The U.S. Environmental Protection Agency’s final rule that limits carbon dioxide emissions from existing power plants — the Clean Power Plan — is an environmental regulation that powerfully influences energy law and forms a key part of the U.S. plan to meet its voluntary international commitments under the December 2015 Paris Agreement on climate change. Even if portions of the Plan are ultimately struck down, almost any viable pathway to lower carbon emissions will require greater integration of these two areas of law to address the large percentage of U.S. emissions from the energy sector. This integration produces both challenges and opportunities for governance. The Clean Power Plan (or similar regulations likely to be promulgated under the Clean Air Act in the future) must rely on an environmental-law cooperative federalist implementation structure in which states implement federal standards. However, electricity markets and governance are highly regional, and numerous studies show the economic benefits of interstate coordination, whether through governmental cooperation or trading among utilities. The project of energy-environment integration will benefit from existing regional energy-based institutions that already integrate electricity sources from different states. But it will require enhancement of existing regional approaches to generation capacity planning and transmission expansion, the interconnection of generators to lines, and energy markets. It also will require more interstate, state-regional-federal, and interregional cooperation.This Article systematically explores the opportunities for implementation of U.S. carbon emissions regulation presented by regional energy governance, using the Clean Power Plan as a case study. The Plan is not only the most ambitious effort at energy-environment integration to date, but also illustrates the need for enhanced regional governance. The Plan’s many options for interstate coordination — from multistate plans to utility trading — do not ensure alignment with existing regional markets because coordination will be difficult for states that choose different approaches to emissions accounting. The Article provides a timely analysis of (1) why enhanced regional governance of carbon emissions is needed, (2) what barriers it faces and opportunities it presents, and (3) how states could build from existing regional approaches in other contexts to create new mechanisms for cooperation and enhance regional governance structures. Addressing these governance issues effectively in the transition to a lower carbon economy will reduce the implementation costs of carbon emissions reduction and improve the reliability of the electricity system.
{"title":"Regional Energy Governance and U.S. Carbon Emissions","authors":"H. Wiseman, H. Osofsky","doi":"10.15779/Z38400D","DOIUrl":"https://doi.org/10.15779/Z38400D","url":null,"abstract":"The U.S. Environmental Protection Agency’s final rule that limits carbon dioxide emissions from existing power plants — the Clean Power Plan — is an environmental regulation that powerfully influences energy law and forms a key part of the U.S. plan to meet its voluntary international commitments under the December 2015 Paris Agreement on climate change. Even if portions of the Plan are ultimately struck down, almost any viable pathway to lower carbon emissions will require greater integration of these two areas of law to address the large percentage of U.S. emissions from the energy sector. This integration produces both challenges and opportunities for governance. The Clean Power Plan (or similar regulations likely to be promulgated under the Clean Air Act in the future) must rely on an environmental-law cooperative federalist implementation structure in which states implement federal standards. However, electricity markets and governance are highly regional, and numerous studies show the economic benefits of interstate coordination, whether through governmental cooperation or trading among utilities. The project of energy-environment integration will benefit from existing regional energy-based institutions that already integrate electricity sources from different states. But it will require enhancement of existing regional approaches to generation capacity planning and transmission expansion, the interconnection of generators to lines, and energy markets. It also will require more interstate, state-regional-federal, and interregional cooperation.This Article systematically explores the opportunities for implementation of U.S. carbon emissions regulation presented by regional energy governance, using the Clean Power Plan as a case study. The Plan is not only the most ambitious effort at energy-environment integration to date, but also illustrates the need for enhanced regional governance. The Plan’s many options for interstate coordination — from multistate plans to utility trading — do not ensure alignment with existing regional markets because coordination will be difficult for states that choose different approaches to emissions accounting. The Article provides a timely analysis of (1) why enhanced regional governance of carbon emissions is needed, (2) what barriers it faces and opportunities it presents, and (3) how states could build from existing regional approaches in other contexts to create new mechanisms for cooperation and enhance regional governance structures. Addressing these governance issues effectively in the transition to a lower carbon economy will reduce the implementation costs of carbon emissions reduction and improve the reliability of the electricity system.","PeriodicalId":133015,"journal":{"name":"Florida State University Public Law & Legal Theory Research Paper Series","volume":"50 4-5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129442110","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}
Existing literature suggests that the sharing of firm-specific information related to costs of production among Cournot competitors unambiguously reduces consumer welfare. This article shows that this result does not hold when at least one firm is risk-averse. Perhaps more importantly, if consumers are sufficiently risk-averse allowing information sharing leads to a Pareto improvement.
