Many of the pressing policy issues facing us today require confronting the unknown and making difficult choices in the face of limited information. Economists distinguish between “uncertainty�? (where the likelihood of the peril is non-quantifiable) and “risk�? (where the likelihood is quantifiable). Uncertainty is particularly pernicious in situations where catastrophic outcomes are possible, but conventional decision tools are not equipped to cope with these potentially disastrous results. This Article describes new analytic tools for assessing potential catastrophic outcomes and applies them to some key policy issues: controlling greenhouse gases, adapting to unavoidable climate change, regulating nanotechnology, dealing with long-lived nuclear wastes, and controlling financial instability. More specifically, economic modeling and policy analysis are often based on the assumption that extreme harms are highly unlikely, in the technical sense that the “tail�? of the probability distributions is “thin�? – in other words, that it approaches rapidly to zero. Thin tails allow extreme risks to be given relatively little weight. A growing body of research, however, focuses on the possibility of fat tails, which are common in systems with feedback between different components. As it turns out, fat tails and uncertainty often go together. Economic theories of “ambiguity�? deal at a more general level with situations where multiple plausible models of reality confront a decision maker. Ambiguity theories are useful in considering systems with fat tails and in other situations where the probabilities are simply difficult to quantify. The Article considers both the policy implications of fat tails and the use of ambiguity theories such as α-maxmin.
{"title":"Uncertainty","authors":"D. Farber","doi":"10.2139/ssrn.1555343","DOIUrl":"https://doi.org/10.2139/ssrn.1555343","url":null,"abstract":"Many of the pressing policy issues facing us today require confronting the unknown and making difficult choices in the face of limited information. Economists distinguish between “uncertainty�? (where the likelihood of the peril is non-quantifiable) and “risk�? (where the likelihood is quantifiable). Uncertainty is particularly pernicious in situations where catastrophic outcomes are possible, but conventional decision tools are not equipped to cope with these potentially disastrous results. This Article describes new analytic tools for assessing potential catastrophic outcomes and applies them to some key policy issues: controlling greenhouse gases, adapting to unavoidable climate change, regulating nanotechnology, dealing with long-lived nuclear wastes, and controlling financial instability. More specifically, economic modeling and policy analysis are often based on the assumption that extreme harms are highly unlikely, in the technical sense that the “tail�? of the probability distributions is “thin�? – in other words, that it approaches rapidly to zero. Thin tails allow extreme risks to be given relatively little weight. A growing body of research, however, focuses on the possibility of fat tails, which are common in systems with feedback between different components. As it turns out, fat tails and uncertainty often go together. Economic theories of “ambiguity�? deal at a more general level with situations where multiple plausible models of reality confront a decision maker. Ambiguity theories are useful in considering systems with fat tails and in other situations where the probabilities are simply difficult to quantify. The Article considers both the policy implications of fat tails and the use of ambiguity theories such as α-maxmin.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"54 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2010-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84742001","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 : 2010-01-22DOI: 10.1021/cen-v030n008.p762
Lisa R. Pruitt
This is a contribution to a collection of autobiographical essays, “One-L Revisited,” in which authors reflect on their experiences as first-year law students. The author of this essay recounts her experiences at the University of Arkansas School of Law (1986-87). She frames her recollections primarily in relation to her rural, working-class background and her later-acquired feminist politics.
{"title":"How You Gonna‘ Keep Her Down on the Farm . . .","authors":"Lisa R. Pruitt","doi":"10.1021/cen-v030n008.p762","DOIUrl":"https://doi.org/10.1021/cen-v030n008.p762","url":null,"abstract":"This is a contribution to a collection of autobiographical essays, “One-L Revisited,” in which authors reflect on their experiences as first-year law students. The author of this essay recounts her experiences at the University of Arkansas School of Law (1986-87). She frames her recollections primarily in relation to her rural, working-class background and her later-acquired feminist politics.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"276 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2010-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76192773","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}
Advertising is an important revenue source for many publishers of information and entertainment-oriented good and services on the Internet, television, and print media. The publication design must balance the revenue opportunity from advertising with its impact on consumers' perception of the publisher. We study a publisher's optimal strategy when viewers' attitude towards advertising friendly or hostile - varies along the amount of advertising and on the publisher's programming quality. The publisher's program quality impacts how much flexibility it has in balancing advertising revenues with making the best product for its subscribers. Among competing publishers, the one with higher programming quality, or larger consumer base, has more flexibility in setting its advertising level. Regulation that limits publishers' advertising levels is not necessarily in the subscribers' interest: even a monopoly publisher may offer too little advertising relative to the consumer ideal; this can happen when advertising enhances the consumer experience but is too costly to attract. We explain how the potential to generate non-advertising revenues from subscribers affects the publisher's advertising level, and how it might cause variation in advertising levels among publishers who experience the same consumer attitude towards advertising.
