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Abstract:
Conventional wisdom holds that trademarks are nothing like other intellectual property. Copyright and patent law are theoretically based in public goods theory and designed to promote creation and disclosure of original expressions and novel, useful innovations. By contrast, trademarks are private goods and trademark law is designed to promote trade and encourage competition.

This article challenges conventional wisdom by demonstrating that trademarks are a type of public good that contributes to the public stock of useful ideas just as patented and copyrighted works do. This economic perspective suggests, again contrary to conventional trademark theory, that competitive markets fail to supply an optimal amount of information about products and their sources. Conventional theory recognizes the difficulty in excluding competitors from using a supplier's trademark unless there is a legal regime to protect marks. Conventional theory fails to consider the non-rivalrous character of referential and customary trademark use by consumers, competitors, non-competitors, and commentators.

The public use perspective on trademarks enriches our understanding of the structure of trademark law, the extent to which trademark law addresses the market failures associated with trademarks' public goods character, and the current debate concerning the propertization of trademarks.

public goods, trademark, market failure, patent, copyright, non-rivalrous, allocative efficiency, non-excludable

Abstract:
This article justifies a reformulation of modern contract damage rules articulated in a new restatement of contract damages, see Barnes and Zalesne, The Shadow Code, 56 SOUTH CAROLINA L. REV. 93 (2004). The unifying principles of the surplus-based approach offered here lies in the shadows of contract remedies as articulated in Article 2 of the Uniform Commercial Code (U.C.C.), the Restatement (Second) of Contracts. The Shadow Code presented in this Article combines these principles and formulas into a new image of legal remedies for contract breach. This reconceptualization is based on the foundational principle that parties injured by contract breach are entitled to any surplus of benefits over costs those parties would have realized had the breaching parties performed. The Shadow Code reflects the modern understanding that damages are intended to ensure that the injured party is as well off as if the other party had performed as promised.

contract law, remedies, contract damages, Uniform Commercial code, Restatement of Contracts, contract breach

Abstract:
The dominant view of misappropriation doctrine fits trademark law poorly. It is at odds with contemporary theory and the reasons for protecting intellectual property. A more nuanced view of the Supreme Court's germinal misappropriation case leads to a misappropriation doctrine consistent with both externality theory and public goods theory. IP theory and misappropriation doctrine then lead to rules reflecting a balance between incentive creation and free access. Applying this nuanced interpretation to the issue of Internet initial interest confusion suggests that keyword advertising promotes competition and reduces search costs more than it interferes with incentives to engage in trademarking activity.

trademark, copyright, patent, intellectual property, public good, externalities, misappropriation, initial interest confusion

Abstract:
Over the past three decades, the number of women entering the legal profession has increased substantially. Despite significant expansion in the number of female law students and legal practitioners, many individuals, including both legal employers and academics, stereotypically think that male and female attorneys behave differently in critical situations. These individuals suspect that female attorneys are less successful negotiators than their male counterparts. This article explores this assumption by empirically testing the relative abilities of men and women to perform successfully on negotiation exercises. It concludes that there is no significant difference in the relative abilities of men and women to achieve beneficial results for their clients and discusses how this research relates to women in the legal profession generally.

legal profession, negotiation skills, empirical analysis, gender discrimination

Abstract:
This article investigates two particularly intriguing aspects of evolving theories of intellectual property. The first is how well new theories mesh with traditional theories. Externality theory from this decade recapitulates public goods theory from the 1980's. Misappropriation doctrine from 1918 embodies the prescriptions of theory developed decades later. The second is how well theories developed for copyright and patent law, the creativity domain of IP, fit trademark law, the fraud and competition domain. This article demonstrates that the three approaches to determining the optimal scope of copyright and patent protection involve a balancing of interests equally applicable to trademark issues.

