Law Commons^™

Accountability Claims In Constitutional Law, Nicholas Stephanopoulos

Public Law and Legal Theory Working Papers

Several of the Supreme Court’s most controversial constitutional doctrines hinge on claims about electoral accountability. Restrictions on the President’s power to remove agency heads are disfavored because they reduce the President’s accountability for agency actions. Congress cannot delegate certain decisions to agencies because then Congress is less accountable for those choices. State governments cannot be federally commandeered because such conscription lessens their accountability. And campaign spending must be unregulated so that more information reaches voters and helps them to reward or punish incumbents for their performances.

There is just one problem with these claims. They are wrong—at least for the …

Personalizing Precommitment, Lee Anne Fennell

Public Law and Legal Theory Working Papers

This Essay examines the potential for law to facilitate tailored precommitments to help people address self-control problems. This flavor of personalized law is unique in that it is voluntarily chosen and self-administered. There are practical and normative limits on the degree to which people can bind themselves in ways that they cannot later escape, but law can offer mechanisms that would help people design and implement flexible precommitments. Research suggests two potential lines for innovation. First, partitioning access to resources may constrain consumption in contexts from dieting to saving, even when the partitions can be unilaterally broken. Second, the chunkiness …

International Contractualism Revisited: Non-Pecuniary Remedies Under The Fair And Equitable Treatment Standard, Patrick J. Rodriguez

Chicago Journal of International Law

For years, the international investment regulatory regime has puzzled onlookers with its complexity. Because the system is defined by its vast network of bilateral investment treaties (BITs), the rights and obligations of foreign investors differ greatly from those of all other participants in international trade. At the heart of this confusion is the fair and equitable treatment (FET) standard. While in theory the FET standard purports to promote global economic growth through the broad protection of foreign direct investment (FDI) in developing nations, the standard’s inherent vagueness leaves arbitration tribunals with little guidance to resolve investor-state conflicts. At the same …

The Cross-Examination Of Mayella Ewell, Richard H. Mcadams

Public Law and Legal Theory Working Papers

No abstract provided.

Racial Equity In Algorithmic Criminal Justice, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Algorithmic tools for predicting violence and criminality are being used more and more in policing, bail, and sentencing. Scholarly attention to date has focused on their procedural due process implications. My aim here is to consider these instruments’ interaction with the enduring racial legacies of the criminal justice system There are two competing lenses for evaluating the racial effects of algorithmic criminal justice: constitutional doctrine and emerging technical standards of “algorithmic fairness.” I argue first that constitutional doctrine is poorly suited to the task. It will often fail to capture the full range of racial issues that potentially arise in …

Patents, Property, And Prospectivity, Jonathan Masur, Adam Mortara

Public Law and Legal Theory Working Papers

When judges change the legal rules governing patents, those changes are always retroactive. That is, they apply equally to patents that have already been granted and patents that do not yet exist. There are benefits to making a change in the law retroactive, particularly if the new legal rule is an improvement over what preceded it. But there are costs as well. Retroactive changes in the law upset reliance interests. This can be particularly harmful when those reliance interests involve rights or entitlements that form the basis for substantial financial investment, as is often the case with patents. What is …

Collective Bargaining Rights And Police Misconduct: Evidence From Florida, Dhammika Dharmapala, Richard H. Mcadams, John Rappaport

Public Law and Legal Theory Working Papers

Growing controversy surrounds the impact of labor unions on law enforcement behavior. Critics argue that unions impede organizational reform and insulate officers from discipline for misconduct. Yet collective bargaining tends to increase wages, which could improve officer behavior. We provide quasi-experimental empirical evidence on the effects of collective bargaining rights on violent incidents of misconduct. Our empirical strategy exploits a 2003 Florida Supreme Court decision (Williams), which conferred collective bargaining rights on sheriffs’ deputies, resulting in a substantial increase in unionization among these officers. Using a Florida state administrative database of “moral character” violations reported by local agencies between 1996 …

A Framework For The New Personalization Of Law, Anthony Casey, Anthony Niblett

Public Law and Legal Theory Working Papers

Law has always strived for accurate contextualization, but only with recent technological advances in data processing and communication has this goal become meaningfully achievable at the personal level. While the other essays in this Symposium explore the costs and benefits of personalizing particular areas of law, we present a general framework for thinking about the new personalization of law. We identify two fundamental questions that every personalization project must address: First, how do lawmakers set the objective of a personalized law? Second, how is the content of a personalized law communicated to the citizens who must follow it? We explore …

