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on Law and Economics |
| By: | Martin Brenncke (Aston Law School) |
| Abstract: | The principle of legal certainty, the rule of law and the constitutional separation of powers are affected to a significant degree when judges engage in judicial law-making, i.e. when they restrict or extend the scope of application of an enactment beyond or against the possible semantic meanings of the statutory language. This paper assesses how far English and German judges go when they interpret national legislation. It adopts a comparative methodological and constitutional perspective. The border between permissible judicial law-making and impermissible judicial amendment of legislation is governed by ?outer? methodological limits in judicial practice. This paper explores reasons that may explain the existing similarities and differences in these limits in England and Germany. By focusing on the methodological constraints of judicial law-making, the paper adds an underexplored aspect to the debate on converging / diverging statutory interpretation in civil law and common law jurisdictions. It also focuses on the often neglected relationship between statutory interpretation and constitutional law. The wider debate the paper feeds into is the debate about the proper degree and limits of judicial power in a legal system.This paper argues that opposing default positions exist in English and German judicial practice in relation to the permissibility of judicial law-making. This is not only due to different underlying constitutional settings but also due to historical factors and tradition that affect judicial attitudes. The paper thus rejects the thesis that statutory interpretation in both countries is fundamentally uniform.In the realms of rights-consistent judicial law-making and interpretation in conformity with an EU directive, this paper discerns contrasting trends in statutory interpretation in both jurisdictions. One effect of these trends is, however, a growing congruence not only in the general expression of outer interpretative limits but also in their application in individual cases in England and Germany. This convergence is based on judges? common understanding of their constitutional role vis-à-vis the legislature. Changes in the UK constitutional framework can partly, but not fully, justify this convergent development. Another reason for the high level of convergence is that English courts have exceeded their judicial powers. The paper therefore argues that scholars have rightly criticised highest English courts for undermining constitutional doctrine with adventurous re-interpretations of legislation. As regards German judicial practice, the paper will challenge scholarly claims that German courts have extended the limits of the judicial function. |
| Keywords: | statutory interpretation, judicial law-making, rights-consistent interpretation, EU legal duty of conforming interpretation, English judicial practice, German judicial practice, convergence, divergence |
| JEL: | K10 K40 K19 |
| Date: | 2018–07 |
| URL: | http://d.repec.org/n?u=RePEc:sek:ilppro:7908829&r=law |
| By: | Leong, Kaiwen (Nanyang Technological University, Singapore); Li, Huailu (Fundan University); Xu, Haibo (Fudan University, China) |
| Abstract: | Using a unique dataset covering the borrowing behaviour of over a thousand borrowers, we study the unlicensed moneylending market in Singapore. In this market, borrowers search for lenders, and lenders decide how much profit to extract from borrowers. Lenders harass borrowers into compliance. We observe that different lenders apply different markups on different borrowers. Higher markups discourage borrowers from repeatedly borrowing from a particular lender. Increased enforcement specifically targeted at reducing the number of lenders in this market will increase markups, but will not deter borrowers from becoming recurrent borrowers because they have fewer lenders to choose from. |
| Keywords: | illegal lending, enforcement, markup |
| JEL: | K42 |
| Date: | 2018–08 |
| URL: | http://d.repec.org/n?u=RePEc:iza:izadps:dp11786&r=law |
| By: | Deva Prasad M (Indian Institute of Management Kozhikode) |
