One of the purposes of the Trans‐Pacific Partnership (TPP) is to harmonize standards and create a uniform climate for trade and investment. As lawmakers deliberate the terms of the deal, they must consider what the long‐term impact of agreeing to its sweeping provisions will be. As they do so, they should keep in mind that the gaps between the agreed‐upon principles and local implementation, and the differences between local implementation – some of them by design – are often quite great. Drawing upon the existing literature, this short essay provides a survey of the extent of harmony and disharmony in the 20 years that have passed since ratification of the TRIPS agreement, with a focus on its patent provisions. After considering the framework for harmonization that the TPP and TRIPS share, I discuss and provide examples of three types of differences: differences between the minimum standards that are negotiated and compliance with them, differences between the substantive principles agreed to and the actual laws that implement them (and the procedural contexts in which they operate), and differences between the laws as enacted and the laws that are applied.
{"title":"Harmony and Disharmony in International Patent Law","authors":"Colleen V. Chien","doi":"10.2139/ssrn.2745435","DOIUrl":"https://doi.org/10.2139/ssrn.2745435","url":null,"abstract":"One of the purposes of the Trans‐Pacific Partnership (TPP) is to harmonize standards and create a uniform climate for trade and investment. As lawmakers deliberate the terms of the deal, they must consider what the long‐term impact of agreeing to its sweeping provisions will be. As they do so, they should keep in mind that the gaps between the agreed‐upon principles and local implementation, and the differences between local implementation – some of them by design – are often quite great. Drawing upon the existing literature, this short essay provides a survey of the extent of harmony and disharmony in the 20 years that have passed since ratification of the TRIPS agreement, with a focus on its patent provisions. After considering the framework for harmonization that the TPP and TRIPS share, I discuss and provide examples of three types of differences: differences between the minimum standards that are negotiated and compliance with them, differences between the substantive principles agreed to and the actual laws that implement them (and the procedural contexts in which they operate), and differences between the laws as enacted and the laws that are applied.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125610352","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}
We show that efficient exchange obtains independently of the degree to which a legal system protects the rights of owners. We study a number of different legal rules, including property rules (strong protection), liability rules (any party can take the owner's asset but must pay a legally determined compensation), and even rules that protect the owner's interests very weakly (liability rules with a very low compensation level). Efficiency is obtained as long as the degree of protection provided by law and by the bargaining protocol is not "too" inversely correlated with a party's valuation of the asset.
{"title":"Exchange Efficiency with Weak Ownership Rights","authors":"O. Bar‐Gill, N. Persico","doi":"10.1257/MIC.20140232","DOIUrl":"https://doi.org/10.1257/MIC.20140232","url":null,"abstract":"We show that efficient exchange obtains independently of the degree to which a legal system protects the rights of owners. We study a number of different legal rules, including property rules (strong protection), liability rules (any party can take the owner's asset but must pay a legally determined compensation), and even rules that protect the owner's interests very weakly (liability rules with a very low compensation level). Efficiency is obtained as long as the degree of protection provided by law and by the bargaining protocol is not \"too\" inversely correlated with a party's valuation of the asset.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124275449","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 takes a closer look at the U.S. payment card system, primarily debit cards. I examine the bundle of transactional services this and other types of payment cards provide. My goal, in large part, is to assess the competitive effects of the debit card interchange fee cap under the Durbin Amendment to the Dodd-Frank Act (2011). In addition to a binding fee cap, it mandated a change in the way the fee is metered. A maximum per transaction fee of 20 cents, binding for most transactions, replaced a typical two-percent negotiated fee. I test hypothesis that the cap caused or contributed to a decline in the willingness of payment card intermediaries to invest in security, possibly increasing the system’s vulnerabilities to the kind of data breaches that have become ever more commonplace.