Regulatory Bundling, Jennifer Nou, Edward H. Stiglitz

Public Law and Legal Theory Working Papers

Regulatory bundling is the aggregation or disaggregation of legislative rules by administrative agencies. Agencies, in other words, can bundle what would otherwise be multiple rules into just one rulemaking. Conversely, they can split one rule into several. This observation parallels other recent work on how agencies can aggregate adjudications and enforcement actions but now focuses on legislative rules, the most consequential form of agency action. The topic is timely in light of a recent executive order directing agencies to repeal two regulations for every new one promulgated. Agencies now have a greater incentive to pack regulatory provisions together for every …

Fourth Amendment Gloss, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Conventional wisdom suggests that a constitutional right will constrain government actors. But a right defined in terms of what the state routinely does would impose in practice no brake on state action—and so seem pointless. Nevertheless, in defining Fourth Amendment rights, the Supreme Court frequently draws on the practice of regulated government actors to define the constitutional floor for police action. This Article is the first to isolate and analyze this seemingly paradoxical judicial practice. It labels it “Fourth Amendment gloss,” after an analogous mode of reasoning in separation-of-powers cases. The Article’s first aim is descriptive—to catalog the various ways …

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

Public Law and Legal Theory Working Papers

Recent research indicates that labor market power has contributed to wage inequality and economic stagnation. Although the antitrust laws prohibit firms from restricting competition in labor markets like in product markets, the government does little to address the labor market problem and private litigation has been rare and mostly unsuccessful. The reason is that the analytic methods for evaluating labor market power in antitrust contexts are primitive, far less sophisticated than the legal rules used to judge product market power. To remedy this asymmetry, we propose methods for judging the effects of mergers on labor markets. We also extend our …

Objections To Treaty Reservations: A Comparative Approach To Decentralized Interpretation, Tom Ginsburg

Book Sections

No abstract provided.

Regulatory Bundling, Jennifer Nou, Edward H. Stiglitz

Coase-Sandor Institute for Law & Economics Research Paper Series

Regulatory bundling is the aggregation or disaggregation of legislative rules by administrative agencies. Agencies, in other words, can bundle what would otherwise be multiple rules into just one rulemaking. Conversely, they can split one rule into several. This observation parallels other recent work on how agencies can aggregate adjudications and enforcement actions but now focuses on legislative rules, the most consequential form of agency action. The topic is timely in light of a recent executive order directing agencies to repeal two regulations for every new one promulgated. Agencies now have a greater incentive to pack regulatory provisions together for every …

New Empirical Tests For Classic Litigation Selection Models, Yun-Chien Chang, William H.J. Hubbard

Coase-Sandor Institute for Law & Economics Research Paper Series

Law and economics theorists have long advanced theories of litigation and settlement, including the canonical Landes-Posner-Gould (LPG) and Priest and Klein (PK) models. Famously, PK predict that, as settlement rates rise, plaintiff win rates approach 50%. Empiricists have tested this and other predictions from the theoretical literature, finding qualified support for the PK model. So far, though, empirical testing of these models has been hampered by two major limitations: First, these models make clear predictions about the effect of case stakes on settlement rates and plaintiff win rates, but lack of reliable data on stakes means these predictions have gone …

Contract Governance In Small World Networks: The Case Of The Maghribi Traders, Lisa Bernstein

Coase-Sandor Institute for Law & Economics Research Paper Series

This Article revisits the best known example of successful private ordering in the economics literature: the Maghribi Jewish merchants who engaged in both local and long-distance trade across the Islamic Mediterranean in the eleventh century. Drawing on a case study of over 200 Maghribi merchant letters, it develops a network governance-based account of the way that private ordering might have supported exchange among the Maghribi traders with little or no reliance on the public legal system. The analysis reveals that a particular type of bridge-and-cluster configuration of ties among traders and trading centers--known as a “small-world network”—can have strong reputation-based …

The Spectrum Of Procedural Flexibility, Ronen Avraham, William H.J. Hubbard

Coase-Sandor Institute for Law & Economics Research Paper Series

Sometimes the rules let you change the rules. In civil procedure, many rules are famously rigid—for example, neither the parties nor the judge can stipulate to subject matter jurisdiction—but closer inspection yields many ways that judges or parties (individually or by agreement) can change procedural defaults, such as the number of depositions, trial by judge or jury, or sometimes even jurisdiction. Whether the judge or parties have “flexibility” to change the rules of the game is an important, but understudied, aspect of procedure.

