Law Commons^™

Federal-State Partnership: How The Federal Government Should Better Support Its State Unemployment Insurance Offices In Times Of Crisis, Maddie Mcfee

University of Michigan Journal of Law Reform

In March 2020, the COVID-19 pandemic caused millions of people to lose their jobs and become dependent on unemployment benefits. State unemployment offices were not prepared for this sudden onslaught of claims. Offices could not increase staffing levels because they were not given money by the federal government to do so. As offices were overwhelmed, a scammer group named Scattered Canary took this opportunity to fraudulently claim millions of dollars from several states. Because the federal government supplies administrative funds to states based on average previous need, the system is not designed to support states’ increased needs during sudden economic …

Emergency Money: Lessons From The Paycheck Protection Program, Susan C. Morse

University of Michigan Journal of Law Reform

The Paycheck Protection Program, or PPP, was huge. Between April 2020 and May 2021, it provided almost $800 billion to more than 11 million businesses—about a third of all U.S. businesses with 500 employees or fewer. The PPP was also flawed. Treasury and the Small Business Administration faced incomplete statutory instructions and a challenging tradeoff between speed and accuracy in distributing PPP funds.

These flaws make the PPP a realistic and valuable case study; the PPP reveals tools that can be applied to similar distributions of emergency funds. One tool is back-end adjustments, meaning that funds are first distributed and …

What The Great Recession Revealed About Taxation By Citation And What Can Be Done About It, Dick M. Carpenter Ii, Chelsea Lawson, Courtney Deuser

University of Michigan Journal of Law Reform

In recent years, the issue of “taxation by citation” has grown in national prominence. It is generally defined as municipal revenue generation through fines and fees that transcends a clear relationship to public health and safety and serves more as a revenue generating device. According to critics, taxation by citation creates conflicts of interest, violates the rights of those with low income, and distorts law enforcement priorities. Municipal leaders reject such criticisms by denying taxation by citation even exists. To date, research findings have been mixed on whether cities practice taxation by citation. This Article examines whether there is a …

Misbehavioral Law And Economics, Jacob Hale Russell

University of Michigan Journal of Law Reform

Many legal rules—ranging from common-law contract doctrines to modern consumer protection regulations—are designed to protect individuals from their own mistakes. But scholars have neglected a core difficulty facing such policies: we humans are a motley bunch, and we are defined in part by our idiosyncrasies. As a result, one person’s mistake is another’s ideal choice. Making matters worse, it is hard to observe when a policy response misfires. If cognitive errors and psychological biases are as prevalent as current research suggests, then we have no reliable way of knowing consumers’ true preferences. So are we always faced with a dilemma, …

The Limits Of Performance-Based Regulation, Cary Coglianese

University of Michigan Journal of Law Reform

Performance-based regulation is widely heralded as a superior approach to regulation. Rather than specifying the actions regulated entities must take, performance-based regulation instead requires the attainment of outcomes and gives flexibility in how to meet them. Despite nearly universal acclaim for performance-based regulation, the reasons supporting its use remain largely theoretical and conjectural. Owing in part to a lack of a clear conceptual taxonomy, researchers have yet to produce much empirical research documenting the strengths and weaknesses of performance-based regulation. In this Article, I provide a much-needed conceptual framework for understanding and assessing performance-based regulation. After defining performance-based regulation and …

It Is Time For Washington State To Take A Stand Against Holmes's Bad Man: The Value Of Punitive Damages In Deterring Big Business And International Tortfeasors, Jackson Pahlke

University of Michigan Journal of Law Reform

In Washington State, tortfeasors get a break when they commit intentional torts. Instead of receiving more punishment for their planned bad act, intentional tortfeasors are punished as if they committed a mere accident. The trend does not stop in Washington State—nationwide, punitive damage legislation inadequately deters intentional wrongdoers through caps and outright bans on punitive damages. Despite Washington State’s one hundred and twenty-five year ban on punitive damages, it is in a unique and powerful position to change the way courts across the country deal with intentional tortfeasors. Since Washington has never had a comprehensive punitive damages framework, and has …

Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly

University of Michigan Journal of Law Reform

Insights from economics and the economic analysis of law may be useful in analyzing succession law, including intestacy and wills as well as nonprobate transfers such as trusts. After surveying prior works that have examined succession from a functional perspective, I explore the possibility of utilizing tools like (i) transaction costs, (ii) the ex ante/ex post distinction, and (iii) rules versus standards, to illuminate the design of the Uniform Probate Code. Specifically, I investigate how these tools, which legal scholars have employed widely in other contexts, may be relevant in understanding events like the nonprobate revolution and issues like "dead …

The Moral Hazard Problem With Privatization Of Public Enforcement: The Case Of Pharmaceutical Fraud, Dayna Bowen Matthew

University of Michigan Journal of Law Reform

This Article takes a law and economics approach to exploring some of the costs that arise when governments rely on private enforcement to accomplish the goals of public law. The analysis focuses on qui tam enforcement under the Civil False Claims Act, because a remarkable body of empirical data demonstrates the expansive role private qui tam relators are playing in enforcing Medicare and Medicaid fraud and abuse laws. The Article further focuses on the application of these laws to the pharmaceutical industry. This focus is enlightening because the Government, as well as private enforcers, have recently targeted this industry so …

Theorizing Behavioral Law And Economics: A Defense Of Evolutionary Analysis And The Law, Neel P. Parekh

