It is not because of the few thousand francs which would have to be spent to put a roof over the third-class carriages or to upholster the third-class seats that some company or other has open carriages with wooden benches .... What the company is trying to do is to prevent the passengers who can pay the second-class fare from travelling third class; it hits the poor, not because it wants to hurt them, but to frighten the rich . . . And it is again for the same reason that the companies, having proved almost cruel to third-class passengers and mean to the second-class ones, become lavish in dealing with first-class passengers. Having refused the poor what is necessary, they give the rich what is superfluous.1 I. INTRODUCTION This is an essay about economic analysis, price discrimination, and the world of digital content.2 In the interest of full disclosure, I should warn the reader that in this Essay I will take a slightly different attitude towards the economic analysis of intellectual property than most, though perhaps not all, of the contributors to this fascinating symposium issue; I will be focusing on economic analysis as a type of rhetoric. By rhetoric, I do not mean bluster, nor do I mean to suggest that economic analysis is merely an apologia for conclusions arrived at for other reasons.3 I use the term "rhetoric" in a way closer to one of its positive classical senses: something between Aristotle's deliberative rhetoric and the looser sophistic concept, a way of interpreting and understanding "an incomplete, ambiguous and uncertain world."4 Thus, to focus on economic analysis as a form of rhetoric is not an insult to economic analysis, though it is a signal that I think that the answers it provides are more partial, in both senses of that word, and more indeterminate than many economists and most policy-makers seem to believe. In particular, I will be focusing in this Essay on the way in which some of the most important issues in digital intellectual property policy are decided by a pre-reflective process of categorization from which the analysis flows. Information economics as a discipline does indeed enlarge our understanding of some very important intellectual property questions, but I believe that the answers it offers are, on both empirical and theoretical grounds, much more open than is generally accepted. Indeed, one of its main contributions may be in offering us plot-lines and econo-dramas, readymade images of types of dysfunction in information markets that sharpen our perceptions of potential risks and benefits. Unfortunately, it tends to offer them in antagonistic and mutually annihilating pairs. Three further caveats are in order. To say all of this is not to say that the economic analysis of information issues is perceived by economists as having the openness and manipulability that I describe here. Indeed, quite the opposite is true, though I would argue that the source of that certainty has to be sought outside the walls
{"title":"Cruel, Mean, or Lavish? Economic Analysis, Price Discrimination and Digital Intellectual Property","authors":"J. Boyle","doi":"10.2139/ssrn.3084771","DOIUrl":"https://doi.org/10.2139/ssrn.3084771","url":null,"abstract":"It is not because of the few thousand francs which would have to be spent to put a roof over the third-class carriages or to upholster the third-class seats that some company or other has open carriages with wooden benches .... What the company is trying to do is to prevent the passengers who can pay the second-class fare from travelling third class; it hits the poor, not because it wants to hurt them, but to frighten the rich . . . And it is again for the same reason that the companies, having proved almost cruel to third-class passengers and mean to the second-class ones, become lavish in dealing with first-class passengers. Having refused the poor what is necessary, they give the rich what is superfluous.1 I. INTRODUCTION This is an essay about economic analysis, price discrimination, and the world of digital content.2 In the interest of full disclosure, I should warn the reader that in this Essay I will take a slightly different attitude towards the economic analysis of intellectual property than most, though perhaps not all, of the contributors to this fascinating symposium issue; I will be focusing on economic analysis as a type of rhetoric. By rhetoric, I do not mean bluster, nor do I mean to suggest that economic analysis is merely an apologia for conclusions arrived at for other reasons.3 I use the term \"rhetoric\" in a way closer to one of its positive classical senses: something between Aristotle's deliberative rhetoric and the looser sophistic concept, a way of interpreting and understanding \"an incomplete, ambiguous and uncertain world.