Law Commons^™

Changing People's Preferences By The State And The Law, Ariel Porat

Coase-Sandor Institute for Law & Economics Research Paper Series

In standard economic models, two basic assumptions are made: the first, that actors are rational and, the second, that actors' preferences are a given and exogenously determined. Behavioral economics—followed by behavioral law and economics—has questioned the first assumption. This article challenges the second one, arguing that in many instances, social welfare should be enhanced not by maximizing satisfaction of existing preferences but by changing the preferences themselves. The article identifies seven categories of cases where the traditional objections to intentional preferences change by the state and the law lose force and argues that in these cases, such a change warrants …

Is Police Behavior Getting Worse? The Importance Of Data Selection In Evaluating The Police, John Rappaport, Aurelie Ouss

Coase-Sandor Institute for Law & Economics Research Paper Series

Public concern about harmful policing is surging. Governments are paying historic amounts for law enforcement liability. Has police behavior changed? Or is society responding differently? Traditional data sources struggle with this question. Common metrics conflate the prevalence and severity of policing harms with the responses of legal actors such as lawyers, judges, and juries. We overcome this problem using a new data source: liability insurance claims. Our dataset contains 23 years of claims against roughly 350 law enforcement agencies that contract with a single insurer. We find that, while lawsuits and payouts have trended upwards over the past decade, insurance …

Property Beyond Exclusion, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

Property rights have long been associated with a simple and distinctive technology: exclusion. But technologies can become outdated as conditions change, and exclusion is no exception. Recent decades have featured profound changes that have made exclusion a less useful, less necessary, and more expensive way of regulating access to resources. This Article surveys the prospects for a post-exclusion understanding of real and personal property. It proceeds from the premise that property is built upon complementarities, the nature and scale of which have undergone seismic shifts. Physical boundaries and lengthy claims on resources are designed to group complementary elements together in …

Beyond The Marriage Tax Trilemma, Daniel J. Hemel

Public Law and Legal Theory Working Papers

For decades, the well-known “marriage tax trilemma” has played a central role in discussions of the tax treatment of the family unit. The “trilemma” refers to the mathematical impossibility of constructing a tax system that imposes the same tax liability across all married couples with the same income (couples neutrality), neither encourages nor penalizes marriage (marriage neutrality), and taxes higher income individuals at higher rates (progressivity). Numerous articles have proposed responses to the trilemma that choose two of the legs over a third or that seek to split the difference among the competing neutrality norms that the trilemma casts as …

How Clear Is "Clear" Enough?, Ryan D. Doerfler

Public Law and Legal Theory Working Papers

“How much ambiguity is enough?” was the deceptively simple question repeatedly put forward by Justice Neil Gorsuch in oral argument for American Hospital Association v. Becerra. Silly as the question was meant to seem, much turns on the response. Most obvious are the effects on the practice of administrative agencies and the implications for years of precedent surrounding the Chevron doctrine. But far beyond administrative law, the response also has substantial ramifications for the law of interpretation since it is centered in the complementary notion of clarity. Notwithstanding the stakes, the government’s lawyer struggled to give a concise response. Rather …

Abortion, The Disabilities Of Pregnancy, And The Dignity Of Risk, Mary Anne Case

Public Law and Legal Theory Working Papers

When abortion is discussed in the context of destigmatizing disability, it is usually in connection with the potential disabilities of the fetus. Disability rights activists increasingly encourage both lawmakers setting abortion policy and women contemplating abortion to think that a life with disabilities is worth living. In particular, they argue that a fetus diagnosed with Down syndrome, let alone one with a cleft palate, should not for that reason be aborted.While taking this line of argument into account, this Chapter will shift the frame of reference to various ways in which the law and bioethics of abortion treat pregnant women …

The Anti-Carolene Court, Nicholas Stephanopoulos

Public Law and Legal Theory Working Papers

No abstract provided.

