Legal technologies, or “legal tech,” are disrupting the practice of law and providing efficiencies for businesses around the globe. Indeed, legal tech often conjures up notions around billion-dollar businesses and highly sophisticated parties. However, one branch of legal tech that holds particular promise for less sophisticated parties is expanding access to justice (A2J) through the use of online dispute resolution (ODR). This is because ODR uses technology to allow for online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, condominium, landlord/tenant, personal injury, debt collection, and even divorce claims online. The hope is that legal tech such as online triage and dispute resolution systems will provide means for obtaining remedies for self-represented litigants (SRLs) and those who cannot otherwise afford traditional litigation. Meanwhile, the Covid-19 pandemic has accelerated the growth of online processes, including court and administrative processes that traditionally occurred in person. Nonetheless, these online processes seem focused on mainly case management and communication, neglecting the need for more imaginative and innovative uses of technology. Accordingly, this Article proposes a six-module process framework for ODR programs and identify gaps in development – where new technologies are needed to advance A2J. Indeed, there is great room for development of Artificial Intelligence (AI) and data analytics to assist SRLs and others in pursuit of remedies, and justice. This is a DRAFT of a working paper that will be edited and published in the Columbia Science and Technology Law Review.
{"title":"Intelligent Legal Tech to Empower Self-Represented Litigants","authors":"A. Schmitz, John Zeleznikow","doi":"10.2139/ssrn.4048335","DOIUrl":"https://doi.org/10.2139/ssrn.4048335","url":null,"abstract":"Legal technologies, or “legal tech,” are disrupting the practice of law and providing efficiencies for businesses around the globe. Indeed, legal tech often conjures up notions around billion-dollar businesses and highly sophisticated parties. However, one branch of legal tech that holds particular promise for less sophisticated parties is expanding access to justice (A2J) through the use of online dispute resolution (ODR). This is because ODR uses technology to allow for online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, condominium, landlord/tenant, personal injury, debt collection, and even divorce claims online. The hope is that legal tech such as online triage and dispute resolution systems will provide means for obtaining remedies for self-represented litigants (SRLs) and those who cannot otherwise afford traditional litigation. Meanwhile, the Covid-19 pandemic has accelerated the growth of online processes, including court and administrative processes that traditionally occurred in person. Nonetheless, these online processes seem focused on mainly case management and communication, neglecting the need for more imaginative and innovative uses of technology. Accordingly, this Article proposes a six-module process framework for ODR programs and identify gaps in development – where new technologies are needed to advance A2J. Indeed, there is great room for development of Artificial Intelligence (AI) and data analytics to assist SRLs and others in pursuit of remedies, and justice. This is a DRAFT of a working paper that will be edited and published in the Columbia Science and Technology Law Review.","PeriodicalId":317421,"journal":{"name":"Remedies eJournal","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128134227","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}
For many years, we and other commentators have observed the problem with allowing judges wide discretion to fashion appraisal awards to dissenting shareholders on the basis of widely divergent, expert valuation evidence submitted by the litigating parties. The results of this discretionary approach to valuation have been to make appraisal litigation less predictable and therefore more costly and likely. While this has been beneficial to professionals who profit from corporate valuation litigation, it has been harmful to shareholders, making deals costlier and less likely to complete.
In this Article, we propose to end the problem of discretionary judicial valuation by tracing the origins of the appraisal remedy and demonstrate that its true purpose has always been to protect the exit rights of minority shareholders when a cash exit is otherwise unavailable, and not to judge the value of the deal.
While such reform would be costly to valuation litigation professionals, their loss would be more than offset by the benefit of such reforms to shareholders involved in future corporate transactions. Shareholders presently have adequate protections, both from private arrangements and legal doctrines involving fiduciary duties.