\"4 Thus, to focus on economic analysis as a form of rhetoric is not an insult to economic analysis, though it is a signal that I think that the answers it provides are more partial, in both senses of that word, and more indeterminate than many economists and most policy-makers seem to believe. In particular, I will be focusing in this Essay on the way in which some of the most important issues in digital intellectual property policy are decided by a pre-reflective process of categorization from which the analysis flows. Information economics as a discipline does indeed enlarge our understanding of some very important intellectual property questions, but I believe that the answers it offers are, on both empirical and theoretical grounds, much more open than is generally accepted. Indeed, one of its main contributions may be in offering us plot-lines and econo-dramas, readymade images of types of dysfunction in information markets that sharpen our perceptions of potential risks and benefits. Unfortunately, it tends to offer them in antagonistic and mutually annihilating pairs. Three further caveats are in order. To say all of this is not to say that the economic analysis of information issues is perceived by economists as having the openness and manipulability that I describe here. Indeed, quite the opposite is true, though I would argue that the source of that certainty has to be sought outside the walls","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"11960 1","pages":"2007-2039"},"PeriodicalIF":1.9,"publicationDate":"2000-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.3084771","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68552184","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay argues that the assumption that "progress" is qualitatively independent of the underlying copyright entitlement structure is wrong. In particular, it argues that a shift to a copyright rule structure based on highly granular, contractually enforced "price discrimination" would work a fundamental shift, as well, in the nature of the progress produced. The critique of the contractual price discrimination model, moreover, exposes deep defects in the use of classical "law and economic" methodology to solve problems relating to the incentive structure of copyright law. What is needed, instead, is an economic model of copyright that acknowledges the central role of unpredictability in the creative process.
{"title":"Copyright and the Perfect Curve","authors":"Julie E. Cohen","doi":"10.2139/SSRN.240590","DOIUrl":"https://doi.org/10.2139/SSRN.240590","url":null,"abstract":"This essay argues that the assumption that \"progress\" is qualitatively independent of the underlying copyright entitlement structure is wrong. In particular, it argues that a shift to a copyright rule structure based on highly granular, contractually enforced \"price discrimination\" would work a fundamental shift, as well, in the nature of the progress produced. The critique of the contractual price discrimination model, moreover, exposes deep defects in the use of classical \"law and economic\" methodology to solve problems relating to the incentive structure of copyright law. What is needed, instead, is an economic model of copyright that acknowledges the central role of unpredictability in the creative process.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"53 1","pages":"1799"},"PeriodicalIF":1.9,"publicationDate":"2000-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.240590","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68184286","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Nearly four fifths of federal court of appeals opinions are unpublished. For more than 25 years, judges and scholars have debated the wisdom and fairness of this body of "secret" law. The debate over unpublished opinions recently intensified when the Eighth Circuit held that the Constitution requires courts to give these opinions precedential value. Despite continued controversy over unpublished opinions, limited empirical evidence exists on the nature of those opinions. Working with an especially complete dataset of labor law opinions and multivariate statistical methods, we were able to identify the factors that predict publication. Some of those factors, such as a decision to reverse the agency, track formal publication rules. Others, such as the number of judges on the panel who graduated from elite law schools or the number with expertise in the disputed subject, are more surprising. In addition, we discovered substantial evidence of partisan disagreement within unpublished opinions, suggesting that those cases are not as routine as publication rules suggest. These empirical findings should guide policy and constitutional decisions about the future of unpublished opinions.
