Research in Law and Economics: Volume 25

This volume brings together work by scholars from around the world dealing with law and economics policy issues. The volume contains several industrial organization articles, including two dealing with definitions of market power. The first provides a dynamic context to market power indices and the second a guide to a better profit measure.

This chapter proposes three different definitions for the market power in the antitrust case, such as dynamic monopoly power, static monopoly power and market power.

The chapter presents simple economic models to analyse which definition of the three market powers is consistent with predatory pricing or tying.

The prerequisite market power is simply market power in the predatory pricing case or static monopoly power in the tying case.

Dynamic monopoly power defined as the market power from an antitrust perspective by the Antitrust Modernization Commission should not be the prerequisite market power in the case of the abuse of dominance or the violation of Section 2 of the Sherman Act.

A possession of substantial market power or monopoly power is typically understood as a prerequisite in abuse of dominance in Korea and EU or violation of Section 2 of the Sherman Act in the United States. However, the antitrust law does not clearly indicate the meaning of market power or monopoly power. This chapter proposes three different definitions for the market power in the antitrust case and analyses which definition of the three market powers is consistent with predatory pricing or tying.

The SCP school prefers to use accounting data for the industry “average” profit rate to measure market power. This article emphasizes that over-reliance on average profit across all firms to infer excess profit might lead to incorrect inferences regarding market power. Based on the conventional insights of Mill, Fawcett, Hobson, and Friedman, this article recommends using the profit rate of the marginal firm (the least efficient firm) as an indicator to measure market power, rather than the industry average profit rate.

This chapter analyses efforts exerted and utilities obtained in a double lawsuit. This is a usual situation when insurance companies are involved in damage compensation. A victim files the first lawsuit against its insurance company for coverage. If the victim loses, there are no further lawsuits. If the victim wins, the insurance company files the second lawsuit against the perpetrator to recover its expenses.

The situation is described as a two-period game, which is solved with backward induction. The model is based on the Hirshleifer and Osborne (2001) litigation success function that expresses influence of the counterparts’ efforts on the outcome of a lawsuit.

The chapter analyses the optimal resource allocations in each lawsuit as functions of effort unit costs, the value of each lawsuit and the contest intensities in the lawsuits. It is shown that a one-period game where the victim, the insurance company and the perpetrator choose their efforts simultaneously and independently gives the same solution as the two-period game.

In 2008 in the United States 15 million lawsuits were filed. Several of these were linked in the sense that subsequent lawsuits depend on the outcomes of earlier lawsuits.

Lawsuits are commonly analysed separately. The chapter analyses in a novel manner the implications of two linked lawsuits referred to as a double lawsuit.

The chapter surveys recent developments in economics of contract interpretation. First, we point out the relevance of issue of contract interpretation to contracting problems. We then introduce a general economic model of contract interpretation. It explains why parties write gaps and fairly general terms in contracts, how the court should interpret them, and whether courts should always enforce what contracting parties write. Moreover, we explain why there are contradictions in contracts.

This chapter examines the impact of changes in foreign exchange legislation on the levels of R&D undertaken by pharmaceutical firms in India. Foreign exchange legislation in India was codified as the FERA, passed in 1973, and the legislation was based on the mens rea principle, assuming criminal intent on the part of transgressor. The provisions of FERA were replaced with those of new legislation, called FEMA, in 1999. The impacts of the changes have been examined.

The examination has been based on panel data of Indian pharmaceutical firms over a period of fifteen years, from 1991–1992 to 2005–2006.

The results of the analysis have shown that, controlling for a variety of other factors, a transition from FERA to FEMA has been associated with a significant rise in pharmaceutical firms’ average levels of R&D undertaken.

The research establishes that institutional changes have significantly impacted innovation performance in India. The sector examined, pharmaceuticals, is important for the Indian economy as well as for general welfare, since its products help enhance the quality of lives. How innovation can be enhanced in this sector is an important policy consideration.

The research is the first to examine the impact of changing the laws relating to foreign exchange transactions in India on capability building, via undertaking research activities, in an important sector of Indian industry.

Williamson's systematic treatment of transaction costs in explaining governance structures has rarely been applied to the field of environmental economics. The aim of this chapter is to address this oversight by analysing how transaction cost economics can help choose among environmental policy tools.

We apply the analytical framework of discrete structural alternatives – market, hybrid forms and hierarchy – to the choice of environmental policy instruments. Environmental-related transactions, which differ in their attributes, are aligned with categories of policy instruments, which differ in their cost and competence, so as to effect a discriminating – mainly transaction costs economizing – result.

First, we suggest defining the transaction as the trading of property rights to the use of natural resources. Second, the characteristics of the transaction are described as mainly measurement costs. Third, we determine the conditions under which a particular ‘governance structure’ that is a policy instrument is chosen.

A major contribution of our analysis is to question the relevance of many economists’ prescription in favour of incentive-based instruments. Indeed, in some plausible circumstances a command-and-control instrument may be more efficient by economizing on transaction costs.

Environmental economics has employed the seminal contribution of Ronald H. Coase (1960) intensively but has remained relatively unaffected by the contributions of perhaps his most influential follower, Oliver E. Williamson. Our chapter is a first step towards an operationalization à la Williamson of Coase's (1992, p. 778) ‘fundamental insights’ in the environmental realm.

In a number of recent multi-billion dollar cases brought against cigarette manufacturers, plaintiffs have in part alleged that the cigarette manufacturers (1) conspired not to compete on the basis of health claims or the introduction of potentially safer cigarettes since the 1950s, and (2) engaged in fraudulent advertising by making implied health claims in advertisements selling ‘low tar’/‘light’ cigarettes. In this type of litigation, defendants’ actions could be due to alleged illegal behaviour as asserted by plaintiffs, or be the result of market forces that may have nothing to do with allegedly inappropriate acts. We examine the economic evidence relating to these allegations, taking into account some of the major influences on cigarette company behaviour. In particular, our analyses show that much of the cigarette manufactures’ behaviour can be explained by Federal Trade Commission and related government actions, rather than conspiracy or fraudulent acts. We find the economic evidence is inconsistent with an effective conspiracy to suppress information on either smoking and health or the development and marketing of potentially safer cigarettes. Regarding ‘lower tar’ and ‘light’ cigarettes, the economic evidence indicates that the cigarette manufacturers responded to government and public health initiatives, and that disclosing more information on smoking compensation earlier than the cigarette companies did would not have had any significant impact on smoking behaviour.