Should the party who loses in litigation be forced to pay the legal fees of the winner? This paper surveys the economic literature regarding the effects of legal fee shifting on a variety of decisions arising before and during the litigation process. Section 2 provides a brief survey of the practical situations in which legal fee shifting does and does not arise. Section 3 analyzes the effects of indemnification on the incentives to expend resources in litigated cases. Section 4 examines how indemnification influences the decisions to bring and to defend against suit, and Section 5 assesses its effects on the choice between settlement and trial. Section 6 addresses the interaction between the allocation of legal fees and the parties’ incentives for efficient primary activity behavior. Section 7 considers two important variants on simple indemnification: rules that shift costs based on the parties’ settlement negotiations (such as US Federal Rule 68 and the English practice of payment into court), and rules that shift costs based on the margin of victory (such as US Federal Rule 11 and the common law tort of malicious prosecution). Section 8 reviews the brief but instructive empirical literature on legal cost shifting, and Section 9 summarizes the discussion and offers conclusions.
{"title":"Fee Shifting in Litigation: Survey and Assessment","authors":"A. Katz, C. Sanchirico","doi":"10.2139/ssrn.1714089","DOIUrl":"https://doi.org/10.2139/ssrn.1714089","url":null,"abstract":"Should the party who loses in litigation be forced to pay the legal fees of the winner? This paper surveys the economic literature regarding the effects of legal fee shifting on a variety of decisions arising before and during the litigation process. Section 2 provides a brief survey of the practical situations in which legal fee shifting does and does not arise. Section 3 analyzes the effects of indemnification on the incentives to expend resources in litigated cases. Section 4 examines how indemnification influences the decisions to bring and to defend against suit, and Section 5 assesses its effects on the choice between settlement and trial. Section 6 addresses the interaction between the allocation of legal fees and the parties’ incentives for efficient primary activity behavior. Section 7 considers two important variants on simple indemnification: rules that shift costs based on the parties’ settlement negotiations (such as US Federal Rule 68 and the English practice of payment into court), and rules that shift costs based on the margin of victory (such as US Federal Rule 11 and the common law tort of malicious prosecution). Section 8 reviews the brief but instructive empirical literature on legal cost shifting, and Section 9 summarizes the discussion and offers conclusions.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"356 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133168977","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 this essay, we show why and how to apply the average of differing state laws to overcome the choice-of-law impediment currently blocking certification of multi-state federal diversity class actions. Our main contribution is in demonstrating that the actual law governing a defendant’s activities involving interstate risk is in every functionally meaningful sense the same regardless of whether it is applied in disaggregated form state-by-state at great cost or in aggregated form on average at far less cost. We refute objections to using the average law approach, including that average law subjects defendants to a law of which they lacked notice at the time of the underlying conduct; fails to accurately reflect and enforce the substantive differences among the governing state laws; and undermines the sovereign lawmaking power of states to enact their distinctive policy preferences. To facilitate use of the average law approach, we also sketch the means for practically implementing the average law solution in different types of class action to determine a defendant’s aggregate liability and damages.