{"title":"Designing Information and Entertainment-Oriented Publications: Balancing Advertising and Programming Content","authors":"H. Bhargava, Juan Feng","doi":"10.2139/ssrn.1381005","DOIUrl":"https://doi.org/10.2139/ssrn.1381005","url":null,"abstract":"Advertising is an important revenue source for many publishers of information and entertainment-oriented good and services on the Internet, television, and print media. The publication design must balance the revenue opportunity from advertising with its impact on consumers' perception of the publisher. We study a publisher's optimal strategy when viewers' attitude towards advertising friendly or hostile - varies along the amount of advertising and on the publisher's programming quality. The publisher's program quality impacts how much flexibility it has in balancing advertising revenues with making the best product for its subscribers. Among competing publishers, the one with higher programming quality, or larger consumer base, has more flexibility in setting its advertising level. Regulation that limits publishers' advertising levels is not necessarily in the subscribers' interest: even a monopoly publisher may offer too little advertising relative to the consumer ideal; this can happen when advertising enhances the consumer experience but is too costly to attract. We explain how the potential to generate non-advertising revenues from subscribers affects the publisher's advertising level, and how it might cause variation in advertising levels among publishers who experience the same consumer attitude towards advertising.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"65 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2009-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74208782","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}
For a century, Congress has sought to protect authors and their families by allowing them to grant their copyrights for exploitation and then, decades later, recapture those same rights. After judicial interpretation of the 1909 Act frustrated this intent, Congress spoke unambiguously in 1976: Termination of the grant may be effected notwithstanding any agreement to the contrary . . . . 17 U.S.C. Section 304(c)(5). Yet, in Penguin Group (USA) Inc. v. Steinbeck, 537 F.3d 193 (2d Cir. 2008), the Second Circuit eviscerated that clear Congressional command by enabling a grantee to renegotiate the terms of the grant so as to frustrate recapture by the author's family. This ruling follows a Ninth Circuit decision similarly allowing a grantee to go through the charade of rescinding and regranting a copyright license for the express purpose of blocking the author's family members from exercising their statutory termination rights. Milne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1046 (9th Cir. 2005). Notwithstanding the unequivocal meaning of the word any in Section 304(c)(5), explicated unmistakably in the legislative history, these decisions invite grantees to engage in all manner of opportunistic behavior to frustrate Congress' clearly expressed language and intent. In this amicus brief supporting grant of certiorari by the Supreme Court in the Steinbeck case, the authors argue that the Court can restore the intergenerational equity that Congress legislated and remove the cloud now hanging over innumerable copyrighted works.
