Law Commons^™

Innovation Institutions And The Opioid Crisis, Daniel J. Hemel, Lisa Larrimore Ouellette

Public Law and Legal Theory Working Papers

The US has recently—and belatedly—come to recognize opioid addiction as a public health crisis. What has gone mostly unrecognized is the degree to which this crisis is intertwined with US intellectual property law and related elements of US innovation policy. Innovation institutions—the legal arrangements that structure incentives for production and allocation of knowledge goods—encouraged the development and commercialization of addictive painkillers, restricted access to opioid antidotes, and (perhaps most importantly) failed to facilitate investments in alternative, nonaddictive treatments for chronic pain. Although innovation policy does not bear all the blame for the opioid wave that has washed over communities across …

Chevronizing Around Cost-Benefit Analysis, Jonathan S. Masur, Eric A. Posner

Public Law and Legal Theory Working Papers

The Trump administration’s efforts to weaken regulations are in tension with cost-benefit analysis, which in many cases supports those regulations or otherwise fails to support the administration’s deregulatory objectives. Rather than attempting to justify its actions as a matter of policy preferences, the administration has responded on multiple occasions by using Chevron to interpret statutes so as to evade cost-benefit analysis. The statutory interpretation route, which we call “Chevronizing” around cost-benefit analysis, creates novel challenges for courts, as it pits traditional Chevron deference against a trend in favor of requiring agencies to regulate based on costbenefit analysis as a matter …

Indexing, Unchained, Daniel J. Hemel

Public Law and Legal Theory Working Papers

No abstract provided.

Property As The Law Of Complements, Lee Anne Fennell

Public Law and Legal Theory Working Papers

Resources often produce more value in combination than they do separately: think of segments of a highway or parts of a machine. I argue that property’s defining purpose is to group together complements, and that property law and theory should focus on identifying and realizing valuable bundles of resources. While some complementarities align with traditional asset boundaries and can be protected by exclusion rights, realizing others requires crossing or eschewing boundaries to recombine resources in ways that further larger social, economic, or ecological objectives. The gains associated with the entrenching and excluding functions of property thus vie with the gains …

Owning Bad: Leverage And Spite In Property Law, Lee Anne Fennell

Public Law and Legal Theory Working Papers

No abstract provided.

Outside Advisers Inside Agencies, Brian D. Feinstein, Daniel J. Hemel

Public Law and Legal Theory Working Papers

Advisory committees are a ubiquitous, yet understudied feature of the administrative state. More than seventy-five thousand experts from out-side the federal government serve on over one thousand committees across the Executive Branch, providing agencies with informed “second opinions” to complement their in-house experts in the civil service. By law, these committees must be “fairly balanced in terms of the points of view represented.” Yet little is known about whether advisory committees live up to this standard, under what circumstances agencies utilize these panels, and how advisory committees influence agency decisionmaking.

This Article sheds light on the composition and operation of …

State Politics And Mortgage Markets, Brian D. Feinstein, Chen Meng, Manisha Padi

Public Law and Legal Theory Working Papers

This article examines whether elections for state offices that regulate mortgage lenders affect mortgage markets. Some scholars assert that election-related political uncertainty depresses economic activity; others contend that incumbents pursue policies to boost short-term growth prior to elections; and a third group claims that market activity fluctuates around partisan transitions. We test these theories using national data on mortgage characteristics and election data for two important state regulators. We first conduct event studies comparing mortgage market outcomes before and after elections. We then utilize difference-in-difference models to compare states in which partisan control of key offices switched following an election. …

A Public Health Framework For Covid-19 Business Liability, Daniel Hemel, Daniel B. Rodriguez

Public Law and Legal Theory Working Papers

Businesses that reopen amid the COVID-19 pandemic face potential legal liability to customers and workers who contract the coronavirus through those enterprises’ operations. Federal and state lawmakers are actively considering proposals to narrow or expand such liability. These proposals have important economic and public-health implications. This article presents an analytical framework for evaluating liability regimes in the context of a communicable disease. The framework highlights the contrasting public-health consequences of liability before and after a customer or worker is exposed to the virus. Ex ante (before exposure), potential liability generates incentives for businesses to take precautions that reduce the risk …

