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- Design for Liberty Private Property, Public Administration, and the Rule of Law.
- Private Property, Public Administration, and the Rule of Law;
- Richard Epstein!
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No notes for slide. Book details Author : Richard A. Description this book The noted legal scholar Richard Epstein advocates a much smaller federal government, arguing that our over-regulated state gives too much discretion to regulators, which results in arbitrary, unfair decisions and other abuses. Epstein pdf, Download Richard A. If you want to download this book, click link in the last page 5.
You just clipped your first slide! This paper shows why over a broad range of cases involving two or more parties these liquidated provisions, properly calibrated, avoid the many disadvantages of using the theory of 'efficient breach' to set damages.
Chief among these difficulties are the high administrative costs of finding these damages, and the perverse incentives that they place on the defendant before breach and the plaintiff afterwards. Intellectual property licenses are not exempt from these basic principles, which implies that these clear damage rules are typically optimal in first avoiding breach and then in resolving post-breach disputes.
On April 25, , Erie Railroad v. Tompkins celebrated its seventy-fifth anniversary. Justice Louis Brandeis's farewell present as he departed from the Supreme Court after twenty-two years of service is a familiar staple of American law. Like Cher or Madonna, it enjoys one-named recognition among lawyers, in any event.
Erie's core holding—in diversity cases where no federal constitutional or statutory rule applies, federal courts will follow state law—is hornbook teaching. That first impression, however, may not be the whole story. A profusion of critical law review articles and books over the past few years demonstrates that much remains to be said about Erie after all these many decades, above and beyond what every Civil Procedure student learns about the case.
Hence, this issue In this article, the author who is a Laurence A. Topics discussed include employment discrimination issues, the U. At present, the traditional informal mechanisms for setting FRAND rates for SEPs have come under extensive attack by the Federal Trade Commission and elsewhere, from those who believe more limited damages and less frequent injunctions offer the best path to resolving disputes over Standard Essential Patents. In this article we take issue with those conclusions.
We begin with an explanation of how a damage system for ordinary contract disputes does not typically rely on the three standard measures--expectation, reliance, restitution--for resolution, but uses liquidated damage to deal with the scenario where a defendant seeks to flout its own agreements. We argue that the techniques that work generally in contract law offer strong confirmation of the traditional rules of damages and injunctions now under wide assault. The stagnation of the American economy during the past decade is attributable to faulty policies at both the macro and micro level.
The efforts to organize stimulus programs and manipulation tax rates create uncertainties that offset any supposed gains from Keynesian policies. At the same time, the failure to address major structural flaws in labor, real estate, free trade and positive rights have resulted in cumulative dislocations that require a shrinkage of government across the board to facilitate any reversal of economic fortune.
An essay is presented on the history of public utility rate regulation in the U. Interstate Commerce Act of Rehnquist's opinion in the case Duquesne Light Co. Barasch which deals with state regulators and public utility commissions. An essay is presented on the rule of law, public administration, and administrative laws in America as of January , focusing on a historical analysis of various administrative agencies and policies in the U.
A comparison of the government agencies in America and Great Britain is provided, along with the administrative regulation of prisons and schools.
Federal government growth in the U. The article discusses partial interests in land and the Takings Clause which is contained in the U. Constitution as of January , focusing on American nuisance laws land use regulations, as well as several legal judgments in proceedings such as the U. Supreme Court case Loretto v. Regulatory takings, American property rights, and compensation for aggrieved landowners are addressed, along with police powers and the case Lochner v.
New York. I suggest that the historical Milton Friedman arose as the rare conjunction of a special person and a very favorable environment. So a successor is unlikely. This is a good thing. The dominance of a Milton Friedman type, right or left, is bad for economics and for society. It attracts resources toward fruitless debates and away from possibly productive research and discussion. The article discusses constitutional rulemaking in America and various law-related challenges to the U. Constitution's Commerce Clause. Expansions of Medicaid insurance provisions are addressed, along with judicial notice and government regulatory affairs in America.
Several rulings by the U. Supreme Court are also examined. The work of Ronald Coase is notable for two primary reasons. First, it introduced the notion of transaction costs to explain the formation and maintenance of firms, Second, it advanced our understanding of the critical topic of social costs. Yet, while transaction costs are key to understanding why firms are organized, they do not offer a complete explanation of how they are organized. A richer account of the problem properly stresses that differences in individual levels of competence, as well as individual variations in temperament and taste, explain why, for example, some firms are organized as partnerships and others as straight employment arrangements, with many permutations in between.
Understanding differential levels of competence also helps to explain issues in areas from employment discrimination law to capital markets and tort liability. An essay is presented on the association of judicial engagement with affordable care act. It offers historical evolution under the Commerce Clause in relation with the individual mandate. It further provides information on the prophecy of judicial ineptitude which is largely self-fulfilling, by opinions at war with any handful constitutional analysis.
The Proposal would so reduce the costs of infringement that the rate of infringement would increase as potential infringers find it in their interest to abandon the voluntary market in favor of judicial pricing.
Design for Liberty
As the number of nonmarket transactions increases, courts will play an ever larger role in deciding the terms on which the patented technologies of one party may be used by another party. That will do more than reduce the incentives for innovation; it will upset the current set of well-functioning private coordination activities in the IP marketplace that are needed to accomplish the commercialization of new technologies.
And that would seriously undermine capital formation, job growth, competition, and the consumer welfare the FTC seeks to promote. Like the FTC Proposal, we focus here within the context of standard-setting organizations SSOs , whose activities are key to bringing standardized technologies to market. The FTC's proposal for regulating IP by limiting the freedom of SSOs to set their own terms would thereby replace private coordination with government hold-up.
