nep-law New Economics Papers
on Law and Economics
Issue of 2021‒02‒22
twenty-one papers chosen by
Eve-Angeline Lambert, Université de Lorraine

  1. Should Offenders’ Gains Be Counted? On Efficient Crimes and Unjust Laws By Thomas J. Miceli
  2. Intellectual property and digital trade: Mapping international regulatory responses to emerging issues By Meier-Ewert, Wolf R.; Gutierrez, Jorge
  3. Judicial Independence: Why Does De Facto Diverge from De Jure? By Bernd Hayo; Stefan Voigt
  4. Some Considerations Regarding the Crime of False Statements By Nicoleta-Elena Heghes
  5. Liability in Medical Negligence Cases: A Comparative Study of Indian and American Laws and Policies By Anupama Goel
  6. The Criminalisation and Investigation of the Crime of Misappropriation of Funds in Romanian Law By Adrian Cristian Moise
  7. Brexit, EU and UEFA. By Aladetoyinbo, Muyiwa
  8. General Information Regarding Criminality Related to Political Conditions By Tiberiu Viorel Popescu
  9. Power and Purpose:Canadian Municipal Law in Transition By Zack Taylor; Alec Dobson
  10. Gang rule: Understanding and Countering Criminal Governance By Christopher Blattman; Gustavo Duncan; Benjamin Lessing; Santiago Tobón
  11. Wage Inequality and Labor Rights Violations By Marinescu, Ioana E.; Qiu, Yue; Sojourner, Aaron
  12. Proportionality and Karlsruhe's ultra vires verdict: Ways out of constitutional pluralism? By Höpner, Martin
  13. Incurring the Jointly and Severally Liability and the Procedure of Insolvency. Compatibility or Exclusive Character By Adina Georgeta Ponea
  14. MSMEs AND COMPETITION LAW IN INDIA: VICTIMS OR PERPETRATORS By Ashita Allamraju; Palakh Jain; Chavi Asrani
  15. Rewarding in International Law By van Aaken, Anne; Simsek, Betül
  16. Full Collusion with Entry and Incomplete Information By Ramakanta Patra; Tadashi Sekiguchi
  17. Exclusive Data, Price Manipulation and Market Leadership By Yiquan Gu; Leonardo Madio; Carlo Reggiani
  18. The Inheritance Rights of the Surviving Spouse By Valentina Avramescu
  19. Exclusion of Extreme Jurors and Minority Representation: The Effect of Jury Selection Procedures By Moro, Andrea; Van der Linden, Martin
  20. Adverse Legislative Aspects Regarding the Preventive Measure of House Arrest By Bogdan David
  21. Jurisprudential Analysis in Matters of Discrimination. Jurisdictional Competence of the National Council for Combating Discrimination By Adina Georgeta Ponea

  1. By: Thomas J. Miceli (University of Connecticut)
    Abstract: The question of whether or not offenders’ gains should be counted in social welfare dates back to Stigler’s original critique of the Becker model, but the debate has generally been carried out within the context of optimal law enforcement, while taking the content of law as given. This paper extends the discussion to the question of what acts should be made illegal. It does this by viewing the Becker model of crime through the lens of the Coase-Calabresi-Melamed framework for assigning and protecting legal entitlements in conflicting-use situations. The practice of civil disobedience—the breaking of laws deemed to be unjust—is discussed in light of the analysis. JEL Classification: K14, K42 Key words: Economics of crime, offenders’ benefits, law enforcement, lawmaking, civil disobedience
    Date: 2021–02
  2. By: Meier-Ewert, Wolf R.; Gutierrez, Jorge
    Abstract: This paper explores how regulatory responses to emerging IP issues in digital trade may develop at the international level and in particular how existing mechanisms might influence the chances of developing internationally agreed rules in this regard. The primacy of state sovereignty in intellectual property up to the late 19th century gave way to the important WIPO treaties, which still retained some independence of member states and based international regulatory responses directly on national experience. While more regulatory sovereignty was ceded in TRIPS, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, the adoption of non-binding instruments (such as the WIPO Joint Recommendations in the area of trademarks) show the limits of decision making by consensus. International non-state solutions such as the Uniform DomainName Dispute-Resolution Policy (UDRP) established by the Internet Corporation for Assigned Names and Numbers (ICANN) have introduced separate, technically determined solutions to specific IP issues. Proliferating free-trade agreements (FTAs) have emerged as a new platform to agree to IPrelated regulatory responses that can be used to project the national solutions of a few dominant FTA-partners. However, these FTAs have also served to give legally binding status to internationally agreed non-binding recommendations. These diverse approaches are apparent in recent IPregulatory responses to emerging digital issues that are particularly relevant for digital business models, including inter alia Internet service provider (ISP) liability, "safe harbour" provisions and the issue of orphan works, where there appears to be less agreement. Still further behind to reaching any kind of agreement are the emerging issues of online exhaustion, data mining and IP-related questions of artificial intelligence.