{"title":"Stalking Secret Law: What Predicts Publication in the United States Courts of Appeals","authors":"D. J. Merritt, J. Brudney","doi":"10.2139/SSRN.240969","DOIUrl":"https://doi.org/10.2139/SSRN.240969","url":null,"abstract":"Nearly four fifths of federal court of appeals opinions are unpublished. For more than 25 years, judges and scholars have debated the wisdom and fairness of this body of \"secret\" law. The debate over unpublished opinions recently intensified when the Eighth Circuit held that the Constitution requires courts to give these opinions precedential value. Despite continued controversy over unpublished opinions, limited empirical evidence exists on the nature of those opinions. Working with an especially complete dataset of labor law opinions and multivariate statistical methods, we were able to identify the factors that predict publication. Some of those factors, such as a decision to reverse the agency, track formal publication rules. Others, such as the number of judges on the panel who graduated from elite law schools or the number with expertise in the disputed subject, are more surprising. In addition, we discovered substantial evidence of partisan disagreement within unpublished opinions, suggesting that those cases are not as routine as publication rules suggest. These empirical findings should guide policy and constitutional decisions about the future of unpublished opinions.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"54 1","pages":"69"},"PeriodicalIF":1.9,"publicationDate":"2000-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68187240","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper defends the position that judicial reliance on legislative history violates the constitutional norm against congressional self-delegation. Contrary to that position, Professor Jonathon Siegel argues that, because a statute's legislative history already exists at the time of the statute's passage, a court’s treating legislative history as authoritative is the same as giving effect to a statute that validly incorporates pre-existing materials by reference. To illustrate this point, Professor Siegel introduces, as a thought experiment, a hypothetical Interpretation of Statutes Act. The Act provides that the legislative history of every future statute will be automatically incorporated into the statute by reference, without express adoption. Siegel argues that, because legislatures are permitted to incorporate, by reference, pre-enactment legislative history into statutes, such an Act would be constitutional. Disagreeing with that conclusion, this paper argues that the hypothetical Interpretation of Statutes Act would only formalize an unconstitutional delegation of power. The essay explains that the hypothetical statutory arrangement allows members of Congress to subvert the aims of bicameralism and presentment. In particular, legislators would be able to vote for a statute without taking full responsibility for legislative history that resulted from factional logrolling. The paper concludes that the resulting separation of legislator responsibility from legislative result (viz. the statutory text) enables Congress to enact binding statutory details through a process other than the one prescribed by the Constitution.
{"title":"Putting Legislative History to a Vote: A Response to Professor Siegel","authors":"J. Manning","doi":"10.2139/SSRN.2853481","DOIUrl":"https://doi.org/10.2139/SSRN.2853481","url":null,"abstract":"This paper defends the position that judicial reliance on legislative history violates the constitutional norm against congressional self-delegation. Contrary to that position, Professor Jonathon Siegel argues that, because a statute's legislative history already exists at the time of the statute's passage, a court’s treating legislative history as authoritative is the same as giving effect to a statute that validly incorporates pre-existing materials by reference. To illustrate this point, Professor Siegel introduces, as a thought experiment, a hypothetical Interpretation of Statutes Act. The Act provides that the legislative history of every future statute will be automatically incorporated into the statute by reference, without express adoption. Siegel argues that, because legislatures are permitted to incorporate, by reference, pre-enactment legislative history into statutes, such an Act would be constitutional. Disagreeing with that conclusion, this paper argues that the hypothetical Interpretation of Statutes Act would only formalize an unconstitutional delegation of power. The essay explains that the hypothetical statutory arrangement allows members of Congress to subvert the aims of bicameralism and presentment. In particular, legislators would be able to vote for a statute without taking full responsibility for legislative history that resulted from factional logrolling. The paper concludes that the resulting separation of legislator responsibility from legislative result (viz. the statutory text) enables Congress to enact binding statutory details through a process other than the one prescribed by the Constitution.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"53 1","pages":"1529"},"PeriodicalIF":1.9,"publicationDate":"2000-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68391717","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Protecting health information privacy: the case for self-regulation of electronically held medical records.","authors":"C L Glenn","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"53 5","pages":"1605-35"},"PeriodicalIF":1.9,"publicationDate":"2000-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22280168","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We have studied a large, random sample of U.S. patents issued between 1996 and 1998. We collected a variety of information about these patents, including area of technology, national origin, the number of inventors, nature and size of the owning entity, the number and type of prior art references, and the time spent in prosecution. We seek to establish relationships between a number of variables in issued patents-such as number of inventors, numbers and types of references to the prior art, numbers and types of claims, and length of time between application and issuance-and a number of defined areas of technology. We identify the countries in which particular inventions originated--almost one-half of all issued U.S. patents cover inventions originating in other countries--and test for relationships between the above variables and countries of origin. We also evaluate relationships between countries of origin and areas of technology. The conclusions are somewhat surprising, and point to a patent system that is far from unitary in the way it treats different inventors and different inventions.
