{"title":"Genetic discrimination, genetic privacy: rethinking employee protections for a brave new workplace.","authors":"Pauline T Kim","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24535486","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In recent years, several states have adopted so-called "Right to Vote on Taxes" initiatives - i.e., constitutional amendments requiring voter approval for any new or increased taxes imposed by local governments. In this Article, Professor Stark traces the history of these political developments and investigates the normative question of what role voter approval requirements should play within a fiscal constitution designed to limit the taxing powers of local governments. Advocates of a right to vote on taxes have premised their arguments on a libertarian concern for "taxpayer consent" - taxpayers themselves should have ultimate authority over their fiscal destiny. Yet even if one accepts taxpayer consent as a legitimate principle of fiscal governance, it is not clear that voter approval requirements advance that rationale, given the existing structure of the local tax base. Through an examination of the median voter's tax price for a variety of common local levies, Stark highlights those features of the local tax base that result in a divergence between those who vote on taxes and those who pay them. Where this divergence is substantial, the libertarian case for tax voting is the weakest. In order for the "taxpayer consent" rationale to have any traction, Stark argues that there must be a substantial correspondence between the population burdened by the tax and those who are empowered to vote does the libertarian. This analysis suggests a previously unexplored link between libertarian notions of taxpayer consent and an emerging literature in public finance economics concerning the optimal assignment of taxing authority to local governments. This literature has generally emphasized the efficiency gains from requiring local governments to rely primarily on taxes on their own residents, as opposed to source-based or other, more easily exportable taxes. Drawing on this literature, Stark argues for a new division of labor for the different types of tax limitation devices - if a state chooses to limit the taxing power of local governments, voter approval requirements should be used for residence-based taxes or the residential property tax, while alternative limitations may be more appropriate for those taxes with incidence effects that are less certain or more dispersed. Notably, California has adopted exactly the opposite approach, imposing direct limitations on the property tax and requiring voter approval for a variety of miscellaneous sales and business taxes. The Article then addresses the central normative question underlying the right to vote on taxes: even if the local tax structure could be reformulated in the manner suggested, should states adopt voter approval requirements for new or increased taxes? While recognizing the natural reluctance of liberal-minded scholars to endorse libertarian objectives, Stark suggests that there may nonetheless be value in pursuing a right to vote on taxes. To investigate this possibility, he develops a prelim
{"title":"The Right to Vote on Taxes","authors":"K. Stark","doi":"10.2139/SSRN.288569","DOIUrl":"https://doi.org/10.2139/SSRN.288569","url":null,"abstract":"In recent years, several states have adopted so-called \"Right to Vote on Taxes\" initiatives - i.e., constitutional amendments requiring voter approval for any new or increased taxes imposed by local governments. In this Article, Professor Stark traces the history of these political developments and investigates the normative question of what role voter approval requirements should play within a fiscal constitution designed to limit the taxing powers of local governments. Advocates of a right to vote on taxes have premised their arguments on a libertarian concern for \"taxpayer consent\" - taxpayers themselves should have ultimate authority over their fiscal destiny. Yet even if one accepts taxpayer consent as a legitimate principle of fiscal governance, it is not clear that voter approval requirements advance that rationale, given the existing structure of the local tax base. Through an examination of the median voter's tax price for a variety of common local levies, Stark highlights those features of the local tax base that result in a divergence between those who vote on taxes and those who pay them. Where this divergence is substantial, the libertarian case for tax voting is the weakest. In order for the \"taxpayer consent\" rationale to have any traction, Stark argues that there must be a substantial correspondence between the population burdened by the tax and those who are empowered to vote does the libertarian. This analysis suggests a previously unexplored link between libertarian notions of taxpayer consent and an emerging literature in public finance economics concerning the optimal assignment of taxing authority to local governments. This