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Full-Text Articles in Law
Amending Constituting Identity, Rosalind Dixon
Amending Constituting Identity, Rosalind Dixon
Public Law and Legal Theory Working Papers
Constitutional amendment procedures can create constitutional change in two ways: by providing evidence of popular support for constitutional change, and by changing the textual basis for subsequent acts of constitutional interpretation. Both mechanisms have clearly also succeeded, in various countries, in creating changes in the domain of constitutional identity. The question the essay investigates is whether there is nonetheless something peculiar about this domain that makes it especially difficult to succeed in using both these amendment mechanisms, simultaneously, in the quest for constitutional change. To explore this question, the essay draws on two distinct attempts to “amend” constitutional identity in …
The Illusory Right To Abandon, Eduardo Peñalver
The Illusory Right To Abandon, Eduardo Peñalver
Articles
The unilateral and unqualified nature of the right to abandon (at least as it is usually described) appears to make it a robust example of the law's concern to safeguard the individual autonomy interests that many contemporary commentators have identified as lying at the heart of the concept of private ownership. The doctrine supposedly empowers owners of chattels freely and unilaterally to abandon them by manifesting the clear intent to do so, typically by renouncing possession of the object in a way that communicates the intent to forgo any future claim to it. A complication immediately arises, however due to …
The Constitution Of The Roman Republic: A Political Economy Perspective, Eric A. Posner
The Constitution Of The Roman Republic: A Political Economy Perspective, Eric A. Posner
Coase-Sandor Working Paper Series in Law and Economics
The constitution of the Roman Republic featured a system of checks and balances that would eventually influence the American founders, yet it had very different characteristics from the system of separation of powers that the founders created. The Roman senate gave advice but did not legislate; the people voted directly on bills and appointments in popular assemblies; and a group of magistrates, led by a pair of consuls, proposed bills, brought prosecutions, served as judges, led military forces, and performed other governmental functions. This paper analyzes the Roman constitution from the perspective of agency theory, and argues that the extensive …
Pricing Terms In Sovereign Debt Contracts: A Greek Case Study With Implications For The European Crisis Resolution Mechanism, Eric A. Posner, Stephen J. Choi, G. Mitu Gulati
Pricing Terms In Sovereign Debt Contracts: A Greek Case Study With Implications For The European Crisis Resolution Mechanism, Eric A. Posner, Stephen J. Choi, G. Mitu Gulati
Coase-Sandor Working Paper Series in Law and Economics
Conventional wisdom holds the boilerplate contract terms are ignored by parties, and thus are not priced into contracts. We test this view by comparing Greek sovereign bonds that have Greek choice-of-law terms and Greek sovereign bonds that have English choice-of-law terms. Because Greece can change the terms of Greek-law bonds unilaterally by changing Greek law, and cannot change the terms of English-law bonds, Greek-law bonds should be riskier, with higher yields and lower prices. The spread between the two types of bonds should increase when the probability of Greek default increases. Recent events allow us to test this hypothesis, and …
Written Constitutions And The Administrative State: On The Constitutional Character Of Administrative Law, Tom Ginsburg
Written Constitutions And The Administrative State: On The Constitutional Character Of Administrative Law, Tom Ginsburg
Public Law and Legal Theory Working Papers
No abstract provided.
On The Evasion Of Executive Term Limits, Tom Ginsburg, James Melton, Zachary Elkins
On The Evasion Of Executive Term Limits, Tom Ginsburg, James Melton, Zachary Elkins
Public Law and Legal Theory Working Papers
Executive term limits are pre-commitments through which the polity restricts its ability to retain a popular executive down the road. But in recent years, many presidents around the world have chosen to remain in office even after their initial maximum term in office has expired. They have largely done so by amending the constitution, sometimes by replacing it entirely. The practice of revising higher law for the sake of a particular incumbent raises intriguing issues that touch ultimately on the normative justification for term limits in the first place. This article reviews the normative debate over term limits and identifies …
Constitutional Specificity, Unwritten Understandings And Constitutional Agreement, Tom Ginsburg
Constitutional Specificity, Unwritten Understandings And Constitutional Agreement, Tom Ginsburg
Public Law and Legal Theory Working Papers
No abstract provided.
