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The Civil Rights Juggernaut David C. Baum Memorial Lecture On Civil Liberties And Civil Rights, Richard Epstein

Articles

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Substitutes, Complements, And Irritants:Garza V Lappinand The Role Of International Law In Us Courts, Tom Ginsburg

Articles

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Swanson V Citibank And The 1l Canon, William Hubbard

Articles

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Death As Divorce For The Abandoned Spouse: Davis V Combes And The Cautious And Gender-Sensitive Judiciary, Saul Levmore

Articles

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The Double Movement Of National Origin Discrimination, Aziz Huq

Articles

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Constitutional Rights In The Machine Learning State, Aziz Huq

Articles

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Deference To The Executive In The United States After September 11, Eric Posner

Articles

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Expungement Reform In Arizona: The Empirical Case For A Clean Slate, Sonja Starr

Articles

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Migratory Birds And The Administrative State, David Strauss

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Data Security's Unjust Enrichment Theory, Lior Strahilevitz

Articles

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Equality's Understudies, Aziz Huq

Articles

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A Right To A Human Decision, Aziz Huq

Articles

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

Articles

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 data set 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 upward over the past decade, …

Do Legal Origins Predict Legal Substance?, Anu Bradford, Yun-Chien Chang, Adam Chilton, Nuno Garoupa

Coase-Sandor Institute for Law & Economics Research Paper Series

There is a large body of research in economics and law suggesting that the legal origins of a country—that is, whether its legal regime is based on English common law or French, German, or Nordic civil law—profoundly impacts a range of outcomes. However, the exact relationship between legal origins and legal substance has been disputed in the literature, and not fully explored with nuanced legal coding. We revisit this debate while leveraging novel cross-country datasets that provide detailed coding of two areas of laws: property and antitrust. We find that having shared legal origins strongly predicts whether countries have similar …

Mopr Madness, Joshua Macey, Robert Ward

Coase-Sandor Institute for Law & Economics Research Paper Series

Synopsis: Five years ago, in his piece on capacity markets, Jay Morrison dis-cussed what he then viewed as the anticompetitive and arbitrary aspects of FERC’s shifting Minimum Offer Price Rules (MOPR) and their interference with private ordering and state policy making. MOPRs allow administrative bodies, rather than market participants, to determine the minimum price per kilowatt that generators can submit as capacity market bids. Since then, energy regulators have extended MOPRs to an increasing number of market participants, and critiques of these rules have reached a fever pitch. To say that the latest permutation of price mitigation promotes a cure …

The Legal Envelope Theorem, Daniel A. Weisbach, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

Non-tax legal rules regulating the workplace, the 6inancial sector, real property, and many other areas affect the ability of governments to collect revenues and provide public goods. Yet tax-collection considerations rarely enter into economic analyses of non-tax legal rules. Usually, tax-collection concerns are shunted aside to separate studies (and separate law-school courses) rather than being integrated into debates in non-tax spheres. This separation between non-tax legal rules and tax- collection considerations bears signi6icant negative consequences for the ability of law and economics to generate descriptively accurate and normatively attractive accounts of important non-tax legal questions.

This Article takes a step …

Remixing Resources, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

This essay argues for an approach to resource access that connects rather than separates questions of efficiency and distribution. It proceeds from the premise that putting together the most valuable combinations of resources—including human capital—is of central and increasing normative importance. Structuring law to facilitate these combinations should be a primary task for property scholars working in the law and economics tradition. Doing so requires engaging with the processes through which complementary resources produce value in a modern society, recognizing how property doctrines work to put together and keep together complementary resource sets, and confronting the ways in which material …

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

University of Chicago Law Review

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 …

A Network Theory Of Patentability, Laura G. Pedraza-Fariña, Ryan Whalen

University of Chicago Law Review

Patent law is built upon a fundamental premise: only significant inventions receive patent protection while minor improvements remain in the public domain. This premise is indispensable for maintaining an optimal balance between incentivizing new innovation and providing public access to existing innovation. Despite its importance, the doctrine that performs this gatekeeping role—nonobviousness— has long remained indeterminate and vague. Judicial opinions have struggled to articulate both what makes an invention significant (or nonobvious) and how to measure nonobviousness in specific cases. These difficulties are due in large part to the existence of two clashing theoretical frameworks, cognitive and economic, that have …

The Limits Of Good Law: A Study Of Housing Court Outcomes, Nicole Summers

University of Chicago Law Review

The enactment of the warranty of habitability in the early 1970s was hailed as a revolution in tenants’ rights. Reversing centuries of legal precedent, the doctrine established that a tenant’s obligation to pay rent is contingent upon the landlord’s obligation to maintain the premises in good repair. Today, nearly fifty years later, scholars and advocates frequently observe that the law has not lived up to the potential originally envisioned. Yet these observations have been based on weak empirical evidence. This Article presents the results of the first rigorous empirical study on the effectiveness of the warranty of habitability. Based on …

Exclusionary Advertising? The Case For Cautious Enforcement Of 42 Usc § 3604(C) Against Minority-Language Housing Advertisements, Emily A. Vernon

University of Chicago Law Review

Section 804(c) of the Fair Housing Act (FHA), codified at 42 USC § 3604(c), prohibits advertisements that “indicate[ ] any preference” on the basis of race, national origin, and other protected categories. The text of the FHA, however, is ambiguous regarding its applicability to the language in which housing advertisements appear, raising the specter of potential liability in communities where residents speak and write in multiple languages. Using Chicago’s Chinatown as a case study, this Comment examines whether the exclusive use of Chinese-language advertisements for housing in Chinatown violates § 3604(c). I begin by enumerating a series of factors that …

