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Full-Text Articles in Law
Regulatory Taxings, Eduardo Peñalver
Regulatory Taxings, Eduardo Peñalver
Articles
The tension between the Supreme Court's expansive reading of the Takings Clause and the state's virtually limitless power to tax has been repeatedly noted, but has received little systematic exploration. Although some scholars, most notably Richard Epstein, have used the tension between takings law and taxes to argue against the legitimacy of taxation as it is presently practiced, such an approach has failed to gain a significant following. Instead, the broad legal consensus is that legislatures effectively have unlimited authority to impose tax burdens. Nevertheless, this Article demonstrates that every attempt to formulate a "Reconciling Theory," a theory that would …
The Decline Of The International Court Of Justice, Eric A. Posner
The Decline Of The International Court Of Justice, Eric A. Posner
Coase-Sandor Working Paper Series in Law and Economics
The International Court of Justice is the judicial organ of the United Nations and the preeminent international court, but its caseload is light and has declined over the long term relative to the number of states. This paper examines evidence of the ICJ’s decline, and analyzes two possible theories for this decline. The first is that states stopped using the ICJ because the judges did not apply the law impartially but favored the interests of their home states. The second is that the ICJ has been the victim of conflicting interests among the states that use and control it.
A Social Networks Theory Of Privacy, Lior Strahilevitz
A Social Networks Theory Of Privacy, Lior Strahilevitz
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
How The Law Responds To Self-Help, Douglas Gary Lichtman
How The Law Responds To Self-Help, Douglas Gary Lichtman
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Is The International Court Of Justice Biased?, Eric A. Posner, Miguel F. P. De Figueiredo
Is The International Court Of Justice Biased?, Eric A. Posner, Miguel F. P. De Figueiredo
Coase-Sandor Working Paper Series in Law and Economics
The International Court of Justice has jurisdiction over disputes between nations, and has decided dozens of cases since it began operations in 1946. Its defenders argue that the ICJ decides cases impartially and confers legitimacy on the international legal system. Its critics argue that the members of the ICJ vote the interests of the states that appoint them. Prior empirical scholarship is ambiguous. We test the charge of bias using statistical methods. We find strong evidence that (1) judges favor the states that appoint them, and (2) judges favor states whose wealth level is close to that of the judges' …
Minimalism At War, Cass R. Sunstein
Minimalism At War, Cass R. Sunstein
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
The Law And Economics Of Contract Interpretation, Richard A. Posner
The Law And Economics Of Contract Interpretation, Richard A. Posner
Coase-Sandor Working Paper Series in Law and Economics
Contract interpretation is an understudied topic in the economic analysis of contract law. This paper combines simple formal analysis of the tradeoffs involved in interpretation with applications to the principal doctrines of contract interpretation, including the "four corners" rule, mutual mistake, contra proferentum, and what I call the (informal but very important) rule of "extrinsic nonevidence." Gap filling is distinguished, and the relativity of interpretive doctrine to the interpretive medium—jurors, arbitrators, and judges in different kinds of judicial system—is emphasized.
Cordell Hull, The Reciprocal Trade Agreement Act, And The Wto, Kenneth W. Dam
Cordell Hull, The Reciprocal Trade Agreement Act, And The Wto, Kenneth W. Dam
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Cost-Benefit Analysis And The Environment, Cass R. Sunstein
Cost-Benefit Analysis And The Environment, Cass R. Sunstein
Coase-Sandor Working Paper Series in Law and Economics
This review-essay explores the uses and limits of cost-benefit analysis in the context of environmental protection, focusing on three recent books: Priceless, by Frank Ackerman and Lisa Heinzerling; Cellular Phones, Public Fears, and A Culture of Precaution, by Adam Burgess; and Catastrophe: Risk and Response, by Richard A. Posner. The review-essay emphasizes three principal limitations on the use of cost-benefit analysis. First, it is important to distinguish between the easy cases for cost-benefit analysis, in which the beneficiaries of regulation pay all or almost all of its cost, from the harder cases, in which the beneficiaries pay little for the …
The Canon Of Family Law, Jill Elaine Hasday
The Canon Of Family Law, Jill Elaine Hasday
Public Law and Legal Theory Working Papers
No abstract provided.
