Law Commons^™

Procedural Flexibility In Three Dimensions, Ronen Avraham, William Hubbard, Itay E. Lipschits

Public Law and Legal Theory Working Papers

No abstract provided.

Norming In Adminstrative Law, Jonathan Masur, Eric A. Posner

Public Law and Legal Theory Working Papers

No abstract provided.

Personalizing Mandatory Rules In Contract Law, Omri Ben-Shahar

Public Law and Legal Theory Working Papers

Mandatory rules provide people protections they might otherwise fail to secure in their contracts. Because people vary in the degree of protection they need and the cost of protection they can afford, one-size-fits-all rules are too weak for some and too strong for others. This Essay examines the case for personalized mandatory protections. With the increasing availability of information about consumers, the law may soon be able to tailor mandatory protections that vary with each individual’s characteristics. We show that personalized protections increase the overall contractual surplus and prompt more people to enter into contracts. It eliminates cross-subsidies within a …

Limited Inalienability Rules, Ariel Porat, Stephen D. Sugarman

Public Law and Legal Theory Working Papers

Most people’s entitlements are protected by a property rule, which means that their holders can sell them for a price. But some important entitlements are protected by an inalienability rule, and hence cannot be sold under any circumstances. For example, people cannot sell their organs. In most jurisdictions, women cannot be surrogate mothers for a fee (only for reimbursement of costs). People cannot sell their right not to be exposed to highly life-threatening conditions. Most constitutional rights are not transferrable. People cannot reassign their legal entitlements to social benefits provided by the government. Tort victims in many jurisdictions cannot sell …

Sexual Harassment And Corporate Law, Daniel Hemel, Dorothy S. Lund

Public Law and Legal Theory Working Papers

The year 2017 marked an inflection point in the evolution of social norms regarding sexual harassment. While victims of workplace harassment had long suffered in silence, the surfacing of serious sexual misconduct allegations against Hollywood producer Harvey Weinstein encouraged many more victims to tell their personal stories of abuse. These scandals have spread beyond Hollywood to the rest of corporate America, leading to the departures of several high-profile executives as well as sharp stock price declines at a number of firms. In the past year, shareholders at four publicly traded companies have filed lawsuits alleging that corporate directors and officers …

Patents, Property, And Prospectivity, Jonathan Masur, Adam Mortara

Public Law and Legal Theory Working Papers

When judges change the legal rules governing patents, those changes are always retroactive. That is, they apply equally to patents that have already been granted and patents that do not yet exist. There are benefits to making a change in the law retroactive, particularly if the new legal rule is an improvement over what preceded it. But there are costs as well. Retroactive changes in the law upset reliance interests. This can be particularly harmful when those reliance interests involve rights or entitlements that form the basis for substantial financial investment, as is often the case with patents. What is …

Collective Bargaining Rights And Police Misconduct: Evidence From Florida, Dhammika Dharmapala, Richard H. Mcadams, John Rappaport

Public Law and Legal Theory Working Papers

Growing controversy surrounds the impact of labor unions on law enforcement behavior. Critics argue that unions impede organizational reform and insulate officers from discipline for misconduct. Yet collective bargaining tends to increase wages, which could improve officer behavior. We provide quasi-experimental empirical evidence on the effects of collective bargaining rights on violent incidents of misconduct. Our empirical strategy exploits a 2003 Florida Supreme Court decision (Williams), which conferred collective bargaining rights on sheriffs’ deputies, resulting in a substantial increase in unionization among these officers. Using a Florida state administrative database of “moral character” violations reported by local agencies between 1996 …

Data Pollution, Omri Ben-Shahar

Public Law and Legal Theory Working Papers

Digital information is the fuel of the new economy. But like the old economy’s carbon fuel, it also pollutes. Harmful “data emissions” are leaked into the digital ecosystem, disrupting social institutions and public interests. This article develops a novel framework—data pollution—to rethink the harms the data economy creates and the way they have to be regulated. It argues that social intervention should focus on the external harms from collection and misuse of personal data. The article challenges the hegemony of the prevailing view—that the injuries from digital data enterprise are exclusively private. That view has led lawmakers to focus solely …

Gender Discrimination In Online Markets, Christopher Anthony Cotropia, Jonathan Masur, David L. Schwartz

