Ejan Mackaay

• Professor Emeritus at Université de Montréal

Conventional wisdom has it that intellectual property is essential to draw talent and effort into creative endeavour of various kinds. Does intellectual property suitably fulfil this noble mission? Is it indispensable in that role? Over the course of history, a variety of techniques have been deployed with a view to creating such a stimulus: first-...

Posner's book reached Canada (the University of Toronto, Faculty of Law) in 1976 and was carried to Montreal, and into French, in 1978. The challenge there was to bring it into the legal discussion in France, still the dominant sphere for the Civil Code tradition. To assess the book's impact, the article looks first at how the book took a prime spo...

Intellectual property is meant to stimulate creativity by promising creators a right to seek reward for their creative efforts, while ensuring that the ideas thus found circulate as freely as possible. Does it fulfil this mission? Does it do it better than other means of stimulation? Is it indispensable as a means of stimulation? The article provid...

This second edition of Law and Economics for Civil Law Systems substantially updates a unique work that presents the core ideas of law and economics for audiences primarily familiar with civil law systems. It offers a comprehensive look at the essential points of economic reasoning, the Coase Theorem, and legal institutions such as property, extra-...

Amongst the social sciences, it is economics that has made the most promising advances for law. There are several reasons for this: it has a well-developed theoretical framework (microeconomics); it provides currently the most advanced application of the rational choice model, which is one of the elements unifying the social sciences; it has given...

Parmi les sciences sociales, c'est la science économique qui a fait les progrès les plus prometteurs pour le droit. Il y a plusieurs raisons à cela: elle dispose d'un cadre théorique bien développé (micro-économie); elle propose actuellement l'application la plus avancée du modèle de choix rationnel, qui est l'un des éléments unifiant les sciences...

Parmi les sciences sociales, c'est la science économique qui a fait les progrès les plus prometteurs pour le droit. Il y a plusieurs raisons à cela: elle dispose d'un cadre théorique bien développé (micro-économie); elle propose actuellement l'application la plus avancée du modèle de choix rationnel, qui est l'un des éléments unifiant les sciences...

L’analyse économique du droit met au jour, en faisant appel à des concepts empruntés à la science économique, une rationalité sous-jacente des règles juridiques et les principaux effets prévisibles de leur changement. Elle propose une lecture des règles juridiques qui les juge par leurs effets incitatifs et par les changements de comportement des c...

Amongst the social sciences, it is economics that has made the most promising advances for law. There are several reasons for this: it has a well-developed theoretical framework (microeconomics); it provides currently the most advanced application of the rational choice model, which is one of the elements unifying the social sciences; it has given...

One fascinating story in intellectual property (IP) is in the music area over the past half century. Copyright says you may not pass on copies. As the internet took off, it became ever easier to pass on (share) music on the internet. That ended up in Napster (with 80 M users throughout the world being connected). Napster was shut by the American co...

This article delves into the origin and meaning of the famous French saying "Entre le fort et le faible, c'est la liberté qui opprime et la loi qui affranchit" (Between the strong and the weak, it is freedom that oppresses and law that liberates). Résumé Cet article recherche l'origine du dicton « Entre le fort et le faible, c'est la liberté qui op...

Le terme efficience est employé ici au sens qu’il a chez les économistes. C’est l’analyse économique du droit qui a introduit ce terme dans le discours du juriste. L’analyse économique du droit a été découverte un peu par hasard par des économistes s’aventurant hors de leur champ d’études habituel et portant le regard sur des institutions juridique...

As evidence accumulates about the harmful effects Brexit is likely to cause to the British economy, one may wonder what made a majority of Brits vote to leave the EU. Rather than treat it as a fit of ill temper or an unfortunate accident, this paper explores the idea that it should be seen as a populist reaction triggered by the burst of the specul...

One fascinating story in intellectual property (IP) is in the music area over the past half century. Copyright says you may not pass on copies. As the internet took off, it became ever easier to pass on (share) music on the internet. That ended up in Napster (with 80 M users throughout the world being connected). Napster was shut by the American co...

