Pub Date : 2007-01-01DOI: 10.1007/978-3-211-69313-1_14
Brigitte Felderer, Ernst Strouhal
{"title":"Sleight-of-hand","authors":"Brigitte Felderer, Ernst Strouhal","doi":"10.1007/978-3-211-69313-1_14","DOIUrl":"https://doi.org/10.1007/978-3-211-69313-1_14","url":null,"abstract":"","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"57 2","pages":"201-216"},"PeriodicalIF":0.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"50998436","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The optimal scope of patent protection is an issue with which patent system observers have struggled for decades. Various patent doctrines have been recognized as tools for creating specific patent scopes and, as a result, implementing specific patent theories. One area of patent law that has not been addressed in the discussion on patent scope and theories is patent claim interpretation. This omission is particularly noteworthy because of the substantive role patent claims and the interpretation thereof play in the patent system, namely the framing of questions of patent infringement and validity. This Article will explore the not-yet-discussed relationship between claim interpretation methodology and patent scope. The discussion will focus on how changes in interpretation methodology affect patent scope, an aspect of methodologies that the Article identifies as their "claim scope paradigm." Introducing the claim scope paradigm concept is mainly beneficial for two reasons. First, identifying the claim scope paradigm allows different interpretation methodologies to be evaluated as to their impact on the substantive function of patent claims. A claim scope paradigm criterion represents a significant and worthwhile departure from the current standard of certainty used by courts and commentators. Second, recognizing claim scope paradigms facilitates the use of claim interpretation methodology as a patent policy lever. Interpretation methodologies can be highly effective levers, having the ability to inject patent policy at the most basic level of the patent process.
{"title":"Patent Claim Interpretation Methodologies and Their Claim Scope Paradigms","authors":"C. Cotropia","doi":"10.2139/SSRN.684249","DOIUrl":"https://doi.org/10.2139/SSRN.684249","url":null,"abstract":"The optimal scope of patent protection is an issue with which patent system observers have struggled for decades. Various patent doctrines have been recognized as tools for creating specific patent scopes and, as a result, implementing specific patent theories. One area of patent law that has not been addressed in the discussion on patent scope and theories is patent claim interpretation. This omission is particularly noteworthy because of the substantive role patent claims and the interpretation thereof play in the patent system, namely the framing of questions of patent infringement and validity. This Article will explore the not-yet-discussed relationship between claim interpretation methodology and patent scope. The discussion will focus on how changes in interpretation methodology affect patent scope, an aspect of methodologies that the Article identifies as their \"claim scope paradigm.\" Introducing the claim scope paradigm concept is mainly beneficial for two reasons. First, identifying the claim scope paradigm allows different interpretation methodologies to be evaluated as to their impact on the substantive function of patent claims. A claim scope paradigm criterion represents a significant and worthwhile departure from the current standard of certainty used by courts and commentators. Second, recognizing claim scope paradigms facilitates the use of claim interpretation methodology as a patent policy lever. Interpretation methodologies can be highly effective levers, having the ability to inject patent policy at the most basic level of the patent process.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"26 1","pages":"49"},"PeriodicalIF":0.0,"publicationDate":"2005-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.684249","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67799577","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Scholars have long questioned the political and constitutional legitimacy of the administrative state. By 1980, a majority of Justices seemed to be poised to hold that large portions of the administrative state are unconstitutional. In 1984, the Court stepped back from that abyss and took a major step toward legitimating and democratizing the administrative state. The Court instructed lower courts to defer to any reasonable agency interpretation of an ambiguous agency-administered statute. The Court based this doctrine of deference on the superior political accountability of agencies. Henceforth, politically-unaccountable judges were prohibited from substituting their policy preferences for those of politically-accountable agencies. The Court recognized that agencies are politically accountable to the people because they are subject to the control of the elected President. The Court's 1984 effort to democratize the administrative state has fallen far short of its potential because of temporal problems with the manner in which the Supreme Court defines and implements the deference doctrine the Court announced in 1984 and the other two doctrines that require courts to defer to agency interpretations of agency-administered texts. The most important of those deference doctrines is explicitly premised on the Court's understandable belief that policy decisions should be made by the politically accountable President rather than by politically unaccountable judges. Yet, the Court's present method of implementing the deference doctrines has two unfortunate effects. First, in a high proportion of cases, there is a lag of four to eight years between the time that a President takes office and the time when a court is willing to acquiesce in implementation of the policies preferred by the President. In other words, each President is required to implement the policies preferred by his predecessor for at least one term and perhaps even for two terms. Second, in some important situations, regulatees are required to incur large costs in enforcement actions to comply with interpretations of agency rules that have already been rejected by the incumbent President by the time courts impose the costs on the regulatees and that were disavowed by the agency at the time the regulatees engaged in the conduct that is the basis for the enforcement actions. Professor Pierce explains why he believes that these results are unacceptable, and he proposes four changes in the Court's present methods of implementing the deference doctrines that will eliminate these effects and that will create a more democratic and constitutionally legitimate administrative state in which Presidents actually have the power to make changes in policy within the statutory boundaries set by Congress.