| Abstract: | The paper highlights the significance of enacting the Arbitration and Conciliation (Amendment) Act, 2015. The failure of the Arbitration and Conciliation Act, 1996 to control excessive judicial intervention and undue delay in the arbitration proceedings are clearly explained in this article to establish the context for legislating the Arbitration and Conciliation (Amendment) Act, 2015. The instances of excessive judicial intervention in arbitration are analysed supported with relevant judicial decisions. The role of the Law Commission of India in revamping the arbitration law is also highlighted in the paper. An overview of the key statutory provisions incorporated in the Arbitration and Conciliation (Amendment) Act, 2015 purposed to minimize the judicial intervention and delay in arbitration process is also provided. The paper aims in identifying the Arbitration and Conciliation (Amendment) Act, 2015 as a significant move in increasing the effectiveness of arbitration process in India. Keywords: Arbitration, Judiciary, Alternative Dispute Resolution, Law and Public Policy, Indian Legal System, Law Commission of India |
| Keywords: | Arbitration and Conciliation |
| Date: | 2018–05 |
| URL: | http://d.repec.org/n?u=RePEc:iik:wpaper:285&r=law |
| By: | Avato, Edoardo (Pedersoli Studio Legale); Winkler, Matteo (HEC Paris) |
| Abstract: | This article hinges on the preliminary ruling rendered by the Court of Justice of the EU (CJEU) (Grand Chamber) on 18 October 2016 and the related judgment of the German Federal Labour Court of 26 April 2017 in the Nikiforidis case to investigate an area of private international law that is undergoing a substantial development: overriding mandatory provisions. In Nikiforidis, the CJEU excluded that two Greek laws cutting the salary of public employees may be enforced against a teacher working in Germany for the Greek Government under an employment contract governed by German law. The question addressed to the CJEU was whether the said laws were “overriding mandatory provisions” according to the Rome I Regulation. The Court denied it, and left to the referring court to determine whether they could nevertheless operate “as matter of fact” under the governing law. This article explains how the CJEU’s conclusion has broader implications by regulating third countries’ interference in international business transactions. Starting with an analysis of the case, the article examines the history and nature of overriding mandatory provisions under EU private international law and argues that the solution embraced by the CJEU leaves room for uncertainty and unpredictability in the operation of foreign mandatory provisions. |
| Keywords: | Amendments; Applicable law; Contracts of employment; EU law; Germany; Greece; Remuneration |
| JEL: | K33 |
| Date: | 2018–09–18 |
| URL: | http://d.repec.org/n?u=RePEc:ebg:heccah:1302&r=law |
| By: | Langinier, Corinne (University of Alberta, Department of Economics); Marcoul, Philippe (University of Alberta) |
| Abstract: | Self-funded patent offices should be concerned with patent quality (patents should be granted to only deserving innovations) and quantity (as revenues come from fees paid by applicants). In this context, we investigate what is the impact of the self-funded constraint on different bonus contracts, and how these contracts affect the examiners incentive to prosecute patent applications. We consider contracts in which a patent office offers bonuses on quantity quotas (explicit contract) and on quality outcome (either an implicit contract or an explicit contract based on a quality proxy). We find that a self-funded constrained agency should make different organization choices of incentives. For a low quality proxy precision, an agency facing a tight budget operates well with implicit contracts. However, by only relaxing moderately the budget constraint, the agency might be worse off simply because this will preclude implicit contracts. Only very large patenting fees might allow the agency to compensate for the loss of implicit contracts. |
| Keywords: | Patents; Examiners; Explicit and Implicit Contracts; Self-funded Agency |
| JEL: | D23 D86 O34 |
| Date: | 2018–10–18 |
| URL: | http://d.repec.org/n?u=RePEc:ris:albaec:2018_014&r=law |
| By: | Jeffrey Izzo (California State University Northridge) |
| Abstract: | In the 21st century of sweeping and effortless consumer access to artist performances -- via YouTube, social media, and other digital dissemination methods -- the goal of protecting performers has become both more crucial than in the past and considerably more difficult. The digital landscape has plunged us into an essentially borderless world, where someone in Italy can download a YouTube performance from Japan and do what they wish with it -- without the performer's knowledge. While there are myriad legal schemes addressing this phenomenon both on the international and domestic levels -- for instance, the Rome Convention and the US Copyright Law's music video anti-trafficking provision -- this paper will examine whether such legal protections should be reinforced or perhaps relaxed, based on the notion that current laws have failed to keep pace with the vigorous and rapid expansion of consumer access via digital means. |
