New Economics Papers
on Law and Economics
Issue of 2013‒12‒06
25 papers chosen by
Eve-Angeline Lambert, Université de Lorraine

  1. Economic Uncertainty, Parental Selection, and the Criminal Activity of the "Children of the Wall" By Arnaud Chevalier; Olivier Marie
  2. An Empirical Analysis of Sentencing Starting Points for HSE Offences By Alan Woodfield; Andrea Menclova; Stephen Hickson
  3. Arguments from natural law reevaluated through a dialogue between legal history and legal theory By Dmitry Poldnikov
  4. Contracts for the benefit of a third party: the problem of classification By Yury Fogelson
  5. Proceedings with participation of foreign persons in international procedural law of Russia and Kazakhstan By Natalia Erpyleva
  6. Leniency program and cartel deterrence in Russia: effects assessment By Gyuzel Yusupova
  7. The impact of family-friendly policies on the labor market: Evidence from Spain and Austria By Sara de la Rica; Lucía Gorjón García
  8. The reasoning of Russian courts in cases connected with the protection of religious feelings By Mikhail Antonov
  9. The legacy of classical natural law in Russian dogmatic jurisprudence in the late 19th century By Dmitry Poldnikov
  10. The normativity of legal rules according to Eugen Ehrlich By Mikhail Antonov
  11. Global legal pluralism: A new way of legal thinking By Mikhail Antonov
  12. The scope of the freedom to provide services: prohibited restrictions By Elena Postnikova
  13. Business community and authorities: constitutional and legal forms of relationship By Svetlana Vasileva
  14. External capital access and new product launch in start-up firms with uncertain intellectual property rights By Heger, Diana; Hussinger, Katrin
  15. Economic efficiency as a model of the social context of the conceptualization of the law By Sergey Tretyakov
  16. Deployments, Combat Exposure, and Crime By Anderson, D. Mark; Rees, Daniel I.
  17. Customs regulation in the EurAsEC customs union and financial law development in the Russian federation By Alexander Kozyrin
  18. Addressing labour market segmentation : the role of labour law By Deakin, Simon
  19. The philosophy of sovereignty, human rights, And democracy in Russia By Mikhail Antonov
  20. Measuring, Explaining and Addressing Patent Quality Issues in China By Prud'homme, Dan
  21. The Siting of UK Nuclear Power Installations By M.C. Grimston; W.J. Nuttall
  22. The concept of “comity” in Ulrich Huber’s conflict doctrine By Irina Getman-Pavlova
  23. Open sourse: the Russian experience (legislation and practice) By Alexander Savelyev
  24. Political Risk Guarantees and Capital Flows: The Role of Bilateral Investment Treaties By Mina, Wasseem
  25. The Arab spring and Islamic legal thought By Leonid Sykiainen

  1. By: Arnaud Chevalier; Olivier Marie
    Abstract: We study the link between parental selection and children criminality in a new context. After the fall of the Berlin Wall, East Germany experienced an unprecedented temporary drop in fertility driven by economic uncertainty. We exploit this natural experiment to estimate that the children from these (smaller) cohorts are 40 percent more likely to commit crimes. We show that women who gave birth at this period were negatively selected. Investigation of the underlying mechanisms reveals that emotional attachment and risk attitudes play important roles in the fertility-crime relationship. Finally, results for siblings support a causal interpretation of our findings.
    Keywords: Crime, parental selection, fertility, economic uncertainty, risk attitude
    JEL: J13 K42
    Date: 2013
  2. By: Alan Woodfield (University of Canterbury); Andrea Menclova (University of Canterbury); Stephen Hickson (University of Canterbury)
    Abstract: This paper first reviews the attitude towards starting points for the sentence of fines (i) for the period following the 1994 guideline judgment in De Spa and prior to the commencement of the Sentencing Act 2002, and (ii) for the period following the implementation of both the Sentencing Act 2002 and the HSE Amendment Act 2002 and prior to the 2008 guideline judgment in Hanham & Philp. We then empirically examine both mean starting points for fines and variability in starting points for the second of these periods, and also empirically examine the determinants of the use of starting points. Finally, we empirically examine the determinants of starting points and actual fines for those cases sentenced after Hanham & Philp through to 7 March 2012, and compare the results obtained. Following Hanham & Philp when starting points became mandatory, their amounts were strongly monotonically related to the degree of culpability and the previously found direct effect of the degree of harm seemed largely irrelevant. These results carry over to fines imposed. We also found greater consistency both for starting points and for actual fines. We found, however, greater variability in actual fines than in starting points post Hanham & Philp reflecting the role of idiosyncratic case characteristics. Also, starting points used voluntarily prior to Hanham & Philp were more variable than starting points set post Hanham & Philp.
