Open Access. Powered by Scholars. Published by Universities.®
Articles 31 - 60 of 209
Full-Text Articles in Law
Demystifying The Right To Exclude: Of Property, Inviolability, And Automatic Injunctions, Shyam Balganesh
Demystifying The Right To Exclude: Of Property, Inviolability, And Automatic Injunctions, Shyam Balganesh
Public Law and Legal Theory Working Papers
The right to exclude has for long been considered a central component of property. In focusing on the element of exclusion, courts and scholars have paid little attention to what it means for an owner to have a 'right' to exclude and the forms in which this right might manifest itself in actual property practice. For some time now, the right to exclude has come to be understood as nothing but an entitlement to injunctive relief —that whenever an owner successfully establishes title and an interference with the same, an injunction will automatically follow. This view attributes to the right …
The Complex Climate Change Incentives Of China And The United States, Cass R. Sunstein
The Complex Climate Change Incentives Of China And The United States, Cass R. Sunstein
Coase-Sandor Working Paper Series in Law and Economics
It is increasingly clear that the world would be better off with an international agreement to control greenhouse gas emissions. What remains poorly understood is that the likely costs and benefits of emissions controls are highly variable across nations. Most important, prominent projection suggest that the world’s leading emitters--the United States and China—have weak incentives to participate in an agreement that would be optimal from the standpoint of the world. The first problem is that any significant emissions effort would probably be exceedingly expensive for both nations. The second problem is that on prominent projections, the United States and China …
A Welfarist Approach To Disabilities, David A. Weisbach
A Welfarist Approach To Disabilities, David A. Weisbach
Coase-Sandor Working Paper Series in Law and Economics
This paper uses the tools of optimal tax theory to examine policy toward individuals with disabilities from a welfarist perspective. Policy toward the disabled depends on how a given disability affects welfare. Under reasonable assumptions, redistribution toward individuals with disabilities is desirable, but the extent and form depends on a variety of factors. If disabilities are observable, adjustments to the income tax schedule should be preferred. If disabilities are not observable, commodity taxes or in-kind provision of certain goods (such as accommodations) may be desirable to solve screening problems. In this case, inefficient over-supply of these goods is likely to …
Climate Change Justice, Cass R. Sunstein, Eric A. Posner
Climate Change Justice, Cass R. Sunstein, Eric A. Posner
Coase-Sandor Working Paper Series in Law and Economics
Greenhouse gas reductions would cost some nations much more than others, and benefit some nations far less than others. Significant reductions would impose especially large costs on the United States, and recent projections suggest that the United States has relatively less to lose from climate change. In these circumstances, what does justice require the United States to do? Many people believe that the United States is required to reduce its greenhouse gas emissions beyond the point that is justified by its own self-interest, simply because the United States is wealthy, and because the nations most at risk from climate change …
Professionals Or Politicians: The Uncertain Empirical Case For An Elected Rather Than Appointed Judiciary, Eric A. Posner, G. Mitu Gulati, Stephen J. Choi
Professionals Or Politicians: The Uncertain Empirical Case For An Elected Rather Than Appointed Judiciary, Eric A. Posner, G. Mitu Gulati, Stephen J. Choi
Coase-Sandor Working Paper Series in Law and Economics
Although federal judges are appointed with life tenure, most state judges are elected for short terms. Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a dataset of state high court opinions, we construct objective measures for three aspects of judicial performance: effort, skill and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment. The empirical results do …
Reforming Entrapment Doctrine In United States V. Hollingsworth, Richard H. Mcadams
Reforming Entrapment Doctrine In United States V. Hollingsworth, Richard H. Mcadams
Public Law and Legal Theory Working Papers
This short essay, written for a symposium commemorating Richard Posner's twenty-fifth year as a judge, examines Judge Posner's majority opinion for a closely divided en banc decision on the federal entrapment defense. The cases considers a fundamental issue in the meaning of the element of "predisposition." Judge Posner crafts a boldly innovative reading of the Supreme Court precedent on the topic, introducing the element of "position" or "readiness" to predisposition. I claim the result, properly understood, is to rationalize the doctrine of entrapment.
