Law Commons^™

Duplicative Taxation Among The States: A Problem Not Worth Solving?, Julie Roin

Coase-Sandor Institute for Law & Economics Research Paper Series

Recent legal and economic changes—not to mention the rise in telecommuting caused by COVID--have raised the salience of a long-simmering fact about the operation of state and local income tax systems: some multistate employers and employees pay a combined income tax liability that is higher than the tax they would have borne had they operated in just one jurisdiction. Seemingly beyond the reach of the courts to correct, there have been persistent calls for Congressional action to eliminate or reduce this “duplicative” taxation. This Article suggests that the alleged problem may be both less of a problem, and more resistant …

Horizontal Collusion And Parallel Wage-Setting In Labor Markets, Jonathan S. Masur, Eric A. Posner

Coase-Sandor Institute for Law & Economics Research Paper Series

Horizontal collusion among employers to suppress wages has received almost no attention in the academic literature, in contrast with its more familiar cousin, product market collusion. The similar economic analysis of labor and product markets might suggest that antitrust should regulate labor and product markets in the same way. But product markets and labor markets do not operate identically: people behave differently as employees and as consumers. Unlike consumers who can switch products relatively easily, employees face significant frictions in changing jobs. Other labor market frictions are created by the pay equity norm and downward nominal wage rigidity. These factors …

The Expanding Universe Of Bilateral Labor Agreements, Adam Chilton, Bartosz Woda

Coase-Sandor Institute for Law & Economics Research Paper Series

In the seventy-five years since the end of World War II, pairs of countries have entered into over a thousand bilateral labor agreements (BLAs) to regulate the cross-border flow of workers. These agreements have received little public or academic attention. This is likely, in part, because there is limited data or easily available information on BLAs. This Article hopes to change that by introducing three new resources: (1) a dataset documenting the formation of over 1,200 BLAs; (2) a corpus including the texts of over 800 BLAs; and (3) a dataset coding whether over 500 BLAs mention twenty topics that …

In Defense Of Chapter 11 For Mass Torts, Anthony J. Casey, Joshua C. Macey

Coase-Sandor Institute for Law & Economics Research Paper Series

This Essay argues that bankruptcy proceedings are well-suited to resolving mass tort claims. Mass tort cases create a collective action problem that encourages claimants who are worried about available recoveries to race to the courthouse to collect ahead of others. This race can destroy going concern value and lead to the dismemberment of valuable firms. Coordination among them is difficult as each claimant seeks to maximize its own recoveries. These are the very collective action and hold-out problems that bankruptcy proceedings are designed to solve. As such, bankruptcy proceedings are appropriate means of resolving mass torts as long as they …

The Bankruptcy Tribunal, Anthony J. Casey, Joshua C. Macey

Coase-Sandor Institute for Law & Economics Research Paper Series

The United States Bankruptcy Code (the Code)¹ and the Federal Arbitration Act (FAA)² are powerful statutory schemes. Each one demands a broad scope of influence and preempts many other fields of law, state and federal. The capacious nature of these statutes creates a challenging tension when they come into conflict. On the one hand, bankruptcy law is in its very essence a collective multiparty dispute resolution procedure that cannot be waived or altered by private contract. On the other hand, the FAA embodies a general federal policy in favor of allowing parties to contract into private dispute resolution …

Streaming Property, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

People acquire property rights in objects and real estate in order to capture the stream of services that these assets can provide over time. The thing or parcel itself is merely a delivery mechanism, a way of packaging and protecting rights to that value stream. And, significantly, these assets cannot stream services to anyone without a set of facilitating conditions and complementary goods, such as public infrastructure, that do not lie within the asset owner’s individual control. This Essay argues that we can gain fresh traction on inequality by recasting property as service streams rather than as owned things. Doing …

Review Of Daniel Farber, Inequality And Regulation: Designing Rules To Address Race, Poverty, And Environmental Law, David A. Weisbach

Coase-Sandor Institute for Law & Economics Research Paper Series

Dan Farber’s wide-ranging article, Inequality and Regulation, makes two core arguments. First, Farber argues that using a uniform value of statistical life (VSL) in cost-benefit analysis is justified not only as a pragmatic compromise but also as a matter of first principles. In particular, he argues that a uniform VSL can be based on a theory of equality that he calls harm egalitarianism, which holds that individuals have equal entitlements to protection against harm. Second, Farber, looking for ways to address environmental justice concerns through regulations, argues that “a heightened focus on differences in exposure and vulnerability [in the cost-benefit …

The Consequences Of The Tcja’S International Provisions: A Conceptual Framework And Survey Of The Evidence, Dhammika Dharmapala

