DOES ECONOMICS PROVIDE A RELIABLE GUIDE TO REGULATING COMMODITY BUNDLING BY FIRMS? A SURVEY OF THE ECONOMIC LITERATURE

This article surveys the voluminous economic literature on commoditybundling. While bundling has been widely studied, the vast majorityof the literature has focused on theoretical treatments of bundlingthat demonstrate a wide range of reasons why firms might engagein bundling. These papers generally contain restrictive assumptions,including assumptions regarding the existence of monopoly insome markets, and the nature of rivalry in others. The modelscontained in these papers also generally suppress the more obviousand ubiquitous reasons firms may use bundling. Moreover, thesemodels have not been subject to robustness checks, nor havetheir assumptions been tested empirically. This review of theeconomic literature generally confirms the US Solicitor General'sview in 3M v. LePage's regarding the underdeveloped state ofthe economics literature and its position that the US SupremeCourt should defer promulgation of antitrust standards for bundling.While the literature has demonstrated the possibility that bundlingcan generate anticompetitive harm, it does not provide a reliableway to gauge whether the potential for harm would outweigh anydemonstrable benefits from the practice. As a result, the widespreadapplication of the antitrust laws to bundling by firms can generatesignificant error costs by erroneously condemning or deterringefficient business practices. In the future, economists shouldseek to expand their understanding of both the anticompetitiveand procompetitive reasons firms engage in bundling. This willentail studying the reasons why bundling is adopted by firmswithout market power, relaxing the assumption of monopoly intheoretical models, and generating testable hypotheses and thedata to test them.     

Basic concepts and issues: a primer on distribution and sales representative agreements in the medical device and durable medical equipment industries

Counsel for a manufacturer of medical devices or durable medical equipment must have working knowledge of various legal disciplines to draft contracts with intermediaries (sales representatives and distributors) for the marketing and sale of the manufacturer's products. If the manufacturer wishes to sell its products abroad, counsel must become familiar with the laws and business practices of the target country, and methods of gaining access to the foreign market. This Article gives readers an overview of the applicable legal principles, under U.S. and foreign laws, in the areas of agency, contracts, healthcare regulation, consumer protection, intellectual property protection, and dealer protection. To aid counsel in drafting intermediary agreements, specific contractual terms and issues are explored in depth, including: appointment clauses, performance provisions, provisions concerning pricing and payment, protective clauses (shielding the manufacturer from liability), term and termination provisions, independent contractor clauses, export control clauses, recordkeeping and audit provisions, choice of law clauses, and dispute resolution clauses.     

农业水价综合改革政策绩效偏差从何而来? ——基于甘肃10个试点县(区)的实证研究

【问题】农业水价综合改革是推进节约增效型农业、保障国家水安全的关键改革。但地方政策实践中面临农户节水意识与用水方式尚未完全改善、政府部门水价形成机制和节水激励机制尚未良性运行、农业节水的经济和社会效应尚未充分彰显等系列问题,政策实际绩效与目标绩效间产生偏差。政策绩效偏差何以形成?关键影响因素及其内在关联是什么?如何矫正绩效偏差并增进政策绩效?【方法】以甘肃省10个试点县(区)农业水价综合改革为研究样本,对实地调研和深入访谈所获取的数据资料进行质性编码,建构我国农业水价综合改革政策绩效偏差的归因模型。【发现】农业水价综合改革政策绩效偏差的形成是涉及“利益相关者—政策执行—政策情境”交叠驱动的复杂过程,表现在:1.在主体层面,利益相关者政策认知、偏好和协同行动是决定政策绩效的关键因素;2.在行动层面,任务分解层层加码、政策落实困难是构成导致政策绩效偏差的核心变量;3.在场域层面,政策资源和改革需求等情境要素进一步催化了政策绩效偏差的形成。【贡献】相对于源自政府绩效管理工具性路径下对绩效悖论和绩效损失的关注,本研究的贯穿概念:绩效偏差,则可覆盖公共政策全过程,有更为广阔的研究价值与适用场域。本研究构建了基于农业水价综合改革政策绩效偏差的影响因素及相互间逻辑关联的理论模型,为解释公共政策绩效偏差提供新的视角;并从整合政策利益相关者认知与偏好、加强政策执行效能和优化政策环境三个维度提出农业水价综合改革政策矫正策略,为地方政府提升政策整体绩效提供参考。     

