Jurisprudence Commons^™

Human Survival, Risk, And Law: Considering Risk Filters To Replace Cost-Benefit Analysis, John William Draper

Librarian Scholarship at Penn Law

Selfish utilitarianism, neo-classical economics, the directive of short-term income maximization, and the decision tool of cost-benefit analysis fail to protect our species from the significant risks of too much consumption, pollution, or population. For a longer-term survival, humanity needs to employ more than cost-justified precaution.

This article argues that, at the global level, and by extension at all levels of government, we need to replace neo-classical economics with filters for safety and feasibility to regulate against significant risk. For significant risks, especially those that are irreversible, we need decision tools that will protect humanity at all scales. This article describes …

Why Law Now Needs To Control Rather Than Follow Neo-Classical Economics, John William Draper

Librarian Scholarship at Penn Law

Selfish utilitarianism, neo-classical economics, the directive of short-term income maximization, and the decision tool of cost-benefit analysis fail to protect our species from the significant risks of too much consumption, pollution, or population. For a longer-term survival, humanity needs to employ more than cost-justified precaution.

This article argues that, at the global level, and by extension at all levels of government, we need to replace neo-classical economics with filters for safety and feasibility to regulate against significant risk. For significant risks, especially those that are irreversible, we need decision tools that will protect humanity at all scales. This article describes …

The Dual-Grant Theory Of Fair Use, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Fair use is one of modern law's most fascinating and troubling doctrines. It is amorphous and vague, and notoriously difficult to apply. It is, at the same time, vitally important in copyright and perhaps the most frequently raised and litigated issue in the law of intellectual property.

This article offers a novel theory of fair use that provides both a better understanding of the underlying principles and better tools for applying the doctrine.

In contrast with the dominant understanding of fair use in the literature — that fair use addresses market failure — the article proposes viewing fair use as …

Interest Groups In The Teaching Of Legal History, Herbert J. Hovenkamp

All Faculty Scholarship

One reason legal history is more interesting than it was several decades ago is the increased role of interest groups in our accounts of legal change. Diverse movements including law and society, critical legal theory, comparative law, and public choice theory have promoted this development, even among writers who are not predominantly historians. Nonetheless, in my own survey course in American legal history I often push back. Taken too far, interest group theorizing becomes an easy shortcut for assessing legal movements and developments without fully understanding the ideas behind them.

Intellectual history in the United States went into decline because …

Conditional Spending And The Conditional Offer Puzzle, Mitchell N. Berman

All Faculty Scholarship

No abstract provided.

Future Generations: A Prioritarian View, Matthew D. Adler

All Faculty Scholarship

Should we remain neutral between our interests and those of future generations? Or are we ethically permitted or even required to depart from neutrality and engage in some measure of intergenerational discounting? This Article addresses the problem of intergenerational discounting by drawing on two different intellectual traditions: the social welfare function (“SWF”) tradition in welfare economics, and scholarship on “prioritarianism” in moral philosophy. Unlike utilitarians, prioritarians are sensitive to the distribution of well-being. They give greater weight to well-being changes affecting worse-off individuals. Prioritarianism can be captured, formally, through an SWF which sums a concave transformation of individual utility, rather …

Law, Society, And Medical Malpractice Litigation In Japan, Eric Feldman

All Faculty Scholarship

No abstract provided.

Bounded Rationality And Legal Scholarship, Matthew D. Adler

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Decision theory seems to offer a very attractive normative framework for individual and social choice under uncertainty. The decisionmaker should think of her choice situation, at any given moment, in terms of a set of possible outcomes, that is, specifications of the possible consequences of choice, described in light of the decisionmaker’s goals; a set of possible actions; and a "state set" consisting of possible prior "states of the world." It is this framework for choice which provides the foundation for expected utility theory, as demonstrated in the work of Leonard Savage. Problems arise, however, when the decisionmaker is boundedly …

The Economics Of International Labor Migration And The Case For Global Distributive Justice In Liberal Political Theory, Howard F. Chang

All Faculty Scholarship

Estimates of the magnitude of the gains that the world could enjoy by liberalizing international migration indicate that even partial liberalization would not only produce substantial increases in the world’s real income but also improve its distribution. Although the economic effects of immigration on native workers and distributive justice among natives are often advanced as reasons to reduce immigration, these concerns do not provide a sound justification for our restrictive immigration laws. Instead, the appropriate response to concerns about the distribution of income among natives is to increase the progressivity of our tax system. Protectionist immigration policies are not only …

The Disadvantages Of Immigration Restriction As A Policy To Improve Income Distribution, Howard F. Chang

All Faculty Scholarship

In this Article, I argue that tax and transfer policies are more efficient than immigration restrictions as instruments for raising the after tax incomes of the least skilled native workers. Policies to protect these native workers frol1'l immigrant competition in the labor market do no better at promoting distributive justice and are likely to impose a greater economic burden on natives in the country of immigration than the tax alternative. These immigration restrictions are especially costly given the disproportionate burden that they place on households with working women, which discourages fel1'wle participation in the labor force. This burden runs contrary …

Distributive Injustice And Private Law, Aditi Bagchi

All Faculty Scholarship

Imperfect rights are not held against any single person, and when violated, they do not ground a claim for any particular quantum of redress. The right to an adequate income may be an imperfect right. Because imperfect rights have been asserted only as claims against the state, and because they do not lend themselves to constitutional adjudication, they have had little traction. In my paper, I will emphasize that any claim on the state is derivative from the right held as against other citizens. Even those who believe that individuals have perfect social rights against the state should concede an …

Criminalization Of Corporate Law: The Impact On Shareholders And Other Constituents, Jill E. Fisch

All Faculty Scholarship

No abstract provided.

