Law Commons^™

What Does The Minimum Wage Have To Do With Reproductive Rights?, Terry O'Neill

Terry O'Neill

No abstract provided.

The Reduced Form Of Litigation Models And The Plaintiff's Win Rate, Jonah B. Gelbach

All Faculty Scholarship

In this paper I introduce what I call the reduced form approach to studying the plaintiff's win rate in litigation selection models. A reduced form comprises a joint distribution of plaintiff's and defendant's beliefs concerning the probability that the plaintiff would win in the event a dispute were litigated; a conditional win rate function that tells us the actual probability of a plaintiff win in the event of litigation, given the parties' subjective beliefs; and a litigation rule that provides the probability that a case will be litigated given the two parties' beliefs. I show how models with very different-looking …

Destabilizing The Normalization Of Rural Black Land Loss: A Critical Role For Legal Empiricism, Thomas W. Mitchell

Thomas W. Mitchell

Mitchell's study exemplifies the New Legal Realist goal of combining qualitative and quantitative empirical research to shed light on important legal and policy issues. He also demonstrates the utility of a ground-level contextual analysis that examines legal problems from the bottom up. The study tracks processes by which black rural landowners have gradually been dispossessed of more than 90% of the land held by their predecessors in 1910. Mitchell points out that despite the continuing practices that contribute to this problem, there has been very little research on the issue, and what little attention legal scholars have paid to it …

Forced Sale Risk: Class, Race, And The "Double Discount", Thomas W. Mitchell, Stephen Malpezzi, Richard K. Green

Thomas W. Mitchell

What impact does a forced sale have upon a property owner's wealth? And do certain characteristics of a property owner such as whether they are rich or poor or whether they are black or white, tend to affect the price yielded at a forced sale? This Article addresses arguments made by some courts and legal scholars who have claimed that certain types of forced sales result in wealth maximizing, economic efficiencies. The Article addresses such economic arguments by returning to first principles and reviewing the distinction between sales conducted under fair market value conditions and sales conducted under forced sale …

Result Inequality In Family Law, Margaret F. Brinig

Margaret F Brinig

To the extent that family law is governed by statute, all families are treated as though they are the same. This is of course consistent with the equal protection guarantees of the U.S. Constitution as well as those of the states. However, in our pluralistic society, all families are not alike. At birth, some children are born to wealthy, married parents who will always put the children’s interests first and will never engage in domestic violence. Many laws benefit these children, while, according to some academics, they either further disadvantage other children or at best ignore their needs. This Article …

Socio-Economics: Challenging Mainstream Economic Models And Policies, Stefan J. Padfield

Akron Law Review

At a time when many people are questioning the ability of our current system to provide economic justice, the Socio-Economic perspective is particularly relevant to finding new solutions and ways forward. In this relatively short conclusion to the Akron Law Review’s publication, Law and Socio-Economics: A Symposium, I have separated the Symposium articles into three groups for review: (1) those that can be read as challenging mainstream economic models, (2) those that can be read as challenging mainstream policy conclusions, and (3) those that provide a good example of both. My reviews essentially take the form of providing a …

Why Working But Poor? The Need For Inclusive Capitalism, Robert Ashford

Akron Law Review

This Article addresses two questions: (1) What other solutions beyond those already tried can and should be employed to reduce poverty? and (2) What can legal scholars, lawyers, law schools, legal clinics, and law students do to reduce poverty? The answer to the first question is to establish an “inclusive capitalism” by democratizing “capital acquisition with the earnings of capital” based on the principles of binary economics. This democratization requires extending to poor and middle­class people competitive access to the same government­supported institutions of corporate finance, banking, insurance, reinsurance, and favorable tax and monetary policies that are presently available primarily …

Result Inequality In Family Law, Margaret F. Brinig

Akron Law Review

To the extent that family law is governed by statute, all families are treated as though they are the same. This is of course consistent with the equal protection guarantees of the U.S. Constitution as well as those of the states. However, in our pluralistic society, all families are not alike. At birth, some children are born to wealthy, married parents who will always put the children’s interests first and will never engage in domestic violence. Many laws benefit these children, while, according to some academics, they either further disadvantage other children or at best ignore their needs.

