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Articles 61 - 90 of 360
Full-Text Articles in Law
The $1.75 Trillion Lie, Lisa Heinzerling, Frank Ackerman
The $1.75 Trillion Lie, Lisa Heinzerling, Frank Ackerman
Michigan Journal of Environmental & Administrative Law
A 2010 study commissioned by the Office of Advocacy of the U.S. Small Business Administration claims that federal regulations impose annual economic costs of $1.75 trillion. This estimate has been widely circulated, in everything from op-ed pages to Congressional testimony. But the estimate is not credible. For costs of economic regulations, the estimate reflects a calculation that rests on a misunderstanding of the definition of the relevant data, flunks an elementary question on the normal distribution, pads the analysis with several years of near-identical data, and fails to recognize the difference between correlation and causation. For costs of environmental regulation, …
The Dog That Didn't Bark: Private Investment Funds And Relational Contracts In The Wake Of The Great Recession, Robert C. Illig
The Dog That Didn't Bark: Private Investment Funds And Relational Contracts In The Wake Of The Great Recession, Robert C. Illig
Michigan Business & Entrepreneurial Law Review
In the aftermath of the subprime mortgage crisis, the contract rights of numerous hedge funds and venture capital funds were breached. These contracts were complex and sophisticated and had been negotiated at great time and expense. Yet despite all of the assumptions of neo-classical contracts theory, nothing happened. Practically none of these injured parties sued to enforce their rights. Professor Illig uses this dearth of litigation to conduct a form of natural experiment as to the value of contract law. Discrete market participants contracted before the crash and then pursued their rights in court afterwards, while relational market participants contracted …
Climate Justice, Daniel A. Farber
Climate Justice, Daniel A. Farber
Michigan Law Review
Eric Posner and David Weisbach take the threat of climate change seriously. Their book Climate Change Justice offers policy prescriptions that deserve serious attention. While the authors adopt the framework of conventional welfare economics, they show a willingness to engage with noneconomic perspectives, which softens their conclusions. Although they are right to see a risk that overly aggressive ethical claims could derail international agreement on restricting greenhouse gases, their analysis makes climate justice too marginal to climate policy. The developed world does have a special responsibility for the current climate problem, and we should be willing both to agree to …
Plus Factors And Agreement In Antitrust Law, William E. Kovacic, Robert C. Marshall, Leslie M. Marx, Halbert L. White
Plus Factors And Agreement In Antitrust Law, William E. Kovacic, Robert C. Marshall, Leslie M. Marx, Halbert L. White
Michigan Law Review
Plus factors are economic actions and outcomes, above and beyond parallel conduct by oligopolistic firms, that are largely inconsistent with unilateral conduct but largely consistent with explicitly coordinated action. Possible plus factors are typically enumerated without any attempt to distinguish them in terms of a meaningful economic categorization or in terms of their probative strength for inferring collusion. In this Article, we provide a taxonomy for plus factors as well as a methodology for ranking plus factors in terms of their strength for inferring explicit collusion, the strongest of which are referred to as "super plus factors."
