Aggregate Litigation and Regulatory Innovation: Another View of Judicial Efficiency

In this article, we argue that aggregate litigation and the court system can not only restore the protection of victims and the production of deterrence, but also play a pivotal role in stimulating regulatory innovation. This is accomplished through a reward system that seems largely to mimic the institutional devices used in other domains, such as intellectual property rights, by defining a proper set of incentives. Precisely the described solution relies on creating a specific economic framework able to foster economies of scale and grant a valuable property right over a specific litigation to an entrepreneurial individual, who in exchange provides the venture capital needed for the legal action, and produces inputs and focal points for amending regulations. In this light, aggregate litigation thus can be equally seen as an incubator for regulation.aggregate litigation, efficiency, market for risk, hierarchy, regulation, innovation, asbestos

Pelle sub agnina latitat mens saepe lupina. Copyright in the marketplace

This paper focus on the relationship between the right's aims of providing an incentive for creative activities, and the overall efficiency. It can in fact be shown that, even if the commodification of intellectual works by means of copyright does provide some incentive for creative activities, this benefit is offset by certain ‘side effects’ on the diversity and quality of the ideas produced, and interference with access to information and the incremental process of creation. All of which, if duly taken into account, can seriously call into question the overall balance of efficiency. In the present-day debate, the justifications given for copyright and author's rights invoke both considerations of economic efficiency, as well as ethics and rhetoric. However such arguments neglect to factor in the social costs, thus portraying in false light an institution that has, in practice, often served private interests very distant from its purported aims, injecting a significant amount of inefficiency into the economic system. This state of affairs can therefore be aptly summed up by the Latin adage of the title: "A wolf often lies concealed in the skin of a lamb". Nevertheless, the objections raised thus far, in the literature on the economic analysis of intellectual property rights, have inevitably resorted to the contra position of extra-economic values, such as equity and justice, against those of economic efficiency. In the present discussion we shall seek to reconcile these two sides, showing how, under an expanded analytical perspective with respect to costs and benefits, and taking into consideration additional elements, copyright proves to be fundamentally inefficient even from a strictly economic standpoint, and that this will only be aggravated by technological progress. We will therefore demonstrate that an examination of the dynamics of the right within the market and society can seriously call into question, or even entirely overturn, the traditional economic arguments in favour of copyright.

Copyright and endogenous market structure: a glimpse from the journal-publishing market

This article explores the journal publishing industry in order to shed light on the overall economic consequences of copyright in markets. Since the rationale for copyright is among others to promise some market power to the holder of the successful copyrighted item, it also provides incentives to preserve and extend market power. A regular trait of copyright industries is high concentration and the creation of large catalogues of copyrights in the hands of incumbents. This outcome can be observed as the aggregation of rights and is one of the pivotal strategies for obtaining or extending market power, consistently with findings in other cases. Journal publishing is no different in this respect from other copyright industries, and in the last decade has experienced a similar trajectory, leading to a highly concentrated industry in which a handful of large firms increasingly control a substantial part of the market. It also provides a clear example of the effect of copyright dynamics on market structure, suggesting that a different attitude should be taken in lawmaking and law enforcement.copyright and market power, endogenous market structure, journal-publishing industry

Access to vs. exclusion from knowledge: Intellectual property, efficiency and social justice.

The main rationale for intellectual property relies on the thesis of the incentive to create. Creators and inventors are economic agents attracted by the returns they expect from their effort. This depiction is practical, but does not give due weight to the complexity of knowledge production. This work does not contest the potential benefit of the opportunity for creators and inventors to reap some profit from their work. Rather, it considers the idiosyncratic nature of knowledge, which is simultaneously input, output and productive technology, and is closely linked to the social dimension. This provides further insight into the production process and suggests a significantly different framework for policy. More specifically, because of the increasing returns governing creative technology, the efficiency criterion used to guide the economic choice calls for weak intellectual property rights, thus preserving wide access to knowledge. A stronger appropriation regime would significantly impair the total outcome of the creative processes. Interestingly, this appears to apply equally from a social justice perspective, perhaps in an effortless solution to the age-old trade-off between economic efficiency and social justice.intellectual property rights, knowledge production, increasing returns, knowledge sharing, productivity, social justice