The Constitution Of The Roman Republic: A Political Economy Perspective, Eric A. Posner
The Constitution Of The Roman Republic: A Political Economy Perspective, Eric A. Posner
Public Law and Legal Theory Working Papers
The constitution of the Roman Republic featured a system of checks and balances that would eventually influence the American founders, yet it had very different characteristics from the system of separation of powers that the founders created. The Roman senate gave advice but did not legislate; the people voted directly on bills and appointments in popular assemblies; and a group of magistrates, led by a pair of consuls, proposed bills, brought prosecutions, served as judges, led military forces, and performed other governmental functions. This paper analyzes the Roman constitution from the perspective of agency theory, and argues that the extensive …
The Limits Of Constitutional Convergence, Eric A. Posner, Rosalind Dixon
The Limits Of Constitutional Convergence, Eric A. Posner, Rosalind Dixon
Public Law and Legal Theory Working Papers
Globalization, some legal scholars suggest, is a force that makes increasing convergence among different countries' constitutions more or less inevitable. This Essay explores this hypothesis by analyzing both the logic – and potential limits – to four different mechanisms of constitutional convergence: first, changes in global “superstructure”; second, comparative learning; third, international coercion; and fourth, global competition. For each mechanism, it shows, quite special conditions will in fact be required before global convergence is likely even at the level of legal policy. At a constitutional level, it further suggests, it will be even rarer for these mechanisms to create wholesale …
Retribution And The Experience Of Punishment, Jonathan Masur, John Bronsteen, Christopher Buccafusco
Retribution And The Experience Of Punishment, Jonathan Masur, John Bronsteen, Christopher Buccafusco
Articles
No abstract provided.
Willpower Taxes, Lee Anne Fennell
Willpower Taxes, Lee Anne Fennell
Coase-Sandor Working Paper Series in Law and Economics
Self-control and related concepts appear regularly in tax discussions, but often they are invoked hazily or blurred together with other aspects of choice over time. Despite the evident relevance of willpower to consumption patterns, wealth accumulation, and, ultimately, well-being, there is no consensus about whether and how heterogeneity along this dimension should factor into tax policy. There is support in the tax literature for such divergent responses as funneling more resources to low-willpower people, penalizing them for their lapses, and limiting their choices. Whether we should follow one of these approaches, or some other approach entirely, requires a careful analysis …
Agency Design And Distributive Politics, Jacob Gersen, Christopher R. Berry
Agency Design And Distributive Politics, Jacob Gersen, Christopher R. Berry
Coase-Sandor Working Paper Series in Law and Economics
This paper targets the intersection of two generally distinct literatures: political control of administrative agencies and distributive politics. Based on a comprehensive database of federal spending that tracks allocations from each agency to each congressional district for every year from 1984 through 2007, we analyze the responsiveness of agency spending decisions to presidential and congressional influences. Our research design uses district-by-agency fixed effects to identify the effects of a district's political characteristics on agency spending allocations. Because most agencies distribute federal funds, we are able to provide empirical evidence about the relationship between structural features of administrative agencies and the …
Agency Design And Distributive Politics, Jacob Gersen, Christopher R. Berry
Agency Design And Distributive Politics, Jacob Gersen, Christopher R. Berry
Public Law and Legal Theory Working Papers
This paper targets the intersection of two generally distinct literatures: political control of administrative agencies and distributive politics. Based on a comprehensive database of federal spending that tracks allocations from each agency to each congressional district for every year from 1984 through 2007, we analyze the responsiveness of agency spending decisions to presidential and congressional influences. Our research design uses district-by-agency fixed effects to identify the effects of a district’s political characteristics on agency spending allocations. Because most agencies distribute federal funds, we are able to provide empirical evidence about the relationship between structural features of administrative agencies and the …
Willpower Taxes, Lee Anne Fennell
Willpower Taxes, Lee Anne Fennell
Public Law and Legal Theory Working Papers
Self-control and related concepts appear regularly in tax discussions, but often they are invoked hazily or blurred together with other aspects of choice over time. Despite the evident relevance of willpower to consumption patterns, wealth accumulation, and, ultimately, well-being, there is no consensus about whether and how heterogeneity along this dimension should factor into tax policy. There is support in the tax literature for such divergent responses as funneling more resources to low-willpower people, penalizing them for their lapses, and limiting their choices. Whether we should follow one of these approaches, or some other approach entirely, requires a careful analysis …
The Razors-And-Blades Myth(S), Randal C. Picker
The Razors-And-Blades Myth(S), Randal C. Picker
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Voters, Non-Voters, And The Implications Of Election Timing For Public Policy, Jacob Gersen, Christopher R. Berry
Voters, Non-Voters, And The Implications Of Election Timing For Public Policy, Jacob Gersen, Christopher R. Berry
Coase-Sandor Working Paper Series in Law and Economics
This paper makes use of variation in the timing of local elections to shed light on one of the core questions in democratic politics: what would happen if everyone voted? Does a low voter turnout rate imply that a small subset of special interest voters controls politics and policy? Or, are voters largely representative of non-voters such that neither the outcomes of elections nor resulting public policies would change even if everyone participated? Rather than rely on surveys of nonvoters to extrapolate their hypothetical behavior, we rely on a natural experiment created by a 1980s change in the California Election …
Damages For Unlicensed Use, Omri Ben-Shahar
Damages For Unlicensed Use, Omri Ben-Shahar
Coase-Sandor Working Paper Series in Law and Economics
This article investigates the distinction between breach of license and infringement of property rights, and how damages ought to be measured for each. It identifies two remedial puzzles. First, under current law the line between breach of a license contract and infringement of a property right is murky, and thus minor differences between violations could lead to major differences in damage measures. Second, damages for infringement are augmented in a subtle but distortive way, by giving owners an option to choose between the greater of two computation measures, each based on different information. The article argues that these existing remedial …
Human Rights, The Laws Of War, And Reciprocity, Eric A. Posner
Human Rights, The Laws Of War, And Reciprocity, Eric A. Posner
Coase-Sandor Working Paper Series in Law and Economics
Human rights law does not appear to enjoy as high a level of compliance as the laws of war, yet is institutionalized to a greater degree. This paper argues that the reason for this difference is related to the strategic structure of international law. The laws of war are governed by a regime of reciprocity, which can produce self-enforcing patterns of behavior, whereas the human rights regime attempts to produce public goods and is thus subject to collective action problems. The more elaborate human rights institutions are designed to overcome these problems but fall prey to second-order collective action problems. …
Pseudonymous Litigation, Lior Strahilevitz
Pseudonymous Litigation, Lior Strahilevitz
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Risk As A Proxy For Race, Bernard E. Harcourt
Risk As A Proxy For Race, Bernard E. Harcourt
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Pseudonymous Litigation, Lior Strahilevitz
Pseudonymous Litigation, Lior Strahilevitz
Public Law and Legal Theory Working Papers
No abstract provided.