{"title":"A Solution to the Choice-of-Law Problem of Differing State Laws in Class Actions: Average Law","authors":"D. Rosenberg, Luke McCloud","doi":"10.2139/ssrn.1629364","DOIUrl":"https://doi.org/10.2139/ssrn.1629364","url":null,"abstract":"In this essay, we show why and how to apply the average of differing state laws to overcome the choice-of-law impediment currently blocking certification of multi-state federal diversity class actions. Our main contribution is in demonstrating that the actual law governing a defendant’s activities involving interstate risk is in every functionally meaningful sense the same regardless of whether it is applied in disaggregated form state-by-state at great cost or in aggregated form on average at far less cost. We refute objections to using the average law approach, including that average law subjects defendants to a law of which they lacked notice at the time of the underlying conduct; fails to accurately reflect and enforce the substantive differences among the governing state laws; and undermines the sovereign lawmaking power of states to enact their distinctive policy preferences. To facilitate use of the average law approach, we also sketch the means for practically implementing the average law solution in different types of class action to determine a defendant’s aggregate liability and damages.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"90 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124646555","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 paper considers the four antitrust decisions in the Supreme Court's 2006 Term. It offers brief discussions of Weyerhaeuser and Credit Suisse. Weyerhaeuser is a small, modest decision. The Court isn't likely to see another predatory bidding case soon and the Court chose to minimize doctrinal complexity by bringing predatory bidding analysis in sync with the Court's prior treatment of predatory pricing in Brooke Group. Credit Suisse too is minimally incremental. In concluding that federal securities law implicitly precluded claims asserting antitrust violations in the sale of new securities, the Court followed its prior decision in Gordon as well as the Court's more recent preference for regulatory schemes over antitrust as seen in Trinko. Pushing antitrust authority toward specialized regulators like the Securities and Exchange Commission broadens the trade-offs that can be made between antitrust concerns and other values and almost certainly expands the circumstances under which industry actors can act collectively. That matters, so Credit Suisse covers more of the economic landscape than Weyerhaeuser, but the decision itself is a small step from prior doctrine. Twombly and Leegin are each, in their own ways, blockbusters. Twombly will appear in case after case, as antitrust defendants try to rely on its new tougher rules for FRCP 12(b)(6) motions. Twombly represents a preference for blunt instruments over sharp edges. The central problem confronted by Twombly is discovery run amok. The Court has the tools in its hands to control that by rewriting the discovery rules and overturning lower court decisions implementing those rules. Twombly suggests that the Court believes that refinement of those rules will fail in controlling discovery and it is willing to pay the price that private plaintiffs will have no good way to get at the best-hidden antitrust conspiracies. Finally, Leegin brings to a close - for now or forever? - the 100-year saga of contractual minimum resale price maintenance. Since its decision in 1911 in Dr. Miles, the Court has confronted this issue again and again in the slightly-refined versions that make up the art of institutional design. Over time, the Court has chipped away at Dr. Miles, first in not finding a violation of Section 1 of the Sherman Act for the unilateral minimum RPM in Colgate in 1919 and in then broadly subjecting nonprice vertical restraints to rule-of-reason treatment in Sylvania in 1977. Given that, on what basis would Dr. Miles survive? That is a question of stare decisis and Leegin ends up in an all-out fight over stare decisis in antitrust. That is new: the Court has been overturning old decisions in antitrust for some time and has done so with little stare decisis fanfare. That suggests that the dispute over stare decisis in Leegin is just a convenient forum for the larger dispute over stare decisis that is percolating through a divided Court. I don't have a full-blown theory of stare decisis but I d
本文考察了2006年最高法院的四个反垄断判决。它提供了惠好和瑞士信贷的简短讨论。惠好是一个小而温和的决定。法院不太可能很快看到另一个掠夺性竞标案件，法院选择通过将掠夺性竞标分析与法院之前对布鲁克集团掠夺性定价的处理同步来最大限度地减少理论复杂性。瑞士信贷也是最小增量。在得出联邦证券法隐含地排除在新证券销售中主张违反反垄断法的主张的结论时，法院遵循了其先前在戈登案中的裁决，以及法院最近在Trinko案中对监管计划的偏好。将反垄断权力推给证券交易委员会(Securities and Exchange Commission)等专门监管机构，扩大了反垄断关切与其他价值观之间的权衡，几乎肯定会扩大行业参与者可以集体行动的环境。这一点很重要，因此瑞信比惠好公司涵盖了更多的经济领域，但这一决定本身就是偏离先前原则的一小步。托姆布雷和莱金都以各自的方式成为了大片。Twombly将出现在一个又一个案件中，因为反垄断被告试图依靠其新的更严格的FRCP 12(b)(6)动议规则。托姆比代表了对钝器的偏好，而不是锋利的边缘。托姆布雷面临的核心问题是发现失控。最高法院掌握着通过重写证据开示规则和推翻下级法院执行这些规则的裁决来控制这一点的工具。托姆布雷表示，最高法院认为，这些规则的完善将无法控制发现，它愿意付出代价，让私人原告无法找到最隐蔽的反垄断阴谋。最后，Leegin结束了——现在还是永远?- 100年的最低转售价格维持合同传奇。自1911年对迈尔斯博士案作出裁决以来，最高法院在构成制度设计艺术的略有改进的版本中一次又一次地面对这个问题。随着时间的推移，最高法院逐渐削弱了迈尔斯博士的影响力，先是在1919年的高露洁(Colgate)案中，没有认定单方面最低RPM违反《谢尔曼法》(Sherman Act)第1条，然后在1977年的Sylvania案中，广泛地将非价格垂直限制置于理性原则的处理之下。既然如此，迈尔斯医生凭什么能活下来?这是一个“盯着看”的问题，而Leegin最终陷入了一场围绕反垄断“盯着看”的全面斗争。这是一个新现象:法院推翻旧的反垄断裁决已经有一段时间了，而且很少有先例。这表明，Leegin案中关于凝视决定的争议，只是一个方便的论坛，为在一个分裂的法院中渗透的更大的凝视决定争议提供了一个平台。我并没有一个成熟的理论，但我确实提出了为什么法院错误地将法定案件中的凝视决定与宪法案件中的凝视决定区别对待。最高法院在制定成文法时很少使用它的一个关键工具，即为随后的国会行动设定默认点的权力。一旦我们把最高法院的裁决作为后续立法的输入，就有更大的理由认为，最高法院应该有一种统一的方法来审查宪法和成文法中的决定。