In trademark law, those interests are the creation of incentives to engage in trademarking activity and the use of marks to lower search costs and increase competition. Balancing these interests for any type of use of a mark requires weighing the benefits of exclusive rights and the benefits of free access. Courts that enjoin conduct leading to Internet initial interest confusion tend to focus solely on goodwill, the dynamic efficiency side of the balance. When accepting such claims, courts offer no limits on the internalization of externalities and ignore the inherent balancing. The mixed public goods nature of trademarks means that that the balance between incentives and access might differ for different uses of trademarks. The discussion of Internet initial interest confusion, sponsorship confusion, and post-sale confusion illustrates how to perform this balancing.

trademark, copyright, patent, intellectual property, public good, externalities, misappropriation, initial interest confusion

Abstract:
In their 1936 article, The Reliance Interest in Contract Damages: 1, Professor Lon Fuller and William Perdue, Jr., developed a theory of contract damages based on the "reliance" interest - the interest in recovery of costs incurred in reliance on another's promise. Despite its age, that article is still highly regarded and widely cited. Despite its influence, Fuller and Perdue's theory of contract damages is not a helpful description of contemporary damage rules. This article is a systematic attempt to debunk each of Fuller and Perdue's arguments and simultaneously to support a new conceptualization of contract damages.

Because Fuller and Perdue's work has been so influential, this article tracks the precise approach of Fuller and Perdue while turning each of their arguments on its head. Because the structure of their argument was so critical to its influence, this article presents a point-by-point rebuttal that follows the same structure they used. The result is a theory of damages and a system for calculating damages that is easier to understand, easier to implement, and truer to contemporary contract law. Finally, this article compares the workability of the damage rules contained in the Restatement (Second) of Contracts, which are based on "loss in value," with a surplus-based approach, concluding with a description of the four straightforward, conceptual steps involved in an accounting for damages based on lost surplus.

net expectation interest, expectation measure, contract damages, remedies, restitution interest, Fuller and Perdue, economic surplus

Abstract:
The United States Supreme Court granted certiorari in K.P. Permanent, Inc. v. Lasting Impressions, Inc. recognizing a split in the federal Courts of Appeals. The Ninth Circuit had held that the classic fair use defense to trademark infringement was available only if there was an absence of confusion resulting from an alleged infringer's descriptive use of a term used by another as a mark. By contrast, the Second Circuit has held that the fair use defense may permit a person to use another's mark descriptively despite evidence of confusion. Other circuits have taken intermediate positions. Commentators question whether fair use is truly a defense at all, or just a way to rebut the mark owner's evidence of consumer confusion.

This article argues that the goals of trademark law are best served by recognizing that a fair use defense is applicable even if some confusion is likely. Mark owners' interest in the goodwill associated with their marks, consumers' interests in both freedom from confusion and information about market alternatives, and society's interest in a competitive market require a balancing test for fair use. This article emphasizes the weight to be given to the competitive benefit of access to trademarked terms by analogy to the policy of denying trademark protection to functional product designs. Accordingly, confusion is relevant to, but not dispositive of, the fair use defense.

This article proposes a balancing test allowing reasonable access to an owner's mark for descriptive purposes. It explains how the balancing test works by identifying types of evidence useful in addressing the balancing test and illustrates its application by addressing the facts of KP Permanent. Other fair use tests in trademark law as well as copyright law support adoption of this approach.

Trademark law, intellectual property, fair use defense, infringement, classic fair use, nominative fair use, likelhood of confusion

Abstract:
Confusion over the meaning of the word "value" makes it difficult to understand and to apply both damage rules and efficient breach theory. This article clarifies the meaning of value in its various legal and economic uses and show how that meaning relates to one motive for encouraging contracting - promoting the allocation of resources to their most valuable uses. In addition, the article argues for an alternative description of the traditional contract damage measure based on lost surplus. The surplus-based damage rule is free from ambiguity and applicable to a wide variety of cases, which simplifies the understanding of damage theory.

remedies, contract damages, contract law, economic surplus, efficient breach, expectation damages

Abstract:
The corrective precautions rule states that there is a duty to use reasonable care to anticipate and eliminate risks created by the negligence of others. Contrary to holdings in hundreds of cases, economics assume that there is no such duty. This article demonstrates how this assumption is critical to economists' reasoning leading to the conclusion that all of the various forms of negligence rule - pure negligence (no defenses allowed), contributory negligence, and comparative negligence - create desirable (wealth maximizing) incentives.

