Law Commons^™

Taxing Buybacks, Daniel Daniel, Gregg Polsky

Articles

No abstract provided.

Competing Algorithms For Law: Sentencing, Admissions, And Employment, Saul Levmore, Frank Fagan

Articles

No abstract provided.

Rethinking Nudge: An Information-Costs Theory Of Default Rules, Oren Bar-Gill, Omri Ben-Shahar

Articles

Policy makers and scholars—both lawyers and economists—have long pondered the optimal design of default rules. From the classic works on “mimicking” defaults for contracts and corporations to the modern rush to set “sticky” default rules to promote policies as diverse as organ donation, retirement savings, consumer protection, and data privacy, the optimal design of default rules has featured as a central regulatory challenge. The key element driving the design is opt-out costs— how to minimize them, or, alternatively, how to raise them to make the default sticky. Much of the literature has focused on “mechanical” opt-out costs—the effort people incur …

Long Live The Federal Power Act’S Bright Line, Joshua Macey

Articles

No abstract provided.

Discovering Racial Discrimination By The Police, Alison Siegler

Articles

No abstract provided.

Remixing Resources, Lee Fennell

Articles

No abstract provided.

The Other American Law, Elizabeth Reese

Articles

No abstract provided.

The Eventual Decline Of Empirical Law And Economics, Saul Levmore

Articles

No abstract provided.

Constitutionalizing Interstate Relations: The Temptation Of The Dark Side, William Baude

Articles

No abstract provided.

The Future Of Felon Disenfranchisement Reform: Evidence From The Campaign To Restore Voting Rights In Florida, Michael Morse

Articles

No abstract provided.

Who Conquers With This Sign? The Significance Of The Secularization Of The Bladensburg Cross, Mary Anne Case

Articles

No abstract provided.

Delegation Of Powers: A Historical And Functional Analysis, Richard Epstein

Articles

No abstract provided.

Do Legal Origins Predict Legal Substance?, Anu Bradford, Yun-Chien Chang, Adam Chilton, Nuno Garoupa

Articles

There is a large body of research in economics and law suggesting that the legal origin of a country that is, whether its legal regime is based on English common law or French, German, or Nordic civil law--profoundly impacts a range of outcomes. However, the exact relationship between legal origin and legal substance has been disputed in the literature and not fully explored with nuanced legal coding. We revisit this debate while leveraging novel cross-country datasets that provide detailed coding of two areas of laws: property and antitrust. We find that having shared legal origins strongly predicts whether countries have …

Property Law For The Ages, Michael Pollack, Lior Strahilevitz

Articles

No abstract provided.

The Performance Of Africa's International Courts: Using Litigation For Political, Legal, And Social Change, Tom Ginsburg

Articles

No abstract provided.

Rethinking Prosecutorial Discretion In Immigration Enforcement, Nicole Hallett

Articles

Prosecutorial discretion in immigration enforcement stands at a crossroads. It was the centerpiece of Obama's immigration policy after efforts to pass comprehensive immigration reform failed. Under the Trump administration, it was declared all but dead, replaced by an ethos of maximum enforcement. Biden has promised a return to the status quo ante, but the record of using prosecutorial discretion to accomplish humanitarian goals in immigration enforcement under Obama was, at best, mixed. Moreover, it is unclear whether Biden can depend on the availability of programs such as Deferred Action for Childhood Arrivals (DACA), Obama's signature prosecutorial discretion program. Although the …

Police Deception In Interrogation As A Problem Of Procedural Legitimacy, Margareth Etienne, Richard Mcadams

Articles

No abstract provided.

Designing Supreme Court Term Limits, Adam Chilton, Daniel Epps, Kyle Rozema, Maya Sen

Articles

Since the Founding, Supreme Court Justices have enjoyed life tenure. This helps insulate the Justices from political pressures, but it also results in unpredictable deaths and strategic retirements determining the timing of Court vacancies. In order to regularize the appointments process, a number of academics and policymakers have put forward detailed term-limits proposals. However, many of these proposals have been silent on several key design decisions, and there has been almost no empirical work assessing the impact that term limits would have on the composition of the Supreme Court.