Coase-Sandor Institute for Law & Economics Research Paper Series

The 2017 US tax legislation - widely referred to as the Tax Cut and Jobs Act (TCJA) - fundamentally transformed the US system of international taxation, introducing for instance a new tax on “Global Intangible Low-Taxed Income” (GILTI). This paper develops a simple conceptual framework that synthesizes and extends the theory of multinational corporations’ (MNCs’) responses to taxation. It also surveys the emerging empirical evidence on the consequences of the TCJA’s international provisions. The conceptual framework focuses on the efficiency costs of ownership distortions in analyzing the impact of the GILTI tax and the prior repatriation tax on foreign acquisitions …

Competition And Congestion In Trademark Law, Christopher Buccafusco, Jonathan S. Masur, Mark P. Mckenna

Coase-Sandor Institute for Law & Economics Research Paper Series

Trademark law exists to promote competition. If consumers know which companies make which products, they can more easily find the products they actually want to purchase. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this paper, we argue that this equation of source significance and pro-competitiveness is misguided. Some marks use words that are so closely connected with the product being …

Intellectual Property Norms In American Theater, Kelly Gregg

University of Chicago Law Review

When a musical opens on Broadway, what aspects of the production are covered by copyright’s protection of “dramatic works”? The script clearly is (although policing infringement is nigh impossible), but courts have yet to address whether the work of the director or designers should be afforded copyright protections. Nonetheless, within the close-knit professional New York theater community, rarely do artists significantly copy the work of others. This Comment argues that this is because the community has developed its own welfare-maximizing norms to address intellectual property. However, looking at larger cross-sections of American theater (such as all professional theaters independent of …

In Defense Of 5g: National Security And Patent Rights Under The Public Interest Factors, Kenny Mok

University of Chicago Law Review

Section 337 of the Tariff Act of 1930 authorizes the International Trade Commission (ITC) to stop—or “exclude”—patent-infringing imports. Exclusion orders protect the country against unfair trade practices and help enforce U.S. patent rights. But before issuing an order, the ITC is required by Section 337 to consider the order’s harm to the public health and welfare, its effect on competitive conditions, the availability of substitutes, and the harm to consumers. Because it rarely finds that these “public interest factors” outweigh the benefits of patent enforcement, the ITC has mostly granted exclusion orders despite growing concerns related to the public’s reliance …

Textual Rules In Criminal Statutes, Joshua Kleinfeld

University of Chicago Law Review

No abstract provided.

Write Like You’Re Running Out Of Time: Prepublication Review, Retroactive Classification, And Intermediate Scrutiny, Henry Walter

University of Chicago Law Review

The Constitution’s promises of freedom of speech and common defense can, at times, be at odds. One acute example of that tension is the prepublication review process, by which the government reviews written works by certain current and former employees to ensure that they do not contain classified or other sensitive information. While this process surely has its merits in preserving national security, it also presents authors with a bureaucratic thicket that is often difficult to navigate. This process is further complicated by the fact that the government can retroactively classify documents, meaning that information that authors might have thought …

Can Procedure Take?: The Judicial Takings Doctrine And Court Procedure, Rebecca Hansen

University of Chicago Law Review

In considering the value of the judicial takings doctrine, this Comment argues that we should look to a new area of law: procedure. Courts often have the authority to set procedure, and they use this authority for substantive ends. This Comment argues that applying the Takings Clause to procedure demonstrates the value of the judicial takings doctrine. It argues that the Takings Clause, rather than the Due Process Clause, is the appropriate framework for certain forms of procedure. Under the Takings Clause, we can recognize the judiciary’s authority to use procedure for substantive ends while also offering “just compensation” to …

A Place Worth Protecting: Rethinking Cost-Benefit Analysis Under Fema’S Flood-Mitigation Programs, Kelly Mcgee

University of Chicago Law Review

As climate change threatens coastal areas with more frequent and intense flooding, the federal government has adopted a greater focus on mitigating the effects of natural disasters. While neighborhoods differ in terms of physical risk exposure, they also differ in social vulnerability—the characteristics that influence a community’s ability to safely weather a storm, withstand disruptions to employment and housing, navigate the rebuilding process, and eventually return to normal. Funding for federal flood-mitigation projects administered by the Federal Emergency Management Agency (FEMA) is currently distributed according to a simple metric—the benefits of a project must outweigh its costs. FEMA’s approach to …

Tribe’S Trajectory & Lgbtq Rights, Joshua Matz

University of Chicago Law Review

I’m not sure I’ll ever live it down. I actually said—out loud, to his face, a full ten minutes into our very first conversation—“Holy smokes, you’re Larry Tribe!” I was in Cambridge that day as a newly admitted student. Somehow, inexplicably (it’s not that big of a campus), I got lost. Very lost. Fortunately, a passerby professor took mercy and steered me to his office. In a bid to regain my composure, and to seem like a plausible future law student, I jumped straight to explaining why I was there: I wanted to be a civil rights lawyer. To prove …

Jeffrey Rachlinski: Man, Myth, Legend, Gregory S. Parks

University of Chicago Law Review

No abstract provided.

