Digital Commons Network^™

Small-C Constitutional Rights, Adam Chilton, Mila Versteeg

Coase-Sandor Institute for Law & Economics Research Paper Series

Although constitutions lay out the fundamental principles by which countries are governed, identifying exactly which legal materials are considered constitutional is not a straightforward task. This is for two reasons. First, there is no systematic evidence about the relative importance of countries’ formal, written constitutions—the “Large-C” constitution— versus their broader body of constitutional law derived from sources like judicial decisions, treaties, and conventions—the “small-c” constitution. Second, it is often difficult to establish which legal materials are definitively part of a country’s small-c constitution. We investigated the nature and relative importance of small-c constitutional rights protections by fielding a global expert …

The Impact Of Artificial Intelligence On Rules, Standards, And Judicial Discretion, Frank Fagan, Saul Levmore

Coase-Sandor Institute for Law & Economics Research Paper Series

Artificial intelligence (AI), and machine learning in particular, promises lawmakers greater specificity and fewer errors. Algorithmic lawmaking and judging will leverage models built from large stores of data that permit the creation and application of finely tuned rules. AI is therefore regarded as something that will bring about a movement from standards to rules. Drawing on contemporary data science, this Article shows that machine learning is less impressive when the past is unlike the future, as it is whenever new variables appear over time. In the absence of regularities, machine learning loses its advantage and, as a result, looser standards …

Tangled Up In Tax: The Nonprofit Sector And The Federal Tax System, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Civil Servant Disobedience, Jennifer Nou

Public Law and Legal Theory Working Papers

Administrative agencies are hierarchical bureaucracies. But those on the lower rungs don’t always fall lockstep in line with those at the top. Reasons vary. Sometimes, intra-agency communication is poor. Those laboring below may not know the preferences of their superiors. Even when this information is available, sometimes bureaucrats are lazy; they can “shirk.” Or they may simply disagree with what their bosses want; they might “drift.” Each of these themes have been mainstays of principal-agent models across various disciplines.¹ Legal scholars too have studied bureaucratic resistance, mainly of civil servants within the executive branch.² These analyses have mostly …

Free Speech And Cheap Talk, Daniel Hemel, Ariel Porat

Public Law and Legal Theory Working Papers

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.

The Impact Of Partisan Gerrymandering On Political Parties, Nicholas Stephanopoulos, Christopher Warshaw

Public Law and Legal Theory Working Papers

The relationship between votes and seats in the legislature lies at the heart of democratic governance. However, there has been little previous work on the downstream effects of partisan gerrymandering on the health of political parties. In this study, we conduct a comprehensive examination of the impact of partisan advantage in the districting process on an array of downstream outcomes. We find that districting bias impedes numerous party functions at both the congressional and state house levels. Candidates are less likely to contest districts when their party is disadvantaged by a districting plan. Candidates that do choose to run are …

Is Police Behavior Getting Worse? Data Selection And The Measurement Of Policing Harms, John Rappaport, Aurelie Ouss

Public Law and Legal Theory Working Papers

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 …

Economic Perspectives On Free Speech, Daniel Hemel

Public Law and Legal Theory Working Papers

The metaphor of a ‘marketplace of ideas’ has long pervaded discussions of free speech in and beyond the United States.¹ 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.^{2 …}

The Anti-Carolene Court, Nicholas Stephanopoulos

Public Law and Legal Theory Working Papers

No abstract provided.

Economies Of Surveillance, Mariano-Florentino Cuéllar, Aziz Z. Huq

Public Law and Legal Theory Working Papers

No abstract provided.

The Uses And Abuses Of Presidential Impeachment, Tom Ginsburg, Aziz Huq, David Landau

Public Law and Legal Theory Working Papers

With the charging and trial of President Trump, impeachment has once again assumed a central role in United States constitutional law and politics. Yet because so few impeachments, presidential or otherwise, have occurred in American history, we have little understanding of how removing presidents in the middle of a term alters the direction of a constitutional democracy. This article illuminates the appropriate scope and channels of impeachment by examining the law and practice of presidential removal globally. We first catalog possible modalities of impeachment through case studies from South Korea, Paraguay, Brazil, and South Africa. We then deploy large-n empirical …

The Case For (And Against) Surrogate Taxation, Julie Roin

Public Law and Legal Theory Working Papers

The 2017 Tax Cut and Jobs Act significantly revised long-standing rules regarding the tax treatment of many employer provided in-kind benefits. Instead of including the value of these benefits in the recipients’ taxable income, for the most part the new rules disallow employers a deduction for the cost of providing the affected benefits. This article argues that the two components of this legislative scheme – relying on cost of provision as the measure of taxable income and on imposing the nominal tax obligation on providers rather than recipients – are distinct policy decisions. It argues that the better approach would …

Taxing Wealth In An Uncertain World, Daniel Hemel

Public Law and Legal Theory Working Papers

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 …

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

Public Law and Legal Theory Working Papers

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 …

A Place For Place In Federal Tax Law, Daniel Hemel

Public Law and Legal Theory Working Papers

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

Public Law and Legal Theory Working Papers

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 …

Some Doubts About “Democratizing” Criminal Justice, John Rappaport

Public Law and Legal Theory Working Papers

The American criminal justice system’s ills are by now so familiar as scarcely to bear repeating: unprecedented levels of incarceration, doled out disproportionately across racial groups, and police that seem to antagonize and hurt the now distrustful communities they are tasked to serve and protect. Systemic social ailments like these seldom permit straightforward diagnoses, let alone simple cures. In this case, however, a large, diverse, and influential group of experts—the legal academy’s “democratizers”—all identify the same disease: the retreat of local democratic control in favor of a bureaucratic “machinery” disconnected from public values and the people themselves. Neighborhood juries, for …