This article sets out a framework for a humanist and feminist critique of the economic analysis of negligence rules, setting the stage for a reconsideration of the economic analysis of the "no duty" and "corrective precautions" rules and for an efficiency analysis that recognizes the concerns of these alternative perspectives. We demonstrate from this combined perspective that the reasoning of contemporary economic analysis of the no duty rule is incorrect. We conclude that, from either an efficiency or an ethical perspective, the corrective precautions rule is superior.

reasonable care, duty, tort law, corrective precautions, economic efficiency, feminism, humanism, last clear chance, negligence, wealth maximization

Abstract:
This article compares remedies for breach of contract with remedies for disappointment associated with imperfect transactions, promises or assertions insufficiently supported by the accouterments of formalized agreements to be enforceable as contracts. This article address contributions by three remedies scholars, suggesting alternative perspectives on the problems of enforcing gratuitous promises, analyzing disclaimers, and analogizing torts and contracts damages.

imperfect promise, contract law, tort law, Restatement of Contracts, remedies, disclaimers, contract breach, expectation damages, gratuitous promises

Abstract:
This article presents and applies a framework for analyzing institutional structures and societal responses to changes in property rights systems, focusing specifically on regulatory agencies. The aim is to use the private/common ownership dichotomy as a foundation upon which to build a more comprehensive analysis of property rights. Once erected, the property rights model is used to explore the institutional milieu in which the regulators and the regulated interact. The model focuses on the costs of enforcing government regulations affecting resource use, particularly clean air laws. It provides a methodology for analyzing in a comparative statistics framework the changes in the level of enforcement costs resulting from a change in property rights regulating resource use. The article uses the property rights model to describe the characteristics that are most relevant to the enforcement of a particular regulatory structure, the Clean Air Act. The model highlights the variety of technical and quantitative measures necessary to appreciate the interrelationship between regulatory structure and enforcement costs and necessary to estimate the enforcement cost implications of changing a set of property rights.

property rights, environmental law, congestible public goods, Clean Air Act, enforcement costs, regulation

Abstract:
The antitrust policy of the states with respect to horizontal mergers and acquisitions reveals a markedly different philosophy of the role of government in antitrust enforcement from that underlying federal policy. The states' philosophy emphasizes concern for the distribution of wealth in society as opposed to the strict economic efficiency concerns of the federal enforcement strategy, a greater skepticism regarding the benefits to be derived from mergers, and a greater willingness to interfere with incentives created by market forces in either a concentrated or an atomistic market.

While federal and state philosophies, as reflected in their respective horizontal merger guidelines, claim to be grounded in and consistent with section 7 of the Clayton Act as reflected in its legislative history and in its interpretation by the Supreme Court, application of the two sets of guidelines may give quite divergent results. Although both claim to increase the certainty with which the business community can assess the legality of potential mergers and acquisitions from an antitrust viewpoint, the conflicts inherent in the guidelines actually increase the uncertainty businesses face.