{"title":"'Twombly', 'Leegin' and the Reshaping of Antitrust","authors":"Randal C. Picker","doi":"10.2139/SSRN.1091498","DOIUrl":"https://doi.org/10.2139/SSRN.1091498","url":null,"abstract":"This paper considers the four antitrust decisions in the Supreme Court's 2006 Term. It offers brief discussions of Weyerhaeuser and Credit Suisse. Weyerhaeuser is a small, modest decision. The Court isn't likely to see another predatory bidding case soon and the Court chose to minimize doctrinal complexity by bringing predatory bidding analysis in sync with the Court's prior treatment of predatory pricing in Brooke Group. Credit Suisse too is minimally incremental. In concluding that federal securities law implicitly precluded claims asserting antitrust violations in the sale of new securities, the Court followed its prior decision in Gordon as well as the Court's more recent preference for regulatory schemes over antitrust as seen in Trinko. Pushing antitrust authority toward specialized regulators like the Securities and Exchange Commission broadens the trade-offs that can be made between antitrust concerns and other values and almost certainly expands the circumstances under which industry actors can act collectively. That matters, so Credit Suisse covers more of the economic landscape than Weyerhaeuser, but the decision itself is a small step from prior doctrine. Twombly and Leegin are each, in their own ways, blockbusters. Twombly will appear in case after case, as antitrust defendants try to rely on its new tougher rules for FRCP 12(b)(6) motions. Twombly represents a preference for blunt instruments over sharp edges. The central problem confronted by Twombly is discovery run amok. The Court has the tools in its hands to control that by rewriting the discovery rules and overturning lower court decisions implementing those rules. Twombly suggests that the Court believes that refinement of those rules will fail in controlling discovery and it is willing to pay the price that private plaintiffs will have no good way to get at the best-hidden antitrust conspiracies. Finally, Leegin brings to a close - for now or forever? - the 100-year saga of contractual minimum resale price maintenance. Since its decision in 1911 in Dr. Miles, the Court has confronted this issue again and again in the slightly-refined versions that make up the art of institutional design. Over time, the Court has chipped away at Dr. Miles, first in not finding a violation of Section 1 of the Sherman Act for the unilateral minimum RPM in Colgate in 1919 and in then broadly subjecting nonprice vertical restraints to rule-of-reason treatment in Sylvania in 1977. Given that, on what basis would Dr. Miles survive? That is a question of stare decisis and Leegin ends up in an all-out fight over stare decisis in antitrust. That is new: the Court has been overturning old decisions in antitrust for some time and has done so with little stare decisis fanfare. That suggests that the dispute over stare decisis in Leegin is just a convenient forum for the larger dispute over stare decisis that is percolating through a divided Court. I don't have a full-blown theory of stare decisis but I d","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132014731","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}
{"title":"The Necessity of Pleading Elements in Private Antitrust Conspiracy Claims","authors":"Max Huffman","doi":"10.31228/osf.io/yfnw6","DOIUrl":"https://doi.org/10.31228/osf.io/yfnw6","url":null,"abstract":"10 U. Pa. J. Bus. & Emp. L. 627 (2008)","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129845488","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 this article, we challenge the traditional view that entrepreneurial plaintiffs' class action lawyers operating entirely according to their own economic self-interest serve no social utility, or worse yet, tremendous disutility. In seeking to counter this notion, we try to show that the agency costs problem long derided in class action practice is overblown: in the majority of small-claims class actions, there is no legitimate reason to care whether class members are being undercompensated (or compensated at all), nor any reason to worry that entrepreneurial lawyers are being overcompensated. Rather, we assert that the driving force behind class action practice and any effort to reform, reduce, redirect that practice should be deterrence. All that matters, we argue, is whether the defendant-wrongdoer is forced to internalize the social costs of its actions not to whom it pays those costs.