{"title":"Judicial Resistance to Copyright Law's Inalienable Right to Terminate Transfers","authors":"Peter S. Menell, D. Nimmer","doi":"10.2139/SSRN.1355678","DOIUrl":"https://doi.org/10.2139/SSRN.1355678","url":null,"abstract":"For a century, Congress has sought to protect authors and their families by allowing them to grant their copyrights for exploitation and then, decades later, recapture those same rights. After judicial interpretation of the 1909 Act frustrated this intent, Congress spoke unambiguously in 1976: Termination of the grant may be effected notwithstanding any agreement to the contrary . . . . 17 U.S.C. Section 304(c)(5). Yet, in Penguin Group (USA) Inc. v. Steinbeck, 537 F.3d 193 (2d Cir. 2008), the Second Circuit eviscerated that clear Congressional command by enabling a grantee to renegotiate the terms of the grant so as to frustrate recapture by the author's family. This ruling follows a Ninth Circuit decision similarly allowing a grantee to go through the charade of rescinding and regranting a copyright license for the express purpose of blocking the author's family members from exercising their statutory termination rights. Milne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1046 (9th Cir. 2005). Notwithstanding the unequivocal meaning of the word any in Section 304(c)(5), explicated unmistakably in the legislative history, these decisions invite grantees to engage in all manner of opportunistic behavior to frustrate Congress' clearly expressed language and intent. In this amicus brief supporting grant of certiorari by the Supreme Court in the Steinbeck case, the authors argue that the Court can restore the intergenerational equity that Congress legislated and remove the cloud now hanging over innumerable copyrighted works.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"49 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2009-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91065659","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}
Using three case studies, Syracuse New York, Memphis Tennessee and, Interstate 105 in Los Angeles, I trace the changing regulatory environment for decision-making on interstate highway construction within inner cities in the United States. Syracuse saw construction before the evolution of a modern environmental, historical, transportation and housing law; in Memphis the freeway was stopped by citizen actions resulting in judicial interpretations of federal highway law; and the Los Angeles resolution was molded by a consent decree entered after a law suit brought by a new public interest law firm.
{"title":"Artere Urbane: Tre Diversi Esperimenti Nelle Citta Americane (Urban Freeway Decisions: Different Outcomes and Explanations in Three American Cities)","authors":"J. Dimento","doi":"10.2139/SSRN.2037562","DOIUrl":"https://doi.org/10.2139/SSRN.2037562","url":null,"abstract":"Using three case studies, Syracuse New York, Memphis Tennessee and, Interstate 105 in Los Angeles, I trace the changing regulatory environment for decision-making on interstate highway construction within inner cities in the United States. Syracuse saw construction before the evolution of a modern environmental, historical, transportation and housing law; in Memphis the freeway was stopped by citizen actions resulting in judicial interpretations of federal highway law; and the Los Angeles resolution was molded by a consent decree entered after a law suit brought by a new public interest law firm.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"60 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89491938","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}
Psychoactive drugs are an especially rich topic for criminological scholarship. The topic is inherently multidisciplinary, involving neuroscience, psychology, cultural anthropology, history, microeconomics, and moral philosophy. And drug policy instruments extend beyond the usual arsenal (special and general deterrence, incapacitation, rehabilitation, retribution, and persuasion) to include social work, medicine, psychotherapy, social support groups, drug maintenance clinics, and mass media campaigns. In order to cover such a vast topic in a limited space, it is necessary to be selective, making some general observations and pointing the reader to good secondary sources. We focus primarily on the currently illicit psychoactives, giving little attention to alcohol or tobacco. We trust that every educated reader will be familiar with the arguments for analyzing licits and illicits together, and we assure skeptics that we will not neglect the core question of how prohibition shapes drug behavior and drug outcomes.
{"title":"Drug Use and Drug Policy in a Prohibition Regime","authors":"R. MacCoun, Karin D. Martin","doi":"10.2139/ssrn.1118460","DOIUrl":"https://doi.org/10.2139/ssrn.1118460","url":null,"abstract":"Psychoactive drugs are an especially rich topic for criminological scholarship. The topic is inherently multidisciplinary, involving neuroscience, psychology, cultural anthropology, history, microeconomics, and moral philosophy. And drug policy instruments extend beyond the usual arsenal (special and general deterrence, incapacitation, rehabilitation, retribution, and persuasion) to include social work, medicine, psychotherapy, social support groups, drug maintenance clinics, and mass media campaigns. In order to cover such a vast topic in a limited space, it is necessary to be selective, making some general observations and pointing the reader to good secondary sources. We focus primarily on the currently illicit psychoactives, giving little attention to alcohol or tobacco. We trust that every educated reader will be familiar with the arguments for analyzing licits and illicits together, and we assure skeptics that we will not neglect the core question of how prohibition shapes drug behavior and drug outcomes.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"18 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2008-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77356514","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}
Embedded networked sensing, having successfully shifted from the lab to the environment, is primed for a more contentious move to the city to where citizens will likely be the target of data collection. This transition will warrant careful study and touch on issues that go far beyond the scientific realm.
