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Abstract:
Intermediaries, like real estate agents, Consumer Reports, and Zagats, have long helped buyers to identify their most suitable options. Now, the combination of databases and the Internet enables them to serve consumers dramatically more effectively. This article begins by offering a three-part framework for understanding the evolving forms of selection assistance. It then focuses on numerous potential obstacles that could prevent shoppers from enjoying the full benefits of these developing technologies. While concluding that adjustments to business strategies and the enforcement of existing laws can effectively overcome most of these impediments, the article identifies several areas where proactive government action may be desirable, such as to prevent the emergence of anticompetitive entry barriers.

E-commerce, competition, entry barriers, natural monopoly, collaborative filtering, comparison shopping, infomediaries, search costs, switching costs

Abstract:
[Note: the substantially revised published version of this article is available at www.ssrn.com/absract=489762]

This article questions whether copyright law's prohibition against unauthorized copying and sales is either necessary or beneficial to the production and dissemination of creative content. Building on the thesis of Stephen Breyer's 1970 Harv. L. Rev. article, The Uneasy Case for Copyright, it questions the necessity of copyright by carefully identifying and explaining how new technologies and social norms provide many viable business models for financing new creations without the need for the current broad copyright protection. More significantly, it contends that, in the current lottery-like media entertainment environment, the higher revenues that copyright law enables the most popular creations to generate are generally dissipated on promotional efforts (rent seeking), which tend to drown out marginal creations. Thus, current copyright law may actually reduce the production of new creations. As background, the article reviews the six categories of costs that must be covered to enable content to be published effectively.

Abstract:
This article asserts that the First Amendment permits libraries to use private-sector software to filter Internet access as long as the filters do not attempt to favor one socio-political viewpoint over another. It challenges the 1999 federal court's finding in the Loudoun County Library case that libraries offering Internet access face no economic constraint on offering unlimited access. It criticizes that decision as faulty economic analysis as well as disputing the Loudoun court's public forum analysis. The article contends that librarians may use filters to manage patrons' use of the library's limited resources to maximize computer terminal availability for accessing the categories of content chosen by librarians to be in their collections. Thus, libraries are free to block access to websites providing material outside that scope, including "protected speech," e.g., shopping services and non-obscene photos advertised as XXX. Libraries may also use removable filters to empower parents to diminish their children's access to adult material. The article argues, however, that the First Amendment requires libraries using filters to 1) understand the criteria that the filter uses to exclude content, and 2) have the ability and resources to correct the viewpoint discrimination that filters are likely to generate. Furthermore, it concludes that the issue of library filtering of Internet access is not so much an issue of cyberspace law as one of the First Amendment's more general limitations on librarian discretion in the selection of content. In a nutshell, it finds that filters should be held to the First Amendment standards as the librarians who make purchase and removal decisions.

Abstract:
This is a book review of Lawrence Lessig's "Code and Other Laws of Cyberspace" (1999). While this 16-page review is highly positive, it does offer some criticisms of Lessig's views, particularly with respect to First Amendment issues.

Abstract:
[Note: the substantially revised published version was posted here on Aug. 4, 2004]

This Article explores how copyright law's prohibition against unauthorized copying and sales may, counter to the law's purported goal, have an overall negative impact on the production and dissemination of creative content. The Article contends that in the current lottery-like environment of many media markets, copyright law disproportionately inflates the revenues of the most popular creations leading their publishers to spend increasing amounts on promotional campaigns, which drown out economically marginal creations. This discourages, rather than encourages, investment in many new creations. As a result, current copyright law may actually reduce the overall production of new creations. As an alternative to the current strict limits copyright law imposes on copying, this Article explains how new technologies, social norms, and much weaker prohibitions against unauthorized copying may be combined to create viable business models for financing new creations. These business models appear capable of ensuring creators and publishers a sufficient profit to stimulate creation and distribution but without the significant harms to creation of broad prohibitions against unauthorized copying.

copyright, marketing, business models

Abstract:
More than 6,000 Americans die annually due to a shortage of organs for transplants. This article contends that the supply of donated organs could be increased (and thus many unnecessary deaths avoided) by the adoption of a policy of reciprocity, a kind of organ insurance. Those who committed to donate their organs at their death should be rewarded with a small preference in the event that they later need a transplant. Although this policy is opposed by those who hold that donations should be based solely on altruism, it would represent a form of reciprocal altruism and is consistent with the current United Network for Organ Sharing (UNOS) system of awarding 4 points to any patient seeking a kidney who has previously donated one and allowing paired exchanges. Increasing the supply of organs is already used as one of the justifications for the UNOS local first rule (whereby those located in the same local area as the donor are favored over better matches outside the area) and a reciprocity policy would likely represent a more effective means to that end. Just as time on waiting list is used today to help determine who receives an organ, time on willing donor list should also be a factor.

