Digital Commons Network^™

Contract Governance In Small-World Networks: The Case Of The Maghribi Traders, Lisa Bernstein

Articles

No abstract provided.

The New Legal Liberalism, Emma Kaufman

Articles

No abstract provided.

An Empirical Analysis Of Sexual Orientation Discrimination, J. Shahar Dillbary, Griffin Edwards

University of Chicago Law Review

This study is the first to empirically demonstrate widespread discrimination across the United States based on perceived sexual orientation, sex, and race in mortgage lending. Our analysis of over five million mortgage applications reveals that any Fair Housing Administration (FHA) loan application filed by same-sex male co-applicants is significantly less likely to be approved compared to the white heterosexual baseline (holding lending risk constant). The most likely explanation for this pattern is sexual orientation–based discrimination—despite the fact that FHA loans are the only type of loan in which discrimination on the basis of sexual orientation is prohibited.

Moreover, we find …

Grounding Originalism, William Baude, Stephen E. Sachs

Articles

No abstract provided.

Regulatory Bundling, Jennifer Nou, Jed Stiglitz

Articles

No abstract provided.

Trans Formations In The Vatican’S War On "Gender Ideology", Mary Anne Case

Articles

This article will trace the Vatican's decades-long, worldwide, multifront war on what it has come to call "gender ideology" from its very recent incarnation in Donald Trump's United States back through its origins in the last century, highlighting the central role that concerns about transgender rights have always played for the two popes who have most directly shaped the contours of this war, Benedict XVI and Francis. Among the claims of the paper is that the conceptual apparatus behind the Vatican's anathematization of the complex of feminist, reproductive, and LGBT rights issues it has for a quarter century lumped together …

Fourth Amendment Gloss, Aziz Huq

Articles

No abstract provided.

Imagining An Antisubordinating First Amendment, Genevieve Lakier

Articles

No abstract provided.

Book Review: The New Legal Liberalism, Emma Kaufman

University of Chicago Law Review

No abstract provided.

Changing People's Preferences By The State And The Law, Ariel Porat

Coase-Sandor Institute for Law & Economics Research Paper Series

In standard economic models, two basic assumptions are made: the first, that actors are rational and, the second, that actors' preferences are a given and exogenously determined. Behavioral economics—followed by behavioral law and economics—has questioned the first assumption. This article challenges the second one, arguing that in many instances, social welfare should be enhanced not by maximizing satisfaction of existing preferences but by changing the preferences themselves. The article identifies seven categories of cases where the traditional objections to intentional preferences change by the state and the law lose force and argues that in these cases, such a change warrants …

Is Police Behavior Getting Worse? The Importance Of Data Selection In Evaluating The Police, John Rappaport, Aurelie Ouss

Coase-Sandor Institute for Law & Economics Research Paper Series

Public concern about harmful policing is surging. Governments are paying historic amounts for law enforcement liability. Has police behavior changed? Or is society responding differently? Traditional data sources struggle with this question. Common metrics conflate the prevalence and severity of policing harms with the responses of legal actors such as lawyers, judges, and juries. We overcome this problem using a new data source: liability insurance claims. Our dataset contains 23 years of claims against roughly 350 law enforcement agencies that contract with a single insurer. We find that, while lawsuits and payouts have trended upwards over the past decade, insurance …

Property Beyond Exclusion, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

Property rights have long been associated with a simple and distinctive technology: exclusion. But technologies can become outdated as conditions change, and exclusion is no exception. Recent decades have featured profound changes that have made exclusion a less useful, less necessary, and more expensive way of regulating access to resources. This Article surveys the prospects for a post-exclusion understanding of real and personal property. It proceeds from the premise that property is built upon complementarities, the nature and scale of which have undergone seismic shifts. Physical boundaries and lengthy claims on resources are designed to group complementary elements together in …

Comment: Pressure To Pray? Thinking Beyond The Coercion Test For Legislator-Led Prayer, Samuel Taxy

University of Chicago Law Review

The First Amendment to the Constitution commands that “Congress shall make no law respecting an establishment of religion.” This provision is now generally interpreted to forbid a slew of policies and practices at the federal, state, and local levels that endorse or enshrine religion. One flash point in the Establishment Clause doctrine is prayer and government. Whereas one line of cases suggests that prayer offered at government-sponsored events is unconstitutional if it is coercive, another instructs that prayer offered in the legislative context is generally acceptable, at least if delivered by a third party.

