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Full-Text Articles in Law
The New Legal Realism, Cass R. Sunstein, Thomas J. Miles
The New Legal Realism, Cass R. Sunstein, Thomas J. Miles
Coase-Sandor Working Paper Series in Law and Economics
The last decade has witnessed the birth of the New Legal Realism—an effort to go beyond the old realism by testing competing hypotheses about the role of law and politics in judicial decisions, with reference to large sets and statistical analysis. The New Legal Realists have uncovered a Standard Model of Judicial Behavior, demonstrating significant differences between Republican appointees and Democratic appointees, and showing that such differences can be diminished or heightened by panel composition. The New Legal Realists have also started to find that race, sex, and other demographic characteristics sometimes have effects on judicial judgments. At the same …
Are Judges Overpaid?: A Skeptical Response To The Judicial Salary Debate, Eric A. Posner, G. Mitu Gulati, Stephen J. Choi
Are Judges Overpaid?: A Skeptical Response To The Judicial Salary Debate, Eric A. Posner, G. Mitu Gulati, Stephen J. Choi
Coase-Sandor Working Paper Series in Law and Economics
Nearly everyone thinks that judges are underpaid, but theory and evidence provide little support for this view. Theory suggests that increasing judicial salaries will improve judicial performance only if judges can be sanctioned for performing inadequately or if the appointments process reliably screens out low-ability candidates. However, federal judges and many state judges cannot be sanctioned, and the reliability of screening processes is open to question. An empirical study of the high court judges of the 50 states provides little evidence that raising salaries would improve judicial performance. The case for a pay raise has not been made.
Economic Efficiency Versus Public Choice: The Case Of Property Rights In Road Traffic, Jonathan Remy Nash
Economic Efficiency Versus Public Choice: The Case Of Property Rights In Road Traffic, Jonathan Remy Nash
Coase-Sandor Working Paper Series in Law and Economics
This Article argues, using the case of responses to traffic congestion, that public choice provides a greater explanation for the emergence of property rights than does economic efficiency. While the traditional solution to traffic congestion is to provide new roadway capacity, that is not an efficient response in that it does not lead to internalization of costs. Moreover, over time new capacity may serve to exacerbate congestion problems: New roadway capacity may induce additional travel that would not have taken place but for the new construction. By contrast, congestion charges—that is, imposing tolls designed to force drivers to internalize the …
Everything Old Is New Again: Lessons From Dodge V. Ford Motor Company, M. Todd Henderson
Everything Old Is New Again: Lessons From Dodge V. Ford Motor Company, M. Todd Henderson
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Extremism And Social Learning, Cass R. Sunstein, Edward L. Glaeser
Extremism And Social Learning, Cass R. Sunstein, Edward L. Glaeser
Coase-Sandor Working Paper Series in Law and Economics
When members of deliberating groups speak with one another, their predeliberation tendencies often become exacerbated as their views become more extreme. The resulting phenomenon—group polarization—has been observed in many settings, and it bears on the actions of juries, administrative tribunals, corporate boards, and other institutions. Polarization can result from rational Bayesian updating by group members, but in many contexts, this rational interpretation of polarization seems implausible. We argue that people are better seen as Credulous Bayesians, who insufficiently adjust for idiosyncratic features of particular environments and put excessive weight on the statements of others where there are 1) common sources …
The Economic Costs Of Inequality, Richard H. Mcadams
The Economic Costs Of Inequality, Richard H. Mcadams
Coase-Sandor Working Paper Series in Law and Economics
This brief chapter surveys some of the economic literature concerning the instrumental costs of material inequality. Economic theory predicts, and econometric evidence finds, that inequality increases crime and political corruption and, in certain circumstances, constrains growth.