    Keywords: Health and safety in employment sentencing; starting points for fines
    JEL: K32
    Date: 2013–09–23
  3. By: Dmitry Poldnikov (PhD, Assistant Professor, Faculty of Law, Higher School of Economics (Moscow))
    Abstract: The paper suggests several ways to rediscover the legacy of early modern and classical natural law of the 18th century in contemporary legal thought through the joint efforts of legal history and legal theory with particular reference to the domain of contract law. Additionally, the paper justifies the revival of the research in the domain of natural law in connection with legal argumentation
    Keywords: theory of law, legal history, interdisciplinary interaction, natural law, argumentation, civil law, contract law.
    JEL: K10
    Date: 2013
  4. By: Yury Fogelson (National Research University Higher School of Economics. Public Policy Department. Professor)
    Abstract: On the basis of analyzing disputes connected with the classification of contracts for the benefit of third parties, history, and development of this construct in Russian law and analyzing its use in foreign legal systems, this work shows that the formal approach, applied in Russia with regard to contracts for the benefit of third parties, considerably belittles the sphere of application of the construct. Another approach, based on conferring material benefit upon a third party, is developed. It is also shown that the former approach allows us to resolve a number of problems that arise when applying of the analysed contractual construct
    Keywords: contract law, contract for the benefit of a third party, privity of contract, classifying characteristics of contract
    JEL: K12
    Date: 2013
  5. By: Natalia Erpyleva (National Research University “The Higher School of Economics”. Faculty of Laws. Department of Private International Law, the Head of the Department)
    Abstract: This article is dedicated to one of the most interesting aspects of International Procedural Law – litigation with participation of foreign persons. Author focused on a comparative analysis of Russian and Kazakh legislation concerning the regulation of international procedural relations. Article includes two paragraphs: the first one considers international jurisdiction of Russian arbitrazh courts and Kazakh economic courts on commercial matters; the second one examines the recognition and enforcement of foreign judgments in commercial matters on the territory of Russia and Kazakhstan. Author deeply scrutinized a wide range of legal documents including domestic legislation and multilateral international treaties of regional character in order to show the convergences and divergences in Russian and Kazakh law concerning participation of foreign persons in international commercial litigation
    Keywords: International Procedural Law; International Civil Procedure; International Jurisdiction; Foreign Persons; International Commercial Litigation
    JEL: K41
    Date: 2013
  6. By: Gyuzel Yusupova (National Research University Higher School of Economics, Institute of Industrial and Market Studies, associate professor)
    Abstract: The empirical assessment of leniency program (LP) in Russia shows the effects of changes in the rules on the behavior of market participants. In this paper we test hypotheses about LP enforcement against the characteristics of cartels: their subject, duration and the number of participants. We show that LP in Russia makes enforcement of the behavior of market participants less effective and accordingly reduces cartel discoveries. However the reforms of Program in 2009 give some positive results
    Keywords: Leniency Program, Collusion, Antitrust legislation
    Date: 2013
  7. By: Sara de la Rica; Lucía Gorjón García
    Abstract: The policies under analysis are set out in Spanish Law 39/99 and Austrian Law Nr. 38/2004. In essence both policies were directed at allowing parents to work part-time if they had children under 7 years old, with an equivalent wage reduction. Furthermore, those workers who decided to use the law were protected against being laid off. Our results indicate that the law helped mothers to combine childcare and work because there was an increase in the probability of working PT for targeted mothers (direct effect). Furthermore, there is clear evidence that the law increased the probability of dismissal of non-eligible mothers – i.e. mothers with children over 10 years old. Finally, the law also increased the probability of potential mothers being hired under fixed-term contracts, presumably to avoid the possibility of their availing themselves of the reduced working hours and the protection against dismissal. Therefore, the law had some positive effects but also some negative ones which were largely unexpected.