{"title":"Sharing of Cost Related Information Can Increase Consumer Welfare Under Risk-Aversion","authors":"Murat C. Mungan","doi":"10.2139/ssrn.2644962","DOIUrl":"https://doi.org/10.2139/ssrn.2644962","url":null,"abstract":"\u0000Existing literature suggests that the sharing of firm-specific information related to costs of production among Cournot competitors unambiguously reduces consumer welfare. This article shows that this result does not hold when at least one firm is risk-averse. Perhaps more importantly, if consumers are sufficiently risk-averse allowing information sharing leads to a Pareto improvement.","PeriodicalId":133015,"journal":{"name":"Florida State University Public Law & Legal Theory Research Paper Series","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121872159","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}
This Essay uses the “legislative process failure theory of statutory interpretation” to analyze whether the Affordable Care Act authorizes tax subsidies for individuals who enroll in health care plans through federally created American Health Benefit Exchanges. The Supreme Court recently granted cert. on this question, and a negative resolution by the Court could threaten the viability of the entire Act. The legislative process failure theory asserts that courts should use contextual evidence, including legislative history, of legislators’ likely understanding of a statute to resolve statutory meaning when there is reason to believe that a technical Textualist inquiry into the objective meaning leads to a different interpretation from that likely understanding and Congress was not aware of this potential difference. Applied to the question of the ACA subsidies on federally created exchanges, this analysis relies on the first-blush impression that federally created exchanges will substitute in all respects for state established ones, together with the absolute lack of any discussion of a contrary meaning in the legislative history or popular explanations of the Act, to conclude that the Court should interpret the ACA to authorize subsidies on federally created exchanges.
本文运用“法定解释的立法程序失败理论”来分析《平价医疗法案》是否授权通过联邦政府创建的美国健康福利交易所(American health Benefit Exchanges)为参加医疗保健计划的个人提供税收补贴。最高法院最近对这个问题作出了肯定，法院的否定决议可能会威胁到整个法案的可行性。立法程序失败理论主张，当有理由相信技术文本主义者对客观意义的探究会导致与可能的理解不同的解释，而国会没有意识到这种潜在的差异时，法院应该使用上下文证据，包括立法历史，即立法者对法规的可能理解来解决法定意义。适用于ACA对联邦创建的交易所的补贴问题，这种分析依赖于第一印象，即联邦创建的交易所将在所有方面取代州建立的交易所，同时绝对缺乏对立法历史中相反含义的讨论或对该法案的流行解释，从而得出结论，法院应该解释ACA以授权对联邦创建的交易所的补贴。
{"title":"Tax Credits on Federally Created Exchanges: Lessons from a Legislative Process Failure Theory of Statutory Interpretation","authors":"M. Seidenfeld","doi":"10.2139/SSRN.2550525","DOIUrl":"https://doi.org/10.2139/SSRN.2550525","url":null,"abstract":"This Essay uses the “legislative process failure theory of statutory interpretation” to analyze whether the Affordable Care Act authorizes tax subsidies for individuals who enroll in health care plans through federally created American Health Benefit Exchanges. The Supreme Court recently granted cert. on this question, and a negative resolution by the Court could threaten the viability of the entire Act. The legislative process failure theory asserts that courts should use contextual evidence, including legislative history, of legislators’ likely understanding of a statute to resolve statutory meaning when there is reason to believe that a technical Textualist inquiry into the objective meaning leads to a different interpretation from that likely understanding and Congress was not aware of this potential difference. Applied to the question of the ACA subsidies on federally created exchanges, this analysis relies on the first-blush impression that federally created exchanges will substitute in all respects for state established ones, together with the absolute lack of any discussion of a contrary meaning in the legislative history or popular explanations of the Act, to conclude that the Court should interpret the ACA to authorize subsidies on federally created exchanges.","PeriodicalId":133015,"journal":{"name":"Florida State University Public Law & Legal Theory Research Paper Series","volume":"121 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128348870","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}
Issuing and enforcing prescription drug patents requires courts and legislatures to strike a delicate balance. A patent gives drug manufacturers a legal, if temporary, monopoly on sales of a drug; this encourages manufacturers to engage in costly research and development of new medicines. But not all patents issued by the Patent Office are ultimately deemed valid – generic drug manufacturers can infringe the patent, and, when sued, attack its validity in court on a variety of grounds, including obviousness. In recent years, patent holders have begun to settle these suits (which they initiated) by paying the alleged infringer. Not surprisingly, these reverse payment settlements (“RPSs”) have been challenged on antitrust grounds. The federal courts of appeals split over whether this practice is presumptively an illegal restraint of trade, and in December 2012 the Supreme Court agreed to decide the issue, granting a writ of certiorari in FTC v. Watson Pharmaceuticals. In light of the importance of the issue to