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Full-Text Articles in Law
Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature And Of Criminal Profiling More Generally, Bernard E. Harcourt
Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature And Of Criminal Profiling More Generally, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
New data on highway stops and searches from across the country have spawned renewed debate over racial profiling on the roads. The new data reveal consistently disproportionate searches of minority motorists, but, very often, an equal or lower general success rate—or “hit rate”—associated with those searches. Economists are developing new models of racial profiling to test whether the data are consistent with policing efficiency or racial prejudice, and argue that equal hit rates reflect that the police are maximizing the success rate of their searches. Civil liberties advocates are scrutinizing the same data and, in most cases, reaching opposite conclusions. …
Chapter 11 At Twilight, Robert K. Rasmussen, Douglas G. Baird
Chapter 11 At Twilight, Robert K. Rasmussen, Douglas G. Baird
Coase-Sandor Working Paper Series in Law and Economics
In The End of Bankruptcy we set out the forces that have rendered obsolete traditional conceptions of corporate reorganization. Lynn LoPucki wrote a critique that asserted that our paper lacked empirical foundation. In this response, we draw on LoPucki’s data set of the reorganization of large, publicly held entities to show the robustness of our claims, both empirical and theoretical. Looking in detail at the firms whose Chapter 11 cases ended in 2002, most of which concluded after we completed our original piece, we find that in over 80% of the cases the assets of the firm were either sold …
Rethinking Prosecution History Estoppel, Douglas Gary Lichtman
Rethinking Prosecution History Estoppel, Douglas Gary Lichtman
Coase-Sandor Working Paper Series in Law and Economics
Under the rule of prosecution history estoppel, patent applicants who amend their claims during the course of patent prosecution assume a significant risk: namely, the risk that a court will later construe the changes as concessions that should be read to limit patent scope. This risk is exacerbated by strong evidentiary presumptions under which courts are to assume, unless the patentee presents sufficient evidence otherwise, that every change triggers estoppel, and that the resulting estoppel forfeits everything except that which the revised language literally describes. The justification for these presumptions is that, implemented in this fashion, prosecution history estoppel makes …
The Effects Of Taxation On Income-Producing Crimes With Variable Leisure-Time, Avraham D. Tabbach
The Effects Of Taxation On Income-Producing Crimes With Variable Leisure-Time, Avraham D. Tabbach
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Accommodating Emergencies, Eric A. Posner, Adrian Vermeule
Accommodating Emergencies, Eric A. Posner, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
Ideological Voting On Federal Courts Of Appeals: A Preliminary Investigation, Cass R. Sunstein
Ideological Voting On Federal Courts Of Appeals: A Preliminary Investigation, Cass R. Sunstein
Public Law and Legal Theory Working Papers
For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect of judicial ideology on judges’ votes. If the political party of the appointing president is treated as a rough proxy for ideology, then it becomes possible to test three hypotheses: (a) a judge’s votes, in ideologically contested areas, can be predicted by the party of the appointing president; (b) a judge’s ideological tendency, in such areas, will be amplified if the panel has two other judges appointed by an appointing president of the …
The Judiciary Is A They, Not An It: Two Fallacies Of Interpretive Theory, Adrian Vermeule
The Judiciary Is A They, Not An It: Two Fallacies Of Interpretive Theory, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
Ideological Voting On Federal Courts Of Appeals: A Preliminary Investigation, Cass R. Sunstein, Lisa Michelle Ellman, David Schkade
Ideological Voting On Federal Courts Of Appeals: A Preliminary Investigation, Cass R. Sunstein, Lisa Michelle Ellman, David Schkade
Coase-Sandor Working Paper Series in Law and Economics
For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect of judicial ideology on judges' votes. If the political party of the appointing president is treated as a rough proxy for ideology, then it becomes possible to test three hypotheses: (a) a judge’s votes, in ideologically contested areas, can be predicted by the party of the appointing president; (b) a judge’s ideological tendency, in such areas, will be amplified if the panel has two other judges appointed by an appointing president of the …
The Integration Of Tax Spending Programs, David A. Weisbach, Jacob Nussim
The Integration Of Tax Spending Programs, David A. Weisbach, Jacob Nussim
Coase-Sandor Working Paper Series in Law and Economics
This paper provides a theory for deciding when a spending program should be implemented through the tax system. The decision is traditionally thought to be based on considerations of tax policy. The most common theories are the comprehensive tax base theory and the tax expenditures theory, both of which rely on tax policy to make the determination. We argue instead that the decision should be based solely on consideration of organizational design. Activities should be grouped together in a way that achieves the best performance, much like a corporation decides how to divide its business into divisions. Tax policy is …