这篇文章仔细研究了美国的支付卡系统，主要是借记卡。我研究了这种支付卡和其他类型支付卡提供的交易服务包。在很大程度上，我的目标是评估《多德-弗兰克法案》德宾修正案(Durbin Amendment to Dodd-Frank Act, 2011)规定的借记卡交换费上限的竞争影响。除了有约束力的费用上限外，它还要求改变费用的计算方式。每笔交易的最高费用为20美分，对大多数交易具有约束力，取代了典型的2%的协商费用。我测试了这样一种假设，即上限导致或促成了支付卡中介机构在安全方面投资意愿的下降，这可能会增加支付卡系统对数据泄露的脆弱性，而这种数据泄露已经变得越来越普遍。
{"title":"A Closer Look at Payment Cards","authors":"D. Johnsen","doi":"10.2139/SSRN.2736562","DOIUrl":"https://doi.org/10.2139/SSRN.2736562","url":null,"abstract":"This essay takes a closer look at the U.S. payment card system, primarily debit cards. I examine the bundle of transactional services this and other types of payment cards provide. My goal, in large part, is to assess the competitive effects of the debit card interchange fee cap under the Durbin Amendment to the Dodd-Frank Act (2011). In addition to a binding fee cap, it mandated a change in the way the fee is metered. A maximum per transaction fee of 20 cents, binding for most transactions, replaced a typical two-percent negotiated fee. I test hypothesis that the cap caused or contributed to a decline in the willingness of payment card intermediaries to invest in security, possibly increasing the system’s vulnerabilities to the kind of data breaches that have become ever more commonplace.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125400197","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}
Russian Abstract: Организация труда, как в масштабе всего общества, так и в рамках отдельного хозяйства складывается под воздействием объективных и субъективных факторов. Ее объективную основу составляют производственные отношения, возникающие и развивающиеся по установленным законам природы и общества.English Abstract: The organization of work, both on the scale of all society, and within separate economy develops under the influence of objective and subjective factors. Its objective basis is made by the relations of production arising and developing under the established laws of the nature and society.
{"title":"Разрешения Индивидуальных Трудовых Споров (С Использованием Анализа Судебной Практики) (Permissions of Individual Labour Disputes (with Use of the Analysis of Jurisprudence))","authors":"V. Bagdasaryan","doi":"10.2139/SSRN.2731056","DOIUrl":"https://doi.org/10.2139/SSRN.2731056","url":null,"abstract":"Russian Abstract: Организация труда, как в масштабе всего общества, так и в рамках отдельного хозяйства складывается под воздействием объективных и субъективных факторов. Ее объективную основу составляют производственные отношения, возникающие и развивающиеся по установленным законам природы и общества.English Abstract: The organization of work, both on the scale of all society, and within separate economy develops under the influence of objective and subjective factors. Its objective basis is made by the relations of production arising and developing under the established laws of the nature and society.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126480781","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}
Compelling performance of contractual obligations is perhaps the most coercive application of equitable jurisdiction of courts, its essence being make parties do that which they had undertaken and prevent them from walking away, without legitimate cause, from obligations negotiated in good faith. However, governments routinely breach when there is a change in law or policy, where performance has become unbearably expensive, or simply for political expediency. This article examines whether the state can and/or should be exposed to remedial jurisdiction of courts to compel performance of contracts.
{"title":"Can Specific Performance Lie Against a State in Contract?","authors":"Olaniran Tomiwa Osotuyi","doi":"10.2139/ssrn.2731131","DOIUrl":"https://doi.org/10.2139/ssrn.2731131","url":null,"abstract":"Compelling performance of contractual obligations is perhaps the most coercive application of equitable jurisdiction of courts, its essence being make parties do that which they had undertaken and prevent them from walking away, without legitimate cause, from obligations negotiated in good faith. However, governments routinely breach when there is a change in law or policy, where performance has become unbearably expensive, or simply for political expediency. This article examines whether the state can and/or should be exposed to remedial jurisdiction of courts to compel performance of contracts.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134123935","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}
Debt pricing models typically ignore the bankruptcy process by specifying recovery rates as an exogenous function of the state space. I develop a parsimonious model in which corporate default induces a transfer of bond ownership away from traditional diversified holders toward risk-averse activist investors (vultures). Vulture funds improve emergence recovery values but demand a premium which increases with the amount of risk they take. The ratio of activist wealth to defaulted debt emerges as the key state variable that drives prices and returns for defaulted debt and expected recovery rates for pre-default bondholders. In empirical tests, this ratio is a significant determinant of risk-adjusted returns and explains 82% of the time series variation in aggregate post-default trading prices. Exactly as the model predicts, the relationship between the activists wealth ratio and returns is strongest firms with assets that are difficult to monetize and for fulcrum classes where the creditors are likely to emerge from bankruptcy holding the newly issued equity. Through its determination of recovery rates, my renegotiation framework can be easily incorporated into a partial equilibrium asset pricing model where it helps to reduce pricing errors relative to models with exogenously-specified recovery rates. The improvement spans the rating spectrum and for 10 year debt in particular, is able to simultaneously match AAA-BBB and AAA-B spreads.
