Law Commons^™

Dual Sovereignty Under The Constitution: How Best To Protect States Against Federal Taxation And Regulation, Richard A. Epstein

Articles

No abstract provided.

The (Not So) Plain Meaning Rule, William Baude, Ryan D. Doerfler

Articles

No abstract provided.

The Misconceived Modern Attack On Right To Work Laws, Richard A. Epstein

Articles

No abstract provided.

Why Incentives For "Patent Holdout" Threaten To Dismantle Frand, And Why It Matters, Richard A. Epstein, Kayvan B. Noroozi

Articles

No abstract provided.

Searching For The Common Law: The Quantitative Approach Of The Restatement Of Consumer Contracts, Oren Bar-Gill, Omri Ben-Shahar, Florencia Marotta-Wurgler

Articles

In 2012, the American Law Institute asked us to serve as reporters for a new Restatement of Consumer Contracts. Recognizing that many innovations in American contract law in the past generation occurred in the area of consumer transactions, the project seemed timely and challenging. We discovered that many of these innovations are controversial and seemingly subject to conflicting approaches in the case law and heated debates among commentators. We also discovered that prior attempts to devise a unified set of rules have largely failed. We therefore decided to take a new approach to our search for, and restatement of, the …

Semi-Confidential Settlements In Civil, Criminal, And Sexual Assault Cases, Saul Levmore, Frank Fagan

Coase-Sandor Institute for Law & Economics Research Paper Series

Settlement is more likely if parties are free to set its terms, including a promise that these terms will remain secret between them. State sunshine-in-litigation laws work to defeat this incentive for confidentiality in order to protect third parties from otherwise unknown hazards. The intuition is that a wrongdoer should not be able to pay one plaintiff for silence at the expense of other victims. This Article begins by showing that the intuition is often wrong or overstated. A plaintiff who can assess defendant’s vulnerability to future claims can extract a large enough settlement to provide substantial deterrence, and at …

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

Public Law and Legal Theory Working Papers

Dozens of multimember agencies across the federal government are subject to partisan balance requirements, which mandate that no more than a simple majority of agency members may hail from a single party. Administrative law scholars and political scientists have questioned whether these provisions meaningfully affect the ideological composition of federal agencies. In theory, Presidents can comply with these requirements by appointing ideologically sympathetic members of the opposite party once they have filled their quota of same-party appointees (i.e., a Democratic President can appoint liberal Republicans or a Republican President can appoint conservative Democrats). No multiagency study in the past fifty …

Atlas Nods: The Libertarian Case For A Basic Income, Miranda Perry Fleischer, Daniel J. Hemel

Public Law and Legal Theory Working Papers

Proposals for a universal basic income are generating interest across the globe, with pilot experiments underway or in the works in California, Canada, Finland, Italy, Kenya, and Uganda. Surprisingly, many of the most outspoken supporters of a universal basic income have been self-described libertarians—even though libertarians are generally considered to be antagonistic toward redistribution and a universal basic income is, at its core, a program of income redistribution. What explains such strong libertarian support for a policy that seems so contrary to libertarian ideals?

This Article seeks to answer that question. We first show that a basic safety net is …

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

Public Law and Legal Theory Working Papers

Federal obstruction of justice statutes bar anyone from interfering with official legal proceedings based on a “corrupt” motive. But what about the president of the United States? The president is vested with “executive power,” which includes the power to control federal law enforcement. A possible view is that the statutes do not apply to the president because if they did they would violate the president’s constitutional power. However, we argue that the obstruction of justice statutes are best interpreted to apply to the president, and that the president obstructs justice when his motive for intervening in an investigation is to …

Quadratic Voting As An Input To Cost-Benefit Analysis, Jonathan S. Masur

Public Law and Legal Theory Working Papers

No abstract provided.