    Keywords: intellectual property,trade in knowledge,digital trade,TRIPS Agreement,Berne Convention,Paris Convention,WIPO Internet Treaties,Regional Trade Agreements,online exhaustion,safe harbour,ISP liability
    JEL: F13 K10 K33 O30 O31 O33 O34
    Date: 2021
  3. By: Bernd Hayo (Philipps University Marburg); Stefan Voigt (University of Hamburg)
    Abstract: An independent judiciary has often been hailed as one of the most important aspects of the rule of law. Securing judicial independence (JI) via explicit constitutional rules seems straightforward and there is evidence that de jure and de facto JI are linked, at least in the long term. However, the realized degree of judicial independence often diverges significantly from the constitutionally guaranteed one. Based on theoretical conjectures and a worldwide panel dataset from 1950 to 2003, we find changes toward more parliamentary systems to be associated with a larger de jure-de facto gap, whereas the existence of procedures for amending the constitution are associated with a smaller gap. Relying on corruption levels as a proxy for the functionality of institutions, we find that higher corruption levels are associated with a wider gap between de jure and de facto JI.
    Keywords: Judicial independence; constitutional compliance; de jure; de facto; de jure-de facto gap
    JEL: H11 K38 P51
    Date: 2021
  4. By: Nicoleta-Elena Heghes (Dimitrie Cantemir Christian University of Bucharest, Romania)
    Abstract: During the state of emergency, but also in the state of alert established due to the coronavirus pandemic, in Romania prosecutors have prepared special cases relating to the crime of thwarting the fight against disease, for false statements, abuse or negligence in office, disclosure of secret service or non-public information, for fraud, theft, failure to take legal measures for safety and health at work. This article is dedicated to one of the measures of criminal law that the Romanian state has proposed to adopt in the current context, namely the amendment and completion of Article 326 of the Romanian Criminal Code - False statements. The increase in punishment limits is justified, as the coronavirus pandemic has proved to be more severe than anticipated both for the life and health of the entire population and for the economy, generating numerous unprecedented restrictions. By committing this crime, the trust that must be inspired by the official documents drawn up on the basis of the statements made before the public authorities or institutions is infringed
    Keywords: false, false statements, public health, social danger, pandemic
    Date: 2020–08
  5. By: Anupama Goel (National Law University, Delhi, India)
    Abstract: America and India share a lot in common. Both countries have rich and diverse democracies with a liberal constitutional framework. Any service-oriented profession inherently poses a risk of some kind to its consumer. But it is the medical profession alone which potentially risks the body and life of its consumer (patient). At the same time, the service provider, i.e. the doctor, or the paramedic, is but a human being, who if severely pressured to dire consequences in case of an error, may not be able to deliver. The American and Indian jurisdictions have different sets of laws to regulate medical negligence. While American laws aim at a quick and effective reparation of injury suffered by patient and his family, the Indian laws are more amorphous in character and can potentially result in a multi-faceted attack on the erring doctor. Courts, particularly the Indian Supreme Court, have often tilted the balance in favour of the patient and his family. This may have serious consequences on the morale of the medical profession, as well as the quality of healthcare, which is ultimately provided to the citizen. The paper seeks to survey the entire law, policy and practice on medical negligence in America and India, by studying the judicial pronouncements by the courts of record in both the jurisdictions. The objective is to propose a viable alternative for balancing the rights and interests of both the patient and doctor, which is not only justice-oriented, but also meets the social requirements.