{"title":"Who's Patenting What? An Empirical Exploration of Patent Prosecution","authors":"J. Allison, Mark A. Lemley","doi":"10.2139/SSRN.223312","DOIUrl":"https://doi.org/10.2139/SSRN.223312","url":null,"abstract":"We have studied a large, random sample of U.S. patents issued between 1996 and 1998. We collected a variety of information about these patents, including area of technology, national origin, the number of inventors, nature and size of the owning entity, the number and type of prior art references, and the time spent in prosecution. We seek to establish relationships between a number of variables in issued patents-such as number of inventors, numbers and types of references to the prior art, numbers and types of claims, and length of time between application and issuance-and a number of defined areas of technology. We identify the countries in which particular inventions originated--almost one-half of all issued U.S. patents cover inventions originating in other countries--and test for relationships between the above variables and countries of origin. We also evaluate relationships between countries of origin and areas of technology. The conclusions are somewhat surprising, and point to a patent system that is far from unitary in the way it treats different inventors and different inventions.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"53 1","pages":""},"PeriodicalIF":1.9,"publicationDate":"2000-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68015338","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this Article, Professor Schwartz depicts the widespread, silent collection of personal information in cyberspace. At present, it is impossible to know the fate of the personal data that one generates online. Professor Schwartz argues that this state of affairs degrades the health of a deliberative democracy; it cloaks in dark uncertainty the transmutation of Internet activity into personal information that will follow one into other areas and discourage civic participation. This situation also will have a negative impact on individual self-determination by deterring individuals from engaging in the necessary thinking out loud and deliberation with others upon which choice-making depends. In place of the existing privacy horror show on the Internet, Professor Schwartz seeks to develop multidimensional rules that set out fair information practices for personal data in cyberspace. The necessary rules must establish four requirements: (1) defined obligations that limit the use of personal data; (2) transparent processing systems; (3) limited procedural and substantive rights; and (4) external oversight. Neither the market nor industry self-regulation are likely, however, to put these four practices in place. Under current conditions, a failure exists in the "privacy market." Moreover, despite the Clinton Administration's endorsement of industry self-regulation, this method is an unlikely candidate for success. Industry self-regulation of privacy is a negotiation about "the rules of play" for the use of personal data. In deciding on these rules, industry is likely to be most interested in protecting its stream of revenues. Therefore, it will benefit if it develops norms that preserve the current status quo of maximum information disclosure. This Article advocates a legislative enactment of the four fair information practices. This legal expression of privacy norms is the best first step in promoting democratic deliberation and individual self-determination in cyberspace. It will further the attainment of cyberspace's potential as a new realm for collaboration in political and personal activities. Enactment of such a federal law would be a decisive move to shape technology so it will further--and not harm--democratic self-governance.
