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Category: Law & Economics
November 5, 2018 November 5, 2018 /Vienna Woods Law & Economics/Leave a comment
Innovators and Regulators Meet to Discuss Blockchain in DC, by Cynthia M. Gayton, Esq. — August 11, 2016
August 11, 2016 August 12, 2016 /Vienna Woods Law & Economics/Leave a comment
On August 2, 2016, I volunteered to help register attendees at a blockchain conference in Washington, DC sponsored in part by Fintech Worldwide, Ltd. I was looking forward to learning about engaging blockchain product solutions, but this being a DC conference, there were only a few commercial and non-profit business early adopters sprinkled among the lawyers and regulatory agencies. It was very well attended and the speakers sincere and considerate. In between my volunteering obligations, I was able to listen to some of the panel discussions and what follows is the result of my cursory note taking and impressions.
The first panel discussion to which I was able to pay full attention was called "Smart Contracts and Decentralized Autonomous Organizations (DAO)" The moderator was Luis Carrazana, a founder of the Blockchain Conference. The panelists were Michael Abramowicz (George Washington University School of Law), Drew Hinkes (Berger Singerman), Jenny Cieplak (Crowell & Moring) and Jacob Dienelt (Brian Kelly Capital Management). The panel discussion description stated that the purpose of the panel was to "look at the implications of ("sic") some of the brightest minds in this emerging industry are doing and dreaming up." In addition to the general fear-tinged commentary about technology and its potential illegal uses, such as money laundering, the discussion included the failure of The DAO (the business entity) to prevent several million dollars from being withdrawn from owners' accounts, even when the organization became aware of the problem. The immutable/unchangeable nature of Ethereum smart contract code was at fault [Author's note: The code was written in Solidity programming language by a company called Slock.it. There was a flaw in the program that allowed a known Ethereum user to move money from other Ethereum accounts to its own.] Jacob Dinelt appeared to be the only panel member who felt that the software code error result should have been left to stand and that the financial losers be left to lick their wounds because "the code is the law" in this particular software development environment.
[Author's note: The code is not the only law. Laws exist even in the absence of or intentional waiver of them under many circumstances. If the parties had agreed to permit this sort of transaction, however, who is harmed? Specifically, was there any fraud? In the alternative, depending on where you live, the Uniform Commercial Code or its international equivalent, the rules set forth under the United National Convention on Contracts for the International Sale of Goods may apply if, as many have suggested, cryptocurrency is not currency, but a good. Is this distinction really a marketing/trade name problem? Would any of the cryptocurrency controversies have happened if, for example, the commodity was called "Purple" and an exchange was created for aficionados of baseball playing cards? How is this commodity different from, as another example, buying antique Pennsylvania currency on eBay?]
Drew Hinkes was asked to enlighten everyone about a recent Florida case where a bitcoin exchanger had money laundering charges against him dismissed. [Author's note: Michael Espinoza was accused of selling Bitcoin for cash when the sale was conducted with undercover police officers. Florida has had its share of bitcoin related criminal activity, which suggests that the state has a general crime problem and not just a bitcoin currency problem.]
The next panel discussion, "Blockchain Use Cases in Commerce" moderated by Mr. Carranza with panelists Conan French (International Institute of Finance), Douglas Pearce (World Bank) and Tori Adams (Booz Allen), brought some social policy as well as possible applications to the discussion. Mr. Pearce pointed out that the technology could be used to bring money access to those who are "unbanked" and initiate a financial inclusion opportunity. According to Mr. Pearce, a significant problem for those with limited resources is lack of proof of collateral for purposes of credit assessment, and he is hopeful that blockchain technology will help remedy this problem. [Author's note: Ms. Adams talked about The Smart City – which to this privacy and private property advocate brought to mind a parade of horribles where individuals could sell personally identifiable information in exchange for services. How a person could, on the fly, make sure that the information would not be resold and thereby immediately diminish the value of that information to the human was not mentioned. In addition, what guarantee would that person have that the information would not be used subsequently for identity theft? Needless to say, I am not a fan.]
The following three panels were populated significantly with attorneys and government agencies, including the U.S. Commodity Futures Trading Commission, the Federal Trade Commission, and the National Institute of Standards and Technology, as well as a few businesses. One standout from this bunch was Natalee Binkholder from the office of Representative Mick Mulvaney who recommended that there be regulatory restraint, such as "safe harbors," for this new technology. Unsurprisingly, the agencies were concerned about cryptocurrency users entering into fraudulent transactions.
The keynote speaker was Stephen Taylor, DC Commissioner, Department of Insurance, Securities, and Banking. He envisioned a blockchain movement that would support economic inclusion for the unbanked, as well as an opportunity to enable microinsurance offerings.
The last panel was moderated by Joe Colangelo (Consumers' Research) with panelists Yorke Rhodes III (Microsoft), Meeta Yadav (IBM), and Brian Hoffman (Open Bazaar). The panel talked about connecting legacy computer systems to the blockchain and how this could be accomplished. They also talked about how blockchain technology could reduce fraud because everyone along the blockchain would have an identical copy of the transaction terms and conditions. All of the panelists expressed their dedication to blockchain's future and appeared genuinely excited. [Author's note: If any combination of legacy systems and future technology innovators could devise a worldwide infrastructure enabling the best each could offer, these folks could. Indeed, Mr. Rhodes is dedicating eight years to the blockchain project.] The optimism and excitement on the panel created a perfect end to the conference.
The Blockchain Revolution by Don Tapscott and Alex Tapscott, 2016
The Age of Cryptocurrency: How Bitcoin and Digital Money Are Challenging the Global Economic Order by Paul Vigna and Michael J. Casey, 2015
Cynthia M. Gayton is an attorney, educator, and speaker. Contact her at cynthia.gayton@gayton-law.com. See the Contributors page for more about Ms. Gayton. Nothing in this post is purported to be legal advice.
The Enduring Legacy of Henry Manne: A Review of the 2016 Law & Economics Center Conference by Theodore A. Gebhard — January 26, 2016
January 26, 2016 February 27, 2016 /Vienna Woods Law & Economics/2 Comments
On Friday, January 22, I attended the Fifth Annual Henry G. Manne Law & Economics Conference, which was sponsored by the Law & Economics Center at George Mason University. The Conference was held in conjunction with the Twelfth Annual Symposium of the Journal of Law, Economics, & Policy, a publication of the GMU School of Law. This year's Conference was entitled, "The Enduring Legacy of Henry G. Manne," and featured three panels of academic experts, all of whose research draws substantially on the work of the late Henry Manne. Manne was the long time Dean of the Law School, and a trailblazing scholar of corporate governance and corporate finance.
Regrettably, owing to inclement weather, the day's program had to be truncated, including dropping the scheduled Key Note luncheon speech by former Securities and Exchange Commission commissioner, Kathleen Casey. Even under the shortened time frame, however, the panel discussions were thorough and highly informative.
Panel 1:
The first panel focused on Manne's seminal 1965 Journal of Political Economy article, "Mergers and the Market for Corporate Control." Speakers included GMU business professor, Bernard Sharfman, and University of Chicago Law professor, Todd Henderson.
In the JPE article, Manne developed the then-novel insight that when a corporation is afflicted with inefficiencies owing to poor management, an incentive is created for others to take control of the corporation, eliminate the managerial inefficiencies, and be rewarded with an increase in share price. What this means is that there is a functioning market for corporate control.
Drawing on this insight, Professor Sharfman considered whether activist investors might be able to perform the same function, specifically activist hedge funds. One key difference between activist investors and take-over investors is that the former typically are not able to obtain a controlling interest in a corporation. Although the interest can be significant, it falls short of the authority to dictate managerial changes. Therefore, when activist investors see managerial inefficiencies, they must rely principally on persuasion to influence corrective action.
Corporate boards, however, often, if not most of the time, resist this activism. In some instances, the boards might go so far as to sue in court for relief. When this occurs, the courts are bound by the "business judgment rule," which provides for deference to the decisions of corporate boards. Sharfman contends that, although the business judgement rule is based on solid grounds and usually works well as a legal rule, it fails under the circumstances just described, i.e., when there are managerial inefficiencies but activist investors are unable to obtain a controlling interest in the company. Sharfman concludes, therefore, that it might be time for the courts to carve out, albeit carefully, an exception to the business judgment rule in cases where the evidence points to no plausible business reason to reject the activists' position. In this circumstance, a court can find that the board's resistance likely owes to no more than an attempt to protect an entrenched management.
Building on Manne's insight of the existence of a "market" for corporate control, Professor Henderson considered the possibility of such diverse hypothetical markets as (1) markets for corporate board services, (2) markets for paternalism and altruism, and (3) markets for trust. In the first instance, Henderson posited the possibility that shareholders simply contract out board services rather than having a board solely dedicated to one company. So, for example, persons with requisite expertise could organize into select board-size groups and compete with other such groups to offer board services to the shareholders of any number of separate corporations.