Privacy’S Political Economy And The State Of Machine Learning, Mariano-Florentino Cuéllar, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Our aim in this essay is to consider how policymakers make decisions about government surveillance in what we might call the machine learning state –– a nation-state equipped with sufficient bureaucratic and technological capacity to rely extensively on machine learning techniques for surveillance, law enforcement, and national security. We focus particularly on the question of how the state’s political economy influences its decision to adopt privacy-relevant machine learning technologies. Since machine learning tools can also be deployed in many ways that are not pertinent to privacy, our focus therefore is on a specific subset of state uses of such technology …

Equality’S Understudies, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Our Republic these days is riven by divides about what equality demands of us as private and public actors. Consider just a few recent examples:

• Harvard University is challenged in federal court for preferring African-Americans over other racial minorities, especially Asian-Americans, in their admissions pool^.1 Harvard’s flagship law review, meanwhile, faces its own suit over its preferment of minority candidates.²

• Virginia’s Governor Ralph Northam and its Attorney General Mark Herring are swept up into political controversy by news that both dressed in ‘blackface’ during their college or medical school days.³ The historical significance of ‘blackface’ …

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

Public Law and Legal Theory Working Papers

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 …

A Right To A Human Decision, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Recent advances in computational technologies have spurred anxiety about a shift of power from human to machine decision-makers. From prison sentences to loan approvals to college applications, corporate and state actors increasingly lean on machine learning tools (a subset of artificial intelligence) to allocate goods and to assign coercion. Machine-learning tools are perceived to be eclipsing, even extinguishing, human agency in ways that sacrifice important individual interests. An emerging legal response to such worries is a right to a human decision. European law has already embraced the idea in the General Data Protection Regulation. American law, especially in the criminal …

Democracy As Failure, Aziz Z. Huq

Public Law and Legal Theory Working Papers

The theory and the practice of democracy alike are entangled with the prospect of failure. This is so in the sense that a failure of one kind or another is almost always to be found at democracy’s inception. Further, different kinds of shortfalls dog its implementation. No escape is found in theory, which precipitates internal contradictions that can only be resolved by compromising important democratic values. Out of localized failure, indeed, comes wholesale breakdown. A stable democratic equilibrium proves elusive because of the tendency of discrete lapses to catalyze wider, systemically disruption. Worse, the very pervasiveness of local failure also …

A Tactical Separation Of Powers Doctrine, Aziz Z. Huq

Public Law and Legal Theory Working Papers

No abstract provided.

State Standing’S Uncertain Stakes, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Whether states have Article III standing is a question that has in recent years induced a puzzling and nonstandard patterning of votes amongst the Justices of the Supreme Court. It is, of course, not uncommon for that bench to be characterized by sharp ideological divides. What is unusual and symptomatic in the state standing litigation context is rather this: Specific Justices seem to adopt divergent, seemingly inconsistent, positions on the same basic question of constitutional law when it is presented in different litigation matters.¹ When it comes to state standing, the Court’s ideological divide is not merely acute but …

The Impact Of Artificial Intelligence On Rules, Standards, And Judicial Discretion, Frank Fagan, Saul Levmore

Public Law and Legal Theory Working Papers

Artificial intelligence (AI), and machine learning in particular, promises lawmakers greater specificity and fewer errors. Algorithmic lawmaking and judging will leverage models built from large stores of data that permit the creation and application of finely tuned rules. AI is therefore regarded as something that will bring about a movement from standards to rules. Drawing on contemporary data science, this Article shows that machine learning is less impressive when the past is unlike the future, as it is whenever new variables appear over time. In the absence of regularities, machine learning loses its advantage and, as a result, looser standards …

The Unconstitutionality Of Justice Black, William Baude

Public Law and Legal Theory Working Papers

In Ex Parte Levitt, the Supreme Court denied standing to a pro se litigant making esoteric claims against the appointment of Justice Hugo Black. The Court’s short opinion is now an unremarkable mainstay of modern federal courts doctrine. But the case merits closer examination. Indeed, Levitt’s challenge was probably meritorious, and Hugo Black’s appointment unconstitutional. Moreover, the Court’s standing analysis was probably wrong – though there might have been other reasons to deny the challenge. And finally, the case’s aftermath raises intriguing questions about the Supreme Court’s role in politics and constitutional law. But don’t worry – his opinions are …

Abortion, The Disabilities Of Pregnancy, And The Dignity Of Risk, Mary Anne Case

Public Law and Legal Theory Working Papers

When abortion is discussed in the context of destigmatizing disability, it is usually in connection with the potential disabilities of the fetus. Disability rights activists increasingly encourage both lawmakers setting abortion policy and women contemplating abortion to think that a life with disabilities is worth living. In particular, they argue that a fetus diagnosed with Down syndrome, let alone one with a cleft palate, should not for that reason be aborted.While taking this line of argument into account, this Chapter will shift the frame of reference to various ways in which the law and bioethics of abortion treat pregnant women …

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

Public Law and Legal Theory Working Papers

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 …

Property Beyond Exclusion, Lee Anne Fennell

Public Law and Legal Theory Working Papers

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 …

Tangled Up In Tax, Daniel J. Hemel

Public Law and Legal Theory Working Papers

No abstract provided.