Patents were originally designed to encourage technological innovation, which would not otherwise occur, and which create spillover benefits. Careful design is needed to ensure patents do not provide windfall benefits to inventions which would take place absent patents. Further, for the grant of a patent to be economically rational the patented invention must have a reasonable probability of providing spillover (dynamic growth) benefits that exceed monopoly (static inefficiency) losses. This paper draws on the substantial empirical research on industrial innovation and how patent systems work in practice to develop a first-best set of policy parameters for a balanced (parsimonious) patent system. That is, it attempts to design a set of parameters which maximise dynamic growth benefits while minimising static efficiency losses, thus complying with TRIPS Article 7. These parameters are compared with TRIPS and with the TRIPS-Plus elements which the USA is seeking from bi-lateral and regional trade treaties. The resulting schema allows a clearer view of the cost of patent policy provisions in "trade" treaties.
{"title":"Trade Treaties and Patent Policy: Searching for a Balanced Approach","authors":"H. Moir","doi":"10.2139/ssrn.2529296","DOIUrl":"https://doi.org/10.2139/ssrn.2529296","url":null,"abstract":"Patents were originally designed to encourage technological innovation, which would not otherwise occur, and which create spillover benefits. Careful design is needed to ensure patents do not provide windfall benefits to inventions which would take place absent patents. Further, for the grant of a patent to be economically rational the patented invention must have a reasonable probability of providing spillover (dynamic growth) benefits that exceed monopoly (static inefficiency) losses. This paper draws on the substantial empirical research on industrial innovation and how patent systems work in practice to develop a first-best set of policy parameters for a balanced (parsimonious) patent system. That is, it attempts to design a set of parameters which maximise dynamic growth benefits while minimising static efficiency losses, thus complying with TRIPS Article 7. These parameters are compared with TRIPS and with the TRIPS-Plus elements which the USA is seeking from bi-lateral and regional trade treaties. The resulting schema allows a clearer view of the cost of patent policy provisions in \"trade\" treaties.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"505 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122810312","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}
English Abstract: The article analyzes expected changes in the Civil code of the Russian Federation, the devoted models of a frame agreement; the comparative characteristic of a frame agreement and the agreement with open conditions is given; the criteria determining the maintenance of a frame agreement and its distinctive features among other organizational transactions are resulted.Russian Abstract: в статье анализируются предполагаемые изменения в Гражданском кодексе РФ, посвященные модели рамочного договора; дается сравнительная характеристика рамочного договора и договора с открытыми условиями; приводятся критерии, определяющие содержание рамочного договора и его отличительные особенности в ряду иных организационных сделок.
{"title":"To a Question on the Legal Nature of a Frame Agreement in the Light of Enhancement of the Russian Civil Legislation (К Вопросу О Правовой Природе Рамочного Договора в Свете Совершенствования Российского Гражданского Законодательства)","authors":"M. A. Egorova","doi":"10.2139/SSRN.2521061","DOIUrl":"https://doi.org/10.2139/SSRN.2521061","url":null,"abstract":"English Abstract: The article analyzes expected changes in the Civil code of the Russian Federation, the devoted models of a frame agreement; the comparative characteristic of a frame agreement and the agreement with open conditions is given; the criteria determining the maintenance of a frame agreement and its distinctive features among other organizational transactions are resulted.Russian Abstract: в статье анализируются предполагаемые изменения в Гражданском кодексе РФ, посвященные модели рамочного договора; дается сравнительная характеристика рамочного договора и договора с открытыми условиями; приводятся критерии, определяющие содержание рамочного договора и его отличительные особенности в ряду иных организационных сделок.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122654690","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}
In Hall v. U.S., 132 S. Ct. 1882 (2012), the Supreme Court ruled that federal income tax liabilities due to individual debtors’ sales of farm assets during the pendency of a Chapter 12 bankruptcy reorganization are not subject to collection or discharge in the debtors’ plan. The Court opined that the post-petition income taxes are not unsecured claims under Bankruptcy Code §1222(a)(2)(A) as they were not “incurred by the estate” under Bankruptcy Code §503(b). Under Code §1222(a)(2)(A), a Chapter 12 plan must provide for full payment of all claims entitled to priority under Code §507 unless the claim is owed to a governmental unit arising from the sale of any farm asset used in the debtor’s farming operation, in which case it will be treated as an unsecured claim. Code §507(a)(8) gives priority to certain pre-petition taxes while Code §507(a)(2) gives priority to administrative expenses allowed under Code §503(b). Code §503(b)(1)(B)(i) allows for any tax “incurred by the estate” to be treated as an administrative expense. The Court gave the phrase “incurred by the estate” its plain meaning and applied I.R.C. §§1398 and 1399, reasoning that under I.R.C. the Chapter 12 estate was not a separate taxable entity and that the debtor was individually responsible for the tax. In reaching its decision, the Court viewed the statute’s plain language, context, and structure.
