Digital Commons Network^™

Private Security And Public Police, Ben Grunwald, John Rappaport, Michael Berg

Coase-Sandor Institute for Law & Economics Research Paper Series

Private security officers outnumber police by a wide margin, and the gap may be growing. As cities have claimed to defund the police, many have quietly expanded their use of private security, reallocating spending from the public to the private sector. It is difficult to know what to make of these trends, largely because we know so little about what private security looks like on the ground. On one prevalent view of the facts, a shift from public to private security would mean little more than a change of uniform, as the two labor markets are deeply intertwined. Indeed, academics, …

Restructuring Support Agreements: An Empirical Analysis, Katherine Waldock, Anthony Casey, Frederick Tung

Coase-Sandor Institute for Law & Economics Research Paper Series

Restructuring support agreements (RSAs), or contracts that commit bankruptcy parties to supporting a plan of reorganization that will conform to certain requirements, are now a common feature of Chapter 11. Parties utilize these agreements in nearly half of all large cases. While prior literature has debated the normative value of RSAs, we take an empirical approach to look at what provisions the parties include in these agreements and how those provisions have changed over time.

Our analysis looks at all RSAs associated with large bankruptcies through the end of 2020. We characterize the types of firms with RSAs, the parties …

Power And Politics In Original Jurisdiction, Zachary D. Clopton

University of Chicago Law Review

The original jurisdiction of the U.S. Supreme Court is a topic of scholarly interest but little practical significance. The original jurisdiction of state supreme courts is exactly the opposite—it is virtually absent from the scholarly literature but of significant practical importance. For example, dozens of cases related to elections, COVID-19 responses, and abortion were filed in the original jurisdiction of state supreme courts in the last few years. Legislatures also recognize the importance of original jurisdiction, as state legislators have proposed dozens of recent bills to change the scope of original jurisdiction.

This Article offers a comprehensive review of the …

A New Measure Of Surviving Children That Sheds Light On Long-Term Trends In Fertility, Anup Malani, Ari Jacob

Coase-Sandor Institute for Law & Economics Research Paper Series

The consequences of fertility decline flow primarily from reduction in the number of surviving children, i.e., both births and survival, not simply from reductions in births. Therefore, neoclassical economic theories that attempt to explain fertility decline (e.g., quantity-quality models) hinge on preferences for surviving children, not births per se. This paper provides a new measure of surviving children. Effective fertility rate (EFR) is the product of the current fertility rate and the projected probability that a child survives until some age A. This age A could be between 15-49 for a measure (EFRR) that tracks reproductive potential, or 15-65 for …

A Commitment Rule For Insolvency Forum, Anthony Casey, Aurelio Gurrea-Martínez, Robert K. Rasmussen

Coase-Sandor Institute for Law & Economics Research Paper Series

In this article, we propose a new rule for determining the proper forum for insolvency proceedings. Currently, the Model Law on Cross-Border Insolvency— promulgated by the United Nations Commission on International Trade Law (“UNCITRAL”)—looks to a debtor’s center of main interest (“COMI”) to determine the proper forum for a foreign main insolvency proceeding. This rule is flawed. It is both inflexible and manipulable. It is also indeterminate and neither requires nor allows advance commitment by debtors. As a result, it leads to uncertainty, increases litigation costs, and opens the door to opportunistic manipulation by debtors. These costs, in turn, raise …

Getting To Yes: The Role Of Coercion In Debt Renegotiations, Vincent S.J. Buccola, Marcel Kahan

Coase-Sandor Institute for Law & Economics Research Paper Series

A debt contract’s value depends on the parties’ ability to alter its terms. But although the rules of alteration are for that reason an important part of the design of debt instruments, the academic literature lacks a framework for making sense of them. Recent upheavals in restructuring practice have emphasized the practical importance of a working theory of alteration, however, and in particular of the rules governing what debtors can do to procure creditor acquiescence to proposed changes. This article develops a comprehensive account of the methods of consent solicitation broadly construed. We offer four principal contributions. First, we identify …

Property Moves: Assembling Service Streams, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

In this essay, I consider how we might retrofit property rights to meet modern urban and environmental challenges, which have foundationally rewritten property’s job description. The way forward requires attending to the beneficial services that resources provide, and to the central role of assembly (and reassembly) in generating and sustaining those service streams. To that end, I catalog a repertoire of “property moves” aimed at the moving target of resource optimization. While these moves can be pursued in limited ways within our current property framework, pursuing them in concert at scale requires ownership that is built for ongoing reconfiguration. I …

A Commitment Rule For Insolvency Forum: A Response To Critics, Anthony J. Casey, Aurelio Gurrea Martínez, Robert K. Rasmussen

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Silicon Valley Bank: A Case Study In Post-Crisis Bank Failures, Anthony Casey

Coase-Sandor Institute for Law & Economics Research Paper Series

The 2023 Silicon Valley Bank collapse was the third-largest bank failure in United States (US) history and one of the two largest since the 2008 financial crisis. This event served as the first major test for the post-crisis bank-failure regime in the US. This article evaluates how effectively that regime responded to the challenge. While some critics have questioned the effectiveness of both the regime and the US government's specific actions, others argue that the measures taken successfully mitigated systemic risk. Notably, the government felt compelled to provide discretionary depositor protection beyond what the legal framework required. This suggests that …