Efficient Breach Of International Law: Optimal Remedies, 'Legalized Noncompliance,' And Related Issues, Eric A. Posner, Alan O. Sykes
Efficient Breach Of International Law: Optimal Remedies, 'Legalized Noncompliance,' And Related Issues, Eric A. Posner, Alan O. Sykes
Michigan Law Review
In much of the scholarly literature on international law, there is a tendency to condemn violations of the law and to leave it at that. If all violations of international law were indeed undesirable, this tendency would be unobjectionable. We argue in this Article, however that a variety of circumstances arise under which violations of international law are desirable from an economic standpoint. The reasons why are much the same as the reasons why nonperformance of private contracts is sometimes desirable- the concept of "efficient breach," familiar to modern students of contract law, has direct applicability to international law. As …
Explaining The Importance Of Public Choice For Law, D. Daniel Sokol
Explaining The Importance Of Public Choice For Law, D. Daniel Sokol
Michigan Law Review
The next generation of government officials, business leaders, and members of civil society likely will draw from the current pool of law school students. These students often lack a foundation of the theoretical and analytical tools necessary to understand law's interplay with government. This highlights the importance of public choice analysis. By framing issues through a public choice lens, these students will learn the dynamics of effective decision making within various institutional settings. Filling the void of how to explain the decision-making process of institutional actors in legal settings is Public Choice Concepts and Applications in Law by Maxwell Steams …
Nudge, Choice Architecture, And Libertarian Paternalism, Pierre Schlag
Nudge, Choice Architecture, And Libertarian Paternalism, Pierre Schlag
Michigan Law Review
By all external appearances, Nudge is a single book-two covers, a single spine, one title. But put these deceptive appearances aside, read the thing, and you will actually find two books-Book One and Book Two. Book One begins with the behavioral economist's view that sometimes individuals are not the best judges of their own welfare. Indeed, given the propensity of human beings for cognitive errors (e.g., the availability bias) and the complexity of decisions that need to be made (e.g., choosing prescription plans), individuals often make mistakes. Enter here the idea of the nudge-the deliberate effort to channel people into …
Aldous Huxley's Brave New World - Still A Chilling Vision After All These Years, Bob Barr
Aldous Huxley's Brave New World - Still A Chilling Vision After All These Years, Bob Barr
Michigan Law Review
In Part I of this Review, I provide an overview of Brave New World and place it in its proper historical context. In Part II, I explore the parallels between Huxley's World State and post-9/11 America. In Part III, I argue that Brave New World provides prescient warning signs about the dangers of excessive government interference in the economy-warning signs that are of particular importance in the face of the recent economic crisis.
Our Not-So-Great Depression, Craig Green
Our Not-So-Great Depression, Craig Green
Michigan Law Review
A Failure of Capitalism by Richard Posner is not a great book, and it does not pretend to be one. Posner summarizes the economic crisis of 2008-09 and considers proposals to reduce current suffering and avoid future recurrence (p. xvi). But when the book's final edits were made in February 2009, it was still too soon for authoritative solutions or full accounts of what had happened. Instead, Posner wrote a conspicuously contemporary-and thus incomplete-description of the crisis as it looked to him at the time (p. xvii). Now one year later, readers may need a reminder about the value of …
Do Liquidated Damages Encourage Breach? A Psychological Experiment, Tess Wilkinson-Ryan
Do Liquidated Damages Encourage Breach? A Psychological Experiment, Tess Wilkinson-Ryan
Michigan Law Review
This Article offers experimental evidence that parties are more willing to exploit efficient-breach opportunities when the contract in question includes a liquidated-damages clause. Economists claim that the theory of efficient breach allows us to predict when parties will choose to breach a contract if the legal remedy for breach is expectation damages. However, the economic assumption of rational wealth-maximizing actors fails to capture important, shared, nonmonetary values and incentives that shape behavior in predictable ways. When interpersonal obligations are informal or underspecified, people act in accordance with shared community norms, like the moral norm of keeping promises. However, when sanctions …
Private Production Of Public Goods: Liability For Unrequested Benefits, Ariel Porat
Private Production Of Public Goods: Liability For Unrequested Benefits, Ariel Porat
Michigan Law Review
This Article explores why the law treats negative externalities (harms) and positive externalities (benefits) differently. Ideally, from an economic perspective, both negative and positive externalities should be internalized by those who produce them, for with full internalization, injurers and benefactors alike would behave efficiently. In actuality, however, whereas the law requires that injurers bear the harms they create (or wrongfully create), benefactors are seldom entitled to recover for benefits they voluntarily confer on recipients without the latter's consent ( "unrequested benefits"). One aim of this Article is to explore the puzzle of the law's differing treatment of negative and positive …
