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Full-Text Articles in Law

Amending Constituting Identity, Rosalind Dixon Dec 2010

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 Constitution Of The Roman Republic: A Political Economy Perspective, Eric A. Posner Nov 2010

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 ...


The Limits Of Constitutional Convergence, Eric A. Posner, Rosalind Dixon Nov 2010

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 convergence. This ...


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 Nov 2010

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 ...


The Illusory Right To Abandon, Eduardo Peñalver Nov 2010

The Illusory Right To Abandon, Eduardo Peñalver

Journal 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 ...


On The Evasion Of Executive Term Limits, Tom Ginsburg, James Melton, Zachary Elkins Nov 2010

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 Nov 2010

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 Nov 2010

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 ...


Written Constitutions And The Administrative State: On The Constitutional Character Of Administrative Law, Tom Ginsburg Nov 2010

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.


Retribution And The Experience Of Punishment, Jonathan Masur, John Bronsteen, Christopher Buccafusco Oct 2010

Retribution And The Experience Of Punishment, Jonathan Masur, John Bronsteen, Christopher Buccafusco

Journal Articles

No abstract provided.


Agency Design And Distributive Politics, Jacob Gersen, Christopher R. Berry Oct 2010

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 ...


Willpower Taxes, Lee Anne Fennell Oct 2010

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 Oct 2010

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 ...


Willpower Taxes, Lee Anne Fennell Oct 2010

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 Sep 2010

The Razors-And-Blades Myth(S), Randal C. Picker

Coase-Sandor Working Paper Series in Law and Economics

No abstract provided.


Damages For Unlicensed Use, Omri Ben-Shahar Sep 2010

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 Sep 2010

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 Sep 2010

Pseudonymous Litigation, Lior Strahilevitz

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 Sep 2010

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 ...


Retribution And The Experience Of Punishment, Jonathan Masur, John Bronsteen, Christopher Buccafusco Sep 2010

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 Sep 2010

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 Sep 2010

Pseudonymous Litigation, Lior Strahilevitz

Public Law and Legal Theory Working Papers

No abstract provided.


Risk As A Proxy For Race, Bernard E. Harcourt Sep 2010

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 Sep 2010

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 ...


Risk Of Death, Ariel Porat, Avraham D. Tabbach Aug 2010

Risk Of Death, Ariel Porat, Avraham D. Tabbach

Coase-Sandor Working Paper Series in Law and Economics

When people face the risk of death, and when they ascribe no value to their wealth post-death, they over-invest in precautions in order to reduce that risk. There are two main reasons for such over-investment. First, people under risk of death discount their risk-reduction costs by the probability of death following precautions. Second, people facing the risk of death consider the consumption of their wealth when alive to be part of their benefit from risk-reduction. From a social perspective, people's wealth does not cease to exist after death. Therefore, discounting costs by the probability of death and taking into ...


Carbon Dioxide: Our Newest Pollutant, Richard A. Epstein Aug 2010

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 ...


Questioning The Frequency And Wisdom Of Compulsory Licensing For Pharmaceutical Patents, F. Scott Kieff, Richard A. Epstein Aug 2010

Questioning The Frequency And Wisdom Of Compulsory Licensing For Pharmaceutical Patents, F. Scott Kieff, Richard A. Epstein

Coase-Sandor Working Paper Series in Law and Economics

Many advocates for using compulsory licensing ("CL") for pharmaceutical patents in developing countries like Thailand rest their case in part on the purported use of CL in the United States. In this paper we take issue with that proposition on several grounds. As a theoretical matter, we argue that the basic presumption in favor of voluntary licenses for IP should apply in the international arena, in addition to the domestic one. In the international context, voluntary licenses are of special importance because they strengthen the supply chain for distributing pharmaceuticals and ease the government enforcement of safety standards. Next, this ...


What Is So Special About Intangible Property? The Case For Intelligent Carryovers, Richard A. Epstein Aug 2010

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 ...


Patent Inflation, Jonathan Masur Aug 2010

Patent Inflation, 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 Aug 2010

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 prounion ...