This Essay responds to the Supreme Court’s recent decision in Arizona v. United States, which struck down all but one of the disputed sections of Arizona’s S.B. 1070 immigration law. It advances the theory that although the Arizona Court purported to apply classic conflict and field preemption analyses, it was actually using a different form of preemption, one that gives particular weight to federal interests where questions of national sovereignty are at stake. The Court did so through doctrinal borrowing of the “plenary power doctrine,” which gives the political branches special deference when passing or executing immigration legislation, even where doing so would otherwise violate individual constitutional rights. This Essay labels the form of preemption used in Arizona and other alienage cases “plenary power preemption.” It shows how this doctrine developed over time, as the scope of the legitimate exercise of state police power and federal immigration changed, and federal and state regulation of noncitizens became more complex and enmeshed. It argues that plenary power preemption has two important effects: it allows courts to evade the thorny question of the scope of executive — as opposed to legislative — power over immigration, and it substitutes for the lack of an equal protection doctrine.
{"title":"Plenary Power Preemption","authors":"Kerry Abrams","doi":"10.2139/SSRN.2278341","DOIUrl":"https://doi.org/10.2139/SSRN.2278341","url":null,"abstract":"This Essay responds to the Supreme Court’s recent decision in Arizona v. United States, which struck down all but one of the disputed sections of Arizona’s S.B. 1070 immigration law. It advances the theory that although the Arizona Court purported to apply classic conflict and field preemption analyses, it was actually using a different form of preemption, one that gives particular weight to federal interests where questions of national sovereignty are at stake. The Court did so through doctrinal borrowing of the “plenary power doctrine,” which gives the political branches special deference when passing or executing immigration legislation, even where doing so would otherwise violate individual constitutional rights. This Essay labels the form of preemption used in Arizona and other alienage cases “plenary power preemption.” It shows how this doctrine developed over time, as the scope of the legitimate exercise of state police power and federal immigration changed, and federal and state regulation of noncitizens became more complex and enmeshed. It argues that plenary power preemption has two important effects: it allows courts to evade the thorny question of the scope of executive — as opposed to legislative — power over immigration, and it substitutes for the lack of an equal protection doctrine.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"99 1","pages":"601"},"PeriodicalIF":2.6,"publicationDate":"2013-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68057508","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 Supreme Court’s “new federalism” decisions impose modest limits on the regulatory authority of Congress under the Commerce Clause. According to those decisions, the Commerce Clause empowers Congress to use penalties to regulate interstate commerce, but not to regulate noncommercial conduct. What prevents Congress from penalizing non-commercial conduct by calling a penalty a tax and invoking the Taxing Clause? The only obstacle is the distinction between a penalty and a tax for purposes of Article I, Section 8. In National Federation of Independent Business v. Sebelius (NFIB), the Court considered whether the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA) imposes a penalty or a tax by requiring most individuals to either buy health insurance or make a payment to the Internal Revenue Service. Writing for the Court, Chief Justice Roberts concluded that the minimum coverage payment is a tax for constitutional purposes, even though Congress called it a penalty. This Article develops an effects theory to distinguish between penalties and taxes. We believe that it provides the best theoretical justification of the tax-power holding in NFIB. The effect of a penalty is to prevent conduct, thereby raising little revenue, whereas the effect of a tax is to dampen conduct, thereby raising revenue. Three opposing characteristics of an exaction give incentives for preventing or dampening conduct, and thus provide criteria for distinguishing between penalties and taxes. A pure penalty condemns the actor for wrongdoing; she must pay more than the usual gain from the forbidden conduct; and she must pay at an increasing rate with intentional or repeated violations. Condemnation coerces expressively and relatively high rates with enhancements coerce materially. Alternatively, a pure tax permits a person to engage in the taxed conduct; she must pay an exaction that is less than the usual gain from the taxed conduct; and intentional or repeated conduct does not enhance the rate. Permission does not coerce expressively and relatively low rates without enhancements do not coerce materially. The ACA’s required payment for non-insurance has a penalty’s expression and a tax’s materiality. Its constitutional identity depends on the reasonable expectations of Congress concerning its effect. If Congress could have reasonably concluded that the exaction will dampen — but not prevent — the general class of conduct subject to it and thereby raise revenue, then courts should interpret it as a tax regardless of what the statute calls it. If Congress could have reasonably concluded only that the exaction will prevent the conduct of almost all people subject to it and thereby raise little or no revenue, then courts should interpret it as a penalty. In the case of the minimum coverage provision, the Congressional Budget Office predicts that the exaction for non-insurance will dampen uninsured behavior but not prevent it, thereby raising several