{"title":"Urban sensing: out of the woods","authors":"D. Cuff, Mark H. Hansen, Jerry Kang","doi":"10.1145/1325555.1325562","DOIUrl":"https://doi.org/10.1145/1325555.1325562","url":null,"abstract":"Embedded networked sensing, having successfully shifted from the lab to the environment, is primed for a more contentious move to the city to where citizens will likely be the target of data collection. This transition will warrant careful study and touch on issues that go far beyond the scientific realm.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"23 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78154807","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In response to Matthew T. Bodie’s article, “Information and the Market for Union Representation,” 94 Va. L. Rev. 1 (2008), this brief article considers the wisdom of treating union representation processes as a market in which disclosure of information should be mandated. This article examines the implication of Bodie’s metaphor that the decision to choose a union is like a decision to purchase services in the market. Via this metaphor, Bodie’s approach requires that we imagine the employer as the “anti-seller,” an entity that considers a consumer not buying an item to be in its economic interest. In most areas of law in which a consumer purchases goods or services, the law obligates the seller to disclose. Labor law, however, involves two components in the provision of information: access and accuracy. Depending on whether one thinks the main problem with the market for union services is inequality of access or misleading information, one might propose different legal reforms. One difficulty in designing appropriate legal rules to address whatever information problems exist in union representation elections is that the reasons for the information problems in union organizing are different than the usual ones. While Professor Bodie does an admirable job of explaining why information matters, the problem will not significantly improve unless the status quo of misleading and one-sided information is rectified.
为了回应Matthew T. Bodie的文章，“信息和工会代表的市场”，94 Va. L. Rev. 1(2008)，这篇简短的文章考虑了将工会代表过程视为一个信息披露应该被强制执行的市场的智慧。本文考察了Bodie的比喻的含义，即选择工会的决定就像在市场上购买服务的决定。通过这个比喻，Bodie的方法要求我们把雇主想象成“反卖家”，一个认为消费者不购买商品符合其经济利益的实体。在消费者购买商品或服务的大多数法律领域，法律规定卖方有义务披露。然而，劳动法涉及信息提供的两个组成部分:获取和准确性。根据人们认为工会服务市场的主要问题是准入不平等还是误导性信息，人们可能会提出不同的法律改革。设计适当的法律规则来解决工会代表选举中存在的任何信息问题的一个困难是，工会组织中出现信息问题的原因与通常的原因不同。虽然博迪教授在解释为什么信息很重要方面做得令人钦佩，但除非纠正误导性和片面信息的现状，否则这个问题不会得到显著改善。
{"title":"Response: Thoughts on Treating Union Representation Processes as a Market in Need of Legally Required Disclosure of Information","authors":"Catherine L. Fisk","doi":"10.2139/SSRN.2042282","DOIUrl":"https://doi.org/10.2139/SSRN.2042282","url":null,"abstract":"In response to Matthew T. Bodie’s article, “Information and the Market for Union Representation,” 94 Va. L. Rev. 1 (2008), this brief article considers the wisdom of treating union representation processes as a market in which disclosure of information should be mandated. This article examines the implication of Bodie’s metaphor that the decision to choose a union is like a decision to purchase services in the market. Via this metaphor, Bodie’s approach requires that we imagine the employer as the “anti-seller,” an entity that considers a consumer not buying an item to be in its economic interest. In most areas of law in which a consumer purchases goods or services, the law obligates the seller to disclose. Labor law, however, involves two components in the provision of information: access and accuracy. Depending on whether one thinks the main problem with the market for union services is inequality of access or misleading information, one might propose different legal reforms. One difficulty in designing appropriate legal rules to address whatever information problems exist in union representation elections is that the reasons for the information problems in union organizing are different than the usual ones. While Professor Bodie does an admirable job of explaining why information matters, the problem will not significantly improve unless the status quo of misleading and one-sided information is rectified.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"3 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80526177","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 Supreme Court's landmark decision in Massachusetts v. EPA requiring the federal government to reconsider its refusal to regulate greenhouse gases as an air pollutant is only the most recent example of judicial review of an agency's decision not to take a regulatory action. Despite the importance of this type of judicial review, it has received little analysis by scholars, and the caselaw in the field is confused. Accordingly, there are serious questions about the nature and scope of judicial review of agency decisions not to act - with some scholars and leading judges calling for sharply limiting this type of judicial review to protect "individual liberty." This paper examines an alternative set of principles to guide judicial review of agency decisions not to regulate - a trade-off between judicial deference to agency decisions as to how to allocate their resources and judicial enforcement of clear Congressional commands to agencies. This framework provides guidance for understanding how and why courts should be intervening in situations where agencies have refused to act. Moreover, the trade-off helps explain both varying levels of judicial deference outside the context of judicial review of agency inaction and why the Court has found some agency decisions reviewable and others unreviewable - including the Court's decision in Massachusetts v. EPA that agency refusals to regulate are reviewable. Finally, when courts strike the proper balance between judicial deference to agency resource allocation and enforcement of clear Congressional commands they will be able to counteract public choice failures in the implementation of regulatory programs.