literature has generally emphasized the efficiency gains from requiring local governments to rely primarily on taxes on their own residents, as opposed to source-based or other, more easily exportable taxes. Drawing on this literature, Stark argues for a new division of labor for the different types of tax limitation devices - if a state chooses to limit the taxing power of local governments, voter approval requirements should be used for residence-based taxes or the residential property tax, while alternative limitations may be more appropriate for those taxes with incidence effects that are less certain or more dispersed. Notably, California has adopted exactly the opposite approach, imposing direct limitations on the property tax and requiring voter approval for a variety of miscellaneous sales and business taxes. The Article then addresses the central normative question underlying the right to vote on taxes: even if the local tax structure could be reformulated in the manner suggested, should states adopt voter approval requirements for new or increased taxes? While recognizing the natural reluctance of liberal-minded scholars to endorse libertarian objectives, Stark suggests that there may nonetheless be value in pursuing a right to vote on taxes. To investigate this possibility, he develops a prelim","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68417650","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2001-10-01DOI: 10.7551/mitpress/11054.003.0008
Michael J. Gerhardt
Book Review THE END OF THEORY FREEDOM AND TIME: A THEORY OF CoNSTITUTIONAL SELF-GOVERNMENT By Jed Rubenfeld. Yale University Press, 2001. INTRODUCTION Imagine how you would answer the following question: "What is the central problem in constitutional law?" This question is routine to constitutional scholars, whose most common answer is the "counter-majoritarian difficulty,"' Alexander Bickel's classic phrase for the dilemma posed by unelected federal judges' interference with the decisions of democratically elected, politically accountable authorities. Imagine, however, that the answer to this difficulty turns out to depend on the resolution of an entirely different issue-the legitimacy of the Constitution's binding authority over time-that can be answered only by reference to a source other than any of those conventionally consulted, like the text, original understanding, or structure of the Constitution. Such imaginative leaps, difficult as they may be to follow, await the readers of the new book by Yale Law School Professor Jed Rubenfeld. There is more, much more, to Rubenfeld's constitutional vision, but many readers, including some scholars in the field, likely will be put off by his attempt to base his claim of judicial primacy in interpreting the Constitution not on any sources of constitutional meaning that are commonly regarded as authoritative, but rather on a blend of abstract principles derived primarily from the fact that the Constitution is written.3 In this book, as in his prior writings, Rubenfeld boldly rejects the attempts of virtually all other constitutional theorists to make sense of constitutional law. He argues IMAGE FORMULA7 that these scholars, including such luminaries as Alexander Bickel and Charles Black, have misdiagnosed the counter-majoritarian difficulty as the central question in constitutional law.4 Rubenfeld suggests that they all have failed to understand that this problem, as conventionally conceived, is not the major difficulty in constitutional theory, because its solution depends on resolving an even more basic question-the truly fundamental question of constitutional law, in his opinion-how and why the Constitution, drafted and ratified over two centuries ago, should bind the nation and continue to be regarded as legitimate long after the deaths of those who drafted and ratified it.5 In Rubenfeld's opinion, answering this fundamental question requires developing a political theory of legitimacy derived independently from the text of the Constitution or any other conventional source of constitutional authority. The text of the Constitution provides no guidance on how it should be interpreted; if one were to consult the Constitution for such guidance, one merely would be engaged in the circular exercise of interpreting the Constitution in order to determine how to interpret the Constitution. Instead, Rubenfeld suggests, one should derive a non-native theory of legitimacy from the fact that the Constitution i
