Populist and Economic v. Feudal: Approaches to Industry Self-Regulation in the United States and England

English and American courts treat industry self-regulation very differently. American courts have been generally slow to acknowledge the legitimacy of self-regulation. Once they accept the need for some degree of self-regulation, however, the American courts, under the growing influence of the Chicago school, have become increasingly willing to uphold the regulation on the grounds of economic efficiency. The English courts have had less difficulty recognizing the legitimate role industry self-regulation plays. In determining the reasonableness of the regulatory scheme, however, the English courts adopt a protectionist approach which favours the status quo within the industry. These distinctions, the author argues, reflect fundamentally different attitudes towards both the concept of private rule and the role of the courts in the economic affairs of the country

Maintaining Incentives for Bioprospecting: The Occasional Need for a Right to Lie

Building on a model by Anthony Kronman, the author argues that biotechnological researchers searching for valuable cells should occasionally be allowed to deceive research subjects whose cells prove valuable. The wish to preserve proper incentives for these searches justifies this exception to the law\u27s usual abhorrence of deception. The subject\u27s ability to hold up the researcher once the subject learns of his cells\u27 value combined with the law\u27s likely refusal to force an unwilling subject to continue his cooperation with the researcher poses risks for biotechnologists that other producers of information do not face and that the right to deceive helps to alleviate. The author explains the variables that limit the proposed right to deceive, examines arguments against the proposed rule, and describes the current law. Bioprospecting, the search for valuable cells, also presents three related issues on which the author comments. One issue is whether the subject\u27s assignment of all his rights in his cell samples to the researcher should be enforced ex post when the cells prove valuable. A second issue is whether, in the absence of a clear assignment of rights to the cell samples, the subject or patient should possess a claim against the researcher to a share of revenues derived from those cell samples. A third issue is whether a patient whose samples are used for research or commercial purposes without his express consent should possess some dignitary claim against the researcher regardless of whether the samples have proven valuable. On each issue, the author supports an approach that favors the biotechnological researcher