This article describes the differences in philosophies and associated implications. These philosophical differences result in contrasting treatment of the productive efficiencies offset to increasing market power, treatment of allocative efficiency issues, and treatment of evidence of anticompetitive and procompetitive effects of a merger. The philosophical differences result both in different standards for when a merger will be challenged and different interpretations and receptivity to evidence presented in the defense of mergers once challenged.

antitrust law, mergers and acquisitions, horizontal merger guidelines, consumer welfare, economic efficiency, allocative efficiency, allocative efficiency, productive efficiency, Clayton Act

Abstract:
Dramatic changes in rules governing admissibility of expert testimony impact all areas of law. Rule 702 of the Federal Rules of Evidence and the evidence law of many states impose a requirement that judges admit expert testimony only if it is based on a scientifically sound foundation. States have been considering whether their evidence codes should be consistent with the approach articulated by the United States Supreme Court in Daubert, which concluded that admissible scientific testimony must be grounded in the scientific method and based on more than subjective belief and unsupported speculation. Among the state courts considering this issue, Florida's Supreme Court has taken a particularly provocative approach, stoutly resisting adoption of the Federal Rules governing admissibility of expert testimony, preferring the "higher standard of reliability" set forth under the Frye test. This article discusses the implications of Florida's approach. This article argues that the Florida Supreme Court's reasoning inexorably extends to all scientific evidence and is functionally identical to the Federal Rules of Evidence approach. The article also analyzes whether Daubert really is more lenient and whether Frye is a higher standard of reliability as the Florida Supreme Court claimed.

evidence law, expert testimony, scientific evidence, Rule 702, Daubert, Frye

Abstract:
This article focuses attention on antitrust law goals other than economic efficiency by contrasting them to economic goals both in terms of their substantive content and their underlying assumptions. Alternative articulations of the nonefficiency goals are examined to state as precisely as possible what legislators, judges, and scholars had in mind when advocating these goals. Although one can easily appreciate the political and social values scholars and policy makers espouse, it is difficult to identify from the current literature in this area either the connection between mergers generally and undesirable consequences of those particular mergers most likely to have unwanted side effects. Although this article calls for greater specificity and precision by proponents of nonefficiency goals, it also argues that many of these goals can be included systematically in antitrust enforcement. In response to the appeal of social and political values and their established place in antitrust cases, this Article suggests a more dynamic and democratic interpretation of economic efficiency that incorporates a broader spectrum of values.

economic efficiency, antitrust, mergers and acquisitions, Clayton Act, competition policy, corporate acquisitions

Abstract:
This article presents a straightforward and intuitive method for understanding and interpreting statistical evidence submitted to courts as proof of factual issues. The goal is to overcome the reader's fear and loathing of statistics by relating all statistical methods to the concepts of numerical differences between numbers and similarities or correspondences between numbers. Throughout the article, the discourse is in conversational rather than technical English. Actual rather than hypothetical cases are used to illustrate and explain statistical tools which gradually increase in complexity as the reader progresses. Cases are drawn from a wide variety of substantive law areas such as civil rights, employment discrimination, contracts, environmental law, energy law, constitutional law, deceptive advertising, and highway traffic safety. The discussion begins with the concept of subtraction and proceeds through percentages and correlations to regression analysis. Using the statistical concept of a standard deviation, which is explained in intuitive terms, statistical evidence of all degrees of complexity is described as a mechanism for ascertaining whether an absolute magnitude or measurable effect is large enough to be legally significant.

statistical evidence, standard deviation, statistical significance, correlations, regression

Abstract:
Judges and lawyers first encountering statistical evidence want to believe that scientific standards are tougher than legal standards. A court will reject an assumption that there is no causal connection between an act and an injury if the evidence makes causation "more likely than not." A scientist will reject an assumption that there is no relationship between two variables only if there is less than a five percent probability that the statistical evidence showing a relationship is due to chance. The law appears willing to accept no more than a forty-nine percent chance of error while science appears willing to accept no more than a five percent chance of error. This perception is incorrect, but hard to change. It is a matter of such serious concern to statisticians and scientists that they often raise the issue, but lay people seldom understand it. This article offers those uninitiated into the statistical guild several reasons to look behind the probabilities when evaluating scientific evidence.