{"title":"Democratizing the Administrative State","authors":"R. J. Pierce","doi":"10.2139/SSRN.839227","DOIUrl":"https://doi.org/10.2139/SSRN.839227","url":null,"abstract":"Scholars have long questioned the political and constitutional legitimacy of the administrative state. By 1980, a majority of Justices seemed to be poised to hold that large portions of the administrative state are unconstitutional. In 1984, the Court stepped back from that abyss and took a major step toward legitimating and democratizing the administrative state. The Court instructed lower courts to defer to any reasonable agency interpretation of an ambiguous agency-administered statute. The Court based this doctrine of deference on the superior political accountability of agencies. Henceforth, politically-unaccountable judges were prohibited from substituting their policy preferences for those of politically-accountable agencies. The Court recognized that agencies are politically accountable to the people because they are subject to the control of the elected President. The Court's 1984 effort to democratize the administrative state has fallen far short of its potential because of temporal problems with the manner in which the Supreme Court defines and implements the deference doctrine the Court announced in 1984 and the other two doctrines that require courts to defer to agency interpretations of agency-administered texts. The most important of those deference doctrines is explicitly premised on the Court's understandable belief that policy decisions should be made by the politically accountable President rather than by politically unaccountable judges. Yet, the Court's present method of implementing the deference doctrines has two unfortunate effects. First, in a high proportion of cases, there is a lag of four to eight years between the time that a President takes office and the time when a court is willing to acquiesce in implementation of the policies preferred by the President. In other words, each President is required to implement the policies preferred by his predecessor for at least one term and perhaps even for two terms. Second, in some important situations, regulatees are required to incur large costs in enforcement actions to comply with interpretations of agency rules that have already been rejected by the incumbent President by the time courts impose the costs on the regulatees and that were disavowed by the agency at the time the regulatees engaged in the conduct that is the basis for the enforcement actions. Professor Pierce explains why he believes that these results are unacceptable, and he proposes four changes in the Court's present methods of implementing the deference doctrines that will eliminate these effects and that will create a more democratic and constitutionally legitimate administrative state in which Presidents actually have the power to make changes in policy within the statutory boundaries set by Congress.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"352 1","pages":"559"},"PeriodicalIF":0.0,"publicationDate":"2005-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.839227","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67840266","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article investigates policies that are responsive to crime in disadvantaged, urban neighborhoods from a community-based context. The vehicle is an analysis of a community-wide prayer vigil held in Chicago in May of 1997. The vigil resulted from a collaboration between the Chicago Police Department and hundreds of (mostly) African-American churches on Chicago's West Side. Strikingly, the local police district's commander facilitated the vigil. We explain the sociological and political significance of this collaboration by drawing upon the "Chicago School" of urban sociology and demonstrating theoretically and empirically the potential for the collaboration, through the integration of key community institutions, to promote community capacity to resist crime and to complete other goals and projects of residents. The article's end addresses constitutional questions. If collaboration between churches and the police through religious activity enhances the community efficacy of poor minority neighborhoods, is there any way to reconcile the benefits of such activity with constitutional concerns about religious establishment? We focus on the extent to which African Americans have been able to influence this jurisprudence through litigation rather than the internal structure of Establishment Clause jurisprudence. A review of the litigation reveals the particular nature of the involvement of African Americans in the development of Establishment Clause jurisprudence, and it demonstrates plainly the extent to which judicial sanction of church-state interaction has had, and continues to have, important racial consequences. African Americans, through representative litigating institutions, have consistently recognized the disparate impact of church-state partnerships, but the Court has never acknowledged the non-religious implications of its Establishment Clause decisions. As a result, Establishment Clause jurisprudence is disconnected from the realities of disparate impact, and that is potentially problematic for African-American communities. We believe excavation of the realities of disparate impact is critical in assessing the extent to which modern church state partnerships should be allowed or even blessed by the state.
