Digital Commons Network^™

The Challenge Of Flexible Intelligence For Models Of Human Behavior, Mathew D. Mccubbins, Mark Turner, Nicholas Weller

Faculty Scholarship

Game theoretic predictions about equilibrium behavior depend upon assumptions of inflexibility of belief, of accord between belief and choice, and of choice across situations that share a game-theoretic structure. However, researchers rarely possess any knowledge of the actual beliefs of subjects, and rarely compare how a subject behaves in settings that share game-theoretic structure but that differ in other respects. Our within-subject experiments utilize a belief elicitation mechanism, roughly similar to a prediction market, in a laboratory setting to identify subjects’ beliefs about other subjects’ choices and beliefs. These experiments additionally allow us to compare choices in different settings that …

The Mythology Of Game Theory, Mathew D. Mccubbins, Mark Turner, Nick Weller

Faculty Scholarship

Non-cooperative game theory is at its heart a theory of cognition, specifically a theory of how decisions are made. Game theory's leverage is that we can design different payoffs, settings, player arrays, action possibilities, and information structures, and that these differences lead to different strategies, outcomes, and equilibria. It is well-known that, in experimental settings, people do not adopt the predicted strategies, outcomes, and equilibria. The standard response to this mismatch of prediction and observation is to add various psychological axioms to the game-theoretic framework. Regardless of the differing specific proposals and results, game theory uniformly makes certain cognitive assumptions …

The Theory Of Minds Within The Theory Of Games, Mathew D. Mccubbins, Mark Turner, Nicholas Weller

Faculty Scholarship

Classical rationality as accepted by game theory assumes that a human chooser in a given moment has consistent preferences and beliefs and that actions result consistently from those preferences and beliefs, and moreover that these preferences, beliefs, and actions remain the same across equal choice moments. Since, as is widely found in prior experiments, subjects do not follow the predictions of classical rationality, behavioral game theorists have assumed consistent deviations from classical rationality by assigning to subjects certain dispositions— risk preference, cognitive abilities, social norms, etc. All of these theories are fundamentally cognitive theories, making claims about how individual human …

Rand Patents And Exclusion Orders: Submission Of 19 Economics And Law Professors To The International Trade Commission, Arti K. Rai

Faculty Scholarship

In this comment to ITC Investigation 337-TA-745 (Certain Wireless Communication Devices, Motorola v. Apple) we, as teachers and scholars of economics, antitrust and intellectual property, remedies, administrative, and international intellectual property law, former Department of Justice lawyers and chief economists, a former executive official at the Patent and Trademark Office, a former counsel at the ITC Office of the General Counsel, and a former Member of the President’s Council of Economic Adviser take the position that ITC exclusion orders generally should not be granted under § 1337(d)(1) on the basis of patents subject to obligations to license on “reasonable and …

Regulatory Techniques And Liability Regimes For Asset Managers, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Not Your Parents' Law Library: A Tale Of Two Academic Law Libraries, Julian Aiken, Femi Cadmus, Fred Shapiro

Faculty Scholarship

As academic law libraries continue to face the inevitability of a rapidly changing landscape which includes a new breed of digital users with sophisticated technological needs, it remains to be seen what libraries will look like in years to come. It is certain that libraries as we know them today will have changed, but to what extent? An ability to remain adaptable and to anticipate the evolving needs of users in a dynamic environment will continue to be key for libraries to remain relevant, and even to survive, in the 21st century; vital to this endeavor will also be an …

Book Review, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Racial Cartels And The Thirteenth Amendment Enforcement Power, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Becoming A Legal Scholar, Samuel W. Buell

Faculty Scholarship

There is now a literature on how to become a law professor. The first book-length treatment of the subject, Becoming A Law Professor, displays a common fault of this literature in directing candidates’ focus on process at the expense of substance. The present body of material on the market for new legal academics does not persuade candidates of the necessity of locating their agendas and voices as scholars, much less does it show them how to go about that vital search. It also risks contributing to a tendency of credentialing processes to standardize resumes without improving outcomes. A second-generation literature …

Transplanting The European Court Of Justice: The Experience Of The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter, Osvaldo Saldias

Faculty Scholarship

Although there is an extensive literature on domestic legal transplants, far less is known about the transplantation of supranational judicial bodies. The Andean Tribunal of Justice (ATJ) is one of eleven copies of the European Court of Justice (ECJ), and the third most active international court. This article considers the origins and evolution of the ATJ as a transplanted judicial institution. It first reviews the literatures on legal transplants, neofunctionalist theory, and the spread of European ideas and institutions, explaining how the intersection of these literatures informs the study of supranational judicial transplants. The article next explains why the Andean …