both drug consumers and manufacturers, it is crucial to understand the economic effects of RPSs. Many courts, including the Second Circuit and the Eleventh Circuit, commentators and scholars have suggested that restricting RPSs would necessarily retard technological progress, by reducing the expected returns of becoming a patentee. In this Article, I show, with the help of a game-theoretical model, that this conclusion is unwarranted. Restricting RPSs has the effect of chilling generic entry when – and only when – the underlying patent is strong, or likely to be held valid and infringed. Therefore, restricting RPSs increases the expected returns of holding a strong patent by eliminating potential payments to generic entrants, while at the same time eliminating the possibility of monopoly profit-splitting between branded and generic manufacturers when the patent is weak. This reward shifting effect implies that restricting the use of RPSs is likely to foster more revolutionary innovations, which lead to stronger patents, while lowering R&D towards relatively obvious inventions, which lead to weaker patents. This reward shifting effect of restrictive rules on RPSs, to the best of my knowledge, has gone unnoticed in the past, and it should play an important role in the Supreme Court’s cost benefit analysis.
{"title":"Reverse Payments, Perverse Incentives","authors":"Murat C. Mungan","doi":"10.2139/ssrn.2214170","DOIUrl":"https://doi.org/10.2139/ssrn.2214170","url":null,"abstract":"Issuing and enforcing prescription drug patents requires courts and legislatures to strike a delicate balance. A patent gives drug manufacturers a legal, if temporary, monopoly on sales of a drug; this encourages manufacturers to engage in costly research and development of new medicines. But not all patents issued by the Patent Office are ultimately deemed valid – generic drug manufacturers can infringe the patent, and, when sued, attack its validity in court on a variety of grounds, including obviousness. In recent years, patent holders have begun to settle these suits (which they initiated) by paying the alleged infringer. Not surprisingly, these reverse payment settlements (“RPSs”) have been challenged on antitrust grounds. The federal courts of appeals split over whether this practice is presumptively an illegal restraint of trade, and in December 2012 the Supreme Court agreed to decide the issue, granting a writ of certiorari in FTC v. Watson Pharmaceuticals. In light of the importance of the issue to both drug consumers and manufacturers, it is crucial to understand the economic effects of RPSs. Many courts, including the Second Circuit and the Eleventh Circuit, commentators and scholars have suggested that restricting RPSs would necessarily retard technological progress, by reducing the expected returns of becoming a patentee. In this Article, I show, with the help of a game-theoretical model, that this conclusion is unwarranted. Restricting RPSs has the effect of chilling generic entry when – and only when – the underlying patent is strong, or likely to be held valid and infringed. Therefore, restricting RPSs increases the expected returns of holding a strong patent by eliminating potential payments to generic entrants, while at the same time eliminating the possibility of monopoly profit-splitting between branded and generic manufacturers when the patent is weak. This reward shifting effect implies that restricting the use of RPSs is likely to foster more revolutionary innovations, which lead to stronger patents, while lowering R&D towards relatively obvious inventions, which lead to weaker patents. This reward shifting effect of restrictive rules on RPSs, to the best of my knowledge, has gone unnoticed in the past, and it should play an important role in the Supreme Court’s cost benefit analysis.","PeriodicalId":133015,"journal":{"name":"Florida State University Public Law & Legal Theory Research Paper Series","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123823082","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}
The Haig-Simons concept of income has for roughly fifty years been a gold standard of income tax theory and policy discussion. This article argues that the classic Haig-Simons formulation of personal income, which consists of an individual’s consumption plus net increases in wealth for the taxable year, could not be maintained by Simons himself, is contrary to fundamental political values, is unnecessary, and is inferior to an objective ability-to-pay realization personal income tax. Specifically, the Haig-Simons concept simply gets it wrong insofar as it posits that consumption is an independent category of income. That leaves “consumption” as a deduction-disallowance principle, but in that respect the concept is ambiguous and insufficient. Finally, the notion of “changes in wealth” hasn’t made headway, due to the persistence of the realization principle. The problems attending the Haig-Simons income concept, as well as Simons’ goal of designing a redistributive tax, are resolved under an objective ability-to-pay personal income concept. Part I uncovers the basic ambiguity as to the role of “consumption” under the Haig-Simons concept of income, and demonstrates that consumption under the Haig-Simons concept should not be interpreted