organ, donation, incentives, preferences

Abstract:
While real estate brokers have long set their fee as a straight percentage of a home's sale price, this formula is an anomaly and a primary reason why such fees may be inflated by more than $30 billion annually. Although competitive pressures ordinarily produce a fee structure reflecting costs, real estate broker commissions are strangely unrelated to either the quantity or quality of the service rendered or even to the value provided. Rather, this fee has been based solely on the price of the home. (It is as if tax preparers set their fee as a flat percentage of a client's gross income, irrespective of how difficult the return was to prepare or how much their efforts saved the taxpayer). Oddly, not only is there no evidence that it is any more costly to sell higher-priced homes than median-priced properties, but it is possible that the opposite may be true! Furthermore, the straight percentage fee formula creates little incentive for real estate agents to provide home buyers or sellers with additional value.

The article analyzes five elements of the traditional residential real estate broker rate structure, the most important of which are: 1) setting fees as a percentage-of-sale-price, 2) letting the seller's broker set the fee received by the buyer's broker, and 3) refusing to unbundle the price of a full package of services. After explaining the conditions under which such rate elements would be justified, this article finds that those conditions do not generally exist in the real estate brokerage market. Moreover, it identifies more than a half dozen harms that the rate elements cause to home buyers and sellers. For example, buyers are often not alerted to attractive homes because the rate structure leads traditional agents to intentionally avoid showing them. Meanwhile, many buyers do not even consider negotiating the fee paid to their broker because the rate structure causes them to believe their brokers' services cost them nothing.

After this criticism, the article suggests that consumers would benefit most from a fee-for-service approach - combining flat fees, hourly fees, and bonuses, including percentages of extra value created - and it identifies currently available examples of some of these options. After reviewing eight reasons why incumbents are able to protect the current structure, the article suggests six new disclosures that might undermine the industry's protectionist practices.

commissions, rate structure, broker, real estate, agent

Abstract:
This book review of Cass Sunstein's Republic.com, praises the book for raising some intriguing questions, but is very critical of the analysis and answers that the book offers. In particular it challenges Sunstein's analysis of the dangers to the U.S. system of democracy arising from increased public use of customized news services, dubbed the "Daily Me." It argues that Sustein misunderstands how citizens are likely to use the Daily Me. Furthermore, the review asserts that, rather than undermining democracy, in the manner of Aldous Huxley's "Brave New World's" soma, Daily Mes are more likely to improve citizen awareness of the important types of information that Sunstein is concerned about. The review also challenges Sunstein's fear that "deliberative enclaves" of extremists that the Internet may foster will pose a "harmful speech" problem that is not susceptible to a "more speech" response. The review suggests some potentially effective "more speech" proposals.

Internet, fragmentation, filters, democracy, cyberspace, deliberation

Abstract:
Affirmative action programs at elite schools have long neglected those suffering most from the effects of racism. After concluding that inferior K-12 preparation has left such students too far behind to handle their rigorous academic programs, elite schools have focused their programs on better prepared middle and upper-class minority applicants. Although the resulting diversity is a positive, this Article contends that affirmative action programs need to be retargeted to directly aid the most disadvantaged minority students. It offers a three-part program. In the first, and most significant element, schools would designate a substantial number of places in each class for the most qualified students who both demonstrated their qualifications to mentor and tutor those students during their K-12 years and made a binding commitment to do so. The article also discusses three intractable questions triggered by per se racial preferences and, in its second and third parts, proposes a racially conscious, but race-neutral alternative for avoiding the problems they raise and a few other shortcomings of per se preferences. The approach is particularly relevant in the current environment, where Grutter v. Bollinger could soon be reinterpreted, if not effectively reversed, by the current, more conservative Supreme Court.

affirmative action, admissions, quotas, racial preferences, reparations, diversity

Abstract:
This article asserts that the First Amendment permits libraries to use private-sector software filters to control what can be viewed on their Internet terminals as long as the filters do not represent an effort to discriminate against offending viewpoints. It contends that librarians may use filters to ensure that their patrons can efficiently use the library's limited resources -- computer terminals and Internet links -- to gain access to the categories of content that the librarians choose to include in their collections. Thus, libraries may seek to maximize terminal availability for "research" by blocking access to "disfavored" websites, such as those offering shopping services or play-by-play updates of sporting events. Libraries may also use filters to empower parents to diminish their children's access to adult material. It appears, however, that the First Amendment requires that libraries using filters 1) retain "final say" over selection decisions, 2) know the criteria that the filter uses to exclude content, and 3) have the resources to correct the viewpoint discrimination that filters are likely to generate.