在Hall v. u.s.， 132 S. Ct. 1882(2012)一案中，最高法院裁定，由于个人债务人在第12章破产重组待定期间出售农场资产而产生的联邦所得税负债不受债务人计划的征收或免除。法院认为，申请后所得税不属于破产法第1222(a)(2)(a)条项下的无担保债权，因为它们不是破产法第503(b)条项下“由遗产产生的”。根据法典第1222(a)(2)(a)条，第12章计划必须全额支付所有根据法典第507条享有优先权的债权，除非该债权是由于债务人出售其农业经营中使用的任何农场资产而欠政府单位的，在这种情况下，该债权将被视为无担保债权。法典第507(a)(8)条优先考虑某些预申请税，而法典第507(a)(2)条优先考虑法典第503(b)条允许的行政费用。法典§503(b)(1)(b)(i)允许“由遗产产生的”任何税收被视为行政费用。法院对“由遗产引起的”一词给出了明确的含义，并适用了《美国税法》第1398条和1399条，理由是根据《美国税法》第12章，遗产不是一个单独的应税实体，债务人对税款负有个人责任。在作出裁决时，法院考虑了规约的通俗语言、背景和结构。
{"title":"The High Court Rules that Post-Petition Income Taxes on the Sale of Farm Assets Are Not Discharged Pursuant to Chapter 12 of the Bankruptcy Code","authors":"M. Aquilio","doi":"10.2139/SSRN.2520646","DOIUrl":"https://doi.org/10.2139/SSRN.2520646","url":null,"abstract":"In Hall v. U.S., 132 S. Ct. 1882 (2012), the Supreme Court ruled that federal income tax liabilities due to individual debtors’ sales of farm assets during the pendency of a Chapter 12 bankruptcy reorganization are not subject to collection or discharge in the debtors’ plan. The Court opined that the post-petition income taxes are not unsecured claims under Bankruptcy Code §1222(a)(2)(A) as they were not “incurred by the estate” under Bankruptcy Code §503(b). Under Code §1222(a)(2)(A), a Chapter 12 plan must provide for full payment of all claims entitled to priority under Code §507 unless the claim is owed to a governmental unit arising from the sale of any farm asset used in the debtor’s farming operation, in which case it will be treated as an unsecured claim. Code §507(a)(8) gives priority to certain pre-petition taxes while Code §507(a)(2) gives priority to administrative expenses allowed under Code §503(b). Code §503(b)(1)(B)(i) allows for any tax “incurred by the estate” to be treated as an administrative expense. The Court gave the phrase “incurred by the estate” its plain meaning and applied I.R.C. §§1398 and 1399, reasoning that under I.R.C. the Chapter 12 estate was not a separate taxable entity and that the debtor was individually responsible for the tax. In reaching its decision, the Court viewed the statute’s plain language, context, and structure.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125900122","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 digital revolution has now moved beyond music and video files. A person can now translate three-dimensional objects into digital files and, at the press of a button, recreate those items via a 3D printer or similar device. Just as digitization placed pressure on the copyright system, so will these digital computer-aided design (CAD) files stress the patent system. Patents directed to physical objects can now have their value appropriated — not by the transfer of physical embodiments — but by the making, selling, and transferring of CAD files designed to print the invention. We term this phenomenon digital patent infringement. We explore the ways the patent system can respond to protect patent owners against the appropriation of their inventions via these digital files. First, we explore whether indirect infringement doctrines sufficiently protect patent holders against these CAD files. Given the nature of likely accused indirect infringers, we conclude, contrary to earlier literature, that these doctrines likely are not up to the task. Second, we offer novel theories of direct “digital” patent infringement based on the CAD files alone. We consider whether offers to sell and sales of these files should constitute direct patent infringement. Because such commercial activity is an appropriation of the economic value of the patented invention, we believe the law should recognize such an infringement theory. Next, rejecting the prior assumptions of the literature, we provocatively explore whether the CAD files alone should be viewed as infringement for making the patented device, given the de minimis effort it takes to create the item via a 3D printer or related device. As a technological matter, the line between digital and tangible has eroded to the point where one could view these files as infringement. As a legal and policy matter, however, such expansion of patent infringement liability could have significant chilling effects on other actors and incentives, giving us pause in extending liability in this context.
