The Working Group on Property, Citizenship, and Social Entrepreneurism (PCSE) (http://www.law.syr.edu/pcse) is sponsored by the Syracuse University College of Law and its Program in Law and Market Economy. The Program in Law and Market Economy is an interdisciplinary program focusing on the relationship among law, markets, and culture. Within this context the Working Group on PCSE brings together experts from a variety of institutions to discuss and explore issues related to property law, governance, and globalization. The Group will provide an ongoing forum for the publication of important new works.
PROPERTY, CITIZENSHIP, & SOCIAL ENTREPRENEURISM eJOURNAL
Sponsored by Syracuse University, College of Law
"Libertarianism and Originalism in The Classical Liberal Constitution"
New York University Journal of Law & Liberty, Vol. 8, No. 3, pp. 1045-1054, 2014 (Symposium on Richard Epstein, The Classical Liberal Constitution)
George Mason Law & Economics Research Paper No. 14-60
ILYA SOMIN, George Mason University School of Law
Richard Epstein’s The Classical Liberal Constitution is an impressive synthesis of between libertarian political theory and constitutional interpretation.
Part I of this brief essay summarizes Epstein’s important contribution to constitutional scholarship, particularly his sophisticated effort to integrate originalism and libertarianism. In Part II, I consider a possible tension in his theory: Epstein’s desire to leave room for government regulation that cures market failures could potentially be used to justify a wide range of nonlibertarian forms of government intervention that might undermine the very constitutional rights that he seeks to protect.
Part III suggests that the tension in Epstein’s theory can be partially mitigated by greater reliance on originalism with fewer policy-driven exceptions for market failures. Given real-world judges and political actors, this might result in greater economic efficiency as well as stronger protection for individual freedom than Epstein’s approach. In the process of considering these issues, I focus on judicial interpretation of the Bill of Rights. It may be helpful to look at the original meaning not just in 1791, when the Bill of Rights was first enacted, but also in 1868, when, as a result of the Fourteenth Amendment it became incorporated against state governments. The case of the Public Use Clause of the Fifth Amendment, which Epstein and I have both written about extensively, exemplifies each of these points.
"Conceptualizing Benefit-Sharing as the Pursuit of Equity in Addressing Global Environmental Challenges"
BENELEX Working Paper 1
Edinburgh School of Law Research Paper No. 2014/41
ELISA MORGERA, University of Edinburgh
This paper develops a conceptual framework for the analysis of benefit-sharing in light of its gradual development in international law as a basis for more detailed legal analysis (in the areas of international biodiversity, climate change, human rights, oceans, food, agriculture and land law). It teases out the inter-State, intra-State and transnational dimensions of benefit-sharing, with a view to mapping its multiple manifestations, connections among them, and their implications for pursuing equity among and within States in addressing global environmental challenges.
"Broad Shareholder Value and the Inevitable Role of Conscience"
PAUL D. WEITZEL, Davis Polk & Wardwell LLP
This article proposes a middle-ground solution to the perennial debate on corporate purpose, the question of whether directors and officers must solely maximize profits or whether they may consider the effects on employees, the environment or the community. I argue that the purpose of a corporation is to promote broad shareholder value, which includes the shareholders’ financial and nonfinancial interests. These nonfinancial interests could encompass product safety, the treatment of employees or environmental concerns. To support this theory, this article makes three claims, one based in theory, one in case law, and one in empirical evidence.
First, our theories of what a corporation is (corporate identity) imply that the proper corporate purpose is promotion of broad shareholder value, not mere profit maximization. Second, the case law does not require pure profit maximization, as has been claimed, but instead allows consideration of other shareholder interests. For support, I provide a new understanding of the case law under principles of game theory and of evidentiary burdens. And third, a theory of broad shareholder value best explains empirical evidence of what directors and officers actually do and what shareholders actually want. In short, the evidence shows that pure wealth maximization theories lack explanatory power in the real world.
"How Democracy Could Cause Economic Growth: The Last 200 Years"
KONSTANTIN MOSHE YANOVSKIY, Gaidar Institute for Economic Policy
DANIEL E. SHESTAKOV, National Research University Higher School of Economics
CAROL LEONARD, National Research University Higher School of Economics
In this paper we explore current understandings of the influence of political rights, among historical legacies, on economic development. We construct variables for selected political regimes for 1811-2010. We find significant association between individual rights and economic growth. We argue that current understanding of political regimes supportive of growth (Acemoglu, etc), should parse the concept of property rights to include the protection of the individual in their focus on private property rights protection, alone, respected in various forms of government, are insufficient; what matters is the security of individuals from arbitrary arrest, regardless of type of regime. Discretionary rights of rulers or democratic governments to arrest citizens undermines the protection of private property rights and other attributes classically given to democratic foundations of economic growth, for example, free press, freedom of the exercise of religious belief. We suggest, as a research agenda, that the power of the politically competitive system therefore comes from weakening discretionary authority over law enforcement.
