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Full-Text Articles in Law
Miscalculating Welfare, Michael B. Dorff, Kimberly Kessler Ferzan
Miscalculating Welfare, Michael B. Dorff, Kimberly Kessler Ferzan
All Faculty Scholarship
In their quest to maximize efficiency, law and economics scholars often produce novel, creative, and counterintuitive legal rules. Indeed, legal economists have argued for baby selling, against anti-discrimination laws in the workplace, and for insider trading. In this essay, we discuss some concerns about this form of legal scholarship that privileges the creative and counterintuitive over the fair, mundane, and intuitive. Drawing on a range of empirical evidence, this essay argues that the failure to include, and to give sufficient weight to, fairness preferences undermines legal economists' policy recommendations. Specifically, after setting forth three examples of this phenomenon, in the …
Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine
Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine
Articles
"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even …