{"title":"Digital Patent Infringement in an Era of 3D Printing","authors":"T. Holbrook, Lucas S. Osborn","doi":"10.2139/ssrn.2483550","DOIUrl":"https://doi.org/10.2139/ssrn.2483550","url":null,"abstract":"The digital revolution has now moved beyond music and video files. A person can now translate three-dimensional objects into digital files and, at the press of a button, recreate those items via a 3D printer or similar device. Just as digitization placed pressure on the copyright system, so will these digital computer-aided design (CAD) files stress the patent system. Patents directed to physical objects can now have their value appropriated — not by the transfer of physical embodiments — but by the making, selling, and transferring of CAD files designed to print the invention. We term this phenomenon digital patent infringement. We explore the ways the patent system can respond to protect patent owners against the appropriation of their inventions via these digital files. First, we explore whether indirect infringement doctrines sufficiently protect patent holders against these CAD files. Given the nature of likely accused indirect infringers, we conclude, contrary to earlier literature, that these doctrines likely are not up to the task. Second, we offer novel theories of direct “digital” patent infringement based on the CAD files alone. We consider whether offers to sell and sales of these files should constitute direct patent infringement. Because such commercial activity is an appropriation of the economic value of the patented invention, we believe the law should recognize such an infringement theory. Next, rejecting the prior assumptions of the literature, we provocatively explore whether the CAD files alone should be viewed as infringement for making the patented device, given the de minimis effort it takes to create the item via a 3D printer or related device. As a technological matter, the line between digital and tangible has eroded to the point where one could view these files as infringement. As a legal and policy matter, however, such expansion of patent infringement liability could have significant chilling effects on other actors and incentives, giving us pause in extending liability in this context.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131238482","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 “fraud against the bankruptcy law principle” provides that it is not lawful for parties to use contractual provisions to circumvent bankruptcy law. In England this principle has split into two distinct subrules – the pari passu rule which invalidates contractual provisions that alter the bankruptcy scheme of distribution, and anti-deprivation rule that invalidates provisions that withdraw an asset that would otherwise be available to satisfy the claims of creditors in insolvency proceedings. Canadian courts have not adopted a similar approach, and the decision of the Alberta Court of Appeal in Re Horizon Earthworks Ltd. (Bankrupt), which applied the principle in relation to a direct payment clause in a construction contract, provides an opportunity to examine how the common law and statutory rules governing this issue interact in Canada.
{"title":"Direct Payment Clauses and the Fraud Upon the Bankruptcy Law Principle: Re Horizon Earthworks Ltd. (Bankrupt)","authors":"R. Wood","doi":"10.29173/ALR19","DOIUrl":"https://doi.org/10.29173/ALR19","url":null,"abstract":"The “fraud against the bankruptcy law principle” provides that it is not lawful for parties to use contractual provisions to circumvent bankruptcy law. In England this principle has split into two distinct subrules – the pari passu rule which invalidates contractual provisions that alter the bankruptcy scheme of distribution, and anti-deprivation rule that invalidates provisions that withdraw an asset that would otherwise be available to satisfy the claims of creditors in insolvency proceedings. Canadian courts have not adopted a similar approach, and the decision of the Alberta Court of Appeal in Re Horizon Earthworks Ltd. (Bankrupt), which applied the principle in relation to a direct payment clause in a construction contract, provides an opportunity to examine how the common law and statutory rules governing this issue interact in Canada.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114714667","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}
Behaviour change strategies such as ‘nudge’ have become hugely popular with administrations on both sides of the Atlantic. The practice of nudging, however, raises conceptual and controversial issues which must be addressed in examining the conditions under which nudging can be used effectively and acceptably. A key to a clear conceptual understanding of nudge-related issues is to distinguish between three degrees of nudge. These three degrees raise different, and identifiable, concerns and it is possible to assess the extent to which these can be responded to in positive terms. The compatibility of nudging with other control devices cannot be assumed and, when contemplating nudging, it is essential to be transparent about its philosophical basis, as well as to be aware that different modes of intervention may operate with clashes of logic that threaten not only effectiveness but also the serving of representative and ethical ends.