This article describes three types of statistical results as reflecting the "belief probability," the "fact probability," and the "sampling error probability." The belief probability relates to evidentiary requirements imposed by the law, and the fact probability relates to the facts relevant to legal cases. These two probabilities are directly related to the civil law evidentiary requirement that the proponent of a claim must prove that the other's act is more likely than not a cause of harm. By contrast, the sampling error probability is a characteristic of statistical science. Appreciating the distinctions among these probabilities facilitates an understanding of the relationship between the preponderance of the evidence standard and the probabilities reported by statisticians.

statistical evidence, belief probability, fact probabilty, statistical significance, sampling error, causation, tort law

Abstract:
The Clean Air Act is widely recognized as a legislative command to provide the benefits associated with cleaner air without explicit balancing of associated costs. A quantified cost-benefit analysis is not required - the protection of the public is the paramount consideration of the Act. It is widely accepted that the Clean Air Act mandates a safety-first approach to investment in air quality, and simply does not allow a cost-benefit approach. Safety has not always come first, however, in implementing the Clean Air Act. Considerations other than safety, some of which may be broadly dominated economic costs, have prevented full, complete, and perfect enforcement of Clean Air Act provisions.

This article explores how budgeted enforcement expenditures can be manipulated to contradict safety-first pronouncements and to result in standards resembling those that might be determined under a cost-benefit approach. It also explores the equivalency of direct cost-benefit balancing and balancing through budgetary control; how it might be accomplished and the potential for differences in the outcome. Throughout, the article focuses on federal enforcement of pollution control regulations applicable to stationary pollution sources.

Clean Air Act, Environmental Protection Agency, economic efficiency, cost-benefit analysis, property rights, environmental law, air pollution

Abstract:
Trademark law is unjustifiably permissive because it protects more than one mark for each supplier of goods and services. Suppliers need some exclusive symbol to indicate that they are the only source of goods and services carrying that mark. Trademarks are, however, more than source-indicators. They are marketing devices. Suppliers use trademarks to attract consumers’ attention to their products by suggesting unique characteristics and qualities, by surrounding the products with an aura of superiority or desirability, or simply by being clever or appealing. No one supposes that marketing devices, as distinguished from source indicators, should receive any intellectual property law protection whatsoever. Multiple marks are not necessary to indicate source. They may help suppliers create market niches for their products by giving their products names that make them appear to be (accurately or not) unique types of products. Everyone familiar with trademark law understands that intellectual property protection does not extend to generic or merely descriptive terms - those labeling types of goods or describing goods. It is not as obvious that even fanciful and arbitrary trademarks are simultaneously both source indicators and indicators of types and characteristics of products that have acquired descriptiveness. This article proposes and justifies a radical restructuring of trademark law limiting trademark protection to one mark per source, a "single signal" rule. It argues that the proper scope of trademark law requires emphasizing source-indicating function of trademarks and liberating the product-describing function. It suggests a program for minimizing the dislocation costs to consumers and suppliers that result from removing trademark protection from many famous marks. Protection of marketing devices makes it more difficult for competitors to attract consumers and for consumers to learn about alternative suppliers. Limiting suppliers to a single mark is sufficient for source-indicating purposes, enables consumers to know what products compete to satisfy their needs, and makes it easier for smaller competitors to supply them, facilitating competition. The "single signal" rule creates a superior balance between exclusive trademark rights and public access to means of expression.

trademark, competition, barriers to entry, marketing, public goods, externality, search cost

Abstract:
Lying in the shadow of contract law are unifying principles for calculating damages. These principles integrate the purposes motivating rules formalized in Article 2 of the Uniform Commercial Code and the Restatement (Second) of Contracts and their computational methods. Neither the UCC nor the Restatement rules reflect these principles in any way that is apparent on their face. On the contrary, the damage rules in Article 2 of the UCC offer apparently distinct formulas for each type of contract breach that depend on whether the non-breaching party was a buyer or seller, obtained partial performance, or arranged a substitute performance. The Restatement offers different formulas depending on the unhelpful and ultimately irrelevant distinction between the expectation and reliance interests. The Shadow Code offers an approach to contract damage calculation that explicitly reflects the well-recognized compensatory goal.

