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Promoting Innovation and Growth Through Legal Reform Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2011 Rules for Growth: Promoting Innovation and Growth Through Legal Reform Robert E. Litan [email protected] Yochai Benkler Harvard University, [email protected] Henry N. Butler [email protected] John Henry Clippinger [email protected] Robert Cook-Deegan FSeeollow next this page and for additional additional works authors at: https:/ /scholarship.law.columbia.edu/faculty_scholarship Part of the Business Organizations Law Commons, and the Intellectual Property Law Commons Recommended Citation Robert E. Litan, Yochai Benkler, Henry N. Butler, John H. Clippinger, Robert Cook-Deegan, Robert Cooter, Aaron Edlin, Nicole Garnett, Ronald J. Gilson, Oliver Goodenough, Gillian Hadfield, Mark Lemley, Frank Partnoy, George Priest, Larry E. Ribstein, Charles F. Sabel, Peter Schuck, Hal Scott, Robert E. Scott, Alex Stein, Victoria Stodden, John E. Tyler, Alan D. Viard & Benjamin Wittes, Rules for Growth: Promoting Innovation and Growth Through Legal Reform, YALE LAW & ECONOMICS RESEARCH PAPER NO. 426; STANFORD LAW & ECONOMICS OLIN WORKING PAPER NO. 410; UC BERKELEY PUBLIC LAW RESEARCH PAPER NO. 1757982 (2011). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1677 This Working Paper is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. Authors Robert E. Litan, Yochai Benkler, Henry N. Butler, John Henry Clippinger, Robert Cook-Deegan, Robert Cooter, Aaron Edlin, Nicole Garnett, Ronald J. Gilson, Oliver Goodenough, Gillian Hadfield, Mark Lemley, Frank Partnoy, George Priest, Larry E. Ribstein, Charles F. Sabel, Peter Schuck, Hal Scott, Robert E. Scott, Alex Stein, Victoria Stodden, John E. Tyler, Alan D. Viard, and Benjamin Wittes This working paper is available at Scholarship Archive: https://scholarship.law.columbia.edu/faculty_scholarship/ 1677 Electronic copy available at: http://ssrn.com/abstract=1757982 Promoting Innovation and Growth Through Legal Reform Electronic copy available at: http://ssrn.com/abstract=1757982 Copyright © 2011 by Ewing Marion Kauffman Foundation. All rights reserved. This book may not be used or reproduced for sale, in whole or in part, including illustrations, without written permission from the publisher, except in the case of cited brief quotations embodied in critical articles and reviews. Published by Ewing Marion Kauffman Foundation 4801 Rockhill Road Kansas City, Missouri 64110 Printed and bound in the United States of America. Library of Congress Cataloging-in-Publication Data 2010941516 ISBN 978-0-9831775-0-0 (hardcover) Electronic copy available at: http://ssrn.com/abstract=1757982 Promoting Innovation and Growth Through Legal Reform The Kauffman Task Force on Law, Innovation, and Growth Kansas City, Missouri Contents Preface. vii Task Force Members . xi 1 The Importance of Law in Promoting Innovation and Growth (Cooter, Edlin, Litan, and Priest) . 1 2 Producing Law for Innovation (Hadfield). 23 3 Universities and Economic Growth: The Importance of Academic Entrepreneurship (Litan and Cook-Deegan) . 55 4 U.S. Policy Regarding Highly Skilled Immigrants: Change Whose Time Has Come (Tyler with input from Schuck) . 83 5 How to Improve Five Important Areas of Financial Regulation (Scott) . 113 6 How Financial Regulation Might Harness the Power of Markets (Partnoy) . 155 7 Tax Policy and Growth (Viard) . 179 8 Advancing Antitrust Law to Promote Innovation and Economic Growth (Priest). 209 9 Contract, Uncertainty, and Innovation (Gilson, Sabel, and Scott) . 223 10 Torts, Innovation, and Growth (Parchomovsky and Stein) . 257 11 The Effects of Modern Tort Law on Innovation and Economic Growth (Priest) . 273 v RULES FOR GROWTH 12 Land Use Regulation, Innovation, and Growth (Garnett) . 287 13 Growth-Oriented Law for the Networked Information Economy: Emphasizing Freedom to Operate Over Power to Appropriate (Benkler) . 313 14 Digital Firm Formation (Goodenough) . 343 15 Can the Patent Office Be Fixed? (Lemley) . 367 16 Digital Innovation in Governance: New Rules for Sharing and Protecting Private Information (Clippinger) . 381 17 Innovation and Growth through Open Access to Scientific Research: Three Ideas for High-Impact Rule Changes (Stodden). 409 18 Innovating Our Way to Disasters? Incentivizing Secure Platforms for Growth’s Future (Wittes) . 433 19 Legal Process and the Discovery of Better Policies for Fostering Innovation and Growth (Butler and Ribstein) . 463 20 The Political Economy of Reform: Some Concluding Thoughts (Litan) . 