{"title":"Not the Power to Destroy: An Effects Theory of the Tax Power","authors":"R. Cooter, Neil S. Siegel","doi":"10.2139/SSRN.1989537","DOIUrl":"https://doi.org/10.2139/SSRN.1989537","url":null,"abstract":"The Supreme Court’s “new federalism” decisions impose modest limits on the regulatory authority of Congress under the Commerce Clause. According to those decisions, the Commerce Clause empowers Congress to use penalties to regulate interstate commerce, but not to regulate noncommercial conduct. What prevents Congress from penalizing non-commercial conduct by calling a penalty a tax and invoking the Taxing Clause? The only obstacle is the distinction between a penalty and a tax for purposes of Article I, Section 8. In National Federation of Independent Business v. Sebelius (NFIB), the Court considered whether the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA) imposes a penalty or a tax by requiring most individuals to either buy health insurance or make a payment to the Internal Revenue Service. Writing for the Court, Chief Justice Roberts concluded that the minimum coverage payment is a tax for constitutional purposes, even though Congress called it a penalty. This Article develops an effects theory to distinguish between penalties and taxes. We believe that it provides the best theoretical justification of the tax-power holding in NFIB. The effect of a penalty is to prevent conduct, thereby raising little revenue, whereas the effect of a tax is to dampen conduct, thereby raising revenue. Three opposing characteristics of an exaction give incentives for preventing or dampening conduct, and thus provide criteria for distinguishing between penalties and taxes. A pure penalty condemns the actor for wrongdoing; she must pay more than the usual gain from the forbidden conduct; and she must pay at an increasing rate with intentional or repeated violations. Condemnation coerces expressively and relatively high rates with enhancements coerce materially. Alternatively, a pure tax permits a person to engage in the taxed conduct; she must pay an exaction that is less than the usual gain from the taxed conduct; and intentional or repeated conduct does not enhance the rate. Permission does not coerce expressively and relatively low rates without enhancements do not coerce materially. The ACA’s required payment for non-insurance has a penalty’s expression and a tax’s materiality. Its constitutional identity depends on the reasonable expectations of Congress concerning its effect. If Congress could have reasonably concluded that the exaction will dampen — but not prevent — the general class of conduct subject to it and thereby raise revenue, then courts should interpret it as a tax regardless of what the statute calls it. If Congress could have reasonably concluded only that the exaction will prevent the conduct of almost all people subject to it and thereby raise little or no revenue, then courts should interpret it as a penalty. In the case of the minimum coverage provision, the Congressional Budget Office predicts that the exaction for non-insurance will dampen uninsured behavior but not prevent it, thereby raising several","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"98 1","pages":"1195"},"PeriodicalIF":2.6,"publicationDate":"2012-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1989537","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67833522","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}
Digital technology enables individuals to create and communicate in ways that were previously possible only for well-funded corporate publishers. These individual creators are increasingly harnessing copyright law to insist on ownership of the rights to control their musical works, scholarly research, and even Facebook musings. When individual creators claim, retain, and manage their own copyrights, they exercise a degree of authorial autonomy that befits the Internet Age. But they simultaneously contribute to a troubling phenomenon I call “copyright atomism” - the proliferation, distribution, and fragmentation of the exclusive rights bestowed by copyright law. An atomistic copyright system is crowded with protected works and rights, owned by rights-holders who are numerous and far-flung. This situation can raise information and transaction costs for participants in the creative marketplace, hampering future generations of creativity and thus undermining the very purpose of copyright: to encourage the creation and dissemination of works of authorship for the ultimate benefit of the public. This article introduces and articulates the copyright atomism concept. It then places atomism in historical and doctrinal context by documenting copyright law’s encounters with proliferated, distributed, and fragmented copyright ownership from medieval monasteries to the Internet age. This history demonstrates the enduring relevance of anxiety about atomism within copyright policy, highlights countervailing concerns, and provides a framework for thinking about how to alleviate the unfortunate contemporary consequences of atomism - and how not to.
