Law Commons^™

Labor Mobility And The Problems Of Modern Policing, Jonathan S. Masur, Aurélie Ouss, John Rappaport

Coase-Sandor Working Paper Series in Law and Economics

We document and discuss the implications of a striking feature of modern American policing: the stasis of police labor forces. Using an original employment dataset assembled through public records requests, we show that, after the first few years on a job, officers rarely change employers, and intermediate officer ranks are filled almost exclusively through promotion rather than lateral hiring. Policing is like a sports league, if you removed trades and free agency and left only the draft in place.

We identify both nonlegal and legal causes of this phenomenon—ranging from geographic monopolies to statutory and collectively bargained rules about pensions, …

Does Esg Crowd Out Support For Government Regulation?, Hajin Kim, Joshua Macey, Kristen Underhill

Coase-Sandor Working Paper Series in Law and Economics

Do voluntary corporate prosocial efforts reduce or amplify support for government regulation? We build a theory of opposing mechanisms. Voluntary efforts could make it seem like the problem is being fixed (“Coca-Cola is already tackling plastic waste!”) and thus that regulation is unnecessary. Or they could make the problem seem more important (“even Walmart is addressing this”) or regulation more feasible (“regulation will not impose excessive costs on industry”). Because these factors move in opposing directions, we posit that any crowding-in or crowding-out effects will be small and context-dependent. To test our theory, we ran two preregistered, randomized controlled studies …

Privacy Protection, At What Cost? Exploring The Regulatory Resistance To Data Technology In Auto Insurance, Omri Ben-Shahar

Coase-Sandor Working Paper Series in Law and Economics

Regulatory and sociological resistance to new market-driven technologies, particularly to those that rely on collection and analysis of personal data, is prevalent even in cases where the technology creates large social value and saves lives. This article is a case study of such tragic technology resistance, focusing on tracking devices in cars which allow auto insurers to monitor how policyholders drive and adjust the premiums accordingly. Growing empirical work reveals that such “usage-based insurance” induces safer driving, reducing fatal accidents by almost one third, and resulting in more affordable and fair premiums. Yet, California prohibits this technology and other states …

Property As Service Streams, Lee Anne Fennell

Coase-Sandor Working Paper Series in Law and Economics

Property’s job is to help people derive benefits from resources.¹ But often it cannot do this work well. A core problem is an outmoded model of benefit production that treats the individually owned parcel or “thing” as the relevant unit of analysis.² Property theorists often use the example of a farm to illustrate how ownership induces people to invest (in sowing) by granting them exclusive rights (to reap the crops).³ On this account, property holdings operate in a largely self-contained fashion, collecting inputs from owners and delivering the associated returns to them. The primary role of property …

Sharing Where Bargains Are Impossible, Saul Levmore, Andrew Verstein

Coase-Sandor Working Paper Series in Law and Economics

Cooperation sometimes breaks down, and former teammates will disagree about what happens next. for example, when can an employee quit to join a competitor? Courts often resolve disputes by looking at the parties actual or hypothetical bargain. Thus, a court may ask whether there was a non-competition agreement (and whether it was reasonable), or whether the employee is taking a “corporate opportunity” as she departs. These are all-or-nothing determinations by courts; either the bargain, or law, fully allows or fully prohibits the disputed conduct.

This is a suitable approach when fair and efficient bargains are possible. But, this article argues …

Simplicity And Complexity In Law And In Markets, Saul Levmore

Coase-Sandor Working Paper Series in Law and Economics

Richard Epstein’s Simple Rules for a Complex World1 is true to its title and to the author’s demonstrated genius over a long career. It is a libertarian-oriented enterprise in that it requires the reader to share in the belief that government programs are often wasteful and subject to unattractive interest group pressures and corrupt bureaucracies. More generally, Simple Rules is framed against a background in which the reader must share the libertarian view that individuals can and should be trusted to look after themselves and to make their own choices. Epstein likes “simple” rules; these include strict liability, a flat …

No-Poach Antitrust Litigation In The United States, Eric A. Posner, Sarah Hammond Roberts

Coase-Sandor Working Paper Series in Law and Economics

In recent years, U.S. courts have heard numerous antitrust lawsuits challenging agreements among employers not to poach one another’s employees. The major issues so far involve labor market definition, the doctrine of ancillary restraints, the role of cross-market balancing, and the scope of the per se rule in the labor market context. The recent Seventh Circuit case of Deslandes v. McDonald’s has clarified some of these issues and will likely boost this form of litigation. But many questions remain unanswered.

