Law Commons^™

The Effectiveness Of Measures To Increase Appellate Court Efficiency And Decision Output, Thomas B. Marvell, Carlisle E. Moody

Carlisle Moody

This Article will examine the effectiveness of measures commonly employed to increase appellate court productivity. Part I of the Article sets forth some common design problems and explains how the research technique employed in the present study avoids these problems by using a multiple time-series research design. Part II applies this design to state court data. Part II also describes the dependent variable, the number of appeals decided per judge, used in the regression analysis. Part III discusses the results of that analysis-the impact of each change listed above on judicial productivity. The Article, although not advocating the adoption of …

Moral Diversity And Efficient Breach, Matthew A. Seligman

Michigan Law Review

Most people think it is morally wrong to breach a contract. But sophisticated commercial parties, like large corporations, have no objection to breaching contracts and paying the price in damages when doing so is in their self-interest. The literature has ignored the profound legal, economic, and normative implications of that asymmetry between individuals’ and firms’ approaches to breach. To individuals, a contract is a promise that cannot be broken regardless of the financial stakes. For example, millions of homeowners refused to breach their mortgage contracts in the aftermath of the housing crisis even though doing so could have saved them …

Portmanteau Ascendant: Post-Release Regulations And Sex Offender Recidivism, J. J. Prescott

Articles

The purported purpose of sex offender post-release regulations (e.g., community notification and residency restrictions) is the reduction of sex offender recidivism. On their face, these laws seem well-designed and likely to be effective. A simple economic framework of offender behavior can be used to formalize these basic intuitions: in essence, post-release regulations either increase the probability of detection or increase the immediate cost of engaging in the prohibited activity (or both), and so should reduce the likelihood of criminal behavior. These laws aim to incapacitate people outside of prison. Yet, empirical researchers to date have found essentially no reliable evidence …

Does Majority Voting Improve Board Accountability?, Stephen Choi, Jill E. Fisch, Marcel Kahan, Edward B. Rock

All Faculty Scholarship

Directors have traditionally been elected by a plurality of the votes cast. This means that in uncontested elections, a candidate who receives even a single vote is elected. Proponents of “shareholder democracy” have advocated a shift to a majority voting rule in which a candidate must receive a majority of the votes cast to be elected. Over the past decade, they have been successful, and the shift to majority voting has been one of the most popular and successful governance reforms.

Yet critics are sceptical as to whether majority voting improves board accountability. Tellingly, directors of companies with majority voting …

Liability Insurer Data As A Window On Lawyers’ Professional Liability, Tom Baker, Rick Swedloff

All Faculty Scholarship

Using the best publicly available data on lawyers’ liability claims and insurance – from the largest insurer of large law firms in the U.S., the American Bar Association’s Standing Committee on Professional Liability, and a summary of large claims from a leading insurance broker–this article reports the frequency of lawyers’ liability claims, the distribution and cost of claims by type of practice, the disposition of claims, and lawyers liability insurance premiums from the early 1980s to 2013. Notable findings include remarkable stability over thirty years in the distribution of claims by area of practice among both small and large firms, …

Market Efficiency And The Problem Of Retail Flight, Alicia J. Davis

Articles

In 1950, 91 % of common stock in the U.S. was owned directly by individual inves­ tors. Today, that percentage stands at only 23%. The mass exodus of retail investors and their investment dollars has negative implications not only for capital formation and investor protection, but also for market efficiency. Individual investors are often assumed to be noise traders who distort stock prices and harm market functioning. Therefore, some argue that their withdrawal from the market should be of little concern; indeed, it should be celebrated. Recent empirical evidence calls this assertion of retail noise trading into doubt, and this …

The Cost Of Nothing Trumps The Value Of Everything: The Failure Of Regulatory Economics To Keep Pace With Improvements In Quantitative Risk Analysis, Adam M. Finkel

Michigan Journal of Environmental & Administrative Law

The entire U.S. federal regulatory apparatus, especially that part devoted to reducing (or deciding not to reduce) risks to the environment, health, and safety (EHS), relies increasingly on judgments of whether each regulation would yield benefits in excess of its costs. These judgments depend in turn upon empirical analysis of the potential increases in longevity, quality of life, and environmental quality that the regulation can confer, and also of the economic resources needed to “purchase” those benefits—analyses whose quality can range from extremely fine to disappointingly poor. The quality of a risk analysis (from which the benefits of control are …