In the second instance, Henderson, noting the growing modern viewpoint that companies have paternalistic obligations toward stakeholders that go beyond shareholder interests, suggested that the emergence of a competitive market to meet such obligations would likely be superior to relying on evolving government mandates. Competitive markets, for example, would avoid delivering "one size fits all" services and, in so doing, be better able to delineate beneficiary groups on the basis of their specific needs, i.e., needs common within a group but diverse across groups. Inefficient cross-subsidization could thus be mitigated. In this same vein, Henderson suggested the possibility of a market for the delivery of altruistic services. He noted that the public is increasingly demanding that corporations, governments, and non-profits engage in activities deemed to be socially desirable. As with the provision of paternalism, competitively supplied altruism whereby companies, governments, and non-profits comprise the incumbent players would yield the positive attributes of competition. These would include the emergence of alternative mixes of altruistic services tailored to the specific needs of beneficiaries and efficient, low cost production and delivery of those services.
In the third instance, Henderson posited the idea of a market for trust. Here he offered the example of the ride-sharing company, Uber. Henderson suggested that Uber not only competes with traditional taxis, but, perhaps more importantly, competes with local taxi commissions. Taxi commissions exist to assure the riding public that it will be safe when hiring a taxi. Toward that end, taxis are typically required to have a picture of the driver and an identifying number on display, be in a well maintained condition, and have certain other safety features. All of these things are intended to generate a level of trust that a ride will be safe and uneventful. According to Henderson, Uber's challenge is to secure a similar level of trust among its potential customers. New companies shaking up other traditional service industries face the same challenge. Henderson concludes, therefore, that these situations open up entrepreneurial opportunities to supply "trust." Although Henderson did not use the example of UL certification, that analogy came to mind. So, for example, there might be a private UL-type entity in the business of certifying that ride sharing (or any other new service company) is trustworthy.
In commenting on Panel 1, Bruce Kobayashi, a GMU law professor and former Justice Department antitrust economist, offered one of the more interesting observations of the day. Professor Kobayashi reminded the audience that Manne's concern in his JPE article was principally directed at antitrust enforcement, not corporate law. In particular, Manne argued that the elimination of managerial inefficiency should rightly be counted as a favorable factor in an antitrust analysis of a merger. In fact, however, although the DOJ/FTC Horizontal Merger Guidelines allow for cognizable, merger-specific efficiencies to be incorporated into the analysis of net competitive effects, the agencies historically only consider production and distribution cost savings, not the likelihood of gains to be had from jettisoning bad management. Kobayashi suggested that this gap in the analysis may be due simply to the compartmentalization of economists among individual specialties. For example, in his experience, he rarely sees industrial organization (antitrust) economists interacting professionally with economists who study corporate governance. Thus, because Manne's article, through the years, has come to be classified (incorrectly) as solely a corporate law article, its insights have unjustifiably escaped the attention of antitrust enforcers.
Panel 2 focused on Henry Manne's seminal insights about "insider trading." Manne was the first to observe that, notwithstanding the instinctive negative reaction of many, if not most, people to insider trading ("It's just not right!"), the practice actually has beneficial effects in terms of economic efficiency. By more quickly incorporating new information about a business's prospects into share price, insider trading can accelerate the movement of that price toward a market clearing level, which signals a truer value of a company and thus enhances allocative efficiency in capital flows.
The two principal speakers on Panel 2 were Kenneth Rosen, a law professor at the University of Alabama and John Anderson, a professor at the Mississippi College School of Law. I will limit my comments to Anderson.
In addition to being a lawyer, Professor Anderson is a philosopher by training, holding a Ph.D. in that subject. He began his presentation by noting that ethical claims are often vague in a way that economic analysis, given its focus on efficiency, is not. Although in any empirical study, there can be problems with finding good data and there can be measurement difficulties, the analytical framework of economics rests on an objective standard. Either a given behavior increases efficiency, reduces efficiency, or is benign toward efficiency. Anderson also observed that ethics merely sets goals, while economic analysis determines the best (i.e., most efficient) means to achieve those goals.
Putting these distinctions into the context of insider trading, Anderson finds that insider trading laws and enforcement of those laws are likely overreaching. The current statutory scheme rests largely on ethical notions, namely the issue of unfairness ("It's just not right!"). As such, it rests on vague standards. The result is a loss of economic efficiency and costly over-compliance with the laws. In the end, not only are shareholders hurt (e.g., by costly compliance and litigation), but the larger investing public is also harmed owing to slower price adjustments. Anderson made the point that, although acts of greed may be bad for individual character, such acts are not necessarily bad for the entire community.
In concluding his presentation, Anderson proposed that some form of licensing of insider trading might best accommodate the competing ethical and efficiency goals. Under a licensing system, insider trading could be permissible in certain circumstances, but under full transparency.
Panel 3 considered the effects of required disclosures under federal security laws. The two principal speakers were Houman Shadab of New York Law School and Brian Mannix of George Washington University.
Despite being a novice in the subject matter of the day, I felt that I followed the discussions of the first two panels reasonably well. Panel 3, however, was difficult for me, as the speakers made frequent references to statutory provisions and SEC interpretations of relevant security law, with which I have no familiarity. Nonetheless, a portion of the discussion intrigued me.
In particular, Professor Mannix discussed the issue of high frequency trading (HFT), a hot topic just now because of Michael Lewis's recent book, Flash Boys. As I understand it, computer technology makes it possible for trades to take place within microseconds. With evermore sophisticated algorithms, traders can attempt to beat each other to the punch and arbitrage gains even at incredibly small price differences.
Of particular interest to regulators is the likelihood of a tradeoff inherent in HFT that determines net efficiency effects. On the one hand, HFT has the potential to enhance efficiency by accelerating the movement of a share price to its equilibrium. Given that this movement is tiny and occurs within a microsecond, however, this efficiency gain may not be significant. Indeed, the efficiency gains, if any, are likely to be very slight.
On the other hand, a lot of costly effort goes into developing and deploying HFT algorithms. Yet, much of the payoff may be no more than a rearrangement of the way the arbitrage pie is sliced rather than any enlargement of the pie. If so, the costs incurred to win a larger slice of the pie, costs without attendant social wealth creation, likely exceed any efficiency gain. It may make sense then for regulators to create some impediments to HFT. Toward this end, Mannix offered some possible ways to make HFT less desirable to its practitioners. The most intriguing was to put into place technology that would randomly disrupt HFT trades. Key to profiting substantially from HFT is the need to trade in very large share volumes because the price differences over which the arbitrage takes place are so small. Random disruptions would make such big bets riskier.*
All in all, I found each of panels to be highly informative. The cast of speakers was well selected, and each presentation was well made. Significantly, each panel did a very good job of tying its discussion to Henry Manne's work and influence. In addition to learning a great deal about current hot issues in corporate law and how economic analysis informs those issues, conference attendees surely left with an even higher appreciation of Henry Manne.
On the logistical front, in light of last minute adjustments necessitated by weather conditions, the organizers pulled off the conference flawlessly. A high standard was set that will be difficult for the organizers of next year's offering to surpass.
Finally, on a personal note, Henry Manne was my law school Dean at GMU and also a neighbor for many years in my condominium. I remember Henry most, however, because of the dramatic impact that his unique curriculum at GMU had on my intellectual development. That curriculum, which emphasized the application of economic analysis to the law, literally changed the way I think about the world. For this reason, I was especially pleased that each of the speakers at the Conference took time to comment on the influence that Manne had on them. Some had never met Manne in person, but nonetheless were deeply influenced by his scholarly work. Others who knew Manne more intimately related some wonderful anecdotes. Those alone would have made the day worthwhile.
* For a further and more detailed explanation of the tradeoffs inherent in HFT, readers are encouraged to see a blog post by Todd Zywicki, the Executive Director of the LEC, which appeared here.
Theodore A. Gebhard is a law & economics consultant residing in Arlington, Virginia. See the Contributors page for more about Mr. Gebhard. Contact him at theodore.gebhard@aol.com. For more about Henry Manne, see the several tributes to him upon his passing on David Henderson's blog, including one by Mr. Gebhard.
Kelo v. City of New London after Ten Years — Book Review by Joel C. Mandelman — November 6, 2015
November 6, 2015 November 20, 2015 /Vienna Woods Law & Economics/Leave a comment
The Grasping Hand: Kelo v. City of New London & the Limits of Eminent Domain by Ilya Somin, University of Chicago Press – 2015
In his book, The Grasping Hand: New London and the Limits of Eminent Domain, Ilya Somin, a law professor at George Mason University Law School, traces the history of eminent domain and 5th Amendment takings from colonial times to the 2005 Supreme Court decision in Kelo v City of New London. This is not a minor intellectual topic. The protection of the rights of private property owners is a cornerstone of any free country and of any free market economy. In the United States, the 5th Amendment to the Constitution provides that, "private property shall [not] be taken for public use without payment of just compensation" (emphasis added.) Notwithstanding these limiting words, the U.S. Supreme Court has sanctioned the government (primarily local and state governments) taking of private property and its transfer to other private parties whose use of it may be of little benefit to the general public.