    Keywords: : Medical Negligence, Doctors, Damage, Compensation, Tort, Liability, Constitution, Court, Laws, Justice
    Date: 2020–08
  6. By: Adrian Cristian Moise (Spiru Haret University of Bucharest, Bucharest, Romania)
    Abstract: The article presents and analyses the main issues related to the criminalization of the crime of misappropriation of funds in Romanian legislation. The offence of misappropriation of funds is stipulated by the Article 307 of the Romanian Criminal Code, while Article 18² of the Law no. 78/2000 for the prevention, detection and sanctioning of corruption provides the offence of misappropriation of funds, obtained from the general budget of the European Union or from the budgets administered by it or on its behalf. The crimes are incriminated both in the Romanian Criminal Code and in the Law no. 78/2000, in a standard variant, in an assimilated variant and in an aggravated variant. At the same time, the article presents and analyzes some aspects related to the forensic investigation of the crime of misappropriation of funds.
    Keywords: misappropriation, funds, forensic, criminal investigation, Romanian Criminal Code
    Date: 2020–08
  7. By: Aladetoyinbo, Muyiwa
    Abstract: In March 2017, the UK voted to leave the EU in what is now popularly known as Brexit. The decision of the UK has raised many fundamental questions about the relationship between EU law and UK football, and the participation of UK football teams in UEFA tournaments. The also paper addressed the the applicability of EU economic freedom principles to UK football.
    Keywords: Brexit,UK, UEFA, EU, FIFA, football, CJEU, economic freedom.
    JEL: F13 F15 F55 K00 K31 K37
    Date: 2019–04–18
  8. By: Tiberiu Viorel Popescu (Legal Advisers’ College of Bucharest, Romania,)
    Abstract: Crime related to political conditions is a rare topic in socio-human research. This issue, at least in terms of state crime, can be paradoxical compared to the role that the state and the political regime have in social organization. However, taking into account the specifics of this type of crime, the mentioned issue can be addressed in criminological studies, starting from the specifics of this autonomous science that benefits its own concepts, different from the concepts with which criminal law operates. In this study we will also assess the extent to which and the situations in which the State as an entity can infringe on social values that it should defend through the multiple levers at its disposal, in the context in which it cannot be subject to criminal law. And, if this was ever possible, what was the social reaction to this circumstance? How can one react to crime related to political conditions whenever it could be identified in one of today's societies?
    Keywords: criminal law, criminology, crime, criminality
    Date: 2020–10
  9. By: Zack Taylor (University of Western Ontario); Alec Dobson (Western University)
    Abstract: This overview of municipal law in Canada’s 10 provinces identifies similarities and variations among and within provinces in the articulation of municipal purposes and the provincial-municipal relationship, municipal powers and jurisdiction, the organization of municipal institutions, and finance. The paper also comments on asymmetrical arrangements for large cities, commonly referred to as city charters. Far from being static, Canadian municipal law is in a period of transition. The legal scope of municipal authority has expanded over the past 25 years as most provinces have revised their general municipal acts and adopted special laws for major cities. While the overall trend has been toward more permissive authority and the recognition of municipalities as democratic, accountable, and responsible governments, there are significant variations across the provinces, and some have gone further than others in expanding the legal authority of municipalities. We conclude that the practical potential of this wave of legislative reform remains unknown and perhaps unrealized, and requires further research.
