Revisiting the North Carolina Business Court After Twenty Years

Over the past two decades, almost half of all states have enacted business courts to assume jurisdiction over locally arising business disputes. Advocates of these new courts assert that by trying business disputes in a specialized forum using an expert jurist, these venues should improve the adjudication of local business conflicts, while developing the states’ business climate. Considering that a majority of Fortune 500 companies are incorporated in Delaware, where the state’s esteemed Court of Chancery hears all local corporate disputes, out-of-state businesses may become more likely to incorporate or relocate to a state that has enacted a business court. Most academics, however, refute that these nascent business courts will generate tangible benefits. Their first point is that business courts differ substantially from Delaware’s Court of Chancery. The second argument is that business courts are not nearly as established or reputable as the Chancery Court. It is also argued that companies are not nearly as concerned with a state’s legal landscape as they are with other factors, and thus, should be unlikely to migrate to another state for the sake of a business court. Indeed, these competing narratives raise important questions about the ability of states and their court systems to improve business adjudication and to build local value. The North Carolina Business Court is one of the most reputable and established of these new specialty courts. Having been established almost twenty years ago, the North Carolina Business Court should provide meaningful insights into this debate regarding the benefits of having a business court. Using both statistical and anecdotal evidence, this Article explores whether business courts have improved, or are likely to improve, American business jurisprudence. Alternatively, this Article explores whether business courts can help states to compete against Delaware’s corporate monopoly

Monopolizing Free Speech

The First Amendment prevents the government from suppressing speech, though individuals can ban, chill, or abridge free expression without offending the Constitution. Hardly an unintended consequence, Justice Oliver Wendell Holmes famously likened free speech to a marketplace where the responsibility of rejecting dangerous, repugnant, or worthless speech lies with the people. This supposedly maximizes social welfare on the theory that the market promotes good ideas and condemns bad ones better than the state can. Nevertheless, there is a concern that large technology corporations exercise unreasonable power in the marketplace of ideas. Because “big tech’s” ability to abridge speech lacks constitutional obstacles, many litigants, politicians, and commentators have recently begun to claim that the act of suppressing speech is anticompetitive and thus should offend the antitrust laws. Their theory, however, seems contrary to antitrust law. Since antitrust is intended to promote consumer welfare in commercial markets, antitrust liability is typically reserved for firms that have harmed consumers economically. This generally requires showing higher prices or restricted output. As such, the courts have largely declared that speech entails noncommercial activity antitrust has no authority to govern, despite the emergence of rhetoric and lawsuits seeking to do just that. This Article argues that, contrary to precedent, antitrust law can and should promote commercial speech. The economy has evolved such that firms and consumers depend on information, ideas, and speech even when traded at zero prices—known as the “information economy.” In turn, technology firms encounter incentives to suppress types of commercial speech and, when wielding market power, the ability to do so. For example, Apple and Google allegedly bury information, advertising, and other forms of commercial expression about rival products to achieve anticompetitive ends, harming consumers and markets. This Article asserts that in certain instances, enforcement should condemn the exclusion of commercial information even when consumers enjoy low prices while resisting the emergence of rhetoric calling for the integration of all types of speech—e.g., expressive, political, and social speech—into antitrust’s framework. If antitrust promoted noncommercial speech, it would erode the First Amendment as well as antitrust law

Innovative Antitrust and the Patent System

I. Introduction II. The Evolution of the Antitrust-Patent Paradox III. The Antitrust Agencies, Enforcement, and Innovation Policy ... A. Merger Review and Enforcement ... B. Nonmerger Antitrust Claims ... C. Private Actors Enforcing Innovation IV. Case Studies ... A. Boston Scientific’s Merger and Consent Order ... B. Qualcomm’s Attempt to Dominate the Market for Cellphones and Cellphone Innovation ... C. The Dilemma of Creating Antitrust Liability in the Pharmaceutical Industry V. An Empirical Analysis of Antitrust’s Influence on Innovation ... A. Hypotheses ... B. Research Design ... 1. Variables ... 2. Statistical Model ... C. Deductions, Conclusions, and Implications ... D. Conclusion VI. Policy, Legal, and Theoretical Implications and Proposal

Explaining the Art Market\u27s Thefts, Frauds, and Forgeries (And Why the Art Market Does Not Seem to Care)

