bluuebunny/crossref_metadata_2025_split huggingface dataset:
Conservative Economics and Antitrust: A Variety of Influences
Authors: Scherer F. M. 
Published: January 2009

Abstract
This paper observes that antitrust analysis has moved sharply to the conservative side and emphasizes the complexity of issues. First, it notes that the move toward less enforcement does not reflect just the influence of economists but also of lawyers, enforcement officials, and judges who believe in the precept that government is the problem and not the solution. Second, it observes that conservative approaches avoiding government intervention is not a consistent view of the Chicago School. It has advocated vigorous antitrust enforcement in the area of price-fixing among direct rivals (cartel policy) and occasionally advocated limits on the size of corporations. However, in recent years, extreme Chicago views have influenced enforcement, particularly during Republican administrations. Illustrations include declining enforcement efforts with respect to predatory pricing, concentrated (i.e., oligopoly) markets, and mergers. As an example of scholarship that argues that market forces will solve all problems, the paper cites an article by J. McGee to the effect that with the exception of industries where the state blocks entry “[t]here is the strongest presumption that the existing structure [of industry] is the efficient structure.” In a concluding section, the paper takes on a specific issue that has been advocated as a result of conservative economic analysis and has achieved substantial support. That view, virtually a consensus in terms of conservative economic analysis, is that government regulation of intellectual property—particularly mandatory licensing of patents as a remedy for wrong-doing—will reduce investments in innovation and, in the long run, injure consumers. That conclusion is inconsistent with a body of empirical evidence that antitrust enforcement had little adverse impact on investments in innovation.
On the Foundations of Antitrust Law and Economics
Authors: Rubinfeld Daniel L. 
Published: January 2009

AbstractThis paper suggests that while the influence of industrial organization economics has grown substantially over time, it would be overly simplistic to characterize that influence as having been driven solely by a group of conservative antitrust legal and/or economic scholars. Differences among antitrust economists are as likely due to the fact economists hold a range of views as to the meaning of economic efficiency, and they differ significantly in their beliefs as to the likely efficacy of government intervention. The paper begins with an overview of the history of antitrust policy. It explains how important precedents in the law have followed, albeit with a substantial lag, important developments in the economics of industrial organization that serve as important underpinnings of the law. It then explains why and how economists' views of antitrust policy differ, and how and why conservative economics has overshot the mark to some degree.
The Efficiency Paradox
Authors: Fox Eleanor M. 
Published: January 2009

Abstract
This paper defines various concepts of efficiency and then demonstrates how conservative economic approaches have led to wrong results in several important cases. It asks: What is efficiency? Can antitrust law produce efficiency, and how does it try to do so? It observes that one way antitrust pursues efficiency is by choosing a proxy; notably, either trust in the dynamic of the competition process or trust in (even) the dominant firm. By case examples, it shows the effect of conservative economics in choosing as the proxy trust in the dominant firm. It argues that this phenomenon has produced the Efficiency Paradox: In the name of efficiency, conservative theories of antitrust cut off the most promising paths to efficiency. It is suggested that we can eliminate the Efficiency Paradox by readjusting the pendulum to give more regard to the incentives of mavericks and challengers and less regard to the freedom and autonomy of dominant firms.
The Chicago School’s Foundation Is Flawed: Antitrust Protects Consumers, Not Efficiency
Authors: Kirkwood John B. , Lande Robert H. 
Published: January 2009

Abstract
This paper demonstrates that the Chicago School is wrong, as to both congressional intent and to recent case law. It begins by demonstrating that the wealth transfer concern is the primary reason for the passage of the antitrust laws and is a far more plausible explanation than the efficiency goal. It then analyzes the treatment of these issues in recent antitrust cases. It shows how these cases can be best explained in terms of a concern with wealth transfers, as opposed to a concern with efficiency. It is argued that the foundation of the Chicago School is flawed, and that the correct path of antitrust policy should not be determined by the view that increasing efficiency is more important than protecting consumers.
Comment on Herbert Hovenkamp and the Dominant Firm: The Chicago School Has Made Us Too Cautious About False Positives and the Use of Section 2 of the Sherman Act
Authors: Goldschmid Harvey J. 
Published: January 2009

Abstract
This paper observes the absence in recent years of serious enforcement of section 2. With respect to Justice Scalia's extensive comments in the Trinko decision about the value of aggressive behavior leading to monopoly power, it notes the total absence in the Scalia opinion of any concern with the anticonsumer side of monopoly power—“excessive prices, misallocation of resources, and loss of dynamic efficiency.” That style of passive acceptance follows from one of the basic canons of conservative economic analysis—the theory that if a monopolist tries to take advantage of its market position, new entry and market corrections will automatically appear and make section 2 law enforcement largely unnecessary. The paper advocates a balancing test, citing language in Aspen Ski and Microsoft as a more sensible approach to dominant firm behavior than the rigid passive approach to enforcement, based on general Chicago School scholarship. With respect to recent cases, it notes that a benign attitude toward unreasonable behavior by a monopolist throws into doubt the unanimous opinion of the District of Columbia Court of Appeals finding that Microsoft had violated section 2.
Economic Analysis of Exclusionary Vertical Conduct: Where Chicago Has Overshot the Mark
Authors: Salop Steven C. 
Published: January 2009