The Fault Principle As The Chameleon Of Contract Law: A Market Function Approach, Stefan Grundmann
The Fault Principle As The Chameleon Of Contract Law: A Market Function Approach, Stefan Grundmann
Michigan Law Review
This Article begins with a comparative law survey showing that all legal systems do not opt exclusively for fault liability or strict liability in contract law, but often adopt a more nuanced approach. This approach includes intermediate solutions such as reversing the burden of proof, using a market ("objective") standard of care, distinguishing between different types of contracts, and providing a "second chance" to breaching parties. Taking this starting point seriously and arguing that it is highly unlikely that all legal systems err, this Article argues that the core question is how and when each liability regime should prevail or …
Has Corporate Law Failed? Addressing Proposals For Reform, Antony Page
Has Corporate Law Failed? Addressing Proposals For Reform, Antony Page
Michigan Law Review
Part I of this Review discusses the modem "nexus of contracts" approach to corporations and highlights how Greenfield's views differ. Part II examines corporate goals and purposes, suggesting that Greenfield overstates the impact of the shareholder-primacy norm and does not offer a preferable alternative. Part III critiques the means to the ends--Greenfield's proposals for changing the mechanics of corporate governance. Although several of his proposals are intriguing, they seem unlikely to achieve their pro-social aims. This Review remains skeptical, in part because-even given its problems-the U.S. "director-centric governance structure has created the most successful economy the world has ever seen." …
The Chinese Regulatory Licensing Regime For Pharmaceutical Products: A Law And Economics Analysis, Qing Zhang
The Chinese Regulatory Licensing Regime For Pharmaceutical Products: A Law And Economics Analysis, Qing Zhang
Michigan Telecommunications & Technology Law Review
China's pharmaceutical market has expanded dramatically in the past twenty years and is expected to become the largest in the world by the year 2050. However, entry to the market remains difficult for many international pharmaceutical manufacturers due to the country's costly and complicated regulatory licensing requirements. This Article provides an overview of the regulatory licensing regime for pharmaceutical products in China. Then, the Article evaluates three key features of the regulatory licensing regime through a law and economics approach. These features include the use of licensing, as contrasted with alternative regulatory and non-regulatory mechanisms; the standards to be met …
Insufficient Activity And Tort Liability: A Rejoinder, David Gilo, Ehud Guttel
Insufficient Activity And Tort Liability: A Rejoinder, David Gilo, Ehud Guttel
Michigan Law Review First Impressions
In our article, Negligence and Insufficient Activity, we proposed that tort scholarship has overlooked the risk that injurers will behave strategically in setting their activity levels. Whereas the standard literature has predicted that injurers who are subject to a negligence regime will often invest efficiently in care but choose excessive activity levels, we showed that they may do exactly the opposite: injurers may deliberately restrict their activity to avoid investments in socially desirable precaution. After reviewing the conditions that may give rise to the risk of insufficient activity, we examined the ways in which the legal system can minimize the …
Activity Levels Under The Hand Formula: A Comment On Gilo And Guttel, Richard A. Epstein
Activity Levels Under The Hand Formula: A Comment On Gilo And Guttel, Richard A. Epstein
Michigan Law Review First Impressions
A response to David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108 Mich. L. Rev. 277 (2009). Within the law and economics field, there often surfaces a near hypnotic attraction to the Hand formula as the one and only tool that drives tort law toward economic efficiency. Hand's intuition was, of course, that the test for efficiency requires a balancing of three variables. The burden of taking particular precautions is compared to the expected loss from some activity, which in turn consists of the likelihood of some particular harm multiplied by its anticipated severity. …
Another Theory Of Insufficient Activity Levels, Mark Grady
Another Theory Of Insufficient Activity Levels, Mark Grady
Michigan Law Review First Impressions
A response to David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108 Mich L. Rev. 277 (2009). Professors David Gilo and Ehud Guttel have written an important article on the tendency of the negligence rule to produce inefficiently low activity levels. In Negligence and Insufficient Activity: The Missing Paradigm in Torts, the authors claim insufficient activity to be the "missing paradigm" in tort theory. Although I agree with Gilo and Guttel that this missing paradigm is central to negligence doctrine, I disagree with them about how insufficient activity levels arise.