{"title":"The Exit Theory of Judicial Appraisal","authors":"W. Carney, K. Sharfman","doi":"10.2139/ssrn.3849525","DOIUrl":"https://doi.org/10.2139/ssrn.3849525","url":null,"abstract":"For many years, we and other commentators have observed the problem with allowing judges wide discretion to fashion appraisal awards to dissenting shareholders on the basis of widely divergent, expert valuation evidence submitted by the litigating parties. The results of this discretionary approach to valuation have been to make appraisal litigation less predictable and therefore more costly and likely. While this has been beneficial to professionals who profit from corporate valuation litigation, it has been harmful to shareholders, making deals costlier and less likely to complete.<br><br>In this Article, we propose to end the problem of discretionary judicial valuation by tracing the origins of the appraisal remedy and demonstrate that its true purpose has always been to protect the exit rights of minority shareholders when a cash exit is otherwise unavailable, and not to judge the value of the deal.<br><br>While such reform would be costly to valuation litigation professionals, their loss would be more than offset by the benefit of such reforms to shareholders involved in future corporate transactions. Shareholders presently have adequate protections, both from private arrangements and legal doctrines involving fiduciary duties.","PeriodicalId":317421,"journal":{"name":"Remedies eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130851865","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 use of event study methodology (“ESM”) for computing damages for secondary market misrepresentations is poorly understood by lawyers, judges, and policy makers in Canada. This paper reviews the economic foundations of ESM and discusses the various pitfalls that may arise, particularly in a market that is not informationally efficient, so that share prices respond slowly to new information. In such a market, the calculation of beta may be rendered problematic due to asynchronicity or the occurrence of confounding corporate events in the estimation period. While in an efficient market, a one- or two-day event window is often quite adequate, this is not the case in an informationally inefficient market. In that case, the event window will often be much longer; in addition, it must be tailored to the particular issuer and the facts at hand. The longer event window creates a far greater probability that confounding events will contaminate the data. Moreover, because long event windows typically exhibit a lower signal to noise ratio (particularly if trading is dominated by retail noise traders), the power of the test may be materially reduced, increasing the likelihood of a type II error and making it more difficult to establish statistical significance. In the context of civil litigation where the standard of proof is a balance of probabilities, and keeping in mind that there is a trade-off between type I and type II errors, it may be appropriate to set the level of statistical significance at 0.10, rather than the usual 0.05. Whether the market is efficient or inefficient, however, care must be taken to determine if either insider trading or rational market anticipation has moved the stock price prior to a corrective announcement, and the event window adjusted appropriately. While there is a dearth of empirical studies, I present evidence that many Canadian public companies do not trade in an informationally efficient market, such that many of the above-noted complications will often arise in the use of ESM. Finally, I examine the scheme for computing secondary market damages under the Ontario Securities Act (“OSA”). The OSA mandates the use of mechanical rules that are almost certain to materially mis-estimate damages in both efficient and inefficient markets.
{"title":"Event Study Methodology and the Computation of Damages for Secondary Market Misrepresentations: Striving for a Technicolor Palette","authors":"Jeffrey G. MacIntosh","doi":"10.2139/ssrn.3548409","DOIUrl":"https://doi.org/10.2139/ssrn.3548409","url":null,"abstract":"The use of event study methodology (“ESM”) for computing damages for secondary market misrepresentations is poorly understood by lawyers, judges, and policy makers in Canada. This paper reviews the economic foundations of ESM and discusses the various pitfalls that may arise, particularly in a market that is not informationally efficient, so that share prices respond slowly to new information. In such a market, the calculation of beta may be rendered problematic due to asynchronicity or the occurrence of confounding corporate events in the estimation period. While in an efficient market, a one- or two-day event window is often quite adequate, this is not the case in an informationally inefficient market. In that case, the event window will often be much longer; in addition, it must be tailored to the particular issuer and the facts at hand. The longer event window creates a far greater probability that confounding events will contaminate the data. Moreover, because long event windows typically exhibit a lower signal to noise ratio (particularly if trading is dominated by retail noise traders), the power of the test may be materially reduced, increasing the likelihood of a type II error and making it more difficult to establish statistical significance. In the context of civil litigation where the standard of proof is a balance of probabilities, and keeping in mind that there is a trade-off between type I and type II errors, it may be appropriate to set the level of statistical significance at 0.10, rather than the usual 0.05. Whether the market is efficient or inefficient, however, care must be taken to determine if either insider trading or rational market anticipation has moved the stock price prior to a corrective announcement, and the event window adjusted appropriately. While there is a dearth of empirical studies, I present evidence that many Canadian public companies do not trade in an informationally efficient market, such that many of the above-noted complications will often arise in the use of ESM. Finally, I examine the scheme for computing secondary market damages under the Ontario Securities Act (“OSA”). The OSA mandates the use of mechanical rules that are almost certain to materially mis-estimate damages in both efficient and inefficient markets.","PeriodicalId":317421,"journal":{"name":"Remedies eJournal","volume":"121 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123690995","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}
Is there such a thing as a European law of remedies? In a new book, Law of Remedies: A European Perspective (Intersentia 2019), editors Franz Hofmann and Franziska Kurz bring together an impressive number of contributions that give the reader a bird's eye view of this emerging field of study. The potential of remedies scholarship is well illustrated by the book's extensive coverage: what is more, the book links these issues to various areas of substantive law, such as copyright, contracts and criminal law. It thus provides a solid starting point for readers wanting to familiarize themselves with potential avenues of research. This review critically engages with the book's core mission — to lay out the basis for a European law of remedies — and outlines possible directions for future work on this exciting subject.