Which Constitutional Provisions Are Most Important?, Richard Albert, Netta Barak-Corren, Daniel M. Brinks, Adam Chilton, Rosalind Dixon, Zachary Elkins, Tom Ginsburg, Ran Hirschl, David Landau, Ashley Moran, Yvonne Tew, Mila Versteeg

Coase-Sandor Institute for Law & Economics Research Paper Series

National constitutions codify provisions on a wide range of topics, ranging from presidential term limits to the country’s flag. But are all constitutional provisions equally important? Some are likely to be particularly consequential for how governments function, while others are likely to be largely symbolic. To date, there has been little research on the relative importance of constitutional provisions. To explore current thinking on this subject, we assembled a group of twelve comparative constitutional scholars to rate the relative importance of 340 constitutional pro- visions to the functioning of a country’s government. These aggregate ratings make three contributions to constitutional …

An Apa For Tax, David A. Weisbach

Coase-Sandor Institute for Law & Economics Research Paper Series

Recent Supreme Court cases threaten to upend the administrative law applicable to the tax system. Loper Bright eliminates Chevron deference. Ohio v. EPA heightens the scrutiny given to regulatory preambles. And Corner Post effectively eliminates the statute of limitations for challenging the validity regulations. A number of lower court decisions move in the same direction, aggressively using administrative law to invalidate guidance. Combined, these decisions threaten to make issuing guidance much more difficult and to slow the guidance process.

These decisions are based on the Administrative Procedure Act or related statutes rather than constitutional principles. Therefore, to the extent that …

Lost Time: Paying For Delays Associated With Labor Strikes And Traffic Jams, Saul Levmore

Coase-Sandor Institute for Law & Economics Research Paper Series

Waiting is often costly. In many settings, one party delays to impose costs on another. In other settings, delay yields a small gain while imposing significant costs on others who cannot easily bargain. Where the parties can bargain, at least one expects the other to relent and to bring about a settlement that is mutually beneficial. Inasmuch as time offers the opportunity to gather information, compare alternatives, and reach yet better bargains, law does not and should not simply discourage all delays. On the other hand, it is often the case that when parties delay before reaching a bargain, they …

The Common Political Foundations Of Originalism And Cost-Benefit Analysis, Jonathan S. Masur, Eric A. Posner

Coase-Sandor Institute for Law & Economics Research Paper Series

Cost-benefit analysis (CBA) and originalism are rarely discussed together, and seem to belong to different worlds of legal scholarship. The two methods are used by different institutions in different spheres of law for different purposes; what could they have in common? Nothing, or so it would seem. Yet closer inspection reveals surprising commonalities—both in terms of structure and function, on the one hand, and in historical pedigree and political economy, on the other. CBA and originalism are what we will call midlevel legal methods. Midlevel legal methods are neither normative commitments nor legal doctrines, but recurrently used methodologies that are …

Control Rights And Chapter 11'S Expanding Scope, Jared I. Mayer

Coase-Sandor Institute for Law & Economics Research Paper Series

Control rights are rights to control how a debtor uses certain resources, such as rights to foreclose on collateral, terminate a contract, or prevent assignment of contractual rights. Law and economics scholars have mused whether bankruptcy law should supplant control rights, but they’ve assumed that all control rights share the same goal: to protect a party’s investment in a company.

This Article rejects that assumption. It shows that there are two kinds of control rights that bankruptcy law should treat differently. One kind - what this Article dubs “investment-backed control rights” - aims to protect a party’s investment in the …

Cash Substitution And Deferred Consumption As Data Breach Harms, Lisa Yao Liu, Lior Jacob Strahilevitz

Coase-Sandor Institute for Law & Economics Research Paper Series

Federal courts have long been divided over whether consumers whose data are breached suffer an “injury in fact” that gives them standing to sue under Article III of the United States Constitution. Judicial opinions find no constitutional standing in a narrow majority of such cases, and plaintiffs are likely to lose absent causal links to subsequent identity theft or the disclosure of embarrassing information. Consumers whose data are breached thus are left without a federal remedy, and firms’ incentives to invest in data security are diminished. Our paper identifies a novel injury that results from data breaches. Upon learning about …

The Sweep And Force Of Section Three, William Baude, Michael Paulsen

Articles

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This Article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by …

Constraining Constitution-Making, Adam Chilton, Cristián Eyzaguirre, David Landau, Mila Versteeg

Articles

Whether constitution-making should be constrained has long been debated, but little is known about whether it is possible. We make several contributions to this question. We start by providing a typology of three types of constraints on constitution- making: Substantive, Procedural, and Institutional. We next develop a positive theory of when these constraints are likely to influence drafters’ behavior. We then use a mixed-methods approach to explore these ideas in the context of Chile’s constitutional reform process. In a survey experiment conducted in Chile before citizens voted on the draft constitution, we find that most respondents supported constraints in the …

