Law Commons^™

A Tactical Separation Of Powers Doctrine, Aziz Z. Huq

Public Law and Legal Theory Working Papers

No abstract provided.

State Standing’S Uncertain Stakes, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Whether states have Article III standing is a question that has in recent years induced a puzzling and nonstandard patterning of votes amongst the Justices of the Supreme Court. It is, of course, not uncommon for that bench to be characterized by sharp ideological divides. What is unusual and symptomatic in the state standing litigation context is rather this: Specific Justices seem to adopt divergent, seemingly inconsistent, positions on the same basic question of constitutional law when it is presented in different litigation matters.¹ When it comes to state standing, the Court’s ideological divide is not merely acute but …

Tort Liability And The Risk Of Discriminatory Government, Ehud Guttel, Ariel Porat

Public Law and Legal Theory Working Papers

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 …

The Architecture Of A Basic Income, Miranda Perry Fleischer, Daniel Hemel

Public Law and Legal Theory Working Papers

The notion of a universal basic income (UBI) has captivated academics, entrepreneurs, policymakers, and ordinary citizens in recent months. Pilot studies of a UBI are underway or in the works on three continents. And prominent voices from across the ideological spectrum have expressed support for a UBI or one of its variants, including libertarian Charles Murray, Facebook cofounder Chris Hughes, labor leader Andy Stern, and—most recently—former President Barack Obama. Although even the most optimistic advocates for a UBI will acknowledge that nationwide implementation lies years away, the design of a basic income will require sustained scholarly attention. This Article seeks …

U.S War Powers And The Potential Benefits Of Comparativism, Curtis Bradley

Book Sections

No abstract provided.

Us War Powers And The Potential Benefit Of Comparativism, Curtis A. Bradley

Book Sections

No abstract provided.

Does The Tax Code Favor Robots?, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

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 …

Radicalxchange: An Academic Agenda, E. Glen Weyl

Coase-Sandor Institute for Law & Economics Research Paper Series

Radical Markets was, for me, less an academic or even popular book than attempt to launch a social movement. Its success in doing so makes the most fruitful academic response likely somewhat different than for other books. In this piece I discuss some of the most productive avenues I see for general academic development around the growing RadicalxChange movement and highlight several specific problems to which I think economic, legal and other academics could fruitfully contribute.

Radical Markets: Uprooting Capitalism and Democracy for a Just Society is an unusual book in many senses. An academic conference on such an unusual …

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

Coase-Sandor Institute for Law & Economics Research Paper Series

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 …

Free Speech And Cheap Talk, Daniel J. Hemel, Ariel Porat

Coase-Sandor Institute for Law & Economics Research Paper Series

We present a new framework for analyzing defamation liability that serves both to clarify and complicate understandings of the law’s consequences for speakers, victims, and the marketplace of ideas. In addition to the familiar deterrence and chilling effects, we show how defamation liability can generate a “warming effect,” making statements more credible and potentially raising both the quality and quantity of speech. We also explain how a more plaintiff-friendly liability regime may exacerbate harms to defamation victims. We end by considering the possibility of “self-tailored” defamation law, with victims or speakers selecting the defamation liability regime that applies to them. …

Rethinking Law School Tenure Standards, Adam S. Chilton, Jonathan Masur, Kyle Rozema

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Economic Perspectives On Free Speech, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

The metaphor of a ‘marketplace of ideas’ has long pervaded discussions of free speech in and beyond the United States. 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. Ronald Coase, …

What Should Law School Rankings Measure And How Should We Measure It: A Comment On Heald & Sichelman's Rankings, Adam Chilton, Jonathan S. Masur

Coase-Sandor Institute for Law & Economics Research Paper Series

There are obvious benefits to ranking academic departments based on objective measures of faculty research output. However, there are considerable difficulties associated with producing reliable and accurate rankings. In this short comment, we offer an evaluation of Heald and Sichelman's recent foray into the project of ranking law schools. Heald and Sichelman are to be commended for the transparency and rigor of their rankings effort. At the same time, it is important to note that their rankings involve a series of contestable discretionary choices and could give rise to potential counterproductive gaming by law schools seeking to improve their place …

Outside Influence On Democratic Elections, Saul Levmore

Coase-Sandor Institute for Law & Economics Research Paper Series

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 …

A Place For Place In Federal Tax Law, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

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 …

Beyond The Marriage Tax Trilemma, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

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 …

Taxing Wealth In An Uncertain World, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

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

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Tort Liability And The Risk Of Discriminatory Government, Enud Guttel, Ariel Porat

Coase-Sandor Institute for Law & Economics Research Paper Series

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 …

Piece Problems: Component Valuation In Marketing And In Patent And Tort Law, Saul Levmore

