Social and Behavioral Sciences Commons^™

Binary Economics - An Overview, Robert Ashford

College of Law - Faculty Scholarship

Based on binary economic principles, this paper asserts that one widely overlooked way to empower economically poor and working people in market economy is to universalize the right to acquire capital with the earnings of capital. This right is presently largely concentrated, as a practical matter, in less than 5 % of the population. The concentration of the right to acquire capital with the earnings of capital helps to explain how people either remain poor or end up poor no matter how hard they work or are willing to work. Binary Economics offers a conception of economics that is foundationally …

Eliminating The Underlying Cause Of Poverty As A Means To Global Economic Recovery, Robert Ashford

College of Law - Faculty Scholarship

The public analysis of the causes of the current recession and the ways to achieve economic recovery generally proceed on the widely-shared, tacit assumption that there is that there is no substantial, first-order connection between the recession and the failure to address the problem of systemic poverty. Otherwise, the need to alleviate systemic poverty and needed solutions to promote economic recovery would be commonly addressed in the same discussions; and they are not. This widely-shared, tacit assumption is false. The failure to reverse systemic poverty is the fundamental cause of current economic crisis. Recessions (and sub-optimal growth) occur when a …

Two Cheers For Feasible Regulation: A Modest Response To Masur And Posnera, David M. Driesen

College of Law - Faculty Scholarship

This article compares the relative merits of feasibility and cost-benefit based regulation, responding to a recent article by Jonathan Masur and Eric Posner on this topic. Normatively, it shows that the lack of correlation between non-subsistence consumption and welfare supports the argument that regulation should be strict, unless widespread plant shutdowns, which would seriously impact well-being, are involved. It shows that a host of practical defects Masur and Posner find in feasibility analysis would infect cost-benefit analysis as well. In light of the importance of cost's distribution, serious regard for individual well-being supports the feasibility principle better than a cost-benefit …

All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies And The Rule Of Law, Keith J. Bybee

College of Law - Faculty Scholarship

This paper contains the introduction to the new book, All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford University Press, 2010).

The book begins with the observation that Americans are divided in their beliefs about whether courts operate on the basis of unbiased legal principle or of political interest. This division in public opinion in turn breeds suspicion that judges do not actually mean what they say, that judicial professions of impartiality are just fig leaves used to hide the pursuit of partisan purposes.

Comparing law to the practice of common courtesy, the …

Trusts Versus Corporations: An Empirical Analysis Of Competing Organizational Forms, A. Joseph Warburton

College of Law - Faculty Scholarship

This paper studies the effects of organizational form on managerial behavior and firm performance, from an empirical perspective. Managers of trusts are subject to stricter fiduciary responsibilities than managers of corporations. This paper examines the ramifications empirically, by exploiting data generated by a change in British regulations in the 1990s that allowed mutual funds to organize as either a trust or a corporation. I find evidence that trust law is effective in curtailing opportunistic behavior, as trust managers charge significantly lower fees than their observationally equivalent corporate counterparts. Trust managers also incur lower risk. However, evidence suggests that trust managers …

Broadening The Right To Acquire Capital With The Earnings Of Capital: The Missing Link To Sustainable Economic Recovery And Growth, Robert Ashford

College of Law - Faculty Scholarship

This article presents a proposal to broaden the right to acquire capital with the earnings of capital as a means of promoting sustainable economic recovery and growth. It would open the markets for real and financial capital acquisition more fully and competitively to poor and working people (1) to distribute more broadly the earnings of capital and (2) to profitably employ more capital and labor. The article notes that both the recession and the strategies advanced to promote economic recovery may be viewed as responses to the prospect of inadequate present and future earning capacity of both consumers and producers …

The Missing Instrument: Dirty Input Limits, David M. Driesen, Amy Sinden

College of Law - Faculty Scholarship

This article evaluates an environmental protection instrument that the literature has hitherto largely overlooked, Dirty Input Limits (DILs), quantitative limits on the inputs that cause pollution. DILs provide an alternative to cumbersome output-based emissions trading and performance standards. DILs have played a role in some of the world's most prominent environmental success stories. They have also begun to influence climate change policy, because of the impossibility of imposing an output-based cap on transport emissions. We evaluate DILs' administrative advantages, efficiency, dynamic properties, and capacity to better integrate environmental protection efforts. DILs, we show, not only have significant advantages that make …

Capping Carbon, David M. Driesen

College of Law - Faculty Scholarship

This article addresses the problem of how to set caps for a cap-and-trade program, a key problem in pending legislation addressing global climate disruption. Previous scholarship on emissions trading programs focuses overwhelmingly on trading’s advantages and sometimes wrongly portrays environmental improvement as an automatic byproduct of adopting a cap-and-trade approach. A trading program’s success, however, depends critically upon timely and effective cap setting.

