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Abstract:
Select financial institutions and members of the Bar have seized upon the presence of the limited exemption from the generation skipping transfer tax provided under the Internal Revenue Code to promote so-called dynasty trusts as a means whereby individuals can build dynastic wealth for a family forever free from transfer taxes. To realize such benefits, the trust must be governed by state law that does not impose the Rule Against Perpetuities. The promise of dynastic wealth is unlikely to be realized due to several factors. Administrative and tax costs are likely to reduce the yield on such trusts to a level where inflation, rising expectations and an ever growing band of beneficiaries are typically assured to outpace the ability of the trust to deliver the benefits anticipated by trust settlors.

Abstract:
A market power analysis is a principal focus of most antitrust analyses. The current treatment of market power, however, is inconsistent with a view that market power is a marketable asset. In the absence of transaction costs, market power would only exist when there are off-setting consumer-benefitting effects. This Article discusses an approach to market power that is designed to allocate it efficiently.

monopoly, antitrust, market power, Coase

Abstract:
The principal function of trademarks is to lower consumer confusion and, consequently, search costs. For example, a traveler knows certain things without further inquiry if he or she sees a Ritz-Carlton, a Holiday Inn, or even a McDonalds sign along the highway. In these instances, there is communication from the owner of the mark to potential customers.

Trademarks are also used as a means for individuals to communicate information about themselves to others. Very typically, the signaling relates to status or wealth. Courts have held that this function of trademarks is something the law should advance. This Article makes the case that there appear to be little or no economic or moral bases for a public policy of supporting the efforts of the privileged to advertise, signal, or communicate their status to others.

trademark, economics, veblen, pareto

Abstract:
Those who resist the teachings of law and economics are rightfully concerned that economic efficiency is largely based on the predictions of relatively acquisitive people about what will make them feel or be better off. Due to a variety of factors, these predictions often turn out to be wrong. The explosion in happiness research would appear to have the potential to close the link between choices and actual outcomes and, consequently, make the concept of efficiency more meaningful. This Article explores this promising advance. It concludes that direct focus on one concept or another of happiness or "better-off-ness" does not fully address the limitations of law and economics and may raise additional issues. For example, which is more important, feeling better off or being better off? In addition, when does happiness count? Is it at the time of the activity or as one remembers it? The Article explains why outcome-oriented goals like efficiency, happiness, or well-being are ultimately of limited use as goals for law. It then makes the case that law would be more usefully applied to the process of decision-making. To this end, it examines the extent to which law can be devoted to a decision-making idea or "decisional equity." The ideal of decisional equity requires addressing three areas - information imbalances, psychic biases, and adaptations to social conditions.

happiness, efficiency, coase, pareto, sustein, contract law, economics, relative deprivation, equity, behavioral economics

Abstract:
One of the more confusing areas of antitrust law is that dealing with group boycotts. The term has been applied to at least three distinct practices. This draft chapter of a forthcoming book focuses on regulatory and classic boycotts. It assesses them from the perspective of the economics of intellectual property. The conclusion is that regulatory boycotts are most appropriately viewed as potential ancillary restraints while classic boycotts are best teated as per se unlawful.

antitrust, boycotts, ancillary restraint

Abstract:
The common law seems solidly wedded to the idea that nondisclosure of relevant information is not required unless there is a duty by one party to another or the nondisclosing party has made a prior representation that could be misleading. Professor Kronman and others have explained that the rule, in practice, is actually one that requires disclosure of casually acquired information and permits nondisclosure of deliberately acquired information. The claim is made that this distinction is consistent with maximizing social welfare.

The theory involves a number of assumptions and largely ignores the social costs of nondisclosure. Nondisclosure can mean there is a race for information which itself may be inefficient and duplicative. The rule also permits the nondisclosure of information that has strictly distributive and no socially beneficial effects. In addition, it presupposes that nondisclosure will lead to market corrections as undervalued goods are discovered and brought into their more valued uses. In fact, a great deal of deliberate research is devoted to discovering overvalued goods and the information purposely kept off the market to avoid downward market adjustments. Most of these costs are the result of what economists refer to as rent seeking.

The Article identifies these social costs of the nondisclosure rule. It proposes a more nuanced approach to nondisclosure and one that is relatively easy to administer. It maintains the casual/deliberate distinction but also asks whether the information has primarily distributive or allocative consequences, whether the information will ultimately be revealed to the market, and whether it is the product of a race in which the winner may not be the most efficient source of market correcting information.

contracts, Kronman, efficiency, information, nondisclosure, patent, Pareto, social cost, distributive, rendt seeking

Abstract:
This Article argues that it is time for either the Court or Congress to reexamine Illinois Brick for the purpose of reconciling it with more general principles of antitrust standing. The overall goals of such an endeavor would be to ensure consistent treatment of similarly situated potential plaintiffs and to rationalize private antitrust enforcement.

antitrust, standing, injury

Abstract:
The underlying thesis of this Article is that much of the conduct of experts and the distrust to which it gives rise can be traced to the fact that the expert witness system is treated differently than other businesses. In fact, expert witnesses completely escape many of the controlling effects of contract and tort law. Yet there is no reason to believe that those who sell expert testimony are any less responsive to revenues, costs, and market demand than other businesses.

costs, expert witness, ethics, liability

Abstract:
This article considers the legal and economic implications of the NCAA monopsony power with respect to players in the two most financially lucrative college sports - football and basketball. The principal means of doing so is through the evaluation of three recent legal challenges to the NCAA. Those challenges are to limits on payments to players, limits on the number of players receiving payment, and the rights of players under scholarship with respect to payments for commercial use of their images. The focus is on two questions. First, under current interpretations of the antitrust laws, what would the likely results of these cases be if they reached a final substantive resolution based on the strict application of these interpretations? More generally, what are the limits to the NCAA’s use of monopsony power? The second question is whether there should be liability under the antitrust laws. This is a more complex question with the answer depending, in part, on whether the antitrust laws are to be applied to affect allocative or distributive outcomes.

