Open Access. Powered by Scholars. Published by Universities.®
Articles 31 - 60 of 169
Full-Text Articles in Law
Reverse Regulatory Arbitrage: An Auction Approach To Regulatory Assignments, M. Todd Henderson, Frederick Tung
Reverse Regulatory Arbitrage: An Auction Approach To Regulatory Assignments, M. Todd Henderson, Frederick Tung
Public Law and Legal Theory Working Papers
In the years before the Financial Crisis, banks got to pick their regulators, engaging in a form of regulatory arbitrage that we now know was a race to the bottom. We propose to turn the tables on the banks by allowing regulators, specifically, bank examiners, to choose the banks they regulate. We call this “reverse regulatory arbitrage,” and we think it can help improve regulatory outcomes. Building on our prior work that proposes to pay bank examiners for performance—by giving them financial incentives to avoid bank failures—we argue that bank supervisory assignments should be set through an auction among examiners. …
Structural Constitutionalism As Counterterrorism, Aziz Huq
Structural Constitutionalism As Counterterrorism, Aziz Huq
Public Law and Legal Theory Working Papers
During the past decade, federal courts have adjudicated proliferating challenges to novel policy responses to terrorism. Judges often resolve the individual rights and statutory interpretation questions implicated in those controversies by deploying presumptions or rules of thumb derived from the Constitution’s Separation of Powers. These “structural constitutional presumptions” serve as heuristics to facilitate adjudication and to enable judicial bypass of difficult legal, policy, and factual questions. This Article challenges the use of such structural presumptions in counterterrorism cases. Drawing upon recent empirical research in political science, political psychology, and security studies, it demonstrates that abstract eighteenth-century Separation of Powers ideals …
International Law And The Limits Of Macroeconomic Cooperation, Alan O. Sykes, Eric A. Posner
International Law And The Limits Of Macroeconomic Cooperation, Alan O. Sykes, Eric A. Posner
Coase-Sandor Working Paper Series in Law and Economics
The macroeconomic policies of states can produce significant costs and benefits for other states, yet international macroeconomic cooperation has been one of the weakest areas of international law. We ask why states have had such trouble cooperating over macroeconomic issues, when they have been relatively successful at cooperation over other economic matters such as international trade. We argue that although the theoretical benefits of macroeconomic cooperation are real, in practice it is difficult to sustain because optimal cooperative policies are often uncertain and time variant, making it exceedingly difficult to craft clear rules for cooperation in many areas. It is …
International Law And The Limits Of Macroeconomic Cooperation, Alan O. Sykes, Eric A. Posner
International Law And The Limits Of Macroeconomic Cooperation, Alan O. Sykes, Eric A. Posner
Public Law and Legal Theory Working Papers
The macroeconomic policies of states can produce significant costs and benefits for other states, yet international macroeconomic cooperation has been one of the weakest areas of international law. We ask why states have had such trouble cooperating over macroeconomic issues, when they have been relatively successful at cooperation over other economic matters such as international trade. We argue that although the theoretical benefits of macroeconomic cooperation are real, in practice it is difficult to sustain because optimal cooperative policies are often uncertain and time variant, making it exceedingly difficult to craft clear rules for cooperation in many areas. It is …
Waldron On The Regulation Of Hate Speech, Brian Leiter
Waldron On The Regulation Of Hate Speech, Brian Leiter
Public Law and Legal Theory Working Papers
No abstract provided.
The Institutional Structure Of Immigration Law, Eric A. Posner
The Institutional Structure Of Immigration Law, Eric A. Posner
Coase-Sandor Working Paper Series in Law and Economics
Immigration law scholars should give more attention to the institutional structure of immigration law and, in particular, the way that the government addresses problems of asymmetric information in the course of screening potential migrants and attempting to control their behavior once they arrive. Economic models of optimal contracting provide a useful starting point for analyzing this problem. This approach is applied to several current debates in immigration scholarship, including controversies over "crimmigration" and courts' refusal to extend labor and employment rights to undocumented aliens.
Absolute Preferences And Relative Preferences In Property Law, Lior Strahilevitz
Absolute Preferences And Relative Preferences In Property Law, Lior Strahilevitz
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
International Paretianism: A Defense, Eric A. Posner, David A. Weisbach
International Paretianism: A Defense, Eric A. Posner, David A. Weisbach
Coase-Sandor Working Paper Series in Law and Economics
A treaty satisfies what we call International Paretianism if it advances the interests of all states that join it, so that no state is made worse off. The principle might seem obvious, but it rules out nearly all the major proposals for a climate treaty, including proposals advanced by academics and by government officials. We defend International Paretianism, and for that reason urge commentators in the debate over climate justice to abandon efforts to right past wrongs, redistribute wealth, and achieve other abstract ideals through a climate treaty.