This Article provides a framework for designing a complete term-limits proposal …

Stickiness And Incomplete Contracts, Julian Nyarko

University of Chicago Law Review

Both economic theory and legal theory assume that sophisticated parties routinely aim to write contracts that are optimal, in the sense of maximizing the parties’ joint surplus. But more recent studies analyzing corporate and government bond agreements have suggested that some contract provisions are highly path dependent, or “sticky,” with future agreements only rarely improving upon previous ones.

Analyzing half a million contracts using automated text analysis, this Article demonstrates that the stickiness hypothesis explains the striking lack of dispute resolution clauses that can be found in agreements between even the most sophisticated commercial parties. When drafting these contracts, external …

Shining A Light On Dark Patterns, Jamie Luguri, Lior Strahilevitz

Coase-Sandor Institute for Law & Economics Research Paper Series

Dark patterns are user interfaces whose designers knowingly confuse users, make it difficult for users to express their actual preferences, or manipulate users into taking certain actions. They typically exploit cognitive biases and prompt online consumers to purchase goods and services that they do not want or to reveal personal information they would prefer not to disclose. This article provides the first public evidence of the power of dark patterns. It discusses the results of the authors’ two large-scale experiments in which representative samples of American consumers were exposed to dark patterns. In the first study, users exposed to mild …

Promoting Regulatory Prediction, Jonathan S. Masur, Jonathan Remy Nash

Coase-Sandor Institute for Law & Economics Research Paper Series

It is essential for environmental protection that private actors be able to anticipate government regulation. If, for instance, the Biden Administration is planning to tighten regulations of greenhouse gas emissions, it is imperative that private companies anticipate this regulatory change now, not a few years from now after they have constructed even more coal- and gas-fired power plants. Those additional power plants will mean more irreversible greenhouse gases, and these plants can be politically challenging to shutter once built. The point is general to private actors making decisions in the shadow of potential government regulation. Better information about future government …

Mega-Iras, Mega-401(K)S, And Other Mega-Retirement Accounts: Statement For The Record, Daniel J. Hemel, Steve Rosenthal

Coase-Sandor Institute for Law & Economics Research Paper Series

The Senate Finance Committee’s hearing on July 28, 2021 -- "Building on Bipartisan Retirement Legislation: How Can Congress Help?" -- spotlighted “mega-IRAs”: individual retirement accounts with balances of $5 million or more. An analysis by the Joint Committee on Taxation in advance of the July 28 hearing found that the number of taxpayers with mega-IRAs now exceeds 28,000. The hearing followed a June 2021 report by the nonprofit investigative journalism organization ProPublica, which revealed—based on leaked IRS files—that a handful of high-net-worth individuals had accumulated massive IRA balances. The Senate Finance Committee hearing and the ProPublica report emphasized one way …

Essential Businesses And Shareholder Value, Aneil Kovvali

Coase-Sandor Institute for Law & Economics Research Paper Series

The COVID-19 crisis has demonstrated that Americans rely on certain for-profit corporations to supply the essentials of everyday life. Even though the government had assumed extraordinary responsibilities for the wellbeing of its citizens for the duration of the crisis, for-profit companies were deemed so essential to social functioning that workers were sent to keep them running despite the risk of infection with a deadly disease. If our society’s capacity to meet basic needs in a crisis is entirely dependent on the capacity of private corporations, it is necessary to critically evaluate the performance of the directors and officers who lead …

Grid Reliability Through Clean Energy, Alexandra Klass, Joshua Macey, Shelley Welton, Hannah Jacobs Wiseman

Coase-Sandor Institute for Law & Economics Research Paper Series

Energy policy is at a critical turning point. To counteract potentially catastrophic climate change, we must rapidly transition to clean energy. At the same time, we must ensure the reliability of an increasingly vulnerable electricity grid. In the wake of recent high-profile power failures, both policymakers and politicians have asserted that there is an inherent tension between the aims of clean energy and grid reliability. But continuing to rely on fossil fuels to avoid system outages will only exacerbate reliability challenges by contributing to increasingly extreme, climate-related weather events. These extremes will disrupt the power supply, with impacts rippling far …

