This issue of The Yale Law Journal (the 8th issue of Volume 121, academic year 2011-2012) features articles and essays by several notable scholars. Principal contributors include leading scholars in their fields. Contributions includes articles by Ian Ayers on opt-out provisions and an economic theory of rule-altering and by James Greiner and Cassandra Pattanayak on randomized evaluation in legal assistance, as well as an essay by Joshua Wright on the dichotomy between antitrust policy and consumer protection. Student work explores discovery law after recent changes in pretrial dismissal standards, a proposal for a fair mandatory arbitration scheme, fair notice provisions, and corporate purposes in light of the Craigslist-eBay litigation. This is the final issue for volume 121, the June 2012 issue.
Ever since the Directive on Unfair Terms in Consumer Contracts of 1993, the European project has been working intensively towards harmonization of contract law across all EU Member States. To date, virtually none of the many problems that have arisen have been resolved. The SECOLA Annual Conference convened in Prague in 2005 to consider the specific topic of unfair terms and to imagine ways in which the obstacles raised by this provocative issue might be overcome. In this book, which presents revised versions of the papers presented at that conference, fourteen outstanding European scholars examine basic questions about the differing conceptions of contract law in the national legal systems of the Member States, divergent legal techniques such as interpretation of contract and divergent approaches to legal reasoning, and contrasting views about the nature of the problems presented by unfair terms in contracts. Among the contentious matters discussed are the following: the tension between party autonomy and social justice; control over freedom of contract in the name of substantive fairness and efficiency; interpretation of contract terms the intrusion of competition law into contract law; the disputed meanings of good faith and legitimate expectations; the requirement of 'plain intelligible language'; and characterization problems Above all the essays ask: Can harmonization of European contract law be achieved? And if so, how? The answers offered not only clarify the stage we have arrived at in this ongoing initiative, but also identify the essential conflicts that must be understood if we are to secure meaningful regulation of contract terms at a transnational level. For these reasons the book is enormously valuable to all parties interested in this crucial component of European integration.
When should government intervene in market activity? When is it best to let market forces simply take their natural course? How does existing empirical evidence about government performance inform those decisions? Brookings economist Clifford Winston uses these questions to frame a frank empirical assessment of government economic intervention in Government Failure vs.
This Research Handbook offers a comprehensive and state-of-the-art collection on the competition law (antitrust) prohibition of abuse of a dominant position and monopolization. It draws from the long and influential traditions of leading jurisdictions such as the European Union and the United States to analyse applicable rules and policy in these jurisdictions. It also takes a comparative approach to identify common threads and differences.
Antitrust policy nominally plays an instrumental public interest role. The generally accepted notion is that it is a government instrument designed to intervene in relatively unregulated markets in order to preserve rivalry among independent buyers and sellers. Competition authorities are supposed to restrain business conduct that exercises monopoly power aimed at excluding competitors or exploiting consumers and clients. Thus it can be said - although few pro-market theorists make the insight explicit - that antitrust provisions reveal mistrust of the capacity of markets to promote social welfare. The inner logic, enforcement mechanisms, and practical outcomes of antitrust provisions are all intrinsically contradictory to the natural dynamic course of market functioning. In Dr. De Leon's challenging thesis, this mistrust of the market lies at the root of antitrust policy, giving rise always to a preference towards 'predicting' the result of impersonal market forces rather than interpreting the entrepreneurial behaviour which creates those forces. And it is in Latin America that he finds the powerful evidence he needs to support his case. From the formative years of Latin American economic institutions, during the Spanish Empire, economic regulations - far from being driven by the pursuit of promoting free trade and economic freedom - have been conceived, enacted and implemented in the context of deeply anti-market public policies, trade mercantilism and government dirigisme. The so-called "neoliberal" revolution of the 1990s triggered by the Washington Consensus did not really change the interventionist innuendo of these policies, but merely restated the social welfare goal to be achieved: the pursuit of economic efficiency. Dr. De Leon presents his case against the assumption that consumer welfare orientated policies such as antitrust do really promote entrepreneurship and market goals. Paradoxically, antitrust enforcement has undermined the transparency of market institutions, in the name of promoting market competition. The author's provocative analysis marshals several sets of facts in support of his thesis, including the actual functioning of antitrust policy as reflected in case law in various Latin American countries, the preference of merger control over other less intrusive forms of market surveillance, the constrained role of competition advocacy against government acts, and the ineffective institutional structure created to apply the policy. Among the many specific topics treated are the following: government immunity; strategic industries; state-owned enterprises; politically influential groups; measurement of market concentration; the burden of proof of social welfare benefits; the role of joint trade associations and professional guilds; institutional arrangements that favour collusion; selective distribution; sector regulation; erosion of property rights; marginal role of courts in the antitrust system; leniency programs; and privatized public utilities. The growing significance of Latin America in the context of economic globalization endows this book with huge international interest. Written by a leading authority on the topic, this is the first book that presents a detailed description of Latin American antitrust law and policy as it has been developed through numerous judicial opinions. A wide variety of audiences around the world will find it of extraordinary value: competition law specialists, scholars and students of the subject, policymakers and politicians in Latin America, as well as all interested lawyers, jurists, and economists.