This article shows that often regulators have employed a best available technology (BAT) approach to cap setting for trading programs, i.e., setting the cap at a level that regulated polluters can achieve with government-identified technology. This descriptive …

Neoliberal Instrument Choice, David M. Driesen

College of Law - Faculty Scholarship

This book chapter reviews the influence on economic thought about instrument choice and its influence upon United States climate change policy. It shows that the theory of instrument choice made a positive contribution to the United States policy arsenal by emphasizing the cost effectiveness advantages of emissions trading. But because of an ideological climate uncritically supportive of free markets prevailed during the period of U.S. failure to address climate change, the United States favored overly broad trading programs, both in terms of geography and scope. This posture had a large influence on the Kyoto Protocol, leading the world to adopt …

Toward Sustainable Technology, David M. Driesen

College of Law - Faculty Scholarship

This paper offers suggestions for climate change policies advancing technological changes necessary for sustainable development. It first explains why relentless pursuit of cost effectiveness through broad environmental benefit trading does not maximize long term technological advancement and explores options for narrowing trading's design. It then explores two alternatives to Kyoto style trading to show how a goal of creating a positive long term economic dynamic

Binary Economics And The Case For Broader Ownership, Robert Ashford

College of Law - Faculty Scholarship

Binary economics simultaneously offers a paradigm for understanding economic efficiency, growth, and justice that is foundationally distinct from classical, neoclassical, Keynesian, and socialist economics. First proposed by Louis Kelso, binary economics also offers a prescription for establishing a more inclusive, competitive and democratic private property system, one that universalizes the right to acquire capital with the earnings of capital. Focusing on an important anomaly left unexplained or poorly explained classical, neoclassical, and Keynesian economics (i.e., the persistence of unutilized productive capacity in a context in which markets are supposedly becoming more efficient) and left unremedied by any approach yet applied, …

Socio-Economics - An Overview, Robert Ashford

College of Law - Faculty Scholarship

Socio-Economics is a multi-disciplinary, holistic approach to economics that has gained growing acceptance in legal education and that is helpful in advocating economics justice. Socio-economics approaches economic understanding much as Adam Smith did (before there were separate disciplines) with a foundation based on natural and moral philosophy. Nevertheless, it explicitly acknowledges the powerful and pervasive influence of the neoclassical paradigm on contemporary thought. Recognizing that people first adopt paradigms of thought and then perform their inductive, deductive, and empirical analyses, socio-economists seek to examine the assumptions of the neoclassical paradigm, develop a rigorous understanding of its limitations, improve upon its …

Binary Economics: The Economic Theory That Gave Rise To Esops, Robert Ashford

College of Law - Faculty Scholarship

Many people know about Employee Stock Ownership Plans (ESOPs) which, along with profit-sharing and pension plans, are treated as deferred compensation plans under Section 401 and related sections of the Internal Revenue Code. ESOPs have been established by thousands of American corporations, including some of the largest, and cover millions of employees. There is a national trade association (The ESOP Association), that is now celebrating its 50th year in existence, and other organizations established to support employee ownership, including the Ohio Center for Employee Ownership that first published this article in its publication entitled Owners At Work (2006/2007) Most people …

Renewable Energy Under The Kyoto Protocol: The Case For Mixing Instruments, David M. Driesen

College of Law - Faculty Scholarship

This paper suggests that a mixture of measures may be needed to encourage renewable energy under the Kyoto Protocol. It explains that the goal of maximizing short term cost effectiveness tends to conflict with the goal of encouraging the long-term technological development that the world will need to move away from fossil fuels. Because of this tension, policy-makers should not, and generally have not, regarded global emissions trading as a panacea. The paper discusses how novel economic incentive measures and careful attention to design of emissions trading can help policy-makers use short term goals to lay the ground work for …

Sustainable Development And Market Liberalism's Shotgun Wedding: Emissions Trading Under The Kyoto Protocol, David M. Driesen

College of Law - Faculty Scholarship

This article analyzes the international emissions trading regime at the heart of the world's effort to address global warming as a means of exploring broader international governance issues. The trading regime seeks to marry two models of global governance, market liberalism, which embraces markets as the model of global governance, and sustainable development, which seeks to change development patterns to protect future generations.

This article explores a previously unacknowledged tension between market liberalism's goal of maximizing short term cost effectiveness and sustainable development's goal of catalyzing technological change for the benefit of future generations. This article presents new data and …

Sustainable Development And Market Liberalism's Shotgun Wedding: Emissions Trading Under The Kyoto Protocol, David M. Driesen

College of Law - Faculty Scholarship

This article analyzes the international emissions trading regime at the heart of the world's effort to address global warming as a means of exploring broader international governance issues. The trading regime seeks to marry two models of global governance, market liberalism, which embraces markets as the model of global governance, and sustainable development, which seeks to change development patterns to protect future generations.