We conclude that the FTC should abandon its Proposal and support the current set of licensing tools that have fueled effective innovation and dissemination in the IP marketplace. FTC forbearance will improve bargaining incentives, reduce administrative costs, and remove unnecessary elements of legal uncertainty in the IP system, thereby advancing consumer welfare. One key similarity between natural law and international law is that they seek to obtain a stable social order without the intervention of any state authority capable of issuing and enforcing its commands to those subject to its rule.
Among ordinary individuals in a state of nature that weakness tends to lead to a stripped-down libertarian regime that features simple rules of acquisition, contract, and protection. The system gains its relative stability from the brute fact that between rough equals the party in the defensive posture will win out, so that great disparities in power are needed to disrupt the basic equilibrium.
Similar constraints apply to nations in international affairs. Only within sovereign states is it possible to seek but not necessarily to obtain gains from the use of taxation or eminent domain powers. The dangers implied in the use of these powers caution against the adoption of strong centralized forces in international affairs, where the risks of misapplied power are likely to outweigh the possible gains from greater centralisation of political power in international organisations.
Instead, her primary concern is to preserve continuity with existing legal doctrinal structures, which requires more fidelity to the past than any strong minimalist view of constitutional law would require. The best way to think of her work is as an effort to nudge the received judicial wisdom in her preferred direction, without attacking the intellectual foundations of the system as a whole. The article examines the justifications of the Supreme Court decision in the Citizens United v.
Federal Election Commission FEC court case concerning the issue of corporate speech in the political arena. The court ruled in favor of Citizens United, a decision criticized by many for it gives corporate interests a powerful tool to dominate political campaigns. It analyzes the Court's decision from both a constitutional and pragmatic point of view, and exposes the fundamental errors in the questions raised by its critics.
Transitions are times of danger in virtually all areas of human life. More accidents are likely to occur when cars go in and out of parking spaces, or when planes take off or land. More medical mishaps are likely to happen in hospitals when there is a change in shifts between nurses. The same pattern holds in the law of pharmaceutical patents, during the transition from a fully proprietary regime to one that allows for as many firms as possible to market a generic version of a once-protected pharmaceutical patent.
[PDF] Design for Liberty: Private Property, Public Administration, an…
To pass judgment on these issues, it is often necessary to ask the thankless question of whether the supposed advances in science exceed the preclusive effect that arises if the original product is removed from the Orange Book—or official FDA registry of drugs available for sale—in ways that limit competition. Many modern writers have criticized the notion that property consists of a bundle of rights in some determinate thing as a weak conception that invites increased government control over private property, especially real estate.
This article rejects that conception for the following reasons. First, the notion of property as a bundle of rights long antedates the Progressive era, when it lay at the center of both Roman and common law views of property. Second, the bundle-of-rights theory does not imply that private property has no determinate meaning. To the contrary, traditional systems of private property all had a coherent bundle of rights that included exclusive possession, use, development and disposition of property that belonged to the original owner who acquired by first possession.
But it had the far greater advantage of allowing for gains from trade. The use of this system, moreover, implies strong protection against state control, so long as it is understood that the state must pay for each stick in the bundle that it takes and is never allowed to say that it can take one or more sticks for free so long as the original owner keeps some residual sticks.
The design of new constitutions is fraught with challenges on both issues of structural design and individual rights. As both a descriptive and normative matter it is exceedingly difficult to believe that one structural solution will fit all cases. The high variation in nation size, economic development, and ethnic division can easily tilt the balance for or against a Presidential or Parliamentary system, and even within these two broad classes the differences in constitutional structure are both large and hard to measure.
The only confident claim is that some system of separation of powers coupled with checks and balances is needed. Deciding which system, however, is far harder. In contrast, that same level of doubt does not arise in connection with the correct specification of individual right. Strong systems of negative rights on matters of liberty, property, religion, and speech are preferable across a wide range of social organizations.
On the other hand, any effort to create systems of positive entitlements will fail because of the negative effects that they have on wealth creation and the inability to define or limit the scope of the relevant entitlements. The article offers information and opinions about the Durbin Amendment of the U. Constitution, the constitutional rights of debit card companies, and government regulation of monopolies and competitive companies.
The article discusses some issues confronted by the U. It offers a brief overview of the legislative scheme and explores the country's law of trade secrets. It also argues that the Biosimilars Act raises significant issues under the Fifth Amendment of the Constitution, particularly the protection of trade secrets. The article offers information and opinions about direct democracy in U. The author offers observations about the Gettysburg Address given by former U.
President Abraham Lincoln and discusses the role of individuals in the U. Constitution, the problems with referendum and ballot initiatives in the democratic process, and the need for limited government in the U.
Design for Liberty: A Conversation with Richard Epstein
This Article examines the relative strength of two imperfect accounting rules: historical cost and mark to market. The manifest inaccuracy of historical cost is well known and, paradoxically, one source of its hidden strength. Because private parties know of its evident weaknesses, they look elsewhere for information. In contrast, mark to market for hard-to-value assets has many hidden weaknesses.
Epstein explains in this enlightening interview, personal liberty should be limited primarily by one principle: that no one can use force or fraud against others. The underlying justification for strong property rights and freedom of contract, according to Epstein, is that these lead to the greatest overall good. We also need some regulations to govern certain kinds of transactions that are so complicated that markets do a poor job of dealing with them.
But as Richard Epstein points out, the problem is that regulations are often used to help the connected or vocal few at the expense of the many.