The most recent example of this disfigurement of the Constitution was found in New London, Connecticut where, in 2005, the Court sanctioned the seizure of several private homes so that New London could transfer the property to the Pfizer pharmaceutical corporation in order to build a new corporate headquarters, a luxury hotel, and a corporate conference center. The principal authority for this seizure was a 1954 Supreme Court ruling in Berman v Parker in which the Court held that a seizure need not be for a traditional public purpose, i.e. a school, a hospital, or a highway, but that the seizure merely have a "public purpose" such as producing greater tax revenues by ending "urban blight". (Whether the seized property was, in fact, blighted is left to the judicially unreviewed discretion of the government agency seizing the property.) The saddest irony of the Kelo case was that, after all of the litigation, and the loss of scores of homes, Pfizer changed its mind and never built the planned corporate park and hotel.
The vast majority of seizures — since the Berman decision more than 80 percent of all private property condemnations — have been for such non-public uses such as building sports arenas, corporate office space, and general urban renewal and not for traditional public uses such as building schools or highways. The Supreme Court's rationalization has always been that since "everyone benefits" from a neighborhood being generally improved, there is an inherent "public purpose" to the seizure. Thus, even if the seizure was not for a traditional public use, it is sanctioned by the 5th Amendment. That this is not what the plain language of the 5th Amendment states seems to have escaped the Court's notice.
As Somin discusses, courts have been reluctant to second guess what a state legislature or a city council thinks is "blight" requiring government action to eliminate it. This judicial reluctance is a moral and constitutional cop-out. There has been no reluctance on the part of federal or state judges to second guess the legitimacy of search warrants, confessions, the providing of a fair trial (i.e. due process of law), the scope of government limitations on freedom of speech or the press, the scope of the right to bear arms or the meaning of the 14th Amendment's equal protection and due process clauses; so why the reluctance to judge the validity of takings under the 5th Amendment? No explanation is offered, nor have judges ever tried to explain their sudden judicial restraint in this particular area of constitutional law.
Somin traces the history of 5th Amendment takings dating back to post-colonial times when many takings were made for the purpose of building privately owned dams that had a generalized public benefit by creating water power or the construction of privately owned turnpikes. Many of the more controversial public benefit takings did not start until the New Deal, or thereafter, when urban renewal became all the rage. The trend became the seizure of private property – which typically had housing already on it – in order to use it for the building of massive public housing projects. That many of those public housing projects later became worse slums than the smaller, privately owned "slums" that they "renewed" is discussed at some length in the book. Sadly, no government official, or agency, has ever been held accountable for these widespread, often well publicized, failures. As Somin discusses, much of the impetus for these renewal projects came not from elected legislators or elected executive branch officials but rather from real estate and construction industry developers who were also major sources of campaign funds.
Perhaps the most outrageous example of crony-capitalism seizures of private property was the infamous Poletown case, in which the City of Detroit seized thousands of private homes so that General Motors could build an automobile factory. The Michigan Supreme Court sanctioned this theft on the grounds that the promised creation of 5,000 new jobs was a public use justifying the seizure of thousands of private homes and businesses. The cruelest irony was that fewer than half of the promised jobs were ever created and, several years later, a newly constituted Michigan Supreme Court partially reversed its Poletown decision in County of Wayne v. Hathcock, allowing takings in "blighted" areas but prohibiting takings for economic development.
The public reaction to the U.S. Supreme Court's 2005 Kelo decision was swift and harsh. It was widely denounced as a threat to all private property rights. After all, if Kelo were followed to its logical conclusion, there would be nothing to stop the government from seizing 100 private homes so that a private developer could construct a high rise apartment that would pay more in local property taxes.
The problem is that many of the legislative attempts to prevent another Kelo-like case from ever happening again were half-hearted and possibly made in bad faith. Although state laws were changed to bar 5th Amendment takings for economic development, a gaping – and likely intentional – loophole was left in those statues. There was no prohibition of takings to end undefined, judicially unreviewable, allegations of economic or social "blight." Almost any taking barred on economic development grounds could still be "justified" on the grounds that the affected property was "blighted."
Somin carefully traces and analyzes both the history of the takings clause and the development of the "public purpose versus public use" expansion of its scope to the point where no private property is truly safe from any government bureaucrat or private developer with enough political clout to get its way. Many of the state laws passed in response to the Kelo decision need to be substantially strengthened and federal law needs to be rewritten to bar illegitimate seizures of private property for other private, or quasi-private uses that primarily benefit the political party controlling the local government and its crony-capitalist allies.
This is an important book that, because of its arcane Constitutional premise, has not received the widespread publicity that it deserves. The Kelo decision and the weak responses to it by many state legislatures have left many citizens with a false sense of security. Eternal vigilance truly is the price of liberty and greater vigilance, and efforts, are required to prevent Kelo from rearing its ugly, if somewhat shrunken, head again.
Joel C. Mandelman is an attorney practicing in Arlington, Virginia. He has filed amicus briefs with the U.S. Supreme Court on behalf of Abigail Fisher in her challenge to the University of Texas' racially preferential admissions policies and on behalf of the State of Michigan in defense of its state constitutional amendment barring all racial preferences in college admissions, government hiring and government contracting. See the Contributors page for more about Mr. Mandelman. Email him at joelcm1947@gmail.com.
(Correction, Nov. 8: An earlier version of this post misstated the holding in Hathcock as fully reversing the Poletown case. Ed.)
(Correction, Nov. 20: In an email to this site's administrator, Professor Somin points out that "Pfizer was not going to be the new owner or developer of the condemned property. As explained in the book, they lobbied for the project and hoped to benefit from it, but were not going to own or develop the land themselves." Ed.)
"Even in a Knowledge-Driven Economy — Things Are Still Kings" by Cynthia M. Gayton, Esq. — October 12, 2015
"Even in a Knowledge-Driven Economy — Things Are Still Kings" by Cynthia M. Gayton, Esq.
October 12, 2015 October 12, 2015 /Vienna Woods Law & Economics/2 Comments
From September 30 – October 1 of this year, I attended a conference entitled "The IP Platform: Supporting Inspiration and Innovation" that was sponsored by George Mason University School of Law's Center for the Protection of Intellectual Property. The extensive and impressive speaker's list included a keynote speech by David Kappos, law professors from around the country, and innovators of all stripes.
The several panel discussions addressed intellectual property protection in general, and patent protection in particular. There was no dissent amongst the lawyers, professors, or creators regarding the economic engine that is intellectual property. Having attended similar conferences over the years, I nodded absentmindedly to most of the comments about IP enforcement, economic incentives, piracy, and general bad behavior.
Upon reflection, two things stood out.
One, Morgan Reed, Executive Director of ACT The App Association, talked about the commodification of intellectual property. He pointed out that once someone has bought a smartphone, any additional purchases related to that smartphone/mobile market were apps. The device itself was an app delivery system. For small innovative companies, he stressed the importance of a) creating a trademark/brand, b) services and support related to the brand, and c) employment agreements. These practical business development pillars had not been articulated so clearly in other presentations.
Two, it appears that in order to make significant returns on any investment into IP or an IP driven company, a physical manifestation of the IP was crucial. To prove my point, I want to talk about two speakers who were also creators – Marc Beeson a staff songwriter for Downtown Music Publishing and Garrett Brown the Oscar-winning Inventor of the Steadicam® Camera Stabilizer. Both are in the entertainment business. Both created the products which return the money on which both live. One, Marc Beeson, is experiencing a severe decline in the returns on investment in the music industry, while Garrett Brown continues to receive royalties derived from the original patent for his camera stabilizer.
Professor Sean O'Connor of the University of Washington School of Law discussed and demonstrated the patent fueled history of the electric guitar, starting from George Beauchamp's patent and the story of Charlie Christian.
Musicians, composers, publishers and affiliated industries lament the decline in music sales. Music streaming has increased, but returns to the composers and musicians have been abysmal. According to Rolling Stone magazine, only 257 million albums were sold in any format in 2014, a drop of 11% from 2013.
The format that has been bucking the trend is vinyl records. In 2014, vinyl sold 9.2 million units. By way of comparison, according to MBW analysis/Neilson Soundscan, in 2007, only 205,000 albums were sold.
The Kappos keynote contained a clue about what might explain the trend toward the physicality component of IP – its ecosystem. Mr. Kappos quoted Brad Smith, the CEO of Intuit and said that functionality is not enough – emotion has to be built into the product.
According to an article entitled, "Here's Why Music Lovers are Turning to Vinyl and Dropping Digital" by Meg Gibson on Time.com, what might be pushing this phenomenon is consumerism – people like others to know what they have and displaying ownership in public is a way of signaling identity. According to Nik Pollinger who was quoted in the article "Making our taste in music visible has historically played an important role in such signalling for many people." This wasn't discussed during the conference, but is worth considering as more and more arguments are being made to convert analog entertainment of all formats into digital equivalents.
Does the music delivery system, i.e., digital streaming, inhibit the emotions related to the music product? Specifically, what do vinyl albums do that streaming does not? Putting the digital genie back into an analog bottle may not be the answer, but in order for people to continue to invest in what appears to be an ephemeral industry, embedding the IP in a currently unknown or untested physical format may save the industry.