{"title":"Corporate Debt Markets and Recovery Rates with Vulture Investors","authors":"Ryan Lewis","doi":"10.2139/ssrn.2539585","DOIUrl":"https://doi.org/10.2139/ssrn.2539585","url":null,"abstract":"Debt pricing models typically ignore the bankruptcy process by specifying recovery rates as an exogenous function of the state space. I develop a parsimonious model in which corporate default induces a transfer of bond ownership away from traditional diversified holders toward risk-averse activist investors (vultures). Vulture funds improve emergence recovery values but demand a premium which increases with the amount of risk they take. The ratio of activist wealth to defaulted debt emerges as the key state variable that drives prices and returns for defaulted debt and expected recovery rates for pre-default bondholders. In empirical tests, this ratio is a significant determinant of risk-adjusted returns and explains 82% of the time series variation in aggregate post-default trading prices. Exactly as the model predicts, the relationship between the activists wealth ratio and returns is strongest firms with assets that are difficult to monetize and for fulcrum classes where the creditors are likely to emerge from bankruptcy holding the newly issued equity. Through its determination of recovery rates, my renegotiation framework can be easily incorporated into a partial equilibrium asset pricing model where it helps to reduce pricing errors relative to models with exogenously-specified recovery rates. The improvement spans the rating spectrum and for 10 year debt in particular, is able to simultaneously match AAA-BBB and AAA-B spreads.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133422553","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}
Owners of copyright may at times refuse to republish or allow the republication or have refused to allow the performance in public of the work which results in withholding from the public such copyrighted work and the members of the public suffer by such acts of the owner. There have been instances, where the owners refused to allow communication to the public by (Broadcast) of such work or in the case of (sound recording) the work recorded in such (sound recording) on terms which the complainant considers reasonable. The Copyright Board has the powers under Sec 31 of the Copyright Act, 1957. When a complaint is made to Copyright Board of such instances, the Copyright Board shall grant the license to the complainant subject to the following conditions.
{"title":"Copyright Owners and Public Interest: A Study","authors":"Mukund B Sarda","doi":"10.2139/SSRN.2711106","DOIUrl":"https://doi.org/10.2139/SSRN.2711106","url":null,"abstract":"Owners of copyright may at times refuse to republish or allow the republication or have refused to allow the performance in public of the work which results in withholding from the public such copyrighted work and the members of the public suffer by such acts of the owner. There have been instances, where the owners refused to allow communication to the public by (Broadcast) of such work or in the case of (sound recording) the work recorded in such (sound recording) on terms which the complainant considers reasonable. The Copyright Board has the powers under Sec 31 of the Copyright Act, 1957. When a complaint is made to Copyright Board of such instances, the Copyright Board shall grant the license to the complainant subject to the following conditions.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121046070","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 R (Evans) v Attorney General, the Supreme Court quashed the Attorney General's statutory veto of the Upper Tribunal's original determination made under freedom of information legislation. The Upper Tribunal had held that so-called ‘advocacy’ memos should be published after a full hearing on the merits. The Supreme Court split five to two, with the lead judgment of Lord Neuberger using constitutional rather than administrative language and focusing on the rule of law. This note raises four objections to the lead judgment. First, it argues that the Upper Tribunal was acting in an executive not judicial capacity and the veto was not therefore a breach of the rule of law. Secondly it suggests the veto clause is best understood as a variant Henry VIII clause. Thirdly, it suggests Lord Neuberger's judgment is founded on a paradox. Finally, it argues that the judgment undermines parliamentary sovereignty. Future implications are then considered.
{"title":"Black Spiders Weaving Webs: The Constitutional Implications of Executive Veto of Tribunal Determinations","authors":"R. Craig","doi":"10.1111/1468-2230.12171","DOIUrl":"https://doi.org/10.1111/1468-2230.12171","url":null,"abstract":"In R (Evans) v Attorney General, the Supreme Court quashed the Attorney General's statutory veto of the Upper Tribunal's original determination made under freedom of information legislation. The Upper Tribunal had held that so-called ‘advocacy’ memos should be published after a full hearing on the merits. The Supreme Court split five to two, with the lead judgment of Lord Neuberger using constitutional rather than administrative language and focusing on the rule of law. This note raises four objections to the lead judgment. First, it argues that the Upper Tribunal was acting in an executive not judicial capacity and the veto was not therefore a breach of the rule of law. Secondly it suggests the veto clause is best understood as a variant Henry VIII clause. Thirdly, it suggests Lord Neuberger's judgment is founded on a paradox. Finally, it argues that the judgment undermines parliamentary sovereignty. Future implications are then considered.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"141 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114506453","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}
I study the implications of two major debt-relief policies in the US: the Bankruptcy Abuse and Consumer Protection Act (BAPCPA) and the Home Affordable Refinance Program (HARP). To do so, I develop a model of housing and default that includes relevant dimensions of credit-market policy and captures rich heterogeneity in household balance sheets. The model also explains the observed cross-state variation in consumer default rates. I find that BAPCPA significantly reduced bankruptcy rates, but increased foreclosure rates when house prices fell. HARP reduced foreclosures by one percentage point and provided substantial welfare gains to households with high loan-to-value mortgages.
