RESALE PRICE MAINTENANCE AND ANTITRUST POLICY

Some scholars would legalize all purely vertical resale price maintenance (RPM). They acknowledge that RPM can harm consumers when it facilitates horizontal collusion among manufacturers or dealers. But when RPM is purely vertical (i.e., when it is imposed by a manufacturer acting independently), they argue that it must be procompetitive. Recent theoretical research has shown, however, that purely vertical RPM can reduce economic efficiency. This result occurs when the higher prices and dealer services induced by RPM benefit marginal consumers but substantially reduce the welfare of intramarginal consumers, who would have preferred the product without the services at a lower price. Since these circumstances are empirically plausible, a rule of per se legality may not be appropriate. At the same time, evaluating RPM under the rule of reason might not be workable. Anticompetitive instances of the type described could be difficult to prove. These research findings, therefore, are most consistent with a rule of per se illegality for RPM, with exceptions for situations in which RPM is most likely to be pro-competitive (e.g., new entry).     

高管法律执业经历、内部控制与上市公司违法行为研究

许多上市公司拥有法律从业背景的董事、监事、高管，知法懂法的他们可能会更加依法办事，但也有可能因为对法律的了解以及应对法律问题的自信而进行更多操控，导致公司更易卷入诉讼案件中。本文使用Logit模型，将上市公司按照是否存在内控缺陷进行分组，检验具备法律执业背景的高管所在公司是否更容易被卷入诉讼纠纷。实证和稳健性检验的结果均显示，管理层拥有法律执业经历人员比例越高的上市公司反而越容易卷入被起诉纠纷，但是更好的内部控制会削弱这种情况的发生。本文丰富了高管特质与企业表现相关研究，也为上市公司审慎选择公司高管、加强内部控制、规范经营行为提供了有益启示。     

Mix‐and‐match divestitures and merger harm

We consider the effects of a merger combined with a divestiture that mixes and matches the assets of the two pre‐merger suppliers into one higher‐cost and one lower‐cost post‐merger supplier. Such mix‐and‐match transactions leave the number of suppliers in a market unchanged but, as we show, can be procompetitive or anticompetitive depending on whether buyers are powerful and on the extent of outside competition. A powerful buyer can benefit from a divestiture that creates a lower‐cost supplier, even if it causes the second‐lowest cost to increase. In contrast, a buyer without power is always harmed by a weakening of the competitive constraint on the lowest‐cost supplier.     

COMMENTS ON MARVEL: HOW FAIR IS FAIR TRADE?

Each of the papers in this symposium concludes with policy recommendations regarding the legality of resale price maintenance (RPM). The legal standard used to judge RPM affects the entire universe of manufacturer control over resale prices. Therefore, policy recommendations are valid only to the extent that the proffered economic theory applies to a substantial portion of that universe. My comments focus primarily on how much of the RPM universe is addressed by Marvel's (1985) explanations in “How Fair is Fair Trade?” If an economic theory, no matter how interesting academically, describes only a small minority of RPM instances, it should not form the basis for public policy.     

Delay and Settlement in Litigation

Delay in litigation is a policy concern in many jurisdictions. Little evidence is available on the causes of such delay, however. We present a version of Spier's (1992) bargaining model of litigation and derive directly a functional form for the conditional probability of case settlement. We then estimate this and test predictions about the effects of legal costs and uncertainty over damages and liability on the conditional probability of settlement, using data from negligence claims against several NHS Trusts. Our results provide a direct test of the model and shed light on the causes of settlement delay in England.     

A theory of legal presumptions

This article analyzes how legal presumptions can mediate betweencostly litigation and ex ante incentives. We augment a moralhazard model with a redistributional litigation game in whicha presumption parameterizes how a court 'weighs' evidence offeredby the opposing sides. Strong prodefendant presumptions forecloselawsuits altogether, but also engender shirking. Strong proplaintiffpresumptions have the opposite effects. Moderate presumptionsgive rise to equilibria in which both shirking and suit occurprobabilisitically. The socially optimal presumption tradesoff agency costs against litigation costs, and could be eitherstrong or moderate, depending on the social importance of effort,the costs of filing suit, and the comparative advantage thatdiligent agents have over their shirking counterparts in mountinga defense. We posit three applications of our model: the litigationrate effects of the 1995 Private Securities Litigation ReformAct, the business judgment rule in corporations law, and fiduciaryduties in financially distressed firms.     

Market Segmentation, Market Integration, and Tacit Collusion

Moving from market segmentation to market integration (firms cannot discriminate among markets) is shown to have often anticompetitive effects in an infinitely repeated Cournot game. In particular, market integration between two countries leads both of them to experience anticompetitive effects when product markets are similar. The same conclusion holds when trade liberalization is modeled as a decrease in bilateral trade barriers followed by moving from market segmentation to market integration. The analysis also predicts that a less efficient country (like a country in transition) enjoys pro–competitive effects from market integration.     

HOW FAIR IS FAIR TRADE?