Property rights and externalities: The uneasy case of knowledge

Drawing from Coase's methodological lesson, this article discusses the specific case of knowledge, which was for a long time chiefly governed by exchange mechanisms lying outside the market, and has only recently been brought into the market. Its recent, heavy "colonization" by the property paradigm has progressively elicited criticism from commentators who, for various reasons, believe that the market can play only a limited role in pursuing efficiency in the knowledge domain. The article agrees with the enounced thesis and tries to provide an explanation of it that relates to the fact that in specific circumstances property-rights can produce distinct market failures that affect the social cost and can consequently prevent attainment of social welfare. In particular, the arguments set forth here concern three distinct externalities that arise when enforcing a property rights system over knowledge. First, the existence of a property right may itself alter individual preferences and social norms, thus causing specific changes in individuals' behaviour. Second, the idiosyncratic nature of knowledge, as a collective and inherently indivisible entity, means that its full propertization can be expected to produce significant harm. Third, property rights can cause endogenous drifts in the market structure arising from the exclusive power granted to the right holder: though generally intended as a necessary mechanism for extracting a price from the consumer, in the knowledge domain property rights can become a device for extracting rents from the market.property rights, knowledge, invention, externalities, efficiency

The Simple Economics of Class Action: Private Provision of Club and Public Goods

This article uses economic categories to show how the reorganisation of civil procedure in the case of class action is not merely aimed at providing a more efficient litigation technology, as hierarchies (and company law) might do for other productive activities, but that it also serves to create a well defined economic organization ultimately aimed at producing a set of goods, first and foremost among which are justice and efficiency. Class action has the potential to recreate, in the judicial domain, the same effects that individual interests and motivations, governed by the perfect competition paradigm, bring to the market. Moreover, through economic analysis it is possible to rediscover not only the productive function of this legal machinery, but also that partial compensation of victims and large profits for the class counsel, far from being a side-effect, are actually a necessary condition for reallocation of the costs and risks associated with the legal action.class action, collective litigation, mass tort, club, liability, deterrence

Appropriating signs and meaning: The elusive economics of trademark

This paper deals with economic analysis of trademark. Its presence in markets is originally connected with the problem of information asymmetries and the need to provide information for assisting exchanges, so as to avert the market failure brought about by adverse selection. However this information-conveying function is also accompanied by a differentiation effect, arising from the power of persuasion that signs can exert on individuals. The exploitation of differentiation has given rise to the practice of branding, which ties markets and consumption to the realms of meaning and experience. Branding is so all-pervasive in today's economy as to have somehow transfigured it, so that the role of persuasion is now pre-eminent. Nonetheless, the mainstream economic theory tends to resist acknowledging this change, which would to a large extent call into question well-established hypotheses and theoretical tools. The general response has therefore been to assume that the informational role of trademark predominates, and to use this hypothesis to construct models, welfare evaluations and policy prescriptions that bear little or no relation to the actual markets. The opposing approach - in the shadow of the Nelson's and Arrow's seminal papers on economics of information - is recognising the idiosyncratic character of information, and therefore drawing conclusions and devising solutions that, while still based upon the welfare criterion, also incorporate a wider awareness and a deeper representation of the scenario under study. The present work attempts to move in this direction, showing how different disciplines can provide some key epistemological tools for enabling economists to effectively evaluate the welfare outcomes of the introduction and progressive alteration of a particular intellectual property right within the realm of signs and meanings.trademark, brand, intellectual property, economics of information, signs,economic welfare

Competition in Banking: Switching Costs and the Limits of Antitrust Enforcement

The antitrust intervention in banking has always been heavily influenced by considerations of stability. Regulation has historically given precedence to the stability objective, relegating thus competition to second place. In fact, in the case of banking, price competition tends to encourage overly speculative behaviours, which essentially entail acceptance of excessive risk, with a resultant volatility that could potentially harm depositors, and ultimately compromise the stability of the economic system as a whole. The consequence of this approach is that banking market becomes extremely rigid on the supply side and structurally not equipped for a competitive orientation, and banks come to occupy a privileged position vis-à-vis governments that--to a greater or lesser extent, depending on the countries and the situations--enables them to sidestep the antitrust authorities. In such a scenario, the trade-off between stability and competition cannot be totally resolved through traditional antitrust actions, which are sometimes at odds with the stability objective and hampered by the constraints of the previously defined regulatory framework. It is precisely these considerations, found in a significant portion of the literature, that provide the starting base for the hypothesis of this work and namely the proposal of a novel demand side perspective, i.e. one which focuses on the central role of consumers in the competitive process. If intervention on the supply side is hampered a priori by the regulatory framework, it is nevertheless possible to implement pro-competition actions on the demand side, for example by enhancing the ability of consumers to change from one provider to the other without impacting on the market structure. In operational terms, the proposed approach is to leverage consumer mobility in order to stimulate the currently weakened competition between firms. This would make it possible to pursue the traditional antitrust objectives of efficiency and welfare maximisation, without necessarily impacting on stability.