The Right To Marry, Cass R. Sunstein
The Right To Marry, Cass R. Sunstein
Public Law and Legal Theory Working Papers
The Supreme Court has said that there is a constitutional “right to marry”; but what can this possibly mean? People do not have a right to marry their dog, their aunt, June 29, a rose petal, their neighbors, or a sunny day. This essay attempts to make some progress in understanding both the content and the scope of the right to marry. With respect to content, it concludes that people have no more and no less than this: a right of access to whatever expressive and material benefits the state now provides for the institution of marriage. It follows that …
Three Strategies Of Interpretation, Adrian Vermeule
Three Strategies Of Interpretation, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
Unbundling Scope-Of-Permission Goods: When Should We Invest In Reducing Entry Barriers?, Randal C. Picker
Unbundling Scope-Of-Permission Goods: When Should We Invest In Reducing Entry Barriers?, Randal C. Picker
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Cyber Security: Of Heterogeneity And Autarky, Randal C. Picker
Cyber Security: Of Heterogeneity And Autarky, Randal C. Picker
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Debiasing Through Law, Cass R. Sunstein, Christine Jolls
Debiasing Through Law, Cass R. Sunstein, Christine Jolls
Coase-Sandor Working Paper Series in Law and Economics
Human beings are often boundedly rational. In the face of bounded rationality, the legal system might attempt either to "debias law," by insulating legal outcomes from the effects of boundedly rational behavior, or instead to "debias through law," by steering legal actors in more rational directions. Legal analysts have focused most heavily on insulating outcomes from the effects of bounded rationality. In fact, however, a large number of actual and imaginable legal strategies are efforts to engage in debiasing through law – to help people reduce or even eliminate boundedly rational behavior. In important contexts, these efforts promise to avoid …
Constitutional Amendments And The Constitutional Common Law, Adrian Vermeule
Constitutional Amendments And The Constitutional Common Law, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
The Sympathetic Discriminator: Mental Illness And The Ada, Elizabeth Emens
The Sympathetic Discriminator: Mental Illness And The Ada, Elizabeth Emens
Public Law and Legal Theory Working Papers
Discrimination against people with mental illness occurs in part because of how those with mental illness can make other people feel. A psychotic person may make others feel agitated or afraid, for example, or a depressed person may make others feel sad or frustrated. Thus, a central basis for discrimination in this context is what I call hedonic costs. Hedonic costs are affective or emotional costs: an influx of negative emotion or loss of positive emotion. In addition, the phenomenon of emotional contagion, which is one source of hedonic costs, makes discrimination against people with mental illness peculiarly intractable. Emotional …
Corporate Heroin: A Defense Of Perks, James C. Spindler, M. Todd Henderson
Corporate Heroin: A Defense Of Perks, James C. Spindler, M. Todd Henderson
Coase-Sandor Working Paper Series in Law and Economics
We argue that firms undertake to reduce employee savings in order to avoid final period problems that occur when employees accumulate enough wealth to retire and leave the industry. Normally, reputation constrains employee behavior, since an employee who "cheats" at one firm will then find herself unable to get a job at another. However, employees who have saved such that they no longer care about continued employment will act opportunistically in the final periods of employment, which can destroy much or all of the surplus otherwise created by the employment relationship. We believe that this sort of final period cheating …
