argues that the restriction on the movement of workers
is good because it prevents workers from appropriating
their employers' human capital investments (and CNCs
thereby encourage such investment). This paper addresses
together the two objectives of ex post (labor mobility) and
ex ante (human capital investment) efficiency. It compares
CNCs with the alternative contract breach remedies of
specific performance and liquidated damages. A given CNC
may be analyzed as a hybrid that adopts specific
performance with respect to attempted movements to
employers within its scope and liquidated damages equal to
zero with respect to movements outside its scope. Among the
results of the paper is the finding that, where a CNC can
be renegotiated, first-best performance and first-best
investment can be induced. The appropriate choice of the
CNC scope can balance perfectly the overinvestment tendency
of specific performance against the underinvestment effect
caused by zero liquidated damages. Contracting parties,
however, have the incentive to agree to excessively broad
CNCs that enable them to extract rents from prospective new
employers within the CNC scope. The law should be wary of
this incentive in policing CNCs.

Paul G. Mahoney, Guolin Jiang, and Jianping Mei, "Market
Manipulation: A Comprehensive Study of Stock Pools
(October 13, 2004). University of Virginia Legal Working
Paper Series. University of Virginia John M. Olin Program
in Law and Economics Working Paper Series

Using a hand collected new data set, this paper examines
in detail a classic account of stock market manipulationthe
"stock pools" of the 1920s, which prompted the current
anti-manipulation rules in the United States. We find
abnormal trading volume during pools, consistent with
market manipulation, but this trading led to only modest
average price increases in the short run and no abnormal
performance in the long run. Thus, there is no evidence
that the stock pools harmed small investors. Given
investigators' efforts to find cases of manipulation on the
New York Stock Exchange during the 1920s, these findings
suggest that manipulation was not a substantial problem.

Paul G. Mahoney and Chris W. Sanchirico, "General and
Specific Legal Rules
" (October 13, 2004). University of
Virginia Legal Working Paper Series./University of Virginia
John M. Olin Program in Law and Economics Working Paper

Legal rules may be general (that is, applicable to a broad
range of situations) or specific. Adopting a custom-tailored
rule for a specific activity permits the regulator to make
efficient use of information about the social costs and
benefits of that activity. However, the rule maker typically
relies on the regulated parties for such information. The
regulated parties may attempt to influence the rule maker,
producing rules that reflect their private interests. We
show that in some cases limiting the rule maker to a single
rule for multiple activities will moderate this influence
and maximize welfare.

Paul G. Mahoney and Daniel M. Klerman, "The Value of
Judicial Independence: Evidence from 18th Century England
(October 13, 2004). University of Virginia Legal Working
Paper Series/ University of Virginia John M. Olin Program
in Law and Economics Working Paper Series

This paper assesses the impact of judicial independence on
equity markets. North and Weingast (1989) argue that
judicial independence and other institutional changes
inaugurated by the Glorious Revolution of 1688-89 allowed
the English government credibly to commit to repay
sovereign debt and more generally to protect contractual
and property rights. Although they provide some supporting
empirical evidence, they do not investigate the effect of
judicial independence separately from that of other
institutional innovations. This paper is the first to
attempt to do so. We look at share price movements at
critical points in the passage of the 1701 Act of
Settlement and other events which gave judges greater
security of tenure and higher salaries. Our results suggest
that giving judges tenure during good behavior had a large
and statistically significant positive impact on share
prices, while salary increases and other improvements to
judicial independence had positive but generally
insignificant impacts.