Retribution And The Experience Of Punishment, Jonathan Masur, John Bronsteen, Christopher Buccafusco
Retribution And The Experience Of Punishment, Jonathan Masur, John Bronsteen, Christopher Buccafusco
Public Law and Legal Theory Working Papers
No abstract provided.
Risk As A Proxy For Race, Bernard E. Harcourt
Risk As A Proxy For Race, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
No abstract provided.
Voters, Non-Voters, And The Implications Of Election Timing For Public Policy, Jacob Gersen, Christopher R. Berry
Voters, Non-Voters, And The Implications Of Election Timing For Public Policy, Jacob Gersen, Christopher R. Berry
Public Law and Legal Theory Working Papers
This paper makes use of variation in the timing of local elections to shed light on one of the core questions in democratic politics: what would happen if everyone voted? Does a low voter turnout rate imply that a small subset of special interest voters controls politics and policy? Or, are voters largely representative of non-voters such that neither the outcomes of elections nor resulting public policies would change even if everyone participated? Rather than rely on surveys of nonvoters to extrapolate their hypothetical behavior, we rely on a natural experiment created by a 1980s change in the California Election …
Welfare As Happiness, Jonathan Masur, John Bronsteen, Christopher Buccafusco
Welfare As Happiness, Jonathan Masur, John Bronsteen, Christopher Buccafusco
Articles
No abstract provided.
What Is So Special About Intangible Property? The Case For Intelligent Carryovers, Richard A. Epstein
What Is So Special About Intangible Property? The Case For Intelligent Carryovers, Richard A. Epstein
Coase-Sandor Working Paper Series in Law and Economics
One of the major controversies in modern intellectual property law is the extent to which property rights conceptions, developed in connection with land or other forms of tangible property, can be carried over to different forms of property, such as rights in the spectrum or in patents and copyrights. This article defends the thesis that, once the differences in the optimal duration of patents and copyrights are taken into account, the carryover of basic property conceptions from tangible to intangible property should be much encouraged. In some instances, the property rights concepts applicable to land often work even better for …
Carbon Dioxide: Our Newest Pollutant, Richard A. Epstein
Carbon Dioxide: Our Newest Pollutant, Richard A. Epstein
Coase-Sandor Working Paper Series in Law and Economics
Ever since the controversial Supreme Court decision in Massachusetts v. EPA, carbon dioxide has been treated as a pollutant under the Clean Air Act. This article argues that this decision was wrong as a matter of statutory construction and sound as a matter of sound social policy: the CAA is the wrong vehicle to deal with either carbon dioxide of global warming. On the present state of the evidence, the case for strong restraints on carbon dioxide emissions has not been made. The evidence in favor of the close linkage between carbon dioxide and global warming has not been clearly …
Climate Regulation And The Limits Of Cost-Benefit Analysis, Eric A. Posner, Jonathan Masur
Climate Regulation And The Limits Of Cost-Benefit Analysis, Eric A. Posner, Jonathan Masur
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
One Bridge Too Far: Why The Employee Free Choice Act Has, And Should, Fail, Richard A. Epstein
One Bridge Too Far: Why The Employee Free Choice Act Has, And Should, Fail, Richard A. Epstein
Coase-Sandor Working Paper Series in Law and Economics
The Employer Free Choice Act has had enjoyed strong academic support. but thus far has been stymied by fierce political resistance to its central positions that first institute a card-check for the selection of a union and then requires mandatory arbitration if the parties cannot agree to a new contract within 130 days of union recognition. This articles critiques the arguments made in support of this fundamental revision of labor law offered by Craig Becker, Benjamin Sachs, and Catherine Fisk & Adam Pulver, all of which purport to show that flaws in the current system of collective bargaining need major …
Patent Inflation, Jonathan Masur
Patent Inflation, Jonathan Masur
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.