{"title":"The End of Theory","authors":"Michael J. Gerhardt","doi":"10.7551/mitpress/11054.003.0008","DOIUrl":"https://doi.org/10.7551/mitpress/11054.003.0008","url":null,"abstract":"Book Review THE END OF THEORY FREEDOM AND TIME: A THEORY OF CoNSTITUTIONAL SELF-GOVERNMENT By Jed Rubenfeld. Yale University Press, 2001. INTRODUCTION Imagine how you would answer the following question: \"What is the central problem in constitutional law?\" This question is routine to constitutional scholars, whose most common answer is the \"counter-majoritarian difficulty,\"' Alexander Bickel's classic phrase for the dilemma posed by unelected federal judges' interference with the decisions of democratically elected, politically accountable authorities. Imagine, however, that the answer to this difficulty turns out to depend on the resolution of an entirely different issue-the legitimacy of the Constitution's binding authority over time-that can be answered only by reference to a source other than any of those conventionally consulted, like the text, original understanding, or structure of the Constitution. Such imaginative leaps, difficult as they may be to follow, await the readers of the new book by Yale Law School Professor Jed Rubenfeld. There is more, much more, to Rubenfeld's constitutional vision, but many readers, including some scholars in the field, likely will be put off by his attempt to base his claim of judicial primacy in interpreting the Constitution not on any sources of constitutional meaning that are commonly regarded as authoritative, but rather on a blend of abstract principles derived primarily from the fact that the Constitution is written.3 In this book, as in his prior writings, Rubenfeld boldly rejects the attempts of virtually all other constitutional theorists to make sense of constitutional law. He argues IMAGE FORMULA7 that these scholars, including such luminaries as Alexander Bickel and Charles Black, have misdiagnosed the counter-majoritarian difficulty as the central question in constitutional law.4 Rubenfeld suggests that they all have failed to understand that this problem, as conventionally conceived, is not the major difficulty in constitutional theory, because its solution depends on resolving an even more basic question-the truly fundamental question of constitutional law, in his opinion-how and why the Constitution, drafted and ratified over two centuries ago, should bind the nation and continue to be regarded as legitimate long after the deaths of those who drafted and ratified it.5 In Rubenfeld's opinion, answering this fundamental question requires developing a political theory of legitimacy derived independently from the text of the Constitution or any other conventional source of constitutional authority. The text of the Constitution provides no guidance on how it should be interpreted; if one were to consult the Constitution for such guidance, one merely would be engaged in the circular exercise of interpreting the Constitution in order to determine how to interpret the Constitution. Instead, Rubenfeld suggests, one should derive a non-native theory of legitimacy from the fact that the Constitution i","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71228614","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The business judgment rule is one of the most puzzling and widely-criticized doctrines in corporate law. As described in Smith v. Van Gorkom, the rule prohibits courts from second-guessing the wisdom of disinterested corporate directors' substantive decisions. Instead, courts may consider only the quality of the boards' decisionmaking process and particularly whether the board "informed" itself before taking action. This focus on procedure seems dysfunctional from a rational choice perspective. If directors are rational and self-interested actors, imposing liability on them for following shoddy procedures does not in itself give them incentive to exercise due care. It only gives them incentive to adopt more elaborate, and more expensive, procedures. In this essay I argue that the business judgment rule can be understood if we are willing to modify the "homo economicus" model of human behavior that underlies rational choice analysis to take account of the reality of socially contingent altruism. Extensive empirical evidence demonstrates that altruistic behavior is both a common and a predictable phenomenon. In particular, numerous studies of behavior in experimental social dilemma games demonstrate that altruism is easily triggered by social context (e.g., subjects' beliefs regarding others' needs, expectations, or behavior). These studies also demonstrate, however, that altruistic behavior tends to diminish as the personal sacrifice involved increases. This last finding suggests that the business judgment rule can be best understood as a mechanism for encouraging director altruism, in the form of a sense of obligation to the firm and its shareholders, by reducing the marginal personal costs associated with altruistic director behavior. In particular, I argue that the rule (1) reduces directors' marginal "cost of comprehending" what is going on at the firm and what the likely consequences of alternative courses of action might be, and (2) reduces directors' marginal "cost of confronting" the firm's managers to demand more information or to challenge a management-recommended course of action. The result is that the business judgment rule's procedural focus may provide an elegant, second-best solution to the problem of encouraging director care in situations where courts cannot assess the substantive wisdom of directors' decisions.