Stephen Haber, a professor at Stanford University and on the final panel, Innovation in IP Markets, addressed the positive trending relationship between national GDP and the strength of its IP rights. Ben Sheffner, VP of Legal Affairs at the Motion Picture Association of America said that any successful market economy must have 1) private property rights; 2) freedom of contract; and 3) rule of law to enforce these rights.
As many of us know, a good conference is one you leave with more questions than answers. I think the attendees will have more than enough to think about until 2016.
Cynthia M. Gayton is an attorney practicing in Arlington, Virginia. She is also an adjunct professor of engineering law at The George Washington University School of Engineering and Applied Sciences. Her Linked-In page is here, and information about her law firm can be found here. Ms. Gayton can be reached at cynthia_gayton@gayton-law.com.
"What Does King v. Burwell Have to Do with the Antitrust Rule of Reason? A Lot" by Theodore A. Gebhard — July 15, 2015
"What Does King v. Burwell Have to Do with the Antitrust Rule of Reason? A Lot" by Theodore A. Gebhard
July 15, 2015 November 11, 2015 /Vienna Woods Law & Economics/1 Comment
The first Justice John Marshall Harlan is probably best remembered for being the sole dissenter in Plessy v. Ferguson, the notorious 1896 Supreme Court decision that found Louisiana's policy of "separate but equal" accommodations for blacks and whites to satisfy the equal protection requirements of the 14th Amendment. Harlan, a strict textualist, saw no color distinctions in the plain language of the 14th Amendment or anywhere else in what he described as a color-blind Constitution. Harlan's textualism did not end there, however. It was also evident fifteen years later in one of the most famous and impactful antitrust cases in Supreme Court history, Standard Oil Co. of New Jersey v. U.S. The majority opinion in that case, in important respects, mirrored Chief Justice John Roberts' reasoning in King v. Burwell. Like King, the majority opinion in Standard Oil was written by the Chief Justice, Edward White in this instance, and in both cases, the majority reasoned that Congress did not actually mean what the clear and plain words of the statute at issue said. Although concurring in the narrow holding of liability, Justice Harlan in Standard Oil, as Justice Antonin Scalia in his dissent in King, criticized forcefully what he believed to be the majority's rank display of judicial legislation and usurpation of Congress's function to fix statutes that may otherwise have harsh policy consequences. Indeed, Standard Oil demonstrates that both Chief Justice Roberts and Justice Scalia had ample precedent in Supreme Court history.
The Standard Oil case was about whether John D. Rockefeller's corporate empire violated the Sherman Antitrust Act, enacted 21 years earlier in 1890 and which prohibited monopolization, attempted monopolization, and "every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce ." Harlan believed that under the facts of the case, liability could be found within the plain language of the statute. The majority likewise found that Standard Oil violated the Act, but did so by dint of construing the Act in a way that the Court had previously rejected on several occasions. Specifically, Chief Justice White used the opportunity to read into the Sherman Act the common law principle of "reasonableness" such that only "unreasonable" restraints of trade would be illegal. That is, the Court rewrote the statute to say in effect, "every unreasonable contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade" is prohibited. In so doing, the Court, by judicial fiat, discarded the plain language of the statute and injected the so-called "rule of reason" into antitrust doctrine.
Notwithstanding that the Court had previously found otherwise, Chief Justice White found that the 51rst Congress must have had in mind the common law focus on unreasonable restraints in trade when it drafted the Sherman Act. Otherwise, he believed, the operation of the statute could give discordant results. The fact that the Congress did not make this qualification explicit was of no matter; White's clairvoyance was sufficient to discern and correct the textual oversight and Congress's true intent. Harlan, however, saw this as unwarranted judicial activism and harmful appropriation of the "constitutional functions of the legislative branches of government." Echoing today's concerns about judicial overreach, Harlan worried that this constitutionally unauthorized usurpation of legislative power "may well cause some alarm for the integrity of our institutions."
Moreover, in his long and detailed concurrence, Harlan forcefully argued that it is not the Court's function to change the plain meaning of statutes, whether or not that meaning reflects actual legislative intent. That is, a judge's role is to look only at the four corners of a statute, and no more. It is up to the legislature to fix a statute, if necessary, not the judge. This principle was even more applicable in the case at hand. Here, Harlan believed, the plain language of the Act did in fact reflect the actual legislative intent. Thus, the majority's contrary position was even more egregious. That is, the majority simply substituted its preferred reading of the statute 21 years after the fact, notwithstanding contrary contemporaneous evidence.
In this regard, Harlan pointed out that in 1890 the Congress was especially alarmed about growing concentrations of wealth, aggregation of capital among a few individuals, and economic power, all arising from the rapid industrialization that the United States had been experiencing over the previous decades. Congress, in keeping with the spirit of the age, saw this changing economic climate as requiring bold new law focused on checking the power of trusts. Specifically, the new climate "must be met firmly and by such statutory regulations as would adequately protect the people against oppression and wrong." For this reason, the 1890 Congress, in drafting the Sherman Act, intentionally abandoned common law principles as being too weak to deal with the economic circumstances of the day. In addition, the Congress wrote criminal sanctions and third-party rights of action into the Act, none of which were a part of the common law.
Finally, Harlan pointedly explained that the Court had itself previously found in a well-known 1896 decision, U.S. v. Trans-Missouri Freight Assn., and reaffirmed in several later decisions that the Act's prohibitions were not limited only to unreasonable restraints of trade, as that term is understood in the common law. The first of these decisions, moreover, was based on far greater proximity to the time of the Act than the current case, and if the Congress thought the Court to be wrong, it had at least 15 years to correct the Court on this issue, but failed to do so, indicating that it approved of the Court's construction. Harlan thus saw White's reversal of these holdings as no more than "an invasion by the judiciary of the constitutional domain of Congress — an attempt by interpretation to soften or modify what some regard as a harsh public policy."
The activism of Chief Justice White in Standard Oil and nearly all of Justice Harlan's concerns re-emerge in King v. Burwell. In King, the principal issue was whether, under the Affordable Care and Patient Protection Act, an "Exchange" (an insurance marketplace) established by the federal government through the Secretary of Health and Human Services should be treated as an "Exchange" established by a state. The question is important because under the ACAPA, an insurance exchange must be established in each state. The statute provides, however, that if a state fails to establish such an exchange, the Secretary of H.H.S. will step in and establish a federally run exchange in that state. The statute further provides that premium assistance will be available to lower income individuals to subsidize their purchase of health insurance when such insurance is purchased through an "Exchange established by the State." The Act defines "State" to mean each of the 50 United States plus the District of Columbia. The plain language of the statute therefore precludes premium assistance to individuals purchasing health insurance on a federally run exchange.
Notwithstanding the plain language of the Act, however, Chief Justice Roberts, writing for the majority, held that premium assistance is available irrespective of whether the relevant exchange was established by a state or the Secretary. In effect, the Chief Justice rewrote the pertinent clause, "Exchange established by the State," to read instead "Exchange established by the State or the Federal Government."
Much like Chief Justice White more than a century earlier, Chief Justice Roberts reasoned that the Congress could not have actually meant what the plain text of the Act said and that if this drafting oversight were not corrected by the Court, serious discordant consequences would result. Also, like his predecessor, Chief Justice Roberts came to this conclusion despite evidence suggesting that the plain language is exactly what Congress intended. According to the now public remarks of Jonathan Gruber, a chief architect of the Act, by limiting premium assistance only to purchases made on state-established exchanges, the Congress intended to create an incentive for each state to establish an exchange. Even so, the Chief Justice discerned otherwise (perhaps because in hindsight the incentive did not work and, as a result, the consequences to the operation of the Act will be severe) and held that Congress must have intended "Exchange" for purposes of premium assistance to encompass both state and federal-established exchanges. That is, just as Chief Justice White found, 21 years after its passage, that the plain text of the Sherman Act did not contain the full intended meaning of the words in the Act, Chief Justice Roberts similarly found the plain text of the ACAPA to fall short of its true meaning, notwithstanding that Congress did nothing to change the text since its 2010 enactment.
The parallel between the two cases does not stop with the majority opinions. In King, Justice Scalia, a textualist like Justice Harlan, echoed the same concerns that Harlan had in Standard Oil. In his dissent, Scalia states, for example, that [t]he Court's decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people's decision to give Congress all legislative Powers enumerated in the Constitution. … We lack the prerogative to repair laws that do not work out in practice. … 'If Congress enacted into law something different from what it intended, then it should amend the statute to conform to its intent.'" That is, it is not up to the Court to usurp the legislative functions of Congress in order to fix the unintended consequences of a statute. Scalia goes on, "'this Court has no roving license to disregard clear language simply on the view that Congress must have intended something broader.'" Scalia concludes by suggesting that, to the detriment of "honest jurisprudence," the majority "is prepared to do whatever it takes to uphold and assist [the laws it favors]."