{"title":"Author Autonomy and Atomism in Copyright Law","authors":"Molly Shaffer Van Houweling","doi":"10.2139/ssrn.1422016","DOIUrl":"https://doi.org/10.2139/ssrn.1422016","url":null,"abstract":"Digital technology enables individuals to create and communicate in ways that were previously possible only for well-funded corporate publishers. These individual creators are increasingly harnessing copyright law to insist on ownership of the rights to control their musical works, scholarly research, and even Facebook musings. When individual creators claim, retain, and manage their own copyrights, they exercise a degree of authorial autonomy that befits the Internet Age. But they simultaneously contribute to a troubling phenomenon I call “copyright atomism” - the proliferation, distribution, and fragmentation of the exclusive rights bestowed by copyright law. An atomistic copyright system is crowded with protected works and rights, owned by rights-holders who are numerous and far-flung. This situation can raise information and transaction costs for participants in the creative marketplace, hampering future generations of creativity and thus undermining the very purpose of copyright: to encourage the creation and dissemination of works of authorship for the ultimate benefit of the public. This article introduces and articulates the copyright atomism concept. It then places atomism in historical and doctrinal context by documenting copyright law’s encounters with proliferated, distributed, and fragmented copyright ownership from medieval monasteries to the Internet age. This history demonstrates the enduring relevance of anxiety about atomism within copyright policy, highlights countervailing concerns, and provides a framework for thinking about how to alleviate the unfortunate contemporary consequences of atomism - and how not to.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.6,"publicationDate":"2009-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68178813","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}
Notwithstanding cynicism to the contrary, data bears witness to the fact that government agencies come and go. There are multiple causes that give rise to their disappearance but among the most powerful is that conditions that first gave rise to the particular agency's creation no longer exist so that the regulatory needs that once prevailed are no longer present or that there is a better governmental response than Congress' earlier embraced when it initially created an independent regulatory agency to address the problems needing to be addressed. Certainly the more rigid the regulatory authority conferred on an agency has much to do with its ability to survive changes in the social, economic, commercial and scientific forces that shape its environment. One of the great illustrations of the vibrancy of the regulatory agency model, and particularly the notion of equipping such an agency with "quasi-legislative" authority through broad enabling statutes, is the Securities and Exchange Commission. But can an agency created and operating through most of its years in the internationally insulated environment of U.S. capital markets survive in a world that is light years away from the environment that existed a few years ago, not to mention 75 years ago when the SEC was created?
尽管有相反的冷嘲热讽，但数据证明了这样一个事实:政府机构来来去去。导致它们消失的原因有很多，但其中最重要的原因是，最初导致特定机构成立的条件不再存在，因此，曾经盛行的监管需求不再存在，或者，政府的反应比国会早些时候接受的更好，当时国会最初成立了一个独立的监管机构，以解决需要解决的问题。当然，赋予一个机构的监管权力越严格，它在塑造其环境的社会、经济、商业和科学力量的变化中生存的能力就越大。美国证券交易委员会(Securities and Exchange Commission，简称sec)是监管机构模式充满活力、尤其是通过广泛授权法规赋予此类机构“准立法”权力的概念的绝佳例证之一。但是，一个在美国资本市场这种与国际隔绝的环境中成立并运营多年的机构，能否在一个与几年前(更不用说75年前SEC成立时)截然不同的世界中生存下来呢?