Property Beyond Exclusion, Lee Anne Fennell

Public Law and Legal Theory Working Papers

Property rights have long been associated with a simple and distinctive technology: exclusion. But technologies can become outdated as conditions change, and exclusion is no exception. Recent decades have featured profound changes that have made exclusion a less useful, less necessary, and more expensive way of regulating access to resources. This Article surveys the prospects for a post-exclusion understanding of real and personal property. It proceeds from the premise that property is built upon complementarities, the nature and scale of which have undergone seismic shifts. Physical boundaries and lengthy claims on resources are designed to group complementary elements together in …

Property Attachments, Lee Anne Fennell

Public Law and Legal Theory Working Papers

For a property scholar, the most intriguing part of Eric Posner and Glen Weyl’s Radical Markets is its proposal for a self-assessed system of property rights. Their “common ownership self-assessed tax” (COST) would place everyone’s belongings perpetually on the block at prices that the owners themselves choose (and must pay taxes on).¹ The idea of making self-assessed valuation the basis of both taxation and involuntary dispossession is not new; such mechanisms have been discussed by scholars for many decades ² But the Posner and Weyl proposal is unique in its breadth and in the boldness of the challenge it …

Privacy’S Political Economy And The State Of Machine Learning, Mariano-Florentino Cuéllar, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Our aim in this essay is to consider how policymakers make decisions about government surveillance in what we might call the machine learning state –– a nation-state equipped with sufficient bureaucratic and technological capacity to rely extensively on machine learning techniques for surveillance, law enforcement, and national security. We focus particularly on the question of how the state’s political economy influences its decision to adopt privacy-relevant machine learning technologies. Since machine learning tools can also be deployed in many ways that are not pertinent to privacy, our focus therefore is on a specific subset of state uses of such technology …

Equality’S Understudies, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Our Republic these days is riven by divides about what equality demands of us as private and public actors. Consider just a few recent examples:

• Harvard University is challenged in federal court for preferring African-Americans over other racial minorities, especially Asian-Americans, in their admissions pool^.1 Harvard’s flagship law review, meanwhile, faces its own suit over its preferment of minority candidates.²

• Virginia’s Governor Ralph Northam and its Attorney General Mark Herring are swept up into political controversy by news that both dressed in ‘blackface’ during their college or medical school days.³ The historical significance of ‘blackface’ …

A Right To A Human Decision, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Recent advances in computational technologies have spurred anxiety about a shift of power from human to machine decision-makers. From prison sentences to loan approvals to college applications, corporate and state actors increasingly lean on machine learning tools (a subset of artificial intelligence) to allocate goods and to assign coercion. Machine-learning tools are perceived to be eclipsing, even extinguishing, human agency in ways that sacrifice important individual interests. An emerging legal response to such worries is a right to a human decision. European law has already embraced the idea in the General Data Protection Regulation. American law, especially in the criminal …

Comment: Pressure To Pray? Thinking Beyond The Coercion Test For Legislator-Led Prayer, Samuel Taxy

University of Chicago Law Review

The First Amendment to the Constitution commands that “Congress shall make no law respecting an establishment of religion.” This provision is now generally interpreted to forbid a slew of policies and practices at the federal, state, and local levels that endorse or enshrine religion. One flash point in the Establishment Clause doctrine is prayer and government. Whereas one line of cases suggests that prayer offered at government-sponsored events is unconstitutional if it is coercive, another instructs that prayer offered in the legislative context is generally acceptable, at least if delivered by a third party.

This Comment addresses a burgeoning circuit …

Taking Data, Michael C. Pollack

University of Chicago Law Review

Technological development has created new forms of information, altered expectations of privacy, and given law enforcement more tools to examine that information and intrude on that privacy. One crucial facet of these changes involves internet service providers (ISPs): as people expose more of their lives to their ISPs— all the websites they visit, people they communicate with, emails they send, files they store, and more—law enforcement efforts to access that data become more and more common. But scholars and policymakers alike recognize that the existing statutory frameworks governing those efforts are based on obsolete technology and strike balances that are …

Contents

University of Chicago Law Review

Contents and editorial information.