The Complex Climate Change Incentives Of China And The United States, Cass R. Sunstein
The Complex Climate Change Incentives Of China And The United States, Cass R. Sunstein
Public Law and Legal Theory Working Papers
It is increasingly clear that the world would be better off with an international agreement to control greenhouse gas emissions. What remains poorly understood is that the likely costs and benefits of emissions controls are highly variable across nations. Most important, prominent projection suggest that the world’s leading emitters--the United States and China—have weak incentives to participate in an agreement that would be optimal from the standpoint of the world. The first problem is that any significant emissions effort would probably be exceedingly expensive for both nations. The second problem is that on prominent projections, the United States and China …
A Reader's Companion To 'Against Protection', Bernard E. Harcourt
A Reader's Companion To 'Against Protection', Bernard E. Harcourt
Public Law and Legal Theory Working Papers
From parole prediction instruments and violent sexual predator scores to racial profiling on the highways, instruments to predict future dangerousness, drug-courier profiles, and IRS computer algorithms to detect tax evaders, the rise of actuarial methods in the field of crime and punishment presents a number of challenging issues at the intersection of economic theory, sociology, history, race studies, criminology, social theory, and law. The three review articles of Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age by Ariela Gross, Yoram Margalioth, and Yoav Sapir, raise these challenges in their very best light. Ranging from the heights of poststructuralist …
Climate Change Justice, Cass R. Sunstein, Eric A. Posner
Climate Change Justice, Cass R. Sunstein, Eric A. Posner
Public Law and Legal Theory Working Papers
Greenhouse gas reductions would cost some nations much more than others, and benefit some nations far less than others. Significant reductions would impose especially large costs on the United States, and recent projections suggest that the United States has relatively less to lose from climate change. In these circumstances, what does justice require the United States to do? Many people believe that the United States is required to reduce its greenhouse gas emissions beyond the point that is justified by its own self-interest, simply because the United States is wealthy, and because the nations most at risk from climate change …
Standing And The Precautionary Principle, Jonathan Remy Nash
Standing And The Precautionary Principle, Jonathan Remy Nash
Public Law and Legal Theory Working Papers
In Massachusetts v. EPA, the Supreme Court upheld Massachusetts’ standing to challenge EPA’s refusal to regulate greenhouse gas emissions from mobile sources. The majority and dissent disputed whether the science of global warming was sufficient to establish standing. Absent from both opinions was discussion of whether there would be standing if the science were uncertain but the potential harms large and irreversible. This Essay argues that “precautionary-based standing”—grounded upon a fundamental principle of environmental law, the precautionary principle—should apply in such cases. Precautionary-based standing would not upset existing standing doctrine. First, its application would be limited, and could further be …
Timing Rules And Legal Institutions, Eric A. Posner, Jacob Gersen
Timing Rules And Legal Institutions, Eric A. Posner, Jacob Gersen
Coase-Sandor Working Paper Series in Law and Economics
Constitutional and legislative restrictions on the timing of legislation and regulation are ubiquitous but these "timing rules" have received little attention in the legal literature. Yet the timing of a law can be just as important as its content. The timing of a law determines whether its benefits are created sooner or later, and how the costs and benefits are spread across time, and hence to the advantage and disadvantage of different private groups, citizens, and elected officials. We argue that timing rules are, and should be, used to reduce agency problems within the legislature and between the legislature and …
’Don't Try This At Home’: Posner As Political Economist, Lior Strahilevitz
’Don't Try This At Home’: Posner As Political Economist, Lior Strahilevitz
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
A Reader’S Companion To Against Prediction: A Reply To Ariela Gross, Yoram Margalioth, And Yoav Sapir, Bernard E. Harcourt
A Reader’S Companion To Against Prediction: A Reply To Ariela Gross, Yoram Margalioth, And Yoav Sapir, Bernard E. Harcourt
Coase-Sandor Working Paper Series in Law and Economics
From parole prediction instruments and violent sexual predator scores to racial profiling on the highways, instruments to predict future dangerousness, drug-courier profiles, and IRS computer algorithms to detect tax evaders, the rise of actuarial methods in the field of crime and punishment presents a number of challenging issues at the intersection of economic theory, sociology, history, race studies, criminology, social theory, and law. The three review essays of Against Prediction by Ariela Gross, Yoram Margalioth, and Yoav Sapir, raise these challenges in their very best light. Ranging from the heights of poststructuralist and critical race theory to the intricate details …
Constitutional Showdowns, Eric A. Posner, Adrian Vermeule
Constitutional Showdowns, Eric A. Posner, Adrian Vermeule
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Happiness Research And Cost-Benefit Analysis, Eric A. Posner, Matthew D. Adler
Happiness Research And Cost-Benefit Analysis, Eric A. Posner, Matthew D. Adler
Coase-Sandor Working Paper Series in Law and Economics