Abstract
This chapter presents two papers that take issue with Chicago School thinking at the most basic levels, rejecting the ideas that vertical arrangements rarely if ever can harm consumers, exclusionary vertical conduct is either benign or procompetitive, and that predatory pricing (pricing below some appropriate level of cost) “is rarely attempted and even more rarely succeeds.” The first paper also rejects the idea that vertical arrangements can almost never hurt consumers or competition. The second paper focuses on case law concerning vertical arrangements and exclusive dealing law.
Public Participation in Practice
Authors: Louka Elli 
Published: January 2009

Abstract
This chapter examines public participation in water management in the Netherlands and the UK. The waterschap (water board), as it has evolved in the Netherlands, offers lessons as a stakeholder-based institution focused on water management. The Ribble pilot project in the UK sought to test public participation by experimenting with various forms of participation and identifying the lessons learned and usability in the water framework directive context.
Optimal Territorial Scope of Laws
Authors: Parisi Francesco , Fon Vincy 
Published: January 2009

AbstractA third problem faced by lawmakers when planning their legislative intervention concerns the territorial scope of application of their laws. Because political units are frequently subdivided into smaller units, rules can be enacted and enforced at different levels, whether by the central government or by local governments. This chapter considers what factors should be considered when allocating a given policy function at a particular level, and how do these factors affect the growth and evolution of multilevel governments. These issues are addressed with reference to the existing economic literature and with the aid of a model of subsidiarity and rule competition. After discussing the interplay of economies of scale, economies of scope, and heterogeneity of preferences in determining the optimal level of legal intervention, it is shown that the subsidiarity principle can have mixed effects as a firewall against progressive centralization.
Litigation and the Evolution of Legal Remedies*
Authors: Parisi Francesco , Fon Vincy 
Published: January 2009

AbstractThis chapter considers an often-overlooked ingredient of the creation of legal precedents and revisits the role of litigation in the evolution of judge-made law. It addresses one important observation made by Posner (2006), who observed that judicial opinions and emotions play a relevant role in case decisions — a subjectivity that may render it desirable to promote an (ideologically) diverse judiciary. It examines the extent to which an increase in judges' diversity will actually avoid biases in the evolution of the common law. An adverse selection theory of litigation is developed, suggesting that the tendency toward increasing expansion of legal remedies, and more generally the entire process of creation and change of legal precedent in civil cases, is driven by a pervasive adverse selection mechanism.
Judicial Path-Dependence and Legal Change*
Authors: Parisi Francesco , Fon Vincy 
Published: January 2009

AbstractThis chapter considers the dynamic process of case selection and its role in generating the different patterns of change of legal remedies in various areas of the law. It examines the importance of the win-loss ratios (essentially, what a plaintiff stands to win if litigation is successful versus what he stands to lose if it is not) and the prospect of success of legal claims for the resulting process of legal change. Section 1 briefly assesses existing explanations of the process of legal change and reviews the seminal papers that evaluate the process of selection of disputes as an ingredient of the efficient evolution of legal rules. Section 2 proposes a model that evaluates the impact of case selection on legal evolution in different litigation contexts, highlighting the interaction among selection of disputes, litigation stakes in the case, and litigation costs, as well as their impact on legal change.
Theories of Legal Precedent
Authors: Parisi Francesco , Fon Vincy 
Published: January 2009

AbstractThis chapter begins by briefly introducing the theory of legal precedent from comparative and historical perspectives, and then focuses on one modern-day product of such evolution: the doctrine of jurisprudence constante. Although developed in a system that emphasizes certainty and stability, it is argued that this doctrine of precedent potentially leads to quite contrary results.
Customary Law and Articulation Theories*
Authors: Parisi Francesco , Fon Vincy 
Published: January 2009

AbstractThis chapter extends the analysis of Chapter 10 to consider new theories of customary law formation, with special emphasis on the role of articulation. The chapter is structured as follows. Section 1 presents the traditional doctrines of customary law and models the traditional process of custom formation for the case of bilateral custom. Section 2 extends the bilateral custom model to the case of multilateral custom, and to situations of uncertainty and delay in the formation and recognition of an emerging custom. It examines how the participation and effort incentives of states are affected by the presence of such conditions. Participation and effort incentives assume particular importance for identifying the limits of the traditional customary processes in real-life conditions. These limits are considered in Section 3, examining the potential role of alternative doctrines and processes of customary law formation in mitigating the shortcomings of traditional customary law theory.
Stability and Change in Customary Law*
Authors: Parisi Francesco , Fon Vincy 
Published: January 2009