商业判断规则是公司法中最令人费解和受到广泛批评的原则之一。正如Smith v. Van Gorkom案所述，该规则禁止法院对无私的公司董事做出的实质性决定是否明智进行事后猜测。相反，法院可能只考虑董事会决策过程的质量，特别是董事会在采取行动之前是否“告知”自己。从理性选择的角度来看，这种对程序的关注似乎是不正常的。如果董事是理性的、自私自利的行为者，让他们为遵循劣质程序承担责任，本身并不能激励他们行使应有的谨慎。这只会激励他们采用更复杂、更昂贵的程序。在本文中，我认为，如果我们愿意修改作为理性选择分析基础的人类行为的“经济人”模型，以考虑社会偶然利他主义的现实，那么商业判断规则是可以理解的。大量的经验证据表明，利他行为既是一种普遍现象，也是一种可预测的现象。特别是，许多关于实验性社会困境游戏行为的研究表明，利他主义很容易被社会环境(例如，受试者对他人需求、期望或行为的信念)触发。然而，这些研究也表明，随着个人牺牲的增加，利他行为往往会减少。最后一项发现表明，商业判断规则可以最好地理解为一种机制，通过降低与利他董事行为相关的边际个人成本，以对公司及其股东的义务意识的形式鼓励董事利他主义。特别是，我认为该规则(1)降低了董事理解公司正在发生的事情以及替代行动方案可能产生的后果的边际“成本”，(2)降低了董事对抗公司经理要求获得更多信息或挑战管理层推荐的行动方案的边际“成本”。其结果是，在法院无法评估董事决策的实质性智慧的情况下，商业判断规则的程序性焦点可能为鼓励董事谨慎这一问题提供了一种优雅的、次优的解决方案。
{"title":"In Praise of Procedure: An Economic and Behavioral Defense of Smith V. Van Gorkom and the Business Judgment Rule","authors":"Lynn A. Stout","doi":"10.2139/SSRN.290938","DOIUrl":"https://doi.org/10.2139/SSRN.290938","url":null,"abstract":"The business judgment rule is one of the most puzzling and widely-criticized doctrines in corporate law. As described in Smith v. Van Gorkom, the rule prohibits courts from second-guessing the wisdom of disinterested corporate directors' substantive decisions. Instead, courts may consider only the quality of the boards' decisionmaking process and particularly whether the board \"informed\" itself before taking action. This focus on procedure seems dysfunctional from a rational choice perspective. If directors are rational and self-interested actors, imposing liability on them for following shoddy procedures does not in itself give them incentive to exercise due care. It only gives them incentive to adopt more elaborate, and more expensive, procedures. In this essay I argue that the business judgment rule can be understood if we are willing to modify the \"homo economicus\" model of human behavior that underlies rational choice analysis to take account of the reality of socially contingent altruism. Extensive empirical evidence demonstrates that altruistic behavior is both a common and a predictable phenomenon. In particular, numerous studies of behavior in experimental social dilemma games demonstrate that altruism is easily triggered by social context (e.g., subjects' beliefs regarding others' needs, expectations, or behavior). These studies also demonstrate, however, that altruistic behavior tends to diminish as the personal sacrifice involved increases. This last finding suggests that the business judgment rule can be best understood as a mechanism for encouraging director altruism, in the form of a sense of obligation to the firm and its shareholders, by reducing the marginal personal costs associated with altruistic director behavior. In particular, I argue that the rule (1) reduces directors' marginal \"cost of comprehending\" what is going on at the firm and what the likely consequences of alternative courses of action might be, and (2) reduces directors' marginal \"cost of confronting\" the firm's managers to demand more information or to challenge a management-recommended course of action. The result is that the business judgment rule's procedural focus may provide an elegant, second-best solution to the problem of encouraging director care in situations where courts cannot assess the substantive wisdom of directors' decisions.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68427985","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In statutory interpretation, judicial authority has long rested on the assumption that judges carry out Congress's policy choices rather than their own. The rise of the administrative state cast doubt on that assumption, however, by calling new attention to the leeway inherent in interpretation. Indeed, by the late-twentieth century the Supreme Court itself acknowledged that interpretation requires policy choices best left to political officials and used this observation to justify judicial deference to administrative interpretations of statutes. Having suggested that the policymaking discretion inherent in interpretation is best left to the political branches, however, the Court has never explained why judges should retain the important interpretive role they do. Judges and scholars alike have overlooked a serious tension between the Court's rationale for deference and its retention of significant interpretive authority nonetheless. This tension has been rendered quite important by recent decisions that reinforce the Court's power over agencies and raise new questions as to why the Court should retain its historical control over statutory interpretation even after acknowledging that interpretation entails more than fidelity to legislative instructions. This Article seeks to resolve this tension in the Court's jurisprudence by constructing a defense of judicial power that does not depend on judges being faithful agents of Congress. The Article defends judicial power based on the judiciary's role in the constitutional structure and its internal institutional attributes and uses this structural and institutional account of the judicial function to critique the Court's recent decisions on deference. An earlier draft of this paper won the AALS Scholarly Paper Competition.