as a gross income principle. Thus, imputed income (and other intangible benefits received) are not properly viewed as gross income in the tax sense. Instead, consumption is merely a deduction-disallowance principle, and an insufficient (or incomplete) one at that. Part II discusses normative criteria underlying an income tax that point towards an objective ability-to-pay realization personal income tax. The notion of objective ability to pay is an internal-to-tax tax fairness norm that is constructed from the ground up by considering the role of taxation (in a liberal society) to raise cash revenue in an annual budget cycle. It also happens that an ability-to-pay personal income tax can, itself perform a mildly redistributive function. (Incidentally, it is argued in this part that indexing of basis is improper from a tax fairness perspective.) Part III follows with an outline of basic features of such a tax. Some controversial points raised in Part III include abolition of the accrual method of tax accounting, disallowing depreciation deductions, and a thorough revamping of the tax treatment of borrowing.
{"title":"Deconstructing Haig-Simons Income and Reconstructing It as Objective Ability-to-Pay Income","authors":"Joseph M. Dodge","doi":"10.2139/ssrn.2053275","DOIUrl":"https://doi.org/10.2139/ssrn.2053275","url":null,"abstract":"The Haig-Simons concept of income has for roughly fifty years been a gold standard of income tax theory and policy discussion. This article argues that the classic Haig-Simons formulation of personal income, which consists of an individual’s consumption plus net increases in wealth for the taxable year, could not be maintained by Simons himself, is contrary to fundamental political values, is unnecessary, and is inferior to an objective ability-to-pay realization personal income tax. Specifically, the Haig-Simons concept simply gets it wrong insofar as it posits that consumption is an independent category of income. That leaves “consumption” as a deduction-disallowance principle, but in that respect the concept is ambiguous and insufficient. Finally, the notion of “changes in wealth” hasn’t made headway, due to the persistence of the realization principle. The problems attending the Haig-Simons income concept, as well as Simons’ goal of designing a redistributive tax, are resolved under an objective ability-to-pay personal income concept. Part I uncovers the basic ambiguity as to the role of “consumption” under the Haig-Simons concept of income, and demonstrates that consumption under the Haig-Simons concept should not be interpreted as a gross income principle. Thus, imputed income (and other intangible benefits received) are not properly viewed as gross income in the tax sense. Instead, consumption is merely a deduction-disallowance principle, and an insufficient (or incomplete) one at that. Part II discusses normative criteria underlying an income tax that point towards an objective ability-to-pay realization personal income tax. The notion of objective ability to pay is an internal-to-tax tax fairness norm that is constructed from the ground up by considering the role of taxation (in a liberal society) to raise cash revenue in an annual budget cycle. It also happens that an ability-to-pay personal income tax can, itself perform a mildly redistributive function. (Incidentally, it is argued in this part that indexing of basis is improper from a tax fairness perspective.) Part III follows with an outline of basic features of such a tax. Some controversial points raised in Part III include abolition of the accrual method of tax accounting, disallowing depreciation deductions, and a thorough revamping of the tax treatment of borrowing.","PeriodicalId":133015,"journal":{"name":"Florida State University Public Law & Legal Theory Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129305254","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}
One of the principal, if unexpected, results of the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Commission is the rise of background principles of property and nuisance law as a categorical defense to takings claims. Our writings on the background principles defense have provoked Professor Huffman, a devoted advocate for an expanded use of regulatory takings to protect landowner development rights, to mistakenly charge us with arguing for the use of common law principles to circumvent the rule of law, Supreme Court intent, and the takings clause. Actually, ours was not a normative brief at all, but instead a positivistic explanation of takings cases in the lower courts since Lucas, which include judicial recognition of statutory background principles. In this article, we respond to Huffman, examining the continuing importance of the background principles defense and explaining the trouble with his vision of libertarian property and his peculiar notion of the rule of law. We focus especially on wetlands regulation, which Huffman thinks is a recent development when in fact its origins date to medieval England, and therefore is particularly suited to the background principles defense. We conclude that background principles, as "the logically antecedent inquiry" into the nature of a claimant's property interest, are now a permanent feature of the takings landscape.