Public Law and Legal Theory Working Papers

We study whether a seller’s gender impacts the bargained-for price in a product market, specifically baseball cards, as well whether any discrimination that might be present is taste-based or statistically-based. We accomplish this by isolating the seller’s gender using an online transaction on eBay where the buyer is exposed to the seller’s gender by only the seller’s hand and name. We test for differential treatment in two environments: a field experiment, in which we actually sell cards on eBay, and a laboratory experiment, in which we conduct surveys via Amazon Mechanical Turk (MTurk). We find that there is consistent differential …

Disagreement, Anti-Realism About Reasons, And Inference To The Best Explanation, Brian Leiter

Public Law and Legal Theory Working Papers

No abstract provided.

New Light On The Trial Of Billy Budd, Richard H. Mcadams, Jacob Corre

Public Law and Legal Theory Working Papers

Few American literary works have been the subject of as much academic commentary as has Billy Budd, Herman Melville’s unfinished final novel.¹ Possibly no American novel has garnered more attention from those interested in the roles that law plays in understanding literature. To summarize what some regard as a novel immune to summary: Billy Budd is a guileless and winsome impressed crewman on board an English man o’ war in 1797. England is at war, and recent mutinies fill the navy with anxiety. Budd is prone to bouts of severe stuttering. John Claggart, the ship’s master-at-arms, brings a malicious …

A Framework For The New Personalization Of Law, Anthony Casey, Anthony Niblett

Public Law and Legal Theory Working Papers

Law has always strived for accurate contextualization, but only with recent technological advances in data processing and communication has this goal become meaningfully achievable at the personal level. While the other essays in this Symposium explore the costs and benefits of personalizing particular areas of law, we present a general framework for thinking about the new personalization of law. We identify two fundamental questions that every personalization project must address: First, how do lawmakers set the objective of a personalized law? Second, how is the content of a personalized law communicated to the citizens who must follow it? We explore …

Police Violence In The Wire, Jonathan Masur, Richard H. Mcadams

Public Law and Legal Theory Working Papers

Police brutality—the unsanctioned, unlawful use of force by police against unarmed (and often defenseless) civilians—is one of the recurring motifs of The Wire.¹ The violence occurs in a variety of settings: occasionally the victim of the police brutality has done something to precipitate it (though the brutality is never justified), but more often the violence is unprovoked and senseless. Some police are one-time wrongdoers; others are repeat offenders. Some officers participate in the actual beatings, while others only cover up for the actions of their fellow officers. But in sum, the violence is regular and recurring, if not omnipresent. …

A Regulatory Classification Of Digital Assets: Toward An Operational Howey Test For Cryptocurrencies, Icos, And Other Digital Assets, M. Todd Henderson

Public Law and Legal Theory Working Papers

Digital assets are hot right now. Whether cryptocurrencies, like bitcoin, or initial coin offerings and tokens, this new asset class has captured the imagination of American investors. While it remains to be seen if this phenomenon has staying power, there is no doubt that these assets and their promoters have attracted the attention of the Securities and Exchange Commission. But neither Congress nor the SEC has formally elucidated which digital assets are securities and which are not.

This Article seeks to provide clarity in determining which digital assets are securities. It proposes two tests that operationalize the Supreme Court’s test …

The Marginal Revenue Rule In Cost-Benefit Analysis, David A. Weisbach, Daniel J. Hemel, Jennifer Nou

Public Law and Legal Theory Working Papers

In April, Treasury and the Office of Management and Budget released a memorandum of agreement stating that tax related regulations will be subject to centralized review by OMB’s Office of Information and Regulatory Affairs (OIRA).¹ Importantly, the memorandum instructs Treasury to give OIRA a formal cost-benefit analysis of any regulatory action that has an annual non-revenue effect on the economy of $100 million or more. Regulations that create interagency inconsistencies or raise “novel” legal or policy issues are also subject to OIRA review. For these “significant” regulations, the memorandum requires a less formal cost-benefit analysis.