{"title":"Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power Over Statutory Interpretation","authors":"Jonathan T. Molot","doi":"10.2139/SSRN.283026","DOIUrl":"https://doi.org/10.2139/SSRN.283026","url":null,"abstract":"In statutory interpretation, judicial authority has long rested on the assumption that judges carry out Congress's policy choices rather than their own. The rise of the administrative state cast doubt on that assumption, however, by calling new attention to the leeway inherent in interpretation. Indeed, by the late-twentieth century the Supreme Court itself acknowledged that interpretation requires policy choices best left to political officials and used this observation to justify judicial deference to administrative interpretations of statutes. Having suggested that the policymaking discretion inherent in interpretation is best left to the political branches, however, the Court has never explained why judges should retain the important interpretive role they do. Judges and scholars alike have overlooked a serious tension between the Court's rationale for deference and its retention of significant interpretive authority nonetheless. This tension has been rendered quite important by recent decisions that reinforce the Court's power over agencies and raise new questions as to why the Court should retain its historical control over statutory interpretation even after acknowledging that interpretation entails more than fidelity to legislative instructions. This Article seeks to resolve this tension in the Court's jurisprudence by constructing a defense of judicial power that does not depend on judges being faithful agents of Congress. The Article defends judicial power based on the judiciary's role in the constitutional structure and its internal institutional attributes and uses this structural and institutional account of the judicial function to critique the Court's recent decisions on deference. An earlier draft of this paper won the AALS Scholarly Paper Competition.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68364119","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Whether and how the federal securities laws should restrict insider trading is one of the most hotly debated topics in the securities law literature. Paradoxically, both the theoretical analysis and the legal rules concerning insider trading remain extraordinarily vague and ill-formed. What is the special character of insider trading that leads to this apparently irresolvable puzzle? In this Article, I argue that there is, in fact, nothing special about insider trading that creates this dilemma, but rather there is something special about the nature of information itself. Accordingly, this theoretical dilemma is not limited to insider trading regulation, but rather pervades all areas of intellectual property law. In this Article, I situate insider trading regulation within the larger body of intellectual property law by discussing three potential allocations of the property right in valuable inside information. First, inside information could be treated as a public resource, meaning that a person in possession of inside information could not legally exploit that advantage for personal profit. Such a regime would forbid some or all insider trading by forcing the disclosure to the marketplace of inside information prior to trading. I argue that regulators should reject this alternative because, despite it's proponents' tendency to justify the rule in terms of fairness, this proposal is unlikely to foster fairness in any meaningful way. Alternatively, the property right in valuable inside information could belong to issuers, as the producers of such information. I argue that regulators should reject this alternative because, despite its proponents? tendency to frame their arguments in terms of promoting informational efficiency, a legal regime treating inside information as the property of the issuer is unlikely to further that goal. In fact, such proposals assume an affirmative answer to a question that is fiercely debated in other areas of intellectual property law: does creating a property right in information producers incentivize additional production to the extent necessary to offset the social costs of excluding others from use of the information? Finally, the property right in valuable inside information could reside with "outsider traders" (traders who possess inside information, but are neither insiders nor constructive insiders of the issuer). I argue that regulators should pursue this alternative because, although there is no need to encourage issuers to create valuable inside information, the need to encourage the dissemination of such information to the marketplace has been recognized for many years. Accordingly, I propose in this Article a system of federal securities regulation that would permit trading by corporate outsiders who did not receive their information in a tip from an insider or constructive insider. Such a system, I argue, provides the hope of filling in the gaps left by the current disclose or abstain system, by encoura
