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Full-Text Articles in Law
Civil Liberties V. National Security In The Law's Open Areas, Geoffrey R. Stone
Civil Liberties V. National Security In The Law's Open Areas, Geoffrey R. Stone
Articles
No abstract provided.
Embracing Chance: Post-Modern Meditations On Punishment, Bernard E. Harcourt
Embracing Chance: Post-Modern Meditations On Punishment, Bernard E. Harcourt
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Reefer Madness: Broken Windows Policing And Misdemeanor Marijuana Arrests In New York, Bernard E. Harcourt, Jens Ludwig
Reefer Madness: Broken Windows Policing And Misdemeanor Marijuana Arrests In New York, Bernard E. Harcourt, Jens Ludwig
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Second-Order Perfectionism, Cass R. Sunstein
Second-Order Perfectionism, Cass R. Sunstein
Coase-Sandor Working Paper Series in Law and Economics
In constitutional law, first-order perfectionism represents an effort to cast the Constitution’s ideals in the best constructive light. Ronald Dworkin's conception of law as "integrity" can be seen as a form of first-order perfectionism. By contrast, second-order perfectionism attempts to set out an account of constitutional adjudication that is sensitive to the fallibility of federal judges. Originalism is best defended as a form of second-order perfectionism; the same can be said of Thayerism, captured in the view that judges should uphold statutes unless they are unquestionably violative of the Constitution. Minimalism, which calls for narrow, incompletely theorized judgments, is another …
Embracing Chance: Post-Modern Meditations On Punishment, Bernard E. Harcourt
Embracing Chance: Post-Modern Meditations On Punishment, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
No abstract provided.
Reefer Madness: Broken Windows Policing And Misdemeanor Marijuana Arrests In New York, Bernard E. Harcourt, Jens Ludwig
Reefer Madness: Broken Windows Policing And Misdemeanor Marijuana Arrests In New York, Bernard E. Harcourt, Jens Ludwig
Public Law and Legal Theory Working Papers
No abstract provided.
Second-Order Perfectionsim, Cass R. Sunstein
Second-Order Perfectionsim, Cass R. Sunstein
Public Law and Legal Theory Working Papers
In constitutional law, first-order perfectionism represents an effort to cast the Constitution’s ideals in the best constructive light. Ronald Dworkin’s conception of law as “integrity” can be seen as a form of firstorder perfectionism. By contrast, second-order perfectionism attempts to set out an account of constitutional adjudication that is sensitive to the fallibility of federal judges. Originalism is best defended as a form of second-order perfectionism; the same can be said of Thayerism, captured in the view that judges should uphold statutes unless they are unquestionably violative of the Constitution. Minimalism, which calls for narrow, incompletely theorized judgments, is another …
'How's My Driving?' For Everyone (And Everything?), Lior Strahilevitz
'How's My Driving?' For Everyone (And Everything?), Lior Strahilevitz
Articles
This is an Article about using reputation-tracking technologies to displace criminal law enforcement and improve the tort system. The Article contains an extended application of this idea to the regulation of motorist behavior and examines the broader case for using technologies that aggregate dispersed information in various settings where reputational concerns do not adequately deter uncooperative behavior. The Article proposes a compulsory "How's My Driving?" program for all motor vehicles. Although more rigorous study is warranted, the initial data from voluntary "How's My Driving?" programs is quite promising, suggesting that the use of "How's My Driving?" placards on commercial trucks …
The Second-Order Structure Of Immigration Law, Eric A. Posner, Adam B. Cox
The Second-Order Structure Of Immigration Law, Eric A. Posner, Adam B. Cox
Coase-Sandor Working Paper Series in Law and Economics
Immigration law concerns both first-order issues about the number and types of immigrants who should be admitted into a country and second-order design issues concerning the legal rules and institutions that are used to implement those first-order policy goals. The literature has focused on the first set of issues and largely neglected the second. In fact, many current controversies concern the design issues. This Article addresses the second-order dimension and argues that a central design choice all states face is whether to evaluate potential immigrants on the basis of pre-entry characteristics (the ex ante approach) or post-entry conduct (the ex …
Wealth Without Markets?, Lior Strahilevitz
Wealth Without Markets?, Lior Strahilevitz
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Liability Externalities And Mandatory Choices: Should Doctors Pay Less?, Robert D. Cooter, Ariel Porat
Liability Externalities And Mandatory Choices: Should Doctors Pay Less?, Robert D. Cooter, Ariel Porat
Coase-Sandor Working Paper Series in Law and Economics
According to legal principles, a driver who negligently breaks a pedestrian's leg should pay the same damages as a doctor who negligently breaks a patient's leg. According to economic principles, however, the driver should pay more than the doctor. Non-negligent drivers impose risk on others without being liable for it. When liability externalities are mainly negative as with driving, liability should increase beyond full compensation to discourage the activity. Unlike pedestrians, patients contract with doctors for treatment and willingly submit to the risk of harm. Imperfections in medical markets cause some kinds of doctors to convey more positive than negative …