The role of incentives in the deployment of technologies from cooperative R&D

Over 1,400 cooperative research and development agreements (CRADAs) were in place across the U.S. Department of Energy (DOE) laboratory system in May 1995—indicating that a broad sampling of industry endorses the objectives of the National Competitiveness Technology Transfer Act of 1989. The law enables DOE's contractor-operated facilities, such as Oak Ridge National Laboratory (ORNL), to collaborate with companies, industrial consortia, universities, and even state and local governments. Positive impacts cited by industrial CRADA participants thus far include the improvement of existing products and manufacturing processes, the reduction of investment risks associated with cutting-edge research, and an increased awareness of important technical trends. However, such industrial benefits are often hard to measure; that represents a potential problem for federally funded R&D institutions, where metrics associated with tangible economic impacts are assuming greater prominence. Future political support for public/private partnerships may depend on steep growth in quantitative measures of economic value, based on the sale of patented products and services. Boosting such sales in a significant way, could, in turn, depend on the consistent application of incentive-based approaches that motivate individuals and organizations to aggressively pursue technology-based commercialization goals. In Oak Ridge, Tennessee, where Lockheed Martin Energy Systems manages ORNL and other DOE research and production facilities, broadly defined incentives have played a key role in facilitating the sale of licensed products and services. Cumulative sales totaled $102,000,000 in April 1995, with several innovations just beginning to enter the marketplace after years of engineering and product development. The same factors that impact technology deployment in these “stand-alone” licenses will play a key role in the deployment of inventions arising from CRADAs.     

Closed Distribution Networks and E-commerce: Antitrust Issues

Closed distribution networks (ie exclusive or selective distribution networks) have to integrate the development of the internet, particularly in sectors such as fine fragrances or new cars sales. Producers (ie Chanel or Volkswagen) cannot ignore that their products are potentially available on the web. Considering the relationships between producers and their off-line dealers, the question is to know if these dealers could be authorized to resell the products on their own website. In each sector, producers have to adapt their distribution contracts for e-commerce. In a previous paper (published in the Journal of Information, Law and Technology , 2000, No 2) we conclude that electronic points of sales must respect criteria used for physical points of sales, but with some adaptations. The major issue for producers is to build legally secured contracts in order to manage both off-line and on-line distribution networks. But the adaptation of traditional distribution contracts cannot ignore the antitrust framework, especially in the European context, since the new Block Exemption Regulation No 2790/99 on Vertical Restraints has been published. Producers' strategies within the European Union must take into account potential competition restraints implied by their contract policy. When drafting their contracts for e-commerce opportunities, producers have to deal with the legal standing of their networks within the European antitrust law. In this paper, our purpose is to analyze implications of the on-line distribution strategy that could be drawn up by a producer from the European competition law viewpoint. We determine opportunities and constraints presented by the Guidelines from a producer's point of view, and we examine whether European competition law does offer any interesting 'room for manoeuvre' for producers who develop closed distribution networks. We also identify what kind of elements could lead to a withdrawal of the benefit of the Block Exemption Regulation No 2790/99; we show that this withdrawal could arise from a market share evaluation, or from the disproportion between competition restraints (stemming from the distribution contract clauses) and the necessity of an economic progress within the European Commission (EC).     

Putting a price on drugs: An economic sociological study of price formation in illegal drug markets

Prices in illegal drug markets are difficult to predict. Based on qualitative interviews with 68 incarcerated drug dealers in Norway, we explore dealers’ perspectives on fair prices and the processes that influence their pricing decisions. Synthesized through economic sociology, we draw on perspectives from traditions as different as behavioral economics and cultural analysis to demonstrate how participants in illicit drug distribution base their pricing decisions on institutional context, social networks, and drug market cultures. We find that dealers take institutional constraints into consideration and search for niches with high earnings and low risks. The use of transactions embedded in social networks promotes a trusting form of governance, which enables strategic network management and expedient distribution but also uncompetitive pricing. Finally, dealers’ pricing decisions are embedded in three different cultures narratives: business, friendship, and street cultural stories, with widely varying implications for prices. Our findings demonstrate how an economic sociology of illicit drug distribution can extend insights from behavioral economics and cultural studies into a coherent criminology of illegal drug markets.     

