Law Commons^™

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 …

Policy Implications Of The Common Ownership Debate, Eric Posner

Public Law and Legal Theory Working Papers

The debate over common ownership initiated by Azar, Schmalz, and Tecu’s paper on airlines has raised questions about what, if any, policy responses are appropriate when common owners reduce competition in product markets. This paper, a response to a symposium for Antitrust Bulletin, reviews the literature on policy responses and evaluates various reform proposals in light of recent empirical and theoretical developments.

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

Public Law and Legal Theory Working Papers

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 toward …

The Wandering Officer, Ben Grunwald, John Rappaport

Public Law and Legal Theory Working Papers

“Wandering officers” are law-enforcement officers fired by one department, sometimes for serious misconduct, who then find work at another agency. Policing experts hold disparate views about the extent and character of the wandering-officer phenomenon. Some insist that wandering officers are everywhere—possibly increasingly so—and that they’re dangerous. Others, however, maintain that critics cherry-pick rare and egregious anecdotes that distort broader realities. In the absence of systematic data, we simply do not know how common wandering officers are or how much of a threat they pose, nor can we know whether and how to address the issue through policy reform.

In this …

Remixing Resources, Lee Anne Fennell

Public Law and Legal Theory Working Papers

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 …

Sizing Up Categories, Lee Anne Fennell

Public Law and Legal Theory Working Papers

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 …

The Bound Executive: Emergency Powers During The Pandemic, Tom Ginsburg, Mila Versteeg

Public Law and Legal Theory Working Papers

Emergency governance, we are often told, is executive governance. Only the executive branch has the information, decisiveness, and speed to respond to crises, and so the executive is not capable of being effectively constrained by other branches. Ordinary checks and balances, then, are believed to effectively disappear during a crisis. Referring to the classic theorist of emergency rule, conventional accounts describe crisis governance as “Schmittian” and “post-Madisonian,” characterized by an unbound executive that faces few, if any, legal constraints.

This Article interrogates these propositions using evidence from how countries around the world have responded to the 2020 global pandemic. It …

Innovation Institutions And The Opioid Crisis, Daniel J. Hemel, Lisa Larrimore Ouellette

Public Law and Legal Theory Working Papers

The US has recently—and belatedly—come to recognize opioid addiction as a public health crisis. What has gone mostly unrecognized is the degree to which this crisis is intertwined with US intellectual property law and related elements of US innovation policy. Innovation institutions—the legal arrangements that structure incentives for production and allocation of knowledge goods—encouraged the development and commercialization of addictive painkillers, restricted access to opioid antidotes, and (perhaps most importantly) failed to facilitate investments in alternative, nonaddictive treatments for chronic pain. Although innovation policy does not bear all the blame for the opioid wave that has washed over communities across …

Chevronizing Around Cost-Benefit Analysis, Jonathan S. Masur, Eric A. Posner

Public Law and Legal Theory Working Papers

The Trump administration’s efforts to weaken regulations are in tension with cost-benefit analysis, which in many cases supports those regulations or otherwise fails to support the administration’s deregulatory objectives. Rather than attempting to justify its actions as a matter of policy preferences, the administration has responded on multiple occasions by using Chevron to interpret statutes so as to evade cost-benefit analysis. The statutory interpretation route, which we call “Chevronizing” around cost-benefit analysis, creates novel challenges for courts, as it pits traditional Chevron deference against a trend in favor of requiring agencies to regulate based on costbenefit analysis as a matter …

Property As The Law Of Complements, Lee Anne Fennell

Public Law and Legal Theory Working Papers

Resources often produce more value in combination than they do separately: think of segments of a highway or parts of a machine. I argue that property’s defining purpose is to group together complements, and that property law and theory should focus on identifying and realizing valuable bundles of resources. While some complementarities align with traditional asset boundaries and can be protected by exclusion rights, realizing others requires crossing or eschewing boundaries to recombine resources in ways that further larger social, economic, or ecological objectives. The gains associated with the entrenching and excluding functions of property thus vie with the gains …

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 …

Constitutional Rights In The Machine Learning State, Aziz Z. Huq

Public Law and Legal Theory Working Papers

A new class of “machine learning” tools is able to make better predictions and inferences from data than was previously feasible. For the state, machine learning is a powerful and supple device to reveal citizens’ beliefs, actions, and expected behaviors. Its deployment to allocate investigative resources, material benefits, and coercive penalties to particular individuals, though, can implicate due process, privacy, and equality interests. Substantive doctrinal frameworks and enforcement regimes for those entitlements, however, arose in the context of human action. Neither is apt for a machine learning context. This Article offers a start to the larger project of developing a …

Drugs, Patents, And Well-Being, Christopher Buccafusco, Jonathan S. Masur

Public Law and Legal Theory Working Papers

The ultimate end of patent law must be to spur innovations that improve human welfare—innovations that make people better off. But firms will only invest resources in developing patentable inventions that will allow them to make money—that is, inventions that people will want to use and buy. This can gravely distort the types of incentives that firms face and the types of inventions they pursue. Nowhere is this truer than in the pharmaceutical field. There is by now substantial evidence that treatments for diseases that primarily afflict poorer people—including the citizens of developing nations—are dramatically under-produced, compared with drugs that …

Indexing, Unchained, Daniel J. Hemel

Public Law and Legal Theory Working Papers

No abstract provided.