What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, And Marriage, Cass R. Sunstein
What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, And Marriage, Cass R. Sunstein
Coase-Sandor Working Paper Series in Law and Economics
The Supreme Court's decision in Lawrence v. Texas is best seen as a cousin to Griswold v. Connecticut, invalidating a ban on the use of contraception within marriage, and Reed v. Reed, invalidating a preference for men over women in the administration of estates. In both cases, the Court struck down an anachronistic law palpably out of step with existing public convictions. Lawrence should be understood in the same terms, as rooted in a distinctly American-style doctrine of desuetude. The central principle is that at least if certain interests are involved, criminal statutes may not be invoked against citizens when …
The Digital Video Recorder: Unbundling Advertising And Content, Randal C. Picker
The Digital Video Recorder: Unbundling Advertising And Content, Randal C. Picker
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Statistics, Not Memories: What Was The Standard Of Care For Administering Antenatal Steroids To Women In Preterm Labor Between 1985 And 2000?, Cass R. Sunstein, William Meadow, Anthony Bell
Statistics, Not Memories: What Was The Standard Of Care For Administering Antenatal Steroids To Women In Preterm Labor Between 1985 And 2000?, Cass R. Sunstein, William Meadow, Anthony Bell
Coase-Sandor Working Paper Series in Law and Economics
We determined the frequency of antenatal corticosteroid use for mothers with threatened premature delivery in 1985, 1990, 1995, and 2000. We next compared published data to the surveyed recollections of 302 obstetricians who were practicing during these years. Two points emerged. First, published reports reveal that the use of antenatal corticosteroids increased steadily, from 8% in 1985 to 20% in 1990, 52% in 1995, and 75% in 2000 (P < .001). Second, “expert” opinions derived from the recollections of practicing obstetricians consistently overestimated the actual use of antenatal corticosteroids during the year in question—31% versus 8% for 1985, 56% versus 20% for 1990, 78% versus 52% for 1995, and 92% versus 72% for 2000 (all Ps < .001). The use of antenatal corticosteroids by obstetricians in the past 15 years reveals a phenomenon that is widely recognized elsewhere—retrospective memories are often wrong, and when they are wrong they are not randomly wrong. Rather, recollections are systematically skewed toward an outcome that, in hindsight, is considered desirable (the "Monday morning quarterback" phenomenon). We offer a simple proposal. In determining the "standard of medical care," the legal system should rely on statistical data about doctors' performance rather than the recollections of experts about doctors’ performance. The fallible memories of isolated experts are a crude second-best, far inferior to the data that they approximate. Widespread adoption of this view by professional physician organizations would dramatically increase the rationality of expert testimony in medical malpractice tort law. (Obstet Gynecol 2003;102:356–62. © 2003 by The American College of Obstetricians and Gynecologists.)
Decreasing Liability Contracts, Robert D. Cooter, Ariel Porat
Decreasing Liability Contracts, Robert D. Cooter, Ariel Porat
Coase-Sandor Working Paper Series in Law and Economics
Like constructing a building, performance on many contracts occurs in phases. As time passes, the promisor sinks more costs into performance and less expenditure remains. For phased performance, we show that optimal liability for the breaching party decreases as the remaining costs of completing performance decrease. In brief, efficiency requires a decreasing liability contract. To implement such a contract, we recommend deducting past expenditure on incomplete performance from liability. We show that progress payment contracts, which are commonplace in some industries, are materially equivalent to decreasing liability contracts. Our analysis should prove useful for elucidating progress payment contracts and for …
The Paradox Of Spontaneous Formation Of Private Legal Systems, Amitai Aviram
The Paradox Of Spontaneous Formation Of Private Legal Systems, Amitai Aviram
Coase-Sandor Working Paper Series in Law and Economics
Scholarship on private legal systems (PLS) explains the evolution of norms created and enforced by PLSs, but rarely addresses the evolution of institutions that form PLSs. Such institutions are assumed to form spontaneously (unless suppressed by law) when law is either unresponsive or incapable of directing behavior in welfare-maximizing manners. But, as this paper demonstrates, PLSs typically cannot form spontaneously. Newly formed PLSs cannot enforce cooperation since the effectiveness of mechanisms used to secure this cooperation (e.g., the threat of exclusion) depends on the PLS’s ability to confer benefits to its members, and newly formed PLSs do not yet confer …
Trade Secrets As Private Property: Their Constitutional Protection, Richard A. Epstein
Trade Secrets As Private Property: Their Constitutional Protection, Richard A. Epstein
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Insuring Against Terrorism - And Crime, Saul Levmore, Kyle D. Logue
Insuring Against Terrorism - And Crime, Saul Levmore, Kyle D. Logue
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Insuring Against Terrorism - And Crime, Saul Levmore, Kyle D. Logue
Insuring Against Terrorism - And Crime, Saul Levmore, Kyle D. Logue
Public Law and Legal Theory Working Papers
No abstract provided.