The Shadow Code restates the law of damages in a single section applicable to all breaches of contract. That section is based on the notion that people contract in order to improve their well-being. Each party ordinarily hopes for some improvement or "surplus" of benefits over costs as a result of contracting. The principle that a party injured by another's breach is entitled to be put in the position he or she would have occupied had the other performed as promised is not novel. It lies at the heart of the UCC and the Restatement. The surplus-based approach to damages recognizes an injured party's entitlement to the difference between the surplus he or she would have realized had the other performed as promised and the actual surplus obtained. It applies to all types of parties injured in all types of partial and total contract breaches, whether consumers or merchants, buyers or sellers.

contract law, remedies, contract damages, Uniform Commercial code, Restatement of Contracts, contract breach

Abstract:
The Federal Trade Commission (FTC) has no guidelines for the development, presentation, and evaluation of statistical evidence by litigators or administrative law judges in deceptive advertising cases. As a result, Commission opinions and evidentiary findings related to statistical testimony run to hundreds of pages, discouraging the most determined reader, while orders emerging from the decisions are vague as to their implications for statistical proof of a "reasonable basis" for making an advertising claim. The increasing statistical sophistication of lawyers suggests that an examination of the process by which litigators present and judges evaluate quantitative evidence is appropriate.

This article argues that structuring debate over disclosure along the lines of relevance, practical significance, and statistical significance may be fruitful in the resolution of deceptive advertising cases. The fact finder will benefit from organizing the quantitative evidence along these lines in order to simplify and structure the statistical analysis, clarify the resolution of factual issues addressed by quantitative evidence, and clarify substantive remedial requirements through more specific orders to advertisers. This article considers a variety of guidelines that have been used or recommended to direct scientific and econometric research in several substantive law areas. Characteristics peculiar to the factual issues in deceptive advertising cases are highlighted and compared to issues arising in those areas.

quantitative evidence, statistical evidence, Federal Trade Commission, deceptive advertising

Abstract:
This comment addresses two questions: How useful is the example and hyperlink method as a teaching as opposed to reference tool? And, what do judges need to know about statistical analysis? The discussion of the example-and-hyperlink method includes observations about the accessibility of this teaching method to judges, whether it enables judges to generalize from the specific examples, and how the prototype might be improved by comparing the utility of statistical tests. The discussion of what judges need to know draws from years of teaching statistics to judges but still rests only on my intuition about what information about statistics they need to do their work as judges intelligently. Judges need to know less about formulas and more about when particular statistical approaches are appropriate, as well as the relative merits of statistical methods for different contexts, types of data, and questions.

age discrimination, hyperlink method, teaching method, statistical approach, reference tools

Abstract:
Applying the standard 95% confidence level when testing for disparate impact results in a significant chance that one or more of these practices would fail the test even if the practice was neutral with respect to the protected group. This probabilistic result is important in employment discrimination cases where the challenged practice involves an examination or interview process with multiple components, or where the employer/defendant in a pattern and practice action has numerous divisions within the company or numerous job categories within which the disparate treatment of the protected group might independently be measured. This article explains the meaning of the probabilistic result and puts it in perspective with illustrated binomial tables. It concludes that the stipulated elimination from factual consideration of those parts or divisions with no mathematical disparate impact disadvantages the employer/dependent who has only one offending division out of numerous total divisions. Any unfairness that may be associated with this result dissipates rapidly as more offending divisions are found. This dissipation occurs because the probability of finding large numbers of offending divisions by chance, where the employment practice is neutral with respect to the protected group, is demonstrably small.

disparate impact, employment discrimination, probabilistic analysis, statistical significance, binomial statistics