Engineering An Orderly Greek Debt Restructuring, Mitu Gulati, Jeromin Zettelmeyer

Faculty Scholarship

For some months now, discussions over how Greece will restructure its debt have been constrained by the requirement that the deal be “voluntary” – implying that Greece would continue debt service to any creditors that choose retain their old bonds rather than tender them in an exchange offer. In light of Greece’s deep solvency problems and lack of agreement with its creditors so far, the notion of a voluntary debt exchange is increasingly looking like a mirage. In this essay, we describe and compare three alternative approaches that would achieve an orderly restructuring but avoid an outright default: (1) “retrofitting” …

Jurisdiction And Choice Of Law In International Antitrust Law - A Us Perspective, Ralf Michaels, Hannah L. Buxbaum

Faculty Scholarship

No abstract provided.

The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel

Faculty Scholarship

In this Article, the authors show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that …

Law Of War Manuals And Warfighting: A Perspective, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Introduction, Danny Busch, Deborah A. Demott

Faculty Scholarship

Asset management, a distinctive sector within the financial services industry, centers on an agency relationship between a client and an individual manager or firm appointed to manage the client's investment portfolio. Additionally, in many jurisdictions asset managers are subject to a technically complex set of regulatory requirements, which differ across jurisdictions. This book is the only comparative analysis of the law of asset manager liability in the major European jurisdictions, the United States, and Canada, with chapters written by specialists from the relevant jurisdictions plus a comprehensive chapter covering the relevant European law, in particular the MiFID directive. The book's …

The Stages Of Scandal And The Roles Of General Counsel, Deborah A. Demott

Faculty Scholarship

This Essay examines the roles of a general counsel, as the corporation’s chief legal officer, in responding to scandals when they happen and in developing and enforcing internal preventive practices prior to the occurrence of any particular scandal. The Essay differentiates between scandals and crises more generally, emphasizing the integral connection between scandal and jeopardy to reputation and tracing the interrelationships between a corporation’s reputation and that of its general counsel. The Essay argues that risks associated with scandal may strengthen general counsel’s power within the senior management team, in particular in general counsel’s relationship with the corporation’s CEO. Although …

Code Vs. Code: Nationalist And Internationalist Images Of The Code Civil In The French Resistance To A European Codification, Ralf Michaels

Faculty Scholarship

French academics reacted to announcements about a possible future European civil code ten years ago in the way in which Americans reacted to the Japanese attack on Pearl Harbor 1940: first with shock, then with rearmament, finally with attempted counterattacks. Military metaphors abound. Yet the defense of the French Code Civil against a European civil code is tricky: they must defend one Code against another. The images drawn of codes are therefore of particular interest for our understanding both of civil codes and of legal nationalism. Often, two mutually exclusive images are presented at the same time. In cultural terms, …

Understanding Regulatory Capture: An Academic Perspective From The United States, Lawrence G. Baxter

Faculty Scholarship

Although it sometimes seems that financial regulatory agencies have been entirely captured by the larger players in the industry they regulate, a closer examination reveals that a variety of factors contribute to policy outcomes in this arena. Agencies have different agendas and stakeholders, and banks often perform quasi-governmental roles that blur the line between the captors and the captured. The real danger is that public policy can be distorted as a result of excessive influence by one set of interests at the expense of others. This danger is best thwarted or at least mitigated through the application of a range …

Its Hour Come Round At Last? State Sovereign Immunity And The Great State Debt Crisis Of The Early Twenty-First Century, Ernest A. Young

Faculty Scholarship

State sovereign immunity is a sort of constitutional comet, streaking across the sky once a century to the amazement and consternation of legal commentators. The comet’s appearance has usually coincided with major state debt crises: The Revolutionary War debts brought us Chisholm v. Georgia and the Eleventh Amendment, and the Reconstruction debts brought us Hans v. Louisiana and the Amendment’s extension to federal question cases. This essay argues that much of our law of state sovereign immunity, including its odd fictions and otherwise-incongruous exceptions, can be understood as an effort to maintain immunity’s core purpose — protecting the states from …

Responses To The Five Questions, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

States’ Rights, Southern Hypocrisy, And The Crisis Of The Union, Paul Finkelman

Faculty Scholarship

This article explores the arguments used by southern secessionists to explain why they left the Union. The article demonstrates that support for "states' rights" was not the main reason for secession, and that on the contrary, most of the slave states left the Union because the free states were exercising their states' rights in opposing slavery. The main reason for secession, as this essay shows, was the desire to protect slavery and to create a new nation, self-consciously based on slavery and white supremacy. This article began as part of an AALS legal history section program in 2010 and is …

Use Patents, Carve-Outs, And Incentives — A New Battle In The Drug-Patent Wars, Arti K. Rai

Faculty Scholarship

The Hatch-Waxman Act of 1984 aims to strike a balance between the innovation incentives provided by patents and the greater consumer access provided by low-cost generic drugs. The legislation, which relies in part on an explicit link between the FDA drug approval process and the U.S. patent system, has been controversial, particularly because of the ways in which firms producing brand-name drugs have exploited that link to delay market entry of generics as long as possible. Voluminous scholarship has focused on so-called "pay-for-delay" settlements of patent litigation between brand name and generic firms.