    Keywords: Municipal governance
    JEL: H11 H70
    Date: 2020–02
  10. By: Christopher Blattman; Gustavo Duncan; Benjamin Lessing; Santiago Tobón
    Abstract: Gangs govern millions worldwide. Why rule? And how do they respond to states? Many argue that criminal rule provides protection when states do not, and that increasing state services could crowd gangs out. We began by interviewing leaders from 30 criminal groups in Medellín. The conventional view overlooks gangs’ indirect incentives to rule: governing keeps police out and fosters civilian loyalty, protecting other business lines. We present a model of duopolistic competition with returns to loyalty and show under what conditions exogenous changes to state protection causes gangs to change governance levels. We run the first gang-level field experiment, intensifying city governance in select neighborhoods for two years. We see no decrease in gang rule. We also examine a quasi-experiment. New borders in Medellín created discontinuities in access to government services for 30 years. Gangs responded to greater state rule by governing more. We propose alternatives for countering criminal governance.
    JEL: C93 E26 H11 K42 O17
    Date: 2021–02
  11. By: Marinescu, Ioana E. (University of Pennsylvania); Qiu, Yue (Temple University); Sojourner, Aaron (University of Minnesota)
    Abstract: Wage inequality does not fully capture differences in job quality. Jobs also differ along other key dimensions, including the prevalence of labor rights violations. We construct novel measures of labor violation rates using data from federal agencies. Within local industries over time, a 10% increase in the average wage is associated with a 0.15% decrease in the number of violations per employee and a 4% decrease in fines per dollar of pay. Reduced labor market concentration and increased union coverage rate are also associated with reductions in labor violations. Overall, labor violations are regressive: they increase inequality in job quality.
    Keywords: wage differentials, inequality, worker power, labor rights
    JEL: J31 J83 J32 J33 J28 K31 K42
    Date: 2021–02
  12. By: Höpner, Martin
    Abstract: In May 2020, for the first time in its history, the Federal Constitutional Court (FCC) of Germany declared Union acts as being ultra vires. According to the FCC, the European Central Bank (ECB) and the Court of Justice of the European Union (CJEU) had acted beyond their mandates because they did not apply strong proportionality standards to the ECB's Public Sector Purchase Programme (PSPP). The resulting stalemate within constitutional pluralism has revived the discussion about the possible introduction of an Appeal Court with the 'final say' over constitutional conflict. As the analysis of the PSPP conflict shows, such a judicial authority would reach its limits the more we move from the surface to the core of the struggles between European and national constitutional law. The different readings of proportionality are difficult to bridge, and the mutually exclusive claims about the nature of the supremacy of European law are not accessible to compromise at all. We should therefore not expect too much from an Appeal Court, if it were introduced.
    Keywords: constitutional conflict,Court of Justice of the European Union,European Central Bank,European law,European Monetary Union,Federal Constitutional Court,proportionality,Bundesverfassungsgericht,Europäische Währungsunion,Europäische Zentralbank,Europäischer Gerichtshof,Europarecht,Verfassungskonflikt,Verhältnismäßigkeit
    Date: 2021
  13. By: Adina Georgeta Ponea (University of Craiova, Craiova, Romania)
    Abstract: The procedure for incurring the jointly and severally liability regulated by the provisions of art. 25 and 26 of the new Fiscal Procedure Code also applies if the debtor is in the insolvency procedure regulated by Law no. 85/2006 on insolvency prevention procedures and insolvency proceedings. The two distinct types of liabilities engaged in two different procedures do not overlap or exclude each other. Regarding the attraction of joint and several liability, according to Article 25 para. (3) of the Fiscal Procedure Code, the text of the law stipulates as a pre-existing condition the state of insolvability or insolvency of a legal person. Therefore, joint and several liability may be incurred, according to Article 25 para. (3) of the normative act specified above, if the (principal) debtor has been declared either in a state of insolvability or in a state of insolvency.
