The Comparative Law and Economics of Pure Economic Loss

Law and economics shows that a key factor in determining the optimal economic loss rule is found in the relationship between pure economic loss and social loss. Economic loss should be compensable in torts only to the extent that it corresponds to a socially relevant loss. In this paper we undertake a comparative evaluation of the economic loss rule to verify whether modern legal systems, although not formally adopting the economic criterion, define the exclusionary rule in light of efficiency considerations. The comparative analysis reveals that the substantive applications of the economic loss rule in European jurisdictions are consistent with the predicates of economic analysis

The Dual Purpose of the American Jobs Creation Act of 2004

The American Jobs Creation Act of 2004 claims to help bring offshore investments back to the United States. In reality, the AJCA does much more. The AJCA of 2004 makes adjustments to the U.S. tax code which helps bring the U.S. in line with existing international trade obligations as well as stimulating the U.S economy

When Does a Discharge of a Bail Bond Discharge the Surety?

This article examines the situations when a discharge of a bail bond actually discharges the liability of the surety and/ or its agent, the bail bondsman, as interpreted by the courts

Contribution to the Understanding of the Public Domain

The purpose of this article is to understand how the public domain has been construed by the Courts. In the first part of the article, the different ways the public domain has been qualified and construed by scholars are briefly sketched out- for descriptive and introductory purposes to the analyzed cases law. In light of the different ways the public domain has been qualified and characterized by scholars, in the second part of the article, several well-known and often-quoted cases law are analyzed. In this article, it is argued that the public domain, contrary to authoritative schools of thought, is not construed - by Courts - as a rule that determines, in a “binary fashion”, which behaviours “will be coerced by the public power and which behaviours will be allowed.” It is argued – grounding claims on reading the analyzed cases law – that the public domain is used and construed by courts as both a status of the mere negative aspects of IPRs and as an argument (for rhetorical - strictu senso - purposes) that heralds the underlying interest of the “public” in accessing “information”. In light of these findings, this article suggests that it is possible to start building a theory that would render the public domain more apt to make legally relevant the underlying interest (in the access of “information”) if construed not as a rule, but as an interpretative principle (a là Dworkin) that “states a reason that argues in one direction, but does not necessitate a particular decision” and that, once relevant, courts would have to take into account “as a consideration inclining in one direction [rather than] another.

[Insert Song Lyrics Here]: The Uses and Misuses of Popular Music Lyrics in Legal Writing

Legal writers frequently utilize the lyrics of popular music artists to help advance a particular theme or argument in legal writing. And if the music we listen to says something about us as individuals, then the music we, the legal profession as a whole, write about may something about who we are as a profession. A study of citations to popular artists in law journals reveals that, not surprisingly, Bob Dylan is the most popular artist in legal scholarship. The list of names of the other artists rounding out the Top Ten essentially reads like a Who’s Who of baby boomer favorites. Often, attorneys use the lyrics of popular music in fairly predictable ways in their writing, sometimes with adverse impact on the persuasiveness of the argument they are advancing. However, if one digs deeper, one can find numerous instances in which legal writers incorporate the lyrics of popular music into their writing in more creative ways

Bizarro Statutory Stare Decisis

In Smith v. City of Jackson, the Supreme Court applied to the Age Discrimination in Employment Act one of its decisions interpreting Title VII of the 1964 Civil Rights Act, which Congress had overridden with the Civil Rights Act of 1991. It treated Wards Cove Packing Co. v. Atonio, dealing with disparate impact theory and burdens of proof, as a binding interpretation of the ADEA, despite that Congress expressed disapproval of Wards Cove. The Court relied on two interpretive approaches to arrive at this result: the presumption that identical language in the ADEA and Title VII should be interpreted consistently and the strong presumption of statutory stare decisis. This convergence of circumstances led to the odd result of duplicating the congressionally disfavored Wards Cove interpretation. I use the comic book story of Bizarro, Superman’s imperfect duplicate, as an allegory for the Smith Court\u27s flawed invocation of statutory stare decisis to duplicate Wards Cove, labeling it Bizarro statutory stare decisis. None of the justifications for the regular presumption of statutory stare decisis supports the result in Smith. Furthermore, Bizarro statutory stare decisis interferes with the proper balance of power between Congress and the Court and implicates the countermajoritarian difficulty of elevating the Court’s interpretations over Congress’s expressed preferences. The paper explores other contexts in which Bizarro statutory stare decisis could wreak havoc. Finally, I present an alternative to Bizarro statutory stare decisis. In situations like Smith, the Court should not treat an overridden interpretation as binding precedent, but should interpret the statute before it as a matter of first impression. In doing so, an overridden interpretation should not be duplicated without clear textual, purposive, or historical evidence that the overridden interpretation is more appropriate this time around. The paper concludes by applying this alternative to Smith and explaining why Wards Cove should never have been revived

Copyright and Open Source Software Licensing

The open source software movement has swept the software industry by storm in recent times, challenging many pre-conceptions about existing software development and licensing models. Copyright have protected software ownership and licensing of much of the closed source software in the market but how does copyright relate to open source software licensing? This dissertation describes the past and present of legal software protection and traces the history of the open source software movement from the Free Software Foundation and Open Source Initiative to the current state of the industry. The various open source licences are compared and explained. The discussion concludes with a discussion on the legal enforceability of open source licences