{"title":"From Regulation to Behaviour Change: Giving Nudge the Third Degree","authors":"R. Baldwin","doi":"10.1111/1468-2230.12094","DOIUrl":"https://doi.org/10.1111/1468-2230.12094","url":null,"abstract":"Behaviour change strategies such as ‘nudge’ have become hugely popular with administrations on both sides of the Atlantic. The practice of nudging, however, raises conceptual and controversial issues which must be addressed in examining the conditions under which nudging can be used effectively and acceptably. A key to a clear conceptual understanding of nudge-related issues is to distinguish between three degrees of nudge. These three degrees raise different, and identifiable, concerns and it is possible to assess the extent to which these can be responded to in positive terms. The compatibility of nudging with other control devices cannot be assumed and, when contemplating nudging, it is essential to be transparent about its philosophical basis, as well as to be aware that different modes of intervention may operate with clashes of logic that threaten not only effectiveness but also the serving of representative and ethical ends.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133051135","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}
Among the highly significant changes to the benefits system made by the Welfare Reform Act 2012 is provision for a new disability benefit, personal independence payment (PIP). PIP is replacing disability living allowance (DLA), received by three million people, as the principal form of state financial support towards disability‐related care and mobility costs for those of working age. The legislation, including regulations prescribing a new disability assessment framework, plays its traditional role in this field of rationing access to benefit and directing front‐line policy implementation. This article examines how, in the context of the Coalition government's welfare reforms, PIP shifts the threshold of entitlement for people with disabilities and it assesses PIP's potential impact on equality and the right to independent living, to whose realisation disability benefits may be expected to contribute significantly. It also considers the impact on disabled people of other relevant reforms, including the controversial ‘bedroom tax’.
{"title":"Welfare Reform and the Shifting Threshold of Support for Disabled People","authors":"N. Harris","doi":"10.1111/1468-2230.12096","DOIUrl":"https://doi.org/10.1111/1468-2230.12096","url":null,"abstract":"Among the highly significant changes to the benefits system made by the Welfare Reform Act 2012 is provision for a new disability benefit, personal independence payment (PIP). PIP is replacing disability living allowance (DLA), received by three million people, as the principal form of state financial support towards disability‐related care and mobility costs for those of working age. The legislation, including regulations prescribing a new disability assessment framework, plays its traditional role in this field of rationing access to benefit and directing front‐line policy implementation. This article examines how, in the context of the Coalition government's welfare reforms, PIP shifts the threshold of entitlement for people with disabilities and it assesses PIP's potential impact on equality and the right to independent living, to whose realisation disability benefits may be expected to contribute significantly. It also considers the impact on disabled people of other relevant reforms, including the controversial ‘bedroom tax’.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125478614","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 fear that farmers could be found liable for patent infringement based on the inadvertent presence of patented genetically modified plants on the farmer’s fields has led to calls for limitations on the scope and enforceability of patents. These “reforms” would be especially problematic for agricultural biotechnology companies like Monsanto, but the repercussions could be more widespread, impacting a host of important cutting-edge technologies like synthetic biology and nanotechnology. Although stories of farmers being sued by Monsanto after their fields where inadvertently contaminated by genetic drift are widely circulated, inadvertent infringement based upon genetic drift or the presence of trace amounts of contaminating patented seed in a farmer’s field does not appear to have ever resulted in a lawsuit by Monsanto. The situation, however, might become more complicated in the not too distant future as advances in technology and developments in the market render it increasingly likely that infringement lawsuits will be filed in cases where it is more difficult to prove that a farmer has taken overt action unambiguously establishing the intentional use of patented technology, or even knowledge that a patented plant is growing in the farmer’s field. When faced with a case in which the equities tilt more favorably in favor of an accused farmer, courts should strive to maintain a balance between the desire to protect potentially “innocent” infringers and the need to maintain a vibrant patent system to foster further innovation in this important area of technology.