So we can only conclude that the controversy surrounding Chief Justice Robert's reasoning in King is anything but new. Textualists have been sounding alarms about judicial overreach for decades. Whether or not one believes that Chief Justice Roberts assumed a proper judicial role, it is undeniable that he had precedent for doing what he did. Similarly, it is undeniable that Justice Scalia's concerns are well grounded in Court history. One other certainty is that just as the judicial creation of the "rule of reason" has had a significant impact on the administration of antitrust law in the last 100-plus years, Chief Justice Robert's rewrite of the ACAPA will have a lasting impact, not only on the U.S. health insurance system, but in sustaining the self-authorized prerogatives of judges.
Theodore A. Gebhard is a law & economics consultant. He advises attorneys on the effective use and rebuttal of economic and econometric evidence in advocacy proceedings. He is a former Justice Department economist, Federal Trade Commission attorney, private practitioner, and economics professor. He holds an economics Ph.D. as well as a J.D. Nothing in this article is purported to be legal advice. You can contact the author via email at theodore.gebhard@aol.com.
"Forecasting Trends in Highly Complex Systems: A Case for Humility" by Theodore A. Gebhard — June 20, 2015
"Forecasting Trends in Highly Complex Systems: A Case for Humility" by Theodore A. Gebhard
June 20, 2015 November 11, 2015 /Vienna Woods Law & Economics/Leave a comment
One can readily cite examples of gross inaccuracies in government macroeconomic forecasting. Some of these inaccurate forecasts have been critical to policy formation that ultimately produced unintended and undesirable results. (See, e.g., Professor Edward Lazear, "Government Forecasters Might as Well Use a Ouija Board," Wall Street Journal, Oct. 16, 2014) Likewise, the accuracy of forecasts of long-term global warming is coming under increasing scrutiny, at least among some climate scientists. Second-looks are suggesting that climate science is anything but "settled." (See, e.g., Dr. Steven Koonin, "Climate Science and Interpreting Very Complex Systems," Wall Street Journal, Sept. 20, 2014) Indeed, there are legitimate concerns about the ability to forecast directions in the macro-economy or long-term climate change reliably. These concerns, in turn, argue for government officials, political leaders, and others to exercise a degree of humility when calling for urgent government action in either of these areas. Without such humility, there is the risk of jumping into long-term policy commitments that may in the end prove to be substantially more costly than beneficial.
A common factor in macroeconomic and long-term climate forecasting is that both deal with highly complex systems. When modeling such systems, attempts to capture all of the important variables believed to have a significant explanatory effect on the forecast prove to be incredibly difficult, if not entirely a fool's errand. Not only are there are many known candidates, there are likely many more unknown candidates. In addition, specifying functional forms that accurately represent the relationships between the explanatory variables is similarly elusive. Simple approximations based on theory are probably the best that can be achieved. Failure to solve these problems — omitting important explanatory variables and incorrect functional forms – will seriously confound the statistical reliability of the estimated coefficients and, hence, any forecasts made from those estimates.
Inherent in macroeconomic forecasting is an additional complication. Unlike models of the physical world where the data are insentient and relationships among variables are fixed in nature, computer models of the economy depend on data samples generated by motivated human action and relationships among variables that are anything but fixed over time. Human beings have preferences, consumption patterns, and levels of risk acceptance that regularly change. This constant change makes coefficient estimates derived from historical data prone to being highly unsound bases on which to forecast the future. Moreover, there is little hope for improved reliability over time so long as human beings remain sentient actors.
By contrast, models of the physical world, such as climate science models, rely on unmotivated data and relationships among variables that are fixed in nature. Unlike human beings, carbon dioxide molecules do not have changing tastes or preferences. At least in principle, as climate science advances over time with better data quality, better identification of explanatory variables, and better understanding of the relationships among those variables, the forecasting accuracy of climate change models should improve. Notwithstanding this promise, however, long-term climate forecasts remain problematic at present. (See Koonin article linked above.)
Given the difficulty of modeling highly complex systems, it would seem that recent statements by some of our political, economic, and even religious leaders are overwrought. President Obama and Pope Francis, for example, have claimed that climate change is among mankind's most pressing problems. (See here and here.) They arrived at their views by dint of forecasts that predict significant climate change owing to human activity. Each has urged that developed nations take dramatic steps to alter their energy mixes. Similarly, the world's central bankers, such as those at the Federal Reserve, the European Central Bank, the Bank of Japan, and the International Monetary Fund regularly claim that their historically aggressive policies in the aftermath of the 2008 financial crisis are well grounded in what their elaborate computer models generate and, hence, are necessary and proper for the times. Therefore, any attempts to modify the independence of these institutions to pursue those policies should be resisted, notwithstanding that the final outcome of these historic and unprecedented policies is yet unknown.
It is simply not possible, however, to have much confidence in any of these claims. The macroeconomic and climate systems are too complex to be captured well in any computer model, and forecasts derived from such models therefore are highly suspect. At the least, a prudent level of humility and a considerable degree of caution are in order among government planners, certainly before they pursue policies that risk irreversible unintended, and potentially very costly, consequences.
"Is Economics a Science?" by Theodore A. Gebhard — May 15, 2015
"Is Economics a Science?" by Theodore A. Gebhard
May 15, 2015 November 11, 2015 /Vienna Woods Law & Economics/Leave a comment
The great 20th Century philosopher of science, Karl Popper, famously defined a scientific question as one that can be framed as a falsifiable hypothesis. Economics cannot satisfy that criterion. No matter the mathematical rigor and internal logic of any theoretical proposition in economics, empirically testing it by means of econometrics necessarily requires that the regression equations contain stochastic elements to account for the complexity that characterizes the real world economy. Specifically, the stochastic component accounts for all of the innumerable unknown and unmeasurable factors that cannot be precisely identified but nonetheless influence the economic variable being studied or forecasted.
What this means is that economists need never concede that a theory is wrong when their predictions fail to materialize. There is always the ready excuse that the erroneous predictions were the fault of "noise" in the data, i.e., the stochastic component, not the theory itself. It is hardly surprising then that economic theories almost never die and, even if they lie dormant for a while, find new life whenever proponents see opportunities to resurrect their pet views. Since the 2008 financial crisis, even Nobel Prize winners can be seen dueling over macroeconomic policy while drawing on theories long thought to be buried.
A further consequence of the inability to falsify an economic theory is that economics orthodoxy is likely to survive indefinitely irrespective of its inability to generate reliable predictions on a consistent basis. As Thomas Kuhn, another notable 20th Century philosopher of science, observed, scientific orthodoxy periodically undergoes revolutionary change whenever a critical mass of real world phenomena can no longer be explained by that orthodoxy. The old orthodoxy must give way, and a new orthodoxy emerges. Physics, for example, has undergone several such periodic revolutions.
It is clear, however, that, because economists never have to admit error in their pet theories, economics is not subject to a Kuhnian revolution. Although there is much reason to believe that such a revolution is well overdue in economics, graduate student training in core neoclassical theory persists and is likely to persist for the foreseeable future, notwithstanding its failure to predict the events of 2008. There are simply too few internal pressures to change the established paradigm.
All of this is of little consequence if mainstream economists simply talk to one another or publish their econometric estimates in academic journals merely as a means to obtain promotion and tenure. The problem, however, is that the cachet of a Nobel Prize in Economic Science and the illusion of scientific method permit practitioners to market their pet ideological values as the product of science and to insert themselves into policy-making as expert advisors. Significantly in this regard, econometric modeling is no longer chiefly confined to generating macroeconomic forecasts. Increasingly, econometric forecasts are used as inputs into microeconomic policy-making affecting specific markets or groups and even are introduced as evidence in courtrooms where specific individual litigants have much at stake. However, most policy-makers — let alone judges, lawyers, and other lay consumers of those forecasts — are not well-equipped to evaluate their reliability or to assign appropriate weight to them. This situation creates the risk that value-laden theories and unreliable econometric predictions play a larger role in microeconomic policy-making, just as in macroeconomic policy-making, than can be justified by purported "scientific" foundation.
To be sure, economic theories can be immensely valuable in focusing one's thinking about the economic world. As Friedrich Hayek taught us, however, although good economics can say a lot about tendencies among economic variables (an important achievement), economics cannot do much more. As such, the naive pursuit of precision by means of econometric modeling — especially as applied to public policy — is fraught with danger and can only deepen well-deserved public skepticism about economists and economics.
"Economics and Transparency in Antitrust Policy" By Theodore A. Gebhard — April 28, 2015
"Economics and Transparency in Antitrust Policy" By Theodore A. Gebhard
April 28, 2015 June 15, 2018 /Vienna Woods Law & Economics/Leave a comment
A significant turning point in antitrust thinking began in the mid-1970s with the formal integration of microeconomic analysis into both antitrust policy and antitrust litigation. At that time, the Department of Justice and the Federal Trade Commission dramatically expanded their in-house economics staffs and ever since have increasingly relied on those staffs for strategic advice as well as technical analysis in policy and litigation.
For the most part, this integration of economics into antitrust thinking has been highly positive. It has been instrumental to ensuring that the antitrust laws focus on what they are intended to do – promote consumer welfare. Forty years later, however, economics has gone beyond its role as the intellectual undergirding of antitrust policy. Today, no litigant tries an antitrust case without utilizing one or more economists as expert witnesses, as economic analysis has become the dominant evidence in antitrust enforcement. In this regard, the pendulum may have swung too far.