On The Moral Structure Of White-Collar Crime, Mitchell N. Berman

All Faculty Scholarship

No abstract provided.

Wealth, Utility, And The Human Dimension, Jonathan Klick, Francesco Parisi

All Faculty Scholarship

Functional law and economics, which draws its influence from the public choice school of economic thought, stands in stark contrast to both the Chicago and Yale schools of law and economics. While the Chicago school emphasizes the inherent efficiency of legal rules, and the Yale school views law as a solution to market failure and distributional inequality, functional law and economics recognizes the possibility for both market and legal failure. That is, while there are economic forces that lead to failures in the market, there are also structural forces that limit the law’s ability to remedy those failures on an …

Functional Law And Economics: The Search For Value-Neutral Principles Of Lawmaking, Francesco Parisi, Jonathan Klick

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No abstract provided.

Shareholder Value And Auditor Independence, William W. Bratton

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This Article questions the practice of framing problems concerning auditors’ professional responsibility inside a principal-agent paradigm. If professional independence is to be achieved, auditors cannot be enmeshed in agency relationships with the shareholders of their audit clients. As agents, the auditors by definition become subject to the principal’s control and cannot act independently. For the same reason, auditors’ duties should be neither articulated in the framework of corporate law fiduciary duty, nor conceived relationally at all. These assertions follow from an inquiry into the operative notion of the shareholder-beneficiary. The Article unpacks the notion of the shareholder and tells a …

How To Fix Wall Street: A Voucher Financing Proposal For Securities Intermediaries, Stephen Choi, Jill E. Fisch

All Faculty Scholarship

No abstract provided.

Enron, Sarbanes-Oxley And Accounting: Rules Versus Principles Versus Rents, William W. Bratton

All Faculty Scholarship

No abstract provided.

Liberal Ideals And Political Feasibility: Guest-Worker Programs As Second-Best Policies, Howard F. Chang

All Faculty Scholarship

No abstract provided.

Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch

All Faculty Scholarship

The lead counsel auction has attracted increasing attention. Auction advocates argue that auctions introduce competitive market forces that improve the selection and compensation of class counsel. The benefits of the auction, the;' claim, include lower legal fees and better representation. Careful scrutiny reveals that auction advocates have overlooked substantial methodological problems with the design and implementation of the lead counsel auction. Even if these problems were overcome, the auction procedure is flawed: Auctions are poor tools for selecting firms based on multiple criteria, compromise the judicial role, and are unlikely to produce reasonable fee awards. Although the existing record is …

A Liberal Theory Of Social Welfare: Fairness, Utility, And The Pareto Principle, Howard F. Chang

All Faculty Scholarship

No abstract provided.

The Possibility Of A Fair Paretian, Howard F. Chang

All Faculty Scholarship

No abstract provided.

Deadweight Costs And Intrinsic Wrongs Of Nativism: Economics, Freedom, And Legal Suppression Of Spanish, William W. Bratton, Drucilla L. Cornell

All Faculty Scholarship

No abstract provided.

Law And Economics Of English Only, William W. Bratton

All Faculty Scholarship

No abstract provided.

The United States' Approach To International Civil Litigation: Recent Developments In Forum Selection, Stephen B. Burbank

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No abstract provided.

Dividends, Noncontractibility, And Corporate Law, William W. Bratton

All Faculty Scholarship

No abstract provided.

Protecting The Environment: Finding The Balance Between Delaney And Free Play, Geoffrey C. Hazard Jr., Howard C. Kunreuther

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No abstract provided.

The New Economics Of Jurisdictional Competition: Devolutionary Federalism In A Second-Best World, William W. Bratton, Joseph A. Mccahery

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No abstract provided.

An Inquiry Into The Efficiency Of The Limited Liability Company: Of Theory Of The Firm And Regulatory Competition, William W. Bratton, Joseph A. Mccahery

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No abstract provided.

The Limits Of Preference-Based Legal Policy, Herbert J. Hovenkamp

All Faculty Scholarship

America's political institutions are built on the principle that individual preferences are central to the formation of policy. The two most important institutions in our system, democracy and the market, make individual preference decisive in the formation of policy and the allocation of resources. American legal traditions have always reflected the centrality of preference in policy determination. In private law, the importance of preference is reflected mainly in the development and persistence of common-law rules, which are intended to facilitate private transactions over legal entitlements. In constitutional law, the centrality of preference is reflected in the high position we assign …