How Progressive Is The U.S. Tax System?, Thomas Coleman, David A. Weisbach

Coase-Sandor Working Paper Series in Law and Economics

We examine changes in tax progressivity over time. Because there are many possible definitions of progressivity and because methods of defining and allocating income vary, we look for results that are robust across studies and definitions of progressivity. To do this, we compare the results from three different publicly available datasets, those from Piketty, Saez, and Zucman (2018), Auten and Splinter (2023) and Congressional Budget Office (2023). Notwithstanding some headline results to the contrary, all three datasets show that the tax system has become more progressive and more redistributive over the last several decades, with much of that change occurring …

Strategic Subdelegation, Brian D. Feinstein, Jennifer Nou

Coase-Sandor Working Paper Series in Law and Economics

Appointed leaders of administrative agencies routinely record subdelegations of governmental authority to civil servants. That appointees willingly cede authority in this way presents a puzzle, at least at first glance: Why do these appointees assign their power to civil servants insulated by merit protection laws, that is, to employees over whom they have limited control? This article develops and tests a theory to explain this behavior. Using original data on appointee-to-civil servant delegations and a measure of the ideological distance between these two groups of actors, we show that appointees are more willing to vest power in civil servants when …

Timing The Regulatory Tightrope, Adriana Z. Robertson

Coase-Sandor Working Paper Series in Law and Economics

Regulators face a hard problem. Novel products are developed and launched all the time. At first, regulators have very little information about the product, including its risks and benefits. Moving too quickly to impose regulations is therefore risky. And since the market for a nascent product is generally small, the benefits of regulation may also be small. It therefore makes sense to let the market develop a bit before taking action.

But waiting too long to intervene can also be perilous. Once enough time has passed, and the product becomes established, it can become extremely difficult to intervene. Now there …

Grid Reliability In The Electric Era, Joshua Macey, Shelley Welton, Hannah Wiseman

Coase-Sandor Working Paper Series in Law and Economics

The United States has delegated the weighty responsibility of keeping the lights on to a self-regulatory organization called the North American Electric Reliability Corporation (NERC). Despite the fact that NERC is one of the largest and most important examples of industry-led governance—and regulates in an area that is central to our economy and basic human survival— this unusual institution has received scant attention from policymakers and scholars. Such attention is overdue. To achieve deep decarbonization, the United States must enter a new “electric era,” transitioning many sectors to run on electricity while also transforming the electricity system itself to run …

Time Is A Flat Circle: Lessons From Past And Present Conspiracy Theories, Lucille A. Jewel

Scholarly Works

This essay analyzes how conspiracy theories were viewed in the 1990s, particularly in the context of the then-existing debate over racial differences in perception, and how they are dealt with today, where prevalent conspiracy theory adherents are White and conservative (QAnon, Pizzagate, and widespread voter fraud) in the 2020 election). In the 1990s, conflict over conspiracy theories was part of a larger culture war involving critical race theory, conspiracy thinking, truth, reason, and post-modern theory. These cultural flashpoints are obviously still with us today. But now, high-profile persons holding false, unreasonable beliefs often hail from the right and are assailed …

Human Trafficking, Cults, & Coercion: The Use Of Drugs As A Tool, Robin Boyle Laisure

Faculty Publications

Thanks to the successful prosecution of sex traffickers, the definition and proof of “coercion” now encompasses evidence showing the use of addictive drugs as a tool. This article describes two case examples, and in both, the perpetrators supplied abundant amounts of addictive substantives. Once those victims became addicted and feared the pain of withdrawal, the sex traffickers forced the victims to perform commercial sex acts to pay off the drug debt they incurred, feeding the addiction the traffickers caused. Coercion by way of intentional drug addiction and control is a theory that expands the operative word “coercion.” This short article …

Justice Lazansky On “Repose” At Chief Judge Cardozo’S New York Court Of Appeals, John Q. Barrett

Faculty Publications

(Excerpt)

In 1948, Edward Lazansky of Brooklyn wrote a long letter to his friend Jacob Billikopf of Philadelphia. It included an amusing story that Lazansky had heard at some point about his friend Benjamin N. Cardozo, who had died ten years earlier. Billikopf liked the story. He retyped it and mailed it to prominent people who had known Cardozo.

Lazansky and Billikopf had it right. The story, which generally checks out, should be shared. It gives a glimpse of Cardozo’s talents and virtues, including his judicial sense of humor.