Changing People's Preferences By The State And The Law, Ariel Porat

Public Law and Legal Theory Working Papers

In standard economic models, two basic assumptions are made: the first, that actors are rational and, the second, that actors' preferences are a given and exogenously determined. Behavioral economics—followed by behavioral law and economics—has questioned the first assumption. This article challenges the second one, arguing that in many instances, social welfare should be enhanced not by maximizing satisfaction of existing preferences but by changing the preferences themselves. The article identifies seven categories of cases where the traditional objections to intentional preferences change by the state and the law lose force and argues that in these cases, such a change warrants …

Democracy As Failure, Aziz Z. Huq

Public Law and Legal Theory Working Papers

The theory and the practice of democracy alike are entangled with the prospect of failure. This is so in the sense that a failure of one kind or another is almost always to be found at democracy’s inception. Further, different kinds of shortfalls dog its implementation. No escape is found in theory, which precipitates internal contradictions that can only be resolved by compromising important democratic values. Out of localized failure, indeed, comes wholesale breakdown. A stable democratic equilibrium proves elusive because of the tendency of discrete lapses to catalyze wider, systemically disruption. Worse, the very pervasiveness of local failure also …

Does The Tax Code Favor Robots?, Daniel Hemel

Public Law and Legal Theory Working Papers

In recent months, a number of scholars and commentators have articulated versions of the following argument: (1) U.S. tax law favors capital over labor;¹ (2) Robots are capital; ² (3) Therefore, U.S. tax law favors robots over labor. ³

Three implications tend to be drawn from this syllogism: (a) that U.S. tax law leads to inefficient investments in automation;⁴ (b) that automation—because it is capital-intensive and capital is tax-favored—will result in a reduction in tax revenues;⁵ and (c) that policymakers should respond to the automation trend either by imposing explicit taxes on robots or by raising taxes …

Economic Perspectives On Free Speech, Daniel Hemel

Public Law and Legal Theory Working Papers

The metaphor of a ‘marketplace of ideas’ has long pervaded discussions of free speech in and beyond the United States.¹ For early scholars of law and economics (L&E), the similarities and differences between the metaphorical marketplace for ideas and literal markets for goods and services were subjects of much attention. Aaron Director—the University of Chicago law professor who helped to found the L&E movement but rarely reduced his own ideas to writing— devoted one of his few published papers to the contrast between the laissez-faire approach to speech and command-and-control regulation of other markets in mid-twentieth century America.^{2 …}

Taxing Wealth In An Uncertain World, Daniel Hemel

Public Law and Legal Theory Working Papers

An annual wealth tax, a mark-to-market income tax, and a retrospective capital gains tax are three approaches to capital taxation that yield roughly equivalent outcomes under certain conditions. The three approaches differ starkly, however, in their exposure to uncertainty of various types. This essay seeks to highlight the effect of uncertainty on the implementation and operation of alternative capital taxation regimes. An annual wealth tax is highly vulnerable to valuation uncertainty and constitutional uncertainty, but less so to political uncertainty. A retrospective capital gains tax, by contrast, minimizes valuation uncertainty and effectively eliminates constitutional uncertainty but remains highly exposed to …

Slices And Lumps: Division And Aggregation In Law And Life (Intro + Ch 1), Lee Anne Fennell

Public Law and Legal Theory Working Papers

If you were a superhero, what would be your superpower?¹ Flying? Invisibility? Time travel? I would pass up these familiar options in favor of the profoundly important but woefully underrated power of configuration—the ability to divide things up that arrive in lumps and to put things together that arrive in pieces.² These feats might sound simple, but they are extraordinarily valuable and often maddeningly elusive.

To see why, think of all the things that might do you more good if they were sliced up differently. Perhaps you would prefer a job that involves a third less work and …

A Place For Place In Federal Tax Law, Daniel Hemel

Public Law and Legal Theory Working Papers

Drive about 14 miles west from here on Ohio State Route 81 and just when you cross I-75, before entering downtown Lima, you will find that you have arrived in a different capital gains tax regime. The grass may not be greener on the other side of I-75, but the capital gains tax rules surely are. If you sell a capital asset at a gain and plow the proceeds into an investment here in Ada, you will owe capital gains tax today and potentially will owe more tax when you sell the Ada asset in the future. If you put …