{"title":"The European Law of Remedies: a Multi-faceted Enigma","authors":"L. Dijkman","doi":"10.2139/ssrn.3548643","DOIUrl":"https://doi.org/10.2139/ssrn.3548643","url":null,"abstract":"Is there such a thing as a European law of remedies? In a new book, Law of Remedies: A European Perspective (Intersentia 2019), editors Franz Hofmann and Franziska Kurz bring together an impressive number of contributions that give the reader a bird's eye view of this emerging field of study. The potential of remedies scholarship is well illustrated by the book's extensive coverage: what is more, the book links these issues to various areas of substantive law, such as copyright, contracts and criminal law. It thus provides a solid starting point for readers wanting to familiarize themselves with potential avenues of research. \u0000 \u0000This review critically engages with the book's core mission — to lay out the basis for a European law of remedies — and outlines possible directions for future work on this exciting subject.","PeriodicalId":317421,"journal":{"name":"Remedies eJournal","volume":"80 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133736406","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}
Antitrust populists increasingly call on the government to “break up big tech.” But antitrust enforcers would face heavy evidentiary burdens if they sought to break a company up on the premise that a long-consummated merger was unlawful from the outset and should have been blocked years ago. Specifically, they would have to prove (1) that the but-for world would likely be more competitive than the actual world; (2) that their basis for unwinding the merger was sufficiently foreseeable at the time of consummation that the merger could have been challenged then: and (3) that the prospective benefits of unwinding the merger outweigh the prospective harms, including the costs and inefficiencies that often arise from such de-integration. The combination of these burdens would be difficult for antitrust authorities to meet, and for good reason. It should be hard for the government to unwind any merger that it reviewed before consummation (or shortly thereafter) and elected not to challenge then. Mergers present a complex mix of potential costs and benefits. The antitrust laws empower enforcement authorities to review those costs and benefits promptly and give them appropriate incentives to bring any enforcement action without delay, often before consummation. Those incentives would be weakened if antitrust enforcers could lie in wait while mergers are consummated in hopes of securing more favorable litigation burdens years later.
{"title":"First Principles for Antitrust Review of Long-Consummated Mergers","authors":"T. Muris, Jonathan E. Nuechterlein","doi":"10.2139/ssrn.3486469","DOIUrl":"https://doi.org/10.2139/ssrn.3486469","url":null,"abstract":"Antitrust populists increasingly call on the government to “break up big tech.” But antitrust enforcers would face heavy evidentiary burdens if they sought to break a company up on the premise that a long-consummated merger was unlawful from the outset and should have been blocked years ago. Specifically, they would have to prove (1) that the but-for world would likely be more competitive than the actual world; (2) that their basis for unwinding the merger was sufficiently foreseeable at the time of consummation that the merger could have been challenged then: and (3) that the prospective benefits of unwinding the merger outweigh the prospective harms, including the costs and inefficiencies that often arise from such de-integration. \u0000 \u0000The combination of these burdens would be difficult for antitrust authorities to meet, and for good reason. It should be hard for the government to unwind any merger that it reviewed before consummation (or shortly thereafter) and elected not to challenge then. Mergers present a complex mix of potential costs and benefits. The antitrust laws empower enforcement authorities to review those costs and benefits promptly and give them appropriate incentives to bring any enforcement action without delay, often before consummation. Those incentives would be weakened if antitrust enforcers could lie in wait while mergers are consummated in hopes of securing more favorable litigation burdens years later.","PeriodicalId":317421,"journal":{"name":"Remedies eJournal","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128173831","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}
There is currently an inequitable gap in compensation under the Accident Compensation Act, whereby claimants who suffer from a mental injury after an accident but not a physical injury cannot get compensation. The purpose of this paper is to consider this gap in compensation by analysing a recent High Court Judgment, W v Accident Compensation. In this case, Collins J recognises that sometimes we will not always be able to establish a direct causal link between a physical and mental injury. However, that does not mean that we should not provide cover. Whilst Collins J’s judgment is aligned with current evidence around the causes of mental injury, this paper outlines the issues associated with such a policy change coming from the courts. Instead, this paper proposes that a legislative change is required to extend mental injury compensation to those that have suffered a mental injury from being in an accident, regardless of whether they also suffered a physical injury.
