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Full-Text Articles in Law
Outsourcing Regulation: How Insurance Reduces Moral Hazard, Omri Ben-Shahar, Kyle D. Logue
Outsourcing Regulation: How Insurance Reduces Moral Hazard, Omri Ben-Shahar, Kyle D. Logue
Articles
This Article explores the potential value of insurance as a substitute for government regulation of safety. Successful regulation of behavior requires information in setting standards, licensing conduct, verifying outcomes, and assessing remedies. In various areas, the private insurance sector has technological advantages in collecting and administering the information relevant to setting standards and could outperform the government in creating incentives for optimal behavior We explore several areas that are regulated more by private insurance than by government. In those areas, the role of the law diminishes to the administration of simple rules of absolute liability or no liability, and affected …
Mind Control: Firms And The Production Of Ideas, Anthony Casey
Mind Control: Firms And The Production Of Ideas, Anthony Casey
Articles
No abstract provided.
Communities And The California Commission, Nicholas Stephanopoulos
Communities And The California Commission, Nicholas Stephanopoulos
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No abstract provided.
Citizens United And Conservative Judicial Activism, Geoffrey R. Stone
Citizens United And Conservative Judicial Activism, Geoffrey R. Stone
Articles
This Article analyzes the recent trend of conservative judicial activism in the Supreme Court and searches for a principled reason to explain it. The conservative majority has struck down several laws in recent years, culminating in its invalidation of an important provision of the Bipartisan Campaign Reform Act of 2002 in Citizens United v. Federal Election Commission. While judicial restraint and originalism are currently seen as conservative principles, neither principle explains these decisions. The author argues that no principle can explain the results of these cases-rather, they can only be explained by the Justices' personal views and policy preferences. The …
Law In The Hands Of The Politicians: The Cycles Of American Politics, Richard A. Epstein
Law In The Hands Of The Politicians: The Cycles Of American Politics, Richard A. Epstein
Articles
No abstract provided.
Constitutionalism: East Asian Antecedents, Tom Ginsburg
Constitutionalism: East Asian Antecedents, Tom Ginsburg
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No abstract provided.
Forecasting The Flashpoints, Nicholas Stephanopoulos
The Role Of Accreditation Commissions In Higher Education: The Troublesome Case Of Dana College, Richard A. Epstein
The Role Of Accreditation Commissions In Higher Education: The Troublesome Case Of Dana College, Richard A. Epstein
Articles
No abstract provided.
Enforcing (But Not Defending) Unconstitutional Laws, Aziz Huq
Enforcing (But Not Defending) Unconstitutional Laws, Aziz Huq
Articles
When should the executive decline to defend in court a federal law it has determined to be unconstitutional, yet still enforce that same statute against third parties? The question is prompted by the Obama administration's decision to enforce, but not defend in federal court, Section 3 of the Defense of Marriage Act ("DOMA "). But the DOMA Section 3 decision is not the first time the executive has bifurcated the enforcement of a statute from its defense before the bench. The practice of enforcement-litigation gaps dates back at least to World War I. Commentators tend to judge the practice by …
On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt
On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt
Articles
No abstract provided.
Pay For Regulator Performance, M. Todd Henderson, Frederick Tung
Pay For Regulator Performance, M. Todd Henderson, Frederick Tung
Articles
Few doubt that executive compensation arrangements encouraged the excessive risk taking by banks that led to the recent Financial Crisis. Accordingly, academics and lawmakers have called for the reform of banker pay practices. In this Article, we argue that regulator pay is to blame as well, and that fixing it may be easier and more effective than reforming banker pay. Regulatory failures during the Financial Crisis resulted at least in part from a lack of sufficient incentives for examiners to act aggressively to prevent excessive risk. Bank regulators are rarely paid for performance, and in atypical cases involving performance bonus …
Unifying Copyright: An Instrumentalist's Response To Shyamkrishna Balganesh, Richard A. Epstein
Unifying Copyright: An Instrumentalist's Response To Shyamkrishna Balganesh, Richard A. Epstein
Articles
No abstract provided.