The Columbia Public Law & Legal Theory Working Papers,

EDITOR: Michael Dorf, Michael I. Sovern Professor of Law

William H. Simon, "Wrongs of Ignorance and Ambiguity:Lawyer Responsibility for Collective Misconduct" (October
7, 2004). Columbia Law School. Columbia Public Law & Legal
Theory Working Papers

Deliberate ignorance and calculated ambiguity are key recurring themes in modern scandals from Watergate to
Enron. Actors, especially lawyers, seek to limit
responsibility by avoiding knowledge and clear
. This essay considers this phenomenon from the point of view of both business organization and legal
doctrine. Evasive ignorance and ambiguity seem endemic to a
particular organizational model and to a traditional model
of legal responsibility. Developments in both law and
business, however, suggest that these models are being
superceded. Many of the most dynamic businesses now
emphasize practices of "transparency" designed to inhibit
evasive ignorance and calculated ambiguity. A major trend
in recent legal doctrine, strikingly exemplified by the
Sarbanes-Oxley Act, is to strengthen duties of inquiry and
clear articulation. The legal profession, however, has
strongly resisted these trends with respect to its own
regulation. The essay argues that the bar's opposition to
many of the lawyer regulation initiatives under
Sarbanes-Oxley reflects a misguided attachment to the
privileges of non-accountability associated with deliberate
ignorance and calculated ambiguity.

William H. Simon, "Toyota Jurisprudence: Legal Theory and
Rolling Rule Regimes
" (October 7, 2004). Columbia Law
School. Columbia Public Law & Legal Theory Working Papers

The engineering ideas associated with the Toyota Production
System form a model of social organization that departs
from bedrock assumptions of mainstream legal thought in
both its rights-and-principles and law-and-economics
In contrast to mainstream thought, the Toyota system (1)
emphasizes the goals of learning and innovation (rather
than of dispute resolution and the vindication of
established norms and preferences), (2) combines the
normative explicitness associated with formal rules with
the continuous adjustment to particularity associated with
informal norms (no dialectic of rules and standards), (3)
treats normative decisionmaking in hard cases as
presumptively collective and interdisciplinary (rather than
the heroic labor of a solitary professional), (4) fosters a
style of reasoning that is intentionally destabilizing of
settled practices (rather than harmonizing or optimizing),
and (5) attempts to bracket or sublimate issues of
individual and retrospective fairness.
The Toyota perspective is potentially important to lawyers
because it is an exceptionally elaborated version of ideas
that have, with varying degrees of coherence and
articulateness, influenced some emergent legal regimes. The
paper traces Toyota themes in recent American developments
in health and safety regulation and in the delivery of
social services.

Michael C. Dorf, "Putting the Democracy in Democracy and
Distrust: The Coherentist Case for Representation
" (October 7, 2004). Columbia Law School/
Columbia Public Law & Legal Theory Working Papers

Nearly a quarter of a century after its publication,
Democracy and Distrust remains the single most perceptive
justificatory account of the work of the Warren Court and
modern constitutional law more broadly. Yet, the continuing
influence of John Hart Ely's process theory of American
constitutional law may seem surprising, given that the
account has been incisively criticized as both too limited
and too sweeping. Beginning with Laurence Tribe's "Puzzling
Persistence of Process-Based Constitutional Theories" and
culminating in the work of Ronald Dworkin and others,
critics have argued that the representation-reinforcing
approach to interpreting the Constitution is no less laden
with controversial value judgments than other, more openly
substantive methods, and that therefore, judicial review
ought not to be restricted in the way that Ely thought it
should be. From the other side, those that Ely called
"interpretivists" have invoked (more or less) the same set
of arguments as a basis for concluding that the
Constitution's open-ended provisions should be given
neither substantive nor procedural content apart from what
is narrowly entailed by the original understanding of its
framers and ratifiers.
In light of these mirroring critiques, what accounts for
the staying power of Democracy and Distrust? The answer, to
which Ely himself points in the opening pages of the book,
is the popularity of democracy. "We have as a society from
the beginning," he writes, "and now almost instinctively,
accepted the notion that a representative democracy must be
our form of government." By making
more-or-less-majoritarian democracy the centerpiece of his
account of judicial review, Ely trades on this deeply
rooted instinct. Throughout Democracy and Distrust, he
invokes "the basic democratic theory of our government" as
the standard against which an approach to judicial review
should be measured.