{"title":"When 2 or 3 Come Together","authors":"T. Meares, Kelsi Brown Corkran","doi":"10.2139/SSRN.835664","DOIUrl":"https://doi.org/10.2139/SSRN.835664","url":null,"abstract":"This article investigates policies that are responsive to crime in disadvantaged, urban neighborhoods from a community-based context. The vehicle is an analysis of a community-wide prayer vigil held in Chicago in May of 1997. The vigil resulted from a collaboration between the Chicago Police Department and hundreds of (mostly) African-American churches on Chicago's West Side. Strikingly, the local police district's commander facilitated the vigil. We explain the sociological and political significance of this collaboration by drawing upon the \"Chicago School\" of urban sociology and demonstrating theoretically and empirically the potential for the collaboration, through the integration of key community institutions, to promote community capacity to resist crime and to complete other goals and projects of residents. The article's end addresses constitutional questions. If collaboration between churches and the police through religious activity enhances the community efficacy of poor minority neighborhoods, is there any way to reconcile the benefits of such activity with constitutional concerns about religious establishment? We focus on the extent to which African Americans have been able to influence this jurisprudence through litigation rather than the internal structure of Establishment Clause jurisprudence. A review of the litigation reveals the particular nature of the involvement of African Americans in the development of Establishment Clause jurisprudence, and it demonstrates plainly the extent to which judicial sanction of church-state interaction has had, and continues to have, important racial consequences. African Americans, through representative litigating institutions, have consistently recognized the disparate impact of church-state partnerships, but the Court has never acknowledged the non-religious implications of its Establishment Clause decisions. As a result, Establishment Clause jurisprudence is disconnected from the realities of disparate impact, and that is potentially problematic for African-American communities. We believe excavation of the realities of disparate impact is critical in assessing the extent to which modern church state partnerships should be allowed or even blessed by the state.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"65 1","pages":"1315"},"PeriodicalIF":0.0,"publicationDate":"2005-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.835664","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67839239","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision","authors":"S. Calabresi, Stephanie Dotson Zimdahl","doi":"10.2139/SSRN.700176","DOIUrl":"https://doi.org/10.2139/SSRN.700176","url":null,"abstract":"","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"47 1","pages":"743-909"},"PeriodicalIF":0.0,"publicationDate":"2005-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.700176","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67805400","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2005-02-01DOI: 10.1093/acprof:oso/9780195368321.003.0007
R. Schapiro
The United States may have emerged as the first modern federation, (1) but federalism has since been widely copied elsewhere. (2) Federalism is no longer a political structure that is unique to the United States. An aspect of federalism in the United States that remains distinctive, however, is the existence of a fully developed dual court system. A national judiciary composed of trial and appellate courts co-exists with state judiciaries, which also have trial and appellate benches. Judges in the national courts are chosen by national bodies in accordance with national rules, and judges in state courts are chosen in each state in accordance with the state's rules. The existence of such parallel judicial structures is unusual among federalist nations. Most federalist systems rely on a single set of lower courts, commonly identified with the subnational units, to apply both national and subnational law. (3) In view of the existence of parallel state and federal judicial tracks, the allocation of issues between state and federal courts becomes an important concern. The different structural features of state and federal courts in the United States magnifies the importance of the choice. Among other characteristics, the electoral accountability of most state, but not federal, judges may lead the state and federal courts to develop different perspectives on issues, particularly those relating to hotly contested matters of public policy. (4) The existence of a dual court system creates the possibility of allocating cases based on the law at issue. Federal questions could be sent to federal court and state questions to state court, though of course cases raising both kinds of issues would pose allocational difficulties. Instead, in the United States, the jurisdictions of the state and federal courts overlap extensively. Issues of state law commonly arise in and are adjudicated by federal courts; issues of federal law commonly arise in and are adjudicated by state courts. Such intersystemic adjudication, by which I mean the interpretation by a court operating within one political system of laws of another political system, is pervasive. This Article seeks to situate intersystemic adjudication within the larger framework of federalism in the United States. Federalism today is characterized by a sharing of state and federal power, rather than by a rigid division between state and federal authority. Dual federalism, the idea that the states and the national government each enjoy independent and largely autonomous spheres of authority, has given way to other visions of federalism that contemplate a greater sharing of power. (5) Elsewhere, I have developed the concept of "polyphonic federalism" to describe the appropriate understanding of federalism in the contemporary United States. (6) Polyphonic federalism understands the state and federal governments to be sources of power that are distinctive, but not mutually exclusive. State and federal governments ser