"Money Is Rights in Rem: A Note on the Nature of Money"
Journal of Economic Issues, December 2014
JONGCHUL KIM, Columbia Law School
This paper argues that the development of money and the legal concept of property has been intertwined. That is, money and rights in rem have tended to mirror each other historically. The fictional concept of rights in rem was arguably created in the image of money in the late Roman Republic, where the concept of dominium or rights in rem was first settled at law and money became a predominant medium for social relations. The paper demonstrates that contemporary banking, including commercial and shadow banking, creates money by mirroring credit in the image of rights in rem.
"Patent Litigation in England and Wales and the Issue-Based Approach to Costs"
Civil Justice Quarterly 32(3), pp. 369-384.
LUKE MCDONAGH, Cardiff University
CHRISTIAN HELMERS, Santa Clara University - Leavey School of Business, Universidad Carlos III de Madrid
In England and Wales legal procedures with regard to patents are said to be both lengthy and costly. Nonetheless, at present there is little factual empirical evidence on procedural and costs issues in the UK. This makes it difficult to comprehend the state of patent litigation within the wider framework of civil litigation. The provision of analysis of both the processes undertaken and the costs accrued at the PHC is therefore of crucial importance. With this in mind, this article first explains the procedures for taking a patent case at the PHC and outlines the types of cases which typically occur, such as actions for infringement and challenges to patent validity. Secondly, in order to substantiate our analysis we examine a sample of 18 cases filed during 2000-2008 with regard to costs. We examine the discretionary, issue-based approach, the guidance given at the PHC to costs assessment judgment. and the way the courts deal with interim costs issues. Our study confirms that the costs of patent litigation are high, with the average cost of a full trial at the PHC, encompassing the costs of both sides, falling between £1 million and £6 million. We further explore the reasons for the high costs, including the strong disclosure requirement and the need for scientific experiments and expert testimony. Finally, we note that the perception of costs risks has the potential to influence the types of claims brought to the PHC, the rate of settlement of cases and the volume of cases.
About this eJournal
Sponsored by: Syracuse University, College of Law.
The eJournal of Property, Citizenship, and Social Entrepreneurism (PCSE) is an interdisciplinary journal dedicated to exploring the core principle that a just and accessible property law system is the basis for both good citizenship and successful socio-legal development. This eJournal distributes working and accepted paper abstracts primarily concerned with matters of property as they relate to the human process of exchange, the fostering of democratic institutions, the building of sustainable communities, the stewardship of the global environment and its natural resources, the promotion of citizenship, and the development of market institutions that respond to and promote a worthy social mission.
Our goal is to explore the legal infrastructure of property in broad terms: encompassing concerns for real, personal, intangible, and intellectual property, as well as looking at property related financial markets (including real estate mortgages, personal property security interests, licensing, and securitization).
Making reference to specific examples of property (in its various forms) we will address the following types of issues.
1) To what extent do property rights reduce or eliminate the need for government regulation (particularly command and control-regulation) while enhancing the environment for open market approaches to economic development and globalization? This includes consideration of the way in which property rights actually reduce transaction costs, correct for problems raised by the tragedy of the commons, and organize society in a way that fosters efficient economic development.
2) What is the role of privatization of State controlled property in the transformation process? How should privatization be approached and what distinctions need to be made between public, private, and state property? This includes discussion of necessary support infrastructure for successful privatization, and consideration of the need for government control over private companies dealing with public utilities, natural resources, and transportation systems.
3) To what extent do property rights enhance citizenship and advance democratic institutions? What role does private property play in creating political elites and the structures needed for controlled development and social transformation? How can property rights be used to make the rule of law more tangible, and to promote civic participation and inclusion? How are property rights related to citizenship issues respecting matters of race, gender, ethnicity, urban or rural location, and other factors?
4) To what extent do property rights promote entrepreneurism, including social entrepreneurism focusing on values other than mere maximization of economic wealth and efficiency? How can property rights fuel economic development while helping to reduce poverty?
5) In a world of global financial institutions such as the European Development Bank, The World Bank, and the IMF, with the power to influence indirect or quasi-law making, how are global property law systems to develop and become institutionalized? How do these institutions facilitate problems related to globalization and harmonization, and what are the socio-legal implications from such activity?
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