    Keywords: debtor, insolvability, insolvency, incurring joint and several liability, taxation decision
    Date: 2020–08
  14. By: Ashita Allamraju (Bennett University, India); Palakh Jain (Bennett University, India); Chavi Asrani (Indian Council of Research on International Relations, India)
    Abstract: SMEs contribute around 35-40% of the GDP of India and are key to employment generation, sustainable development and poverty reduction. This sector is largely unorganised and vulnerable to the dynamic external business environment. On one hand, small size of the SMEs makes them vulnerable to anti-competitive acts of bigger enterprises including abuse of dominant position and on the other hand, cooperation agreements amongst SMEs assist them to compete with large enterprises. Competition Act, 2002 deals with anti-competitive agreements and abuse of dominant position, amongst other things. The Competition Act of India is size and type neutral. This paper thus, looks at whether SMEs are perpetrators or victims of anti-competitive conduct. This study analyses the recent anti-trust cases in India which involved SMEs and develops a typology of anticompetitive conduct and abuse of dominance activities employed by large corporations against SMEs and also anti-competitive conduct that SMEs may engage in.
    Keywords: SMEs, Competition Law, anti-competitive, large corporations
    JEL: K21 D22 D40
    Date: 2020–04
  15. By: van Aaken, Anne; Simsek, Betül
    Abstract: The question of why states comply with international law has long been at the forefront of international law and international relations scholarship. The compliance discussion has largely focused on negative incentives for states to comply. We argue that there is another, undertheorized mechanism: rewarding. We provide a typology as well as illustrations of how rewards can be applied. Furthermore, we explore the ratio nale, the potential, and the limitations of rewarding, drawing on rationalist as well as psychological approaches. Both give ample arguments to make more use of rewarding in international law.
    Date: 2021
  16. By: Ramakanta Patra (Department of Accounting, Economics and Finance, Cardiff Metropolitan University); Tadashi Sekiguchi (Institute of Economic Research, Kyoto University)
    Abstract: This paper studies an infinitely repeated duopoly game with incomplete information and with costly entry decisions. Every period, each player learns her private type and decides whether to pay a cost in order for her to enter or not. If she enters, she plays a game belonging to a class that includes Bertrand duopoly and some auction games as special cases, either as a monopolist or as a duopolist. The players can communicate before they make their entry decisions. We study full collusion (joint profit maximization) in this environment which requires a higher-quality player to solely enter and to choose an action maximizing the stage payoff. We present a condition on the stage game which is both necessary and sufficient in order for full collusion to be an equilibrium outcome for sufficiently patient players. The condition is more likely to hold when the entry cost increases, which signifies that the entry cost is an important factor facilitating full collusion. We also show that under some parameter restrictions, asymmetric equilibria where only one player reveals her type every period sustain full collusion for a wider range of discount factors. These asymmetric equilibria reduce the total amount of communication, which makes it harder for antitrust authorities to detect collusion.
    Keywords: Bertrand Competition; Fixed Costs; Unknown Costs; Private Information; Infinitely Repeated Game; Pre-play Communication; One-sided Communication; Full Collusion
    JEL: C73 D43 K21 L0
    Date: 2021–02
  17. By: Yiquan Gu; Leonardo Madio; Carlo Reggiani
    Abstract: The unprecedented access of firms to consumer level data not only facilitates more precisely targeted individual pricing but also alters firms’ strategic incentives. We show that exclusive access to a list of consumers can provide incentives for a firm to endogenously assume the price leader’s role, and so to strategically manipulate its rival’s price. Prices and profits are non-monotonic in the length of the consumer list. For an intermediate size, price leadership entails an equilibrium outcome characterised by supra-competitive prices and low consumer surplus. In contrast, for short or long lists of consumers, exclusive data availability intensifies market competition.