Deliberate Indifference: Respondeat Superior Liability For Municipalities In Civil Rights Cases As An Alternative To Qualitative Immunity Reform, Mark C. Niles

Faculty Publications

The police killing of George Floyd in Minneapolis, Minnesota, has resulted in a renewed focus on adjudication of civil rights claims against government officials and the perceived inadequacy of the legal resolution of these claims. Calls for reform or complete removal of the defense of qualified immunity for government officials have been central to these discussions.

This Article argues that while arguments for qualified immunity reform are convincing and vital, the exclusive focus on this aspect of civil rights adjudication is misplaced and serves as a distraction from a more basic and consequential flaw in the constitutional tort jurisprudence: the …

A Defense Of Principled Positivism, Brandon Walker

Prize Winning Papers

Winner of THE 2023 FRED G. LEEBRON MEMORIAL PRIZE, to the graduating student who has written the best paper in the field of constitutional law.

The Beauty Of Shorts: Ten Tips On Writing A Publishable Short Piece, Robin Boyle Laisure, Brooke J. Bowman

Faculty Publications

(Excerpt)

Based upon our experience serving on editorial boards of peer-reviewed law journals for over twenty years combined, we encourage faculty who teach legal research and writing to write short scholarly pieces. While books have been written on how to write scholarly articles, and law schools offer students courses on writing journal articles, there is little information about how to write a scholarly piece that is short. This Essay fills that gap and provides advice for constructing a publishable short.

Thompson V. Clark And The “Reasonable” Policing Of Marginalized Families, Anna Arons

Faculty Publications

This Article uses the experience of Larry Thompson, the plaintiff in Thompson v. Clark, 142 S. Ct. 1332 (2022), to examine the absence of privacy for poor families, particularly poor Black, Latinx, and Native families, in the United States. Mr. Thompson may end up remembered in legal history as a victor, as the Supreme Court lowered the barriers to bringing malicious prosecution claims and reinstated Mr. Thompson’s own previously dismissed malicious prosecution claim. Yet before securing this victory, Mr. Thompson lost a slew of other Fourth Amendment claims against the police. Mr. Thompson’s claims arose from state agents’ warrantless …

The Exit Theory Of Judicial Appraisal, William J. Carney, Keith Sharfman

Faculty Publications

For many years, we and other commentators have observed the problem with allowing judges wide discretion to fashion appraisal awards to dissenting shareholders based on widely divergent, expert valuation evidence submitted by the litigating parties. The results of this discretionary approach to valuation have been to make appraisal litigation less predictable and therefore more costly and likely. While this has been beneficial to professionals who profit from corporate valuation litigation, it has been harmful to shareholders, making deals costlier and less likely to be completed.

In this Article, we propose to end the problem of discretionary judicial valuation by tracing …

Didn’T I Cover That In Class? Low-Stakes Technique Of Quizzing To The Rescue, Robin A. Boyle

Faculty Publications

(Excerpt)

We all have had those moments when students’ papers do not reflect an important lesson covered in class. For instance, if teaching persuasive writing, you have likely instructed your students to use a full sentence for their point headings in their briefs, only to find phrases where sentences should have been used. Consequently, you find yourself making the same written comments on papers or verbal comments in conferences with students, beginning with, “As I had instructed in class…” In his groundbreaking book, Experiential Learning, researcher and theorist David Kolb introduced the concept of “deep learning,” which can remedy …

Mysterizing Religion, Marc O. Degirolami

Faculty Publications

(Excerpt)

A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. In the Letter to the Colossians, St. Paul writes that as a Christian apostle, his holy office is to “bring to completion for you the word of God, the mystery hidden from ages and from generations past.” Note that Paul does not say that his task is to make …

Hats For Sale: Efficiency, Economics, And Process Integrity, Elayne E. Greenberg

Faculty Publications

(Excerpt)

What are the ethical considerations for a mediator when a neutral is asked to be both the mediator and arbitrator on the same case? Some parties and their lawyers opt to select one neutral to serve as both the mediator and arbitrator on the same case, believing it will be a more efficient and cost-effective way to resolve their dispute. After all, the mediator already knows the facts of the case. Why waste time and money getting another neutral up to speed? This design choice, however, may collide with the mediator ethical mandates of party self-determination, neutral impartiality, confidentiality, …

Humanizing Virtual Dispute Resolution, Elayne E. Greenberg

Faculty Publications

(Excerpt)

How might neutrals and advocates foster interpersonal dynamics when conducting arbitrations and mediations virtually, consistent with the ethical obligations of each profession and the ethical underpinnings of each process?