The Restoration Remedy In Private Law, Omri Ben-Shahar, Ariel Porat

Public Law and Legal Theory Working Papers

One of the most perplexing problems in private law is when and how to compensate victims for emotional harm. This Essay proposes a novel way to accomplish this remedial goal—a restoration measure of damages. It solves the two fundamental problems of compensation for emotional harm—measurement and verification. Instead of measuring the emotional harm and awarding the aggrieved party money damages, this Essay proposes that defendants pay damages directly to restore the underlying interest, the impairment of which led to the emotional harm. And to solve the problem of verification—compensating only those who truly suffered the emotional harm—this Essay develops a …

The People Against The Constitution, Aziz Z. Huq

Public Law and Legal Theory Working Papers

“Populism” as a political phenomenon has returned to public attention, but its implications for public law, and in particular constitutional law, remain poorly understood. This review-essay uses the monograph What is Populism? by Jan-Werner Müller to examine the salience of populism as a distinctive modality of political claim-making to U.S. constitutional law. To that end, I contrast Müller’s definition of populism with alternative accounts, and suggest reasons why constitutional scholars should employ Müller’s. Leveraging that definition, I develop a series of tensions between populism and the observed tenets of liberal constitutional democracy under law in the United States.

Cost-Benefit Analysis And The Judicial Role, Jonathan S. Masur, Eric A. Posner

Public Law and Legal Theory Working Papers

The two most vilified cases in administrative law are Business Roundtable v Securities and Exchange Commission and Corrosion Proof Fittings v Environmental Protection Agency. In Business Roundtable, the DC Circuit struck down the SEC’s proxy access rule because the agency’s cost-benefit analysis of the regulation, in the court’s view, was defective. In Corrosion Proof Fittings, the Fifth Circuit struck down an EPA regulation of asbestos products on the same grounds. Nearly all scholars who have written about these cases have condemned them. We argue that the courts acted properly. The regulators’ cost-benefit analyses were defective, seriously so; and the courts …

Decisionmaking On Multimember Courts: The Assignment Power In The Circuits, Daniel J. Hemel, Kyle Rozema

Public Law and Legal Theory Working Papers

In cases heard by multimember courts, one judge usually has the primary responsibility for assigning the majority opinion. In this article, we investigate whether this “assignment power” affects outcomes on threejudge panels in the U.S. federal circuit courts. To do so, we gather novel data on all circuit court cases published between 1993 and 2007, identifying the judge with primary opinion-assignment responsibility in each one. Under circuit rules, the same judge may have the assignment power on one panel and not on the next, depending on the composition of each panel and the relative seniority of its members. Exploiting between- …

Atlas Nods: The Libertarian Case For A Basic Income, Miranda Perry Fleischer, Daniel Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

Proposals for a universal basic income are generating interest across the globe, with pilot experiments underway or in the works in California, Canada, Finland, Italy, Kenya, and Uganda. Surprisingly, many of the most outspoken supporters of a universal basic income have been self-described libertarians—even though libertarians are generally considered to be antagonistic toward redistribution and a universal basic income is, at its core, a program of income redistribution. What explains such strong libertarian support for a policy that seems so contrary to libertarian ideals?

This Article seeks to answer that question. We first show that a basic safety net is …

Black Hole Apparitions, Lisa Bernstein

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

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Costly Signaling, Pleading, And Settlement, William Hubbard

Coase-Sandor Institute for Law & Economics Research Paper Series

This paper develops a game-theoretic model that explores the use of costly signals in a litigation environment with private information held by the plainti. I compare the costly signaling model with the canonical models of settlement through screening (Bebchuk 1984) and settlement signaling (Reinganum and Wilde 1986), and show that the costly signaling model compares favorably to these models along several dimensions, suggesting that it merits further exploration as a tool for studying suit and settlement. Under plausible conditions, costly signaling (rather than other signaling or screening mechanisms) will emerge endogenously in litigation, and its results are more robust to …

Quantum Economics, Newtonian Economics, And Law, William Hubbard

Coase-Sandor Institute for Law & Economics Research Paper Series

Just as Newtonian mechanics breaks down when we look at the constituent pieces of our universe—subatomic particles—neoclassical economics breaks down when we look at the constituent pieces of our society—individual people. At the scale of subatomic particles, quantum mechanics provides new foundations for understanding the physical world; at the scale of individual decisionmaking, behavioral economics promises new foundations for understanding the social, economic, and legal worlds. As this Article explains, this analogy between Newtonian and quantum physics, on the one hand, and neoclassical and behavioral economics, on the other hand, has much to reveal about law and economics.