Online platforms and pricing: Adapting abuse of dominance assessments to the economic reality of free products

Online platforms, which are at the forefront of today's economy, are subject to intensive competition law enforcement. However, the platform business model presents challenges for the application of competition law. Most notably, they appear to offer consumers a great number of their products for free. The explanation for most of these supposedly free products is offered by two-sided market theory: consumers may not be paying, but the ‘other’ side of the market is. This other side of the market often consists of advertisers, which pay the platform for access to the consumers’ information (to target advertisements) and attention (to show the advertisements). As many of these platforms are now potentially dominant, they come within the scope of competition law's abuse of dominance provision, including the doctrines of predatory and excessive pricing. These price-based theories need to adapt to the often price-less platform business model in order to prevent competition authorities from making both type I and type II enforcement errors. At the same time, competition law enforcement needs to consider—and at times give priority to—other branches of law that address abusive behaviour concerning free products. Through the use of case studies, this article therefore suggests ways in which abuse of dominance assessments can take into account the economic reality of free products.     

Harmonization of private law on a global level

The Vienna Sales Convention (1980) follows in large measure the American Uniform Commercial Code: Article 2 on Sales. Is this to imply that the Contracting States to the Vienna Sales Convention really prefer American sales law? This paper answers this question in the negative, and argues instead that the United States’ economic leverage with other countries is the key factor influencing developments pertaining to private law on a global level.We explain why it may be useful to harmonize rules of private law on a global level and which rules should be chosen for a uniform law. We show that the choice between two legal arrangements may lead to a coordination problem. Next we argue that the coordination problem is solved in favor of the jurisdiction whose economy is less dependent upon the economies of other jurisdictions than the other way around. We use our model to discuss the harmonization of sales law on a global level in the twentieth century.     

Optimal Pricing of Court Services

Litigants are generally charged for using court services. The charges involved are usually set to achieve a combination of efficiency, equity and funding goals. This paper presents a simple model, based on regulated monopoly pricing, to address the question of how these charges should be set. We find that fixed fees generally form part of the optimal charging package, despite concerns about their regressive nature. Per-unit fees will also be used though they may be set below cost; in this case, a trade-off emerges and the fixed fee is used to achieve funding goals. Our model is a useful one for developing extensions from the nonlinear pricing literature.JEL K40, L50     

The Bundling of Similar Interests in Litigation. The Incentives for Class Action and Legal Actions taken by Associations

The European directive 98/27/EC of 15 of May 1998 widens the scope of action for consumer interests. The new directive follows the green book on the rights of the consumer of 11 June 1993. The necessity to transform this directive into national law has led to discussions on whether it is advisable to generally expand the scope of liability for widespread damages. Should the possibilities to collect damages for consumer associations and to establish new forms of bundling similar interests in cases of civil liability be widened? This article deals with economic consequences of such forms of bundling with a focus on the class action and actions by associations. The American discussion on the merits of class action is not very encouraging and does not lead to proposing far reaching legal innovations for European countries in this field. It seems however that some of the adverse effects of class action can be avoided by slightly different forms of bundling.     

WHEN DOES AN OPTIONAL TARIFF NOT LEAD TO A PARETO IMPROVEMENT? THE AMBIGUOUS EFFECTS OF SELF-SELECTING NONLINEAR PRICING WHEN DEMAND IS INTERDEPENDENT OR FIRMS DO NOT MAXIMIZE PROFIT