{"title":"Fairness, Efficiency, and Insider Trading: Deconstructing the Coin of the Realm in the Information Age","authors":"K. Krawiec","doi":"10.2139/SSRN.260256","DOIUrl":"https://doi.org/10.2139/SSRN.260256","url":null,"abstract":"Whether and how the federal securities laws should restrict insider trading is one of the most hotly debated topics in the securities law literature. Paradoxically, both the theoretical analysis and the legal rules concerning insider trading remain extraordinarily vague and ill-formed. What is the special character of insider trading that leads to this apparently irresolvable puzzle? In this Article, I argue that there is, in fact, nothing special about insider trading that creates this dilemma, but rather there is something special about the nature of information itself. Accordingly, this theoretical dilemma is not limited to insider trading regulation, but rather pervades all areas of intellectual property law. In this Article, I situate insider trading regulation within the larger body of intellectual property law by discussing three potential allocations of the property right in valuable inside information. First, inside information could be treated as a public resource, meaning that a person in possession of inside information could not legally exploit that advantage for personal profit. Such a regime would forbid some or all insider trading by forcing the disclosure to the marketplace of inside information prior to trading. I argue that regulators should reject this alternative because, despite it's proponents' tendency to justify the rule in terms of fairness, this proposal is unlikely to foster fairness in any meaningful way. Alternatively, the property right in valuable inside information could belong to issuers, as the producers of such information. I argue that regulators should reject this alternative because, despite its proponents? tendency to frame their arguments in terms of promoting informational efficiency, a legal regime treating inside information as the property of the issuer is unlikely to further that goal. In fact, such proposals assume an affirmative answer to a question that is fiercely debated in other areas of intellectual property law: does creating a property right in information producers incentivize additional production to the extent necessary to offset the social costs of excluding others from use of the information? Finally, the property right in valuable inside information could reside with \"outsider traders\" (traders who possess inside information, but are neither insiders nor constructive insiders of the issuer). I argue that regulators should pursue this alternative because, although there is no need to encourage issuers to create valuable inside information, the need to encourage the dissemination of such information to the marketplace has been recognized for many years. Accordingly, I propose in this Article a system of federal securities regulation that would permit trading by corporate outsiders who did not receive their information in a tip from an insider or constructive insider. Such a system, I argue, provides the hope of filling in the gaps left by the current disclose or abstain system, by encoura","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68219163","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is common to assert that the Patent and Trademark Office does a bad job of examining patents, and that it should spend more time and money weeding out bad patents. In this article, Professor Lemley challenges that conventional wisdom. Using available data regarding the cost and incidence of patent prosecution, litigation, licensing and other uses of patents, he demonstrates that strengthening the examination process is not cost effective. The core insight is that very few patents are actually litigated or licensed; most simply sit on a shelf unused, or are used only for noncontroversial purposes like financing. Because of this, society would be better off spending its resources in a more searching judicial inquiry into validity in those few cases in which it matters than paying for a more protracted examination of all patents ex ante. In economic terms, the patent office is "rationally ignorant" of the objective validity of the patents it issues.
{"title":"Rational Ignorance at the Patent Office","authors":"Mark A. Lemley","doi":"10.2139/SSRN.261400","DOIUrl":"https://doi.org/10.2139/SSRN.261400","url":null,"abstract":"It is common to assert that the Patent and Trademark Office does a bad job of examining patents, and that it should spend more time and money weeding out bad patents. In this article, Professor Lemley challenges that conventional wisdom. Using available data regarding the cost and incidence of patent prosecution, litigation, licensing and other uses of patents, he demonstrates that strengthening the examination process is not cost effective. The core insight is that very few patents are actually litigated or licensed; most simply sit on a shelf unused, or are used only for noncontroversial purposes like financing. Because of this, society would be better off spending its resources in a more searching judicial inquiry into validity in those few cases in which it matters than paying for a more protracted examination of all patents ex ante. In economic terms, the patent office is \"rationally ignorant\" of the objective validity of the patents it issues.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.261400","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68225562","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The rebirth of informed consent: a cultural analysis of the Informed Consent Doctrine after Schreiber v. Physicians Insurance Co. of Wisconsin.","authors":"S K Ketler","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22413273","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Arti Rai's article in the Fall 1999 issue of the Northwestern University Law Review explores the proper use of both legal rules and prescriptive norms to shape behavior in the basic biological research community. Rai's article builds upon the extensive work in this area by Rebecca Eisenberg, which first attained prominence through Eisenberg's article in the December 1987 issue of the Yale Law Journal. Eisenberg concludes that the use of patents in the area of basic biological research may frustrate central norms of the community. Rai prescribes concerted public and private action as the best tools for avoiding patents and the problems Eisenberg attributes to them. This essay responds to patent critics like Rai and Eisenberg by showing how patents are essential for promoting the central norms of the basic biological research community.