The Most-Cited Legal Scholars Revisited, Fred R. Shapiro

University of Chicago Law Review

This Essay presents a list of the fifty most-cited legal scholars of all time, in-tending to spotlight individuals who have had a very notable impact on legal thought and institutions. Because citation counting favors scholars who have had long careers, I supplement the main listing with a ranking of the most-cited younger legal scholars. In addition, I include five specialized lists: most-cited international law scholars, most-cited corporate law scholars, most-cited scholars of critical race theory and feminist jurisprudence, most-cited public law scholars, and most-cited scholars of law and social science. (For those readers who cannot wait to see the actual …

Guido Calabresi’S “Other Justice Reasons”, Adam Davidson

University of Chicago Law Review

No abstract provided.

Lucian Bebchuk And The Study Of Corporate Governance, Kobi Kastiel

University of Chicago Law Review

It is with great pleasure that I write this Essay about Lucian Bebchuk, the James Barr Ames Professor of Law, Economics, and Finance at Harvard Law School. Bebchuk has made fundamental, influential, and lasting contributions to the field of corporate governance and has mentored an exceptional number of corporate scholars. He has also been my own mentor and main doctoral supervisor, and the ten years that I have worked with him as a student, fellow, and coauthor have been an incomparable learning experience. This Essay provides a brief account of Bebchuk’s pro-found contributions to the field of corporate governance and …

A Pioneer Of The Law & Society Movement: One Eyewitness’S Reflections, Jayanth K. Krishnan

University of Chicago Law Review

There is arguably no more seminal a figure in the field of law and society than Professor Marc Galanter. That a Special Issue featuring dedications to several leading academic lights would be hosted by the University of Chicago Law Review is especially significant in terms of Marc’s inclusion because Chicago is where Marc came of age as a student.

Professor Richard Abel, some years back, chronicled Marc’s educational journey in Hyde Park. As Abel tells it—and as Marc has told me over the years—after finishing his B.A. and while continuing to work on his master’s degree from Chicago, Marc enrolled …

The Scholar As Coauthor, Jonathan S. Masur

University of Chicago Law Review

No abstract provided.

As Brown Has Waned, Aziz Z. Huq

University of Chicago Law Review

No abstract provided.

Lessons To Be Learned From Peter Yu, John T. Cross

University of Chicago Law Review

No abstract provided.

Reading Erwin Chemerinsky, Michele Goodwin

University of Chicago Law Review

No abstract provided.

The Problem Of Gender Inequity: The Legacy Of Deborah Rhode, Joanna L. Grossman

University of Chicago Law Review

No abstract provided.

A Cross-Cutting Public Law Scholar For The Ages, Nicole Huberfeld

University of Chicago Law Review

No abstract provided.

What Is Privacy? That’S The Wrong Question, Woodrow Hartzog

University of Chicago Law Review

Every year on the first day of my course on information privacy law, I ask my students to define the concept of privacy. Usu-ally, I get a few different answers, each of which is built around some singular and definitive conceptualization of privacy. Some notions include: Privacy is “control over personal information.” Privacy is “secrecy.” Privacy is the “right to be left alone.” And so on. Then I gently push back, asking my students about notions of privacy that fall outside their definition. Which definition should the law adopt? All of these definitions seem right, yet somehow not enough. I …

Applying Harold Koh’S Transnational Legal Model To Current Human Rights Challenges, Michael Posner

University of Chicago Law Review

No abstract provided.

On Prisoners, Politics, And The Administration Of Criminal Justice: Professor Rachel Barkow, Sonja B. Starr

University of Chicago Law Review

Professor Rachel Barkow has established herself as an indispensable voice in public and academic discourse on criminal justice reform. Beyond the very important contributions to the world of scholarship that earned her a well-deserved place in this “most-cited” list, she has also shaped policy directly (most notably as a member of the U.S. Sentencing Commission from 2013 to 2018), as well as influenced the education of countless law students through her coauthorship of the leading criminal law casebook.1 She is also an expert on administrative law and on the separation of powers, and this shapes her distinct perspective on the …