With the …

Public Perceptions Of Government Speech, Daniel Hemel, Lisa Larrimore Ouellette

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Subdelegating Powers, Jennifer Nou

Public Law and Legal Theory Working Papers

The traditional portrait of the administrative state often features the politically-appointed agency head at its center: the Administrator of the Environmental Protection Agency, for instance, or the Secretary of the Department of Labor. This picture of bureaucratic power, however, is incomplete. For much of that power is, in fact, subdelegated within the agency. The implication is that decision rights are often exercised not by statutory delegates, but rather by lower-level officials and tenure-protected career staff. The purpose of this work is to bring these background actors—like the Securities and Exchange Commission’s Director of Enforcement—squarely to the foreground.

In doing so, …

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

Books

No abstract provided.

Can Blockchain Solve The Holdup Problem In Contracts?, Richard T. Holden, Anup Malani

Coase-Sandor Institute for Law & Economics Research Paper Series

A basic problem in contracting is holdup: after one party has made relationship-specific investments, the other party refuses to perform unless the first one offers better terms than the original contract. Such renegotiation deters relationship-specific investments and reduces the value of trade via contract, which can either result in no trade or more trade within firms. A classic example is the case of Alaska Packers Association v. Demenico, 117 F. 99 (9th Cir. 1902). Economists have devised solutions – called renegotiation design and revelation mechanisms – to these problems, but they are presently difficult to implement as they require very …

Accidents And Aggregates, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

Tort law responds to discrete, harmful events—“accidents”—by converting unruly facts into a binary on/off judgment about liability. This operation, characteristic of much of law, resembles the “thresholding” process used to convert grayscale images to black and white. It embeds decisions about how to isolate and evaluate the sample of risk-related behavior connected to the accident. This Article focuses on the implicit but powerful role that aggregation—of behavior, precautions, and events—plays in the determination of liability. These aggregative choices determine how large a slice of an injurer’s conduct tort law will capture within its viewfinder, and how tight the causal connection …

Costly Signaling, Pleading, And Settlement, William Hubbard

Public Law and Legal Theory Working Papers

This paper develops a game-theoretic model that explores the use of costly signals in a litigation environment with private information held by the plaintiff. I compare the costly signaling model with the canonical models of settlement through screening (Bebchuk 1984) and settlement signaling (Reinganum and Wilde 1986), and show that the costly signaling model compares favorably to these models along several dimensions, suggesting that it merits further exploration as a tool for studying suit and settlement. Under plausible conditions, costly signaling (rather than other signaling or screening mechanisms) will emerge endogenously in litigation, and its results are more robust to …

Semi-Confidential Settlements In Civil, Criminal, And Sexual Assault Cases, Saul Levmore, Frank Fagan

Public Law and Legal Theory Working Papers

Settlement is more likely if parties are free to set its terms, including a promise that these terms will remain secret between them. State sunshine in-litigation laws work to defeat this incentive for confidentiality in order to protect third parties from otherwise unknown hazards. The intuition is that a wrongdoer should not be able to pay one plaintiff for silence at the expense of other victims. This Article begins by showing that the intuition is often wrong or overstated. A plaintiff who can assess defendant’s vulnerability to future claims can extract a large enough settlement to provide substantial deterrence, and …

Inverted Theories, Lee Anne Fennell, Richard H. Mcadams

Public Law and Legal Theory Working Papers

No abstract provided.

Separation Of Powers Metatheory, Aziz Huq

Public Law and Legal Theory Working Papers

Scholarship and jurisprudence concerning the Constitution’s separation of powers today is characterized by sharp disagreement about general theory and specific outcomes. The leading theories diverge on how to model the motives of institutional actors; on how to weigh text, history, doctrine, and norms; and on whether to characterize the separation-of-powers system as abiding in a stable equilibrium or as enthralled in convulsively transformative paroxysms. Congress’s Constitution—a major contribution to theorizing on the separation of powers—provides a platform to step back and isolate these important, if not always candidly recognized, disputes about the empirical and normative predicates of separation-of-powers theory—predicates that …

Heterosexuality As A Factor In The Long History Of Women's Sports, Mary Anne Case

Public Law and Legal Theory Working Papers

No abstract provided.

Public Perceptions Of Government Speech, Daniel J. Hemel, Lisa Larrimore Ouellette

Public Law and Legal Theory Working Papers

No abstract provided.