{"title":"The Link between Physical and Mental Injury: A Redundant Paradigm for Determining Compensation under the Accident Compensation Act","authors":"Tiffany Buckley","doi":"10.2139/ssrn.3588052","DOIUrl":"https://doi.org/10.2139/ssrn.3588052","url":null,"abstract":"There is currently an inequitable gap in compensation under the Accident Compensation Act, whereby claimants who suffer from a mental injury after an accident but not a physical injury cannot get compensation. The purpose of this paper is to consider this gap in compensation by analysing a recent High Court Judgment, W v Accident Compensation. In this case, Collins J recognises that sometimes we will not always be able to establish a direct causal link between a physical and mental injury. However, that does not mean that we should not provide cover. Whilst Collins J’s judgment is aligned with current evidence around the causes of mental injury, this paper outlines the issues associated with such a policy change coming from the courts. Instead, this paper proposes that a legislative change is required to extend mental injury compensation to those that have suffered a mental injury from being in an accident, regardless of whether they also suffered a physical injury.","PeriodicalId":317421,"journal":{"name":"Remedies eJournal","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125181782","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 an excerpt from a new, concise handbook on the civil procedure that few talk about and many do not know exists. It charts the metamorphosis by which the caterpillar of a money judgment is transformed into the butterfly of... money. It is a law student- and new practitioner-oriented guidebook survey of the mechanics and strategies for every step of the process of collecting (or defending against collection) on a money judgment, including domestication and discovery, seizure and turnover, liens and priority battles, exemptions and asset protection, fraudulent conveyance recovery and bankruptcy. It offers a detailed analysis of common, modern asset classes — bank accounts, wages, business investments and securities, and intellectual property — and governing federal and state law in three representative states: New York (traditional), California (innovative), and Illinois (aggressively modernized), with comments on selected highlights in other states (Texas, Florida, Pennsylvania, and others). An accessible, hands-on resource for reviving the study of post-judgment collections and defense law in the 21st century, the book concludes with hypothetical practice exercises and carefully edited statutory appendices to supplement basic courses in Civil Procedure, Remedies, Bankruptcy, Secured Finance, and other courses.
{"title":"Eyes on the Prize: Procedures and Strategies for Collecting Money Judgments and Shielding Assets","authors":"J. Kilborn","doi":"10.2139/ssrn.3362582","DOIUrl":"https://doi.org/10.2139/ssrn.3362582","url":null,"abstract":"This is an excerpt from a new, concise handbook on the civil procedure that few talk about and many do not know exists. It charts the metamorphosis by which the caterpillar of a money judgment is transformed into the butterfly of... money. It is a law student- and new practitioner-oriented guidebook survey of the mechanics and strategies for every step of the process of collecting (or defending against collection) on a money judgment, including domestication and discovery, seizure and turnover, liens and priority battles, exemptions and asset protection, fraudulent conveyance recovery and bankruptcy. It offers a detailed analysis of common, modern asset classes — bank accounts, wages, business investments and securities, and intellectual property — and governing federal and state law in three representative states: New York (traditional), California (innovative), and Illinois (aggressively modernized), with comments on selected highlights in other states (Texas, Florida, Pennsylvania, and others). An accessible, hands-on resource for reviving the study of post-judgment collections and defense law in the 21st century, the book concludes with hypothetical practice exercises and carefully edited statutory appendices to supplement basic courses in Civil Procedure, Remedies, Bankruptcy, Secured Finance, and other courses.","PeriodicalId":317421,"journal":{"name":"Remedies eJournal","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124152589","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 short paper analyses Lord Toulson's judgment in Patel v Mirza [2016] UKSC 42, and argues that that judgment is better analysed as ruling that in cases where a defence of illegality is advanced, the courts should adopt a 'structured discretion' in determining whether to allow the defence rather than considering a range of factors to see whether or not the defence should be allowed.
