Law Commons^™

Personalizing Mandatory Rules In Contract Law, Omri Ben-Shahar

Public Law and Legal Theory Working Papers

Mandatory rules provide people protections they might otherwise fail to secure in their contracts. Because people vary in the degree of protection they need and the cost of protection they can afford, one-size-fits-all rules are too weak for some and too strong for others. This Essay examines the case for personalized mandatory protections. With the increasing availability of information about consumers, the law may soon be able to tailor mandatory protections that vary with each individual’s characteristics. We show that personalized protections increase the overall contractual surplus and prompt more people to enter into contracts. It eliminates cross-subsidies within a …

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 …

The Supreme Court Of India: An Empirical Overview Of The Institution, Aparna Chandra, William H.J. Hubbard, Sital Kalantry

Public Law and Legal Theory Working Papers

The Indian Supreme Court has been called “the most powerful court in the world” for its wide jurisdiction, its expansive understanding of its own powers, and the billion plus people under its authority. Yet scholars and policy makers have a very uneven picture of the court’s functioning: deep knowledge about the more visible, “high-profile” cases but very little about more mundane, but far more numerous and potentially equally important, decisions. This chapter aims to address this imbalance with a rigorous, empirical account of the Court’s decisions from 2010 to 2015. We use the most extensive original dataset of Indian Supreme …

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 …

Sexual Harassment And Corporate Law, Daniel Hemel, Dorothy S. Lund

Public Law and Legal Theory Working Papers

The year 2017 marked an inflection point in the evolution of social norms regarding sexual harassment. While victims of workplace harassment had long suffered in silence, the surfacing of serious sexual misconduct allegations against Hollywood producer Harvey Weinstein encouraged many more victims to tell their personal stories of abuse. These scandals have spread beyond Hollywood to the rest of corporate America, leading to the departures of several high-profile executives as well as sharp stock price declines at a number of firms. In the past year, shareholders at four publicly traded companies have filed lawsuits alleging that corporate directors and officers …

Statutory Interpretation On The Bench: A Survey Of Forty-Two Judges On The Federal Courts Of Appeals, Abbe R. Gluck, Richard A. Posner

Public Law and Legal Theory Working Papers

This Article reports the results of a survey of a diverse group of forty-two federal appellate judges concerning their approaches to statutory interpretation. The study reveals important differences between their approaches and the approach that the Supreme Court purports to take. It also helps to substantiate the irrelevance of the enduring, but now-boring, textualism-versus-purposivism debate. None of the judges we interviewed was willing to associate himself or herself with “textualism” without qualification. All consult legislative history. Most eschew dictionaries. All utilize at least some canons of construction, but for reasons that range from “window dressing,” to the use of canons …

The Living Anti-Injunction Act, Daniel J. Hemel

Public Law and Legal Theory Working Papers

In the coming months, the Internal Revenue Service is likely to issue a slew of new regulations interpreting the December 2017 federal tax reform legislation. These regulations are likely to define the scope of the new deduction for pass-through entities; determine the reach of the new base erosion tax on multinational enterprises; fill in the details of the new “opportunity zone” program aimed at encouraging investment in low-income communities; and address a wide range of other important matters.¹ Inevitably, some taxpayers will object to these regulations and will seek to challenge the new rules in court. When, where, and …

Limited Inalienability Rules, Ariel Porat, Stephen D. Sugarman

Public Law and Legal Theory Working Papers

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 J. Hemel, Lisa Larrimore Ouellette

Public Law and Legal Theory Working Papers

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 marketbased 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, or …

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 …

The Tax Legislative Process: A Byrd's Eye View, Ellen P. Aprill, Daniel J. Hemel

Public Law and Legal Theory Working Papers

The year 2017 was, among other distinctions, the year of the Byrd rule. This once-obscure Senate procedural provision—on the books since 1985 but only recently the stuff of page one news¹ — featured prominently in several failed attempts to repeal the Affordable Care Act in the spring and summer. Then again at year’s end, the Byrd rule played a central role in the successful effort to rewrite large swaths of the Internal Revenue Code. While the Byrd rule has influenced the legislative process in the past, never before has it drawn so much attention from the mainstream and trade …

The Measure Of A Metric: The Debate Over Quantifying Partisan Gerrymandering, Nicholas Stephanopoulos, Eric Mcghee

Public Law and Legal Theory Working Papers

Over the last few years, there has been an unprecedented outpouring of scholarship on partisan gerrymandering. Much of this work has sought either to introduce new measures of gerrymandering or to analyze a metric—the efficiency gap— that we previously developed. In this Essay, we reframe the debate by presenting a series of criteria that can be used to evaluate gerrymandering metrics: (1) consistency with the efficiency principle; (2) distinctness from other electoral values; (3) breadth of scope; and (4) correspondence with U.S. electoral history. We then apply these criteria to both the efficiency gap and other measures. The efficiency gap …

Nonvoting Shares And Efficient Corporate Governance, Dorothy Shapiro Lund

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Intelligent Design, Christopher Buccafusco, Mark Lemley, Jonathan Masur

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

The Right To Work And The Right To Strike, Laura Weinrib

Articles

No abstract provided.

Pari Passu Clauses And The Skeuomorph Problem In Contract Law, Douglas G. Baird

Articles

No abstract provided.

Subdelegating Powers, Jennifer Nou

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Introduction To Evidence And Innovation In Housing Law And Policy, Lee Anne Fennell, Benjamin J. Keys

Kreisman Working Paper Series in Housing Law and Policy

No abstract provided.

The Case Against Passive Shareholder Voting, Dorothy Shapiro Lund

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Partisan Balance With Bite, Brian D. Feinstein, Daniel Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Judging Discriminatory Intent, Aziz Huq

Public Law and Legal Theory Working Papers

No abstract provided.

Presidential Obstruction Of Justice, Daniel Hemel, Eric A. Posner

Public Law and Legal Theory Working Papers

No abstract provided.

Reed V. Town Of Gilbert, Arizona, And The Rise Of The Anti-Classificatory First Amendment, Genevieve Lakier

Public Law and Legal Theory Working Papers

No abstract provided.

Should Regulation Be Countercyclical?, Jonathan Masur, Eric A. Posner

Articles

No abstract provided.

Interpreting Contracts Via Surveys And Experiments, Lior Strahilevitz, Omri Ben-Shahar

Articles

No abstract provided.

Moral Commitments In Cost-Benefit Analysis, Eric A. Posner, Cass R. Sunstein

Articles

No abstract provided.

Disclosure Rules In Contract Law, Oren Bar-Gill, Ariel Porat

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

How Segregated Is Urban Consumption?, Donald R. Davis, Jonathan I. Dingel, Joan Monras, Eduardo Morales

Kreisman Working Paper Series in Housing Law and Policy

No abstract provided.

The End Of Bargaining In The Digital Age, Saul Levmore, Frank Fagan

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

The Restoration Remedy In Private Law: A Novel Approach To Compensation For Emotional Harm, Omri Ben-Shahar, Ariel Porat

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.