Assessing Affirmative Action's Diversity Rationale, Adam Chilton, Justin Driver, Jonathan S. Masur, Kyle Rozema

Public Law and Legal Theory Working Papers

Ever since Justice Lewis Powell’s opinion in Regents of the University of California v. Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs, the diversity rationale has received vehement criticism from across the ideological spectrum. Critics on the right argue that diversity efforts lead to “less meritorious” applicants being selected. Critics on the left charge that diversity is mere “subterfuge.” On the diversity rationale’s legitimacy, then, there is precious little diversity of thought. In particular, prominent scholars and jurists have cast doubt on the diversity rationale’s empirical foundations, claiming that it rests on an implausible …

Visibility And Indivisibility In Resource Arrangements, Lee Anne Fennell

Public Law and Legal Theory Working Papers

Projects like highways, bridges, pipelines, and wildlife corridors exhibit indivisibilities — we need the whole thing to have anything of value. Many environmental and social goals have a similar all-or-nothing character: staying above or below a certain critical threshold can make all the difference. This essay focuses on the role of visibility in addressing resource dilemmas that have this structure. I examine how two kinds of visibility can help avoid catastrophic consequences and advance desirable ones. The first involves recognizing when an indivisibility is present — that is, appreciating the vulnerability of resources to thresholds and cliff effects before it …

Promoting Regulatory Prediction, Johnathan S. Masur, Jonathan Remy Nash

Public Law and Legal Theory Working Papers

It is essential for environmental protection that private actors be able to anticipate government regulation. If, for instance, the Biden Administration is planning to tighten regulations of greenhouse gas emissions, it is imperative that private companies anticipate this regulatory change now, not a few years from now after they have constructed even more coal- and gas-fired power plants. Those additional power plants will mean more irreversible greenhouse gases, and these plants can be politically challenging to shutter once built. The point is general to private actors making decisions in the shadow of potential government regulation. Better information about future government …

The Institutional Context Of The International Court Of Justice, Tom Ginsburg

Public Law and Legal Theory Working Papers

Institutional analysis is an approach drawn from the social sciences that examines the ways in which an organization’s internal structures and external environment shape outcomes. There are many different kinds of institutionalism, but all have in common an emphasis on examining structures, as opposed to, say, the particular individuals who inhabit institutions, or the role of ideology at a macro level.¹ Institutional analysis has been productively applied to courts and invites two related inquiries: what is the court’s institutional design, and what is its institutional environment?

Applying this approach to the International Court of Justice (“ICJ” or “Court”) requires …

Designing Supreme Court Term Limits, Adam Chilton, Daniel Epps, Kyle Rozema, Maya Sen

Public Law and Legal Theory Working Papers

Since the Founding, Supreme Court Justices have enjoyed life tenure. This helps insulate the Justices from political pressures, but it also results in unpredictable deaths and strategic retirements determining the timing of Court vacancies. In order to regularize the appointments process, a number of academics and policymakers have put forward detailed term-limits proposals. However, many of these proposals have been silent on several key design decisions, and there has been almost no empirical work assessing the impact that term limits would have on the composition of the Supreme Court.

This Article provides a framework for designing a complete term-limits proposal …

The Comparative Constitutional Law Of Presidential Impeachment, Tom Ginsburg, Aziz Huq, David Landau

University of Chicago Law Review

With the charging and acquittal of President Donald Trump, impeachment once again assumed a central role in U.S.constitutional law and politics. Yet because so few impeachments, presidential or otherwise, have occurred in U.S history, we have little understanding of how removing presidents in the middle of a term alters the direction or quality of a constitutional democracy. This Article illuminates the appropriate scope and channels of impeachment by providing a comprehensive description of the law and practice of presidential removal in the global frame. We first catalog possible modalities of impeachment through case studies from South Korea, Paraguay, Brazil, and …