International Paretianism: A Defense, Eric A. Posner, David A. Weisbach
International Paretianism: A Defense, Eric A. Posner, David A. Weisbach
Public Law and Legal Theory Working Papers
A treaty satisfies what we call International Paretianism if it advances the interests of all states that join it, so that no state is made worse off. The principle might seem obvious, but it rules out nearly all the major proposals for a climate treaty, including proposals advanced by academics and by government officials. We defend International Paretianism, and for that reason urge commentators in the debate over climate justice to abandon efforts to right past wrongs, redistribute wealth, and achieve other abstract ideals through a climate treaty.
The Institution Matching Canon, Aziz Huq
The Institution Matching Canon, Aziz Huq
Public Law and Legal Theory Working Papers
This Article identifies and analyzes a transsubstantive tool of constitutional doctrine that to date has escaped scholarly attention. The Article terms this device the “institution matching” canon. It can be stated briefly as follows: When the government makes a decision that may impinge upon a liberty or equality interest—which may or may not be directly judicially enforced otherwise—a court should determine whether the component of government that made the decision has actual competence in and responsibility for the policy justifications invoked to curtail the interest. If not, the court should reject the government action but leave open the possibility of …
The Institutional Structure Of Immigration Law, Eric A. Posner
The Institutional Structure Of Immigration Law, Eric A. Posner
Public Law and Legal Theory Working Papers
Immigration law scholars should give more attention to the institutional structure of immigration law and, in particular, the way that the government addresses problems of asymmetric information in the course of screening potential migrants and attempting to control their behavior once they arrive. Economic models of optimal contracting provide a useful starting point for analyzing this problem. This approach is applied to several current debates in immigration scholarship, including controversies over “crimmigration” and courts’ refusal to extend labor and employment rights to undocumented aliens.
When Was Judicial Self-Restraint, Aziz Huq
When Was Judicial Self-Restraint, Aziz Huq
Public Law and Legal Theory Working Papers
This Essay responds to Judge Posner’s Jorde Symposium Essay The Rise and Fall of Judicial Restraint by analyzing the question of when, if ever, has judicial self-restraint thrived in the federal courts. Its central aim is to shed historicizing light on the trajectory of judicial activism by imaginatively rifling through an array of canonical and somewhat-less-than-canonical empirical identification strategies. Two conclusions follow from the inquiry. First, I find that the available data on the historical trajectory of judicial restraint are surprisingly poor, and it is necessary to offer any judgment about the historical path of judicial activism with great caution. …
The Dynamics Of Contract Evolution, Eric A. Posner, Stephen J. Choi, G. Mitu Gulati
The Dynamics Of Contract Evolution, Eric A. Posner, Stephen J. Choi, G. Mitu Gulati
Coase-Sandor Working Paper Series in Law and Economics
Contract scholarship has given little attention to the production process for contracts. The usual assumption is that the parties will construct the contract ex nihilo, choosing all the terms so that they will maximize the surplus from the contract. In fact, parties draft most contracts by slightly modifying the terms of contracts that they have used in the past, or that other parties have used in related transactions. A small literature on boilerplate recognizes this phenomenon, but little empirical work examines the process. This Article provides an empirical analysis by drawing on a data set of sovereign bonds. We show …
Harmonization, Preferences, And The Calculus Of Consent In Commercial And Other Law, Saul Levmore
Harmonization, Preferences, And The Calculus Of Consent In Commercial And Other Law, Saul Levmore
Coase-Sandor Working Paper Series in Law and Economics
The European Union is exploring a move toward harmonization in the form of a common commercial code (CESL), with some mandatory provisions especially with respect to consumer law, but also incorporating a large dose of business-to-business law that would be optional at the enterprise, rather than jurisdictional, level. This paper begins with the question of when harmonization is preferable to diversity, and not just with respect to commercial law. It tackles the problem from the perspective of the median voters in jurisdictions, some of which have similar preferences and some not. It introduces the ability of a stable and like-minded …
Harmonization, Preferences, And The Calculus Of Consent In Commercial And Other Law, Saul Levmore
Harmonization, Preferences, And The Calculus Of Consent In Commercial And Other Law, Saul Levmore
Public Law and Legal Theory Working Papers
The European Union is exploring a move toward harmonization in the form of a common commercial code (CESL), with some mandatory provisions especially with respect to consumer law, but alsoincorporating a large dose of business-to-business law that would be optional at the enterprise, rather than jurisdictional, level. This paper begins with the question of when harmonization is preferable to diversity, and not just with respect to commercial law. It tackles the problem from the perspective of the median voters in jurisdictions, some of which have similar preferences and some not. It introduces the ability of a stable and like-minded group …