{"title":"Privacy and Democracy in Cyberspace","authors":"P. Schwartz","doi":"10.2139/SSRN.205449","DOIUrl":"https://doi.org/10.2139/SSRN.205449","url":null,"abstract":"In this Article, Professor Schwartz depicts the widespread, silent collection of personal information in cyberspace. At present, it is impossible to know the fate of the personal data that one generates online. Professor Schwartz argues that this state of affairs degrades the health of a deliberative democracy; it cloaks in dark uncertainty the transmutation of Internet activity into personal information that will follow one into other areas and discourage civic participation. This situation also will have a negative impact on individual self-determination by deterring individuals from engaging in the necessary thinking out loud and deliberation with others upon which choice-making depends. In place of the existing privacy horror show on the Internet, Professor Schwartz seeks to develop multidimensional rules that set out fair information practices for personal data in cyberspace. The necessary rules must establish four requirements: (1) defined obligations that limit the use of personal data; (2) transparent processing systems; (3) limited procedural and substantive rights; and (4) external oversight. Neither the market nor industry self-regulation are likely, however, to put these four practices in place. Under current conditions, a failure exists in the \"privacy market.\" Moreover, despite the Clinton Administration's endorsement of industry self-regulation, this method is an unlikely candidate for success. Industry self-regulation of privacy is a negotiation about \"the rules of play\" for the use of personal data. In deciding on these rules, industry is likely to be most interested in protecting its stream of revenues. Therefore, it will benefit if it develops norms that preserve the current status quo of maximum information disclosure. This Article advocates a legislative enactment of the four fair information practices. This legal expression of privacy norms is the best first step in promoting democratic deliberation and individual self-determination in cyberspace. It will further the attainment of cyberspace's potential as a new realm for collaboration in political and personal activities. Enactment of such a federal law would be a decisive move to shape technology so it will further--and not harm--democratic self-governance.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"52 1","pages":"1607"},"PeriodicalIF":1.9,"publicationDate":"2000-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67889684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Tennessee's Medicaid managed care program TennCare, is widely regarded as one of the nation's most innovative and comprehensive attempts to reform Medicaid and expand coverage to the uninsured through Medicaid managed care. This paper begins with an analysis of historical developments within the Medicaid program in the early 1990s that forced Tennessee to dramatically change its Medicaid program to cope with rising costs and threatened revenues. It then considers the strategic considerations that led Tennessee to dramatically expand the population covered by its program by nearly half a million uninsured and uninsurable non-Medicaid eligibles to the program (about 38% of total TennCare) in the face of a perceived fiscal crisis. (These strategic considerations would be quite different for a state seeking to adopt a TennCare-like program now since the Balanced Budget Act of 1997 allows states to adopt mandatory managed care for Medicaid without expanding eligibility.) The paper discusses next the waiver application that made possible the creation of TennCare. The paper proceeds with a policy and legal analysis of TennCare's design and implementation, focusing in particular on the political calculus that led Medicaid beneficiary advocates to accept limitations on patient choice in exchange for expansion of population coverage. Next, special characteristics associated with running a public benefits program through the use of state purchasing contracts, and in particular the status of MCOs as state actors, are considered. Finally, the paper reports on original empirical work considering utilization, outcomes, and recipient and provider satisfaction. The paper concludes with an overall favorable evaluation of TennCare, noting that it has expanded access, controlled costs, and not resulted in measurably lower quality of care (although it has resulted in high levels of physician dissatisfaction).