Jeffrey A. Fagan and Valerie West, "The Decline Of The
Juvenile Death Penalty: Scientific Evidence Of Evolving
" (August 23, 2004). Columbia Law School/Columbia
Public Law & Legal Theory Working Papers

In 2003, the Missouri Supreme Court set aside the death
sentence of Christopher Simmons, who was 17 when he was
arrested for the murder of Shirley Crook. The Simmons court
held that the "evolving standards of decency" embodied in
the Eighth Amendment's prohibition of cruel and unusual
punishments barred execution of persons who committed
capital crimes before their 18th birthday. This decision
was based in part on the emerging legislative consensus in
the states opposing execution of juvenile offenders and the
infrequency with which the death penalty is imposed on
juvenile offenders. The State sought a writ of certiorari,
and the case is now before the U.S. Supreme Court. This
article presents results of analyses of empirical data on
the use of the death penalty for adolescent homicide
offenders in state courts in the U.S. since 1990. The data
show that, since 1994, when death sentences for juvenile
offenders peaked, juvenile death sentences have declined
significantly. In particular, the decline in juvenile death
sentences since 1999 is statistically significant after
controlling for the murder rate, the juvenile homicide
arrest rate, and the rate of adult death sentences. This
downward trend in juvenile death sentences signals that
there is an evolving standard in state trial courts
opposing the imposition of death sentences on minors who
commit capital offenses.

The University of San Diego Law and Economics
Research Paper Series

PUBLISHER: The Berkeley Electronic Press
EDITOR: Daniel B. Rodriguez, Dean and Professor of Law,
University of San Diego School of Law


Shaun Martin and Frank Partnoy, "Encumbered Shares"
(October 27, 2004). University of San Diego Legal Working
Paper Series/University of San Diego Law and Economics
Research Paper Series.

The fundamental assumptions in the law and economics
literature about shareholder voting and the
one-share/one-vote rule are flawed. The classic view is
that share ownership is necessary and sufficient to create
voting rights and that such rights should be directly
proportional to share ownership. We demonstrate that this
assumption is unfounded, both for shares that are
"economically encumbered" (held by shareholders who are not
pure residual claimants; e.g., a shareholder who owns one
share and is also short one or more shares) as well as
shares that are "legally encumbered" (held or associated
with more than one shareholder; e.g., shares that are
loaned to a short, who sells that share to another buyer).
The one-share/one-vote rule is not only economically
suboptimal, but results in substantial deleterious
consequences. Quorum and regulatory requirements are
distorted; mergers and acquisitions are too easily
approved; securities class actions are undervalued and
simultaneously under- and over-compensate; bankruptcy
distributions are over- and under-inclusive; and
fixed-ratio stock offers are preferred over economically
superior alternatives. These results all derive from an
unfounded reliance upon the one-share/one-vote principle
and the belief that even economically or legally encumbered
shares are entitled to vote.

Frank Partnoy, "Strict Liability for Gatekeepers: A Reply
to Professor Coffee
" (October 27, 2004). University of San
Diego Legal Working Paper Series/University of San Diego
Law and Economics Research Paper Series

This article responds to a proposal by Professor John C.
Coffee, Jr. for a modified form of strict liability for
gatekeepers. Professor Coffee's proposal would convert
gatekeepers into insurers, but cap their insurance
obligations based on a multiple of the highest annual
revenues the gatekeepers recently had received from their
wrongdoing clients. My proposal, advanced in 2001, would
allow gatekeepers to contract for a percentage of issuer
damages, after settlement or judgment, subject to a
legislatively-imposed floor. This article compares the
proposals and concludes that a contractual system based on
a percentage of the issuer's liability would be preferable
to a regulatory system with caps based on a multiple of
gatekeeper revenues.
Both proposals mark a shift in the scholarship addressing
the problem of gatekeeper liability. Until recently,
scholarship on gatekeepers had focused on reputation not
regulation or civil liability as the key limitation on
gatekeeper behavior. Indeed, many scholars have argued that
liability should not be imposed on gatekeepers in various
contexts, and that reputation-related incentives alone
would lead gatekeepers to screen against fraudulent
transactions and improper disclosure in an optimal way,
even in the absence of liability. From a theoretical
perspective, this article is an attempt to move the
literature away from a focus on reputation to an assessment
of a potential reinsurance market for securities risks,
where gatekeepers would behave more like insurers than
reputational intermediaries.

