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Karen Hulme

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Donald J. Boudreaux

Austrian economics identifies three reasons, any one of which invalidates antitrust as a mechanism for ensuring competition. The first is the political economy realization that antitrust cannot be administered without political cronyism, which will blunt its effectiveness. The second is the problem of knowledge; no antitrust judge or regulator can know all the relevant facts for rendering a decision that improves the operation of markets. Either of these is fatal to the arguments for antitrust. This chapter will focus on the third objection: antitrust is premised on a flawed, static model of competition. By not recognizing that competition is a dynamic process involving innovation, antitrust actually thwarts competition, achieving the opposite of its intended effect.

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Argumentative strategies

The Emergence of the Business and Human Rights Regime as Transnational Law

Karin Buhmann

Chapter 6 compares and synthesises the insights of the five case studies discussed in Chapters 4 and 5, having regard to argumentative strategies and their influence on the output of each of the regulatory processes and the outcome in terms of formal acceptance of the output. The chapter observes that the significance of communicating in the system-specific logic of the audience does not mean that all must work according to the logic of the market. Rather, deploying the economic system is the key to making companies internalise the needs and expectations of society, and therefore stimulate their consideration of societal needs. The chapter identifies three trends in argumentative strategies and considers the use, impact and complementarity of these: system specific interest-based arguments; stabilising and de-stabilising arguments, and specificity of proposals for change. It ends by considering the role of the case studies for the discursive construction of business responsibilities for human rights and the emergence of the BHR regime.

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Argumentative strategies, discourse and system-specific rationality

The Emergence of the Business and Human Rights Regime as Transnational Law

Karin Buhmann

Chapter 3 explains the communicative aspects of the theoretical framework of reflexive law and discourse theory and the significance for the evolution of normativity in multi-stakeholder processes. The chapter elaborates on communication related to the core rationality of a recipient and its functions. It explains how organisational self-regulation or acceptance of normative change may be prompted by stakeholders communicatively activating the core interest of the organisation with which change is desired. It elaborates on the connection between discourse theory and communication in multi-stakeholder regulation, with an emphasis on how struggles for power unfold around defining concepts such as CSR or business responsibilities for human rights. Finally, the chapter explains how stabilising and de-stabilising arguments may complement or reinforce the effects of arguments made in system-specific logics.

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Peter G. Klein and Thomas A. Lambert

This chapter applies Austrian insights relevant to analysis of American business law. Modern corporation and partnership law, perhaps surprisingly, largely coheres with an Austrian theory of the firm, although recent regulations affecting corporate conduct and securities offerings, enacted in the wake of financial scandals, undermine these principles. On the other hand, antitrust law operates under a static view of markets that is inconsistent with Austrian principles, although recent antitrust decisions have been more consistent. We set forth aspects of Austrian thought most relevant to an analysis of American business law. We have shown that this rich body of thought that has proven so useful in analyses of institutions (e.g., the Socialist Calculation debate) and monetary and fiscal policies (e.g., Austrian business cycle theory) has much to offer in the economic analysis of specific legal rules.

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Michael E. DeBow

This chapter provides a history of the expanding domain of tort law in the United States, with a particular focus on the spread of the concept of strict liability and a consonant erosion of contractual liability in favor of torts. It then surveys differing Austrian viewpoints on the moral standard underlying torts, the merits of the common law, intentional and unintentional torts, and product liability. It concludes that Austrian scholars who are comfortable with the normative standard of “individual freedom from domination” should conduct research countering the case for the ever-growing expansion of tort law.

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Todd J. Zywicki and Edward P. Stringham

Is the common law efficient? Neoclassical economists debate whether our inherited systems of judge-made law maximize wealth whereas Austrian economists typically adopt much different standards. The chapter reviews neoclassical and Austrian arguments about efficiency in the common law. After presenting Hayek’s views on the common law as a spontaneous order it concludes that the common law can indeed be viewed as a spontaneous order only when judges provide their services in a free and competitive system.

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Todd J. Zywicki and Shruti Rajagopalan

In this chapter we provide an explanation for why the Chapter 11 reorganization process cannot accurately value and reorganize an insolvent firm. Due to the information and incentive vacuum of the reorganization process, Chapter 11 places the bankruptcy judge in the same institutional setting as a central planner. Therefore, the bankruptcy judge is given the impossible task of economic calculation without the relevant market data to calculate the same. Given the inability to make market allocations, Chapter 11 allocations are prone to rent-seeking and interest group capture.

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Carbon leakage and industry assistance

The Subsidisation of Heavy Polluters under Emissions Trading Schemes

Elena de Lemos Pinto Aydos

Chapter 2 discusses the theory of carbon leakage and competitiveness concerns in relation to emissions-intensive and trade-exposed sectors participating in ETSs. Two measures are often considered as alternatives to avoid competitiveness issues and carbon leakage from the implementation of ETSs, that is, border carbon adjustments (BCA) and the free of cost allocation of permits. While BCAs are not very popular, it is possible that, due to the adoption of free allocation of permits, carbon-pricing schemes have been failing to implement the polluter pays principle. Keywords: emissions trading – carbon leakage – free allocation – polluter pays principle

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Case studies of cross-border insider trading and market manipulation

Investigating and Prosecuting Across Borders

Janet Austin

The cases of cross-border insider trading and market manipulation that have been pursued by securities regulators over the last 10 years fall within a number of broad categories. This chapter details some of the leading cases pursued by securities regulators in relation to each of these categories. In doing so, this reveals some of highly innovative ways in which securities regulators are detecting and investigating cross-border market abuse. It also demonstrates some of the significant challenges which securities regulators face going forward in their struggle to keep the markets free of market abuse.