{"title":"How Real is the Concern that Seed Patents Will Turn Farmers into Inadvertent Infringers?","authors":"Christopher M. Holman","doi":"10.1089/BLR.2014.9975","DOIUrl":"https://doi.org/10.1089/BLR.2014.9975","url":null,"abstract":"The fear that farmers could be found liable for patent infringement based on the inadvertent presence of patented genetically modified plants on the farmer’s fields has led to calls for limitations on the scope and enforceability of patents. These “reforms” would be especially problematic for agricultural biotechnology companies like Monsanto, but the repercussions could be more widespread, impacting a host of important cutting-edge technologies like synthetic biology and nanotechnology. Although stories of farmers being sued by Monsanto after their fields where inadvertently contaminated by genetic drift are widely circulated, inadvertent infringement based upon genetic drift or the presence of trace amounts of contaminating patented seed in a farmer’s field does not appear to have ever resulted in a lawsuit by Monsanto. The situation, however, might become more complicated in the not too distant future as advances in technology and developments in the market render it increasingly likely that infringement lawsuits will be filed in cases where it is more difficult to prove that a farmer has taken overt action unambiguously establishing the intentional use of patented technology, or even knowledge that a patented plant is growing in the farmer’s field. When faced with a case in which the equities tilt more favorably in favor of an accused farmer, courts should strive to maintain a balance between the desire to protect potentially “innocent” infringers and the need to maintain a vibrant patent system to foster further innovation in this important area of technology.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115693109","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}
In the current post-Erie age of statutes the Supreme Court continues to have potential influence over the development of a “general” common law used to decide recurring issues governed by state law. This influence, which has drawn little commentary, derives from the Court’s authority to consider analogous issues when filling gaps in federal statutes, sometimes through express reliance on general common law. The influence is through the power to persuade, like that of the federal judiciary in its general common lawmaking age of Swift, rather than through the power to command, like that of the federal judiciary in the formulation of the specialized federal common law of the post-Erie era. The Court’s post-Erie role in general common law making has been evident recently in a series of decisions interpreting federal employment statutes. In those decisions the Court has relied in part on common law as formulated in the Restatement Second of Agency, but also has modified that formulation in ways that could enhance the common law applied by state courts. The American Law Institute in turn has considered and in part relied upon the Court’s participation in the common law making process in the production of its Restatement of Employment Law, which will be granted final approval in May, 2014. By using examples from the Court’s recent employment law decisions, this article highlights how the Court can influence common law through its delegated authority to make law through statutory interpretation.
在后伊利案时代，最高法院继续对用于裁决由州法管辖的反复出现的问题的"一般"普通法的发展具有潜在影响。这种影响很少引起评论，它源于最高法院在填补联邦法规空白时考虑类似问题的权力，有时是通过明确依赖一般普通法。这种影响是通过说服的权力产生的，就像斯威夫特时代的联邦司法机构那样，而不是通过命令的权力产生的，就像后伊利时代的联邦司法机构在制定专门的联邦普通法时所具有的权力。在最近一系列解释联邦就业法规的判决中，最高法院在后伊利案中在一般普通法制定中的作用已得到明显体现。在这些判决中，法院部分地依赖于《代理重述第二》中阐述的普通法，但也对该表述进行了修改，以加强州法院适用的普通法。反过来，美国法律协会在其《就业法重述》(Restatement of Employment Law)的制定过程中考虑并部分依赖于法院对普通法制定过程的参与，该重述将于2014年5月获得最终批准。本文以最高法院最近就雇佣法作出的裁决为例，强调最高法院如何通过法定解释的授权来影响普通法。
{"title":"Fashioning a General Common Law for Employment in an Age of Statutes","authors":"Michael C. Harper","doi":"10.2139/SSRN.2511265","DOIUrl":"https://doi.org/10.2139/SSRN.2511265","url":null,"abstract":"In the current post-Erie age of statutes the Supreme Court continues to have potential influence over the development of a “general” common law used to decide recurring issues governed by state law. This influence, which has drawn little commentary, derives from the Court’s authority to consider analogous issues when filling gaps in federal statutes, sometimes through express reliance on general common law. The influence is through the power to persuade, like that of the federal judiciary in its general common lawmaking age of Swift, rather than through the power to command, like that of the federal judiciary in the formulation of the specialized federal common law of the post-Erie era. The Court’s post-Erie role in general common law making has been evident recently in a series of decisions interpreting federal employment statutes. In those decisions the Court has relied in part on common law as formulated in the Restatement Second of Agency, but also has modified that formulation in ways that could enhance the common law applied by state courts. The American Law Institute in turn has considered and in part relied upon the Court’s participation in the common law making process in the production of its Restatement of Employment Law, which will be granted final approval in May, 2014. By using examples from the Court’s recent employment law decisions, this article highlights how the Court can influence common law through its delegated authority to make law through statutory interpretation.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122156026","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}
Pub Date : 2014-10-09DOI: 10.1007/978-1-4614-7883-6_10-1
Keith N. Hylton
{"title":"Nuisance","authors":"Keith N. Hylton","doi":"10.1007/978-1-4614-7883-6_10-1","DOIUrl":"https://doi.org/10.1007/978-1-4614-7883-6_10-1","url":null,"abstract":"","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121492832","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}
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