University of Michigan Journal of Law Reform

Behavioral law and economics (BLE) provides a steady stream of empirical evidence that counters the predictions of law and economics. Despite this research and data, however, many theorists argue that BLE ultimately fails because it posits no underlying theory. This Note argues that perspectives from evolutionary biology, evolutionary psychology, and the brain sciences can provide the missing motivational theory for BLE's empirical findings. The Note also examines the implications a more consistent and reasoned consideration of evolutionary analysis and the law (EA) has for our legal regime. In theorizing BLE and defending EA, this Note aims to show how evolutionary …

Regret Theory - Explanation, Evaluation And Implications For The Law, Grant B. Gelberg

University of Michigan Journal of Law Reform

This Note discusses regret theory, which offers an alternative explanation of rational behavior in risky or uncertain situations. Unlike traditional law and economics, which is based on expected utility theory, regret theory posits that individuals either rejoice or experience regret after making a decision, and that the anticipation of these feelings influences choices ex ante. In recent years, studies have shown the robustness of regret theory, particularly when individuals compare action to inaction, in disparate feedback environments, and when decisional agency is altered. These, and other factors, influence regret theory's impact on litigant behavior, as well as on the …

Paradigm Shifts And Access Controls: An Economic Analysis Of The Anticircumvention Provisions Of The Digital Millennium Copyright Act, Melissa A. Kern

University of Michigan Journal of Law Reform

This Note addresses the broadened scope of protection granted to copyright holders under the anticircumvention provisions of the Digital Millennium Copyright Act of 1998 (DMCA). This broadened scope extends to copyright holders the right to control access to their works, diminishing the consumer's 'fair use" of those works that previously served as a defense to alleged copyright infringements. While access controls are supported by economists who believe they are useful in correcting market inefficiencies and excluding free riders, this Note suggests that access controls cannot correct all market inefficiencies. Furthermore, such access controls deny access and use of copyrighted material …

Reflections On Fuller And Perdue's The Reliance Interest In Contract Damages: A Positive Economic Framework, Avery Katz

University of Michigan Journal of Law Reform

Fuller and Perdue's classic article, The Reliance Interest in Contract Damages, is regarded by many contemporary contracts scholars as the single most influential law review article in the field. For those of us who teach and think about contracts from the perspective of law and economics, the consensus would probably be close to unanimous. The article displays an approach highly congenial to an economic perspective. The connection goes beyond Fuller and Perdue's explicitly functional approach to law (which law and economics shares with other schools of thought descended from the legal realists) and beyond Fuller and Perdue's focus on …

Derek Bok And The Merger Of Law And Economics, Herbert Hovenkamp

University of Michigan Journal of Law Reform

Both the novelty and the uniqueness of the "law and economics" movement of the last fifteen years have been greatly exaggerated. Law and economics has been with us for at least a half century, in nearly every area of private and public law. The most outspoken protagonists of law and economics admit that economics had a presence in antitrust and regulatory policy long before the work of Ronald Coase, Lester Telser, and others inspired its expanded use in areas of private law, such as tort and contract. But even then, some of those who would make such an admission would …

The Effectiveness Of Measures To Increase Appellate Court Efficiency And Decision Output, Thomas B. Marvell, Carlisle E. Moody

University of Michigan Journal of Law Reform

This Article will examine the effectiveness of measures commonly employed to increase appellate court productivity. Part I of the Article sets forth some common design problems and explains how the research technique employed in the present study avoids these problems by using a multiple time-series research design. Part II applies this design to state court data. Part II also describes the dependent variable, the number of appeals decided per judge, used in the regression analysis. Part III discusses the results of that analysis-the impact of each change listed above on judicial productivity. The Article, although not advocating the adoption of …

The Attainment Of Pay Equity Between The Sexes By Legal Means: An Economic Analysis, George E. Johnson, Gary R. Solon

University of Michigan Journal of Law Reform

The purpose of this Article is to present an analysis of the gap between men's and women's wages with particular emphasis on the likely effects of various existing and proposed legal remedies. Part I sets out a simple "ideal" statistical model of wage determination. Its purpose is to identify carefully the potential impact of alternative legal remedies such as the Equal Pay Act, Title VII, and proposed policies like comparable worth. This model is ideal in the sense that, although it could be estimated in principle, there is no data set currently available with which it could actually be estimated. …

The Social And Political Challenge Of Inflation: An Economist's View, Harold T. Shapiro

University of Michigan Journal of Law Reform

This Special Issue of the Journal of Law Reform has been nourished, at least in an emotional sense, by this same concern. The editors of the Journal apparently share the widespread frustration regarding what seem to increasing numbers of citizens as the largely intractable nature of the country's current economic ills. There is a certain apprehension that we may not be able to develop solutions to our lagging productivity, to our continuing inflation and unemployment, to our energy "problem," or to a host of other "economic" issues currently outstanding on the national agenda: unemployment of young people and minorities, environmental …

Antitrust Law, Competition, And The Macroeconomy, Peter C. Carstensen

University of Michigan Journal of Law Reform

This article examines the links between antitrust law-one possible tool for dealing with economic ills-and macroeconomic structure. It analyzes the current policy and economic assumptions underlying the importance of antitrust enforcement in reaching a healthy, competitive economy and concludes that such enforcement does contribute to the increased effectiveness of macroeconomic tools.

Part I explores the current macroeconomic theories and their policy implications. Part II discusses the related concepts of market power and competition and concludes that dissipation of market power is preferable, but that the regulation of market power may yield significant social and economic benefits in the short run, …