    Date: 2013–11
  8. By: Mikhail Antonov (National Research University Higher School of Economics (St. Petersburg). Associate Professor of Law)
    Abstract: The authors examine how the Russian judiciary devises legal policies when adjudicating cases in which religious beliefs are concerned. First, the authors describe the theoretical framework within which research on this matter can be conducted. This framework can be constructed on the basis of the theory of legal argumentation. Applying this framework to the investigation of the Russian court practice enables the authors to discover important features which are characteristic of legal reasoning in this category of cases. The Constitutional Court of Russia has chosen to abstain from crafting principles of legal policy regarding religious issues; yet, the jurisprudence of the ECtHR, by and large, is not followed by the Russian judiciary, and the Supreme Court of Russia has no clear-cut policy in this regard. In such a situation, ordinary judges choose individual strategies which are indispensable as fidelity to the letter of law is inadequate for adjudicating such cases. The case of Pussy Riot and the other cases analyzed in our paper serve as examples of this tendency. The court practice in religious cases can be better explained from this perspective than in light of presumed political influence
    Keywords: religion, human rights, religious freedoms, individual liberties, judicial protection, legal principles, legal policies, freedom of consciousness, jurisprudence of the ECtHR, Russian court system, legal argumentation, court proceedings
    JEL: K1
    Date: 2013
  9. By: Dmitry Poldnikov (PhD, Assistant Professor, Faculty of Law, Higher School of Economics (Moscow))
    Abstract: The paper examines the inconspicuous influence of the legacy of the classical natural law of the 18th century on Russian dogmatic jurisprudence of civil law, taking as an example the authoritative “Course on civil law” (1868-1880) by Konstantin Pobedonostsev. Despite the dogmatic purpose of the course and the hostility of its author towards European liberal doctrines of natural law, some striking similarities between them can be found, especially in the general provisions and principles of contract law, the method of its exposition and the recourse to justice and supra-positive ideal
    Keywords: legal history, dogmatic jurisprudence, natural law, civil law, contract law, principles, justice, Russia
    JEL: N93
    Date: 2013
  10. By: Mikhail Antonov (National Research University Higher School of Economics (St. Petersburg). Associate Professor of Law)
    Abstract: In this paper the author questions the role of Eugen Ehrlich's sociological jurisprudence for contemporary debates regarding the sources of binding rules that have their (ontological) foundation in societal practices, but whose validity cannot be extracted from these practices. The question on the normativity of legal rules for Ehrlich was not identical with the thesis on the normativity of social practices and the patterns of behavior that are capable of having a biding force if fixed in a legally recognized form (i.e., recognized by the legal community). As a result, the process of norm-creation requires an intellectual reconstruction of these practices and patterns by jurists, judges, and legislators who reshape societal relations into legal ones with the help of particular intellectual images. It is this reshaping that gives rise to legal rules. The process of such reconstruction cannot be anything but intellectual, and therefore cannot be conceived of without reference to the creative work of lawyers. Consequently, legal rules cannot emerge directly from societal practices. The practices in which the lawyers are engaged or which they simply contemplate, can influence their creative activity, but cannot replace it, and thus cannot provide a mechanical transformation of the factual into the intellectual or normative
    Keywords: sociology of law, living law, official law, normativity, binding force of law
    JEL: K1
    Date: 2013
  11. By: Mikhail Antonov (National Research University Higher School of Economics (St. Petersburg, Russia))
    Abstract: The subject matter of this article is the terminology which is used in contemporary law and sociological jurisprudence to denote changes in legal regulation. Among the most fashionable terms are those of globalization and pluralism. In the author’s opinion, these two terms indicate diverse phenomena and have different tasks. Pluralism is a concept allowing the description and explication of various legal facts, institutions, relations which are not generally recognized in state-centered theory of law. Globalization is a common name for the distinctive characteristics which distinguish the present-day Western civilization from other civilizations. The amalgamation of these two different aspects into one set of methods and ideas inspired by the need to explain modernity does not lead to the formation of a new methodology or of a scientific conception. Rather globalization talks about plurality in contemporary law having another function – to describe the changing mentality, new ways of legal thinking which are growing in the Western world. These changes have repercussions in many fields of science, i.e. in a new understanding of such traditional concepts as sovereignty
    Keywords: legal pluralism, globalization, legal orders, transnational law, civilization, sociological jurisprudence, sustainability.