这篇短文分析了Lord Toulson在Patel v Mirza [2016] UKSC 42中的判决，并认为该判决更好地分析为裁决，即在提出非法辩护的情况下，法院应采用“结构化自由裁量权”来决定是否允许辩护，而不是考虑一系列因素来决定是否应该允许辩护。
{"title":"Patel v Mirza: Structured Discretion or Range of Factors?","authors":"Nicholas J Mcbride","doi":"10.2139/ssrn.3242752","DOIUrl":"https://doi.org/10.2139/ssrn.3242752","url":null,"abstract":"This short paper analyses Lord Toulson's judgment in Patel v Mirza [2016] UKSC 42, and argues that that judgment is better analysed as ruling that in cases where a defence of illegality is advanced, the courts should adopt a 'structured discretion' in determining whether to allow the defence rather than considering a range of factors to see whether or not the defence should be allowed.","PeriodicalId":317421,"journal":{"name":"Remedies eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124967566","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}
Despite the vast sums transferred through the legal system, the foundations of the procedures used to compensate plaintiffs for unobservable losses remain unclear. Standard remedies can compensate plaintiffs for unknown harms, but it is expensive to do so. Damage awards will generally undercompensate or overcompensate a plaintiff whose true harm is unknown, while equitable remedies that provide more tailored compensation are generally wasteful. In this article I develop a novel remedy that compensates plaintiffs for unobservable private values at the lowest possible cost to the defendant. This remedy consists of offering the plaintiff the choice between intermediate damages and an inalienable injunction that restores the underlying harm at the conclusion of the trial. I show that this remedy is robust to errors by the court and potential post judgment renegotiation. Furthermore, I demonstrate that this remedy reduces litigants’ incentives to lie during trial. Finally, I consider ex ante deterrence and show conditions under which the remedy improves social welfare relative to optimal damages.
{"title":"Designing Remedies to Compensate Plaintiffs for Unobservable Harms","authors":"Nathan Atkinson","doi":"10.2139/ssrn.3091886","DOIUrl":"https://doi.org/10.2139/ssrn.3091886","url":null,"abstract":"Despite the vast sums transferred through the legal system, the foundations of the procedures used to compensate plaintiffs for unobservable losses remain unclear. Standard remedies can compensate plaintiffs for unknown harms, but it is expensive to do so. Damage awards will generally undercompensate or overcompensate a plaintiff whose true harm is unknown, while equitable remedies that provide more tailored compensation are generally wasteful. In this article I develop a novel remedy that compensates plaintiffs for unobservable private values at the lowest possible cost to the defendant. This remedy consists of offering the plaintiff the choice between intermediate damages and an inalienable injunction that restores the underlying harm at the conclusion of the trial. I show that this remedy is robust to errors by the court and potential post judgment renegotiation. Furthermore, I demonstrate that this remedy reduces litigants’ incentives to lie during trial. Finally, I consider ex ante deterrence and show conditions under which the remedy improves social welfare relative to optimal damages.","PeriodicalId":317421,"journal":{"name":"Remedies eJournal","volume":"97 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127188139","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 article introduces a contract approach to patent infringement and develops a methodology for finding reasonable royalty damages. The contract approach complements approaches based on property and tort, thus providing a more complete understanding of damages. The article argues that the patent infringement case should specify an informed contract. The informed contract improves estimation of damages by taking into account information revealed during the period of infringement. The article introduces a market value method for calculating reasonable royalty damages based on patent transfer prices. The contract approach helps calculate reasonable royalty damages based on royalties in comparable patent licenses. The contract approach addresses various controversies over reasonable royalty damages.
{"title":"Finding Reasonable Royalty Damages: A Contract Approach to Patent Infringement","authors":"Daniel F. Spulber","doi":"10.2139/ssrn.3133323","DOIUrl":"https://doi.org/10.2139/ssrn.3133323","url":null,"abstract":"The article introduces a contract approach to patent infringement and develops a methodology for finding reasonable royalty damages. The contract approach complements approaches based on property and tort, thus providing a more complete understanding of damages. The article argues that the patent infringement case should specify an informed contract. The informed contract improves estimation of damages by taking into account information revealed during the period of infringement. The article introduces a market value method for calculating reasonable royalty damages based on patent transfer prices. The contract approach helps calculate reasonable royalty damages based on royalties in comparable patent licenses. The contract approach addresses various controversies over reasonable royalty damages.","PeriodicalId":317421,"journal":{"name":"Remedies eJournal","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122679709","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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