{"title":"Interjurisdictional Enforcement of Rights in a Post-Erie World","authors":"R. Schapiro","doi":"10.1093/acprof:oso/9780195368321.003.0007","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780195368321.003.0007","url":null,"abstract":"The United States may have emerged as the first modern federation, (1) but federalism has since been widely copied elsewhere. (2) Federalism is no longer a political structure that is unique to the United States. An aspect of federalism in the United States that remains distinctive, however, is the existence of a fully developed dual court system. A national judiciary composed of trial and appellate courts co-exists with state judiciaries, which also have trial and appellate benches. Judges in the national courts are chosen by national bodies in accordance with national rules, and judges in state courts are chosen in each state in accordance with the state's rules. The existence of such parallel judicial structures is unusual among federalist nations. Most federalist systems rely on a single set of lower courts, commonly identified with the subnational units, to apply both national and subnational law. (3) In view of the existence of parallel state and federal judicial tracks, the allocation of issues between state and federal courts becomes an important concern. The different structural features of state and federal courts in the United States magnifies the importance of the choice. Among other characteristics, the electoral accountability of most state, but not federal, judges may lead the state and federal courts to develop different perspectives on issues, particularly those relating to hotly contested matters of public policy. (4) The existence of a dual court system creates the possibility of allocating cases based on the law at issue. Federal questions could be sent to federal court and state questions to state court, though of course cases raising both kinds of issues would pose allocational difficulties. Instead, in the United States, the jurisdictions of the state and federal courts overlap extensively. Issues of state law commonly arise in and are adjudicated by federal courts; issues of federal law commonly arise in and are adjudicated by state courts. Such intersystemic adjudication, by which I mean the interpretation by a court operating within one political system of laws of another political system, is pervasive. This Article seeks to situate intersystemic adjudication within the larger framework of federalism in the United States. Federalism today is characterized by a sharing of state and federal power, rather than by a rigid division between state and federal authority. Dual federalism, the idea that the states and the national government each enjoy independent and largely autonomous spheres of authority, has given way to other visions of federalism that contemplate a greater sharing of power. (5) Elsewhere, I have developed the concept of \"polyphonic federalism\" to describe the appropriate understanding of federalism in the contemporary United States. (6) Polyphonic federalism understands the state and federal governments to be sources of power that are distinctive, but not mutually exclusive. State and federal governments ser","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"46 1","pages":"1399"},"PeriodicalIF":0.0,"publicationDate":"2005-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60640712","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2005-02-01DOI: 10.1093/ACPROF:OSO/9780195368321.003.0002
Lawrence G. Sager
INTRODUCTION: HOT AND COOL FEDERALISM We can divide justifications for federalism-based structures of governance into hot federalism and cool federalism, with the distinction keyed to the reasons for resorting to a federal structure. By hot federalism, I mean the use of federal structures of governance to solve a type of problem that can arise when relatively settled and coherent social groups seek to create common structures of governance with other groups. Each group, we can imagine, is relatively homogeneous, with sufficient commonalities of experience, belief, commitment, language, and so on, to permit its members to enjoy a fair amount of trust and comfort with each other as members of a political community. But between or among the groups in question, there is substantially less commonality and substantially less trust and comfort with the prospect of becoming members of a single political community. The groups in question, nevertheless, wish to create or perpetuate some form of a trans-group union. This creates a problem in governance of the form: How can such groups work together in the face of the reluctance to concede full and ultimate authority to a trans-group governing entity? Hot federalism is very important in the contemporary world, and the prospects for its success in various modern contexts are remarkable and exciting. There are reasons, however, to be a bit wary of the capacity of federal structures to overcome problems of the hot federalism variety. In the United States, we certainly began with hot federalism concerns, driven substantially by the issue of slavery. But our federal structure in this regard was a great failure, giving on to the tragedy of the Civil War. Recently, we have seen Canada nearly come apart, and the success of the federal structure there still seems a close question. Europe is moving rapidly to