Property Rules, Liability Rules and Inalienability: One View of the Cathedral

Calabresi, Guido; 김대근,; Melamed, A. Douglas

doi:10.22286/kjlp.2018.21.1.012

Cited by 73 publications

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“…In contrast, under a liability rule, someone might use the patent with adequate compensation to the patent holder. See Calabresi and Melamed () for a distinction between property rules and liability rules.…”

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confidence: 99%

A Model of Patent Trolls

Choi

Gerlach

2018

Int Economic Review

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This article develops a model of patent trolls to understand various litigation strategies employed by nonpracticing entities (NPEs). When an NPE faces multiple potential infringers who use related technologies, it can gain a credible threat to litigate even when it has no such credibility vis‐à‐vis any single potential infringer in isolation. This is due to an information externality generated by an early litigation outcome for subsequent litigation. Successful litigation creates an option value against future potential infringers through Bayesian updating. We discuss policy implications including legal fee shifting and the use of injunctive relief.

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confidence: 99%

A Model of Patent Trolls

Choi

Gerlach

2018

Int Economic Review

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“…40 Value cannot be quantified or aggregated across individuals since it is entirely psychical and is not extended in space. 41 As a consequence, third party observers are unable to perform calculations based on value because it is incommensurable. 42 Beyond value, the core subjectivist point is that 'social scientific explanations must start with the subjective mental states of the actors being studied…it is the subjective perceptions of actors that drive their actions, not the objective reality that might underlie the situation.'…”

Section: Influence On Efficiency: Efficiency Can Be Calculated By Thimentioning

confidence: 99%

“…The distinction between entitlements protected by property versus by liability rules is helpful here. 41 The guide in Law and Economics is that a property rule should be chosen when transaction costs are low (since the parties can bargain to establish the relevant values) whereas a liability rule is used when transaction costs are high (such as when there are large numbers of individuals involved). 42 Where transaction costs are high, denying property rights holders an injunctive remedy against invasions of their rights and limiting them instead to a remedy in damages facilitates the movement of resources to the allocation where they are most highly valued, expressed in terms of social wealth.…”

Section: Positive Transaction Cost Worldmentioning

confidence: 99%

“…41 In both cases, secured creditors face potential restrictions to acting with respect to their security interest.…”

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“…Moreover, the majority voting system used to decide upon the company's fate at the second meeting of creditors 43 Whether VA is more dynamically efficient than liquidation depends upon how the latter is structured. Similar to the administrator, the liquidator acts as an entrepreneur tasked with realising 41 Ibid s 442C (1) and (2)(c). 42 Ibid s 437A states that the control of the business, property and affairs of the company is vested in the administrator while a company is under administration, while the powers of the other officers of the company are suspended unless the administrator gives written approval (s 437C (1), a deed of company arrangement binds all of the company's creditors so far as concerns claims that arise on or before the day specified in the deed under paragraph 444A(4)(i).…”

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How is ‘efficiency’ determined in the insolvency context? Clarifying the meaning of efficiency with the conjunction of insolvency jurisprudence and economic methodology

Lee¹

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The thesis aims to understand how the meaning of efficiency is determined in the insolvency context. This is important as there are a multiple number of efficiency criteria in the economics literature that can more often than not obscure its meaning. Normative considerations guide the selection of the most appropriate criterion in a certain context. The thesis pursues the context in a framework comprised of the conjunction of insolvency jurisprudence and economic method.It advances two arguments. First, the context for understanding what efficiency means is provided by the perspectives of insolvency law. This is the jurisprudence component of the framework. The thesis argues that each perspective demonstrates an affinity for an efficiency criterion (or criteria) in the pursuit of the objectives of insolvency law under it.Just as the meaning of efficiency varies with jurisprudential context, its properties vary according to the economic methodology it is associated with. Schools of economic thought, like insolvency jurisprudence, are not homogeneous, raising the possibility that one may hold to a methodological position that can conflict with the methodology underlying an efficiency criterion. An example of this conflict can be seen between the methodologies of mainstream neoclassical and Austrian economics, the two schools of economics analysed in the thesis. Against this backdrop, the second argument is that whether the efficiency criterion (that is affined with an insolvency perspective) is endorsed for use depends upon its compatibility with one's methodological views. This is the economic component of the framework.Hence, the thesis answers the question of how 'efficiency' is determined by reference to a framework that requires the concordance between an efficiency criterion's associated insolvency perspective and one's economic methodological position. At times, the legal and economic components may discord with each other. This is problematic to the extent that efficiency is not properly defined in a particular context. It is in the difficulty of resolving this jurisprudence-method conflict that the thesis argues for the concordance between both components in clarifying efficiency.This jurisprudence-method framework for determining the meaning of efficiency is a hitherto neglected course of developing the theoretical insolvency literature. By directly considering how economic method can endorse or oppose particular efficiency criteria, the thesis gives pause for thought to the way that policy proposals are affected by the decision-maker's stance on economic method.

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Criminalizing price‐fixing

Dnes¹,

Swaray

2020

Manage Decis Econ

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We assess whether recent US Department of Justice (DOJ) price‐fixing cases exhibit characteristics that are associated theoretically with optimal use of criminal law. We take our welfare standard from seminal work on optimal legal design. Optimal legal design recognizes the private and public elements present in all areas of the law. The mixed results show that the characteristics to be expected in criminal cases are not all present in the DOJ cases. Criminal sanctions applied in these collusive antitrust cases do however show significant responsiveness to some of the variables derived from the economic analysis of criminal law.

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Property Rules, Liability Rules and Inalienability: One View of the Cathedral

Cited by 73 publications

References 0 publications

A Model of Patent Trolls

A Model of Patent Trolls

How is ‘efficiency’ determined in the insolvency context? Clarifying the meaning of efficiency with the conjunction of insolvency jurisprudence and economic methodology

Criminalizing price‐fixing

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