Reassessing Damages in Securities Fraud Class Actions

No coherent doctrinal statement exists for calculating open-market damages for securities fraud class actions. Instead, courts have tried in vain to fashion common-law deceit and misrepresentation remedies to fit open-market fraud. The result is a relatively ineffective system with a hallmark feature: unpredictable damage awards. This poses a significant fraud deterrence problem from both a practical and a theoretical standpoint. In 2005, the Supreme Court had the opportunity to clarify open-market damage principles and to facilitate earlier dismissal of cases without compensable economic losses. Instead, in Dura Pharmaceuticals v. Broudo, it further confused the damage issue by (1) perpetuating the idea that courts can tailor damages from common-law deceit and misrepresentation actions to remedy open-market fraud despite the practical disparities between the two and (2) opening the door to a new form of hypothetical losses where the stock price increases after an opportune disclosure of fraud. By increasing ambiguity in the law governing open-market damages, the Supreme Court may have inhibited securities fraud deterrence in two distinct ways. First, without a standard damage measure, courts have trouble determining whether plaintiffs suffered compensable economic loss from the initial pleadings, which means that a court may hesitate to dismiss even an action that does not plead a prima facie case of fraud. Second, corporate actors cannot weigh the costs of their potentially fraudulent behavior with any certainty. The Supreme Court’s insinuation that a new form of hypothetical losses might be recoverable further inhibits predictability and could have perverse effects on investor education and motivation. In Dura, the Court implied that an investor might be able to recover damages when a stock’s price does not increase as much as it might have absent the fraud. This suggests that plaintiffs might not be limited to traditional out-of-pocket losses. A number of intrinsic problems could result from compensating investors for more than their out-of-pocket losses. For example, providing investors with a double-recovery, one from the net stock price increase and one from class-action damages, could create a perverse incentive to invest purposefully in companies showing signs of fraud. Accordingly, to minimize these effects and to promote predictability, this Article suggests that courts should limit plaintiffs to their out-of-pocket losses and subject expert methodology for calculating damages to a Daubert inquiry. My intention in this Article is not to imply that simply limiting investors to their out-of-pocket losses will provide a quick “fix” for the ills of the securities class-action system. Instead, I hope to highlight some of the intrinsic problems that could result from compensating investors with a net gain and from stretching traditional common-law remedies to fit modern securities-fraud class actions. The out-of-pocket measure is the only common-law remedy that recognizes the distinctions between face-to-face transactions and open-market fraud, that complies with the loss causation requirement, and that limits plaintiffs to their actual damages. Restricting investors to out-of-pocket losses also advances optimal deterrence by increasing predictability through a clear doctrinal damage calculation

Designing Interstate Institutions: The Example of the SSUTA

This Article presents a case study in designing cooperative interstate institutions. It takes as its subject the Streamlined Sales and Use Tax Agreement (“SSUTA”), a recently-developed compact among the States now awaiting congressional ratification. The SSUTA’s primary goal is to bring uniformity to the field of state and local sales taxation, a regime in which multi-jurisdictional sellers now confront literally thousands of different sets of rules. I predict here that the SSUTA as currently designed is unlikely to accomplish that goal, and attempt to suggest possible amendments that could improve its expected performance. From these efforts I extract larger lessons about the workings of many similar cooperative ventures. My prognosis for the SSUTA turns largely on the political economy of state taxation. Extending Daniel Shaviro’s seminal work on state incentives for tax-law disuniformity, I examine how the institutional arrangements set out by the SSUTA respond to the pressures identified by Shaviro. I additionally weigh a number of factors omitted in his analysis. For example, I consider the possible public-regarding tendencies of bureaucratic ideology or sense of mission among either state-level tax administrators, state courts, or the governing body of the SSUTA. I also examine the possibility that ongoing intervention by Congress or a reviewing federal court might help either to check rent-seeking by, or instill a stronger sense of public regard in, the SSUTA Governing Board and state-level actors. I find none of these alternatives especially promising. For example, federal judicial review is often offered as a panacea by present critics of the SSUTA. However, it was precisely the relative incompetence of federal judges in balancing the goods of uniformity against the possible autonomy and experimental benefits of diversity that lead the Supreme Court to, in essence, punt the problem back to Congress. And the failure of local businesses to internalize the costs of national disuniformity likely distorts the decisions not only of state politicians and bureaucrats but also of state courts and Congress. Having made a more precise diagnosis of the problems that confront the SSUTA, I am able to suggest more precisely targeted solutions. Somewhat radically, I propose tying the deductibility of businesses’ federal deduction for state and local tax paid to federal administrative approval of the taxing state’s compliance with SSUTA, with approval subject in turn to federal judicial review. In this way, the businesses are made to internalize the costs they impose on others. And the most politically remote actors, federal judges, would have a reliable interpretive partner to supplement their own, ordinarily rather weak, fact finding and policy analysis. Finally, I claim that this analysis is generalizable. It helps to evidence the weakness of nationwide policy making that is dependent purely either on unmitigated “market” federalism, or on relatively rigid and uninformed judicial mandates. And it opens the possibility that conditional taxes, like conditional spending, can be a significant tool in coordinating our national policy goals

Revitalizing Our Urban Core without Marginalizing Our Core People: Closing Tax Credit Loopholes for the Wealthy while Generating Ethnic Entrepreneurial Self Help Alternatives to Subsidized Gentrification

This article provides the most comprehensive analysis to date of the New Markets Tax Credits program established by Congress. The purpose of the NMTCs is to use tax credits as incentives for investors to provide equity funds into low income areas. The article reveals that over $2 billion of federal tax subsidies that have been allocated to gentrified projects for the wealthy, rather than the intended beneficiaries – low income residents in the urban core – as Congress intended. The article proposes amendments to the statute and regulations to close unintended loopholes. The article also creates a model for a substrata of the African American middle class (termed “Ethnivestors”) who are likely to have the requisite investment motivations to step up to the challenge of investing in the urban core as a matter of collective personal responsibility/self help. This model incorporates lessons of prior ethnic enclaves in America. Neoclassical and contemporary principles of law and economics are also infused into the analysis