This Article …

The General Theory Of Second Best And Economic-Efficiency Analysis: The Theory, Its Negative Corollaries, The Appropriate Response To It, And A Coda On The Economic Efficiency Of Reducing Poverty And Income/Wealth Inequality, Richard S. Markovits

Akron Law Review

A great deal of Law & Economics scholarship focuses on the economic efficiency of a legal doctrine, judicial decision, statute, regulation, or proposed change in the law. This Article argues that virtually all such research is flawed (1) by its failure to consider the impact of the “law” it is analyzing on many of the categories of economic inefficiency whose magnitudes the “law” affects and (2) by its assumption that any “law” that reduces the number or magnitude of the (Pareto) imperfections in the economy (types of imperfections one of whose exemplars would cause economic inefficiency if it were the …

"The General Theory Of Second Best" - An Overview, Robert Ashford

Akron Law Review

The following introductory note provides a brief overview of the General Theory of Second Best. This theory is discussed in much greater detail in the essay that follows entitled, The General Theory of Second Best and Economic-Efficiency Analysis: The Theory, its Negative Corollaries, the Appropriate Response to It, and a Coda on the Economic Efficiency of Reducing Poverty and Income/Wealth Inequality written by Professor of law and economics Richard Markovits. This theory, which regrettably is generally ignored in law and economics literature, explains how there is no reason to believe that policy decisions considered in isolation that move a particular …

A Socio-Economic Approach To Antitrust: Unpacking Competition, Consumer Surplus, And Allocative Efficiency, Jeffrey L. Harrison

Akron Law Review

The primary function of socio-economics is to ask questions and broaden the discussion. I have attempted to do that by unpacking and contextualizing the two economic goals of antitrust law - maximizing consumer surplus and allocative efficiency. I have avoided what I believe is today's faith-based approach as exemplified by the Supreme Court. That approach has now gone beyond economics and seems to reveal, in its most benign form, a deep distrust of government.

At its most basic and obvious level the two antitrust goals cede to those with income - earned or not - the right to determine how …

Economic Ideology And The Rise Of The Firm As A Criminal Enterprise, William K. Black, June Carbone

Akron Law Review

Over the last 50 years, the institutions, ideology, nature, and power of firms in the United States have been radically transformed. Neoclassical economics has led that transformation, supplying an ideology that justified a dramatic increase in top executive compensation while dismantling the mechanisms that produced personal accountability tied to anything but relatively short term shifts in share prices. Yet, alongside the rise of the corporation, from the time of Adam Smith forward, has been concern that the separation of ownership and control creates opportunities to use the corporation as a “weapon” of fraud, and with the return of global financial …

Homeschooling's Harms: Lessons From Economics, George Shepherd

Akron Law Review

For more than two centuries, supporters of school choice programs, such as homeschooling, have attempted to invoke economic analysis. They have argued that school choice will cause public schools to improve because the public schools will no longer be monopolies; the new competition will discipline the public schools to improve. The argument is incorrect, as shown by both economic theory and empirical analysis. Economic theory indicates that, because of special characteristics of the market for education, competition will harm public schools, not help them. Likewise, empirical economic analysis confirms that competition will tend to harm public schools. Indeed, earlier school-choice …

Values And The Law: 2010 Aals Annual Meeting Luncheon Keynote Address, The Honorable Guido Calabresi

Akron Law Review

Why is the transformative role of law so important? Why is it such an important part of what we do? Why is what law does so crucial, not just in changing rules of law, but in changing underlying values? Law changes values in ways that may be awful or may be glorious or may be prosaic. But everything we do in law does this. One of the reasons this is so is the blessing and curse of human beings . . . we are so adaptable. It is the secret, I think, of our survival, but it is also a …

Introduction To Socio-Economics: An Ethical Foundation For Law-Related Economic Analysis, Robert Ashford

Akron Law Review

This introductory Article to the Symposium Issue on Law and Socio-Economics (1) briefly explains the origin of the term “socio-economics,” (2) recounts the history of its formal introduction into legal education in 1997, (3) sets forth its underlying principles as a specific methodological approach to law-related economic analysis, (4) describes in greater detail some of its most important features, (5) compares the socio-economic approach to the narrower, neoclassical economic approach that dominates scholarship in “law and economics,” (6) explains the special connection between socio-economic principles and the ethical responsibilities of lawyers related to competence, candor, and the lawyer’s role as …

Why Law Now Needs To Control Rather Than Follow Neo-Classical Economics, John William Draper

Pace Environmental Law Review

This article argues that neo-classical economics places an emphasis on short-term gain over precaution, and in doing so, places the lives of a myriad of individual humans—and even the species itself—at risk. Given the foreseeable risks, if humanity wants to survive longer, we need to rethink our economic principles and priorities and the relationship between economics and law.

I begin with a most brief overview of the various sources of risk to the human species and its life support system. Then I will move on to look at how neo-classical economics interacts with significant risk.

Framing Middle-Class Insecurity: Tax And The Ideology Of Unequal Economic Growth, Martha T. Mccluskey

Journal Articles

Prevailing tax discourse rationalizes growing economic inequality. Using the example of state and local economic development “subsidy wars,” this article explores how conventional tax ideas present unequal sacrifice and risk as a public responsibility, driven by economic fact rather than unjust politics.