    JEL: K1
    Date: 2013
  12. By: Elena Postnikova (National Research University Higher School of Economics (Moscow, Russia))
    Abstract: The freedom to provide services is one of the four fundamental freedoms of the European Union (EU) internal market. Interstate trade in services is impeded by different obstacles consisting of the high level national regulation. The objective of this paper is to reveal the nature of prohibited restrictive national measures. The research is based on the analysis of the Treaty of Rome (now the Treaty on the functioning of the European Union), secondary EU law, the evolution of EU case-law, and a range of doctrinal views. It is argued that the definition of prohibited restrictions is the most complex aspect of the case-law on services. The research compares the concept of the restrictions that are to be abolished within the scope of the freedom to provide services and of other freedoms. This study also investigates the correlation between EU and World Trade Organization (WTO) legal mechanisms in the sphere of the provision of services
    Keywords: European Union, services, freedom to provide services, internal market, discrimination, non-discriminatory restrictions, Court of Justice of the EU, market access
    JEL: K33
    Date: 2013
  13. By: Svetlana Vasileva (Candidate of Legal Sciences, Associate Professor, Department of Constitutional and Municipal Law, National Research University Higher School of Economics)
    Abstract: The author analyzes the different forms of relationships between businesses and bodies of state power in Russia: private and public partnership, the delegation of public powers and property, self-regulation, the transfer of government authority to the private organizations, self-regulation, and how public power is influenced including by specialists. The experience of foreign countries and the legal view on the social responsibility of business are provided. The political-legal traditions of the relationships between private organizations and bodies of state power are analyzed. This has predetermined the current legislation. The informal and relatively new mechanisms of protection of the rights of businesses are described
    Keywords: Private and public partnership, delegating public powers and property, self-regulation, social responsibility of the business community, regulatory impact assessment
    JEL: K10 K20 K23
    Date: 2013
  14. By: Heger, Diana; Hussinger, Katrin
    Abstract: Classical patent literature assumes that patents grant well-defined legal rights to exclude others from practicing an invention. In this scenario, start-up companies benefit from the exclusive right to commercialize patent-protected inventions and the certification effect of patents which signals the ventures' 'quality' to investors. If the decision about patent applications is pending at the patent office patent rights become probabilistic and both effects may not realize. We show that start-up companies are reluctant to launch new products if patents are pending. Further, pending patents attract risk-seeking investors (venture capitalists), while more cautious investors (banks) do not react on pending patents. --
    Keywords: start-ups,patents,probabilistic patents,pending patents,access to finance,new product launch
    JEL: L26 O31 O34
    Date: 2013
  15. By: Sergey Tretyakov (National Research University Higher School of Economics, Associate Professor the Chair of Civil Law of the Moscow State University)
    Abstract: In the present working paper we have hypothesized an explanation for the fact that the evaluation of the social impact of law is modeled predominantly by the economic efficiency concept. Considering the early stages of the concept’s development, we try to make it more intelligible to the European lawyers.
    Keywords: efficiency, marginal utility theory, Darwinism, preferences, social consequences of law
    JEL: K10
    Date: 2013
  16. By: Anderson, D. Mark (Montana State University); Rees, Daniel I. (University of Colorado Denver)
    Abstract: During the period 2001-2009, four combat brigades and the 3rd Armored Cavalry Regiment were based at Fort Carson, Colorado. These units were repeatedly deployed during the Iraq War, allowing us to measure the effect of arguably exogenous changes in troop levels on violent crime in El Paso County, where Fort Carson is located. Our results suggest that never-deployed units contributed to community violence in the form of assaults, murders, and robberies. In contrast, estimates of the relationship between the number of previously deployed units and violent crime are generally small and statistically insignificant. We conclude that soldiers returning from combat do not represent a special threat to public safety.