{"title":"Coping in a Global Marketplace: Survival Strategies for a 75-Year-Old SEC","authors":"James D. Cox","doi":"10.2139/SSRN.1272503","DOIUrl":"https://doi.org/10.2139/SSRN.1272503","url":null,"abstract":"Notwithstanding cynicism to the contrary, data bears witness to the fact that government agencies come and go. There are multiple causes that give rise to their disappearance but among the most powerful is that conditions that first gave rise to the particular agency's creation no longer exist so that the regulatory needs that once prevailed are no longer present or that there is a better governmental response than Congress' earlier embraced when it initially created an independent regulatory agency to address the problems needing to be addressed. Certainly the more rigid the regulatory authority conferred on an agency has much to do with its ability to survive changes in the social, economic, commercial and scientific forces that shape its environment. One of the great illustrations of the vibrancy of the regulatory agency model, and particularly the notion of equipping such an agency with \"quasi-legislative\" authority through broad enabling statutes, is the Securities and Exchange Commission. But can an agency created and operating through most of its years in the internationally insulated environment of U.S. capital markets survive in a world that is light years away from the environment that existed a few years ago, not to mention 75 years ago when the SEC was created?","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"95 1","pages":"941"},"PeriodicalIF":2.6,"publicationDate":"2008-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68154967","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 law frequently derives its content from the practices of the community it regulates. Examples are legion: Tort's reasonable care standard demands that we all exercise the prudence of an "ordinary" person. Ambiguous contracts find meaning in custom and usage of trade. The Fourth Amendment examines our collective expectations of privacy. And so on. This recourse to real-world circumstance has in-tuitive appeal, in that it helps courts resolve fact-dependent disputes and lends legitimacy to their judgments. Yet real-world practice can depart from that which the law expects. For example, suppose a physician provides more than reasonable care - extra tests, unneeded procedures, etc. - so as to steer clear of tort liability's considerable gray area. If other physicians follow suit, their precautions slowly but surely become the new legal norm, as the reasonable care standard dutifully absorbs the conduct of those it governs. Instead of discouraging wasteful practices, then, the law feeds them back into doctrine, transforming overcompliance into mere compliance and ratcheting up the standard of care. Overcautious physicians consequently have to do even more to steer clear of liability, and the cycle begins anew. This Article provides a general model of this "doctrinal feedback" phenomenon and then applies it to medical malpractice, where tort's reasonable care standard has caused an unhealthy and unappreciated feedback effect and has led the law to require an unreasonable level of care. In doing so, it reveals feedback's surprisingly common formative factors and demonstrates its potential to skew legal norms in a variety of otherwise dissimilar fields.
{"title":"Doctrinal Feedback and (Un)Reasonable Care","authors":"James J. Gibson","doi":"10.2139/SSRN.1109170","DOIUrl":"https://doi.org/10.2139/SSRN.1109170","url":null,"abstract":"The law frequently derives its content from the practices of the community it regulates. Examples are legion: Tort's reasonable care standard demands that we all exercise the prudence of an \"ordinary\" person. Ambiguous contracts find meaning in custom and usage of trade. The Fourth Amendment examines our collective expectations of privacy. And so on. This recourse to real-world circumstance has in-tuitive appeal, in that it helps courts resolve fact-dependent disputes and lends legitimacy to their judgments. Yet real-world practice can depart from that which the law expects. For example, suppose a physician provides more than reasonable care - extra tests, unneeded procedures, etc. - so as to steer clear of tort liability's considerable gray area. If other physicians follow suit, their precautions slowly but surely become the new legal norm, as the reasonable care standard dutifully absorbs the conduct of those it governs. Instead of discouraging wasteful practices, then, the law feeds them back into doctrine, transforming overcompliance into mere compliance and ratcheting up the standard of care. Overcautious physicians consequently have to do even more to steer clear of liability, and the cycle begins anew. This Article provides a general model of this \"doctrinal feedback\" phenomenon and then applies it to medical malpractice, where tort's reasonable care standard has caused an unhealthy and unappreciated feedback effect and has led the law to require an unreasonable level of care. In doing so, it reveals feedback's surprisingly common formative factors and demonstrates its potential to skew legal norms in a variety of otherwise dissimilar fields.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"94 1","pages":"1641"},"PeriodicalIF":2.6,"publicationDate":"2008-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68140988","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}
A contract is a legally binding exchange of promises or agreement between parties that the law will enforce. Contract law is based on the Latin phrase pacta sunt servanda (literally, promises must be kept). Breach of a contract is recognised by the law and remedies can be provided. Almost everyone makes contracts everyday. Sometimes written contracts are required, e.g., when buying a house. However the vast majority of contracts can be and are made orally, like buying a law text book, or a coffee at a shop. Contract law can be classified, as is habitual in civil law systems, as part of a general law of obligations (along with tort, unjust enrichment or restitution).