Consumer law and policy continues to be of great concern to both national and international regulatory bodies, and the second edition of the Handbook of Research on International Consumer Law provides an updated international and comparative analysis of the central legal and policy issues, in both developed and developing economies.
This book provides a novel account of the public goods dilemma. The author shows how the social contract, in its quest for fairness, actually helps to breed the parasitic 'free riding' it is meant to suppress. He also shows how, in the absence of taxation, many public goods would be provided by spontaneous group co-operation. This would, however, imply some degree of free riding. Unwilling to tolerate such unfairness, co-operating groups would eventually drift from voluntary to compulsory solutions, heedless of the fact that this must bring back free riding with a vengeance. The author argues that the perverse incentives created by the attempt to render public provision assured and fair are a principal cause of the poor functioning of organised society.
This book tackles one of the most challenging fields of research and practice in the current global trade environment: integrating doctrines of private and public law for the purpose of international commerce and trade. Traditional concepts of obligatory and proprietary claims and rights reach their limits when placed within an international context of litigation funding, liability and securitisation. Across disciplines, scholars and practitioners are seeking new ways of expanding and reconnecting novel products and services such as data; and the use of international dispute settlement with indispensable constitutional values and democratic processes is also growing. This book combines contributions on current issues in commercial contract and contract law, making an important contribution to the areas of substantive contract law and arbitration procedure that connect issues across disciplines. Exploring both substantive and procedural laws, the book explores unfair terms in non-consumer contracts, which is complemented by a broader contextual discussion of the regulation of platform operators in the European Union; while a discussion of the procedural role of public reporting of investment arbitration awards by the International Centre for the Settlement of Investment Disputes (ICSID) expands on the procedural aspects of arbitration within the wider context of the rule of law debate. Debating policy issues in general private law reform, and including a juxtaposition of a traditionalist continuation-oriented approach and a call for radical reform of entrenched and outmoded private law concepts to suit global commerce, this book will be of interest to students, academics and practitioners working in the area of commercial contract law and arbitration.
American economic history describes the transition of a handful of struggling settlements on the Atlantic seaboard into the nation with the most successful economy in the world today. As the economy has developed, so have the methods used by economic historians to analyze the process. Interest in economic history has sharply increased in recent years among the public, policy-makers, and in the academy. The current economic turmoil, calling forth comparisons with the Great Depression of the 1930s, is in part responsible for the surge in interest among the public and in policy circles. It has also stimulated greater scholarly research into past financial crises, the multiplier effects of fiscal and monetary policy, the dynamics of the housing market, and international economic cooperation and conflict. Other pressing policy issues--including the impending retirement of the Baby-Boom generation, the ongoing expansion of the healthcare sector, and the environmental challenges imposed by global climate change--have further increased demand for the long-run perspective given by economic history. Confronting this need, The Oxford Handbook of American Economic History affords access to the latest research on the crucial events, themes, and legacies of America's economic history--from colonial America, to the Civil War,up to present day. More than fifty contributors address topics as wide-ranging as immigration, agriculture, and urbanization. Over its two volumes, this handbook gives readers not only a comprhensive look at where the field of American economic history currently stands but where it is headed in the years to come.
The international literature on non-standard employment has mostly focussed on its impact on employment, and more recently on working and living conditions. This volume explores these issues with special reference to Italy. Italy is characterized by very low participation rates (particularly women’s), a high degree of fragmentation of labour contracts and a very intense non-standard work diffusion that make this context a particularly interesting case for analysis. New elements of discussion are provided with reference to the interaction of non-standard work, employment probability and living conditions. Interesting insights on the impact of non-standard work on the transition to stable employment and workers’ careers emerge, suggesting a possible failure of companies’ internal systems of work evaluation. The effects on labour productivity and on companies’ performance are analysed. Within this framework, a new perspective on quality of work is suggested.