Coase-Sandor Institute for Law & Economics Research Paper Series

The problems referred to in the title of this chapter concern evaluating a given variable when it is one of several that have combined to bring about a result. In some cases, there is an easy market solution. Imagine that you contract to buy a house and then the beautiful kitchen stove, one of many things that attracted you to the property, is destroyed before you close the transaction or occupy the property. How much should the price now be reduced? Here there is an upper limit based on the cost of a comparable replacement appliance. A more precise valuation …

Small-C Constitutional Rights, Adam Chilton, Mila Versteeg

Coase-Sandor Institute for Law & Economics Research Paper Series

Although constitutions lay out the fundamental principles by which countries are governed, identifying exactly which legal materials are considered constitutional is not a straightforward task. This is for two reasons. First, there is no systematic evidence about the relative importance of countries’ formal, written constitutions—the “Large-C” constitution— versus their broader body of constitutional law derived from sources like judicial decisions, treaties, and conventions—the “small-c” constitution. Second, it is often difficult to establish which legal materials are definitively part of a country’s small-c constitution. We investigated the nature and relative importance of small-c constitutional rights protections by fielding a global expert …

The Architecture Of A Basic Income, Miranda Perry Fleischer, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

The notion of a universal basic income (UBI) has captivated academics, entrepreneurs, policymakers, and ordinary citizens in recent months. Pilot studies of a UBI are underway or in the works on three continents. And prominent voices from across the ideological spectrum have expressed support for a UBI or one of its variants, including libertarian Charles Murray, Facebook cofounder Chris Hughes, labor leader Andy Stern, and—most recently—former President Barack Obama. Although even the most optimistic advocates for a UBI will acknowledge that nationwide implementation lies years away, the design of a basic income will require sustained scholarly attention. This Article seeks …

The Impact Of Artificial Intelligence On Rules, Standards, And Judicial Discretion, Frank Fagan, Saul Levmore

Coase-Sandor Institute for Law & Economics Research Paper Series

Artificial intelligence (AI), and machine learning in particular, promises lawmakers greater specificity and fewer errors. Algorithmic lawmaking and judging will leverage models built from large stores of data that permit the creation and application of finely tuned rules. AI is therefore regarded as something that will bring about a movement from standards to rules. Drawing on contemporary data science, this Article shows that machine learning is less impressive when the past is unlike the future, as it is whenever new variables appear over time. In the absence of regularities, machine learning loses its advantage and, as a result, looser standards …

Tangled Up In Tax: The Nonprofit Sector And The Federal Tax System, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

The Uses And Abuses Of Presidential Impeachment, Tom Ginsburg, Aziz Huq, David Landau

Public Law and Legal Theory Working Papers

With the charging and trial of President Trump, impeachment has once again assumed a central role in United States constitutional law and politics. Yet because so few impeachments, presidential or otherwise, have occurred in American history, we have little understanding of how removing presidents in the middle of a term alters the direction of a constitutional democracy. This article illuminates the appropriate scope and channels of impeachment by examining the law and practice of presidential removal globally. We first catalog possible modalities of impeachment through case studies from South Korea, Paraguay, Brazil, and South Africa. We then deploy large-n empirical …

Civil Servant Disobedience, Jennifer Nou

Public Law and Legal Theory Working Papers

Administrative agencies are hierarchical bureaucracies. But those on the lower rungs don’t always fall lockstep in line with those at the top. Reasons vary. Sometimes, intra-agency communication is poor. Those laboring below may not know the preferences of their superiors. Even when this information is available, sometimes bureaucrats are lazy; they can “shirk.” Or they may simply disagree with what their bosses want; they might “drift.” Each of these themes have been mainstays of principal-agent models across various disciplines.¹ Legal scholars too have studied bureaucratic resistance, mainly of civil servants within the executive branch.² These analyses have mostly …

Free Speech And Cheap Talk, Daniel Hemel, Ariel Porat

Public Law and Legal Theory Working Papers

We present a new framework for analyzing defamation liability that serves both to clarify and complicate understandings of the law’s consequences for speakers, victims, and the marketplace of ideas. In addition to the familiar deterrence and chilling effects, we show how defamation liability can generate a “warming effect,” making statements more credible and potentially raising both the quality and quantity of speech. We also explain how a more plaintiff-friendly liability regime may exacerbate harms to defamation victims. We end by considering the possibility of “self-tailored” defamation law, with victims or speakers selecting the defamation liability regime that applies to them.

Criminal Justice, Inc., John Rappaport

Articles

No abstract provided.

Sitaraman’S Mistaken Case For The Middle-Class Constitution, Richard A. Epstein

Articles

No abstract provided.

Antitrust Remedies For Labor Market Power, Suresh Naidu, Eric A. Posner, E. Glen Weyl

Articles

No abstract provided.