This paper, in French, investigates what is populism and why currently a populist wave is occurring throughout the developed world, even though even 10 years ago nothing seemed to announce it. Populism appears to be a reaction to an economic and social crisis of which one believe oneself to be unfairly victim, without understanding its origin and p...

This paper presents an overview in French, as could be perceived by the mid 1980s, of the Law and Economics movement that arose in the United States in the late 1950s. The movement was initiated by economists like Gary Becker, Ronald Coase and Harold Demsetz, and reached American Law Schools, from 1972 on, with the publication of the Economic Analy...

Class actions aim to bring economies of scale to bear on legal proceedings, by joining cases that have a common cause of action against a common defendant into a single lawsuit leading to a judgment or settlement that binds the entire class. Legal procedures, lawyer time, evidence by experts and court resources are thus all used once for all, rathe...

واژه تورم حقوق، مفهومی کلی است که تمام گستره حقوق را دربرمی‌گیرد، از کثرت قانونگذازی گرفته تا سایر منابع حقوق، و ناظر بر افزایش بی‌رویه و نامتناسب تعداد و حجم قوانین است. فراوانی مقررات همانند تورم پولی، خطر کارکرد معکوس یافتن؛ یعنی كاهش اعتبار آن را به‌همراه دارد. آيا اين پديده يك بيماری خوش خيم است يا از علايم آسيب‌ نظام‌های حقوقی؟ آيا پديده‌اي م...

This paper investigates what is populism and why currently a populist wave is occurring throughout the developed world, though even 10 years ago nothing seemed to announce it. Populism appears to be a reaction to an economic and social crisis of which one believe oneself to be unfairly victim, without understanding its origin and perhaps in relianc...

Class actions aim to bring economies of scale to bear on legal proceedings, by joining cases that have a common cause of action against a common defendant into a single lawsuit leading to a judgment or settlement that binds the entire class. Legal procedures, lawyer time, evidence by experts and court resources are thus all used once for all, rathe...

The questions of how to stimulate development through innovation and how law contributes to this process have a long history, but have been intensively and empirically studied in the last quarter century. Law is seen here not as given once for all and to be applied by forever interpreting its holy scriptures, but as a modifiable institution service...

Review of Kal Raustiala and Christopher Jon Sprigman, The Knockoff Economy: How Imitation Sparks Innovation, Oxford, Oxford University Press, 2012. The fields of creative endeavour reviewed here show that where formal copyright is not available or is not working as well as hoped, industry participants adapt their business model to focus on activiti...

Of various initiatives to reach a better understanding of the law by drawing on neighbouring sciences, law and economics, though a latecomer, is clearly the current front-runner. What law and economics contributes to the law is not insights that replace traditional legal scholarship, but a way to track the social effects of legal rules, as they exi...

Innovation is crucial to economic growth – the essential path for lifting much of the world population out of dire poverty and for maintaining the living standard of those who already have. To stimulate innovation, the legal system has to support the means through which innovators seek to get rewarded for their efforts. Amongst these means, some, s...

Good corporate governance is an enabling factor for the growth, development and success of corporations in this era of globalization and international competition. The corporate scandals of the early 2000s have reinforced the importance of corporate governance; they have stimulated research and experimentation with new modes of corporate governance...

This is the Introduction to a book that explains how law and economics works with civil law concepts. Lawyers and students in Quebec, in Scotland, in continental Europe, in Latin America, in China or living elsewhere under civil law systems who can cope with English do not have to face the additional burden of common law concepts to find out what l...

The economic analysis of law, or law and economics for short, borrows from economics tools that allow one to get a sense of the social effects of legal rules. Besides the coherence of legal rules, one can thus pursue the other component of legal reasoning which asks how a legal rule affects society. This supports the social function of law, which i...

􏰔􏰥􏰥􏰭 􏰔􏰥􏰥􏰭 􏰦􏰧􏰠􏰡􏰽 􏰧􏰳􏰳􏰞􏰧􏰟􏰣 Good faith appears at once as a fundamental concept in all civil law systems, with a long history, and yet as one whose nature and contents are ill-understood and controversial. The paper is an attempt to find out whether the economic analysis of law can shed new light on it and help to clarify it. Good faith is used in two...