Offestting Risks, Ariel Porat
Offestting Risks, Ariel Porat
Coase-Sandor Working Paper Series in Law and Economics
Under prevailing tort law, an injurer who is required to choose between Course of Action A, which creates a risk of 500, and Course of Action B, which creates a risk of 400, and negligently chooses the former will be held liable for the harm that materializes in its entirety. This full liability forces the injurer to pay damages that are five times higher than necessary for making him internalize the risk of 100 that is actually created by his negligent choice. The argument advanced by this Article is that tort law should recognize the "Offsetting Risks Principle" ("ORP"), under …
The International Protection Of Cultural Property: Some Skeptical Observations, Eric A. Posner
The International Protection Of Cultural Property: Some Skeptical Observations, Eric A. Posner
Public Law and Legal Theory Working Papers
Cultural property is subject to two international legal regimes, one of which protects cultural property during wartime, and the other of which regulates the international trade in cultural property. Neither legal regime has been notably successful. Cultural property is often targeted and destroyed during wars, or given inadequate protection. And the international trade in cultural property flourishes because states have been unwilling to invest resources in controlling it. As a result, scholars and advocates argue that both legal regimes should be strengthened. Sanctions should be enhanced; states should be forced to devote greater resources to complying with treaties; treaty obligations …
The Law Of Other States, Eric A. Posner, Cass R. Sunstein
The Law Of Other States, Eric A. Posner, Cass R. Sunstein
Articles
The question of whether courts should consult the laws of "other states" has produced intense controversy. But in some ways, this practice is entirely routine; within the United States, state courts regularly consult the decisions of other state courts in deciding on the common law, the interpretation of statutory law, and even the meaning of state constitutions. A formal argument in defense of such consultation stems from the Condorcet Jury Theorem, which says that under certain conditions, a widespread belief accepted by a number of independent actors, is highly likely to be correct. It follows that if a large majority …
The Antitrust Enterprise: Principle And Execution, Randal C. Picker
The Antitrust Enterprise: Principle And Execution, Randal C. Picker
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
The Unconventional Uses Of Transaction Costs, David Gilo, Ariel Porat
The Unconventional Uses Of Transaction Costs, David Gilo, Ariel Porat
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Antitrust And Regulation, Randal C. Picker, Dennis W. Carlton
Antitrust And Regulation, Randal C. Picker, Dennis W. Carlton
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
The Case For For-Profit Charities, Eric A. Posner, Anup Malani
The Case For For-Profit Charities, Eric A. Posner, Anup Malani
Coase-Sandor Working Paper Series in Law and Economics
Nonprofit firms may not distribute profits to owners but instead must retain them or reinvest them. Nonprofits that are "charitable organizations" under § 501(c)(3) of the tax code may receive donations from individuals who are allowed to deduct their donations from their income for tax purposes. We argue that the law should not link tax benefits to corporate form in this way. There may be good arguments for recognizing the nonprofit form and good arguments for providing tax subsidies to charities or donors to charities, but there is no good argument for making those tax subsidies available only to charities …
The Credible Executive, Eric A. Posner, Adrian Vermeule
The Credible Executive, Eric A. Posner, Adrian Vermeule
Coase-Sandor Working Paper Series in Law and Economics
Legal and constitutional theory has focused chiefly on the risk that voters and legislators will trust an ill-motivated executive. This paper addresses the risk that voters and legislators will fail to trust a well-motivated executive. Absent some credible signal of benign motivations, voters will be unable to distinguish good from bad executives and will thus withhold discretion that they would have preferred to grant, making all concerned worse off. We suggest several mechanisms with which a well-motivated executive can credibly signal his type, including independent commissions within the executive branch; bipartisanship in appointments to the executive branch, or more broadly …
Who Should Regulate Entry Into Iptv And Municipal Wireless?, Randal C. Picker
Who Should Regulate Entry Into Iptv And Municipal Wireless?, Randal C. Picker
Coase-Sandor Working Paper Series in Law and Economics
We are at an unusual moment in telecommunications. We have two very live cases of entry: Internet protocol television (IPTV) and municipal wireless broadband. IPTV will create new competition with cable, satellite and over-the-air broadcast TV, promising lower prices and new services. Muni wireless makes it possible for local communities to add new broadband capabilities to compete with DSL and cable broadband. Unsurprisingly given the newness of the services, there is substantial uncertainty about whether and how these services should be regulated, and we have seen legislative action at municipal, state and federal levels. To assess that, I set forth …
Irreparable Benefits, Douglas Gary Lichtman
Irreparable Benefits, Douglas Gary Lichtman
Coase-Sandor Working Paper Series in Law and Economics