AbstractThis chapter considers two legal doctrines that allow states to avoid the binding force of international customary law: the persistent objector and subsequent objector doctrines. The first doctrine gives objecting states an opportunity to avoid, partially or entirely, the binding force of an international norm by objecting to it. Under the subsequent objector doctrine, states can gain an exemption to depart from an existing rule of customary law only by securing the acquiescence of other states.
Formation and Accession to Treaties*
Authors: Parisi Francesco , Fon Vincy 
Published: January 2009

AbstractThis chapter develops a model of international treaty formation to analyze the different modalities by which states can become party to an international treaty. It analyzes the advantages original signatory states have over acceding states that justify undertaking the initial treaty negotiation costs. Section 1 starts by describing the main categories of treaty accession: (1) closed treaties; (2) semi-open treaties; and (3) open treaties. Section 2 considers the process of treaty formation under these categories. Section 3 discusses some variations of the basic model and draws conclusions.
The Hidden Bias of Treaty Law*
Authors: Parisi Francesco , Fon Vincy 
Published: January 2009

AbstractThis chapter suggests that in spite of the apparent neutrality of the reciprocity principle, a hidden bias of the Vienna Convention creates a systematic advantage for states with high costs and low benefits. The analysis sheds light on the troubled evolution of Article 21 of the Vienna Convention, and explains why, at times, economically disadvantaged states favored the reciprocity principle adopted by the Vienna Convention.
Conclusions
Authors: Parisi Francesco , Fon Vincy 
Published: January 2009

AbstractThis concluding chapter presents a synthesis of discussions in the preceding chapters. The book considered four different methods of lawmaking: (1) lawmaking through legislation; (2) lawmaking through adjudication; (3) lawmaking through practice; and (4) lawmaking through agreement. It considered various distinguishing features of these alternative sources of law, evaluating their relative advantages in the production of law. Lawmaking costs, agency problems in representation, legal stability, and institutional design of lawmaking are discussed.
Lawyers in the Dock
Authors: Abel Richard L. 
Published: January 2009

AbstractOur legal system is built on the trustworthiness of lawyers: clients must trust their fidelity, adversaries their undertakings, and courts the veracity of their legal and factual claims. Lawyers who betray trust undermine these foundations. Although legal scholars focus on refining the ethical rules, we know very little about the nature and reasons for their violation. The files of disciplinary proceedings are an underutilized resource for understanding lawyer deviance. This book mines the reports of New York disciplinary proceedings to illuminate the three most common and troubling categories: neglect of clients, overcharging, and excessive zeal. Because their livelihoods are at stake and they possess technical skills and resources, disciplined lawyers litigate these cases very thoroughly; those found guilty offer intimate personal details in mitigation during the penalty phase. The book concludes with practical recommendations for reducing lawyer deviance and restoring trust.
Juggling Too Many Balls
Authors: Abel Richard L. 
Published: January 2009

AbstractBecause their labor is their only commodity, service providers systematically overbook, forcing clients to queue for their attention. Solo practitioners are tempted to increase their caseload by delegating to under-qualified and inadequately supervised subordinates. The result is systematic neglect: missed deadlines, failure to obtain evidence, lack of communication, and endless delay. When this also creates cash-flow problems, lawyers may be tempted to bribe adversaries to settle.
The Perils of Perfectionism
Authors: Abel Richard L. 
Published: January 2009

AbstractFriendship and business do not mix, especially when they lead to oral, incomplete fee agreements. When a lawyer achieved an unusually good result in a tax dispute for his client friend, the lawyer felt entitled to appropriate the entire refund as his fee, recalculating his hours and hourly rate to exactly match the refund. The lawyer refused to acknowledge the existence of a fee dispute or to escrow the funds. Even when applying for readmission after a two-year suspension, the lawyer could not admit culpability.
God Is Winning: Religion in Global Politics
Authors: Shah Timothy Samuel , Toft Monica Duffy 
Published: January 2009

Abstract
This chapter sets the stage by giving an overview of the influence of religion on world politics in recent decades. It shows that world politics is increasingly marked by what could be called “prophetic politics” in which voices claiming transcendent authority are filling public spaces and winning key political contests. Some, like Al Qaeda, act through violence; others, like American evangelicals, act through elections; still others, like Hamas as well as some Indian Hindu revivalists, combine the two. But the overall trend is clear. Whether the field of battle is democratic elections or the more inchoate struggle for global public opinion, religious groups are increasingly competitive, putting secular movements on the defensive. The spread of democracy often enhances their reach. Democracy is giving the world’s peoples their voice, and many want to talk about God.
Jesus Christ, Superstar: The Passion of the Press
Authors: Lott Jeremy 
Published: January 2009