Virtual dispute resolution for commercial dispute resolution has become the new normal. Yet, the dispute resolution listserves are still peppered with posts from mediators and arbitrators who, although publicly extolling their own commitments to their impartiality and neutrality, are also simultaneously voicing their strong preferences for conducting their dispute resolution processes in person. According to these neutrals, they are unable to attain the same results when the process is conducted …

High Anxiety: Racism, The Law, And Legal Education, Elayne E. Greenberg

Faculty Publications

Conspicuously absent from the United States’ ongoing discourse about its racist history is a more honest discussion about the individual and personal stressors that are evoked in people when they talk about racism. What if they got it wrong? The fear of being cancelled - the public shaming for remarks that are deemed racist - has had a chilling effect on having meaningful conversations about racism. What lost opportunities!

This paper moves this discussion into the law school context. How might law schools rethink their law school curricula to more accurately represent the role systemic racism has played in shaping …

Integration & Transformation: Incorporating Critical Information Literacy And Critical Legal Research Into Advanced Legal Research Instruction, Courtney Selby

Faculty Publications

(Excerpt)

Legal research is not a separate and distinct endeavor from legal analysis and advocacy. These activities are inextricably intertwined in the practice of law. Few would suggest that advocacy includes the process of applying rules to situations in a vacuum without reference to context and consequences. Yet we often see this assumption about the legal research process. Many students presume that conducting legal research is a neutral endeavor, and that when done properly, it delivers the universe of relevant authorities to the researcher. This essay is about my experience integrating critical perspectives into an existing advanced legal research course …

Copyright’S Capacity Gap, Andrew Gilden, Eva E. Subotnik

Faculty Publications

Most areas of law require that individuals meet a certain threshold of capacity before their decisions — e.g., to marry, to enter into a contract, or to execute an estate plan — are given legal effect. Copyright law, by contrast, gives legal effect to creative decisions by granting the decisionmaker many decades of exclusive rights so long as they are a human being and have demonstrated a “creative spark.” This Article examines the overlooked consequences of this gap in capacity standards between copyright and other areas of law. It shows that this gap has produced numerous opportunities for vulnerable creators …

Now You See Them, Now You Don’T: International Court-Appointed Experts, Wartime Reparations, And The Drc V. Uganda Case, Sean D. Murphy, Yuri Parkhomenko

GW Law Faculty Publications & Other Works

One intersection between scholarship and practice in international humanitarian law (IHL) is observable in international litigation concerning violations of the law of war. An interesting example in this regard recently arose in the case before the International Court of Justice (ICJ) by the Democratic Republic of the Congo against Uganda for war-related claims. At the reparations phase, the Court decided not to rely solely on the submissions of the Parties, but to task certain scholars and other experts to answer evidentiary questions. Yet, when the Court’s judgment was issued in February 2022, the role of these experts turned out to …

The Heritage Of The Articles On State Responsibility For The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

In the two decades since their adoption in 2001, the International Law Commission (ILC)’s Articles on the Responsibility of States for Internationally Wrongful Acts (ASR) have had an extraordinary influence, not just on the field of international law generally, but also on the work of the ILC itself. Indeed, the ILC concluded four projects that directly resulted from or were closely related to the ASR in the first decade after its adoption. Moreover, references to the ASR have worked their way into most (albeit not all) of the ILC topics completed since 2001.

Yet those express references tell just part …

Book Review Of Donald R. Rothwell, Islands And International Law (Oxford: Hart Publishing, 2022), Sean D. Murphy

GW Law Faculty Publications & Other Works

In recent years, international rules concerning islands have increasingly featured as a part of inter-State relations, whether with respect to Chinese activities in the South China Sea, the decolonization of the Chagos Archipelago in the India Ocean, the effects of tiny features on delimitation in the Black Sea or the Bay of Bengal, or the plight of low-lying Pacific nations in the face of sea-level rise. A single article (Article 121) amongst the 320 articles that comprise the 1982 U.N. Convention on the Law of the Sea Convention (LOSC) is dedicated to the “regime of islands,” providing some important guidance, …

Litigation To Protect The Marine Environment: Parallels And Synergies With Climate Litigation, Randall S. Abate, Nadine O. Nadow, Hayley-Bo Dorrian-Bak

GW Law Faculty Publications & Other Works

This paper reviews recent successes and obstacles in using litigation as a tool to address issues in several contexts in the marine environment. It surveys developments at the international, national, and sub-national levels and offers lessons from creative climate litigation strategies as a way to enhance litigation to protect the marine environment. It also recommends ways in which the ocean-climate nexus can provide mutual benefits in advancing the agendas of climate change regulation and ocean stewardship.