合同是双方当事人之间具有法律约束力的承诺或协议的交换，法律将予以执行。合同法是基于拉丁短语pacta sunt servanda(字面上，承诺必须遵守)。违反合同为法律所承认，并可提供救济。几乎每个人每天都签订合同。有时书面合同是必需的，例如，买房子的时候。然而，绝大多数合同都是口头签订的，就像买一本法律课本，或者在商店里喝杯咖啡。按照大陆法系的习惯，合同法可以被归类为一般义务法的一部分(与侵权、不当得利或赔偿一起)。
{"title":"Practical Concepts in Contract Law","authors":"Ehsan Zar Rokh","doi":"10.2139/ssrn.1016565","DOIUrl":"https://doi.org/10.2139/ssrn.1016565","url":null,"abstract":"A contract is a legally binding exchange of promises or agreement between parties that the law will enforce. Contract law is based on the Latin phrase pacta sunt servanda (literally, promises must be kept). Breach of a contract is recognised by the law and remedies can be provided. Almost everyone makes contracts everyday. Sometimes written contracts are required, e.g., when buying a house. However the vast majority of contracts can be and are made orally, like buying a law text book, or a coffee at a shop. Contract law can be classified, as is habitual in civil law systems, as part of a general law of obligations (along with tort, unjust enrichment or restitution).","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.6,"publicationDate":"2007-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.1016565","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68127880","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}
Nonprofit firms may not distribute profits to owners but instead must retain them or reinvest them. Nonprofits that are "charitable organizations" under Section 501(c)(3) of the tax code may receive donations from individuals who are allowed to deduct their donations from their income for tax purposes. We argue that the law should not link tax benefits to corporate form in this way. There may be good arguments for recognizing the nonprofit form and good arguments for providing tax subsidies to charities or donors to charities, but there is no good argument for making those tax subsidies available only to charities that adopt the nonprofit form. Consequently, the "for-profit charity" may well be a desirable institution. Currently, no such entity exists, but the reason is surely discriminatory tax treatment; the charitable activities of many commercial firms suggest that in the absence of discriminatory tax treatment for-profit charities would flourish. Current tax benefits for charitable nonprofits should be extended to for-profit charities, and to the charitable activities of for-profit commercial firms.
{"title":"The Case for For-Profit Charities","authors":"E. Posner, A. Malani","doi":"10.2139/SSRN.928976","DOIUrl":"https://doi.org/10.2139/SSRN.928976","url":null,"abstract":"Nonprofit firms may not distribute profits to owners but instead must retain them or reinvest them. Nonprofits that are \"charitable organizations\" under Section 501(c)(3) of the tax code may receive donations from individuals who are allowed to deduct their donations from their income for tax purposes. We argue that the law should not link tax benefits to corporate form in this way. There may be good arguments for recognizing the nonprofit form and good arguments for providing tax subsidies to charities or donors to charities, but there is no good argument for making those tax subsidies available only to charities that adopt the nonprofit form. Consequently, the \"for-profit charity\" may well be a desirable institution. Currently, no such entity exists, but the reason is surely discriminatory tax treatment; the charitable activities of many commercial firms suggest that in the absence of discriminatory tax treatment for-profit charities would flourish. Current tax benefits for charitable nonprofits should be extended to for-profit charities, and to the charitable activities of for-profit commercial firms.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"93 1","pages":"2017"},"PeriodicalIF":2.6,"publicationDate":"2006-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67890999","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}
One of the central values of private ownership in liberal property thought is its freedom-guaranteeing function. The precise mechanism by which private property rights accomplish this guarantee, however, is frequently left unexplored. When theorists discuss the issue, they often identify property's liberty-securing quality with the power that property confers upon its owner to exit from society into the protective cocoon of his stuff. This mechanism of property as exit draws its strength from an implicit assumption that people are the sorts of beings that can withdraw from social relations into the cocoon of their property. But there are reasons to think that withdrawal would be very costly for most people. As a consequence, the power of property to facilitate exit may be substantially weaker than is often assumed. In addition, scholars' affinity for property's exit function has obscured the degree to which property works, not solely as a means of facilitating withdrawal, but also as a crucial mechanism for tying individuals into social groups.