Over the last several decades, one contributing cause of inequality has been the escalating tax and spending incentives offered by local governments to attract private business investment. This competition operates to favor wealthy corporations over small businesses, without producing broad or lasting economic gains to communities, and it erodes resources for public education, infrastructure, social services, health care, …

Human Survival, Risk, And Law: Considering Risk Filters To Replace Cost-Benefit Analysis, John William Draper

Librarian Scholarship at Penn Law

Selfish utilitarianism, neo-classical economics, the directive of short-term income maximization, and the decision tool of cost-benefit analysis fail to protect our species from the significant risks of too much consumption, pollution, or population. For a longer-term survival, humanity needs to employ more than cost-justified precaution.

This article argues that, at the global level, and by extension at all levels of government, we need to replace neo-classical economics with filters for safety and feasibility to regulate against significant risk. For significant risks, especially those that are irreversible, we need decision tools that will protect humanity at all scales. This article describes …

Law And Economics: Contemporary Approaches, Martha T. Mccluskey, Frank A. Pasquale, Jennifer Taub

Faculty Scholarship

No abstract provided.

Online Sovereignty: The Law And Economics Of Tribal Electronic Commerce, Gavin Clarkson, Katherine A. Spilde, Carma M. Claw

Vanderbilt Journal of Entertainment & Technology Law

In 1886, the US Supreme Court wrote that, for Indian tribes,"the people of the states where they are found are often their deadliest enemies." Recently, state agencies and regulators have continued that tradition of hostility by improperly attempting to regulate electronic commerce businesses operated by tribal governments that are more properly subject to regulations established by tribal law and subject to federal oversight. Despite the fact that these online businesses operate exclusively under tribal law and make their tribal affiliation clear to customers, certain state regulators have demanded absolute compliance with state law, even when such laws are from states …

The Final Step To Insider Trading Reform: Answering The "It's Just Not Right!" Objection, John P. Anderson

Journal Articles

This Article proceeds as follows: Section I sets the table by dismissing the notion that economic analysis of law should enjoy some privileged status (as more precise, rigorous, or scientific) over ethical analysis of law. Rather, it is suggested that economic and ethical reasons are best understood as different tools suited for different roles in legal reform. It is then argued that, given the current climate, ethical reasoning is the best tool for overcoming the remaining obstacles to insider trading reform in the United States. Section II begins the ethical analysis by arguing that even if it were admitted that …

Optimizing Government For An Optimizing Economy, Cary Coglianese

All Faculty Scholarship

Much entrepreneurial growth in the United States today emanates from technological advances that optimize through contextualization. Innovations as varied as Airbnb and Uber, fintech firms and precision medicine, are transforming major sectors in the economy by customizing goods and services as well as refining matches between available resources and interested buyers. The technological advances that make up the optimizing economy create new challenges for government oversight of the economy. Traditionally, government has overseen economic activity through general regulations that aim to treat all individuals equally; however, in the optimizing economy, business is moving in the direction of greater individualization, not …

Facilitating Competition By Remedial Regulation, Kristelia A. García

Publications

In music licensing, powerful music publishers have begun—for the first time ever— to withdraw their digital copyrights from the collectives that license those rights, in order to negotiate considerably higher rates in private deals. At the beginning of the year, two of these publishers commanded a private royalty rate nearly twice that of the going collective rate. This result could be seen as a coup for the free market: Constrained by consent decrees and conflicting interests, collectives are simply not able to establish and enforce a true market rate in the new, digital age. This could also be seen as …

Behavioral Economics Of Education: Progress And Possibilities, Adam Lavecchia, Heidi H. Liu, Philip Oreopoulos

All Faculty Scholarship

Behavioral economics attempts to integrate insights from psychology, neuroscience, and sociology in order to better predict individual outcomes and develop more effective policy. While the field has been successfully applied to many areas, education has, so far, received less attention – a surprising oversight, given the field's key interest in long-run decision-making and the propensity of youth to make poor long-run decisions. In this chapter, we review the emerging literature on the behavioral economics of education. We first develop a general framework for thinking about why youth and their parents might not always take full advantage of education opportunities. We …

The Law And Economics Of Proportionality In Discovery, Jonah B. Gelbach, Bruce H. Kobayashi

All Faculty Scholarship

This paper analyzes the proportionality standard in discovery. Many believe the Advisory Committee's renewed emphasis on this standard has the potential to infuse litigation practice with considerably more attention to questions related to the costs and benefits of discovery. We discuss the history and rationale of proportionality's inclusion in Rule 26, adopting an analytical framework that focuses on how costs and benefits can diverge in litigation generally, and discovery in particular. Finally, we use this framework to understand the mechanics and challenges involved in deploying the six factors included in the proportionality standard. Throughout, we emphasize that the proportionality standard …