{"title":"Background Principles, Takings, and Libertarian Property: A Reply to Professor Huffman","authors":"M. Blumm, J. Ruhl","doi":"10.15779/Z38PV8Q","DOIUrl":"https://doi.org/10.15779/Z38PV8Q","url":null,"abstract":"One of the principal, if unexpected, results of the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Commission is the rise of background principles of property and nuisance law as a categorical defense to takings claims. Our writings on the background principles defense have provoked Professor Huffman, a devoted advocate for an expanded use of regulatory takings to protect landowner development rights, to mistakenly charge us with arguing for the use of common law principles to circumvent the rule of law, Supreme Court intent, and the takings clause. Actually, ours was not a normative brief at all, but instead a positivistic explanation of takings cases in the lower courts since Lucas, which include judicial recognition of statutory background principles. In this article, we respond to Huffman, examining the continuing importance of the background principles defense and explaining the trouble with his vision of libertarian property and his peculiar notion of the rule of law. We focus especially on wetlands regulation, which Huffman thinks is a recent development when in fact its origins date to medieval England, and therefore is particularly suited to the background principles defense. We conclude that background principles, as \"the logically antecedent inquiry\" into the nature of a claimant's property interest, are now a permanent feature of the takings landscape.","PeriodicalId":133015,"journal":{"name":"Florida State University Public Law & Legal Theory Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130731464","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}
This is a short response to a recent essay by Omri Ben-Shahar ("A Bargaining Power Theory of Default Rules," 109 Colum. L. Rev. 396 (2009)). It is part of a broader forthcoming analysis of contract interpretation.Professor Ben-Shahar argues that evidence of bargaining power should inform courts when they fill contractual gaps. I make several observations in response: (1) a significant portion of Ben-Shahar's argument applies not to gaps but to other kinds of contractual questions, and it has less force for gaps; (2) reliable evidence about bargaining power is often unavailable; (3) contracts should not be interpreted, generally speaking, based on an analysis of how parties have divided contractual surplus, because an intent regarding general surplus division does not follow from evidence regarding specific surplus divisions; and (4) even when one party is strong enough to apparently dictate terms, there is no good general reason to allow it to dictate specific terms ex post. In principle, my analysis is not meant to refute Professor Ben-Shahar's general line of reasoning but to suggest that bargaining power, though important theoretically, is unlikely to be useful as an independent interpretive aid in contract law.
{"title":"The Limits of Bargaining Power as an Interpretive Aid","authors":"Shawn J. Bayern","doi":"10.2139/SSRN.1430704","DOIUrl":"https://doi.org/10.2139/SSRN.1430704","url":null,"abstract":"This is a short response to a recent essay by Omri Ben-Shahar (\"A Bargaining Power Theory of Default Rules,\" 109 Colum. L. Rev. 396 (2009)). It is part of a broader forthcoming analysis of contract interpretation.Professor Ben-Shahar argues that evidence of bargaining power should inform courts when they fill contractual gaps. I make several observations in response: (1) a significant portion of Ben-Shahar's argument applies not to gaps but to other kinds of contractual questions, and it has less force for gaps; (2) reliable evidence about bargaining power is often unavailable; (3) contracts should not be interpreted, generally speaking, based on an analysis of how parties have divided contractual surplus, because an intent regarding general surplus division does not follow from evidence regarding specific surplus divisions; and (4) even when one party is strong enough to apparently dictate terms, there is no good general reason to allow it to dictate specific terms ex post. In principle, my analysis is not meant to refute Professor Ben-Shahar's general line of reasoning but to suggest that bargaining power, though important theoretically, is unlikely to be useful as an independent interpretive aid in contract law.","PeriodicalId":133015,"journal":{"name":"Florida State University Public Law & Legal Theory Research Paper Series","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127712643","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}
This article is the first in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. It builds the basic model of CAS and maps it onto legal systems, offering some suggestions for what it means in terms of legal institution and instrument design.