{"title":"Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepeneurial Lawyers","authors":"Myriam E. Gilles, Gary B. Friedman","doi":"10.2307/40041303","DOIUrl":"https://doi.org/10.2307/40041303","url":null,"abstract":"In this article, we challenge the traditional view that entrepreneurial plaintiffs' class action lawyers operating entirely according to their own economic self-interest serve no social utility, or worse yet, tremendous disutility. In seeking to counter this notion, we try to show that the agency costs problem long derided in class action practice is overblown: in the majority of small-claims class actions, there is no legitimate reason to care whether class members are being undercompensated (or compensated at all), nor any reason to worry that entrepreneurial lawyers are being overcompensated. Rather, we assert that the driving force behind class action practice and any effort to reform, reduce, redirect that practice should be deterrence. All that matters, we argue, is whether the defendant-wrongdoer is forced to internalize the social costs of its actions not to whom it pays those costs.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131012574","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 review article juxtaposes and critically analyses two very different theoretical understandings of Unjust Enrichment Law - one (Weinrib) based upon a formalist, corrective justice approach, the other (Dagan) an avowedly realist approach which is deeply sceptical of the field as a coherent category and which assigns to restitutionary rules functions which are pluralistic, public and distributive in orientation. From the clash of these two deeply contrasting visions, the author attempts to salvage some realistic truths about the structure and normative committments of unjust enrichment law.
{"title":"Theorising Unjust Enrichment Law: Being Realist(ic)?","authors":"K. Barker","doi":"10.1093/ojls/gql021","DOIUrl":"https://doi.org/10.1093/ojls/gql021","url":null,"abstract":"This review article juxtaposes and critically analyses two very different theoretical understandings of Unjust Enrichment Law - one (Weinrib) based upon a formalist, corrective justice approach, the other (Dagan) an avowedly realist approach which is deeply sceptical of the field as a coherent category and which assigns to restitutionary rules functions which are pluralistic, public and distributive in orientation. From the clash of these two deeply contrasting visions, the author attempts to salvage some realistic truths about the structure and normative committments of unjust enrichment law.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"125 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132834854","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 law of nuisance is an area which is fraught with difficulties. In Lawrence v Fen Tigers [2014] 2 WLR 433, the UK Supreme Court dealt with several of these issues, in particular the relevance of planning permission and when damages should be granted in lieu of an injunction. This comment examines the decision and its implications.
{"title":"Lawrence v Fen Tigers: Controversies and Clarifications in the Law of Nuisance","authors":"Kee Yang Low","doi":"10.2139/SSRN.2695304","DOIUrl":"https://doi.org/10.2139/SSRN.2695304","url":null,"abstract":"The law of nuisance is an area which is fraught with difficulties. In Lawrence v Fen Tigers [2014] 2 WLR 433, the UK Supreme Court dealt with several of these issues, in particular the relevance of planning permission and when damages should be granted in lieu of an injunction. This comment examines the decision and its implications.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"149 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114529489","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}
Class actions have the potential to increase the efficiency of litigation by eliminating duplicative lawsuits and improving plaintiffs' attorneys' investment incentives. But this potential efficiency gain comes at a cost. For instance, the divergence of plaintiffs' lawyers' interests from those of the class can lead to collusive settlements; for this reason, among others, class action settlements require judicial approval. In Reynolds v. Beneficial National Bank, the Seventh Circuit reversed a lower court's approval of such a settlement, reasoning that the settlement was collusive and inadequate. While the Seventh Circuit was probably right given the facts of this case, only the most egregious cases lend themselves to this kind of analysis. In most cases, the present system of judicial oversight of class settlements is fundamentally unworkable. The market for legal services, not judges' second-guessing, should regulate class action settlements. Rather than attempting the impossible task of valuing an entire litigation to determine whether a settlement is adequate, judges should concentrate on aligning plaintiffs' lawyers' incentives with those of the class through fee regulation or, even better, by letting lawyers buy plaintiffs' claims outright at auction.
