Law Commons^™

Strategic Spillovers, Daniel B. Kelly

Journal Articles

The conventional problem with externalities is well known: Parties often generate harm as an unintended byproduct of using their property. This Article examines situations in which parties may generate harm purposely, in order to extract payments in exchange for desisting. Such “strategic spillovers” have received relatively little attention, but the problem is a perennial one. From the “livery stable scam” in Chicago to “pollution entrepreneurs” in China, parties may engage in externality-generating activities they otherwise would not have undertaken, or increase the level of harm given that they are engaging in such activities, to profit through bargaining or subsidies. This …

Penalty Defaults In Family Law: The Case Of Child Custody, Margaret F. Brinig

Journal Articles

This paper considers whether an amendment to state divorce laws that strengthens its joint custody preference operates as a traditional default rule, specifying what most divorcing couples would choose or as a penalty default rule the parties will attempt to contract around.

While the Oregon statutes that frame our discussion here, like most state laws, do not state an explicit preference for joint custody, shared custody is certainly encouraged by Section 107.179, which refers cases in which the parties cannot agree on joint custody to mediation and by Section 107.105, which requires the court to consider awarding custody jointly. In …

Trading At Divorce: Preferences, Legal Rules And Transactions Costs, Margaret F. Brinig, Michael V. Alexeev

Journal Articles

For almost ten years, legal commentators have been aware of the possibility of applying economic bargaining principles to the problems of negotiations at the time of divorce. Although some cases and journal articles have mentioned the Mnookin and Komhauser article suggesting that custodial time and financial assets might be exchanged, attempts to apply the analysis have been confined to description. No one has attempted an empirical study to see if there really are trade-offs between custodial time and marital assets at the time of divorce, and there has been no formal model describing the process.

Furthermore, there has been no …