Prior to the mid-1970s, economists, though creating a sizable academic literature, were largely absent in setting antitrust policy and rarely participated in litigation. The result was that, for much of the history of antitrust, the enforcement agencies and the courts often condemned business practices that intuitively looked bad, but without much further consideration. Good economics, however, is sometimes counter-intuitive. Many of these older decisions did more to protect competitors from legitimate competition than protect competition itself. Integrating sound economic thinking into enforcement policy was thus an important corrective.
Economic thinking has been most impactful on antitrust policy in two areas: unilateral business conduct and horizontal mergers. Older antitrust thinking often conflated protecting competitors with protecting competition. The most devastating critique of this confusion came from the so-called "Chicago School" of economics, and manifested itself to the larger antitrust legal community through Robert Bork's seminal 1978 book, The Antitrust Paradox. It is hard to exaggerate the impact that this book had on enforcement policy and on the courts. Today, it is rare that unilateral conduct is challenged successfully, the courts having placed a de facto presumption of legality on such conduct and a heavy burden on plaintiffs to show otherwise.
Horizontal merger policy likewise had a checkered history prior to the mid-1970s. Basically, any merger that increased market concentration, even if only slightly, was considered bad. The courts by and large rubber-stamped this view. This rigid thinking began to change, however, with the expanded roles of the economists at the DOJ and FTC. The economists pointed out that, although change in market concentration is important, it is not dispositive in assessing whether a merger is anticompetitive. Other factors must be considered such as the incentives for outside firms to divert existing capacity into the relevant market, the degree to which there are barriers to the entry of new capacity, the potential for the merger to create efficiencies, and the ability of post-merger firms to coordinate pricing. Consideration of each of these economic factors was eventually formalized in merger guidelines issued in 1982 by the Reagan Administration's DOJ. These guidelines were joined by the FTC ten years later and amended to consider mergers that might be anticompetitive regardless of firms' ability to coordinate prices.
Each of these developments led to far more sensible antitrust policy over the past four decades. Today, however, economic thinking no longer merely provides broad policy guidance but, in the form of highly sophisticated statistical modeling, increasingly serves to be the principal evidence in specific cases. Here, policy-making may now be exceeding the limits of economic science. Friedrich Hayek famously described the difference between science and scientism, noting the pretentiousness of believing that economics can generate the kind of precision that the natural sciences can. Yet, the enforcement agencies are approaching a point where their econometric analysis of market data in certain instances may be considered sufficiently "scientific" to determine enforcement decisions without needing to know much else about the businesses or products at issue.
Much of this is driven by advancements in cheap computing coincident with the widespread adoption of electronic data storage by businesses. These developments have yielded a rich set of market data that can be readily obtained by subpoena, coupled with the ability to use that data as input into econometric estimation that can be done cheaply on a desktop. So, for example, if it is possible to estimate the competitive effects of a merger directly, why bother with more traditional (and tedious) methodology that includes defining relevant markets and calculating concentration indexes? In principle, even traditional documentary and testimonial evidence might be dispensed with, being unnecessary when there is hard "scientific" evidence available.
This view is worrisome for two reasons: The first is the already stated Hayekian concern about the pretense of economic precision. Any good statistician will tell you that econometrics is as much art as science. Apart from this concern, however, an equally important worry is that antitrust enforcement policy is becoming too arcane in its attempt to be ever more economically sophisticated. This means that it is increasingly difficult for businesspersons and their counsel to evaluate whether some specific conduct or transaction could be challenged, thus making even lawful business strategies riskier. A basic principle of the rule of law is that the law must be understandable to those subject to it.
Regrettably, the Obama Administration has exacerbated this problem. For example, some officials have indicated sympathy for so-called "Post-Chicago Economics," whose proponents have set out highly stylized models that purport to show the possibility of anticompetitive harm from conduct that has not yet been reached by antitrust law. Administration officials also rescinded a Bush Administration 2008 report that attempted to lay out clearer guidelines regarding when unilateral conduct might be challenged. Although these developments have been mostly talk and not much action in the way of bringing novel cases, even mere talk increases legal uncertainty.
The Administration's merger policy actions are more concrete. The DOJ and FTC issued new guidelines in 2010 that, in an effort to be even more comprehensive, proliferated the number of variables that can be considered in merger analysis. In some instances, these variables will be resistant to reliable measurement and relative weighting. The consequence is that the new guidelines largely defeat the purpose of having guidelines – helping firms assess whether a prospective merger will be challenged. Thus, firms considering a merger must often do so in the face of substantially more legal uncertainty and must also expend substantial funds on attorneys and consultants to navigate the maze of the guidelines. These factors likely deter at least some procompetitive mergers, thus forgoing potential social gains.
Antitrust policy certainly must remain grounded in good economics, and economic analysis is certainly probative evidence in individual cases. But it is nonetheless appropriate to keep in mind that no legal regime can achieve perfection, and the marginal benefits from efforts to obtain ever greater economic sophistication must be weighed against the marginal costs of doing so. When litigation devolves into simply a battle of expert witnesses whose testimony is based on arcane modeling that neither judges nor business litigants grasp well, something is wrong.
It is time to consider a modest return to simpler and more transparent enforcement policy that relies less on black box economics that pretends to be more scientific than it really is. To be sure, clearer enforcement rules would not be without enforcement risk. Some anticompetitive transactions could escape challenge. But, procompetitive transactions that otherwise might have been deterred will be a social gain. Moreover, substantial social cost savings can be expected when business decisions are made under greater legal clarity, when antitrust enforcement is administered more efficiently, and when litigation costs are substantially lower. The goal of antitrust policy should not be perfection, but to maintain an acceptable level of workable competition within markets while minimizing the costs of doing so. Simpler, clearer rules are the route to this end.
"The FTC's Supreme Court Victory in N.C. Dental: A Rare Win for Both Libertarians and Regulators" by Theodore A. Gebhard —
"The FTC's Supreme Court Victory in N.C. Dental: A Rare Win for Both Libertarians and Regulators" by Theodore A. Gebhard
April 28, 2015 November 11, 2015 /Vienna Woods Law & Economics/Leave a comment
[Originally posted at Gayton Law Blog, April 1, 2015]
The Federal Trade Commission's (FTC) recent Supreme Court victory in the North Carolina State Board of Dental Examiners (NCSB or Board) case brought together in common cause both economic libertarians and federal antitrust regulators — groups often at odds with each other respecting important philosophical and policy principles. The FTC's win, however, gave both groups much reason to celebrate.
The question before the Court was whether unilateral anticompetitive actions of the NCSB, a state-created body, were immune from antitrust law under the "state action" doctrine. The state action doctrine arises from Parker v. Brown, a 1943 Supreme Court decision that sought to reconcile the Sherman Antitrust Act with the constitutional principle of federalism. Federalism is the idea that the U.S. Constitution recognizes both national and state government sovereignty by giving certain limited powers to the national government but reserving other powers to the individual states.
Because the Constitution is the highest law and therefore always trumps statutes, the Court carved out immunity from the Sherman Act for anticompetitive actions of states acting in their sovereign capacity, which includes regulating private actors in a way that restricts competition. In 1980 the Court extended this carve out to include the anticompetitive actions of non-sovereign bodies upon a showing that the actions were the result of clearly articulated state policy and were actively supervised by the state. (See, Cal. Liquor Dealers v. Midcal Aluminum, Inc.) The active supervision requirement ensures that the anticompetitive consequences are only those that the state has deliberately chosen to tolerate in exchange for other public policy goals.
The NCSB was established by the North Carolina Dental Act to be "the agency of the State for the regulation of the practice of dentistry." In that capacity, the NCSB has authority to administer the licensing of dentists and to file suit to enjoin the unlawful practice of dentistry. Starting in 2006, the NCSB began to send strongly worded cease and desist letters to non-dentist providers of teeth whitening services. People in this occupation grew in numbers in North Carolina – as well as other states — as the popularity of these services increased over a period of years. Often the non-dentist providers are simply individual entrepreneurs operating out of kiosks in shopping malls and similar venues. Licensed dentists also provide teeth whitening services, but typically at substantially higher fees.
Significantly, the N.C. Dental Act is silent with respect to whether teeth whitening constitutes the practice of dentistry. Nonetheless, the NCSB determined that it was, though without hearing or comment and without any independent confirmation by any other state official. In so doing, the Board found that the non-dentists were unlawfully practicing dentistry. Instead of obtaining a judicial order to enjoin the non-dentists as prescribed by statute, however, the NCSB sent out cease and desist letters, which contained strong language including a warning that the non-dentist teeth whiteners were engaging in a criminal act. The letters effectively stopped the provision of teeth whitening services by non-dentists.
In 2010 the FTC sued the Board on antitrust grounds. In response, the NCSB asserted that it was entitled to immunity under the state action doctrine. The FTC rejected that claim and in an administrative hearing ruled that the cease and desist letters constituted unlawful concerted action to exclude non-dentist teeth whiteners from the North Carolina market for such services. The FTC further found that that this exclusion resulted in actual anticompetitive effects in the form of less consumer choice and higher prices. The Commission then ordered the NCSB to stop issuing cease and desist letters to non-dentist providers of teeth whitening services without first obtaining a judicial order.
