Law Commons^™

Abuse Of Property Right Without Political Foundations: A Response To Katz, Mitchell N. Berman

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In an article recently published in the Yale Law Journal, Larissa Katz defends a heterodox principle of abuse of property right pursuant to which an owner abuses her rights with respect to a thing she owns if she makes an otherwise permitted decision about how to use that thing just in order to harm others, either out of spite, or for leverage. Katz grounds that principle in a novel theory of the political foundations of the institution of property ownership. This essay argues that Katz’s political theory is implausible, but that this should not doom her preferred principle of …

Catalogs, Gideon Parchomovsky, Alex Stein

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It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …

Implementing Antitrust's Welfare Goals, Herbert J. Hovenkamp

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United States antitrust policy is said to promote some version of economic welfare. Antitrust promotes allocative efficiency by ensuring that markets are as competitive as they can practicably be, and that firms do not face unreasonable roadblocks to attaining productive efficiency, which refers to both cost minimization and innovation. One important welfare debate is whether antitrust should adopt a “consumer welfare” principle rather than a more general “total welfare” principle.

The simple version of the consumer welfare test is not a balancing test. If consumers are harmed by reduced output or higher prices resulting from the exercise of market power, …

Forfeiture Of Illegal Gains, Attempts And Implied Risk Preferences, Jonathan Klick, Murat C. Mungan

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In the law enforcement literature there is a presumption—supported by some experimental and econometric evidence—that criminals are more responsive to increases in the certainty than the severity of punishment. Under a general set of assumptions, this implies that criminals are risk seeking. We show that this implication is no longer valid when forfeiture of illegal gains and the possibility of unsuccessful attempts are considered. Therefore, when drawing inferences concerning offenders’ attitudes toward risk based on their responses to various punishment schemes, special attention must be paid to whether and to what extent offenders’ illegal gains can be forfeited and whether …

Conditional Spending And The Conditional Offer Puzzle, Mitchell N. Berman

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No abstract provided.

A Corporate Right To Privacy, Elizabeth Pollman

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The debate over the scope of constitutional protections for corporations has exploded with commentary on recent or pending Supreme Court cases, but scholars have left unexplored some of the hardest questions for the future, and the ones that offer the greatest potential for better understanding the nature of corporate rights. This Article analyzes one of those questions — whether corporations have, or should have, a constitutional right to privacy. First, the Article examines the contours of the question in Supreme Court jurisprudence and provides the first scholarly treatment of the growing body of conflicting law in the lower courts on …

Soft Law As Foreign Relations Law, Jean Galbraith, David Zaring

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The United States increasingly relies on “soft law” and, in particular, on cooperation with foreign regulators to make domestic policy. The implementation of soft law at home is typically understood to depend on administrative law, as it is American agencies that implement the deals they conclude with their foreign counterparts. But that understanding has led courts and scholars to raise questions about whether soft law made abroad can possibly meet the doctrinal requirements of the domestic discipline. This Article proposes a new doctrinal understanding of soft law implementation. It argues that, properly understood, soft law implementation lies at the intersection …