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Javier Reyes

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Javier Reyes

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Javier Reyes

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Reframing Corporate Governance

Company Law Beyond Law and Economics

Javier Reyes

This stimulating book offers an astute analysis of corporate governance from both a historical and a philosophical point of view. Exploring how the modern corporation developed, from Ancient Rome and the Middle Ages up to the present day, Javier Reyes identifies the strengths and weaknesses of the mainstream theory of the firm as put forward by the law and economics school of thought.
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Brian H. Bix

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Brian H. Bix

This insightful research review provides analysis of the most important contemporary work by experts in the economic analysis of legal reasoning and interpretation. It explores a wide range of topics in the field, from constitutional to statutory interpretation, precedent and the interpretation of contracts. The articles discussed raise key questions concerning the optimal construction of institutions, the best approach to judicial decision-making, and the best strategies for statutory and contract drafting. This fascinating review will be valuable to academics interested in legal reasoning, economic analysis and legal philosophy.
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Brian H. Bix

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Anthony Niblett

What is so special about the timing of a judicial decision? When a court finds a statute to be unconstitutional and strikes down the law, from what time does the law cease to have effect? More importantly, when should the law cease to have effect? Three timing possibilities emerge. First, the law in question has no force or effect from the time of the judicial decision. Second, the law is deemed to never have been valid. A third possibility is the subject of this chapter. Suppose the point of invalidity occurs at some time in the future. The court holds the law to be unconstitutional, but suspends its declaration of invalidity for some period of time, perhaps one year. The unconstitutional law remains on the books and in effect during the time period following the court’s decision, but if the legislature does not address the unconstitutional defect by the judicially imposed deadline, then the declaration of invalidity takes effect. Despite the fact that individuals and groups may be deprived of constitutional rights, I argue that there are good reasons to delay declarations of invalidity in some circumstances. The delay may significantly mitigate transition costs associated with legal change and can provide the option to avoid potentially wasteful investments. But this delay can also change the judicial game between the courts and the legislature. Governments will be less proactive in ensuring that laws comply with the constitution and courts will be less likely to uphold statutes and regulations. Keywords: timing, judicial review, invalidity, unconstitutional laws, delay, deadlines, transitions

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Saul Levmore

Intellectual property law is motivated by the idea that innovation requires encouragement with property rights or other rewards. Law seeks to spur innovation in the private sector with copyrights, patents, and other devices, but none of these encourage innovations in lawmaking itself. As in the private sector, a first-mover advantage or harmonization among jurisdictions could influence the rate of innovation in lawmaking, though not necessarily in an optimal way. This chapter examines various kinds of lawmaking in order to evaluate the likelihood of optimal innovation. It takes account of constituents’ likely preference for free-riding on other jurisdictions’ experiments. Lawmakers, in turn, have reason to take a wait-and-see approach so as not to be associated with unsuccessful disruptions. The analysis examines lawmakers’ incentives and draws on several examples, including the design of healthcare systems, the legalization of same-sex marriage, and school reform. In many settings, lawmakers seem to be assigned the task of execution rather than innovation; if lawmakers are best understood as ‘assemblers’ of constituents, consensus, and ideas developed elsewhere, then it is noteworthy that this sort of activity in the private sector is (also) not encouraged by intellectual property law. The discussion includes the roles that prizes and inter-jurisdictional alliances might play in encouraging innovative lawmaking. It suggests that small-scale experimentation is easier in the private sector than in the public sphere, and this too likely affects the rate and thus timing of legal innovation. Keywords: innovation, intellectual property, harmonization, incrementalism