{"title":"Property as Entrance","authors":"E. Peñalver","doi":"10.2139/ssrn.667508","DOIUrl":"https://doi.org/10.2139/ssrn.667508","url":null,"abstract":"One of the central values of private ownership in liberal property thought is its freedom-guaranteeing function. The precise mechanism by which private property rights accomplish this guarantee, however, is frequently left unexplored. When theorists discuss the issue, they often identify property's liberty-securing quality with the power that property confers upon its owner to exit from society into the protective cocoon of his stuff. This mechanism of property as exit draws its strength from an implicit assumption that people are the sorts of beings that can withdraw from social relations into the cocoon of their property. But there are reasons to think that withdrawal would be very costly for most people. As a consequence, the power of property to facilitate exit may be substantially weaker than is often assumed. In addition, scholars' affinity for property's exit function has obscured the degree to which property works, not solely as a means of facilitating withdrawal, but also as a crucial mechanism for tying individuals into social groups.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"91 1","pages":"1889"},"PeriodicalIF":2.6,"publicationDate":"2005-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67789407","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}
I. THE IMPORTANCE OF OPTION CONTRACTS ............................ 2191 A. Special Doctrinal Treatment of Option Contracts............ 2192 1. Consideration and Mutuality........................................ 2192 2. Offer and Acceptance.................................................... 2196 3. Performance, Breach, and Damages ........................... 2198 a. Anticipatory Repudiation ....................................... 2198 b. Duty to Mitigate....................................................... 2199 c. Liquidated Damages and Penalties ....................... 2200 B. Remedial Rules Generally................................................... 2201 II. A THEORETICAL ACCOUNT OF OPTION DESIGN.................... 2205 A. Three Essential Terms: Option Premium, Strike Price, and Option Life ................................................................... 2205 B. The Relationship Among Option Premium, Strike Price, and Option Life ................................................................... 2207 C. Efficient Option Design ...................................................... 2211 III. DETERMINANTS OF COMPARATIVE ADVANTAGE IN OPTIONS TRADING..................................................................... 2212 A. Nonefficiency Considerations............................................. 2212 1. Bounded Rationality ..................................................... 2212 2. Market Exclusion .......................................................... 2214 3. Regulatory Arbitrage..................................................... 2216 B. Efficiency Considerations ................................................... 2217 1. Differential Beliefs About the Future or Differential Risk Aversion................................................................. 2217 2. Ex Post Incentives ......................................................... 2218 C. Mixed Explanations............................................................. 2221 1. Ex Ante Information Signaling .................................... 2222
{"title":"The Option Element in Contracting","authors":"A. Katz","doi":"10.2307/1515643","DOIUrl":"https://doi.org/10.2307/1515643","url":null,"abstract":"I. THE IMPORTANCE OF OPTION CONTRACTS ............................ 2191 A. Special Doctrinal Treatment of Option Contracts............ 2192 1. Consideration and Mutuality........................................ 2192 2. Offer and Acceptance.................................................... 2196 3. Performance, Breach, and Damages ........................... 2198 a. Anticipatory Repudiation ....................................... 2198 b. Duty to Mitigate....................................................... 2199 c. Liquidated Damages and Penalties ....................... 2200 B. Remedial Rules Generally................................................... 2201 II. A THEORETICAL ACCOUNT OF OPTION DESIGN.................... 2205 A. Three Essential Terms: Option Premium, Strike Price, and Option Life ................................................................... 2205 B. The Relationship Among Option Premium, Strike Price, and Option Life ................................................................... 2207 C. Efficient Option Design ...................................................... 2211 III. DETERMINANTS OF COMPARATIVE ADVANTAGE IN OPTIONS TRADING..................................................................... 