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Full-Text Articles in Law
The Decline And Fall Of At&T: A Personal Recollection, Richard A. Posner
The Decline And Fall Of At&T: A Personal Recollection, Richard A. Posner
Articles
No abstract provided.
The Many Faces Of Fault In Contract Law: Or How To Do Economics Right, Richard A. Epstein
The Many Faces Of Fault In Contract Law: Or How To Do Economics Right, Richard A. Epstein
Coase-Sandor Working Paper Series in Law and Economics
Modern law often rests on the assumption that a uniform cost/benefit formula is the proper way to determine fault in ordinary contract disputes. This Article disputes that vision by defending the view that different standards of fault are appropriate in different contexts. The central distinction is one that holds parties in gratuitous transactions only to the standard of care that they bring to their own affairs, while insisting on the higher objective standard of ordinary care in commercial transactions. That bifurcation leads to efficient searches. Persons who hold themselves out in particular lines of business in effect warrant their ability …
Overreaction To Fearsome Risks, Cass R. Sunstein, Richard Zeckhauser
Overreaction To Fearsome Risks, Cass R. Sunstein, Richard Zeckhauser
Coase-Sandor Working Paper Series in Law and Economics
Fearsome risks are those that stimulate strong emotional responses. Such risks, which usually involve high consequences, tend to have low probabilities, since life today is no longer nasty, brutish and short. In the face of a low-probability fearsome risk, people often exaggerate the benefits of preventive, risk-reducing, or ameliorative measures. In both personal life and politics, the result is damaging overreactions to risks. We offer evidence for the phenomenon of probability neglect, failing to distinguish between high and low-probability risks. Action bias is a likely result.
Overreaction To Fearsome Risks, Cass R. Sunstein, Richard Zeckhauser
Overreaction To Fearsome Risks, Cass R. Sunstein, Richard Zeckhauser
Public Law and Legal Theory Working Papers
Fearsome risks are those that stimulate strong emotional responses. Such risks, which usually involve high consequences, tend to have low probabilities, since life today is no longer nasty, brutish and short. In the face of a low-probability fearsome risk, people often exaggerate the benefits of preventive, risk-reducing, or ameliorative measures. In both personal life and politics, the result is damaging overreactions to risks. We offer evidence for the phenomenon of probability neglect, failing to distinguish between high and low-probability risks. Action bias is a likely result.
Adjusting Alienabillity, Lee Anne Fennell
Adjusting Alienabillity, Lee Anne Fennell
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Behavioral Criminal Law And Economics, Richard H. Mcadams, Thomas S. Ulen
Behavioral Criminal Law And Economics, Richard H. Mcadams, Thomas S. Ulen
Coase-Sandor Working Paper Series in Law and Economics
A behavioral economics literature identifies how behaviorally-derived assumptions affect the economic analysis of criminal law and public law enforcement. We review and extend that literature. Specifically, we consider the effect of cognitive biases, prospect theory, hedonic adaptation, hyperbolic discounting, fairness preferences, and other deviations from standard economic assumptions on the optimal rules for deterring potential offenders and for regulating (or motivating) potential crime victims, legislators, police, prosecutors, judges, and juries.
Crisis Governance In The Administrative State: 9/11 And The Financial Meltdown Of 2008, Eric A. Posner, Adrian Vermeule
Crisis Governance In The Administrative State: 9/11 And The Financial Meltdown Of 2008, Eric A. Posner, Adrian Vermeule
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Guarding The Guardians: Judicial Councils And Judicial Independence, Nuno Garoupa, Tom Ginsburg
Guarding The Guardians: Judicial Councils And Judicial Independence, Nuno Garoupa, Tom Ginsburg
Coase-Sandor Working Paper Series in Law and Economics
This Article uses comparative evidence to inform the ongoing debate about the selection and discipline of judges. In recent decades, many countries around the world have created judicial councils, institutions designed to maintain an appropriate balance between judicial independence and accountability. Our Article has two aims. First, we provide a theory of the formation of judicial councils and identify some of the dimensions along which they differ. Second, we test the extent to which different designs of judicial council affect judicial quality. We find that there is little relationship between councils and quality. We also offer a positive explanation for …
Judging National Security Post-9/11: An Empirical Investigation, Cass R. Sunstein
Judging National Security Post-9/11: An Empirical Investigation, Cass R. Sunstein
Coase-Sandor Working Paper Series in Law and Economics
Many people believe that when national security is threatened, federal courts should defer to the government. Many other people believe that in times of crisis, citizens are vulnerable to a kind of "panic" that leads to unjustified intrusions on liberty. But to date, there is little information about what federal courts have actually done in this domain, especially in the period after the attacks of September 11, 2001. On the basis of a comprehensive study of relevant courts of appeals decisions in the aftermath of those attacks, this essay offers four findings. First, the invalidation rate is about 15 percent …
Adjusting Alienability, Lee Anne Fennell
Adjusting Alienability, Lee Anne Fennell
Public Law and Legal Theory Working Papers
No abstract provided.