A Network Theory Of Patentability, Laura G. Pedraza-Fariña, Ryan Whalen

University of Chicago Law Review

Patent law is built upon a fundamental premise: only significant inventions receive patent protection while minor improvements remain in the public domain. This premise is indispensable for maintaining an optimal balance between incentivizing new innovation and providing public access to existing innovation. Despite its importance, the doctrine that performs this gatekeeping role—nonobviousness— has long remained indeterminate and vague. Judicial opinions have struggled to articulate both what makes an invention significant (or nonobvious) and how to measure nonobviousness in specific cases. These difficulties are due in large part to the existence of two clashing theoretical frameworks, cognitive and economic, that have …

The Limits Of Good Law: A Study Of Housing Court Outcomes, Nicole Summers

University of Chicago Law Review

The enactment of the warranty of habitability in the early 1970s was hailed as a revolution in tenants’ rights. Reversing centuries of legal precedent, the doctrine established that a tenant’s obligation to pay rent is contingent upon the landlord’s obligation to maintain the premises in good repair. Today, nearly fifty years later, scholars and advocates frequently observe that the law has not lived up to the potential originally envisioned. Yet these observations have been based on weak empirical evidence. This Article presents the results of the first rigorous empirical study on the effectiveness of the warranty of habitability. Based on …

Tort Liability And The Risk Of Discriminatory Government, Ehud Guttel, Ariel Porat

University of Chicago Law Review

When individuals and firms fail to invest in adequate care, the government often steps in, taking costly measures to restore safety or mitigate harm. Under such circumstances, a question arises as to whether the government can demand recovery for its costs. For many years, the answer has been negative; tort law has persistently refused to render negligent individuals and firms liable for governmental expenditures. Yet recently, the law changed markedly. Recognizing that the no-liability regime subsidizes faulty behavior, an increasing number of jurisdictions have established the right of public entities to sue for reimbursement of costs. Against this backdrop, this …

Policy Implications Of The Common Ownership Debate, Eric A. Posner

Coase-Sandor Working Paper Series in Law and Economics

The debate over common ownership initiated by Azar, Schmalz, and Tecu’s paper on airlines has raised questions about what, if any, policy responses are appropriate when common owners reduce competition in product markets. This paper, a response to a symposium for Antitrust Bulletin, reviews the literature on policy responses and evaluates various reform proposals in light of recent empirical and theoretical developments.

The Economic Basis Of The Independent Contractor/Employee Distinction, Eric Posner

Coase-Sandor Working Paper Series in Law and Economics

In recent years, a controversy has erupted over the distinction between employees and independent contractors. Commentators have argued that in the modern “gig economy,” many people traditionally classified as independent contractors are as vulnerable as employees and should be granted the legal protections that employees alone normally enjoy. However, the distinction between the two categories remains inescapable, and the theoretical basis for it has not been identified. I argue that the distinction is derived from market structure. Employees are workers who, because they must make relationship-specific investments in a single firm, are subject to labor monopsony. Independent contractors do not …

Drugs, Patents, And Well-Being, Christopher Buccafusco, Jonathan S. Masur

Coase-Sandor Working Paper Series in Law and Economics

The ultimate end of patent law must be to spur innovations that improve human welfare—innovations that make people better off. But firms will only invest resources in developing patentable inventions that will allow them to make money—that is, inventions that people will want to use and buy. This can gravely distort the types of incentives that firms face and the types of inventions they pursue. Nowhere is this truer than in the pharmaceutical field. There is by now substantial evidence that treatments for diseases that primarily afflict poorer people—including the citizens of developing nations—are dramatically under-produced, compared with drugs that …

Innovation Institutions And The Opioid Crisis, Daniel J. Hemel, Lisa Larrimore Ouellette

Coase-Sandor Working Paper Series in Law and Economics

The United States has recently—and belatedly—come to recognize opioid addiction as a public health crisis. What has gone mostly unrecognized is the degree to which this crisis is intertwined with U.S. intellectual property law and related elements of U.S. innovation policy. Innovation institutions—the legal arrangements that structure incentives for production and allocation of knowledge goods—encouraged the development and commercialization of addictive painkillers, restricted access to opioid antidotes, and (perhaps most importantly) failed to facilitate investments in alternative, non-addictive treatments for chronic pain. Although innovation policy does not bear all the blame for the opioid wave that has washed over communities …