This Article is the first to document the full spectrum of procedural flexibility— the varied and sometimes …

Personalizing Precommitment, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

This Essay examines the potential for law to facilitate tailored precommitments to help people address self-control problems. This flavor of personalized law is unique in that it is voluntarily chosen and self-administered. There are practical and normative limits on the degree to which people can bind themselves in ways that they cannot later escape, but law can offer mechanisms that would help people design and implement flexible precommitments. Research suggests two potential lines for innovation. First, partitioning access to resources may constrain consumption in contexts from dieting to saving, even when the partitions can be unilaterally broken. Second, the chunkiness …

Assessing The Empirical Upside Of Personalized Criminal Procedure, Matthew B. Kugler, Lior Jacob Strahilevitz

Coase-Sandor Institute for Law & Economics Research Paper Series

Though personalization of law is often viewed as a new idea, pockets of criminal procedure already tolerate it. Many courts have held that Miranda warnings must be tailored when read to juveniles or people with limited English proficiency; a suspect’s age is necessarily part of the judicial calculus when determining whether the police’s questioning of her is a custodial interrogation; and some state courts consider a person’s demographic characteristics when deciding whether they have consented to a search. The question before us now is whether society should go further. Should the law of criminal procedure pay more attention to individual …

A Regulatory Classification Of Digital Assets: Toward An Operational Howey Test For Cryptocurrencies, Icos, And Other Digital Assets, M. Todd Henderson, Max Raskin

Coase-Sandor Institute for Law & Economics Research Paper Series

Digital assets are hot right now. Whether cryptocurrencies, like bitcoin, or initial coin offerings and tokens, this new asset class has captured the imagination of American investors. While it remains to be seen if this phenomenon has staying power, there is no doubt that these assets and their promoters have attracted the attention of the Securities and Exchange Commission. But neither Congress nor the SEC has formally elucidated which digital assets are securities and which are not.

This Article seeks to provide clarity in determining which digital assets are securities. It proposes two tests that operationalize the Supreme Court’s test …

Who Conducts Oversight? Bill-Writers, Lifers, And Nail-Biters, Brian D. Feinstein

Coase-Sandor Institute for Law & Economics Research Paper Series

The landmark Legislative Reorganization Act of 1946 charges Congress, through its standing committees, to “exercise continuous watchfulness” over the executive branch. Yet, committees differ markedly in their performance of this responsibility; the modal House committee does not convene oversight hearings in the typical year, while other committees holds dozens of hearings. This Article compares the characteristics of committee chairs that pursue oversight vigorously with those that do not. Surprisingly, I find that chairs’ previous prosecutorial or other legal experience has no discernable connection with oversight activity. Instead, committees that engage in frequent oversight tend to be chaired by productive lawmakers …

Collective Bargaining Rights And Police Misconduct: Evidence From Florida, Dhammika Dharmapala, Richard H. Mcadams, John Rappaport

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

The Bankruptcy Partition, Douglas G. Baird, Anthony Casey, Randal C. Picker

Coase-Sandor Institute for Law & Economics Research Paper Series

Many current bankruptcy debates—from critical vendor orders to the Supreme Court’s decision last year in Czyzewski v. Jevic Holding Corporation—begin with bankruptcy’s distributional rules and questions about how much discretion a judge should have in applying them. It is a mistake, however, to focus on distributional questions without first identifying the bankruptcy partition and ensuring it is properly policed. What appear to be distributional disputes are more often debates about the demarcation of the bankruptcy partition and the best way to police it.