Arti Rai在1999年秋季出版的《西北大学法律评论》上的文章探讨了如何正确使用法律规则和规范来塑造基础生物研究界的行为。雷的文章建立在丽贝卡·艾森伯格在这一领域的广泛工作的基础上，艾森伯格在1987年12月出版的《耶鲁法律杂志》上的文章首次引起了人们的关注。艾森伯格的结论是，在基础生物学研究领域使用专利可能会阻碍社会的核心规范。Rai指出，公共和私人的协调行动是避免专利和艾森伯格认为专利带来的问题的最佳工具。这篇文章通过展示专利对于促进基础生物研究界的核心规范是如何必不可少的来回应像Rai和Eisenberg这样的专利批评者。
{"title":"Facilitating Scientific Research: Intellectual Property Rights and the Norms of Science - A Response to Rai and Eisenberg","authors":"F. Kieff","doi":"10.2139/SSRN.240955","DOIUrl":"https://doi.org/10.2139/SSRN.240955","url":null,"abstract":"Arti Rai's article in the Fall 1999 issue of the Northwestern University Law Review explores the proper use of both legal rules and prescriptive norms to shape behavior in the basic biological research community. Rai's article builds upon the extensive work in this area by Rebecca Eisenberg, which first attained prominence through Eisenberg's article in the December 1987 issue of the Yale Law Journal. Eisenberg concludes that the use of patents in the area of basic biological research may frustrate central norms of the community. Rai prescribes concerted public and private action as the best tools for avoiding patents and the problems Eisenberg attributes to them. This essay responds to patent critics like Rai and Eisenberg by showing how patents are essential for promoting the central norms of the basic biological research community.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2000-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68186749","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In an article published in 1992, Professors Twerski and Cohen suggested that basic principles of the law of informed consent require medical providers to tell their patients about competing providers could perform the same procedures better or more safely. In its 1996 decision in Johnson v. Kokemoor, the Supreme Court of Wisconsin cited Twerski and Cohen's article in holding a neurosurgeon liable for not telling a patient of such a competitor. As a result, Twerski and Cohen now argue, the law of informed consent now stands on the brink of a second revolution. This comment sets forth a systems/strategic analysis of Twerski and Cohen's proposal. That is, using the delivery system for coronary bypass graft surgery as an example, it describes the current system's operation, projects how the system would operate with Twerski and Cohen's proposal in place (by exploring the strategies that patients and providers would be likely to pursue), and then evaluates the two comparatively. The comment concludes that even if the proposal were adopted immediately, the resulting change would proceed at a moderate pace. Over the long run, the proposal would tend to align the interests of providers with those of their patients and work a substantial net improvement in system operation.
在1992年发表的一篇文章中，特沃斯基教授和科恩教授提出，知情同意法的基本原则要求医疗提供者告诉患者，竞争对手可以更好或更安全地执行相同的程序。在1996年的Johnson v. Kokemoor一案中，威斯康辛州最高法院引用了Twerski和Cohen的文章，认为神经外科医生有责任不告诉病人有这样一个竞争者。因此，特沃斯基和科恩现在认为，知情同意法现在正处于第二次革命的边缘。这篇评论对Twerski和Cohen的提议进行了系统/战略分析。也就是说，以冠状动脉搭桥手术的输送系统为例，描述了当前系统的运行情况，预测了该系统在Twerski和Cohen的建议下将如何运行(通过探索患者和提供者可能采取的策略)，然后对两者进行比较评估。评论的结论是，即使提案立即获得通过，由此产生的变化也将以适度的速度进行。从长远来看，该提案将倾向于使提供者的利益与患者的利益保持一致，并在系统运行方面取得实质性的改进。
{"title":"Twerski & Cohen's Second Revolution: A Systems/Strategic Perspective","authors":"Lynn M. LoPucki","doi":"10.2139/SSRN.203490","DOIUrl":"https://doi.org/10.2139/SSRN.203490","url":null,"abstract":"In an article published in 1992, Professors Twerski and Cohen suggested that basic principles of the law of informed consent require medical providers to tell their patients about competing providers could perform the same procedures better or more safely. In its 1996 decision in Johnson v. Kokemoor, the Supreme Court of Wisconsin cited Twerski and Cohen's article in holding a neurosurgeon liable for not telling a patient of such a competitor. As a result, Twerski and Cohen now argue, the law of informed consent now stands on the brink of a second revolution. This comment sets forth a systems/strategic analysis of Twerski and Cohen's proposal. That is, using the delivery system for coronary bypass graft surgery as an example, it describes the current system's operation, projects how the system would operate with Twerski and Cohen's proposal in place (by exploring the strategies that patients and providers would be likely to pursue), and then evaluates the two comparatively. The comment concludes that even if the proposal were adopted immediately, the resulting change would proceed at a moderate pace. Over the long run, the proposal would tend to align the interests of providers with those of their patients and work a substantial net improvement in system operation.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2000-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.203490","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67872286","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"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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