This Comment addresses a burgeoning circuit …

Taking Data, Michael C. Pollack

University of Chicago Law Review

Technological development has created new forms of information, altered expectations of privacy, and given law enforcement more tools to examine that information and intrude on that privacy. One crucial facet of these changes involves internet service providers (ISPs): as people expose more of their lives to their ISPs— all the websites they visit, people they communicate with, emails they send, files they store, and more—law enforcement efforts to access that data become more and more common. But scholars and policymakers alike recognize that the existing statutory frameworks governing those efforts are based on obsolete technology and strike balances that are …

Does The Tax Code Favor Robots?, Daniel Hemel

Public Law and Legal Theory Working Papers

In recent months, a number of scholars and commentators have articulated versions of the following argument: (1) U.S. tax law favors capital over labor;¹ (2) Robots are capital; ² (3) Therefore, U.S. tax law favors robots over labor. ³

Three implications tend to be drawn from this syllogism: (a) that U.S. tax law leads to inefficient investments in automation;⁴ (b) that automation—because it is capital-intensive and capital is tax-favored—will result in a reduction in tax revenues;⁵ and (c) that policymakers should respond to the automation trend either by imposing explicit taxes on robots or by raising taxes …

Outside Influence On Democratic Elections, Saul Levmore

Public Law and Legal Theory Working Papers

The 2019 Indian general election, and especially the enormous amount of money spent on campaigning and befriending voters during the election season, has drawn attention to the question of whether and when “outside” support (in the form of money and other assistance) from companies and persons not directly involved in an election should be forbidden, tolerated, or even encouraged. Common reactions to outside influence are inevitably inconsistent, even if we account for the fact that losers are likely to decry the outside influence that advantaged the winners or, more likely, the incumbent party expected to win. A novel approach, influenced …

U.S War Powers And The Potential Benefits Of Comparativism, Curtis Bradley

Book Sections

No abstract provided.

Us War Powers And The Potential Benefit Of Comparativism, Curtis A. Bradley

Book Sections

No abstract provided.

Does The Tax Code Favor Robots?, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

In recent months, a number of scholars and commentators have articulated versions of the following argument: (1) U.S. tax law favors capital over labor;¹ (2) Robots are capital; ² (3) Therefore, U.S. tax law favors robots over labor.³ Three implications tend to be drawn from this syllogism: (a) that U.S. tax law leads to inefficient investments in automation;⁴ (b) that automation—because it is capital-intensive and capital is tax-favored—will result in a reduction in tax revenues;⁵ and (c) that policymakers should respond to the automation trend either by imposing explicit taxes on robots or by raising taxes …

Imputing Unreported Hate Crimes Using Google Search Data, Dhammika Dharmapala, Aziz Z. Huq

Coase-Sandor Institute for Law & Economics Research Paper Series

U.S. law requires the Attorney General to collect data hate crime victimization from states and municipalities. But states and localities are under no obligation to cooperate. Data production hence varies considerably across jurisdictions. This Article addresses the ensuing “missing data” problem by imputing unreported hate crimes using Google search rates for racial epithets. As a benchmark, it uses two alternative definitions of which jurisdictions more effectively collect hate crime data: all states that were not part of the erstwhile Confederacy, and states with statutory provisions relating to hate crime reporting. We regress hate crime rates for racially-motivated hate crimes with …

Free Speech And Cheap Talk, Daniel J. Hemel, Ariel Porat

Coase-Sandor Institute for Law & Economics Research Paper Series

We present a new framework for analyzing defamation liability that serves both to clarify and complicate understandings of the law’s consequences for speakers, victims, and the marketplace of ideas. In addition to the familiar deterrence and chilling effects, we show how defamation liability can generate a “warming effect,” making statements more credible and potentially raising both the quality and quantity of speech. We also explain how a more plaintiff-friendly liability regime may exacerbate harms to defamation victims. We end by considering the possibility of “self-tailored” defamation law, with victims or speakers selecting the defamation liability regime that applies to them. …

Rethinking Law School Tenure Standards, Adam S. Chilton, Jonathan Masur, Kyle Rozema