487 vi Preface hree years ago the Kauffman Foundation began fund- ing legal scholars and economists to study, research, T and write about the way in which the legal system—the contents of specific laws, judicial doctrines, and regulation, as well as the legal processes—affects innovation and growth. This was both a familiar and novel undertaking for many of the scholars involved. It was familiar because for the past several decades, an increasing number of scholars had already been investigating the way in which the law affects economic efficiency, in the sense of improving or adversely affecting the production of goods and services using existing inputs of labor, capital, and ideas. But the initiative also was novel in that it asked the scholars to move beyond the “static” analysis of the extant “law and economics” literature and begin to investigate how the law was affecting what economists call “dynamic efficiency,” or the maximum rate at which the production of goods and services can grow with the right institutions and policies in place. Our Foundation has a special interest in economic growth because our founder, Ewing Marion Kauffman, strongly believed that entrepreneurs were the key to innovation and growth, and that only growth would advance living stan- dards. For many years, we have funded a wide range of researchers concentrating on entrepreneurship and innova- tion to better understand the growth process. The Foundation’s “Law, Innovation, and Growth” initiative rep- resents what we believe is an important extension of vii RULES FOR GROWTH research aimed not only at understanding the linkages between innovation and growth, but how the law and the legal system affect those linkages, and perhaps, most impor- tantly, what changes in the law would be most likely to accelerate growth. Each summer, as part of the Foundation’s initiative, we have convened many of our funded scholars to discuss their ongoing research and how the emerging field of law, innovation, and growth might be best advanced. The third meeting of this annual “Kauffman Summer Legal Institute” was held in July 2010 and formalized these discussions by convening the participants—all well-acknowledged experts in their fields—to present specific proposals for changes in a particular area of the law that, in the author’s view, would advance economy-wide innovation and growth. This vol- ume is the product of the work presented at this meeting. It could not be presented at a more important time in this nation’s history. As I write this, the U.S. economy is slowly recovering from the worst recession since the Great Depression. Conventional macroeconomic stimulus meas- ures—more government spending, tax cuts, and monetary easing—have been applied to an extraordinary degree. It is not likely, and in the view of many, not advisable, that much more stimulus will or should be provided. And yet the consensus view seems to be that the U.S. economy, nonetheless, will continue to recover slowly for many years, consigning millions of Americans to unemployment, fear of becoming unemployed, and for those employed, rel- atively slow annual advances in their compensation. This is not the kind of economy that we should accept. All economies have rules and institutions that govern the behavior of their actors. The rules that govern the U.S. econ- omy so far have helped guide unprecedented growth and well-being; nonetheless, they could be improved so that our economy can perform even better in the years ahead. This viii PREFACE volume provides a roadmap for key policymakers in the legislative, executive, and judicial branches to accomplish that objective without any additional spending of taxpayer monies or adding to any government deficit. The volume also has another important, though narrower, objective, and that is to help redirect and expand the “law and economics” field to refocus on the connections between the law and growth. Given the wealth of experience and prestige of the authors in this volume, we are hopeful that this second purpose will quickly be achieved. Finally, I want to thank Robert Litan, Kauffman’s vice pres- ident of Research and Policy, whose energy and continuing intellectual leadership has made the “Law, Innovation, and Growth” initiative and this particular volume possible. Ialso want to thank Glory Olsonfor her great work in organizing the summer conference and monitoring the edit- ing of this book; Lacey Graverson, Sarah Gowen, and Matt Rees for the editing itself; Melody Dellinger for designing the book cover; and Barbara Pruitt for managing the publi- cation process. Carl J. Schramm President and Chief Executive Officer Ewing Marion Kauffman Foundation January 2011 ix Task Force Members Robert E. Litan (Task Force Organizer), Ewing Marion Kauffman
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