The Real World Of Arbitrariness Review, Cass R. Sunstein, Thomas J. Miles
The Real World Of Arbitrariness Review, Cass R. Sunstein, Thomas J. Miles
Coase-Sandor Working Paper Series in Law and Economics
The Administrative Procedure Act instructs federal courts to invalidate agency decisions that are "arbitrary" or "capricious." In its 1983 decision in the State Farm case, the Supreme Court firmly endorsed the idea that arbitrariness review requires courts to take a "hard look" at agency decisions. The hard look doctrine has been defended as a second-best substitute for insistence on the original constitutional safeguards; close judicial scrutiny is said to discipline agency decisions and to constrain the illegitimate exercise of discretion. In the last two decades, however, hard look review has been challenged on the plausible but admittedly speculative ground that …
Controlling Avian Influenza In Chickens, Maciej Boni, Anup Malani, Abraham Wickelgren, Ramanan Laxminarayan
Controlling Avian Influenza In Chickens, Maciej Boni, Anup Malani, Abraham Wickelgren, Ramanan Laxminarayan
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Reputation Nation: Law In An Era Of Ubiquitous Personal Information, Lior Strahilevitz
Reputation Nation: Law In An Era Of Ubiquitous Personal Information, Lior Strahilevitz
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
The Taxation Of Carried Interests In Private Equity, David A. Weisbach
The Taxation Of Carried Interests In Private Equity, David A. Weisbach
Coase-Sandor Working Paper Series in Law and Economics
This essay analyzes the tax treatment of carried interests in private equity. It argues that there are two competing analogies: service income and investment income. Standard approaches are not able to resolve which of the competing analogies is better and often fail even to recognize that there are competing analogies. The best method for determining the proper treatment of carried interests is through direct examination of the effects of each of the possible treatments, known as the theory of line drawing in the tax law. From this approach, it is clear that the better treatment of holders of carried interests …
An Empirical Investigation Into Appellate Structure And The Perceived Quality Of Appellate Review, Rafael I. Pardo, Jonathan Remy Nash
An Empirical Investigation Into Appellate Structure And The Perceived Quality Of Appellate Review, Rafael I. Pardo, Jonathan Remy Nash
Coase-Sandor Working Paper Series in Law and Economics
Commentators have theorized that several factors may improve the process, and thus perhaps the accuracy, of appellate review: (1) review by a panel of judges, (2) subject-matter expertise in the area of the appeal, (3) other lawfinding ability, (4) adherence to traditional notions of appellate hierarchy, and (5) the judicial independence of appellate judges. The considerable discussion that has expounded upon these theories has occurred in a vacuum of abstract generalization. This Article adds a new dimension by presenting the results of an empirical study of bankruptcy appellate opinions issued over a three-year period. The federal bankruptcy appellate structure provides …
Availability Cascades And Risk Regulation, Cass R. Sunstein, Timur Kuran
Availability Cascades And Risk Regulation, Cass R. Sunstein, Timur Kuran
Coase-Sandor Working Paper Series in Law and Economics
An availability cascade is a self-reinforcing process of collective belief formation by which an expressed perception triggers a chain reaction that gives the perception increasing plausibility through its rising availability in public discourse. The driving mechanism involves a combination of informational and reputational motives: Individuals endorse the perception partly by learning from the apparent beliefs of others and partly by distorting their public responses in the interest of maintaining social acceptance. Availability entrepreneurs-- activists who manipulate the content of public discourse-strive to trigger availability cascades likely to advance their agendas. Their availability campaigns may yield social benefits, but sometimes they …
From Seriatim To Consensus And Back Again: A Theory Of Dissent, M. Todd Henderson
From Seriatim To Consensus And Back Again: A Theory Of Dissent, M. Todd Henderson
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Homeownership 2.0, Lee Anne Fennell
Homeownership 2.0, Lee Anne Fennell
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Causation In Tort: General Populations Vs. Individual Cases, Cass R. Sunstein, William Meadow
Causation In Tort: General Populations Vs. Individual Cases, Cass R. Sunstein, William Meadow
Coase-Sandor Working Paper Series in Law and Economics
To establish causation, a tort plaintiff must show that it is "more probable than not" that the harm would not have occurred if the defendant had followed the relevant standard of care. Statistical evidence, based on aggregate data, is sometimes introduced to show that the defendant's conduct created a statistically significant increase in the likelihood that the harm would occur. But there is a serious problem with the use of such evidence: It does not establish that in the particular case, the injury was more likely than not to have occurred because the defendant behaved negligently. Under existing doctrine, a …
Consumption Taxation Is Still Superior To Income Taxation, David A. Weisbach, Joseph Bankman
Consumption Taxation Is Still Superior To Income Taxation, David A. Weisbach, Joseph Bankman
Coase-Sandor Working Paper Series in Law and Economics
This essay responds to an article by Daniel Shaviro which argues in part that the failure of empirical assumptions behind the permanent income hypothesis undermines the case for preferring consumption taxation over income taxation. We consider each of Shaviro's arguments and conclude that none change the basic considerations in favor of consumption taxation in any significant way. Shaviro concludes that administrability and implementation concerns should be central to the choice of the tax base and that these concerns are likely to point to taxing consumption. We agree with this conclusion.
Other People's Money, M. Todd Henderson, Douglas G. Baird
Other People's Money, M. Todd Henderson, Douglas G. Baird
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Reforming Entrapment Doctrine In United States V. Hollingsworth, Richard H. Mcadams
Reforming Entrapment Doctrine In United States V. Hollingsworth, Richard H. Mcadams
Coase-Sandor Working Paper Series in Law and Economics
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
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 …
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 …
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 …