Based upon a series of interviews with art market experts, this Article identifies and answers a significant, yet previously unexplored economics puzzle affecting the art market. Economics suggests that markets typically produce efficiency and social wealth, but when they fail, most actors should prefer remedial measures over an inefficient status quo. The art market currently is, and has been, plagued with frauds, thefts, forgeries, and market failure--a state of affairs that the governing legal framework has made worse. Despite this, the art market seems to adamantly, and puzzlingly, defend its business culture, rejecting attempts to remedy inefficiencies. In other words, why has the art industry remained stable, yet fraught with market failure? The research herein finds that reliable product information is the lifeblood of efficient markets, yet the nature of art encourages many participants to withhold or conceal important market information. This often prevents prospective buyers from accurately determining a work\u27s value, leading to inefficient behavior. Few actors have sought change, however, because the economics of art produces a special conflict of interest: buyers expect art to appreciate in value and thus assume they will resell the work at a higher price, causing them to prefer a market favoring the sellers. This observation suggests that efficient markets require buyers and sellers to be sufficiently adverse or else incur stark inefficiencies

The Necessity in Antitrust Law

Antitrust rarely, if ever, gives primacy to a dispute’s subject matter. For instance, exclusionary conduct that raises the price of a lifesaving drug receives the same analysis as a restraint of baseball cards. Since antitrust’s purpose is to promote consumer welfare, the equal treatment of important and mundane goods might appear perplexing. After all, competition to produce affordable foods, medicines, and other necessities would seem to foster consumer welfare more than inane products do. In fact, defendants generally win antitrust lawsuits even when monopolizing necessities because the primary method of antitrust review is notably deferential to defendants. To explain this landscape, the high prices available in a monopoly should incentivize rivals to enter the market, creating competition and correcting the market. Additionally, people may presumably mitigate high prices by buying a lesser substitute or nothing at all. Since courts apply the same level of deference regardless of the market’s importance, a defendant who cites an efficiency gained from excluding competition can typically survive antitrust scrutiny. This Article argues that core pillars of antitrust make little sense with necessities. An exclusionary act in an essential market extracts an added premium reflecting society’s vulnerability, making the costs of market power much greater than with mundane goods. The effect is that antitrust courts have systematically underestimated the costs of monopolies and trade restraints in essential markets, causing them to misidentify anticompetitive acts as procompetitive. Indeed, whereas antitrust assumes that consumers enjoy options when faced with monopoly pricing, people who need a necessity such as a life-saving drug will pay the high prices so long as they can. The implications are many. First, a larger spectrum of consumers must pay the monopoly rates. Second, whereas a cartel of artisan belt makers may only charge so much before consumers purchase mass-produced belts, a monopolist can demand a greater premium without losing consumers. Third, this landscape incentivizes collusion since firms can extract more money from more people. Fourth, anticompetitive conduct is more likely to harm marginalized groups who suffer higher switching costs (for example, self-medication over expensive pharmaceuticals) or even complete deprivations of necessities. This Article argues that the concepts of essentialness and inelasticity must be integrated into the substantive analysis of whether conduct is anticompetitive. It provides a logical framework to do so using a seldom employed approach called the “quick look,” which would flip the burden onto the defendant and thereby strip the typical analysis of its deference in essential markets. In fact, since confusion over when the quick look is proper has made it a rarity—despite widespread support for its usage—this Article’s approach would establish an effective place for the test. Also, recognizing the greater level of harm inflicted on especially marginalized populations, the proposal would enhance welfare by beginning to disaggregate the term “consumers.

Private Solutions to Global Crises

(Excerpt) The contribution of this Article is both theoretical and practical. Considering that MNCs rarely suffer liability abroad, this Article identifies an emerging, understudied type of international agreement able to hold MNCs responsible for torts in the developing world. On a theoretical level, the research herein identifies situations in which arbitral decisions are superior to judicial rulings. This Article also advances the private dispute resolution literature, which has developed slowly due to arbitration’s private and confidential nature. The works that do discuss arbitration overwhelmingly assume that the process favors corporations, rarely mentioning arbitration’s socially desirable qualities. Thus, this Article offers a needed discussion of the advantages arbitration presents over courts of law, as well as the legal implications of litigating and arbitrating against MNCs. Part I explores the law of suing western companies in the developing world, adding policy insights to the reasons why MNCs are largely immune from suit. Part II reviews the nature and efficacy of private remedies, which is accomplished by framing the arbitration debate from several perspectives. Part III offers a discussion of recent contracts and international agreements that use arbitration as a means to hold MNCs accountable. Then, Part IV discusses potential applications of such a mechanism, followed by the Conclusion