Once the dynamics of establishing and policing the bankruptcy partition are taken into account, there is little …

Limited Inalienability Rules, Ariel Porat, Stephen D. Sugarman

Coase-Sandor Institute for Law & Economics Research Paper Series

Most people’s entitlements are protected by a property rule, which means that their holders can sell them for a price. But some important entitlements are protected by an inalienability rule, and hence cannot be sold under any circumstances. For example, people cannot sell their organs. In most jurisdictions, women cannot be surrogate mothers for a fee (only for reimbursement of costs). People cannot sell their right not to be exposed to highly life-threatening conditions. Most constitutional rights are not transferrable. People cannot reassign their legal entitlements to social benefits provided by the government. Tort victims in many jurisdictions cannot sell …

Innovation Policy Pluralism, Daniel Hemel, Lisa Larrimore Ouellette

Coase-Sandor Institute for Law & Economics Research Paper Series

When lawyers and scholars speak of “intellectual property,” they are generally referring to a combination of two distinct elements: an innovation incentive that promises a market based reward to producers of knowledge goods, and an allocation mechanism that makes access to knowledge goods conditional upon payment of a proprietary price. Distinguishing these two elements clarifies ongoing debates about intellectual property and opens up new possibilities for innovation policy. Once intellectual property is disaggregated into its core components, each element can be combined synergistically with non-IP innovation incentives such as prizes, tax preferences, and direct spending on grants and government research, …

Judging Judicial Foreclosure, Brian D. Feinstein

Coase-Sandor Institute for Law & Economics Research Paper Series

For the third time in the last several decades, policymakers are contemplating an overhaul of mortgage-finance regulations. Despite the considerable attention paid to how ex ante regulations affect the availability of credit and the appropriateness of the mortgage products that lenders offer, however, our understanding of how the legal framework governing foreclosures---a form of ex post borrower protection---affects mortgage lending is incomplete. Leveraging data on loan applicants that are geographically proximate and subject to the same federal mortgage-finance regulations and nearly identical state foreclosure regimes---but for the presence or absence of a judicial foreclosure requirement---this analysis enables the identification of …

Patents, Property, And Prospectivity, Jonathan Masur, Adam Mortara

Coase-Sandor Institute for Law & Economics Research Paper Series

When judges change the legal rules governing patents, those changes are always retroactive. That is, they apply equally to patents that have already been granted and patents that do not yet exist. There are benefits to making a change in the law retroactive, particularly if the new legal rule is an improvement over what preceded it. But there are costs as well. Retroactive changes in the law upset reliance interests. This can be particularly harmful when those reliance interests involve rights or entitlements that form the basis for substantial financial investment, as is often the case with patents. What is …

Appendix To 'The Marginal Revenue Rule In Cost-Benefit Analysis', Daniel Hemel, Jennifer Nou, David A. Weisbach

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Data Pollution, Omri Ben-Shahar

Coase-Sandor Institute for Law & Economics Research Paper Series

Digital information is the fuel of the new economy.But like the old economy’s carbon fuel, it also pollutes. Harmful “data emissions” are leaked into the digital ecosystem, disrupting social institutions and public interests. This article develops a novel framework—data pollution— to rethink the harms the data economy creates and the way they have to be regulated. It argues that social intervention should focus on the external harms from collection and misuse of personal data. The article challenges the hegemony of the prevailing view—that the injuries from digital data enterprise are exclusively private. That view has led lawmakers to focus solely …

Torts And Restitution: Legal Divergence And Economic Convergence, Robert D. Cooter, Ariel Porat

Coase-Sandor Institute for Law & Economics Research Paper Series

This Article explores the divergence in law and convergence in economics in dealing with harms and benefits. While tort law usually makes the injurer internalize wrongful harms through damages, restitution law does not enable the benefactor to internalize the benefits she confers on others without their request. In both harm and benefit cases, however, internalization seems to make economic sense for the same reason: injurers and benefactors alike will behave efficiently if they internalize the externalities that they create. The Article’s main goal is to develop eight liability rules for harm and benefit cases and to point out the symmetry …

The United Nations Security Council’S Implementation Of The Responsibility To Protect: A Review Of Past Interventions And Recommendations For Improvement, Jared Genser

Chicago Journal of International Law

When it was codified and adopted by the United Nations (U.N.) system in 2005, the doctrine of the Responsibility to Protect (R2P) was meant to provide an implementation mechanism for the international community to respond to governments that were perpetrating mass atrocity crimes of genocide, war crimes, ethnic cleansing, and crimes against humanity against their own people. As R2P is now in its second decade of existence as a codified norm, it is important to comprehensively evaluate past implementation of R2P by the United Nations Security Council—the U.N. body charged with taking collective action when all other diplomacy has failed …