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Articles

University of Chicago Law School

2009

Articles 1 - 30 of 85

Full-Text Articles in Law

An Information Theory Of Willful Breach, Omri Ben-Shahar, Oren Bar-Gill Jun 2009

An Information Theory Of Willful Breach, Omri Ben-Shahar, Oren Bar-Gill

Articles

Should willful breach be sanctioned more severely than inadvertent breach? Strikingly, there is sharp disagreement on this matter within American legal doctrine, in legal theory, and in comparative law. Within law-and-economics, the standard answer is "no"-breach should be subject to strict liability. Fault should not raise the magnitude of liability in the same way that no fault does not immune the breaching party from liability. In this paper, we develop an alternative law-and-economics account, which justifies supercompensatory damages for willful breach. Willful breach, we argue, reveals information about the "true nature" of the breaching party-that he is more likely than …


Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat Jun 2009

Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat

Articles

No abstract provided.


Land Virtues, Eduardo Peñalver May 2009

Land Virtues, Eduardo Peñalver

Articles

This Article has two goals. First, I explore some of the descriptive and normative limitations of certain law-and-economics discussions of the ownership and use of land. These market-centered approaches struggle in different ways with features of land that distinguish it from other "commodities." The complexity of land-its intrinsic complexity, but even more importantly the complex ways in which human beings interact with it-undermines the positive claim that owners will focus on a single value, such as market value, in making decisions about their land. Adding to the equation land's "memory," by which I mean the combined impact of the durability …


Foreseeability And Copyright Incentives, Shyam Balganesh Apr 2009

Foreseeability And Copyright Incentives, Shyam Balganesh

Articles

Copyright law's principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright's exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system's benefits against its costs. Yet, none of copyright's current doctrines enable courts to circumscribe a creator's entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in …


Adjusting Alienability, Lee Anne Fennell Mar 2009

Adjusting Alienability, Lee Anne Fennell

Articles

In recent years, the right to exclude has dominated property theory, relegating alienability - another of the standard incidents of ownership - to the scholarly shadows. Law and economics has also long neglected inalienability, despite its inclusion in Calabresi and Melamed's Cathedral. In this Article, I explore inalienability rules as tools for achieving efficiency or other ends when applied to resources that society generally views as appropriate objects of market transactions. Specifically, I focus on inalienability's capacity to alter upstream decisions by would-be resellers about whether to acquire an entitlement in the first place. By influencing these acquisition decisions, inalienability …


Canonizing The Civil Rights Revolution: The People And The Poll Tax, Bruce Ackerman, Jennifer Nou Jan 2009

Canonizing The Civil Rights Revolution: The People And The Poll Tax, Bruce Ackerman, Jennifer Nou

Articles

No abstract provided.


Great Power Politics And The Structure Of Foreign Relations Law, Daniel Abebe Jan 2009

Great Power Politics And The Structure Of Foreign Relations Law, Daniel Abebe

Articles

No abstract provided.


Odds And Ends: An Epstein-Inspired Look At Luck, Lee Anne Fennell Jan 2009

Odds And Ends: An Epstein-Inspired Look At Luck, Lee Anne Fennell

Articles

No abstract provided.


The Clash Of Commitments At The International Criminal Court, Tom Ginsburg Jan 2009

The Clash Of Commitments At The International Criminal Court, Tom Ginsburg

Articles

No abstract provided.


Interpretive Preferences And The Limits Of The New Formalism, Adam Badawi Jan 2009

Interpretive Preferences And The Limits Of The New Formalism, Adam Badawi

Articles

A recent movement in contracts scholarship-the so-called New Formalism-seeks to justify limitations on the introduction of extrinsic evidence to interpret contracts on the instrumental grounds of efficiency and empirical observation. Less attention has been directed at the development of a similar instrumental argument for the more contextual types of interpretation observed in the Uniform Commercial Code and the Restatement (Second) of Contracts. This Article engages this question by arguing that the relative ability of transactors to draft complete contracts is likely to be an important determinant of their preferred interpretive regime. Where low contracting costs allow commercial parties to draft …


Activity Levels Under The Hand Formula: A Comment On Gilo And Guttel, Richard A. Epstein Jan 2009

Activity Levels Under The Hand Formula: A Comment On Gilo And Guttel, Richard A. Epstein

Articles

No abstract provided.


Describing The Effect Of Adaptation On Settlement, Jonathan Masur, John Bronsteen, Christopher Buccafusco Jan 2009

Describing The Effect Of Adaptation On Settlement, Jonathan Masur, John Bronsteen, Christopher Buccafusco

Articles

No abstract provided.


Explaining Theoretical Disagreement, Brian Leiter Jan 2009

Explaining Theoretical Disagreement, Brian Leiter

Articles

Scott Shapiro has recently argued that Ronald Dworkin posed a new objection to legal positivism in Law's Empire, to which positivists, he says, have not adequately responded. Positivists, the objection goes, have no satisfactory account of what Dworkin calls "theoretical disagreement" about law, that is, disagreement about "the grounds of law" or what positivists would call the criteria of legal validity. I agree with Shapiro that the critique is new but disagree that it has not been met. Positivism cannot offer an explanation that preserves the "Face Value" of theoretical disagreements, because the only intelligible dispute about the criteria of …


The Future Of Law And Development, Tom Ginsburg Jan 2009

The Future Of Law And Development, Tom Ginsburg

Articles

No abstract provided.


The Impotence Of Delaware's Taxes: A Response To Barzuza's 'Delaware's Compensation', M. Todd Henderson Jan 2009

The Impotence Of Delaware's Taxes: A Response To Barzuza's 'Delaware's Compensation', M. Todd Henderson

Articles

No abstract provided.