Demand For Breach, Tess Wilkinson-Ryan

All Faculty Scholarship

These studies elicit behavioral evidence for how people weigh monetary and non-monetary incentives in efficient breach. Study 1 is an experimental game designed to capture the salient features of the efficient breach decision. Subjects in a behavioral lab were offered different amounts of money to break the deal they had made with a partner. 18.6% of participants indicated willingness to break a deal for any amount of profit, 27.9% were unwilling to breach for the highest payout, and the remaining subjects identified a break-point in between. Study 2 is an online questionnaire asking subjects to take the perspectives of buyers …

Dilution At The Patent And Trademark Office, Jeremy N. Sheff

Michigan Telecommunications & Technology Law Review

This Article undertakes the first systematic investigation of trademark dilution in registration practice before the US Patent and Trademark Office (PTO). The Article consists of three distinct descriptive empirical analyses. In the first, I present a new hand-coded dataset of all 453 Trademark Trial and Appeal Board (TTAB) dispositions of dilution claims through June 30, 2014, and report that dilution has been necessary to the PTO’s refusal of exactly three registrations in over a decade. In the second part, I apply algorithmic coding of the recently released PTO Casefiles Dataset to demonstrate that concurrent registration of identical marks to different …

Rural Hospital Ownership: Medical Service Provision, Market Mix, And Spillover Effects, Jill R. Horwitz, Austin Nichols

Articles

Objective. To test whether nonprofit, for-profit, or government hospital ownership affects medical service provision in rural hospital markets, either directly or through the spillover effects of ownership mix. Data Sources/Study Setting. Data are from the American Hospital Association, U.S. Census, CMS Healthcare Cost Report Information System and Prospective Payment System Minimum Data File, and primary data collection for geographic coordinates. The sample includes all nonfederal, general medical, and surgical hospitals located outside of metropolitan statistical areas and within the continental United States from 1988 to 2005. Study Design. We estimate multivariate regression models to examine the effects of (1) hospital …

Relational Governance And Contract Damages: Evidence From Franchising, Adam B. Badawi

Adam B. Badawi

Letting Good Deeds Go Unpunished: Volunteer Immunity Laws And Tort Deterrence, Jill R. Horwitz, Joseph Mead

Articles

Does tort law deter risky behavior in individuals? We explore this question by examining the relationship between tort immunity and volunteering. During the 1980s and 1990s, nearly every state provided some degree of volunteer immunity. Congress followed with the 1997 Volunteer Protection Act. This article analyzes these acts, identifying three motivations for them: the chilling effects of tort liability, limits on liability insurance, and moral concerns. Using data from the Independent Survey’s Giving and Volunteering surveys, we then identify a large and positive correlation between immunity and volunteering. We next consider the implications of the findings for tort theory and …

Interpreting Data: A Reply To Professor Pardo, Robert M. Lawless, Angela K. Littwin, Katherine M. Porter, John A. E. Pottow, Deborah K. Thorne, Elizabeth Warren

Articles

Professor Pardo has published a pointed critique to our Report, raising three major complaints. First, he claims that we make two predicating assumptions in our study that are flawed. Second, he contends that we misunderstand the means test and fail to appreciate with sufficient "nuance" its "operative effect." Third, he maintains that our Report suffers from methodological problems. We can address the two impugned assumptions quickly. The first one - that BAPCPA's means test is the sole causal agent driving 800,000 putative filers from the bankruptcy courts - is not one we make. The second - regarding the income profiles …

Did Bankruptcy Reform Fail? An Empirical Study Of Consumer Debtors, Robert M. Lawless, Angela K. Littwin, Katherine M. Porter, John A. E. Pottow, Deborah K. Thorne, Elizabeth Warren

Articles

Before 2005, many people went broke and many filed for bankruptcy. After 2005, many people still go broke, but not so many file for bankruptcy. Why has the number of bankruptcies declined? Surely it is not the economy. All throughout the 2000s, families have been under increasing economic pressure. Median family incomes have declined, basic expenses have risen, and families are shouldering unprecedented debt loads. Defaults remain high for credit cards and car loans, while mortgage foreclosures have soared. By 2008, over half of all Americans reported that their incomes were falling behind their cost of living. These data all …