the embrace of a trans-national, federal structure of governance--far more rapidly than many would have imagined remotely possible; but it is still too early to assess the ultimate success of this extraordinary transition. The miracle of South Africa's constitutionalized revolution has made important use of a federal structure to permit wary groups to join under a national rule of law; but here too, it is a bit early to draw conclusive lessons. And Switzerland has always seemed too small and quirky to offer lessons for the rest of the world. In any event, I mention hot federalism only to set it aside. It is cool federalism that interests me here. Cool federalism is substantially less ambitious. It aims not at making it possible for groups to coexist in governance structures that would otherwise be intolerably threatening, but at the more modest goal of making it possible for a political community to govern itself better--to get better, cheaper, or more widely accepted results than would otherwise be possible. The distinction is crude, but the rough idea is that cool federalism supports federal structures of gover
{"title":"Cool Federalism and the Life-Cycle of Moral Progress","authors":"Lawrence G. Sager","doi":"10.1093/ACPROF:OSO/9780195368321.003.0002","DOIUrl":"https://doi.org/10.1093/ACPROF:OSO/9780195368321.003.0002","url":null,"abstract":"INTRODUCTION: HOT AND COOL FEDERALISM We can divide justifications for federalism-based structures of governance into hot federalism and cool federalism, with the distinction keyed to the reasons for resorting to a federal structure. By hot federalism, I mean the use of federal structures of governance to solve a type of problem that can arise when relatively settled and coherent social groups seek to create common structures of governance with other groups. Each group, we can imagine, is relatively homogeneous, with sufficient commonalities of experience, belief, commitment, language, and so on, to permit its members to enjoy a fair amount of trust and comfort with each other as members of a political community. But between or among the groups in question, there is substantially less commonality and substantially less trust and comfort with the prospect of becoming members of a single political community. The groups in question, nevertheless, wish to create or perpetuate some form of a trans-group union. This creates a problem in governance of the form: How can such groups work together in the face of the reluctance to concede full and ultimate authority to a trans-group governing entity? Hot federalism is very important in the contemporary world, and the prospects for its success in various modern contexts are remarkable and exciting. There are reasons, however, to be a bit wary of the capacity of federal structures to overcome problems of the hot federalism variety. In the United States, we certainly began with hot federalism concerns, driven substantially by the issue of slavery. But our federal structure in this regard was a great failure, giving on to the tragedy of the Civil War. Recently, we have seen Canada nearly come apart, and the success of the federal structure there still seems a close question. Europe is moving rapidly to the embrace of a trans-national, federal structure of governance--far more rapidly than many would have imagined remotely possible; but it is still too early to assess the ultimate success of this extraordinary transition. The miracle of South Africa's constitutionalized revolution has made important use of a federal structure to permit wary groups to join under a national rule of law; but here too, it is a bit early to draw conclusive lessons. And Switzerland has always seemed too small and quirky to offer lessons for the rest of the world. In any event, I mention hot federalism only to set it aside. It is cool federalism that interests me here. Cool federalism is substantially less ambitious. It aims not at making it possible for groups to coexist in governance structures that would otherwise be intolerably threatening, but at the more modest goal of making it possible for a political community to govern itself better--to get better, cheaper, or more widely accepted results than would otherwise be possible. The distinction is crude, but the rough idea is that cool federalism supports federal structures of gover","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"46 1","pages":"1385"},"PeriodicalIF":0.0,"publicationDate":"2005-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60641067","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contrary to the predictions of conventional economic theory, firms often benefit by increasing consumer transaction costs. Firms do so by, for example, obscuring contract terms in a variety of ways, such as providing them after the contract is agreed to, enclosing them with other more interesting information, using small print, and omitting important terms from the written contract, such as fees for arbitration. Firms also take advantage of predictable consumer behaviors, such as the tendency of consumers not to seek rebates, to overload when provided with too much information, and to ignore dull information when overshadowed by vivid information. Using the approach of behavioral law and economics, the article provides examples of practices that inflate consumer transaction costs, explains why firms benefit from such practices, and describes the conditions giving rise to the practices. The piece also explains why inflated transaction costs are objectionable and explores the law's response to the problem of increased transaction costs. Finally, the article argues that law-makers should adopt a norm barring the unnecessary inflation of transaction costs and describes tests that law-makers can employ to implement such a norm.