Key to the FTC's antitrust finding was that, under the N.C. Dental Act, the majority of NCSB members must be practicing dentists elected to the Board by the community of N.C. licensed dentists. Moreover, throughout the relevant period, most, if not all, of the dentist members of the NCSB performed teeth whitening in their respective practices. In addition, the Board's actions came after it received several complaints from licensed dentists about the competition from non-dentists teeth whiteners and the lower fees that these providers charged. Only a few dentists suggested that teeth whitening by non-dentists might be harmful to customers. The FTC found the validity of such public health claims tenuous.
The NCSB appealed the FTC's rejection of its state action defense. The appeal reached the Supreme Court in 2014, and in an opinion handed down last February, the Court held that, under the record facts, the NCSB does not have antitrust immunity. In reaching this conclusion, the Court found that, although the NCSB is a creature of the state and could properly be labeled a state agency, it is nonetheless a non-sovereign body and thus subject to the active supervision requirement for antitrust immunity to obtain. This requirement was not satisfied. (Not at issue was whether the state had a clearly articulated policy to regulate the practice of dentistry. All parties stipulated to this factor.)
The Court's finding that the NCSB is a non-sovereign body is the key to the decision, and rightly focuses on substance over form. In particular, the Court focused on the fact that the NCSB is majority-controlled by active market participants and that its decisions in this case were unsupervised by any state government officials. Given these circumstances, the Court found there to be a high risk that Board decisions were and are influenced by self-interest instead of public welfare. When this risk is present, it trumps any formal label given by a state to a regulatory body. The Court specifically held that a "state board on which a controlling number of decision makers are active market participants in the occupation the board regulates must satisfy [the] active supervision requirement in order to invoke state action antitrust immunity."
The practical result of this holding is that the FTC's finding of illegal anticompetitive conduct stands. This outcome will no doubt yield important benefits to North Carolina citizens. Teeth whitening entrepreneurs can seek to re-enter the market, and consumers of those services will enjoy lower fees resulting from the increased competition. These will be tangible, observable benefits.
Critically, however, the Court's holding also has important legal and policy implications beyond North Carolina. States will have to re-evaluate their regulatory boards and account for the fact that giving unsupervised control over who is qualified to compete to boards comprised of members whose incomes depend on those decisions may not produce good outcomes. Going forward, states must give greater care not only to establishing such boards, but also to overseeing their decisions. Decisions made behind merely the facade of a state-created agency will be insufficient for a board to obtain state action immunity.
Additionally, the Court's holding recognizes that license requirements that do not rest on firm evidence of a risk to public health absent licensure serve not only to protect incumbents from healthy competition, but unnecessarily infringe on basic economic liberty and the right to earn a living. As such, the holding implicitly elevates economic liberty to a position as prominent as the antitrust concern. In so doing, the holding is an important victory for economic libertarians, just as it is for antitrust enforcers. It is a rare example of an instance when groups with economic philosophies that often diverge can come together in common celebration. A great win for both.
Theodore A. Gebhard advises attorneys on the effective use and rebuttal of economic and econometric evidence in advocacy proceedings. He is a former Justice Department antitrust economist, Federal Trade Commission attorney, private practitioner, and economics professor. Mr. Gebhard holds an economics Ph.D. as well as a J.D. Nothing in this article is purported to be legal advice. Facts or circumstances described in the article may have changed by the time of posting. You can contact the author via email at theodore.gebhard@aol.com.


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text:
Ride-hailing cars must display taxi signs
All cars providing passenger transportation services via ride-hailing applications will be treated like taxis from the beginning of April, when the pilot project for tech-based cars ends.
VNA Wednesday, February 19, 2020 20:15
New applications enter ride-hailing market
Indonesia includes ride-hailing service in CPI calculation
Tuesday, February 04, 2020 10:04
Grab cars must have TAXI light-box or logo
Singapore: hailing service operators to be licensed
Illustrative image (Photo: Grab)
Hanoi (VNS/VNA) - All cars providing passenger transportation services via ride-hailing applications will be treated like taxis from the beginning of April, when the pilot project for tech-based cars ends.
The Ministry of Transportation has decided to end the pilot project applying technology in managing passenger transportation from April 1.
The operation of ride-hailing firms like Grab, FastGo, Be and Emddi would be regulated by Decree 10/2020/ND-CP covering automobile transportation business, which was issued in January and would come into force from the beginning of April.
Under the new decree, all vehicles with fewer than nine seats providing passenger transportation services will be managed like taxis. Accordingly, they must install a taxi sign on the roof, or a sign made of reflective material on the front and rear window.
The installation must be completed before July 1.
Ride-hailing cars must now have three signs: a contract car sign on the front windscreen, the logo of their firm and the above-mentioned taxi sign.
In addition, roof signs would not be compulsory for traditional taxis. Instead, they could choose to stick a taxi sign made of reflective material on the front and rear window like ride-hailing cars.
The Ministry of Transport asked municipal and provincial transport departments of Hanoi, Ho Chi Minh City, Da Nang, Quang Ninh and Khanh Hoa, where the pilot project for tech-based cars was being carried out, to provide instructions to service providers on the new regulations.
According to Decree 10/2020/ND-CP, ride-hailing apps would only help connect passengers and drivers and could not directly operate cars and decide rates. They could only act as an intermediary providing technology platform for transportation businesses.
The pilot projects for tech-based cars were implemented following Decision 24/QD-BGTVT dated January 7, 2016, which allowed ride-hailing cars to operate in HCM City, Hanoi, Da Nang, Khanh Hoa and Quang Ninh./.
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redpajama_set_name: RedPajamaCommonCrawl


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University of Akron Research Foundation's I-Corps Program Recognized with National Award for Exemplary Practice in Technology Commercialization
Akron, OH – June 11, 2021 – The University of Akron Research Foundation's (UARF) I-Corps program received the Exemplary Practice in Technology Commercialization Award at the Deshpande Symposium on June 11. The Deshpande Symposium is an annual gathering of like-minded practitioners focused on accelerating innovation and entrepreneurship across the college and university environment in the United States and Canada. Each year, the Symposium offers three awards to university-affiliated entrepreneurship programs that reflect national best practices.
I-Corps was recognized for its strong commitment to building programs that accelerate innovations from laboratory research to commercialization for both university and community inventors. In a letter notifying UARF of the award, Raj Melville, executive director of the Deshpande Foundation, noted that UARF's I-Corps site "best exemplified a strong commitment to building programs that accelerate innovations from the laboratory and research into commercialization across institutions."
"I-Corps has helped tremendously to change the culture at our university to become much more innovative and entrepreneurial for our faculty and students," said University of Akron President Gary L. Miller. "This entrepreneurial spirit not only impacts our campus, but the communities we serve."
The goal of I-Corps is to help faculty, students and the community answer important questions about their business, product or technology idea through coaching and direct customer interactions. UA's I Corps Site, which serves Northeast Ohio, has provided intensive experiential education in what it takes to launch a business for more than 400 Northeast Ohio students, 200 university faculty members, 300 business mentors and 100 community entrepreneurs. I-Corps Site participants have launched successful businesses in a wide range of industries, including software for water treatment facilities, next generation adhesives, and hair and beauty products.
"It's a great honor to receive this Deshpande Symposium Technology Commercialization Award," said Elyse Ball, UARF executive director and I-Corps instructor. "It's a testament to the quality of Northeast Ohio's innovators and entrepreneurs who have enabled the I-Corps program to thrive."
I-Corps has also had a major impact beyond university campuses. "The University of Akron I-Corps Site program has catalyzed a major acceleration in innovation to drive research and new ideas into commercialization realities, not only at the University, but also for the greater Akron community and all universities in Northeast Ohio," said Heather Roszczyk, who serves as innovation and entrepreneurship advocate in the Mayor's Office of Integrated Development at the city of Akron.
The next I-Corps Program is scheduled in the fall. The application deadline is Sunday, Sept. 19, 2021.
Visit UARF's I-Corps website for more information.
We want to collaborate with the community and share the stories of the success of the valley.
For media inquiries, please contact Faye Nicholson fln1@uakron.edu


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My Four-Year-Old Son Plays Grand Theft Auto
Lauren Orsini
Filed to: grand theft auto san andreasFiled to: grand theft auto san andreas
This image was lost some time after publication.
At the very impressionable age of four, my son loved Grand Theft Auto. This article is reprinted with the permission of Bitmob.com.
More specifically, the version he played was the Hot Coffee moddable, San Andreas. Before Child Protective Services bestows upon me the prestigious honor of father of the year, allow me to explain.
Gaming has been a part of my sons' life since the moment he was born, so I was not surprised when he showed an interest in video games as early as the age of two. I started him off where I began my gaming career: the original Nintendo Entertainment System. He built up his hand-eye coordination and took the bridge out from under Bowser in no time. Then, one day, he got a glimpse of me playing Grand Theft Auto: San Andreas and asked if he could play. What happened next was quite the eye-opener.
