Showing papers by "Andrew W. Torrance published in 2011"

Property Rules, Liability Rules, and Patents: One Experimental View of the Cathedral

Abstract: In their seminal 1972 article, "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral," Guido Calabresi and A Douglas Melamed proposed an analytic framework for comparing entitlements protected by property rules and liability rules Their article has become one of the cornerstones of modern legal scholarship, and the influence of the theory of legal rules they established has extended far beyond tort and property into almost every area of the law, including intellectual property Despite the prodigious influence this theory of legal rules has had, its implications have never been explored experimentally To remedy this knowledge gap, we conducted a series of controlled experiments on liability and property rules, using the patent system as an experimental model Expressed in the nomenclature of Calabresi and Melamed, the United States' patent law has recently witnessed a shift away from property rules and towards liability rules This Article presents an experimental study that attempts to test the hypothesis that amounts of innovation, productivity, and social utility vary across patent systems that tend to emphasize either property rules or liability rules The results of our experiments suggest that the choice between property and liability rules does, indeed, matter, but in a surprising way Despite the common assumption that property rules tend to outperform liability rules, we found the opposite: in a computational model of the patent system, liability rules outperformed property rules in generating innovation, productivity, and social utility TABLE OF CONTENTS INTRODUCTION I PROPERTY RULES, LIABILITY RULES, AND INTELLECTUAL PROPERTY A The Cathedral B Property Rules, Liability Rules, and Patents C An Experimental View of the Cathedral II METHODS A Technological Methods 1 Summary of the Patent Game 2 Injunction and Damages 3 Game Setup 4 Enforcement 5 Post-Enforcement Play A Human Experimental Trials III RESULTS 1 Injunction/Damages Treatment 2 Injunction Treatment 3 Damages Treatment 4 No Remedy Treatment 5 Innovation 6 Productivity 7 Social Utility IV ANALYSIS CONCLUSION INTRODUCTION In Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, Guido Calabresi and A Douglas Melamed proposed an analytic framework for comparing entitlements (1) protected by property rules and liability rules (2) Their article is one of the cornerstones of modern legal scholarship, (3) and the influence of their theory of legal rules has extended far beyond tort and property into almost every area of the law, including intellectual property (4) Although Calabresi and Melamed's theory has had a prodigious influence on legal scholarship, its implications have never been explored experimentally To remedy this knowledge gap, we conducted a series of controlled experiments on liability and property rules, using the patent system as an experimental model Expressed in the nomenclature of Calabresi and Melamed, US patent law has recently shifted away from property rules and towards liability rules (5) This Article presents an experimental study that attempts to test the hypothesis that amounts of innovation, productivity, and social utility vary across patent systems that emphasize either property rules or liability rules The results of our experiments suggest that the choice between property and liability rules matters, but in a surprising way Despite the common assumption that property rules tend to outperform liability rules, (6) we found the opposite: in our computational model of the patent system, liability rules outperformed property rules in generating innovation, productivity, and social utility Until 2006, a patent owner that prevailed in an infringement suit was effectively entitled to a permanent injunction as a matter of right …

The Evolution and Development of Biolaw

Abstract: Biolaw has come of age as an academic discipline. This rapidly growing legal discipline possesses a Janus nature that encompasses both the law of biology and the biology of law. Advances in the biological sciences, such as genetics, biochemistry, cell biology, synthetic biology, biological engineering, reproductive biology, embryology, developmental biology, systems biology, evolutionary biology, ecology, behavioral ecology, ethology, and neurobiology continually challenge both society and the laws that attempt to order, regulate, and protect it. Biolaw combines the use of biological science to describe, analyze, and improve the law with legal analysis of biological science, its institutions, and its societal implications. It integrates insights from such biologically-informed research areas as law and genetics, law and neuroscience, reproductive law, behavioral economics, cognitive psychology, law and biotechnology, biotechnology patent law, neuroethics, and biodiversity law. Building on early advocacy of the field by academics such as Hank Greely and June Carbone, the field is currently experiencing a renaissance in interest both inside and outside the academy. Indicia of its new prominence include a large and growing constituency among legal academics, academic conferences (i.e., Law and the Life Sciences, held in 2007 at the University of Louisville School of Law; Biolaw: Law at the Frontiers of Biology, held annually at the University of Kansas School of Law in 2007, 2008, and 2009), weblogs (e.g., Biolaw: Law and the Life Sciences), a scholarly listserv (i.e., the Biolaw Listserv), and high attendance at Biolaw “open programs” at the 2008, 2009, and 2010 American Association of Law Schools annual meetings. Perhaps the most official recognition of biolaw as a legal discipline is the proposed creation of an official AALS Biolaw Section. As advances in the biological sciences increasingly challenge the vocabulary, legal regulation, and understandings of the role of biology in society, and the law increasingly attends to the regulation of these challenges, biolaw is likely to emulate the growth of cyberlaw as an important and prominent scholarly discipline within the legal academy.