This article explores a previously unacknowledged tension between market liberalism's goal of maximizing short term cost effectiveness and sustainable development's goal of catalyzing technological change for the benefit of future generations. This article presents new data and …

Capital Democratization, Robert Ashford

College of Law - Faculty Scholarship

Although, the ideas underlying binary economics were first published in 1958 (Kelso and Adler), the many books and papers that discuss the subject, with the exception of Kane (2000) and Kurland (2001), do not utilize conventional economics language. To facilitate the teaching of binary economics in beginning and intermediate college courses in economics and business, the paper explains some major microeconomic and macroeconomic fundamentals of binary economics by utilizing conventional neo-classical economic models. It then compares the theoretical results reached in a non-binary economic environment to those that may be reached in a binary one. The most important result from …

Memo On Binary Economics To Attorneys For Women And People Of Color Re: What Else Can Public Corporations Do For Your Clients?, Robert Ashford

College of Law - Faculty Scholarship

One important duty of lawyers is to assist clients in identifying and securing their essential rights, responsibilities, and opportunities. One important purpose of legal education is to enable lawyers to assist clients and society in identifying and securing essential rights, responsibilities, and opportunities. This Article describes one opportunity (based on an approach to economics called "binary economics" first proposed by Louis Kelso), rarely advanced by counsel, that may offer women and people of color, public corporations, and their shareholders benefits far greater than expectations based on the mainstream economic theories (classical, neoclassical, and Keynesian) usually employed to evaluate economic policy …

Design, Trading, And Innovation, David M. Driesen

College of Law - Faculty Scholarship

This book chapter questions the conventional theory purporting to establish that environmental benefit trading encourages innovation better than comparable traditional regulation. It argues that the induced innovation hypothesis, that high costs encourage innovation, suggests that trading would lessen incentives for innovation by lowering the cost of complying with conventional approaches. The conventional theory relies upon the incentive emissions trading creates for polluters to make additional reductions in order to sell credits. But emissions trading also creates incentives for half of the pollution sources (the credit buyers) to make less reductions than they would under a traditional regulation. By focusing analysis …

The Functions Of Transaction Costs: Rethinking Transaction Cost Minimization In A World Of Friction, David M. Driesen, Shubha Ghosh

College of Law - Faculty Scholarship

This article critically examines the goal of minimizing transaction costs, including the costs of legal decision-making. This goal permeates the law and economics literature and has profoundly influenced public policy. While most transaction cost scholarship has focused upon private law, the minimization goal has strongly influenced public law, where it has contributed to a variety of legal changes aimed at reducing public transaction costs, often through privatization.

We argue that transaction costs purchase corollary benefits. They frequently enable those engaging in transactions to obtain information needed to correct for information asymmetries or inadequate information. They perform the functions of facilitating …

What's Property Got To Do With It?, David M. Driesen

College of Law - Faculty Scholarship

This essay reviews Daniel Cole's "Pollution & Property," a recent book on property rights regimes for pollution control. It questions the utility of property rights typologies as a means of understanding pollution control regimes. The review provides a detailed analysis of the shift of rights that occurs in going from a traditional regulatory program to an emissions trading program. It finds that the shift does not create a fundamentally different property regime and explains precisely what changes. This analysis also explains the meaning of calls to perfect property rights in this context. The review concludes that Professor Cole's book does …

The Functions Of Transaction Costs: Rethinking Transaction Cost Minimization In A World Of Friction, David M. Driesen, Shubha Ghosh

College of Law - Faculty Scholarship

This article critically examines the goal of minimizing transaction costs, including the costs of legal decision-making. This goal permeates the law and economics literature and has profoundly influenced public policy. While most transaction cost scholarship has focused upon private law, this influence has been especially pervasive in public law, where it has contributed to a variety of legal changes aimed at reducing public transaction costs, often through privatization.

We argue that transaction costs perform useful functions. They frequently enable those engaging in transactions to obtain information needed to correct for information asymmetries or inadequate information. They facilitate efficient transactions, allow …

What Is Free Trade? The Real Issue Lurking Behind The Trade And Environment Debate, David M. Driesen

College of Law - Faculty Scholarship

This article argues that a fundamental question, "What is free trade?," lurks behind the ongoing debate about the relationship between international trade law and competing legal regimes. It also lurks behind much of the confusion in the Supreme Court's dormant commerce clause jurisprudence under the United States constitution, sometimes mentioned as a model for international trade law. Yet, the literature has remarkably little to say about free trade's definition, although it contains volumes about the reasons for free trade.

This article explores three possible concepts of free trade, trade free from discrimination against foreign companies, trade free from coercion, and …

Free Lunch Or Cheap Fix?: The Emissions Trading Idea And The Climate Change Convention, David M. Driesen

College of Law - Faculty Scholarship

Emissions trading has become a key component of U.S. environmental legal regimes. The U.S. has successfully lobbied to make international environmental benefit trading, an expanded form of emissions trading, a part of international efforts to address the threat of global climate change through the Framework Convention on Climate Change and the Kyoto Protocol to that Convention. Legal scholars have lauded emissions trading as a "free lunch" that will encourage innovation, enhance democratic accountability, and reduce the cost of environmental cleanup. This article argues that emissions trading functions as a cheap fix, reducing short-term costs while tending to lessen innovation and …