Fair trade, also known as resale price maintenance (RPM), is a per se violation of the antitrust laws. Economic theory suggests that RPM may enhance the efficiency of distribution, but opposition to the practice remains strong. This opposition may stem from concern that RPM raises retail prices and penalizes well-informed customers. This paper summarizes research on the motivation for RPM as well as its impact on prices. The analysis suggests that comparing prices in RPM jurisdictions with those in free-trade areas provides little guidance on likely effects if RPM were permitted everywhere. An analysis of RPM's impact on prices is developed, and then this analysis is employed to assess RPM's welfare effects. Results of the welfare analysis are shown to depend crucially on which form of cost function is assumed for services provided by dealers.     

THE DETERMINANTS OF STATE‐LEVEL CAPS ON PUNITIVE DAMAGES: THEORY AND EVIDENCE

Under the standard economic model of torts, punitive damages correct for imperfect detection. Incorporating litigation costs into the model provides a justification for punitive damage caps. At the optimum, caps balance deterrence against the cost of litigation. Empirical testing of the model is performed via Cox proportional and parametric hazard analyses, using a panel dataset from 1981 to 2007. The results reveal a positive relationship between legal services employment (a proxy for legal costs) and cap enactment, and a negative relationship between state gross state product (a proxy for damages) and cap enactment. Cap enactment is also influenced by political ideology. (JEL K13, K41, L51)     

Stock return, risk, and legal environment around the world

This paper investigates how the legal environment in a country influences performance and risk of stock across countries at different developmental stages and of various rules of jurisdiction. Using data of 4916 stocks from 37 countries, our empirical findings confirm that equities in countries with English common law origin have higher risk premiums than those in civil law countries, particularly for countries of the French/Spanish code. The indicators representing high efficiency in law system, low corruption, strong legal protection of investors' rights, and reliable political environment are associated with low risk and high performance. The various elements of legal procedural formalism, however, have differing effects on volatility and return.     

Incentive Contracts for Infrastructure,Litigation and Weak Institutions

In this paper we revisit incentive contract design in a simple setting, after developing a model that captures the fact that in weak institutional settings the procurement of large scale public works through contracts with strong incentives for private firms, may result in excessive litigation over contract terms. This result is possible because we assume that parties in litigation can influence (by purchasing better or more legal services) the observable merits of their case. In weak institutional settings, governments have an inherent disadvantage in these litigation contests. We show that a commitment to a prespecified level of litigation effort by the government, together with weaker incentive contracts, is a more efficient procurement mechanism.Jel Classification: D8, H57, H54, K41, K23, L51     

The probability of conflicts in a U.S. presidential type election

Summary. In a two candidate election, it might be that a candidate wins in a majority of districts while he gets less vote than his opponent in the whole country. In Social Choice Theory, this situation is known as the compound majority paradox, or the referendum paradox. Although occurrences of such paradoxical results have been observed worldwide in political elections (e.g. United States, United Kingdom, France), no study evaluates theoretically the likelihood of such situations. In this paper, we propose four probability models in order to tackle this issue, for the case where each district has the same population. For a divided electorate, our results prove that the likelihood of this paradox rapidly tends to 20% when the number of districts increases. This probability decreases with the number of states when a candidate receives significatively more vote than his opponent over the whole country.Received: 12 August 2002, Revised: 7 March 2003, JEL Classification Numbers: D71. Correspondence to: Vincent R. MerlinSpecial thanks are due to Franck Bisson, a Caen PhD student, who helped collect the data. The authors also gratefully acknowledge Ashley Piggins and an anonymous referee for their comments.     

买方抗衡势力与制造商定价决策

本文研究了买方抗衡势力的存在对上游制造商定价决策的影响,讨论了制造商在不同定价形式（线性定价、两部收费制和转售价格维持（RPM））之间的选择问题,并构建了两阶段动态博弈模型,引入买方抗衡势力,比较分析了制造商在零售商具有和不具有买方抗衡势力两种情况下,制造商最优定价形式的选择。研究发现当零售商不具有买方抗衡势力时,制造商选择两部收费制和RPM是无差异的,都能使上游制造商获得相等的最优利润;当零售商具有买方抗衡势力时,对于上游制造商来说两部收费制优干RPM,RPM又优于线性定价。此外,本文还发现存在一个由抗衡势力和零售商替代程度决定的临界条件,当满足这一条件时,两部收费制是上游的最优选择;一旦这一条件不满足时,RPM就成了上游的最优选择。     

“新法律史”如何可能——美国的中国法律史研究新动向及其启示

二十世纪九十年代以来,美国的中国法律史研究取得了引人注目的新进展,先前论著中某些关于传统中国法律的旧见陈说,均在不同程度上得到反省和批判。而引领此一学术风潮的代表,正是以黄宗智教授为核心的加利福尼亚大学洛杉矶校区（UCLA）中国法律史研究群,他们的研究共同体现了“新法律史”的特征：在“历史感”的观照之下,连接经验（广泛利用极富学术价值的诉讼档案）与理论（从优秀社会科学理论中汲取灵感并与之真正对话）,提炼自己具有启发性的新的中层概念。对于中国学者而言,“新法律史”所体现的学术取向可以为我们提供重要启示,不仅包括提醒我们注重对诉讼档案的充分运用,以及吸收优秀的社会科学成果,还包括借历史之光洞见现实问题,从而在某种程度上摆脱中国法律史研究虚学化的困境。     