Abstract:
This contribution to a mock symposium empirically examines the implications of using the phrase "into evidence" rather than "in evidence" to describe introducing an exhibit in a trial. The article describes the relevance of economic efficiency analysis to the study of linguistics and presents empirical evidence showing that linguistic preference has practical implications of great utility in a growing economy. It discusses data collected for twenty-two states (two from each federal circuit) and from three statistical sources, expanding on the theory that one would expect that states favoring the "in" preposition would have economic characteristics different from those favoring the "into" form of speech. The study shows that states favoring the "in evidence" phraseology tend to have higher unemployment and greater economic growth than states favoring the "into evidence" phraseology. Finally, the article examines the correlation between relevant economic and cultural variables and the phrases, demonstrating inter alia that there is no evidence that a male power structure in a state is related to the linguistic choice, as suggested by at least one feminist.

linguistics, trial practice, economic growth, unemployment, feminism

Abstract:
This article offers a neutral, positive interpretation of the role of economists and of law and economic analysis. It describes the roots of economics as lying in the identification and analysis of the interaction among variables rather than wealth maximization. The theoretical mathematical equations of economists serve not only to identify the theoretical relationships among various factors influencing behavior (in the law and economics context) but also force economists to identify and account for all of the factors likely to influence behavior. The statistical equations of quantitative analysts also force economists to identify and account for the factors relevant to decision making or to predicting the outcome of public policy. These approaches combined with the limited philosophical and psychological training of economists may bias the practice of economics away from things that cannot be measured. They do not, however, inherently bias economic analysis in favor of efficiency analysis, in favor of maximizing wealth. As an alternative to the conventional "wealth-maximizing" view of law and economics, this article presents a "carpenter's discourse" which is intended merely to draw attention to the fact that the fundamental characteristic of economic analysis is not its ability to build only particular kinds of structures. Rather, it focuses attention on the ability of economists to apply a variety of assumptions to their predictive task. The strength of economic analysis is properly tested by its ability to design legal structures to reach a variety of goals. The article concludes that, after reconstruction of law and economics as a tool available to a broader political and social agenda, the critique of law and economics will be more useful.

economic efficiency, law and economics, positive economics, wealth maximization

Abstract:
This article is a fictional letter from Supreme Court Justice William O. Douglas about the relationship between democratic values and antitrust law. It responds to William Curran's fictional dialogue between Senator John Sherman and philosopher John Rawls. It discusses the importance of the anarcho-socialist movement of the late nineteenth century to the adoption of the Sherman Act, the historical and logical inevitability of adoption of a rule of reason in antitrust law, the relevance of economic efficiency to the rule of reason, and the relationship between competition and the promotion of democratic ideals.

William Sherman, John Rawls, William O. Douglas, antitrust law, rule of reason, competition policy, anarchism, economic efficiency

Abstract:
This article reexamines in light of modern comparative negligence rules a century old rule of tort law originated by the Illinois Supreme Court in Galena & Chicago Union Railroad v. Jacobs.. The Galena rule assigns liability on the basis of comparative negligence with no apportionment of damages between the parties; the most negligence party pays all the damages. Such a rule of nonapportioned comparative negligence is Pareto superior to apportioned comparative negligence, traditional contributory negligence, and indeed, to any other modern or ancient tort rule, in that it provides a distinct and preferable mechanism for reaching social goals viewed as "economic" in nature.

Using mathematical models of alternative tort rules, this article demonstrates that the Galena rule provides parties engaged in risky activities with incentives to prevent accidents whenever doing so is optimal. It never encourages prevention at a cost higher than that minimally necessary even when the least cost prevention method requires complementary efforts by the parties. In practice, it is easier to implement than the apportioned comparative negligence because it requires less complicated information and mathematical calculations by the parties and juries involved. This implies an increased likelihood of appropriate decisions by juries and appropriate behavior by individual parties.