When To Hold, When To Fold, And When To Reshuffle: The Art Of Decisionmaking On A Multi-Member Court, Diane P. Wood
When To Hold, When To Fold, And When To Reshuffle: The Art Of Decisionmaking On A Multi-Member Court, Diane P. Wood
Articles
This Essay explores the instrumental and normative considerations that prompt judges to publish separate opinions. After discussing the traditions of separate writing in American judicial practice, the author provides a contemporary judge's perspective on the aims of separate opinions and on the cost-benefit analysis that judges invariably undertake when contemplating whether to write a concurrence or dissent. Turning to her own work on the Seventh Circuit, the author then identifies three broad categories of dissents she has penned over the past sixteen years: "principle-based dissents, " "'process-based dissents, " and "accuracy-focused dissents. " The Essay concludes by suggesting that a …
Some Skeptical Comments On Beth Simmons's Mobilizing For Human Rights, Eric A. Posner
Some Skeptical Comments On Beth Simmons's Mobilizing For Human Rights, Eric A. Posner
Articles
No abstract provided.
Negligence, Strict Liability, And Responsibility For Climate Change, David A. Weisbach
Negligence, Strict Liability, And Responsibility For Climate Change, David A. Weisbach
Articles
No abstract provided.
Dialogue With Federal Judges On The Role Of History In Interpretation, Frank H. Easterbrook, Brett M. Kavanaugh, Charles F. Lettow, Amanda L. Tyler
Dialogue With Federal Judges On The Role Of History In Interpretation, Frank H. Easterbrook, Brett M. Kavanaugh, Charles F. Lettow, Amanda L. Tyler
Articles
No abstract provided.
Efficient Enforcement In International Law, Omri Ben-Shahar, Anu Bradford
Efficient Enforcement In International Law, Omri Ben-Shahar, Anu Bradford
Articles
Enforcement is a fundamental challenge for international law. Sanctions are costly to impose, difficult to coordinate, and often ineffective at accomplishing their goals. Rewards are likewise costly and domestically unpopular. Thus, efforts to address pressing international problems-such as reversing climate change and coordinating monetary policy-often fall short. This Article offers a novel approach to international enforcement and demonstrates the advantages of such an approach over traditional sanctions or rewards. It develops a mechanism of Reversible Rewards, which combines sticks and carrots in a unique, previously unexplored way. Reversible Rewards require that a sum of money be offered as a reward …
Inflation Indicators, Jonathan Masur
Physical And Regulatory Takings: One Distinction Too Many, Richard A. Epstein
Physical And Regulatory Takings: One Distinction Too Many, Richard A. Epstein
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No abstract provided.
Equality, Procedural Justice, And The World Trade Organization, Adam S. Chilton, Ryan W. Davis
Equality, Procedural Justice, And The World Trade Organization, Adam S. Chilton, Ryan W. Davis
Articles
No abstract provided.
The Doctrinal Paradox & International Law, Adam S. Chilton, Dustin Tingley
The Doctrinal Paradox & International Law, Adam S. Chilton, Dustin Tingley
Articles
No abstract provided.
Better Mistakes In Patent Law, Andres Sawicki
Better Mistakes In Patent Law, Andres Sawicki
Articles
This Article analyzes patent mistakes-that is, mistakes made by the patent system when it decides whether a particular invention has met the patentability requirements. These mistakes are inevitable. Given resource constraints, some might even be desirable. This Article evaluates the relative costs of patent mistakes, so that we can make better ones. Three characteristics drive the costs of mistakes: their type (false positive or false negative), timing (early or late), and doctrinal basis (utility, novelty, nonobviousness, and so on). These characteristics make some mistakes more troubling than others. This Article compares the costs of making mistakes of different types, at …