These new mandates require …

The Dance Of Partisanship And Districting, Nicholas O. Stephanopoulos

Public Law and Legal Theory Working Papers

Academic studies of redistricting tend to be either doctrinal or empirical, but not both. As a result, the literature overlooks some of the most important aspects of the mapmaking process and its judicial supervision, like how they relate to the broader American political context. In this Article, I try to fill this gap. I first observe that the half-century in which federal courts have decided redistricting cases can be divided into two periods: one lasting from the 1960s to the 1980s, in which voters and politicians were both comparatively nonpartisan; and another reaching from the 1990s to the present day, …

Personalizing Precommitment, Lee Anne Fennell

Public Law and Legal Theory Working Papers

This Essay examines the potential for law to facilitate tailored precommitments to help people address self-control problems. This flavor of personalized law is unique in that it is voluntarily chosen and self-administered. There are practical and normative limits on the degree to which people can bind themselves in ways that they cannot later escape, but law can offer mechanisms that would help people design and implement flexible precommitments. Research suggests two potential lines for innovation. First, partitioning access to resources may constrain consumption in contexts from dieting to saving, even when the partitions can be unilaterally broken. Second, the chunkiness …

Legality In Contemporary Chinese Politics, Taisu Zhang, Tom Ginsburg

Public Law and Legal Theory Working Papers

The picture of Chinese law that many Western scholars and commentators portray is an increasingly bleak one: since the mid-2000s, China has been retreating from legal reform back into unchecked authoritarianism. This article argues that, much to the contrary, Chinese politics have in fact become substantially more law-oriented over the past five years. The Chinese Communist Party under Xi Jinping has indeed centralized power and control to an almost unprecedented extent, but it has done this in a highly legalistic way, empowering courts against other state and Party entities, insisting on legal professionalism, and bringing political powers that were formerly …

Regulatory Bundling, Jennifer Nou, Edward H. Stiglitz

Public Law and Legal Theory Working Papers

Regulatory bundling is the aggregation or disaggregation of legislative rules by administrative agencies. Agencies, in other words, can bundle what would otherwise be multiple rules into just one rulemaking. Conversely, they can split one rule into several. This observation parallels other recent work on how agencies can aggregate adjudications and enforcement actions but now focuses on legislative rules, the most consequential form of agency action. The topic is timely in light of a recent executive order directing agencies to repeal two regulations for every new one promulgated. Agencies now have a greater incentive to pack regulatory provisions together for every …

Article Ii And Antidiscrimination Norms, Aziz Z. Huq

Public Law and Legal Theory Working Papers

The Supreme Court’s judgment in Trump v. Hawai’i validated a prohibition on entry to the United States from several largely Muslim-majority countries, and at the same time repudiated a longstanding precedent associated with the Japanese-American internment of World War II. This Article closely analyzes the relationship of these twin holdings. It uses their dichotomous valances as a lens onto the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a generative tension between the two holdings. Contrary to …

Fourth Amendment Gloss, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Conventional wisdom suggests that a constitutional right will constrain government actors. But a right defined in terms of what the state routinely does would impose in practice no brake on state action—and so seem pointless. Nevertheless, in defining Fourth Amendment rights, the Supreme Court frequently draws on the practice of regulated government actors to define the constitutional floor for police action. This Article is the first to isolate and analyze this seemingly paradoxical judicial practice. It labels it “Fourth Amendment gloss,” after an analogous mode of reasoning in separation-of-powers cases. The Article’s first aim is descriptive—to catalog the various ways …

Assessing The Empirical Upside Of Personalized Criminal Procedure, Matthew B. Kugler, Lior Jacob Strahilevitz

Public Law and Legal Theory Working Papers

Though personalization of law is often viewed as a new idea, pockets of criminal procedure already tolerate it. Many courts have held that Miranda warnings must be tailored when read to juveniles or people with limited English proficiency; a suspect’s age is necessarily part of the judicial calculus when determining whether the police’s questioning of her is a custodial interrogation; and some state courts consider a person’s demographic characteristics when deciding whether they have consented to a search. The question before us now is whether society should go further. Should the law of criminal procedure pay more attention to individual …

The Consequences Of The Tcja's International Provisions: Lessons From Existing Research, Dhammika Dharmapala

Public Law and Legal Theory Working Papers

This paper discusses the potential consequences of the international tax provisions of the recent Tax Cut and Jobs Act (TCJA), drawing on existing research. The TCJA’s dividend exemption provision is expected to eliminate distortions to the amount and timing of dividend repatriations. However, the efficiency gains from increased repatriations – which are primarily expected to increase shareholder payout – are likely to be modest. The paper uses the observed behavior of firms during the repatriation tax holiday implemented in 2005 to infer the relative magnitudes of the burdens created by the repatriation tax under the old (pre-TCJA) regime and by …

The Cross-Examination Of Mayella Ewell, Richard H. Mcadams

Public Law and Legal Theory Working Papers

No abstract provided.