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 …

Bankruptcy Fire Sales, Lynn M. Lopucki, Joseph W. Doherty

Michigan Law Review

For more than two decades, scholars working from an economic perspective have criticized the bankruptcy reorganization process and sought to replace it with market mechanisms. In 2002, Professors Douglas G. Baird and Robert K. Rasmussen asserted in The End of Bankruptcy that improvements in the market for large public companies had rendered reorganization obsolete. Going concern value could be captured through sale. This Article reports the results of an empirical study comparing the recoveries in bankruptcy sales of large public companies in the period 2000 through 2004 with the recoveries in bankruptcy reorganizations during the same period. Controlling for company …

Review Of Foreign Direct Investment And The Regional Economy, James R. Hines Jr.

Reviews

There is a broad consensus that foreign direct investment (FDI) confers economic advantages on local economies. Jones and Wren simply refuse to share the good feeling about FDI without first processing some numbers. In doing so, they take a detached and serious look at the consequences of foreign direct investment in one area, the northeastern region of England. They have access to excellent data on the regional operations of foreign-owned plants from 1985 to 1999, and use these data to answer important questions about FDI in the region. How large are the benefits that FDI brings, as measured by new …

Insider Trading Rules Can Affect Attractiveness Of Country's Stock Markets, Laura Nyantung Beny

Articles

The academic debate about the desirability of prohibiting insider trading is longstanding and as yet unresolved. Until Henry Manne’s 1966 book, Insider Trading and the Stock Market, the debate centered on whether insider trading is unfair to public investors who are not privy to private corporate information. However, the fairness approach is malleable and indeterminate and thus does not lend itself to clear-cut policy prescriptions. Since Manne’s book, the focus of the debate has been on the effect of insider trading on economic efficiency. Manne argued that, contrary to the prevailing legal and moral opinion of the time, insider trading …

Theorizing Behavioral Law And Economics: A Defense Of Evolutionary Analysis And The Law, Neel P. Parekh

University of Michigan Journal of Law Reform

Behavioral law and economics (BLE) provides a steady stream of empirical evidence that counters the predictions of law and economics. Despite this research and data, however, many theorists argue that BLE ultimately fails because it posits no underlying theory. This Note argues that perspectives from evolutionary biology, evolutionary psychology, and the brain sciences can provide the missing motivational theory for BLE's empirical findings. The Note also examines the implications a more consistent and reasoned consideration of evolutionary analysis and the law (EA) has for our legal regime. In theorizing BLE and defending EA, this Note aims to show how evolutionary …

The Future Of Enterprise Organizations, Eric W. Orts

Michigan Law Review

Both the law and business schools at the University of Michigan offer a basic course in Enterprise Organization. This tradition owes to the influence of Professor Alfred Conard, one of the leading scholars of his generation, who taught during most of his career at the University of Michigan Law School. The tradition persists in part because Enterprise Organization suggests an appropriately broad view of its topic, unlike more common course titles such as Corporations or Business Associations. We live in a world populated not only by people but also the organized legal entities we create. Business firms and nonprofit organizations …

Corporate Judgement Proofing: A Response To Lynn Lopucki's 'The Death Of Liability', James J. White

Articles

In "The Death of Liability" Professor Lynn M. LoPucki argues that American businesses are rendering themselves judgment proof.- Using the metaphor of a poker game, Professor LoPucki claims American businesses are increasingly able to participate in the poker game without putting "chips in the pot." He argues that it has become easier for American companies to play the game without having chips in the pot because of the ease with which a modern debtor can grant secured credit, because of the growth of the peculiar form of sale known as asset securitization, because foreign havens for secreting assets are now …

The Effectiveness Of Measures To Increase Appellate Court Efficiency And Decision Output, Thomas B. Marvell, Carlisle E. Moody

University of Michigan Journal of Law Reform

This Article will examine the effectiveness of measures commonly employed to increase appellate court productivity. Part I of the Article sets forth some common design problems and explains how the research technique employed in the present study avoids these problems by using a multiple time-series research design. Part II applies this design to state court data. Part II also describes the dependent variable, the number of appeals decided per judge, used in the regression analysis. Part III discusses the results of that analysis-the impact of each change listed above on judicial productivity. The Article, although not advocating the adoption of …