Private Solutions to Global Crises

(Excerpt) The contribution of this Article is both theoretical and practical. Considering that MNCs rarely suffer liability abroad, this Article identifies an emerging, understudied type of international agreement able to hold MNCs responsible for torts in the developing world. On a theoretical level, the research herein identifies situations in which arbitral decisions are superior to judicial rulings. This Article also advances the private dispute resolution literature, which has developed slowly due to arbitration’s private and confidential nature. The works that do discuss arbitration overwhelmingly assume that the process favors corporations, rarely mentioning arbitration’s socially desirable qualities. Thus, this Article offers a needed discussion of the advantages arbitration presents over courts of law, as well as the legal implications of litigating and arbitrating against MNCs. Part I explores the law of suing western companies in the developing world, adding policy insights to the reasons why MNCs are largely immune from suit. Part II reviews the nature and efficacy of private remedies, which is accomplished by framing the arbitration debate from several perspectives. Part III offers a discussion of recent contracts and international agreements that use arbitration as a means to hold MNCs accountable. Then, Part IV discusses potential applications of such a mechanism, followed by the Conclusion

PaPaS: A Portable, Lightweight, and Generic Framework for Parallel Parameter Studies

The current landscape of scientific research is widely based on modeling and simulation, typically with complexity in the simulation's flow of execution and parameterization properties. Execution flows are not necessarily straightforward since they may need multiple processing tasks and iterations. Furthermore, parameter and performance studies are common approaches used to characterize a simulation, often requiring traversal of a large parameter space. High-performance computers offer practical resources at the expense of users handling the setup, submission, and management of jobs. This work presents the design of PaPaS, a portable, lightweight, and generic workflow framework for conducting parallel parameter and performance studies. Workflows are defined using parameter files based on keyword-value pairs syntax, thus removing from the user the overhead of creating complex scripts to manage the workflow. A parameter set consists of any combination of environment variables, files, partial file contents, and command line arguments. PaPaS is being developed in Python 3 with support for distributed parallelization using SSH, batch systems, and C++ MPI. The PaPaS framework will run as user processes, and can be used in single/multi-node and multi-tenant computing systems. An example simulation using the BehaviorSpace tool from NetLogo and a matrix multiply using OpenMP are presented as parameter and performance studies, respectively. The results demonstrate that the PaPaS framework offers a simple method for defining and managing parameter studies, while increasing resource utilization.Comment: 8 pages, 6 figures, PEARC '18: Practice and Experience in Advanced Research Computing, July 22--26, 2018, Pittsburgh, PA, US

Patent Law and the Emigration of Innovation

Legislators and industry leaders claim that patent strength in the United States has declined, causing firms to innovate in foreign countries. Because, however, patent law is bound by strict territorial limitations, one cannot strengthen patent protection by innovating abroad; as a result, scholarship has largely dismissed the theory that foreign patents have any effect on where firms invent. In essence, then, there is a debate pitting industry leaders against scholarship about whether firms can use offshore innovation to secure stronger patent rights, influencing the rate of innovation. To resolve this puzzle, we offer a novel theory of patent rights—which we empirically test—to dispel the positions taken by both scholarship and industry leaders. Given that technology is generally developed in one country, the innovation process exposes the typical inventor to infringement claims only in that jurisdiction. In turn, we demonstrate that inventors have powerful, counterintuitive incentives to develop technology where patent rights are weaker and enforcement is cheaper. Specifically, it typically costs more to defend a patent infringement claim in the United States than to lose one in another country (the cost to litigate a patent in the United States averages about $3.5 million and royalty awards have surpassed$2.5 billion). Our findings suggest that industry advocates and patent scholars overestimate how much innovation strong patent protection generates while underestimating the deterrent effect of these high costs of patent enforcement. This empirical research contributes to the theoretical understanding of patent rights by shedding new light on this important, yet largely dismissed, dimension of where innovation takes place. We received invaluable support from international research organizations and patent attorneys working for top-tier law firms. Notably, the Global IP Project, a multinational research group spearheaded by Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, the leading global intellectual property law firm, and Darts-ip, an international organization dedicated to the study of global IP litigation, provided proprietary data. This enabled us to explore whether firms optimize value by placing research and innovation in countries with “better” patent laws. To verify our models, we interviewed notable patent attorneys practicing in the United States, Europe, and Asia