An Fda For Financial Innovation: Applying The Insurable Interest Doctrine To Twenty-First-Century Financial Markets, E. Glen Weyl, Eric A. Posner
An Fda For Financial Innovation: Applying The Insurable Interest Doctrine To Twenty-First-Century Financial Markets, E. Glen Weyl, Eric A. Posner
Coase-Sandor Working Paper Series in Law and Economics
The financial crisis of 2008 was caused in part by speculative investment in complex derivatives. In enacting the Dodd-Frank Act, Congress sought to address the problem of speculative investment, but merely transferred that authority to various agencies, which have not yet found a solution. We propose that when firms invent new financial products, they be forbidden to sell them until they receive approval from a government agency designed along the lines of the FDA, which screens pharmaceutical innovations. The agency would approve financial products if they satisfy a test for social utility that focuses on whether the product will likely …
An Fda For Financial Innovation: Applying The Insurable Interest Doctrine To Twenty-First-Century Financial Markets, E. Glen Weyl, Eric A. Posner
An Fda For Financial Innovation: Applying The Insurable Interest Doctrine To Twenty-First-Century Financial Markets, E. Glen Weyl, Eric A. Posner
Public Law and Legal Theory Working Papers
The financial crisis of 2008 was caused in part by speculative investment in complex derivatives. In enacting the Dodd-Frank Act, Congress sought to address the problem of speculative investment, but merely transferred that authority to various agencies, which have not yet found a solution. We propose that when firms invent new financial products, they be forbidden to sell them until they receive approval from a government agency designed along the lines of the FDA, which screens pharmaceutical innovations. The agency would approve financial products if they satisfy a test for social utility that focuses on whether the product will likely …
Should Environmental Taxes Be Precautionary?, David A. Weisbach
Should Environmental Taxes Be Precautionary?, David A. Weisbach
Coase-Sandor Working Paper Series in Law and Economics
The precautionary principle requires that we take additional actions to prevent harms when the harms from an activity are uncertain and possibly irreversible. This paper considers whether environmental or other Pigouvian taxes should similarly be precautionary. Should environmental taxes be set higher than otherwise if harm from pollution is uncertain and irreversible and where we are likely to learn more about the nature of the harm the future. It concludes that environmental taxes should be set equal to expected marginal harm from pollution given the currently available information and should be neither raised or lowered because of the prospect of …
Unilateral Carbon Taxes, Border Tax Adjustments, And Carbon Leakage, Gita Kuhn Jush, Joshua Elliott, Ian Foster, Sam Kortum, Todd Minson
Unilateral Carbon Taxes, Border Tax Adjustments, And Carbon Leakage, Gita Kuhn Jush, Joshua Elliott, Ian Foster, Sam Kortum, Todd Minson
Coase-Sandor Working Paper Series in Law and Economics
We examine the impact of a unilateral carbon tax in developed countries focusing on the expected size of carbon leakage (an increase in emissions in non-taxing regions as a result of the tax) and the effects on leakage of border tax adjustments. We start by analyzing the problem using a simple two-country, three-good general equilibrium model to develop intuitions. We then simulate the expected size of the effects using a new, open-source, computable general equilibrium (CGE) model. We analyze the extent of emissions reductions from a carbon tax in countries that made commitments under the Kyoto Protocol (Annex B countries), …
Excessive Litigation By Business Users Of Free Platform Services, David S. Evans
Excessive Litigation By Business Users Of Free Platform Services, David S. Evans
Coase-Sandor Working Paper Series in Law and Economics
In the last decade a number of Internet-based multi-sided platforms have emerged that provide free services to, in some cases, millions of businesses. More such platforms are being spawned as the Internet-based economy grows. This Article argues that under current norms in adversarial proceedings, such as those involving competition policy, these platforms are likely to face large numbers of complaints in multiple jurisdictions, a substantial likelihood that at least one of these complaints will result in a false-positive decision against the platform, and material risk of a false-positive decision that results in catastrophic consequences. These effects result from a combination …
Mistake Under The Common European Sales Law, Ariel Porat
Mistake Under The Common European Sales Law, Ariel Porat
Coase-Sandor Working Paper Series in Law and Economics
The Common European Sales Law (CESL) sets the conditions in which the mistaken party is entitled to rescission and compensation from the other party. Some of the CESL's provisions, however, are inconsistent with efficiency. First, under the CESL, as long as the mistake is essential, for the mistaken party to be allowed to rescind the contract, it is sufficient that the other party caused the mistake. From an efficiency perspective, however, causation is not enough to allow rescission for mistake. Second, the CESL permits rescission when one party failed to disclose information to the other party that would have revealed …