Insufficient Analysis Of Insufficient Activity, Kenneth S. Abraham
Insufficient Analysis Of Insufficient Activity, Kenneth S. Abraham
Michigan Law Review First Impressions
A response to David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108 Mich L. Rev. 277 (2009). In Negligence and Insufficient Activity: The Missing Paradigm in Torts, David Gilo and Ehud Guttel argue that negligence law encourages inefficiently high and low levels of activity because negligence law ordinarily does not take activity levels into account. They suggest that the law should impose liability for failing to take safety precautions-even where precautions would not be cost-justified-whenever the threat of this liability negates the incentive for an actor to choose an insufficient level of activity. Until …
Dilution Of Liability And Multiple Tortfeasors In The Context Of Liability For Unrequested Precautions, Assaf Jacob
Dilution Of Liability And Multiple Tortfeasors In The Context Of Liability For Unrequested Precautions, Assaf Jacob
Michigan Law Review First Impressions
A Response to Ariel Porat, Private Production of Public Goods: Liability for Unrequested Benefits, 108 Mich. L. Rev. (2009). One of the more intriguing questions in tort law is the case of joint and several tortfeasors and the dilution-of-liability puzzle. When harm materializes and there are multiple potential tortfeasors, the law tends to limit the number of joint tortfeasors, focusing the final burden on a small number of actors. This limitation is achieved by several legal mechanisms, such as a no duty rule, a narrow interpretation of negligence, a restrictive implementation of the causal link (be it the but for …
Uncertainty Revisited: Legal Prediction And Legal Postdiction, Ehud Guttel, Alon Harel
Uncertainty Revisited: Legal Prediction And Legal Postdiction, Ehud Guttel, Alon Harel
Michigan Law Review
Legal scholarship, following rational-choice theory, has traditionally treated uncertainty as a single category. A large body of experimental studies, however, has established that individuals treat guesses concerning the future differently than guesses concerning the past. Even where objective probabilities and payoffs are identical, individuals are much more willing to predict a future event (and are more confident in the accuracy of their predictions) than they are willing to postdict a past event (and are also less confident in the accuracy of their postdiction). For example, individuals are more willing to bet on the results of a future die toss than …
Optimal Political Control Of The Bureaucracy, Matthew C. Stephenson
Optimal Political Control Of The Bureaucracy, Matthew C. Stephenson
Michigan Law Review
It is widely believed that insulating an administrative agency from the influence of elected officials, whatever its other benefits orjustifications, reduces the agency's responsiveness to the preferences of political majorities. This Article argues, to the contrary, that a moderate degree of bureaucratic insulation from political control alleviates rather than exacerbates the countermajoritarian problems inherent in bureaucratic policymaking. An elected politician, though responsive to majoritarian preferences, will almost always deviate from the majority in one direction or the other Therefore, even if the average policy position of a given elected official tends to track the policy views of the median voter …
Property Rules, Liability Rules, And Uncertainty About Property Rights, Stewart E. Sterk
Property Rules, Liability Rules, And Uncertainty About Property Rights, Stewart E. Sterk
Michigan Law Review
Clarity can be a considerable virtue in property rights. But even when property rights are defined clearly in the abstract, ascertaining the scope of those rights in concrete situations often entails significant cost. In some instances, the cost of acquiring information about the scope of property rights will exceed the social value of that information. In those circumstances, further search for information about the scope of rights is inefficient; the social harm avoided by further search does not justify the costs of the search. Potential resource users, however make decisions based on private costs and benefits, not social costs and …
Rational Choice, Reputation, And Human Rights Treaties, Alex Geisinger, Michael Ashley Stein
Rational Choice, Reputation, And Human Rights Treaties, Alex Geisinger, Michael Ashley Stein
Michigan Law Review
Part I of this Review sets forth Guzman's general theory of international law with specific consideration of the way reputation influences state behavior. Part II then tests Guzman's overarching thesis by applying it to human rights treaties and concludes that explaining states' entry into human rights treaties requires a broader conception of reputation than Rational Choice allows.