Gender Discrimination In Online Markets, Christopher Anthony Cotropia, Jonathan S. Masur, David L. Schwartz

Public Law and Legal Theory Working Papers

We study whether a seller’s gender impacts the bargained-for price in a product market, specifically baseball cards, as well whether any discrimination that might be present is tastebased or statistically-based. We accomplish this by isolating the seller’s gender using an online transaction on eBay where the buyer is exposed to the seller’s gender by only the seller’s hand and name. We test for differential treatment in two environments: a field experiment, in which we actually sell cards on eBay, and a laboratory experiment, in which we conduct surveys via Amazon Mechanical Turk (MTurk). We find that there is consistent differential …

Legal Or Political Checks On Apex Criminality: An Essay On Constitutional Design, Aziz Z. Huq

Public Law and Legal Theory Working Papers

How should constitutional designers address the problem of apex criminality, or criminal actions by those elected or appointed to high positions in a national government? I offer three general observations about this difficult question of constitutional design. First, it is not at all clear that a constitutional designer ought to expend effort on creating accountability mechanisms to address apex criminality. Second, if a designer does choose to address the question, she must opt between two highly imperfect options—a ‘legal’ mechanism embedded in a nonpartisan body such as a prosecutor’s office, or a ‘political’ mechanism, which runs through an elected body …

The Supreme Court Of India: An Empirical Overview Of The Institution, Aparna Chandra, William H.J. Hubbard, Sital Kalantry

Public Law and Legal Theory Working Papers

The Indian Supreme Court has been called “the most powerful court in the world” for its wide jurisdiction, its expansive understanding of its own powers, and the billion plus people under its authority. Yet scholars and policy makers have a very uneven picture of the court’s functioning: deep knowledge about the more visible, “high-profile” cases but very little about more mundane, but far more numerous and potentially equally important, decisions. This chapter aims to address this imbalance with a rigorous, empirical account of the Court’s decisions from 2010 to 2015. We use the most extensive original dataset of Indian Supreme …

Accountability Claims In Constitutional Law, Nicholas Stephanopoulos

Public Law and Legal Theory Working Papers

Several of the Supreme Court’s most controversial constitutional doctrines hinge on claims about electoral accountability. Restrictions on the President’s power to remove agency heads are disfavored because they reduce the President’s accountability for agency actions. Congress cannot delegate certain decisions to agencies because then Congress is less accountable for those choices. State governments cannot be federally commandeered because such conscription lessens their accountability. And campaign spending must be unregulated so that more information reaches voters and helps them to reward or punish incumbents for their performances.

There is just one problem with these claims. They are wrong—at least for the …

Racial Equity In Algorithmic Criminal Justice, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Algorithmic tools for predicting violence and criminality are being used more and more in policing, bail, and sentencing. Scholarly attention to date has focused on their procedural due process implications. My aim here is to consider these instruments’ interaction with the enduring racial legacies of the criminal justice system There are two competing lenses for evaluating the racial effects of algorithmic criminal justice: constitutional doctrine and emerging technical standards of “algorithmic fairness.” I argue first that constitutional doctrine is poorly suited to the task. It will often fail to capture the full range of racial issues that potentially arise in …

How War Makes (And Unmakes) The Democratic State: Reading The Reluctant Fundamentalist And Exit West In A Populism Age, Aziz Z. Huq

Public Law and Legal Theory Working Papers

War makes the state, and war makes the state democratic—or so the conventional wisdom holds. But the wars of the twenty-first century will have a distinct complexion from wars of the century just passed. As war and democracy alike change, their relationship alters. This book chapter examines that relationship through the lens of two recent novels by Mohsin Hamid, The Reluctant Fundamentalist and Exit West. The protagonists of these novels stand in some fashion for the two main vectors by which war is perceived to, and indeed does, work a change to the democratic state—the terrorist and the migrant. The …