Chevronizing Around Cost-Benefit Analysis, Jonathan S. Masur, Eric A. Posner

Coase-Sandor Working Paper Series in Law and Economics

The Trump administration’s efforts to weaken regulations are in tension with cost-benefit analysis, which in many cases supports those regulations or otherwise fails to support the administration’s deregulatory objectives. Rather than attempting to justify its actions as a matter of policy preferences, the administration has responded on multiple occasions by using Chevron to interpret statutes so as to evade cost-benefit analysis. The statutory interpretation route, which we call “Chevronizing” around cost-benefit analysis, creates novel challenges for courts, as it pits traditional Chevron deference against a trend in favor of requiring agencies to regulate based on cost-benefit analysis as a matter …

Exclusionary Advertising? The Case For Cautious Enforcement Of 42 Usc § 3604(C) Against Minority-Language Housing Advertisements, Emily A. Vernon

University of Chicago Law Review

Section 804(c) of the Fair Housing Act (FHA), codified at 42 USC § 3604(c), prohibits advertisements that “indicate[ ] any preference” on the basis of race, national origin, and other protected categories. The text of the FHA, however, is ambiguous regarding its applicability to the language in which housing advertisements appear, raising the specter of potential liability in communities where residents speak and write in multiple languages. Using Chicago’s Chinatown as a case study, this Comment examines whether the exclusive use of Chinese-language advertisements for housing in Chinatown violates § 3604(c). I begin by enumerating a series of factors that …

Table Of Contents, Table Of Contents

Chicago Journal of International Law

No abstract provided.

You Shall Not Pass!How The Dublin System Fueled Fortress Europe, Ashley Binetti Armstrong

Chicago Journal of International Law

t This Article examines the recent proliferation of walls and fences in Europe, fueled by the Dublin Regulation’s failure to distribute responsibility for asylum seekers equitably among European states. Legal scholarship does not lack literature bemoaning the failures of the E.U.’s Dublin Regulation—which dictates, generally, that the country where an asylum seeker first enters the E.U. is responsible for processing his or her claim for protection. Yet scholarship on border walls and fences, and what induces European states to construct them, is not prominent in the literature. The critiques lodged against the Dublin Regulation have primarily focused on its futility …

In Defense Of The Special Tribunal For Lebanon And Thecase For International Corporate Accountability, Osama Alkhawaja

Chicago Journal of International Law

In 2014, the Special Tribunal for Lebanon (“STL”) examined evolving international standards of corporate accountability and held that legal entities can be found liable for criminal conduct as a general principle of international law. Prior to this decision, and in stark contrast to trends in domestic legal regimes, no legal entity had ever been prosecuted, convicted, or sentenced in an international court. Although this marked a watershed moment in global corporate accountability mechanisms, it has had little precedential effect; scholars have argued it is because the decision lacked a valid legal basis and is limited in scope. This Comment addresses …

The International Human Right To Adequate Housing:An Economic Approach, Sahar Segal

Chicago Journal of International Law

International law recognizes a right to adequate housing. Affordability is one component of this right, and it is increasingly unrealized in highly concentrated cities in advanced economies. The prevailing approach to the right to adequate housing is the human rights approach, which favors government involvement in the market to reduce housing prices, for example, via rentcontrol regulations and policies that limit the use of housing as primarily an investment. This Comment notes that this approach misses the critical fact that governments are already involved in the housing market through the imposition of zoning laws. It suggests that an economic approach, …

When Is Cyber Defense A Crime? Evaluating Activecyber Defense Measures Under Thebudapest Convention, Alexandra Van Dine

Chicago Journal of International Law

As cyberattacks increase in frequency and intensity around the globe, private actors have turned to more innovative cyber defense strategies. For many, this involves considering the use of cutting-edge active cyber defense measures—that is, tactics beyond merely erecting firewalls and installing antivirus software that permit cyber defenders to detect and respond to threats in real time. The legality of such measures under international law is a subject of intense debate because of definitional uncertainty surrounding what qualifies as an “active” cyber defense measure. This Comment argues that active defense measures that do not rise to the level of a cybercrime …

What Global Human Rights Obligations Do We Have?, Elena Pribytkova

Chicago Journal of International Law

This Article explores global human rights obligations, which form the least elucidated and the most unfulfilled type of extraterritorial obligations. Global obligations represent a key legal tool for empowering the most vulnerable individuals and social groups, promoting social justice, and reducing extreme poverty and inequality worldwide. Despite their importance, global obligations have not yet received adequate legal recognition, regulation, and realization. The Article outlines the main contours of the conception of global obligations. While defending a human rights-based cosmopolitan concept of justice, it addresses issues surrounding the nature, status, content, scope, and hierarchy of moral duties towards non-compatriots and shows …