The President And Immigration Law, Adam B. Cox, Cristina M. Rodriguez Jan 2009

The President And Immigration Law, Adam B. Cox, Cristina M. Rodriguez

Articles

The plenary power doctrine sharply limits the judiciary's power to police immigration regulation - a fact that has preoccupied immigration law scholars for decades. But scholars' persistent focus on the distribution of power between the courts and the political branches has obscured a second important separation-of-powers question: how is immigration authority distributed between the political branches themselves? The Court's jurisprudence has shed little light on this question. In this Article, we explore how the allocation of regulatory power between the President and Congress has evolved as a matter of political and constitutional practice. A long-overlooked history hints that the Executive …


The Death Of Judicial Conservatism, David A. Strauss Jan 2009

The Death Of Judicial Conservatism, David A. Strauss

Articles

No abstract provided.


The Pto's Future: Reform Or Abolition?, Jonathan Masur Jan 2009

The Pto's Future: Reform Or Abolition?, Jonathan Masur

Articles

No abstract provided.


You Too Can Create A Simulation Exercise (Or Even A Course), Jeff Leslie, James F. Hogg, Daniel Jaffe, Praveen Kosuri Jan 2009

You Too Can Create A Simulation Exercise (Or Even A Course), Jeff Leslie, James F. Hogg, Daniel Jaffe, Praveen Kosuri

Articles

No abstract provided.


Debunking Blackstonian Copyright (Reviewing Neil Weinstock Netanel, Copyright's Paradox (2008)), Shyam Balganesh Jan 2009

Debunking Blackstonian Copyright (Reviewing Neil Weinstock Netanel, Copyright's Paradox (2008)), Shyam Balganesh

Articles

No abstract provided.


Harm, Ambiguity, And The Regulation Of Illegal Contracts, Adam Badawi Jan 2009

Harm, Ambiguity, And The Regulation Of Illegal Contracts, Adam Badawi

Articles

No abstract provided.


A New Systematic Explanation Of The Types And Mitigating Effects Of Exculpatory Defenses, Jim Staihar Jan 2009

A New Systematic Explanation Of The Types And Mitigating Effects Of Exculpatory Defenses, Jim Staihar

Articles

When someone performs a criminal act, there is a rebuttable presumption that she is particularly blameworthy and liable to a particularly severe punishment for the act. The presumption is rebutted when the criminal actor has an exculpatory defense. Such defenses mitigate how much a criminal actor is blameworthy and liable to be punished for her act. In this paper, I begin by spelling out a taxonomy of the main types of exculpatory defenses. Then I argue that a restorative signaling theory of punitive desert best explains why such defenses have their mitigating effects. According to the theory, how much someone …


A New Proposal For Loan Modifications, Christopher Mayer, Edward Morrison, Tomasz Piskorski Jan 2009

A New Proposal For Loan Modifications, Christopher Mayer, Edward Morrison, Tomasz Piskorski

Articles

No abstract provided.


Happiness And Punishment, Jonathan Masur, John Bronsteen, Christopher Buccafusco Jan 2009

Happiness And Punishment, Jonathan Masur, John Bronsteen, Christopher Buccafusco

Articles

This Article continues our project of applying new findings in the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. When a state decides how to punish criminal offenders, at least one important consideration is the amount of harm any given punishment is likely to inflict. It would be undesirable, for example, to impose greater harm on those who commit less serious crimes or to impose harm that rises to the level of cruelty. Our penal system fits punishments to crimes primarily by adjusting the size of monetary fines and the length of prison …


Debate, Implicit Race Bias And The 2008 Presidential Election: Much Ado About Nothing?, Richard A. Epstein, Gregory S. Parks, Jeffrey J. Rachlinski Jan 2009

Debate, Implicit Race Bias And The 2008 Presidential Election: Much Ado About Nothing?, Richard A. Epstein, Gregory S. Parks, Jeffrey J. Rachlinski

Articles

No abstract provided.


The Perils Of Religious Passion: A Response To Professor Samuel Calhoun, Geoffrey R. Stone Jan 2009

The Perils Of Religious Passion: A Response To Professor Samuel Calhoun, Geoffrey R. Stone

Articles

No abstract provided.


Herring V. United States: A Minnow Or A Shark Term Paper, Albert W. Alschuler Jan 2009

Herring V. United States: A Minnow Or A Shark Term Paper, Albert W. Alschuler

Articles

No abstract provided.


Privacy And The Third Hand: Lessons From The Common Law Of Reasonable Expectations, Richard A. Epstein Jan 2009

Privacy And The Third Hand: Lessons From The Common Law Of Reasonable Expectations, Richard A. Epstein

Articles

No abstract provided.


The Disintegration Of Intellectual Property - A Classical Liberal Response To A Premature Obituary, Richard A. Epstein Jan 2009

The Disintegration Of Intellectual Property - A Classical Liberal Response To A Premature Obituary, Richard A. Epstein

Articles

This Article plays off the title of Thomas Grey's well-known article, The Disintegration of Property, which argued in part that the ceaseless consensual fragmentation and recombination of property rights revealed some inner incoherence of the underlying private property institutions. I take the opposite position and treat this supposed disintegration of private property as evidence of its robust nature, not only for land but for all forms of intellectual property. Low transaction costs facilitate the creation of efficient regimes of property rights. I use this framework to critique modern intellectual property rights cases that limit the use of injunctive relief in …


Property Rights, State Of Nature Theory, And Environmental Protection, Richard A. Epstein Jan 2009

Property Rights, State Of Nature Theory, And Environmental Protection, Richard A. Epstein

Articles

No abstract provided.