Which Constitutional Provisions Are Most Important?, Adam Chilton, Richard Albert, Netta Barak-Corren, Daniel Brinks, Rosalind Dixon, Zachary Elkins, Tom Ginsburg, Ran Hirschl, David Landau, Ashley Moran, Yvonne Tew, Mila Versteeg

Articles

National constitutions codify provisions on a wide range of topics, ranging from presidential term limits to the country’s flag. But are all constitutional provisions equally important? Some are likely to be particularly consequential for how governments function, while others are likely to be largely symbolic. To date, there has been little research on the relative importance of constitutional provisions. To explore current thinking on this subject, we assembled a group of twelve comparative constitutional scholars to rate the relative importance of 340 constitutional provisions to the functioning of a country’s government. These aggregate ratings make three contributions to constitutional studies: …

Shadows Or Forgeries? Explaining Legal Normativity, Alma Diamond

Articles

No abstract provided.

Relentless As Entrenchment, Jonathan Masur

Articles

No abstract provided.

Lies And The Law: An Introduction, Genevieve Lakier

Articles

No abstract provided.

The Impact Of Civilian Investigative Agency Resources On The Timeliness Of Police Misconduct Investigations, Sharon Fairley

Articles

As many cities and counties turn to civilian oversight of law enforcement to enhance accountability, resource allocation is a critical issue with which police reform advocates, oversight entity administrators, and political leaders struggle almost every budget cycle. Resources are tremendously important in this context. Historically, lack of resources has been an important, if not the decisive factor leading to an oversight entity’s demise.

This Article reports on a unique and newly created dataset composed of case management and budgetary information from civilian oversight entities responsible for independent police misconduct investigations. The data were collected and analyzed to provide greater insight …

The New Outlawry, Darrell Miller, Jacob Charles

Articles

From subtle shifts in the procedural mechanics of self-defense doctrine to substantive expansions of justified lethal force, legislatures are delegating larger amounts of “violence work” to the private sphere. These regulatory innovations layer on top of existing rules that broadly authorize private violence—both defensive and offensive—for self- protection and the ostensible maintenance of law and order. Yet such significant authority for private violence, and the values it projects, can have tragic real-world consequences, especially for marginalized communities and people of color.

We argue that these expansions of private violence tap into an ancient form of social control—outlawry: the removal of …

Historical Analogy And The Role Morality Of Reason-Giving, Darrell Miller

Articles

The Supreme Court has turned ever more to analogical reasoning from history and tradition to decide significant matters of public policy. Nowhere is this phenomenon more evident than in the Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen.

The Court’s crafting of a Second Amendment test that turns almost entirely on the strength of analogies—and on a topic of such intense public salience—has thrust analogical reasoning to the forefront of judicial and academic debate. While many have questioned the workability of Bruen’s focus on historical analogs, this Essay is less concerned about the pragmatics of …

Are They All Textualists Now?, Austin Peters

Articles

Recent developments at the U.S. Supreme Court have rekindled debates over textualism. Missing from the conversation is a discussion of the courts that decide the vast majority of statutory interpretation cases in the United States—state courts. This Article uses supervised machine learning to conduct the first-ever empirical study of the statutory interpretation methods used by state supreme courts. In total, this study analyzes over 44,000 opinions from all fifty states from 1980 to 2019.

This Article establishes several key descriptive findings. First, since the 1980s, textualism has risen rapidly in state supreme court opinions. Second, this rise is primarily attributable …

Amendments To The Case-Zablocki Act Concerning Reporting And Publication Of International Agreements And Related Regulations (U.S.), Curtis Bradley

Articles

No abstract provided.

Social Rights Scapegoating, Adam Chilton, Cristián Eyzaguirre, Mila Versteeg

Articles

No abstract provided.

The Natural Law Origins Of Private And Public Law, Richard Epstein

Articles

This article attempts to counter the widespread skepticism that surrounds any appeal to natural law principles, starting with Roman law at one end and the appeal to general law under Swift v. Tyson on the other. It steers a systematic middle course between moral absolutism, which treats all relationships as fixed and immutable, and modern realist positions that insist the infinite variety of legal approaches to most legal problems proves that there is no solid core to either natural law or general law. The natural law positions set out the basic relationships for marriage and family, for alluvion and avulsion …

It's The Procedures, Stupid: The Success And Failures Of Chile's Constitutional Convention, Tom Ginsburg, Isabel Álvarez

Articles

Chile’s experience with its Constitutional Convention from 2021 to 2022 sheds light on an important issue for comparative reflection: the role of procedures in constitution-making processes. The Constitutional Convention was bound by procedures that were both externally imposed and internally created. Our assessment is that, while some procedures improved representation and deliberation, the most important decision-making procedures were pernicious to the process. We argue that looking at procedures is fundamental when analysing constitutional processes, as the rules that bind rule-making processes can significantly impact not only their functioning, but also their outcomes.

The General-Law Right To Bear Arms, William Baude, Robert Leider

Articles

No abstract provided.