Federal Fairness To State Taxpayers: Irrationality, Unfunded Mandates, And The "Salt" Deduction, Brian Galle
Federal Fairness To State Taxpayers: Irrationality, Unfunded Mandates, And The "Salt" Deduction, Brian Galle
Michigan Law Review
By sheer dollars alone, the largest impact of the Alternative Minimum Tax is to deny many taxpayers the deduction for the taxes they paid to their state and local governments under § 164 of the Internal Revenue Code. This Article provides a fine-grained analysis of the overall fairness of the state-andlocal- tax deduction--and, by implication, the fairness of its partial repeal through the Alternative Minimum Tax. I offer for the first time a close examination of how newly understood limits on taxpayer mobility and rationality might affect individuals' choices of bundles of local taxes and localgovernment services, which in turn …
E-Contract Doctrine 2.0: Standard Form Contracting In The Age Of Online User Participation , Shmuel I. Becher, Tal Z. Zarsky
E-Contract Doctrine 2.0: Standard Form Contracting In The Age Of Online User Participation , Shmuel I. Becher, Tal Z. Zarsky
Michigan Telecommunications & Technology Law Review
The growing popularity of e-commerce transactions revives the perennial question of consumer contract law: should non-salient provisions of consumer standard form contracts be enforced? With the focus presently on an ex-ante analysis, scholars debate whether consumers can and should read standardized terms at the time of contracting. In today's information age, such a focus might be misguided. The online realm furnishes various tools, so-called "Web 2.0" applications, which encourage the flow of information from experienced to prospective consumers. This Article, therefore, reframes the analysis of online consumer contracts while taking into account this new flow of information. In doing so, …
The Debt Dilemma, Katherine Porter
The Debt Dilemma, Katherine Porter
Michigan Law Review
Part I describes the nature of credit card spending and explores the usefulness of Mann's comparative approach to studying credit cards. Part II evaluates Mann's findings on the overall relationships between individual credit card transactions and aggregate levels of spending, borrowing, and bankruptcy. It also briefly analyzes the relationship between his findings and policy recommendations. Part III explores data on families who refrain from credit card use and struggle with serious financial distress. Part IV revisits Mann's policy recommendations in light of this new data. I conclude that implementing credit card reform would offer families only partial, albeit valuable, protection …
The Moral Hazard Problem With Privatization Of Public Enforcement: The Case Of Pharmaceutical Fraud, Dayna Bowen Matthew
The Moral Hazard Problem With Privatization Of Public Enforcement: The Case Of Pharmaceutical Fraud, Dayna Bowen Matthew
University of Michigan Journal of Law Reform
This Article takes a law and economics approach to exploring some of the costs that arise when governments rely on private enforcement to accomplish the goals of public law. The analysis focuses on qui tam enforcement under the Civil False Claims Act, because a remarkable body of empirical data demonstrates the expansive role private qui tam relators are playing in enforcing Medicare and Medicaid fraud and abuse laws. The Article further focuses on the application of these laws to the pharmaceutical industry. This focus is enlightening because the Government, as well as private enforcers, have recently targeted this industry so …
Suburbs As Exit, Suburbs As Entrance, Nicole Stelle Garnett
Suburbs As Exit, Suburbs As Entrance, Nicole Stelle Garnett
Michigan Law Review
Most academics assume that suburbanites are "exiters " who have abandoned central cities. The exit story is a foundational one in the fields of land-use and local-government law: exiters' historical, social, and economic connections with "their" center cities are frequently used to justify both growth controls and regional government. The exit story, however no longer captures the American suburban experience. For a majority of Americans, suburbs have become points of entrance to, not exit from, urban life. Most suburbanites are "enterers "-people who were born in, or migrated directly to, suburbs and who have not spent time living in any …
Offsetting Risks, Ariel Porat
Offsetting Risks, Ariel Porat
Michigan Law Review
Under prevailing tort law, an injurer who must choose between Course of Action A, which creates a risk of 500 (there is a probability of .1 that a harm of 5000 will result), and Course of Action B, which creates a risk of 400 (there is a probability of.] that a harm of 4000 will result), and who negligently opts for the former will be held liable for the entire harm of 5000 that materializes. This full liability forces the injurer to pay damages that are five times higher than would be necessary to internalize the risk of 100 that …
Trolling For Trolls: The Pitfalls Of The Emerging Market Competition Requirement For Permanent Injunctions In Patent Cases Post-Ebay, Benjamin H. Diessel
Trolling For Trolls: The Pitfalls Of The Emerging Market Competition Requirement For Permanent Injunctions In Patent Cases Post-Ebay, Benjamin H. Diessel
Michigan Law Review
In eBay v. MercExchange, a unanimous Supreme Court announced that a new four-factor test should be employed by district courts in determining whether to award an injunction or damages to an aggrieved party whose intellectual property has been infringed. In the context of permanent injunctions in patent cases, district courts have distorted the four-factor test resulting in a "market competition requirement." Under the new market competition requirement, success at obtaining an injunction is contingent upon a party demonstrating that it is a market competitor After consistent application in the first twenty-five district court cases post-eBay, the market competition requirement …