Courts And New Democracies: Recent Works, Tom Ginsburg
Courts And New Democracies: Recent Works, Tom Ginsburg
Public Law and Legal Theory Working Papers
Recent literature on comparative judicial politics reveals a variety of roles that courts adopt in the process of democratization. These include, very rarely, serving as a trigger for democratization, and more commonly, serving as downstream guarantor for departing autocrats or as downstream consolidator of democracy. In light of these roles, this essay reviews six relatively recent books: Courts in Latin America, edited by Helmke and Rios-Figueroa (2011); Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile, by Hilbink (2007); Cultures of Legality: Judicialization and Political Activism in Latin America, edited by Couso, Huneeus and Sieder (2011); The Legacies of …
Deciding Not To Decide: Deferral In Constitutional Design, Rosalind Dixon, Tom Ginsburg
Deciding Not To Decide: Deferral In Constitutional Design, Rosalind Dixon, Tom Ginsburg
Public Law and Legal Theory Working Papers
In designing constitutions, constitutional drafters often face constraints that cause them to leave things “undecided”—or to defer decision-making on certain constitutional issues to the future. They do this both through adopting vague constitutional language, and through specific language that explicitly delegates issues to future legislators (i.e. “by law” clauses). The aim of this article is to deepen our understanding of this second, to date largely un-examined, tool of constitutional design. We do so by exploring: (1) the rationale for constitutional deferral generally; (2) the potential alternatives to “by law” clauses as a means of addressing concerns about constitutional “error” and …
Punitive Preventive Justice: A Critique, Bernard E. Harcourt
Punitive Preventive Justice: A Critique, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
No abstract provided.
Review Of Co-Defendant Sentencing Disparities By The Seventh Circuit: Two Divergent Lines Of Cases, Alison Siegler
Review Of Co-Defendant Sentencing Disparities By The Seventh Circuit: Two Divergent Lines Of Cases, Alison Siegler
Articles
No abstract provided.
The Questionable Basis Of The Common European Sales Law: The Role Of An Optional Instrument In Jurisdictional Competition, Eric A. Posner
The Questionable Basis Of The Common European Sales Law: The Role Of An Optional Instrument In Jurisdictional Competition, Eric A. Posner
Coase-Sandor Working Paper Series in Law and Economics
The Common European Sales Law is designed as an optional instrument that European parties engaged in cross-border transactions could choose for their transactions in preference to national law. The goal is to increase cross-border transactions and perhaps to enhance European identity. But the CESL is unlikely to achieve these goals. It raises transaction costs while producing few if any benefits; it is unlikely to spur beneficial jurisdictional competition; its consumer protection provisions will make it unattractive for businesses; and its impact on European identity is likely to be small.
Punitive Preventive Justice: A Critique, Bernard E. Harcourt
Punitive Preventive Justice: A Critique, Bernard E. Harcourt
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Regulatory Techniques In Consumer Protection: A Critique Of European Consumer Contract Law, Oren Bar-Gill, Omri Ben-Shahar
Regulatory Techniques In Consumer Protection: A Critique Of European Consumer Contract Law, Oren Bar-Gill, Omri Ben-Shahar
Coase-Sandor Working Paper Series in Law and Economics
This Article classifies the consumer protection techniques that European contract law employs into four categories: Mandatory arrangements; disclosure; regulation of entry to and exit from contracts; and pro-buyer default rules and contract interpretation. It argues that these techniques are far less likely to succeed than advocates, including the European Commission, believe, and that they may bring about unintended consequences and hurt consumers. The techniques and their limits are illustrated through a study of the proposed Common European Sales Law (CESL). The Article argues that the ambitious pursuit of consumer protection goals is also likely to interfere with the other main …
Children's Rights And A Capabilities Approach: The Question Of Special Priority, Martha Craven Nussbaum, Rosalind Dixon
Children's Rights And A Capabilities Approach: The Question Of Special Priority, Martha Craven Nussbaum, Rosalind Dixon
Public Law and Legal Theory Working Papers
The latter part of the twentieth century saw the near-universal recognition of the idea of children’s rights as human rights. At the same time, the conceptual basis for such rights remains largely under-theorized. Part of the aim of this Article is to draw on the insights of the “capabilities approach” developed by Martha Nussbaum in philosophy, and Amartya Sen in economics, in order to provide a fuller theoretical justification of this kind. In addition, this Article investigates the degree to which it will be justifiable, under such an approach, for international human rights law or national constitutions, to give special …
The Sex Side Of Civil Liberties: United States V. Dennett And The Changing Face Of Free Speech, Laura Weinrib
The Sex Side Of Civil Liberties: United States V. Dennett And The Changing Face Of Free Speech, Laura Weinrib
Public Law and Legal Theory Working Papers
No abstract provided.