The conventional approach to preliminary relief focuses on irreparable harm but neglects entirely irreparable benefits. That is hard to understand. Errant irreversible harms are important because they distort incentives and have lasting distributional consequences. But the same is true of errant irreversible gains. When a preliminary injunction wrongly issues, then, there are actually two distinct errors to count: the irreparable harm wrongly imposed on the nonmoving party, and the irreparable benefit wrongly enjoyed by the moving party. Similarly, when a preliminary injunction is wrongly denied, there are again two errors, not one: the irreparable harm wrongly imposed on the moving …
Paying Ceos In Bankruptcy: Executive Compensation When Agency Costs Are Low, M. Todd Henderson
Paying Ceos In Bankruptcy: Executive Compensation When Agency Costs Are Low, M. Todd Henderson
Coase-Sandor Working Paper Series in Law and Economics
Conventional wisdom suggests that high agency costs explain the (excessive) amounts and (inefficient) forms of CEO compensation. This paper offers a simple empirical test of this claim and the reform proposals that follow from it, by looking at pay practices in firms under financial distress, where agency costs are dramatically reduced. When a firm files for Chapter 11 or privately works out its debt with lenders, sophisticated investors consolidate ownership interests into a few large positions replacing diffuse and disinterested shareholders. These investors, be they banks or vulture investors, effectively control the debtor during the reorganization process. In addition, all …
Montreal Versus Kyoto: A Tale Of Two Protocols, Cass R. Sunstein
Montreal Versus Kyoto: A Tale Of Two Protocols, Cass R. Sunstein
Public Law and Legal Theory Working Papers
No abstract provided.
The Credible Executive, Eric A. Posner, Adrian Vermeule
The Credible Executive, Eric A. Posner, Adrian Vermeule
Public Law and Legal Theory Working Papers
Legal and constitutional theory has focused chiefly on the risk that voters and legislators will trust an ill-motivated executive. This paper addresses the risk that voters and legislators will fail to trust a well-motivated executive. Absent some credible signal of benign motivations, voters will be unable to distinguish good from bad executives and will thus withhold discretion that they would have preferred to grant, making all concerned worse off. We suggest several mechanisms with which a well-motivated executive can credibly signal his type, including independent commissions within the executive branch; bipartisanship in appointments to the executive branch, or more broadly …
Undue Process, Adam M. Samaha
Undue Process, Adam M. Samaha
Public Law and Legal Theory Working Papers
This Article explores the relationship of the United States Constitution to the costs of government decision-making. Constitutional law clearly can escalate these costs, as when the due process clauses are read to mandate additional procedure not otherwise favored by decisionmakers. This much is understood. But the Constitution and its doctrine sometimes put downward pressure on decision costs. We lack a systematic investigation of when this is, and should be, true. I make three general claims: (1) The entire Constitution tends to reduce decision costs insofar as it is a focal point for confining disputes, and empirical work suggests that the …
Information Asymmetries And The Rights To Exclude, Lior Strahilevitz
Information Asymmetries And The Rights To Exclude, Lior Strahilevitz
Articles
No abstract provided.
Prediction Markets For Corporate Governance, Michael Abramowicz, M. Todd Henderson
Prediction Markets For Corporate Governance, Michael Abramowicz, M. Todd Henderson
Coase-Sandor Working Paper Series in Law and Economics
Building on the success of prediction markets at forecasting political elections and other matters of public interest, firms have made increasing use of prediction markets to help make business decisions. This Article explores the implications of prediction markets for corporate governance. Prediction markets can increase the flow of information, encourage truth telling by internal and external firm monitors, and create incentives for agents to act in the interest of their principals. The markets can thus serve as potentially efficient alternatives to other approaches to providing information, such as the Sarbanes-Oxley Act’s internal controls provisions. Prediction markets can also produce an …
Legal Institutions, Legal Origins, And Governance, Kenneth W. Dam
Legal Institutions, Legal Origins, And Governance, Kenneth W. Dam
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Montreal Versus Kyoto: A Tale Of Two Protocols, Cass R. Sunstein
Montreal Versus Kyoto: A Tale Of Two Protocols, Cass R. Sunstein
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Of Snakes And Butterflies: A Reply, Cass R. Sunstein
Of Snakes And Butterflies: A Reply, Cass R. Sunstein
Public Law and Legal Theory Working Papers
This brief essay, a reply to a forthcoming essay by Radicals in Robes by Saikrishna Prakash in the Columbia Law Review, makes two points. The first is that the abstract idea of interpretation cannot support originalism or indeed any judgment about the competing (reasonable) approaches to the Constitution. Any such judgment must be defended on pragmatic grounds, which means that it must be attentive to consequences. The second point is that the consequentialist judgments that support minimalism also suggest that there are times and places in which minimalism is rightly abandoned. For example, broad rulings may well be justified when …