A growing body of research on happiness or subjective well-being shows, among other things, that people adapt to many injuries more rapidly than is commonly thought, fail to predict the degree of adaptation and hence overestimate the impact of those injuries on their well-being, and, similarly, enjoy small or moderate rather than significant changes in well-being in response to significant changes in income. Some researchers believe that these findings pose a challenge to cost-benefit analysis, and argue that project evaluation decision-procedures based on economic premises should be replaced with procedures that directly maximize subjective well-being. This view turns out to …
Indignation: Psychology, Politics, Law, Cass R. Sunstein, Daniel Kahneman
Indignation: Psychology, Politics, Law, Cass R. Sunstein, Daniel Kahneman
Coase-Sandor Working Paper Series in Law and Economics
Moral intuitions operate in much the same way as other intuitions do; what makes the moral domain is distinctive is its foundations in the emotions, beliefs, and response tendencies that define indignation. The intuitive system of cognition, System I, is typically responsible for indignation; the more reflective system, System II, may or may not provide an override. Moral dumbfounding and moral numbness are often a product of moral intuitions that people are unable to justify. An understanding of indignation helps to explain the operation of the many phenomena of interest to law and politics: the outrage heuristic, the centrality of …
Privacy Versus Antidiscrimination, Lior Strahilevitz
Privacy Versus Antidiscrimination, Lior Strahilevitz
Coase-Sandor Working Paper Series in Law and Economics
This essay argues that there is often an essential conflict between information privacy protections and antidiscrimination principles. Where information privacy law or practical obscurity deprives an employer of pertinent information about a job applicant, the employer often will rely more heavily on distasteful statistical discrimination strategies. For example, the existing empirical evidence suggests that criminal background checks may benefit African American male job applicants as a whole, by permitting employers to sort among ex-cons and those lacking criminal records. In the absence of accurate criminal history information, employers concerned about keeping ex-offenders out of their workplace appear to hire too …
Constitutional Showdowns, Eric A. Posner, Adrian Vermeule
Constitutional Showdowns, Eric A. Posner, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
Illusory Losses, Cass R. Sunstein
Illusory Losses, Cass R. Sunstein
Public Law and Legal Theory Working Papers
Recent empirical work demonstrates that people’s self-reported happiness is surprisingly resilient to many large changes in life conditions; apparently significant adverse events and conditions often inflict little or no hedonic damage. People with disabilities—such as those on dialysis, with lost limbs, or with colostomies—appear to show the same level of happiness or life-satisfaction as people without disabilities. The reason for these results is people’s power of adaptation. Adaptation has several sources, but it is often a product of attention: Most of the time, people go about their lives without attending to, or focusing on, adverse conditions, and hence those conditions …
Indignation: Psychology, Politics, Law, Daniel Kahneman
Indignation: Psychology, Politics, Law, Daniel Kahneman
Public Law and Legal Theory Working Papers
Moral intuitions operate in much the same way as other intuitions do; what makes the moral domain is distinctive is its foundations in the emotions, beliefs, and response tendencies that define indignation. The intuitive system of cognition, System I, is typically responsible for indignation; the more reflective system, System II, may or may not provide an override. Moral dumbfounding and moral numbness are often a product of moral intuitions that people are unable to justify. An understanding of indignation helps to explain the operation of the many phenomena of interest to law and politics: the outrage heuristic, the centrality of …
Privacy Versus Antidiscrimination, Lior Strahilevitz
Privacy Versus Antidiscrimination, Lior Strahilevitz
Public Law and Legal Theory Working Papers
This essay argues that there is often an essential conflict between information privacy protections and antidiscrimination principles. Where information privacy law or practical obscurity deprives an employer of pertinent information about a job applicant, the employer often will rely more heavily on distasteful statistical discrimination strategies. For example, the existing empirical evidence suggests that criminal background checks may benefit African American male job applicants as a whole, by permitting employers to sort among ex-cons and those lacking criminal records. In the absence of accurate criminal history information, employers concerned about keeping ex-offenders out of their workplace appear to hire too …
Timing Rules And Legal Institutions, Eric A. Posner, Jacob Gersen
Timing Rules And Legal Institutions, Eric A. Posner, Jacob Gersen
Public Law and Legal Theory Working Papers
Constitutional and legislative restrictions on the timing of legislation and regulation are ubiquitous, but these “timing rules” have received little attention in the legal literature. Yet the timing of a law can be just as important as its content. The timing of a law determines whether its benefits are created sooner or later. This determines how the costs and benefits are spread across time, and hence how they are distributed to the advantage or disadvantage of different private groups, citizens, and governmental officials. We argue that timing rules are, and should be, used to reduce agency problems within the legislature …
Current Research On Medical Malpractice Liability, Anup Malani
Current Research On Medical Malpractice Liability, Anup Malani
Articles
No abstract provided.