Lester B. Snyder, "Does the Tax Law Discriminate Against
the Majority of American Children: The Downside of Our
Progressive Rate Structure and Unbalanced Incentives for
Higher Education?
" (October 25, 2004). University of San
Diego Legal Working Paper Series/University of San Diego
Law and Economics Research Paper Series

Our graduate income tax structure provides an incentive to
shift income to lower-bracket family members. However, some
parents have much more latitude to shift income to their
children than do others. Income derived from services and
private business-by far the majority of American income-is
less favored than income derived from publicly traded
securities. The rationale given for this discrimination is
that parents in services or private business, as opposed to
those in securities, do not actually part with control of
their property. This article explores these tax broader
(yet subtle) tax benefits and their impact on the majority
of children seeking a higher education. Proposed solutions
to this lack of uniformity are discussed.

Karen C. Burke and Grayson M.P. McCouch, "Estate Tax Repeal
and the Budget Process
" (October 25, 2004). University of
San Diego Legal Working Paper Series/University of San
Diego Law and Economics Research Paper Series

This article examines the Bush Administration's proposal,
as part of its proposed fiscal year 2005 budget, to extend
permanently the repeal of the federal estate tax. The
article considers the budgetary impact of permanent estate
tax repeal and discusses procedural impediments to use of
the reconciliation process for permanent tax cuts. The
article also notes the possibility of a durable compromise
solution involving retention of the estate tax with lower
rates and a higher exemption.

Karl M. Manheim and Lawrence B. Solum, "An Economic
Analysis of Domain Name Policy
" (March 1, 2004). University
of San Diego Legal Working Paper Series/University of San
Diego Law and Economics Research Paper Series

One of the most important features of the architecture of
the Internet is the Domain Name System (DNS), which is
administered by the Internet Corporation for Assigned Names
and Numbers (ICANN). Logically, the DNS is organized into
Top Level Domains (such as .com), Second Level Domains
(such as, and third, fourth, and higher level
domains (such as The physically
infrastructure of the DNS consists of name servers,
including the Root Server System which provides the
information that directs name queries for each Top Level
Domain to the appropriate server. ICANN is responsible for
the allocation of the root and the creation or reallocation
of Top Level Domains.
The Root Server System and associated name space are scarce
resources in the economic sense. The root servers have a
finite capacity and expansion of the system is costly. The
name space is scarce, because each string (or set of
characters) can only be allocated to one Registry (or
operator of a Top Level Domain). In addition, name service
is not a public good in the economic sense, because it is
possible to exclude strings from the DNS and because the
allocation of a string to one firm results in the inability
of other firms to use that name string. From the economic
perspective, therefore, the question arises: what is the
most efficient method for allocating the root resource?
There are only five basic options available for allocation
of the root. (1) a static root, equivalent to a decision to
waste the currently unallocated capacity; (2) public
interest hearings (or beauty contests); (3) lotteries; (4)
a queuing mechanism; or (5) an auction. The fundamental
economic question about the Domain Name System is which of
these provides the most efficient mechanism for allocating
the root resource?
This resource allocation problem is analogous to problems
raised in the telecommunications sector, where the Federal
Communications Commission has a long history of attempting
to allocate broadcast spectrum and the telephone number
space. This experience reveals that a case-by-case
allocation on the basis of ad hoc judgments about the
public interest is doomed to failure, and that auctions (as
opposed to lotteries or queues) provide the best mechanism
for insuring that such public-trust resources find their
highest and best use.
Based on the telecommunications experience, the best method
for ICANN to allocate new Top Level Domains would be to
conduct an auction. Many auction designs are possible. One
proposal is to auction a fixed number of new Top Level
Domain slots each year. This proposal would both expand the
root resource at a reasonable pace and insure that the
slots went to their highest and best use. Public interest
Top Level Domains could be allocated by another mechanism
such as a lottery and their costs to ICANN could be
subsidized by the proceeds of the auction.


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