我国注册会计师审计民事诉讼风险之分析

由于虚假陈述民事诉讼刚刚开始,目前,我国注册会计师尚不会面临巨大的民事诉讼风险.但是,调查表明,我国注册会计师存在较大的潜在诉讼风险,随着相关法律制度的不断完善,注册会计师面临民事诉讼的可能性越来越大.虚假陈述民事诉讼应当处理好保护投资者利益和防止滥诉二者之间的关系,避免注册会计师承担过重的、不切合实际的责任.相关法律法规应当在考虑注册会计师审计特点的基础上,就有关问题做出明确规定,以保护注册会计师行业的健康发展.     

Union Membership and the Legal and Institutional Environment: Labour Market Policy in Australia and the United Kingdom

This article examines how the political and institutional environment impinges upon unionisation. Changes in policy towards trade unions in two countries are contrasted: the United Kingdom under the Conservative government where the industrial relations legal environment shifted in a direction antithetical to unionism, and Australia under the Labor administration where the union movement was incorporated into the labour policy process through a corporatist, centralised wage-fixing system—the Accord. How these changes in the legal and institutional environment in the two countries affect the propensity to unionise is examined. It is found that in both the United Kingdom and Australia union density has declined from what it otherwise would have been in the absence of these radically different policies. It is argued that the extremes of corporatist centralisation and laissez-faire decentralisation, perhaps paradoxically, make it difficult for unions to increase their membership.     

The Determinants of Tying Litigation, 1961–2001

The idea that changes in Supreme Court decision rules should have measurable effects on the volume of cases litigated has a compelling plausibility, and several models of litigation predict this result. The prediction is a fragile one, however, because it implies very restrictive assumptions about the probability distributions of the cases subject to dispute. The period studied includes four Supreme Court decisions widely regarded as changing the rules and altering the level of uncertainty surrounding the legality of the anti-tying provisions of the antitrust laws. Broad trends in antitrust activity generally and changes in firm profitability statistically explain over three-quarters of the observed variation in tying litigation. Changes in legal precedent have only modest effects upon litigation.

CONSTITUTIONAL POLITICAL ECONOMY: PROPERTY CLAIMS IN A DYNAMIC WORLD

Constitutional political economy concerns the legal foundations of the market. One central component of that legal infrastructure relates to property rights over objects and circumstances. The idea of "takings" causes one to focus on the conditions under which regulatory actions call for compensation to those who imagine that their property rights have been taken. A dynamic economy is alleged here to be one in which legal processes must carry the burden of discovering when particular parties have an interest that can be said to constitute a property right requiring compensation. That is, objects and circumstances are not protected because they are "property." Rather, those objects and circumstances that are protected become, by virtue of that protection, "property." The task for the economist is to understand the perverse incentives to flow from a compensation requirement on all instances of institutional change concerning landed property. A further task is to incorporate a dynamic concept of property rights into general equilibrium models of economic systems.     

Medical practice and malpractice litigation in an evolutionary context

We model the interactions between the behaviors of physicians and patients, subject to clinical and legal risks, by means of evolutionary game theory. We propose an original game in which patients may sue their physician for medical malpractice, and physicians have to choose between two alternative treatments, with different levels of benefits and risks. The safer treatment is also the less effective, therefore its provision corresponds, under the assumptions of our model, to practicing negative defensive medicine. We study the Nash equilibria, test their stability in the replicator dynamics, and analyze their welfare properties. We find that the accuracy of the judicial system plays an important role, with possible counter-intuitive effects related to legal reforms. If the court is not sufficiently accurate, defensive medicine can be favored, paradoxically, by an increase in the probability that defensive physicians are sanctioned by the court. A similar outcome can be generated also by an increase in the compensation paid to patients by physicians, when sanctioned for medical malpractice.     

《周易》中的讼卦与中国传统讼观念

《周易》与中国法文化有着一定的渊源与联系,讼卦更是研究中国传统讼观念的独特视角。通过讼卦研究讼的产生,讼的影响以及应对讼的方法可以加深对中国传统讼文化的理解。导致诉讼的原因既有客观上的经济因素,也有主观上的心理影响;讼卦认为讼行为总体上是＂终凶＂的,＂不亲＂的;具体而言,讼是无德的表现,讼能够引发社会的纷争,以下犯上之讼是非常严重的错误,但另一方面及时终止诉讼也可能带来吉祥,而讼卦中还体现了非常明显的清官情结。应对讼时,一方面要怀着警惕,谨慎的态度,另一方面则强调君子要积极进行准备以讼对讼的发生。总之,对讼卦的研究可以较为全面地审视我国传统法文化中的讼观念。