The Fiscal Consequences Of Electoral Institutions, Jacob Gersen, Christopher R. Berry
The Fiscal Consequences Of Electoral Institutions, Jacob Gersen, Christopher R. Berry
Coase-Sandor Working Paper Series in Law and Economics
There are more than 500,000 elected officials in the United States, 96 percent of whom serve in local governments. Electoral density—the number of elected officials per capita or per governmental unit—varies greatly from place to place. The most electorally dense county has more than 20 times the average number of elected officials per capita. In this paper, we offer the first systematic investigation of the link between electoral density and fiscal policy. Drawing on principal-agent theories of representation, we argue that electoral density presents a tradeoff between accountability and monitoring costs. Increasing the number of specialized elected offices promotes issue …
Valuing Laws As Local Amenities, Anup Malani
Valuing Laws As Local Amenities, Anup Malani
Coase-Sandor Working Paper Series in Law and Economics
The conventional approach to evaluating a law is to examine its effect on proximate behavior. To evaluate a new criminal law, for example, the conventional approach would look to changes in the crime rate. This paper argues instead that laws should be judged by the extent to which they raise housing prices and lower wages. The logic is that the value of a law, much like the value of a lake or a public school, is capitalized into local housing and labor markets. Desirable laws increase housing prices and decrease wages because more people want to live in the relevant …
What Does Happiness Research Tell Us About Taxation?, David A. Weisbach
What Does Happiness Research Tell Us About Taxation?, David A. Weisbach
Coase-Sandor Working Paper Series in Law and Economics
This paper analyzes the consequences of the findings from research into self-reported well being or happiness for taxation. It primarily considers two findings: that happiness depends on status as well as income, and that individuals may adapt to disability, exhibiting relatively small losses in happiness from disabilities. In each case, it examines how adding these concerns to standard tax models changes the results and then compares the empirical findings of the happiness literature to see whether they provide the type of data needed to parameterize the models. In both cases, the theoretical models ask for different types of data than …
Optimal Bail And The Value Of Freedom: Evidence From The Philadelphia Bail Experiment, David Abrams, Chris Rohlfs
Optimal Bail And The Value Of Freedom: Evidence From The Philadelphia Bail Experiment, David Abrams, Chris Rohlfs
Coase-Sandor Working Paper Series in Law and Economics
This paper performs a cost-benefit analysis to determine socially optimal bail levels that balance the costs to defendants against the costs to other members of society. We consider jailing costs, the cost of lost freedom to incarcerated defendants, and the social costs of flight and new crimes committed by released defendants. We estimate the effects of bail amounts on the fraction of defendants posting bail, fleeing, and committing crimes during pre-trial release, using data from a randomized experiment. We also use defendants' bail posting decisions to measure their subjective values of freedom. We find that the typical defendant in our …
Grassroots Plea Bargaining, Josh Bowers
Grassroots Plea Bargaining, Josh Bowers
Public Law and Legal Theory Working Papers
In the 1990s, New York City implemented a particularly vigorous brand of localized order-maintenance policing. Such targeted enforcement of “borderline” offenses led to a skyrocketing rate of non-felony arrests in affected (predominantly poor and minority) communities and, consequently, created a crisis of systemic legitimacy within these communities. Notably, however, enforcement was increasingly heavy-handed only on the policing end. By contrast, when it came to plea bargaining, prosecutors were providing more and more lenient no-time or short-time pleas to reduced (often non-criminal) charges. In this essay, I offer a novel (and at least partial) explanation for this leniency trend. My explanation …
Judging The Voting Rights Act, Adam B. Cox
Judging The Voting Rights Act, Adam B. Cox
Public Law and Legal Theory Working Papers
The Voting Rights Act has radically altered the political status of minority voters and dramatically transformed the partisan structure of American politics. Given the political and racial salience of cases brought under the Act, it is surprising that the growing literature on the effects of a judge’s ideology and race on judicial decisionmaking has overlooked these cases. This Article provides the first systematic evidence that judicial ideology and race are closely related to findings of liability in voting rights cases. Democratic appointees are significantly more likely than Republican appointees to vote for liability under section 2 of the Voting Rights …
Legislative Rules Revisited, Jacob Gersen
Legislative Rules Revisited, Jacob Gersen
Public Law and Legal Theory Working Papers
No abstract provided.