{"title":"Health Care Reform Through Medicaid Managed Care: Tennessee (Tenncare) as a Case Study and Paradigm","authors":"J. Blumstein, F. Sloan","doi":"10.2139/SSRN.208731","DOIUrl":"https://doi.org/10.2139/SSRN.208731","url":null,"abstract":"Tennessee's Medicaid managed care program TennCare, is widely regarded as one of the nation's most innovative and comprehensive attempts to reform Medicaid and expand coverage to the uninsured through Medicaid managed care. This paper begins with an analysis of historical developments within the Medicaid program in the early 1990s that forced Tennessee to dramatically change its Medicaid program to cope with rising costs and threatened revenues. It then considers the strategic considerations that led Tennessee to dramatically expand the population covered by its program by nearly half a million uninsured and uninsurable non-Medicaid eligibles to the program (about 38% of total TennCare) in the face of a perceived fiscal crisis. (These strategic considerations would be quite different for a state seeking to adopt a TennCare-like program now since the Balanced Budget Act of 1997 allows states to adopt mandatory managed care for Medicaid without expanding eligibility.) The paper discusses next the waiver application that made possible the creation of TennCare. The paper proceeds with a policy and legal analysis of TennCare's design and implementation, focusing in particular on the political calculus that led Medicaid beneficiary advocates to accept limitations on patient choice in exchange for expansion of population coverage. Next, special characteristics associated with running a public benefits program through the use of state purchasing contracts, and in particular the status of MCOs as state actors, are considered. Finally, the paper reports on original empirical work considering utilization, outcomes, and recipient and provider satisfaction. The paper concludes with an overall favorable evaluation of TennCare, noting that it has expanded access, controlled costs, and not resulted in measurably lower quality of care (although it has resulted in high levels of physician dissatisfaction).","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"53 1","pages":"123"},"PeriodicalIF":1.9,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.208731","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67905321","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1998-11-01DOI: 10.1017/CBO9781139175197.012
Christine Jolls
I. INTRODUCTION "Behavioral law and economics"-the general topic of this Symposium-seeks to bring together "behavior" and "law and economics." Law and economics (without the modifier) is of course already about behavior. But it is typically about behavior of a particular sort: highly "rational" (in a particular sense of that term), optimizing behavior. Sometimes it is reasonable to assume that people behave in this manner; other times it is not.l The "behavioral" in "behavioral law and economics" is about infusing law and economics with insights into actual (rather than hypothesized) human behavior when such insights are needed to insure sound predictions or prescriptions about law. Behavioral law and economics is not a critique of law and economics. It shares with that approach to the law the view that human behavior is organized by predictable patterns, which enable the analyst to generate models (often formal ones) and testable hypotheses about the effects of legal rules. And it shares the view that such analysis is an important and valuable pursuit, one most worthy of legal scholars' attention. Where it disagrees with conventional law and economics is about the shape of the predictable patterns of human behavior. Its goal is to offer better predictions and prescriptions about law based on improved accounts of how people actually behave. This Essay offers a behavioral economic analysis of redistributive legal rules. Redistributive legal rules are rules chosen for their effects in shifting wealth from high-income to low-income individuals (progressive redistribution). The desirability of such rules has been the subject of intense debate within the legal community. Many law and economics scholars have urged that legal rules be chosen solely with an eye towards Kaldor-Hicks efficiency (which I will call simply "efficiency" for the remainder of this Essay); these scholars often urge that distributional considerations be addressed (if they are to be addressed at all) exclusively through the tax and welfare systems.2 On this view, distributive goals do not provide a basis for choosing an inefficient legal rule-although they might, it seems, provide a basis for choosing between two efficient rules.3 Other legal scholars have argued that the selection of legal rules should be informed by distributional considerations even at the expense of efficiency.4 I will call a rule "redistributive" if it makes such a trade-off between distributive objectives and efficiency. A recurring theme in the debate over redistributive legal rules has been the relative cost of redistributing wealth through legal rules (defined to mean rules other than those that directly relate to the tax and welfare systems) and redistributing wealth through the tax and welfare systems (which I will call simply "the tax system" or "taxes" for the remainder of this Essay). Under the assumptions of neoclassical economics, any desired level of redistribution can be achieved at lower cost thr