{"title":"The Importance of Resource Allocation in Administrative Law: A Case Study of Judicial Review of Agency Inaction under the Administrative Procedure Act","authors":"Eric Biber","doi":"10.2139/SSRN.981941","DOIUrl":"https://doi.org/10.2139/SSRN.981941","url":null,"abstract":"The Supreme Court's landmark decision in Massachusetts v. EPA requiring the federal government to reconsider its refusal to regulate greenhouse gases as an air pollutant is only the most recent example of judicial review of an agency's decision not to take a regulatory action. Despite the importance of this type of judicial review, it has received little analysis by scholars, and the caselaw in the field is confused. Accordingly, there are serious questions about the nature and scope of judicial review of agency decisions not to act - with some scholars and leading judges calling for sharply limiting this type of judicial review to protect \"individual liberty.\" This paper examines an alternative set of principles to guide judicial review of agency decisions not to regulate - a trade-off between judicial deference to agency decisions as to how to allocate their resources and judicial enforcement of clear Congressional commands to agencies. This framework provides guidance for understanding how and why courts should be intervening in situations where agencies have refused to act. Moreover, the trade-off helps explain both varying levels of judicial deference outside the context of judicial review of agency inaction and why the Court has found some agency decisions reviewable and others unreviewable - including the Court's decision in Massachusetts v. EPA that agency refusals to regulate are reviewable. Finally, when courts strike the proper balance between judicial deference to agency resource allocation and enforcement of clear Congressional commands they will be able to counteract public choice failures in the implementation of regulatory programs.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"22 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2007-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80372886","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}
With the rise of intellectual property in the modern economy, bankruptcy treatment of intellectual property assets has taken on ever greater importance. The law in this area must balance different approaches to asset management. Viewing the world from an ex ante perspective, intellectual property laws seek to foster investment in research and development. Freedom of contract plays a central role in maximizing the potential value of intellectual property by encouraging a robust licensing market to exploit the value of intellectual creativity. By contrast, the bankruptcy system generally views asset management from an ex post standpoint, focusing narrowly on how to maximize the value of a failing or failed enterprise. Thus, bankruptcy law affords trustees and debtors substantial leeway to rescind contracts and reorder the affairs of the failed entity. This article examines the rather complex rules governing the treatment of intellectual property assets in bankruptcy and suggests various reforms that could better promote economic efficiency.
{"title":"Bankruptcy Treatment of Intellectual Property Assets: An Economic Analysis","authors":"Peter S. Menell","doi":"10.2139/SSRN.969521","DOIUrl":"https://doi.org/10.2139/SSRN.969521","url":null,"abstract":"With the rise of intellectual property in the modern economy, bankruptcy treatment of intellectual property assets has taken on ever greater importance. The law in this area must balance different approaches to asset management. Viewing the world from an ex ante perspective, intellectual property laws seek to foster investment in research and development. Freedom of contract plays a central role in maximizing the potential value of intellectual property by encouraging a robust licensing market to exploit the value of intellectual creativity. By contrast, the bankruptcy system generally views asset management from an ex post standpoint, focusing narrowly on how to maximize the value of a failing or failed enterprise. Thus, bankruptcy law affords trustees and debtors substantial leeway to rescind contracts and reorder the affairs of the failed entity. This article examines the rather complex rules governing the treatment of intellectual property assets in bankruptcy and suggests various reforms that could better promote economic efficiency.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"44 6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82690570","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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