2212 A. Nonefficiency Considerations............................................. 2212 1. Bounded Rationality ..................................................... 2212 2. Market Exclusion .......................................................... 2214 3. Regulatory Arbitrage..................................................... 2216 B. Efficiency Considerations ................................................... 2217 1. Differential Beliefs About the Future or Differential Risk Aversion................................................................. 2217 2. Ex Post Incentives ......................................................... 2218 C. Mixed Explanations............................................................. 2221 1. Ex Ante Information Signaling .................................... 2222","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"2187"},"PeriodicalIF":2.6,"publicationDate":"2004-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1515643","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68980864","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 Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, Lawrence Lessig warns that the health of the "environment of creativity" has been endangered by the combination of changes in intellectual property law, increased concentration of media ownership and transformations in technology. Lessig maintains that what we face is akin to an environmental crisis, with the crucial difference being that cultural rather than physical resources are under siege. Curiously, though, the world depicted in Free Culture is at odds with Lessig's dystopian vision, for it is a vibrant place where technological innovation, creative endeavors, and public discussion of political issues flourish. To be sure, real problems exist, and addressing them will require a number of difficult determinations, including whether the hazards posed by new technologies outweigh their benefits and how best to ensure that property rights evolve to promote the public interest. Regrettably, however, Free Culture promises to be of little help in crafting useful solutions to these problems. In writing Free Culture, Lessig has set himself a high hurdle, namely to convince his readership that the saga of intellectual property in recent decades represents nothing less than a modern-day Miltonian epic: Paradise was lost when a property rights Eden was infested by the serpent of venal corporate interests, but might be regained through adherence to the reform program outlined in Free Culture. Lessig fails to clear this hurdle for the simple reason that, taken together, the stories he offers in support of his thesis tell a richer, more complicated, and ultimately more interesting tale than the one he has in mind.
{"title":"Lawrence Lessig's Dystopian Vision","authors":"J. Mahoney","doi":"10.2307/1515645","DOIUrl":"https://doi.org/10.2307/1515645","url":null,"abstract":"In Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, Lawrence Lessig warns that the health of the \"environment of creativity\" has been endangered by the combination of changes in intellectual property law, increased concentration of media ownership and transformations in technology. Lessig maintains that what we face is akin to an environmental crisis, with the crucial difference being that cultural rather than physical resources are under siege. Curiously, though, the world depicted in Free Culture is at odds with Lessig's dystopian vision, for it is a vibrant place where technological innovation, creative endeavors, and public discussion of political issues flourish. To be sure, real problems exist, and addressing them will require a number of difficult determinations, including whether the hazards posed by new technologies outweigh their benefits and how best to ensure that property rights evolve to promote the public interest. Regrettably, however, Free Culture promises to be of little help in crafting useful solutions to these problems. In writing Free Culture, Lessig has set himself a high hurdle, namely to convince his readership that the saga of intellectual property in recent decades represents nothing less than a modern-day Miltonian epic: Paradise was lost when a property rights Eden was infested by the serpent of venal corporate interests, but might be regained through adherence to the reform program outlined in Free Culture. Lessig fails to clear this hurdle for the simple reason that, taken together, the stories he offers in support of his thesis tell a richer, more complicated, and ultimately more interesting tale than the one he has in mind.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"2305"},"PeriodicalIF":2.6,"publicationDate":"2004-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1515645","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68980935","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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