集体诉讼有可能通过消除重复诉讼和改善原告律师的投资激励来提高诉讼效率。但这种潜在的效率提升是有代价的。例如，原告律师与集体律师的利益分歧可能导致合谋和解;出于这个原因，除其他原因外，集体诉讼和解需要司法批准。在Reynolds v. Beneficial National Bank案中，第七巡回法院推翻了下级法院批准的和解协议，理由是和解协议存在串通和不充分。虽然从本案的事实来看，第七巡回法院可能是正确的，但只有最令人震惊的案件才适合这种分析。在大多数情况下，现行的对集体和解的司法监督制度根本行不通。规范集体诉讼和解的应该是法律服务市场，而不是法官的事后判断。法官不应该试图完成不可能完成的任务，即对整个诉讼进行评估，以确定和解是否足够，而是应该集中精力，通过收费规定，或者更好的做法是，让律师在拍卖中直接购买原告的诉讼请求，从而使原告律师的动机与集体律师的动机保持一致。
{"title":"Recent Case: Civil Procedure -- Class Actions -- Seventh Circuit Reverses Lower Court's Approval of Class Action Settlement, Citing Evidence of Collusion. -- Reynolds v. Beneficial National Bank, 288 F.3d 277 (7th Cir. 2002)","authors":"A. Volokh","doi":"10.2307/1342779","DOIUrl":"https://doi.org/10.2307/1342779","url":null,"abstract":"Class actions have the potential to increase the efficiency of litigation by eliminating duplicative lawsuits and improving plaintiffs' attorneys' investment incentives. But this potential efficiency gain comes at a cost. For instance, the divergence of plaintiffs' lawyers' interests from those of the class can lead to collusive settlements; for this reason, among others, class action settlements require judicial approval. In Reynolds v. Beneficial National Bank, the Seventh Circuit reversed a lower court's approval of such a settlement, reasoning that the settlement was collusive and inadequate. While the Seventh Circuit was probably right given the facts of this case, only the most egregious cases lend themselves to this kind of analysis. In most cases, the present system of judicial oversight of class settlements is fundamentally unworkable. The market for legal services, not judges' second-guessing, should regulate class action settlements. Rather than attempting the impossible task of valuing an entire litigation to determine whether a settlement is adequate, judges should concentrate on aligning plaintiffs' lawyers' incentives with those of the class through fee regulation or, even better, by letting lawyers buy plaintiffs' claims outright at auction.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133810893","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}
Spanish Abstract: El trabajo esta destinado a analizar en general los cuatro proyectos de ley que tramitan ante el Senado de la Nacion Argentina sobre el tema de los procesos colectivos o acciones de clase.English abstract: This paper analyzes four bill proposals submitted in the Argentina's Senate, that intend to legislate over collective proceedings or class actions in Argentina.
{"title":"Apuntes para el tratamiento de los proyectos de ley sobre procesos colectivos y acciones de clase. (Some Remarks on Senate's Bills on Class Actions in Argentina)","authors":"Leandro J. Giannini","doi":"10.2139/ssrn.2458247","DOIUrl":"https://doi.org/10.2139/ssrn.2458247","url":null,"abstract":"Spanish Abstract: El trabajo esta destinado a analizar en general los cuatro proyectos de ley que tramitan ante el Senado de la Nacion Argentina sobre el tema de los procesos colectivos o acciones de clase.English abstract: This paper analyzes four bill proposals submitted in the Argentina's Senate, that intend to legislate over collective proceedings or class actions in Argentina.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"178 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115213108","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 assesses recent proposals to use risk-adjusted costs of producing an invention as a basis for either setting patent damages or valuing patents taken by eminent domain. In theory, cost-plus damages can address one of the central challenges of patent law: ensuring that a patentee does not obtain excessive rents for an invention. But cost-plus damages have three principal problems. First, risk may be difficult to estimate, and estimates may be infected by hindsight. Second, if the permitted rate of return is too low, there may be insufficient incentives to invent. Indeed, even a rate of return that seems generous for existing companies may discourage entry into the industry. Third, inventors may spend much more on invention, anticipating that these greater expenses will not only increase the chance of success, but also increase the amount that they can charge. This Article assesses recent literature proposing cost-plus patent damages, and it offers a simulation model to assess the magnitude of these problems. It concludes that while these problems are serious, social welfare still might be increased by considering costplus damages as a factor in the patent damages calculus.
{"title":"Cost-Plus Patent Damages","authors":"M. Abramowicz","doi":"10.2139/ssrn.3366620","DOIUrl":"https://doi.org/10.2139/ssrn.3366620","url":null,"abstract":"This Article assesses recent proposals to use risk-adjusted costs of producing an invention as a basis for either setting patent damages or valuing patents taken by eminent domain. In theory, cost-plus damages can address one of the central challenges of patent law: ensuring that a patentee does not obtain excessive rents for an invention. But cost-plus damages have three principal problems. First, risk may be difficult to estimate, and estimates may be infected by hindsight. Second, if the permitted rate of return is too low, there may be insufficient incentives to invent. \u0000 \u0000Indeed, even a rate of return that seems generous for existing companies may discourage entry into the industry. Third, inventors may spend much more on invention, anticipating that these greater expenses will not only increase the chance of success, but also increase the amount that they can charge. This Article assesses recent literature proposing cost-plus patent damages, and it offers a simulation model to assess the magnitude of these problems. It concludes that while these problems are serious, social welfare still might be increased by considering costplus damages as a factor in the patent damages calculus.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115865745","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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