Dollars And Death, Cass R. Sunstein, Eric A. Posner
Dollars And Death, Cass R. Sunstein, Eric A. Posner
Coase-Sandor Working Paper Series in Law and Economics
Administrative regulations and tort law both impose controls on activities that cause mortality risks, but they do so in puzzlingly different ways. Under a relatively new and still-controversial procedure, administrative regulations rely on a fixed value of a statistical life representing the hedonic loss from death. Under much older law, tort law in most states excludes hedonic loss from the calculation of damages, and instead focuses on loss of income, which regulatory policy ignores. Regulatory policy also disregards losses to dependents; tort law usually allows dependents to recover for loss of support. Regulatory policy generally treats the loss of the …
Group Judgments: Deliberation, Statistical Means, And Information Markets, Cass R. Sunstein
Group Judgments: Deliberation, Statistical Means, And Information Markets, Cass R. Sunstein
Coase-Sandor Working Paper Series in Law and Economics
How can groups elicit and aggregate the information held by their individual members? There are three possibilities. Groups might use the statistical mean of individual judgments; they might encourage deliberation; or they might use information markets. In both private and public institutions, deliberation is the standard way of proceeding; but for two reasons, deliberating groups often fail to make good decisions. First, the statements and acts of some group members convey relevant information, and that information often leads other people not to disclose what they know. Second, social pressures, imposed by some group members, often lead other group members to …
Precautions Against What? The Availability Heuristic And Cross-Cultural Risk Perceptions, Cass R. Sunstein
Precautions Against What? The Availability Heuristic And Cross-Cultural Risk Perceptions, Cass R. Sunstein
Coase-Sandor Working Paper Series in Law and Economics
Because risks are all on sides of social situations, it is not possible to be globally "precautionary." Hence the Precautionary Principle runs into serious conceptual difficulties; any precautions will themselves create hazards of one or another kind. When the principle gives guidance, it is often because of the availability heuristic, which can make some risks stand out as particularly salient, whatever their actual magnitude. The same heuristic helps to explain differences across groups, cultures, and even nations in the perception of risks, especially when linked with such social processes as cascades and group polarization. One difficulty here is that what …
Group Judgments: Deliberation, Statistical Means, And Information Markets, Cass R. Sunstein
Group Judgments: Deliberation, Statistical Means, And Information Markets, Cass R. Sunstein
Public Law and Legal Theory Working Papers
How can groups elicit and aggregate the information held by their individual members? The most obvious answer involves deliberation. For two reasons, however, deliberating groups often fail to make good decisions. First, the statements and acts of some group members convey relevant information, and that information often leads other people not to disclose what they know. Second, social pressures, imposed by some group members, often lead other group members to silence themselves because of fear of disapproval and associated harms. The unfortunate results include the propagation of errors; hidden profiles; cascade effects; and group polarization. A variety of steps should …
Mitigation And The Americans With Disabilities Act, Jill Elaine Hasday
Mitigation And The Americans With Disabilities Act, Jill Elaine Hasday
Public Law and Legal Theory Working Papers
No abstract provided.