{"title":"Complexity Theory as a Paradigm for the Dynamical Law-and-Society System: A Wake-Up Call for Legal Reductionism and the Modern Administrative State","authors":"J. Ruhl","doi":"10.2307/1372975","DOIUrl":"https://doi.org/10.2307/1372975","url":null,"abstract":"This article is the first in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. It builds the basic model of CAS and maps it onto legal systems, offering some suggestions for what it means in terms of legal institution and instrument design.","PeriodicalId":133015,"journal":{"name":"Florida State University Public Law & Legal Theory Research Paper Series","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1996-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123078163","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}
The fiduciary duty rules in the Revised Uniform Partnership Act (1994) ("RUPA") have been criticized by some as being too contractarian and by others as being too paternalistic. Professor J. Dennis Hynes, whose agency and partnership casebook I have long admired, joins those who believe that RUPA is overly paternalistic. His thesis is that RUPA's fiduciary duty rules invite too much judicial intervention. He asserts that, unless the bargaining of the parties is flawed, courts should refrain from intervening in the resulting contract. Only if the bargaining process is flawed should "unconscionable" provisions be set aside.The essence of my response is that RUPA represents a major and sufficient move toward a contractarian statement of the law. In particular, I reject the assertion that partners should be free to contract away all fiduciary duties. First, individuals rarely "bargain" as equals for partnership agreements that completely define their relationship. The law should assume that the completely defined partnership relationship is the exception rather than the norm. It should also take into account the probability that the bargaining process involves human foible and important information asymmetries, if not outright fraud. Second, even apart from the imperfections of bargaining, prohibiting certain types of relationships is preferable to permitting them. Mandatory minima are designed to prevent types of relationships that would cost more than they would benefit. Finally, the language of fiduciary law, with its mandatory rules, is preferable to the language of the law of the sale of goods, with its mandatory rules. The language stating the minima among partners ought to reflect the texture of their relationship, which is one of a powerful mutual agency, ill-defined hierarchy, and joint and several liability. If the indeterminacy of the mimina is kept in check, the benefit of the mimina will far exceed the cost.
1994年修订的《统一合伙企业法》(“RUPA”)中的信义义务规则被一些人批评为过于契约主义，而另一些人则批评为过于家长式。J. Dennis Hynes教授，他的代理和合作案例手册我一直很欣赏，他加入了那些认为RUPA过于家长式的人的队伍。他的论点是RUPA的信义义务规则招致了过多的司法干预。他断言，除非双方的议价存在缺陷，否则法院不应干预由此产生的合同。只有在谈判过程存在缺陷的情况下，“不合理”的条款才应该被搁置一边。我的回答的本质是RUPA代表了向法律的契约声明的主要和充分的移动。我尤其反对这样一种说法，即合伙人应该可以自由地通过合同放弃所有受托责任。首先，个人很少平等地“讨价还价”，签订完全定义他们关系的伙伴关系协议。法律应当假定完全界定的合伙关系是例外而不是常态。它还应该考虑到议价过程中涉及人类弱点和重要信息不对称的可能性，如果不是彻头彻尾的欺诈的话。其次，即使不考虑讨价还价的不完美之处，禁止某些类型的关系也比允许它们更好。强制性最低限度是为了防止那种代价大于收益的关系。最后，具有强制性规则的信托法的语言比具有强制性规则的货物销售法的语言更可取。说明合伙人之间最低限度的语言应该反映他们关系的结构，即一种强大的相互代理、不明确的等级制度、连带责任。如果最小值的不确定性得到控制，最小值的收益将远远超过成本。
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