    Keywords: Exclusive data, Personalised pricing, Price leadership, Strategic price manipulation
    JEL: D43 K21 L11 L13 L41 L86 M21 M31
    Date: 2021–01
  18. By: Valentina Avramescu (Dimitrie Cantemir Christian University of Bucharest, Bucharest, Romania)
    Abstract: This paper addresses the topic of inheritance rights of the surviving spouse, by making reference to the special conditions required by law for the surviving spouse in order for him/her to be able to inherit, as well as the legal characteristics of the surviving spouse. Also, we shall list the inheritance rights of the surviving spouse and we will present the general inheritance right along with any of the classes of legal heirs, mentioning the share of the inheritance of the surviving spouse. The right of occupation of the surviving spouse will be made known and, at the same time, we will present the conditions required for the occurrence of this right, its legal characteristics, as well as general aspects regarding the special right over furniture and household objects.
    Keywords: inheritance right, share of inheritance, surviving spouse, right of occupation, real right
    Date: 2020–08
  19. By: Moro, Andrea; Van der Linden, Martin
    Abstract: We compare two established jury selection procedures meant to safeguard against the inclusion of biased jurors that are also perceived as causing minorities to be under-represented in juries. The Strike and Replace procedure presents potential jurors one-by-one to the parties, while the Struck procedure presents all potential jurors before the parties exercise vetoes. In equilibrium, Struck more effectively excludes extreme jurors than Strike and Replace but leads to a worse representation of minorities. Simulations suggest that the advantage of Struck in terms of excluding extremes is sizable in a wide range of cases. In contrast, Strike and Replace only provides a significantly better representation of minorities if the minority and majority are heavily polarized. When parameters are estimated to match the parties' selection of jurors by race with jury-selection data from Mississippi in trials against black defendants, the procedures' outcomes are substantially different, and the size of the trade-off between objectives can be quantitatively evaluated.
    Keywords: Jury selection, Peremptory challenge, Minority representation, Gender representation
    JEL: J14 J16 K14 K40
    Date: 2021–02–12
  20. By: Bogdan David (Dimitrie Cantemir Christian University, Bucharest, Romania)
    Abstract: House arrest is the second preventive measure of deprivation of liberty, as noted in decision no 361/2015 of the RCC: “from the perspective of nature/substance, duration, effects, method of execution and intensity, both the measure of pre-trial detention and the preventive measure of house arrest concern a major interference in the person’s right to individual liberty†. We will analyze the preventive measure of house arrest from the perspective of guaranteeing the principle of legal certainty, but we will also argue the wrong classification of this measure in the category of custodial measures although, as regulated by the legislator, although it should be in the category of restrictive measures rights. Thus, the legislature did not take into account the essential element of a custodial measure, namely that of the manner in which it is enforced and its intensity. We will emphasize in this approach that the measure of house arrest does not meet the values of legal equivalence of a measure of deprivation of liberty in relation to the measure of pre-trial detention, but it approaches in terms of content, with a restrictive measure of rights, such as the institution of judicial review.
    Keywords: house arrest, pre-trial detention, execution, deprivation of liberty, restriction of rights, amendment of the law
    Date: 2020–08
  21. By: Adina Georgeta Ponea (University of Craiova, Romania)
    Abstract: Any person who considers himself discriminated against may refer to the National Council for Combating Discrimination which will investigate the alleged acts of discrimination and decide on their existence or non-existence. According to its legal consecration, the Council is the state authority in the field of discrimination, under parliamentary control and at the same time it is a guarantor of the observance and application of the principle of non-discrimination, in accordance with the domestic legislation in force and international documents to which Romania is a party. The jurisdictional activity of the Council, finalized with the pronouncement of a decision, can be censored by the administrative contentious court which, re-evaluating the administered evidence, will rule on its legality and validity.
    Keywords: principle of non-discrimination, forms of discrimination, disadvantaged category, equal opportunities, contentious administrative
    Date: 2020–10

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