The Economics Of Public International Law, Alan O. Sykes
The Economics Of Public International Law, Alan O. Sykes
Coase-Sandor Working Paper Series in Law and Economics
This paper is a preliminary draft for eventual inclusion in the Handbook of Law and Economics, A. Mitchell Polinsky & Steven Shavell editors. It reviews and synthesizes the work of economists and law and economics scholars in the field of public international law. The bulk of that work has been in the area of international trade, but many of the ideas in the trade literature have implications for other subfields. Recent years have seen a significant increase in research on other topics as well. The paper begins with a general framework for thinking about the positive and normative economics of …
Company Stock, Market Rationality, And Legal Reform, Stephen P. Utkus, Richard H. Thaler, Cass R. Sunstein, Shlomo Benartzi
Company Stock, Market Rationality, And Legal Reform, Stephen P. Utkus, Richard H. Thaler, Cass R. Sunstein, Shlomo Benartzi
Coase-Sandor Working Paper Series in Law and Economics
Some eleven million 401(k) plan participants take a concentrated equity position in their retirement savings account, investing more than 20% of the balance in their employer's common stock. Yet investing in the stock of one’s employer is a risky investment on two counts: single securities are riskier than diversified portfolios (such as mutual funds), and the employee's human capital is typically positively correlated with the performance of the company. In the worst-case scenario, illustrated by the Enron bankruptcy, workers can lose their jobs and much of their retirement wealth simultaneously. For workers who expect to work for the company for …
Conflict Or Credibility: Analyst Conflicts Of Interest And The Market For Underwriting Business, James C. Spindler
Conflict Or Credibility: Analyst Conflicts Of Interest And The Market For Underwriting Business, James C. Spindler
Coase-Sandor Working Paper Series in Law and Economics
This paper argues that, contrary to conventional wisdom, conflicts of interest among equities research analysts (i.e., where investment banks would offer positive analyst research in quid pro quos for underwriting business) were beneficial to the capital markets. First, conflicted analyst research credibly signaled positive inside information that is otherwise too costly to communicate under 1933 Act liability, correcting adverse-selection problems. Second, conflicted analyst research mitigated agency costs between issuer and underwriter by allowing the underwriter to credibly commit to seek a higher offering price than the underwriter would prefer. Third, analyst research quid pro quos took the form of a …
Holding Internet Service Providers Accountable, Douglas Gary Lichtman, Eric A. Posner
Holding Internet Service Providers Accountable, Douglas Gary Lichtman, Eric A. Posner
Coase-Sandor Working Paper Series in Law and Economics
Internet service providers are today largely immune from liability for their role in the creation and propagation of worms, viruses, and other forms of malicious computer code. In this Essay, we question that state of affairs. Our purpose is not to weigh in on the details—for example, whether liability should sound in negligence or strict liability, or whether liability is in this instance best implemented by statute or via gradual common law development. Rather, our aim is to challenge the recent trend in the courts and Congress away from liability and toward complete immunity for Internet service providers. In our …
Disaggregating 'War', Derek Jinks
Disaggregating 'War', Derek Jinks
Public Law and Legal Theory Working Papers
This Term, the Supreme Court addressed several important questions regarding the role of law and legal institutions in the “war on terrorism.” Specifically, the Court issued important rulings concerning (1) the scope of the President’s war powers; (2) the rights of enemy combatants; and (3) the proper role of courts in time of war. Much remains unresolved by the Court’s opinions, but several basic propositions about the legal concept of “war” are reaffirmed. Presidents enjoy some extraordinary powers in time of war; the role of the judiciary is diminished in some important respects (but not extinguished) in time of war; …
Is The President Bound By The Geneva Conventions?, Derek Jinks, David Sloss
Is The President Bound By The Geneva Conventions?, Derek Jinks, David Sloss
Public Law and Legal Theory Working Papers
The United States is party to several treaties that regulate the conduct of war, including the 1949 Geneva Conventions on the Protection of War Victims. These treaties require belligerent states, as a matter of international law, to accord fair and humane treatment to enemy nationals subject to their authority in time of war. Moreover, these treaties are, as a matter of domestic law, part of the Supreme Law of the Land. The scope and content of the Conventions have assumed central importance in debates about U.S. policy toward al Qaeda and Taliban detainees held at Guantanamo Bay, Cuba. Indeed, several …
The Uniqueness Of Foreign Affairs, Jide Nzelibe
The Uniqueness Of Foreign Affairs, Jide Nzelibe
Public Law and Legal Theory Working Papers
This Article attempts to explain and justify the exceptional treatment that courts accord foreign affairs issues under the political question doctrine. For the most part, academic commentators have attacked the political question doctrine, arguing that the doctrine is both incoherent and inconsistent with the Marbury tradition of judicial review. Challenging the conventional academic wisdom, this Article contends that institutional competence considerations continue to warrant broad application of the doctrine in the foreign affairs context. More specifically, this Article argues that the power-based nature of most international policy decisions continues to constrain the power of the courts to adjudicate on foreign …