{"title":"Macroeconomic Effects of Bankruptcy and Foreclosure Policies","authors":"K. Mitman","doi":"10.1257/AER.20120512","DOIUrl":"https://doi.org/10.1257/AER.20120512","url":null,"abstract":"I study the implications of two major debt-relief policies in the US: the Bankruptcy Abuse and Consumer Protection Act (BAPCPA) and the Home Affordable Refinance Program (HARP). To do so, I develop a model of housing and default that includes relevant dimensions of credit-market policy and captures rich heterogeneity in household balance sheets. The model also explains the observed cross-state variation in consumer default rates. I find that BAPCPA significantly reduced bankruptcy rates, but increased foreclosure rates when house prices fell. HARP reduced foreclosures by one percentage point and provided substantial welfare gains to households with high loan-to-value mortgages.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"218 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131464902","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 identifies three distinct concepts of workplace freedom of association (“FOA”) and traces their influence on labor law doctrine, focusing on the law of union security devices — contractual clauses that require workers, on pain of termination, to remit fees to unions. The “social democratic” concept informed the passage of the National Labor Relations Act (“NLRA” or “the Act”) and continues to inform social movement practice and some other countries’ jurisprudence. It views workplace freedom of association as a means to the end of ensuring economic equality and economic democracy, and generally endorses the so-called “union shop,” under which workers must contribute both to unions’ representational activities and to their legislative and organizing efforts. The “civil libertarian” concept was predominant in Supreme Court doctrine from the Warren Court era until recently. It emphasized individual rights of expression and political participation, and backstopped the line of cases declaring the union shop unlawful but requiring workers to help defray representational expenses. The “neoliberal” concept now appears ascendant. It views market behavior as a form of expressive behavior, and views compulsory payment of any union fees as unconstitutional. Disaggregating these concepts can enrich debates around workplace freedom of association in three ways. First, doing so illustrates that determining the scope of workplace freedom of association involves contestable value judgments about the goods and ends of unionization and association. Second, doing so illustrates that the Supreme Court’s recent union security cases reflect broader trends in the Court’s recent case law that constitutionalize a neoliberal political economy. Third, doing so suggests that the social democratic concept is both more coherent and more morally compelling than the civil libertarian concept, and may help it regain a foothold in debates around workplace freedom of association.
{"title":"Three Concepts of Workplace Freedom of Association","authors":"Brishen Rogers","doi":"10.15779/Z38MG3S","DOIUrl":"https://doi.org/10.15779/Z38MG3S","url":null,"abstract":"This Article identifies three distinct concepts of workplace freedom of association (“FOA”) and traces their influence on labor law doctrine, focusing on the law of union security devices — contractual clauses that require workers, on pain of termination, to remit fees to unions. The “social democratic” concept informed the passage of the National Labor Relations Act (“NLRA” or “the Act”) and continues to inform social movement practice and some other countries’ jurisprudence. It views workplace freedom of association as a means to the end of ensuring economic equality and economic democracy, and generally endorses the so-called “union shop,” under which workers must contribute both to unions’ representational activities and to their legislative and organizing efforts. The “civil libertarian” concept was predominant in Supreme Court doctrine from the Warren Court era until recently. It emphasized individual rights of expression and political participation, and backstopped the line of cases declaring the union shop unlawful but requiring workers to help defray representational expenses. The “neoliberal” concept now appears ascendant. It views market behavior as a form of expressive behavior, and views compulsory payment of any union fees as unconstitutional. Disaggregating these concepts can enrich debates around workplace freedom of association in three ways. First, doing so illustrates that determining the scope of workplace freedom of association involves contestable value judgments about the goods and ends of unionization and association. Second, doing so illustrates that the Supreme Court’s recent union security cases reflect broader trends in the Court’s recent case law that constitutionalize a neoliberal political economy. Third, doing so suggests that the social democratic concept is both more coherent and more morally compelling than the civil libertarian concept, and may help it regain a foothold in debates around workplace freedom of association.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128068682","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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