Outside Influence On Democratic Elections, Saul Levmore

Public Law and Legal Theory Working Papers

The 2019 Indian general election, and especially the enormous amount of money spent on campaigning and befriending voters during the election season, has drawn attention to the question of whether and when “outside” support (in the form of money and other assistance) from companies and persons not directly involved in an election should be forbidden, tolerated, or even encouraged. Common reactions to outside influence are inevitably inconsistent, even if we account for the fact that losers are likely to decry the outside influence that advantaged the winners or, more likely, the incumbent party expected to win. A novel approach, influenced …

The Unconstitutionality Of Justice Black, William Baude

Public Law and Legal Theory Working Papers

In Ex Parte Levitt, the Supreme Court denied standing to a pro se litigant making esoteric claims against the appointment of Justice Hugo Black. The Court’s short opinion is now an unremarkable mainstay of modern federal courts doctrine. But the case merits closer examination. Indeed, Levitt’s challenge was probably meritorious, and Hugo Black’s appointment unconstitutional. Moreover, the Court’s standing analysis was probably wrong – though there might have been other reasons to deny the challenge. And finally, the case’s aftermath raises intriguing questions about the Supreme Court’s role in politics and constitutional law. But don’t worry – his opinions are …

Tangled Up In Tax, Daniel J. Hemel

Public Law and Legal Theory Working Papers

No abstract provided.

The Impact Of Partisan Gerrymandering On Political Parties, Nicholas Stephanopoulos, Christopher Warshaw

Public Law and Legal Theory Working Papers

The relationship between votes and seats in the legislature lies at the heart of democratic governance. However, there has been little previous work on the downstream effects of partisan gerrymandering on the health of political parties. In this study, we conduct a comprehensive examination of the impact of partisan advantage in the districting process on an array of downstream outcomes. We find that districting bias impedes numerous party functions at both the congressional and state house levels. Candidates are less likely to contest districts when their party is disadvantaged by a districting plan. Candidates that do choose to run are …

Is Police Behavior Getting Worse? Data Selection And The Measurement Of Policing Harms, John Rappaport, Aurelie Ouss

Public Law and Legal Theory Working Papers

Public concern about harmful policing is surging. Governments are paying historic amounts for law enforcement liability. Has police behavior changed? Or is society responding differently? Traditional data sources struggle with this question. Common metrics conflate the prevalence and severity of policing harms with the responses of legal actors such as lawyers, judges, and juries. We overcome this problem using a new data source: liability insurance claims. Our dataset contains 23 years of claims against roughly 350 law enforcement agencies that contract with a single insurer. We find that, while lawsuits and payouts have trended upwards over the past decade, insurance …

Economies Of Surveillance, Mariano-Florentino Cuéllar, Aziz Z. Huq

Public Law and Legal Theory Working Papers

No abstract provided.

The Case For (And Against) Surrogate Taxation, Julie Roin

Public Law and Legal Theory Working Papers

The 2017 Tax Cut and Jobs Act significantly revised long-standing rules regarding the tax treatment of many employer provided in-kind benefits. Instead of including the value of these benefits in the recipients’ taxable income, for the most part the new rules disallow employers a deduction for the cost of providing the affected benefits. This article argues that the two components of this legislative scheme – relying on cost of provision as the measure of taxable income and on imposing the nominal tax obligation on providers rather than recipients – are distinct policy decisions. It argues that the better approach would …

Imputing Unreported Hate Crimes Using Google Search Data, Dhammika Dharmapala, Aziz Huq

Public Law and Legal Theory Working Papers

U.S. law requires the Attorney General to collect data hate crime victimization from states and municipalities. But states and localities are under no obligation to cooperate. Data production hence varies considerably across jurisdictions. This Article addresses the ensuing “missing data” problem by imputing unreported hate crimes using Google search rates for racial epithets. As a benchmark, it uses two alternative definitions of which jurisdictions more effectively collect hate crime data: all states that were not part of the erstwhile Confederacy, and states with statutory provisions relating to hate crime reporting. We regress hate crime rates for racially-motivated hate crimes with …