Optional or self-selecting tariffs allow customers to choosebetween an established tariff and an alternative outlay schedule.The possibility of making the vendor and at least one consumerbetter off, without making any other consumer worse off, makesoptional tariffs appealing to both economists and regulators.In economic terms, the introduction of optional tariffs makespossible a Pareto improvement in the allocation of resources.Unfortunately, the presumed desirability of such tariffs dependscrucially on assumptions that may not be fulfilled in the caseof a state-owned enterprise—in particular, profit-seekingbehavior on the part of the monopoly vendor and independenceof consumer demand functions. We analyze the economic implicationsand potential consequences, in general, of introducing negotiatedrate and service terms available to a sole user into a preexistingregulatory regime of uniform tariff rates and conditions ofservice. We identify the conditions under which it is economicallydesirable to introduce declining-block rates or other rate structuresthat discriminate among users of the affected services, withor without any basis in identifiable cost differences. We addressthe specific economic implications and potential consequencesof introducing negotiated rate and service terms available toa sole user where the affected service is provided under a monopolyestablished by federal statute, taking into account that suchnegotiated arrangements may include preferential pricing terms;that access to the negotiated terms may be limited to a smallnumber of users for administrative or other reasons; and thatcompetition may exist among users of the affected service orservices. Finally, we identify and describe regulatory measuresthat might be taken to accommodate potential concerns regardingthe impact of such negotiated rate and service arrangementson fairness in regulation and competition. We conclude thatit is not possible to derive sweeping propositions about theefficiency of optional tariff offerings. Instead, the welfareeffects of such pricing plans must be evaluated empiricallyon an individual basis. Our analysis has practical significancefor pricing policies in network industries, particularly thoseindustries served by state-owned enterprises that enjoy statutorymonopolies.     

Tying and bundling by online platforms – Distinguishing between lawful expansion strategies and anti-competitive practices

The assessment of tying and bundling practices under Art. 102 TFEU in the case of online platforms will require adjusting current practice to correspond to their technical complexity and multi sided nature. Although the current framework may appear suitable to deal with this kind of abuses, The recent cases against Google show that there is still much uncertainty in practice. Therefore this article seeks to address the matter of tying and bundling by online platforms and provide guidance with regard to the application of the current legal framework to such complex cases in order to prevent false finding in ongoing and future cases.This article shows that finding an abuse of dominance in platform related cases requires great diligence as the joint provision of products or services and market power leveraging by platforms is an inherent part of their commercial evolvement. In this regard the article offers insight on how to distinguish between anticompetitive tying and bundling practices and legitimate expansion strategies. In order to do so, the article discusses how such practices can manifest and how they should be addressed under the framework of EU competition law in light of the similar competitive concerns they share with non-platform cases.     

Michelin II: A Per Se Rule Against Rebates by Dominant Companies?

In its Michelin II judgment of September 2003, the CFI foundthat Michelin breached Article 82 EC by setting up a systemof rebates that could potentially induce loyalty and excludeits competitors. This paper comments extensively on MichelinII and other cases, with a focus on what sort of competitionpolicy is desirable as regards rebates by dominant companies.Contrary to Michelin II, pricing policies of dominant companieswhich are not linear and not strictly reflecting economies ofscale are not necessarily anticompetitive and may indeed havesignificant pro-competitive effects. Furthermore, a requirementthat a rebate scheme be "economically justified" is very difficultto apply in practice, and the Court should not have put theburden of proof for the justification of quantitative rebatesupon the dominant company. Most preoccupying is the Court'srejection of the effect criterion when deciding on the legalityof a rebate: Such an approach, which differs markedly from USand UK law as well as from the OECD report on fidelity discounts,will generally result in a disproportionate per se-prohibitionof any pricing behaviour and in economic inefficiencies. A fairerand clearer approach could therefore distinguish between rebatesthat are per se allowed and other rebates that ought to be prohibitedonly if they have effects on the market.     