{"title":"Behavioral Law and Economics: Behavioral Economic Analysis of Redistributive Legal Rules","authors":"Christine Jolls","doi":"10.1017/CBO9781139175197.012","DOIUrl":"https://doi.org/10.1017/CBO9781139175197.012","url":null,"abstract":"I. INTRODUCTION \"Behavioral law and economics\"-the general topic of this Symposium-seeks to bring together \"behavior\" and \"law and economics.\" Law and economics (without the modifier) is of course already about behavior. But it is typically about behavior of a particular sort: highly \"rational\" (in a particular sense of that term), optimizing behavior. Sometimes it is reasonable to assume that people behave in this manner; other times it is not.l The \"behavioral\" in \"behavioral law and economics\" is about infusing law and economics with insights into actual (rather than hypothesized) human behavior when such insights are needed to insure sound predictions or prescriptions about law. Behavioral law and economics is not a critique of law and economics. It shares with that approach to the law the view that human behavior is organized by predictable patterns, which enable the analyst to generate models (often formal ones) and testable hypotheses about the effects of legal rules. And it shares the view that such analysis is an important and valuable pursuit, one most worthy of legal scholars' attention. Where it disagrees with conventional law and economics is about the shape of the predictable patterns of human behavior. Its goal is to offer better predictions and prescriptions about law based on improved accounts of how people actually behave. This Essay offers a behavioral economic analysis of redistributive legal rules. Redistributive legal rules are rules chosen for their effects in shifting wealth from high-income to low-income individuals (progressive redistribution). The desirability of such rules has been the subject of intense debate within the legal community. Many law and economics scholars have urged that legal rules be chosen solely with an eye towards Kaldor-Hicks efficiency (which I will call simply \"efficiency\" for the remainder of this Essay); these scholars often urge that distributional considerations be addressed (if they are to be addressed at all) exclusively through the tax and welfare systems.2 On this view, distributive goals do not provide a basis for choosing an inefficient legal rule-although they might, it seems, provide a basis for choosing between two efficient rules.3 Other legal scholars have argued that the selection of legal rules should be informed by distributional considerations even at the expense of efficiency.4 I will call a rule \"redistributive\" if it makes such a trade-off between distributive objectives and efficiency. A recurring theme in the debate over redistributive legal rules has been the relative cost of redistributing wealth through legal rules (defined to mean rules other than those that directly relate to the tax and welfare systems) and redistributing wealth through the tax and welfare systems (which I will call simply \"the tax system\" or \"taxes\" for the remainder of this Essay). Under the assumptions of neoclassical economics, any desired level of redistribution can be achieved at lower cost thr","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"51 1","pages":"1653"},"PeriodicalIF":1.9,"publicationDate":"1998-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9781139175197.012","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57113601","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article addresses the implications of retail competition in public utility industries, particularly electricity, for utility service obligations. After tracing the history of the common law duty to serve applicable to public utilities, the efficiency of utility service obligations in the context of rate regulation is explored. Retail competition, many suggest, poses a threat to utility service obligations. However, regulators can minimize the inefficiency of traditional utility service obligations without sacrificing the benefits of retail competition if they pay attention to the structural efficiency of competitive retail markets. The article advocates imposition of basic service obligations on the DisCo and voluntary procurement of power supply financed through a systems benefits charge in the context of PoolCo retail competition model. In addition, the implications of competition in distribution markets on service obligation financing are explored.
{"title":"The Common Law \"Duty To Serve\" and Protection of Consumers in an Age of Competitive Retail Public Utility Restructuring","authors":"Jim Rossi","doi":"10.2139/SSRN.92529","DOIUrl":"https://doi.org/10.2139/SSRN.92529","url":null,"abstract":"This article addresses the implications of retail competition in public utility industries, particularly electricity, for utility service obligations. After tracing the history of the common law duty to serve applicable to public utilities, the efficiency of utility service obligations in the context of rate regulation is explored. Retail competition, many suggest, poses a threat to utility service obligations. However, regulators can minimize the inefficiency of traditional utility service obligations without sacrificing the benefits of retail competition if they pay attention to the structural efficiency of competitive retail markets. The article advocates imposition of basic service obligations on the DisCo and voluntary procurement of power supply financed through a systems benefits charge in the context of PoolCo retail competition model. In addition, the implications of competition in distribution markets on service obligation financing are explored.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"51 1","pages":"1233"},"PeriodicalIF":1.9,"publicationDate":"1998-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67886533","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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