A Public Health Framework For Covid-19 Business Liability, Daniel Hemel, Daniel B. Rodriguez

Public Law and Legal Theory Working Papers

Businesses that reopen amid the COVID-19 pandemic face potential legal liability to customers and workers who contract the coronavirus through those enterprises’ operations. Federal and state lawmakers are actively considering proposals to narrow or expand such liability. These proposals have important economic and public-health implications. This article presents an analytical framework for evaluating liability regimes in the context of a communicable disease. The framework highlights the contrasting public-health consequences of liability before and after a customer or worker is exposed to the virus. Ex ante (before exposure), potential liability generates incentives for businesses to take precautions that reduce the risk …

In Defense Of The Special Tribunal For Lebanon And Thecase For International Corporate Accountability, Osama Alkhawaja

Chicago Journal of International Law

In 2014, the Special Tribunal for Lebanon (“STL”) examined evolving international standards of corporate accountability and held that legal entities can be found liable for criminal conduct as a general principle of international law. Prior to this decision, and in stark contrast to trends in domestic legal regimes, no legal entity had ever been prosecuted, convicted, or sentenced in an international court. Although this marked a watershed moment in global corporate accountability mechanisms, it has had little precedential effect; scholars have argued it is because the decision lacked a valid legal basis and is limited in scope. This Comment addresses …

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 …

You Shall Not Pass!How The Dublin System Fueled Fortress Europe, Ashley Binetti Armstrong

Chicago Journal of International Law

t This Article examines the recent proliferation of walls and fences in Europe, fueled by the Dublin Regulation’s failure to distribute responsibility for asylum seekers equitably among European states. Legal scholarship does not lack literature bemoaning the failures of the E.U.’s Dublin Regulation—which dictates, generally, that the country where an asylum seeker first enters the E.U. is responsible for processing his or her claim for protection. Yet scholarship on border walls and fences, and what induces European states to construct them, is not prominent in the literature. The critiques lodged against the Dublin Regulation have primarily focused on its futility …

Mopr Madness, Joshua C. Macey, Robert Ward

Public Law and Legal Theory Working Papers

Five years ago, in his piece on capacity markets, Jay Morrison discussed 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 policymaking. 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 worse than …

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

Public Law and Legal Theory Working Papers

No abstract provided.

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

Public Law and Legal Theory Working Papers

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 decisionmaking.

This Article sheds light on the composition and operation of …

Illiberalism And Islam, Aziz Z. Huq

Public Law and Legal Theory Working Papers

This chapter analyzes the role of anti-Islam and anti-Muslim discourse in North American and European ‘illiberal’ parties, movements, and ideologies. Its first aim is to situate those deployments in a longer history. Occidental engagements with Islam and Muslims, including anti-Islamic tropes, long predate the emergence of liberalism, let along illiberalism. It should not be a surprise that liberalism as it emerged in the nineteenth century partook of such ideas. Contra some theorists, however, I argue that there is no strong evidence that anti-Islam was constitutive of liberal theory or early practice. Rather, it was in the second half of the …

Rethinking Nudge: An Information-Costs Theory Of Default Rules, Oren Bar-Gill, Omri Ben-Shahar

Public Law and Legal Theory Working Papers

Policymakers and scholars – both lawyers and economists – have long been pondering the optimal design of default rules. From the classic works on “mimicking” defaults for contracts and corporations to the modern rush to set “sticky” default rules to promote policies as diverse as organ donations, retirement savings, consumer protection, and data privacy, the optimal design of default rules has featured as a central regulatory challenge. The key element driving the design is opt-out costs—how to minimize them, or alternatively how to raise them to make the default sticky. Much of the literature has focused on “mechanical” opt-out costs—the …

Owning Bad: Leverage And Spite In Property Law, Lee Anne Fennell

Public Law and Legal Theory Working Papers

No abstract provided.

State Politics And Mortgage Markets, Brian D. Feinstein, Chen Meng, Manisha Padi

Public Law and Legal Theory Working Papers

This article examines whether elections for state offices that regulate mortgage lenders affect mortgage markets. Some scholars assert that election-related political uncertainty depresses economic activity; others contend that incumbents pursue policies to boost short-term growth prior to elections; and a third group claims that market activity fluctuates around partisan transitions. We test these theories using national data on mortgage characteristics and election data for two important state regulators. We first conduct event studies comparing mortgage market outcomes before and after elections. We then utilize difference-in-difference models to compare states in which partisan control of key offices switched following an election. …

Immunity Passports And Moral Hazard, Daniel J. Hemel, Anup Malani

Coase-Sandor Institute for Law & Economics Research Paper Series

The idea of using “immunity passports” to restart the economy before the arrival of a SARS-CoV-2 vaccine has attracted increasing attention as the Covid-19 crisis has escalated. Under an “immunity passport” regime, individuals who test positive for SARS-CoV-2 antibodies would receive certificates allowing them to return to work and potentially to participate in a broader range of activities without social distancing. One concern raised by the “immunity passport” proposal is that not-yet-infected individuals would have an incentive to expose themselves to the virus intentionally so that they can develop antibodies and obtain passports. This paper evaluates the moral-hazard risk that …

Indexing, Unchained, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

Inflation indexing is an important and controversial issue in the design of tax systems and transfer programs. The choice of whether—and how—to adjust policy parameters for inflation carries significant political, distributional, and macroeconomic implications. In recent years, indexing has gained particular attention in three policy contexts: (1) whether to switch from an “unchained” to “chained” inflation index when calculating Social Security benefits; (2) whether to make a similar unchained-to-chained shift when setting federal income tax parameters such as bracket thresholds and deduction amounts; and (3) whether to index basis for inflation when calculating capital gains. Hundreds of billions of dollars …