    Keywords: combat, crime, Iraq War, violence
    JEL: K4 H56
    Date: 2013–11
  17. By: Alexander Kozyrin (Doctor Habilitated in Law, Professor, Head of Department, Financial Law, National Research University Higher School of Economics)
    Abstract: Customs payments play special role in the economy of the Russian Federation. They composed just over 50 percent of the total budgetary income on the eve of the Russian Federation’s entry into the EurAsEC Customs Union. The article considers the changes which occurred in the legal base of customs regulation since the EurAsEC Customs Union was created and the Russian Federation became a member. The customs legislation structure of the Customs Union is analyzed in the article. Special attention is given to the acts which became the source of financial law in the Russian Federation, being adopted by supranational regulator, the Eurasian Economic Commission
    Keywords: EurAsEC, customs union, customs legislation, customs payments, financial law
    JEL: K33 K34
    Date: 2013
  18. By: Deakin, Simon
    Keywords: labour market segmentation, labour law, law reform, segmentation du marché du travail, droit du travail, réforme législative, segmentación del mercado de trabajo, derecho del trabajo, reforma legislativa
    Date: 2013
  19. By: Mikhail Antonov (National Research University Higher School of Economics (St. Petersburg). Associate Professor of Law)
    Abstract: This paper examines the correlation between the concepts of sovereignty, human rights, and democracy in Russian legal and political debate, analyzing this correlation in the context of Russian philosophical discourse. It argues that sovereignty is often used as a powerful argument which allows the overruling of international humanitarian standards and the formal constitutional guarantees of human rights. This conflict between sovereignty and human rights also recurs in other countries, and many legal scholars demand the revision or even abandonment of the concept of sovereignty. In Russia this conflict is aggravated by some characteristic features of the traditional mentality which frequently favors statism and collective interests over individual ones, and by the state building a “power vertical” subordinating regional and other particularistic interests to the central power. These features and policies are studied in the context of the Slavophile-Westernizer philosophical divide. This divide reveals the pros and contras put forward by the Russian supporters of the isolationist (conservative) policy throughout contemporary history, and especially in the sovereignty debates in recent years. The Russian Constitution contains many declaratory statements about human rights and democracy, but their formulations are vague and have little concrete effect in court battles where the application of international humanitarian law is counterbalanced by the concerns of the protection of sovereignty. These concerns coincide with isolationist and authoritarian policies, which led in 2006 to their amalgamation into the concept of “sovereign democracy.” This concept is considered in this paper to be a recurrence of the Russian conservative tradition. Even though the concept in its literal meaning has been abandoned by its author and supporters, most of its ideas are still on the cusp of the official political discourse which reproduces the pivotal axes of the Russian political philosophy of the 19th century
    Keywords: sovereignty, human rights, legal mentality, democracy, sovereign democracy, Constitution, international law, Constitutional Court, Slavophiles, Westernizers, conservatism, individual liberties
    JEL: K1
    Date: 2013
  20. By: Prud'homme, Dan
    Abstract: Although China became the world's leading patent filer in 2011, patent quality is still a serious issue in the country. This article first provides a statistical snapshot of this situation and then discusses how China's network of patent-related policies and practices in certain cases actually contributes to this problem and hampers innovation. The article also looks at the negative consequences of poor patent quality, paying special attention to the impacts on foreign companies in China.