Good faith appears at once as a fundamental concept in all civil law systems, with a long history going back to Roman law, and yet as one whose nature and contents are ill-understood and controversial. The paper is an attempt to find out what new light the economic analysis of law can shed on it to help to clarify it.Good faith is used in two disti...

This paper looks at sui generis rights claimed for the protection of folklore. Since rights should not be created in any which way if one is to avoid privileges and rent-seeking, it is important to be clear about design constraints stemming from such rights being species of property rights, adapted to deal with the particular content of information...

Copyright, and indeed all intellectual property, reflects a compromise between the need for reward on creations we see – by reserving them to the creator – and the need to let information freely flow so as to permit further creations to emerge with as few encumbrances as possible. Over the past quarter century or so, all parameters of copyright hav...

This is Book 8, dealing with Transport Law, of the trilingual edition and translation (Dutch to English and French) of the Netherlands Civil Code ("Burgerlijk Wetboek"), as it was published in 1995, now sold out and no longer reprinted. Part I sets out General Provisions, common to all forms of transport; Part II deals with Maritime Law or Admiralt...

Cet article sera publié dans Ghent Encyclopedia of Law and Economics, Gerrit De Geest (General Editor), 2nd edition, Cheltenham, Edward Elgar, 2010.

HackneyJames R.Jr., Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity (Durham, NC: Duke University Press, 2007), pp. xx, 239, $64.10 (hbk), $22.95 (pbk). ISBN-13: 978-0822339984. - Volume 31 Issue 2 - Ejan Mackaay

Research on an expert system regarding unemployment insurance law has pointed to the difficulties of explicitly representing temporal relations. The question has been addressed in the artificial intelligence literature with respect to planning systems and linguistic analysis. The approaches adopted do not appear to be directly transposable to legal...

Présentation à la Annual Law & Economics Conference 2007, Université de Bologne. This article seeks to clarify the economic rationale for the civil law of mandate, corresponding in the common law to the law of agency, but restricted to acts of legal representation by the agent. Earlier literature suggested that it can be explained as an attempt to...

La tradition civiliste se voit souvent reprocher une certaine sclérose résultant d’un nationalisme qui cherche trop à se mettre à l’abri d’idées venues d’ailleurs. Un code civil européen peut-il provoquer le renouveau ? Il importe d’en explorer les conditions, qui tiennent, d’une part, au caractère (con)fédéral de l’Union européenne et, d’autre par...

L’introduction éventuelle, au Québec, de la force exécutoire pour les actes notariés soulève, du point de vue économique, deux questions. La première porte sur les effets prévisibles de cette mesure, notamment sur le marché des services juridiques de rédaction d’actes. Du côté de l’offre, il convient de distinguer selon que l’acte notarié est oblig...

This an overview of philosophical, economic and historical considerations guiding the emergence of legal rules, their being written down and the complications that result therefrom.

Constitutional rights are puzzling in that powerholders are likely to create rights favoring themselves or those on whom they rely to remain in power. Rights granted to all citizens alike, limiting the exercise of power, would appear anomalous. One can articulate a set of circumstances which must be present for constitutional rights to be formulate...

This paper investigates the relevance of the logical study of argumentation systems for AI-and-law research, in particular for modelling the adversarial aspect of legal reasoning. It does so in applying the argumentation framework of Prakken (1993a/b) ...

Game theory, rallying point of the social sciences, has corne to the law over the last fifteen years. Its first focus has been the nature of spontaneous orders among individuals, that is the conditions under which individuals will find it profitable to co-operate, much as they are aware of the possibility of exploiting one another. Besides this fir...

Mackaay Ejan. Les notions floues en droit ou l'economie de l'imprecision. In: Langages, 12ᵉ annee, n°53, 1979. Le discours juridique : analyse et methode, sous la direction de Daniele Bourcier . pp. 33-50.