{"title":"Towards a New Model of Consumer Protection: The Problem of Inflated Transaction Costs","authors":"Jeff Sovern","doi":"10.2139/SSRN.648052","DOIUrl":"https://doi.org/10.2139/SSRN.648052","url":null,"abstract":"Contrary to the predictions of conventional economic theory, firms often benefit by increasing consumer transaction costs. Firms do so by, for example, obscuring contract terms in a variety of ways, such as providing them after the contract is agreed to, enclosing them with other more interesting information, using small print, and omitting important terms from the written contract, such as fees for arbitration. Firms also take advantage of predictable consumer behaviors, such as the tendency of consumers not to seek rebates, to overload when provided with too much information, and to ignore dull information when overshadowed by vivid information. Using the approach of behavioral law and economics, the article provides examples of practices that inflate consumer transaction costs, explains why firms benefit from such practices, and describes the conditions giving rise to the practices. The piece also explains why inflated transaction costs are objectionable and explores the law's response to the problem of increased transaction costs. Finally, the article argues that law-makers should adopt a norm barring the unnecessary inflation of transaction costs and describes tests that law-makers can employ to implement such a norm.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"47 1","pages":"1635"},"PeriodicalIF":0.0,"publicationDate":"2005-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67785553","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Weblogs, or blogs, have proliferated and developed rapidly in recent years, and have attracted significant attention. Moreover, blogs have started to generate significant legal issues. Yet there is so far no coherent economic framework for addressing those issues. This article begins to develop such a framework. Building on blogs’ technical features, it identifies the unique aspects of blogs that should have legal ramifications. It then briefly applies this framework to a variety of legal issues. INITIAL REFLECTIONS ON THE LAW AND ECONOMICS OF BLOGGING Larry E. Ribstein* University of Illinois College of Law April 4, 2005 Abstract Weblogs, or blogs, have proliferated and developed rapidly in recent years, and have attracted significant attention. Moreover, blogs have started to generate significant legal issues. Yet there is so far no coherent economic framework for addressing those issues. This article begins to develop such a framework. Building on blogs’ technical features, it identifies the unique aspects of blogs that should have legal ramifications. It then briefly applies this framework to a variety of legal issues. * I am indebted to comments on the initial blog version of this paper posted on www.ideoblog.org March 21, 2005, and to comments at a workshop at the University of Illinois College of Law, March 29, 2005.
{"title":"Initial Reflections on the Law and Economics of Blogging","authors":"Larry E. Ribstein","doi":"10.2139/ssrn.700961","DOIUrl":"https://doi.org/10.2139/ssrn.700961","url":null,"abstract":"Weblogs, or blogs, have proliferated and developed rapidly in recent years, and have attracted significant attention. Moreover, blogs have started to generate significant legal issues. Yet there is so far no coherent economic framework for addressing those issues. This article begins to develop such a framework. Building on blogs’ technical features, it identifies the unique aspects of blogs that should have legal ramifications. It then briefly applies this framework to a variety of legal issues. INITIAL REFLECTIONS ON THE LAW AND ECONOMICS OF BLOGGING Larry E. Ribstein* University of Illinois College of Law April 4, 2005 Abstract Weblogs, or blogs, have proliferated and developed rapidly in recent years, and have attracted significant attention. Moreover, blogs have started to generate significant legal issues. Yet there is so far no coherent economic framework for addressing those issues. This article begins to develop such a framework. Building on blogs’ technical features, it identifies the unique aspects of blogs that should have legal ramifications. It then briefly applies this framework to a variety of legal issues. * I am indebted to comments on the initial blog version of this paper posted on www.ideoblog.org March 21, 2005, and to comments at a workshop at the University of Illinois College of Law, March 29, 2005.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67805472","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Medical research oversight from the corporate governance perspective: comparing institutional review boards and corporate boards.","authors":"Richard S Saver","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"46 2","pages":"619-730"},"PeriodicalIF":0.0,"publicationDate":"2004-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26442705","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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