With a DualShock controller in hand, he started to press each button individually as he tried to figure out what their functions were. Soon he asked, "How do I get in a car?" I pointed and told him, "The one with the green triangle on it."
I egged him on to take the car in front of him which was waiting at the red light. He quickly looked up at me with disgust and refused, stating that the car was already owned by the person driving it. His response absolutely amazed me, so I decided to sit back and observe how he chose to interact with this highly controversial game without the aid of a rotten-minded adult.
He finally entered an unoccupied car and began driving. He was very mindful of the other cars and pedestrians. He didn't know the rules of the road, so he ran red lights and turned down one-way streets in the wrong direction. However, he did stop at intersections if a group of cars gathered waiting for the light to turn green.
At one such intersection he attempted to brake, but he was traveling too fast. Instead of plowing into the rear of the car ahead of him, he swerved to the right and popped up onto to sidewalk. In doing so, he accidently ran over a woman walking towards his oncoming car. He was incredibly ashamed of himself and profusely apologized.
"It's okay. It's only a game. It's not real", I reassured him. After a few minutes of me explaining the difference between a game and real life, he felt comfortable enough to continue playing.
Stop! Or my mom will shoot!
Only seconds later, he witnessed a policeman jump out of his patrol car to pursue a criminal of San Andreas. His eyes lit up as he asked if he could drive the police car. I reminded him that it was only a game, and it was fine to take the car. As he drove the squad car, I pressed L3 to turn on the lights and siren. He asked very excitedly if he could get the bad guys too. With a huge smile I pressed R3 to initiate the Vigilante Missions. It was as if his imagination had come to life. He was taking down delinquents left and right. As expected, the dangerous work of an officer brought an ambulance.
At this point my son was familiar with the game's mechanics and hopped into the ambulance. As he put the crime fighting behind him, he wondered aloud if it was possible to take people to the hospital. I instruct him to press R3, and then he was off to save a few lives. He was having a blast racing from point to point, picking up people in need, and then speeding off to Las Venturas Hospital. During one of his life saving adventures, he passed a fire house with a big, red, shiny fire truck parked out front. He didn't want to let his passengers down, so he took them to the hospital and then asked if I could guide him back to the fire truck.
Getting behind the driver's seat of the fire truck awarded him with the most fun he had while playing Grand Theft Auto. With sirens blaring, he chased down the first red dot on the map. As he approached a car engulfed in flames he began showering it with the truck's water cannon. Fire after fire, he extinguished them all.
In all his time with Grand Theft Auto he never once encountered any of the controversy surrounding this notorious title. He didn't beat any hookers with a baseball bat. He didn't deal drugs. He didn't go on a murderous rampage. He certainly never once had a cup of hot coffee. He didn't avoid these things because I told him he counldn't try them. It just never occurred to him to commit these acts.
The ESRB rating found on every game cover is a great tool for parents who are not familiar with games and their content, but I strongly disagree with using it as a tool to raise our kids. Every child is different and, as parents, it is our responsibility to cater to their individual needs. I understand not every kid is like mine, so I wouldn't recommend that every parent allow their child to play Grand Theft Auto. But I would recommend that you listen and pay attention to your little ones to determine what they are capable of handling and what they are not ready for yet. They might even surprise you and find the light in something thought to have been so dark.
This article is reprinted with the permission of Bitmob.com.
After a couple decades of following the games industry from the outside in, Matthew Orona has noticed the lack of one important point-of-view...his. An aspiring games journalist from the southwest city of El Paso, Texas, he's found it much easier to get his word out with the help of Bitmob.
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Вёрсбах () — река в Германии, протекает по земле Гессен. Левый приток Эмсбаха.

Вёрсбах берёт начало неподалёку от города Идштайн. Течёт на север через населённые пункты Идштайн, Вёрсдорф, Валльрабенштайн, Дауборн. Впадает в Эмсбах у населённого пункта Нидербрехен коммуны Брехен.

Длина реки составляет 24,5 км, площадь водосборного бассейна — 118,8 км². Высота истока 340 м. Высота устья 140 м.

Примечания

Ссылки
  (PDF; 4,50 MB)

Бассейн Лана
Реки Гессена

redpajama_set_name: RedPajamaWikipedia


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(p.v) Preface
The economic and financial instability that has rocked Europe and North America since 2008 has been a disaster for millions of people who have lost jobs, homes, and savings. We are very conscious of the consequences of the Global Financial Crisis (GFC) on the lives of our fellow citizens. Unraveling the consequences of the GFC is a fascinating intellectual puzzle but we never want to forget that for the unemployed or newly homeless, the GFC has been far more than an academically interesting event.
The GFC came after a long period of economic growth in both our countries. Withstanding the economic consequences of terrorist attacks, the advanced democracies enjoyed some sixteen years of success. That success was not shared equally; income inequality increased as many middle- or low-income people saw their incomes stagnate while higher income groups, particularly the very highest incomes groups, made dramatic gains. Nor did governments take full advantage of these years of plenty. In particular, both the United Kingdom and the United States ran large deficits in their public sector budgets creating massive levels of government indebtedness at a time when balanced budgets and deficit reduction should have been the goals. In consequence, the United Kingdom and the United States entered the GFC encumbered with deficits and debts that constrained the ability of their governments to respond effectively to its challenges. However, while terrorism and wars preoccupied governments in the first decade of the century, the economy seemed blessedly to be taking care of itself.
Clearly in retrospect, governments were mistaken in this. Failures to regulate effectively allowed financial institutions to build houses of cards that would soon collapse. Governments tolerated the creation of a bubble in the housing market sustained by vast amounts of easy credit, perhaps linked to global financial imbalances. The determination of the Chinese government to hold down the value of its currency by recycling trade surpluses into vast purchases of US Treasury bonds was probably linked to this oversupply of easy credit. However, it was more attractive to governments to think that economic prosperity was due to the wisdom of their policies. In particular, the long period of growth coincided with and therefore could be seen as being due to (p.vi) the neoliberal, "Washington consensus" orthodoxy that dominated economic policy thinking in this period. Its prescription of facilitating market forces through less regulation, lower taxes, and reduced government intervention in the economy seemed to be demonstrably effective. In particular, the United Kingdom, once derided as the sick man of Europe, economically moved ahead of the continental economies in terms of per capita incomes because, it seemed, it had adopted neoliberal economic policies under Thatcher and continued a version of them under Tony Blair's "New Labour" government.
This book originated in discussions between us in which we assumed that the GFC would prompt a wave of new thinking. It seemed reasonable to assume that the GFC would cause a reconsideration of the neoliberal policies that had either failed to prevent or arguably caused the crisis. A combination of criticism of lax regulation and the adoption of policies such as the nationalizations of banks and auto companies decidedly at variance with neoliberal approaches suggested that a fundamental reconsideration of public policy thinking might be under way. The fact that these policy changes were made by the most unlikely people—a conservative Republican President in the United States and Prime Minister Gordon Brown who had been one of the architects of "the New Labour Project" in the United Kingdom, strengthened the plausibility of our expectation of new approaches in public policy. We also thought that the dramatic initial responses of governments, such as the nationalizations of General Motors and Royal Bank of Scotland, and the Troubled Asset Relief Program (TARP), would prompt a reconsideration in academic circles of categorizations of political economies which seemingly made these policy developments in the United Kingdom and the United States impossible. In particular, the fashionable view that the "Anglo Saxon" economies had a variety of capitalism in which the state was aloof and noninterventionist in market forces seemed difficult to reconcile with events. We therefore sort to examine what the GFC had done to established thinking in both government and academic circles about economic policies and political economies.
In the event, we have found much more stability than change in public policy. Given the extent of the shock to the world economy that the GFC constituted, this is a surprising outcome that we have tried to explain. It is impossible to use yet again the Sherlock Holmes question: Why didn't the dog bark? Why did a crisis that began in the United States under a Republican administration dedicated to lax regulation not result in a sharp shift toward the left in politics and activist government in policy? We remain convinced that our expectation of change was warranted and its absence is therefore to be explained.
(p.vii) The book follows attempts to provide that explanation. It is the product of cooperation between the University of Warwick in the United Kingdom and Boston University in the United States. This cooperation is truly organic. Unaided by the governments of either country, it represents a realization that both institutions will gain in strength by working together. This project brought together people with complementary expertise most of whom did not know each other previously. Workshops were held at Warwick University in December 2009 and at Boston in 2010. We wish to thank the people in both institutions who made this cooperation possible, particularly Vice President and Associate Provost Andre Ruckenstein, Professor Kevin Smith and Dean Virginia Sapiro at Boston, and Richard Higgott at Warwick. More generally, we also wish to point to the strength of the academic ties between the two countries. It is commonplace for commentators in the United Kingdom to deride the "special relationship" between the United States and the United Kingdom; most Americans give it little thought. However, the frequency and ease of interaction between British and American academics is an important aspect of the ties that bind the two countries. It is our hope that these ties not only between the University of Warwick and Boston University but between British and American universities more generally will be ever stronger.
Wyn Grant
Graham K. Wilson (p.viii)