美国、欧盟、韩国、日本微软案件比较研究——以软件产业中滥用支配地位的认定和规制为视角

关于拒绝交易，欧盟、美国的司法救济没有本质差别。至于捆绑，美国要求微软隐藏被捆绑软件的图标；欧盟要求微软提供删除多媒体播放器源代码的视窗版本，但仍允许销售提供捆绑播放器的视窗版本；韩国除了采用类似于欧盟的救济以外，还要求微软在视窗操作系统中安装辅助软件，以方便用户下载微软竞争对手的软件；在针对微软IE浏览器与视窗的调查中，欧盟迫使微软承诺在视窗操作系统中设置选择屏，以便用户自由选择浏览器。比较而言，欧盟2004年的救济比美国的有力，韩国的救济比欧盟2004年的救济又更进一步，而欧盟2009年迫使微软在视窗中设置选择屏足迄今为止解决软件捆绑最彻底的救济手段。     

The accumulation and transmission of wealth over a long period: example of a rural family from Loire-Atlantique in the 19th and early 20th centuries

This research seeks to trace the transfer of wealth down the male line of a rural French family through the 19th and 20th centuries, and to decipher the logic of accumulating and transferring wealth. The subject will be approached from an angle different from that of Segalen [Ethnol. Fr. 8 (1978) 271], who followed which farmers had cultivated the same farm through two centuries. The itinerary of wealth passing through the six generations examined here was traced using the range of legal documents that mark a person's life: purchases, sales, exchanges, marriage contracts, gifts, and inheritances. Wealth behavioral patterns that are assumed to follow an economic logic are described using neoclassical economic models.     

法律救济的规则选择:财产规则、责任规则与卡梅框架的法律经济学重构

法律经济学上的"卡-梅框架",是从法益保护的效果模式出发,对法律规则做出的一个类型划分。其原初结构是以法益的转移自由和定价意愿为标准划分的"财产规则"、"责任规则"和"禁易规则"。通过引入法益的初始归属和限价方式两个新的划分标准,可以增添"管制规则"和"无为规则"两个新的类型,扩展和重构"卡-梅框架"的救济分类和规则结构。这五类规则构成了法律经济学上可供选择的一个"规则菜单"。一个社会在特定领域的规则选择,对应着国家权力干涉社会生活的不同程度,体现了法律背后的观念变化和权力博弈。对于法律救济规则分类与效率比较的理论研究,有助于深化对中国现行法律的学术理解和制度完善。     

Economic Effects and Spin-offs in a Small Space Economy: The Case of Canada

Canada, through a well-focused space program (telecommunications, earth observation, robotics), has succeeded in developing a space industry largely based on SMEs. The result has been significant economic benefits and technological spin-offs. In this article, the results of two programs, the ESA (European Space Agency) and the STEAR (Strategic Technologies in Automation and Robotics), are compared.The ESA program has generated significant indirect effects and spin-offs for Canadian exports. ESA's reputation and network have enabled SMEs to increase export sales of both space products and other commercial products derived from space technologies. The STEAR program has been highly successful in promoting a new generation of SMEs for space robotics, encouraging both spin-in and spin-offs of technologies. The analysis highlights the complementarity of mission- and diffusion-oriented programs in the technology transfer process.     

Uniform prices for differentiated goods: The case of the movie-theater industry

Since the early 1970s, movie theaters in the United States have employed a pricing model of uniform prices for differentiated goods. At any given theater, one price is charged for all movies, seven days a week, 365 days a year. This pricing model is puzzling in light of the potential profitability of prices that vary with demand characteristics. Another unique aspect of the motion-picture industry is the legal regime that imposes certain constraints on vertical arrangements between distributors and retailers (exhibitors) and attempts to facilitate competitive bidding for films. We explore the justifications for uniform pricing in the industry and show their limitations. We conclude that exhibitors could increase profits by engaging in variable pricing and that they could do so more easily if the legal constraints on vertical arrangements are lifted.     

我国专利侵权损害赔偿额计算方法适用论要

我国专利侵权损害赔偿额计算方法的规定经过了一个变化发展的过程,《专利法》第65条规定了四种损害赔偿额的计算方法。实际损失的确定可采取权利产品销量下降计算法、成本增加计算法、价格腐蚀计算法,侵权所得以侵权产品在市场上销售的总数与每件侵权产品的营业利润或者销售利润之积得出,许可使用费可按固定许可费确定法、惯例确定法、虚拟自愿协商法、分析法计算,适用法定赔偿时应考虑多种因素。     

Government royalties on sales of biomedical products developed with substantial public funding

The Journal of Technology Transfer - This paper proposes a policy of royalties paid to the government on the sales of biomedical products developed with public funds. The proposed policy would...