Abstract
This chapter reviews critical coverage of Mel Gibson’s The Passion of the Christ and finds little attempt to understand or portray the movie on its own terms—that it was not any effort at a literal portrayal of the gospels but was structured around a very specifically Catholic piety centered on the Stations of the Cross and the Eucharistic sensibility of Christ’s body and blood. Because they did not grasp these liturgical dimensions, the media instead focused on controversies about the movie’s purported anti-Semitism, its bloodiness, and supposed literalism. This led to many wrong predictions, including that the movie would bomb at the box office, that Gibson would lose his fortune, and that it would ignite a wave of anti-Semitism, and missing a major story—that millions of evangelicals warmly embraced a picture of very Roman Catholic sensibility.
Getting Religion in the Newsroom
Authors: Mattingly Terry 
Published: January 2009

Abstract
This chapter explores newsroom barriers to covering religion well, and draws on a series of interviews with journalists and editors generally believed to be doing well at connecting religion and journalism. It highlights the need for journalists to examine the religious language and labels that they use; the need for diversity of religious knowledge and awareness in newsrooms; the role of editors in offering better training and resources both to religion reporters per se and others whose work veers into religious territory; and the need to strive to get inside the daily lives and mindset of the people covered.
Getting It Right
Authors: Ahmanson Roberta Green 
Published: January 2009

Abstract
This chapter explores some of the conceptual barriers that journalists face in covering religion, particularly the common modern assumption, shared by many journalists, that religions cannot be understood as forms of knowledge. It recommends that journalists strive to understand what religion is, try to take seriously an individual’s faith or lack thereof, take history seriously, question their own assumptions and the assumptions of our time, consciously try to avoid “pack journalism,” and realize that even in religious affairs, details matter a great deal.
Created Equal
Authors: Berman Joshua A. 
Published: January 2009

AbstractThis book reveals the Hebrew Bible to be a sophisticated work of political philosophy, and the birthplace of egalitarian thought. Focusing on the Pentateuch, this book lays bare the manner in which the Bible appropriated and reconstituted ancient norms and institutions to create a new blueprint for society. Theology, politics, and economics were marshaled anew to weaken traditional seats of power, and to create a homogeneous class of empowered common citizens. Much of this anticipates developments in the history of political thought that would recur only during the Enlightenment and in the thought of the American Founding Fathers. Ancient religion granted sacral legitimation to the ruling classes and saw the masses as mere servants. The Pentateuch, by contrast, elevates the common citizenry in the eyes of God by invoking the political institution of the vassal treaty, and casting Israel as a subordinate king to the Almighty through the theology of covenant. Through the prism of the political philosophies of Plato, Aristotle, and Montesquieu, the book demonstrates the Pentateuch to be history's first proposal for the distribution of political power. Utilizing the anthropology of pre‐modern economies, ancient norms are explored concerning land tenure, taxation, and loans are reworked so that the common citizenry remains economically secure. Invoking the transformational role of the printing press in the spread of the Reformation and the birth of the Enlightenment, the book identifies far‐reaching consequences in the Bible's approach to what was then the new technology of communication: the alphabetic text.
Egalitarian Politics
Authors: Berman Joshua A. 
Published: January 2009

AbstractThis chapter examines how Deuteronomy offers an egalitarian political prescription for the shape of Israelite society and its leadership regime. The program is egalitarian in that it attenuates, in the first place, the institutional power of the monarchy as construed in the ancient Near East in the following realms: the military, the cult, the judiciary, the economy, and the harem. It further establishes a set of checks and balances that curb the power of the various seats of authority: the king, the priesthood, the judiciary and the prophet. Moreover, Deuteronomy's egalitarian program for the regime is reflected in its rejection of the institutions and language of tribal patriarchy so evidenced in the other pentateuchal texts, in favor of collective, national identity. Whereas earlier studies that examined Deuteronomy's plan for the regime have focused on chapters 16–18, this study maintains that one must read all of Deuteronomy as an integrated whole in order to perceive the full intricacy of its blueprint for a society in the land. Particular attention is paid to the role played in this regard by the so‐called narrative frames of the book—chapters 1–4, and chapters 27–30. While previous studies have noted that Deuteronomy seems to adopt a form of checks and balances, this study locates the statement it makes in this regard within the history of political thought on the subject. Scanning theories from Roman jurists through Montesquieu, this study concludes that the kernel of a theory of checks and balances that one may adduce from a reading of Deuteronomy is suggestive of formulations that we do not encounter again until the writings of the American Founding Fathers.