| Keywords: | Copyright, Berne Convention, Rome Convention, Trademark, Publicity, Brand, Bootlegging, Performers |
| Date: | 2018–07 |
| URL: | http://d.repec.org/n?u=RePEc:sek:iahpro:6609006&r=law |
| By: | Alemanno, Alberto (HEC Paris - Tax & Law) |
| Abstract: | This time was supposed 'to be different', at least this was the motto of the 2014 European Parliament elections campaign. With less than a year before the next European elections, the time is ripe to examine how different this EU political cycle has actually been. Emboldened by the Spitzenkandidaten process – which established for the first time a link between the outcome of the EU elections and the presidency of the EU Commission –, the Juncker Commission emerged as the most political yet. To shrug off the label of technocratic institution – historically insulated from citizens’ preferences –, the new Commission asked EU citizens to judge its operation by its ability ‘to deliver solutions to the big issues that cannot be addressed by the Member States alone’. While the Better Regulation Agenda might have improved the Commission’s public accountability – with both citizens and stakeholders being better informed about and engaged with EU policy-making –, without however increasing its responsiveness to public preferences. This is the case at the input, throughput and output stage. Rather, the techno-political approach to policymaking – which characterizes the Juncker’s Better Regulation – might have paradoxically led to a compression of participatory democracy and somehow chilled stakeholder engagement. At a time of unprecedented contestation of the EU project – a trend which is combined by a record-demand for new forms of political representation –, it appears paradoxical that the EU – an early promoter of participation – is missing out the chance to seize the momentum to diversify and redesign its participatory structures being busy delivering on its electoral promises no one will ever judge.At the very same time the Juncker Commission has been striving to develop its own, autonomous democratic credentials, its choice to embrace a set of well-defined institutional mechanisms that reward expert judgment over political adjudication appears at odds with its newly-acquired political nature. |
| Keywords: | Better Regulation Agenda; Juncker Commission |
| JEL: | K33 |
| Date: | 2018–09–11 |
| URL: | http://d.repec.org/n?u=RePEc:ebg:heccah:1303&r=law |
| By: | Ulyssea, Gabriel (University of Oxford); Ponczek, Vladimir (Sao Paulo School of Economics) |
| Abstract: | How does enforcement of labor regulations shape the labor market effects of trade? To tackle this question, we exploit the Brazilian trade liberalization episode and exogenous variation in the intensity of both the trade shock and enforcement across local labor markets. Regions with stricter enforcement observed no increase in informal employment but large disemployment effects. Regions with weaker enforcement had no employment losses but substantial increases in informality. All effects are concentrated on unskilled workers, with no effects on skilled workers. The results indicate that informality acts as a buffer that reduces trade-induced adjustment costs in the labor market. |
| Keywords: | trade, enforcement of labor regulations, informality |
| JEL: | F16 K31 |
| Date: | 2018–08 |
| URL: | http://d.repec.org/n?u=RePEc:iza:izadps:dp11783&r=law |
| By: | Budzinski, Oliver; Kuchinke, Björn |
| Abstract: | This paper outlines the modern industrial organization theory of media markets including competition policy implications. After recapturing fundamentals of industrial organization theory in a non-technical way, the state of the art of (i) modern platform economics, (ii) the economics of the so-called sharing economy, and (iii) the economics of data-based business models and data-driven markets is summarized in a detailed way and illustrated by modern media examples. |
| Keywords: | industrial organization,media economics,industrial economics,platform economics,sharing economy,digital economy,digitization,big data,economics of privacy,competition policy,antitrust economics |
| JEL: | L0 L82 L10 A2 K21 |
| Date: | 2018 |
| URL: | http://d.repec.org/n?u=RePEc:zbw:tuiedp:115&r=law |