Changing Places, Changing Taxes: Exploiting Tax Discontinuities, Julie Roin

Coase-Sandor Institute for Law & Economics Research Paper Series

President Trump’s decision to move his official state of residence from high-tax New York to no (income)-tax Florida has brought public attention to an issue that has long troubled scholars, designers and administrators of income tax systems: how the interaction of tax rules deferring the taxation of income and tax rules based on residency allows taxpayers to reduce and even avoid taxation of their deferred income. These discontinuities in tax treatment may lead to excessive migration, as well as reductions in state income tax revenues. This article explains what states would have to do to eliminate these avoidance opportunities. However, …

Outside Advisers Inside Agencies, Brian D. Feinstein, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

Advisory committees are a ubiquitous, yet understudied feature of the administrative state. More than seventy-five thousand experts from out-side the federal government serve on over one thousand committees across the Executive Branch, providing agencies with informed “second opinions” to complement their in-house experts in the civil service. By law, these committees must be “fairly balanced in terms of the points of view represented.” Yet little is known about whether advisory committees live up to this standard, under what circumstances agencies utilize these panels, and how advisory committees influence agency decision-making.

This Article sheds light on the composition and operation of …

The Economic Basis Of The Independent Contractor/Employee Distinction, Eric A. Posner

Coase-Sandor Institute for Law & Economics Research Paper Series

In recent years, a controversy has erupted over the distinction between employees and independent contractors. Commentators have argued that in the modern “gig economy,” many people traditionally classified as independent contractors are as vulnerable as employees and should be granted the legal protections that employees alone normally enjoy. However, the distinction between the two categories remains inescapable, and the theoretical basis for it has not been identified. I argue that the distinction is derived from market structure. Employees are workers who, because they must make relationship-specific investments in a single firm, are subject to labor monopsony. Independent contractors do not …

Political Ideology And The Law Review Selection Process, Adam Chilton, Jonathan S. Masur, Kyle Rozema

Coase-Sandor Institute for Law & Economics Research Paper Series

We investigate the role that political ideology plays in the selection process for articles in law reviews. To do so, we match data on the political ideology of student editors from 15 top law reviews from 1990 to 2005 to data on the political ideology of the authors of accepted articles. We find that law review with a higher share of conservative editors accept a higher share of articles written by conservative authors. We then investigate potential explanations for this pattern. One possibility is that editors have a preference for publishing articles written by authors that share their ideology. Another …

Sizing Up Categories, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

Categories intentionally create discontinuities. By breaking the world up into cognizable chunks, they simplify the information environment. But the signals they provide may be inaccurate or scrambled by strategic behavior. This Article considers how law might approach the problem of optimal categorization, given the role of categories in managing and transmitting information. It proceeds from the observation that high categorization costs can be addressed through two opposite strategies—making classifications more fine-grained (splitting), and making classifications more encompassing (lumping). Although continuizing and other forms of splitting offer intuitive answers to inaccurate classification and gaming along category lines, lumping is sometimes a …

What Global Human Rights Obligations Do We Have?, Elena Pribytkova

Chicago Journal of International Law

This Article explores global human rights obligations, which form the least elucidated and the most unfulfilled type of extraterritorial obligations. Global obligations represent a key legal tool for empowering the most vulnerable individuals and social groups, promoting social justice, and reducing extreme poverty and inequality worldwide. Despite their importance, global obligations have not yet received adequate legal recognition, regulation, and realization. The Article outlines the main contours of the conception of global obligations. While defending a human rights-based cosmopolitan concept of justice, it addresses issues surrounding the nature, status, content, scope, and hierarchy of moral duties towards non-compatriots and shows …

The International Human Right To Adequate Housing:An Economic Approach, Sahar Segal

Chicago Journal of International Law

International law recognizes a right to adequate housing. Affordability is one component of this right, and it is increasingly unrealized in highly concentrated cities in advanced economies. The prevailing approach to the right to adequate housing is the human rights approach, which favors government involvement in the market to reduce housing prices, for example, via rentcontrol regulations and policies that limit the use of housing as primarily an investment. This Comment notes that this approach misses the critical fact that governments are already involved in the housing market through the imposition of zoning laws. It suggests that an economic approach, …

When Is Cyber Defense A Crime? Evaluating Activecyber Defense Measures Under Thebudapest Convention, Alexandra Van Dine

Chicago Journal of International Law

As cyberattacks increase in frequency and intensity around the globe, private actors have turned to more innovative cyber defense strategies. For many, this involves considering the use of cutting-edge active cyber defense measures—that is, tactics beyond merely erecting firewalls and installing antivirus software that permit cyber defenders to detect and respond to threats in real time. The legality of such measures under international law is a subject of intense debate because of definitional uncertainty surrounding what qualifies as an “active” cyber defense measure. This Comment argues that active defense measures that do not rise to the level of a cybercrime …

Do Multinational Firms Use Tax Havens To The Detriment Of Other Countries?, Dhammika Dharmapala

Coase-Sandor Institute for Law & Economics Research Paper Series

The use of tax havens by multinational corporations (MNCs) has attracted increasing attention and scrutiny in recent years. This paper provides an exposition of the academic literature on this topic. It begins with an overview of the basic facts regarding MNCs’ use of havens, which are consistent with the location of holding companies, intellectual property, and financial activities in havens. However, there is also evidence of significant frictions that limit MNCs’ use of havens. These limits can be attributed to nontax frictions (such as the legal and business environment in different jurisdictions), to tax law provisions limiting profit shifting, and …