Moreover, the Galena rule operates on the basis of fault, thereby providing a moral basis for its acceptance. The article also offers mathematical models of pure and modified comparative negligence, demonstrating that they are likely to produce desirable incentives in the vast majority of cases and produce over- and under-deterrence only in unimportant cases. Because economic analysis identifies the implications of choosing a rule, this analysis is applied to other goals - compensation, fairness, and safety.

economic efficiency, comparative negligence, apportioned liability, tort law, accident prevention, incentives, deterrence

Abstract:
Assistant Attorney General Charles Rule, in a speech at the 21st New England Antitrust Conference, referred to those who advocate goals other than economic efficiency in antitrust law as counterrevolutionaries. Apparently those supporting original intent in statutory interpretation are the contras in this case. Mr. Rule attacked the views of the counterrevolutionaries and defended both the neoclassical approach to antitrust analysis (as the only legitimate standard) and the performance of the courts and Department of Justice during the Reagan era. The most startling part of his speech was his mischaracterization of the counterrevolution, which is particularly ironic because one of his criticisms is that the contras are attacking a straw man that bears no relationship to the reality of policy based on consumer welfare economics.

This article discusses the contras' manifesto(s) and sets the record straight by addressing six of Mr. Rule's criticisms. The article argues that the threshold question for antitrust policy should be what goals are to be achieved. It suggests that by focusing on goals, their desirability, and their achievability, the petty criticism and cavils of both sides of the insurrection can be avoided.

economic effiency, neoclassical economics, antitrust, consumer welfare

Abstract:
This article simplifies the confusing array of modern contract damage rules and provides an analytic structure for evaluating whether breach is profitable and efficient in complicated cases. The single proposed rule replaces the multiplicity of rules designed for different factual contexts that are followed by courts and perpetuated by the Uniform Commercial Code ("UCC"). The proposed approach to contract damages reflects the traditional underlying policy of common law and statutory contract damage rules, which is to place the injured party in as satisfactory a position as if the breaching party had performed. The rules governing the calculation of contract damages presented in this article avoid historical characterization of the "interests" involved in different damage measures. The "expectation," "reliance," and "restitution" interests underlying the traditional conceptualization of contract damages add only confusion to understanding the relevant rules. The model developed in this article only implicitly recognizes the interests involved. It focuses instead on the substance of what the law accomplishes.

While this article's approach to contract damages greatly simplifies the understanding and calculation of damages, it also makes possible analysis of the incentives created by contract damage rules in complex cases. The article explores the remarkably close relationship between the structure of contract damage rules, the conditions for when breach is profitable, and the conditions for when breach is desirable. By way of a mathematical model, the article demonstrates that contract damage rules always yield incentives promoting breach only when breach is efficient. It substitutes a surplus-based conceptualization of contract damage law for the interest-based analysis that dominates the modern theory of contract damages.

contract law, remedies, damages, efficient breach, surplus-based damages, restitution, expectation interest, reliance

Abstract:
It is alleged that there are too many lawyers, that there is too much litigation, and that legal costs are too high. America, it is alleged, has seventy percent of the world's lawyers. In a recent ten-year period, it is alleged, product liability suits increased eight hundred and fifty percent. The legal system, it is alleged, costs $300 billion a year. Assuming these numbers are true, this article asks, So What? Is this too much or too little? Relating overlawyering to global competitiveness suggests that laws, lawyers, and lawsuits interfere with America's ability to compete with other countries. The goals of minimizing conflict, internalizing costs, compensating victims, and creating incentives for accident cost-minimization all figure into the optimal level of lawyering and the optimal legal doctrine. When thinking about how much litigation is "too much," one could think in terms of the broader goals of a legal system and a set of legal doctrines. This article argues that if lawyers and the law serve goals other than economic growth, perhaps the optimal number of lawyers is greater than that necessary simply to promote economic growth.

litigation crisis, economic efficiency, global competitiveness