In contrast, this Perspective uses the lens …

Overbilling And Informed Financial Consent — A Contractual Solution, Barak D. Richman, Mark A. Hall, Kevin A. Schulman

Faculty Scholarship

U.S. hospitals and physicians regularly charge uninsured patients and patients receiving care outside their health-plan networks far more what most health insurers pay and far more than their actual costs. Such practices have triggered over 100 lawsuits and prompted calls for pricing transparency in Congress and price regulation in several states. This Perspective argues that the theory of implied contracts, a foundation in most first-year courses in contract law, offers a useful legal and ethical mechanism for handling these troubling problems in health care billing.

Incriminating Thoughts, Nita A. Farahany

Faculty Scholarship

The neuroscience revolution poses profound challenges to current selfincrimination doctrine and exposes a deep conceptual confusion at the heart of the doctrine. In Schmerber v. California, the Court held that under the Self- Incrimination Clause of the Fifth Amendment, no person shall be compelled to “prove a charge [from] his own mouth,” but a person may be compelled to provide real or physical evidence. This testimonial/physical dichotomy has failed to achieve its intended simplifying purpose. For nearly fifty years scholars and practitioners have lamented its impracticability and its inconsistency with the underlying purpose of the privilege. This Article seeks to …

Brief Of Amici Curiae, Neil Vidmar Et Al., Connecticut V. Guilbert, Neil Vidmar, Theresa A. Newman

Faculty Scholarship

No abstract provided.

Cds Zombies, Anna Gelpern, Mitu Gulati

Faculty Scholarship

This paper examines the contract interpretation strategies adopted by the International Swaps and Derivatives Association (ISDA) for its credit derivatives contracts in the Greek sovereign debt crisis. The authors argue that the economic function of sovereign credit default swaps (CDS) after Greece is limited and uncertain, partly thanks to ISDA’s insistence on textualist interpretation. Contract theory explanations for textualist preferences emphasise either transactional efficiency or relational factors, which do not fit ISDA or the derivatives market. The authors pose an alternative explanation: the embrace of textualism in this case may be a means for ISDA to reconcile the competing political …

The Burdens And Benefits Of Brighton, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

Standing The Test Of Time: The Breadth Of Majority Coalitions And The Fate Of U.S. Supreme Court Precedents, Stuart M. Benjamin, Bruce A. Desmarais

Faculty Scholarship

Should a strategic Justice assemble a broader coalition for the majority opinion than is necessary, even if that means accommodating changes that move the opinion away from the author’s ideal holding? If the author’s objective is to durably move the law to his or her ideal holding, the conventional answer is no, because there is a cost and no corresponding benefit. We consider whether attracting a broad majority coalition can placate future courts. Controlling for the size of the coalition, we find that cases with ideologically narrow coalitions are more likely to be treated negatively by later courts. Specifically, adding …

When Copyright Law And Science Collide: Empowering Digitally Integrated Research Methods On A Global Scale, Jerome H. Reichman, Ruth L. Okediji

Faculty Scholarship

Automated knowledge discovery tools have become central to the scientific enterprise in a growing number of fields and are widely employed in the humanities as well. New scientific methods, and the evolution of entirely new fields of scientific inquiry, have emerged from the integration of digital technologies into scientific research processes that ingest vast amounts of published data and literature. The Article demonstrates that intellectual property laws have not kept pace with these phenomena.

Copyright law and science co-existed for much of their respective histories, with a benign tradition of the former giving way to the needs of the latter. …

The Aba, The Aall, The Aals, And The “Duplication Of Legal Publications”, Richard A. Danner

Faculty Scholarship

Between 1935 and 1940, the American Bar Association, the Association of American Law Schools, and the American Association of Law Libraries joined forces to work on solutions to a problem often referred to as the “duplication of legal publications.” The need for practicing attorneys and law libraries to purchase multiple and duplicative versions of published law reports and other law books was burdensome in costs, complicated the research process, and contributed to what the American Law Institute identified as the two chief defects of American law: “its uncertainty and its complexity.” This article highlights the efforts of the ABA, the …