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Economic Perspectives On Free Speech, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

The metaphor of a ‘marketplace of ideas’ has long pervaded discussions of free speech in and beyond the United States. For early scholars of law and economics (L&E), the similarities and differences between the metaphorical marketplace for ideas and literal markets for goods and services were subjects of much attention. Aaron Director—the University of Chicago law professor who helped to found the L&E movement but rarely reduced his own ideas to writing— devoted one of his few published papers to the contrast between the laissez-faire approach to speech and command-and-control regulation of other markets in mid-twentieth century America. Ronald Coase, …

What Should Law School Rankings Measure And How Should We Measure It: A Comment On Heald & Sichelman's Rankings, Adam Chilton, Jonathan S. Masur

Coase-Sandor Institute for Law & Economics Research Paper Series

There are obvious benefits to ranking academic departments based on objective measures of faculty research output. However, there are considerable difficulties associated with producing reliable and accurate rankings. In this short comment, we offer an evaluation of Heald and Sichelman's recent foray into the project of ranking law schools. Heald and Sichelman are to be commended for the transparency and rigor of their rankings effort. At the same time, it is important to note that their rankings involve a series of contestable discretionary choices and could give rise to potential counterproductive gaming by law schools seeking to improve their place …

Outside Influence On Democratic Elections, Saul Levmore

Coase-Sandor Institute for Law & Economics Research Paper Series

The 2019 Indian general election, and especially the enormous amount of money spent on campaigning and befriending voters during the election season, has drawn attention to the question of whether and when “outside” support (in the form of money and other assistance) from companies and persons not directly involved in an election should be forbidden, tolerated, or even encouraged. Common reactions to outside influence are inevitably inconsistent, even if we account for the fact that losers are likely to decry the outside influence that advantaged the winners or, more likely, the incumbent party expected to win. A novel approach, influenced …

A Place For Place In Federal Tax Law, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

Drive about 14 miles west from here on Ohio State Route 81 and just when you cross I-75, before entering downtown Lima, you will find that you have arrived in a different capital gains tax regime. The grass may not be greener on the other side of I-75, but the capital gains tax rules surely are. If you sell a capital asset at a gain and plow the proceeds into an investment here in Ada, you will owe capital gains tax today and potentially will owe more tax when you sell the Ada asset in the future. If you put …

Beyond The Marriage Tax Trilemma, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

For decades, the well-known “marriage tax trilemma” has played a central role in discussions of the tax treatment of the family unit. The “trilemma” refers to the mathematical impossibility of constructing a tax system that imposes the same tax liability across all married couples with the same income (couples neutrality), neither encourages nor penalizes marriage (marriage neutrality), and taxes higher income individuals at higher rates (progressivity). Numerous articles have proposed responses to the trilemma that choose two of the legs over a third or that seek to split the difference among the competing neutrality norms that the trilemma casts as …

Taxing Wealth In An Uncertain World, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

An annual wealth tax, a mark-to-market income tax, and a retrospective capital gains tax are three approaches to capital taxation that yield roughly equivalent outcomes under certain conditions. The three approaches differ starkly, however, in their exposure to uncertainty of various types. This essay seeks to highlight the effect of uncertainty on the implementation and operation of alternative capital taxation regimes. An annual wealth tax is highly vulnerable to valuation uncertainty and constitutional uncertainty, but less so to political uncertainty. A retrospective capital gains tax, by contrast, minimizes valuation uncertainty and effectively eliminates constitutional uncertainty but remains highly exposed to …

Slices And Lumps: Division And Aggregation In Law And Life (Intro + Ch 1), Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Tort Liability And The Risk Of Discriminatory Government, Enud Guttel, Ariel Porat

Coase-Sandor Institute for Law & Economics Research Paper Series

When individuals and firms fail to invest in adequate care, the government often steps in, taking costly measures to restore safety or mitigate harm. Under such circumstances, a question arises as to whether the government can demand recovery for its costs. For many years, the answer has been negative; tort law has persistently refused to render negligent individuals and firms liable for governmental expenditures. Yet recently, the law changed markedly. Recognizing that the no-liability regime subsidizes faulty behavior, an increasing number of jurisdictions have established the right of public entities to sue for reimbursement of costs. Against this backdrop, this …