    Keywords: patent quality; patent quality metrics; China's patent policy; China's innovation policy; indigenous intellectual property rights
    JEL: K11 O25 O31 O34 O38
    Date: 2013–03–01
  21. By: M.C. Grimston; W.J. Nuttall
    Abstract: Choosing a suitable site for a nuclear installation requires the consideration and balancing of several factors which are sometimes in tension with one another. One particularly interesting tension is a human and demographic one. On the one hand it is beneficial to place nuclear stations close to centres of population, to reduce transmission losses and other costs (including to the local environment) of transporting electricity over large distances from generator to consumer. On the other it is advantageous to place nuclear stations some distance away from such population centres in order to minimise the potential human consequences of a major release of radioactive materials in the (extremely unlikely) event of a major nuclear accident, not only in terms of direct exposure but also concerning the management of emergency planning, notably evacuation. This paper considers the emergence of policies aimed at managing this tension in the UK. In the first phase of nuclear development (roughly speaking 1945 to 1965) there was a highly cautious attitude, with installations being placed in remote rural locations with very low population density. The second phase (1965 to 1985) saw a more relaxed approach allowing Advanced Gas-Cooled Reactor construction closer to population centres (in ‘semi-urban’ locations, notably at Hartlepool and Heysham). In the third phase (1985 to 2005) there was very little new nuclear development, Sizewell B (the first and so far only pressurised water power reactor in the UK) being co-located with an early Magnox station on the rural Suffolk coast. However, there was considerable effort expended on trying to find a site for disposal of radioactive wastes. Renewed interest in nuclear new build grew from 2005 onwards and led to a number of sites being identified for new reactors before 2025; all having previously hosted nuclear stations and including the semi-urban locations of the 1960s and 1970s. Finally, some speculative comments are made as to what a ‘fifth phase’ starting in 2025 might look like.
    Keywords: Nuclear Power, Safety, Planning, Environmental Protection
    JEL: K32 L94 N74
    Date: 2013–11–27
  22. By: Irina Getman-Pavlova (Associated Professor, Department of International Private Law, National Research University “Higher School of Economics”, Candidate of science)
    Abstract: This article investigates the concept of “comity”, discussed by Ulrich Huber (Dutch scholar of the XVIIth century). This author is the most typical representative of the Dutch theory of the conflict of law. Huber’s writings primarily reflected the doctrine of comity, which is the basis of the Dutch school statutes. This article concludes that all Huber’s axioms have entered modern doctrine and court practice (especially in common law countries). Huber is the founder of the “national theory” of conflict rules and, at the same time, the founder of “international theory” in the private international law
    Keywords: private international law, doctrine, theory of the statutes, the Netherlands (the Dutch), Dutch school of conflict law XVIIth century, Ulrich Huber, international comity, positivism, pragmatism.
    JEL: K40
    Date: 2013
  23. By: Alexander Savelyev (National Research University Higher School of Economics)
    Abstract: The emergence of so-called “free” or “open source” software and the growth of its economic importance in various industries makes questions regarding the legal status of free/open source licenses especially important. In December 2010 new draft amendments to the Russia’s Civil Code were published, introducing new concepts in order to reflect the ideas pursued by these types of licenses. This article analyzes existing problems with the legal status of free/open source licenses, whether proposed amendments may solve them, and what risks they may create. Since Russia is among the first countries trying to include provisions on free/open source licenses in its legislation, such analysis may be of interest to foreign lawmakers since the concept of open source is universal all over the world
    Keywords: open source, free software, GPL
    JEL: K19
    Date: 2013
  24. By: Mina, Wasseem
    Abstract: This paper examines the influence of political risk guarantees of bilateral investment treaties on debt and equity flows using panel data on middle income countries for the period 1984-2011. Adopting system GMM methodology, the paper empirically finds that ratified bilateral investment treaties with OECD countries have a combined positive influence on non-guaranteed debt flows and a direct positive influence on portfolio equity flows. The results highlight the importance of considering political risk guarantees in financial integration, regulation of financial markets and institutions, and capital liberalization.
    Keywords: Political risk guarantees, bilateral investment treaties, capital flows, debt flows, equity flows
    JEL: F21 F34 G15 G18 K33
    Date: 2013–08–30
  25. By: Leonid Sykiainen (National Research University Higher School of Economics. Department of Theory of Law and Comparative Law; Professor)
    Abstract: At the end of 2010 there was series of political crises in the Arab world and this period came to be known as “the Arab Spring”. Islam has played a significant role in these events. In certain countries overthrowing the existing regimes resulted in Islamic governments coming to power. A number of aspects of the Arab Spring attracted the attention of contemporary Islamic legal thought. Its different schools diverge in the assessment of the mass protests. Islamic jurisprudence explains the “fiqh of revolution” which justifies the demonstrations and protests against the regime from a Sharia-based point of view
    Keywords: “the Arab Spring”; Islam; political reforms; Sharia, demonstrations; innovation; “fiqh of revolution”
    JEL: K30
    Date: 2013

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