Lives, Life-Years, And Willingness To Pay, Cass R. Sunstein
Lives, Life-Years, And Willingness To Pay, Cass R. Sunstein
Coase-Sandor Working Paper Series in Law and Economics
In protecting safety, health, and the environment, government has increasingly relied on cost-benefit analysis. In undertaking cost-benefit analysis, the government has monetized risks of death through the idea of "value of a statistical life" (VSL), currently assessed at about $6.1 million. Many analysts, however, have suggested that the government should rely instead on the "value of a statistical life year" (VSLY), in a way that would likely result in significantly lower benefits calculations for elderly people, and significantly higher benefits calculations for children. I urge that the government should indeed focus on statistical life-years rather than statistical lives. A program …
Just Do It!: Title Ix As A Threat To University Autonomy, Richard A. Epstein
Just Do It!: Title Ix As A Threat To University Autonomy, Richard A. Epstein
Articles
No abstract provided.
The American Jury Project And The Chicago Law School, Franklin E. Zimring
The American Jury Project And The Chicago Law School, Franklin E. Zimring
Fulton Lectures
No abstract provided.
Developing A Taste For Not Being Discriminated Against, Mary Anne Case
Developing A Taste For Not Being Discriminated Against, Mary Anne Case
Public Law and Legal Theory Working Papers
No abstract provided.
Libertarian Paternalism Is Not An Oxymoron, Richard H. Thaler, Cass R. Sunstein
Libertarian Paternalism Is Not An Oxymoron, Richard H. Thaler, Cass R. Sunstein
Public Law and Legal Theory Working Papers
The idea of libertarian paternalism might seem to be an oxymoron, but it is both possible and legitimate for private and public institutions to affect behavior while also respecting freedom of choice. Often people’s preferences are ill-formed, and their choices will inevitably be influenced by default rules, framing effects, and starting points. In these circumstances, a form of paternalism cannot be avoided. Equipped with an understanding of behavioral findings of bounded rationality and bounded self-control, libertarian paternalists should attempt to steer people’s choices in welfare-promoting directions without eliminating freedom of choice. It is also possible to show how a libertarian …
International Trade And Human Rights: An Economic Perspective, Alan O. Sykes
International Trade And Human Rights: An Economic Perspective, Alan O. Sykes
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Libertarian Paternalism Is Not An Oxymoron, Richard H. Thaler, Cass R. Sunstein
Libertarian Paternalism Is Not An Oxymoron, Richard H. Thaler, Cass R. Sunstein
Coase-Sandor Working Paper Series in Law and Economics
The idea of libertarian paternalism might seem to be an oxymoron, but it is both possible and legitimate for private and public institutions to affect behavior while also respecting freedom of choice. Often people’s preferences are ill-formed, and their choices will inevitably be influenced by default rules, framing effects, and starting points. In these circumstances, a form of paternalism cannot be avoided. Equipped with an understanding of behavioral findings of bounded rationality and bounded self-control, libertarian paternalists should attempt to steer people’s choices in welfare-promoting directions without eliminating freedom of choice. It is also possible to show how a libertarian …
The Economics Of Wto Rules On Subsidies And Countervailing Measures, Alan O. Sykes
The Economics Of Wto Rules On Subsidies And Countervailing Measures, Alan O. Sykes
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
The Safeguards Mess: A Critique Of Wto Jurisprudence, Alan O. Sykes
The Safeguards Mess: A Critique Of Wto Jurisprudence, Alan O. Sykes
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Class Actions: Aggregation, Amplification And Distortion, Richard A. Epstein
Class Actions: Aggregation, Amplification And Distortion, Richard A. Epstein
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Legislating Chevron, Elizabeth Garrett
Legislating Chevron, Elizabeth Garrett
Public Law and Legal Theory Working Papers
No abstract provided.
Transfer Regulations And Cost-Effectiveness Analysis, Eric A. Posner
Transfer Regulations And Cost-Effectiveness Analysis, Eric A. Posner
Public Law and Legal Theory Working Papers
Recent scholarship on regulatory oversight has focused on cost-benefit analysis of prescriptive regulations – regulations that restrict behavior such as pollution – and their use to cure market failures, and has overlooked the vast number of transfer regulations. Transfer regulations are regulations that channel funds to beneficiaries. These regulations are authorized by statutes that establish entitlement programs like Medicare and Social Security, pay one-time distributions to victims of misfortunes such as natural disasters and the 9/11 terrorist attack, and fund pork barrel spending. Cost-benefit analysis cannot be used to evaluate transfer regulations because all transfer regulations fail cost-benefit analysis, but …
The "Necessary" History Of Property And Liberty, Richard A. Epstein
The "Necessary" History Of Property And Liberty, Richard A. Epstein
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.