NCAA, antitrust, monopsony, exploitation

Abstract:
In 1993, Professors Blair and Harrison published Monopsony: Law and Policy. Since that time both judicial and scholarly examination of monopsony has increased quite substantially. Their new offering on the topic, Monopsony Law and Economics, will be published by Cambridge University Press. With the permission of the publisher, this Chapter is available for examination and review. Comments are invited.

antitrust. monopsony, collusion

Abstract:
The primary objective of this Article is to question assumptions in order to show that the conventional economic approach to law and public policy has limited value. The arguments are founded on empirical evidence drawn from many fields of study. An underlying theme is that the current application of economic analysis to law should be regarded as an interim step toward the integration of law with the behavioral, natural, and social sciences.

Part I describes the two forms of the self-interest assumption more completely. This examination reveals that economics and the separate study of law and economics are caught in a dilemma, unable to embrace completely either of the two versions of the self-interest assumption. Egoism is an empty concept, and narrow self-interest asks us to ignore higher order preferences and altruism. Part II focuses on the narrow self-interest assumption and illustrate why its application to law is inappropriate. In Part III the problems of relying on choices, including market choices, as indicators of preference are examined.

Abstract:
This Article has two goals. The first is to explain in some detail what copyright law might look like if it reflected economic reasoning. The second is to put to the test the question of whether copyright law is as far out of sync with economic guidelines as cases ranging from White-Smith Music to Eldred suggest. Although this introduction has stressed the economic irrationality of copyright law, could it actually be that within copyright decisions there is an implicit economic sensibility?

copyright, fair use, idea, expression, abstraction, efficiency

Abstract:
In this essay, I explain what socioeconomics is, primarily by showing how economics and socioeconomics might be applied in addressing two issues that are fundamental to law. I hope these comments will illustrate why a socioeconomic analysis of law may displace the economic analysis of law. They are designed to show that the fit is better between law and socioeconomics than it is between law and economics; in other words, socioeconomics is the better complement to law.

economics, law, socioeconomics, pareto, ultimatum

Abstract:
The messenger model permits competing providers - physicians, hospitals, etc. - to make use of a common agent in their dealings with payers. This article makes the case that the messenger model is either tacitly or inadvertently a don't ask, don't tell policy when it comes to competitor cooperation. In addition, this article presents an economic framework that explains how such a policy may benefit health care consumers. Finally, it is suggested that the don't ask, don't tell policy has created an area of per se legality that precludes an examination designed to distinguish consumer-benefiting practices from those that provide no benefit.

antitrust, health care, collusion, efficiency, bilateral monopoly

Abstract:
This essay begins with a brief discussion of what socioeconomics is. In this section I also address whether one must be well versed in conventional economics in order to apply a socioeconomic perspective. I then discuss the basic themes that are present throughout my contracts class that stem from my interest in socioeconomics. Underlying these themes is the more fundamental goal of devising methodologies for assessing the quality of contracts. By quality, I mean something more and perhaps more subtle than whether the parties have conformed to all the formal requirements. Instead, I encourage students to examine whether all of the many factors leading to the formation of a contract are ones to be supported. Finally, I identify some specific materials that lend themselves to a socioeconomic perspective that are not always included in the casebook.

contracts, law, teaching

Abstract:
This essay is devoted to the proposition that conditions are ideal for most law schools to be governed for the benefit of the faculty at the expense of the welfare of students and others (stakeholders) who expect to be served by the law school. If this practice is sufficiently broad that it becomes a component of the institution's norms, two concepts from administrative law become relevant. One is self-regulation and the other is capture. The analysis is presented in four steps.

Capture, ethics, legal education

Abstract:
This essay has two purposes. The first is to demonstrate that the appearance of mutual assent and Pareto Superiority are weak bases for enforcing agreements. Pareto Superiority, as unassailable as it may seem, is paper-thin and frequently based on illusions and a normatively meaningless assessment of what it means to be better off. The approach here is one of piercing Pareto Superiority in order to examine the human factors that may determine whether an agreement occurs and its distributive consequences. Relative deprivation is the instrument used. The second purpose is to suggest that it is the obligation of legal theory to take greater account of the psychological and social factors that influence the process of agreement.

Pareto, deprivation, assent

Abstract:
This study began as an effort to identify the determinants of post-tenure scholarship produced by law professors. The impact of a number of variables was assessed. The only independent variable that was satistically significant was pages of pre-tenure scholarship. The analysis also revealed a significant decrease in scholarship by law professors once they had been granted tenure. This decrease held true for all levels of law schools.

Abstract:
This Essay examines and suggests responses to the bias against hiring economically disadvantaged people for law teaching posts.

working class, law teaching, blue colar

Abstract:
This Article cuts against the grain of modern copyright law by making the case that a more substantive approach to the issues of creativity and authorship would lower costs, streamline the system, and raise the level of socially beneficial creativity. Increasing the creativity requirement is designed to curb what might be called artistic product differentiation that has no real impact on economic, cultural, and social development. Infusing an element of substance into authorship by requiring some level of preconception by authors would produce the same result. After all, except in the most unusual instances, when an author does not know until after the fact that he has created something, it is hard to make a case that an incentive to create played a role. Raising both of these standards would reduce costly, and perhaps chilling, distributive battles and properly focus copyright on the internalization of efforts that are more likely to advance the public interest by raising the level of creative contribution.

copyright, efficiency, monopolistic competition, allocative