Behavioral Criminal Law And Economics, Thomas S. Ulen, Richard H. Mcadams
Behavioral Criminal Law And Economics, Thomas S. Ulen, Richard H. Mcadams
Public Law and Legal Theory Working Papers
A behavioral economics literature identifies how behaviorally-derived assumptions affect the economic analysis of criminal law and public law enforcement. We review and extend that literature. Specifically, we consider the effect of cognitive biases, prospect theory, hedonic adaptation, hyperbolic discounting, fairness preferences, and other deviations from standard economic assumptions on the optimal rules for deterring potential offenders and for regulating (or motivating) potential crime victims, legislators, police, prosecutors, judges, and juries.
Constitutional Afterlife: The Continuing Impact Of Thailand’S Post-Political Constitution, Tom Ginsburg
Constitutional Afterlife: The Continuing Impact Of Thailand’S Post-Political Constitution, Tom Ginsburg
Public Law and Legal Theory Working Papers
Thailand’s constitution of 1997 introduced profound changes into the country’s governance, creating a “postpolitical” democratic structure in which an intricate array of guardian institutions served to limit the role of elected politicians. Ultimately, the constitutional structure was undermined in a military coup against populist billionaire Thaksin Shinawatra, who had taken over many of the institutions designed to constrain political power. Nonetheless, the 1997 constitution appears to be having a significant afterlife, in that its institutional innovations have survived the enactment of a new Constitution and continue to constrain the political process. This article describes the Thai situation and speculates on …
Crisis Governance In The Administrative State: 9/11 And The Financial Meltdown Of 2008, Eric A. Posner, Adrian Vermeule
Crisis Governance In The Administrative State: 9/11 And The Financial Meltdown Of 2008, Eric A. Posner, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
Guarding The Guardians: Judicial Councils And Judicial Independence, Nuno Garoupa, Tom Ginsburg
Guarding The Guardians: Judicial Councils And Judicial Independence, Nuno Garoupa, Tom Ginsburg
Public Law and Legal Theory Working Papers
This Article uses comparative evidence to inform the ongoing debate about the selection and discipline of judges. In recent decades, many countries around the world have created judicial councils, institutions designed to maintain an appropriate balance between judicial independence and accountability. Our Article has two aims. First, we provide a theory of the formation of judicial councils and identify some of the dimensions along which they differ. Second, we test the extent to which different designs of judicial council affect judicial quality. We find that there is little relationship between councils and quality. We also offer a positive explanation for …
Judging National Security Post-9/11: An Empirical Investigation, Cass R. Sunstein
Judging National Security Post-9/11: An Empirical Investigation, Cass R. Sunstein
Public Law and Legal Theory Working Papers
Many people believe that when national security is threatened, federal courts should defer to the government. Many other people believe that in times of crisis, citizens are vulnerable to a kind of “panic” that leads to unjustified intrusions on liberty. But to date, there is little information about what federal courts have actually done in this domain, especially in the period after the attacks of September 11, 2001. On the basis of a comprehensive study of relevant courts of appeals decisions in the aftermath of those attacks, this essay offers four findings. First, the invalidation rate is about 15 percent …
Naturalizing Jurisprudence: Three Approaches, Brian Leiter
Naturalizing Jurisprudence: Three Approaches, Brian Leiter
Public Law and Legal Theory Working Papers
No abstract provided.
Originalism's Expiration Date, Adam M. Samaha
Originalism's Expiration Date, Adam M. Samaha
Public Law and Legal Theory Working Papers
The Constitution of the United States declares itself supreme law, but even the amended document is ancient. By 2008, the predicted age of a randomly selected word in this text reached 178 years. The judiciary, for its part, might not interpret the text until decades after ratification. For Article V amendments, the average lag between ratification and Supreme Court interpretation has been about 40 years. The question is how these features of our supreme law might influence the choice of interpretive method and, ultimately, constitutional decision-making. In particular, some scholars indicate that originalism may be a strong force in adjudication …
The Clash Of Commitments At The International Criminal Court, Tom Ginsburg
The Clash Of Commitments At The International Criminal Court, Tom Ginsburg
Public Law and Legal Theory Working Papers
No abstract provided.
The World Of The Framers: A Christian Nation?, Geoffrey R. Stone
The World Of The Framers: A Christian Nation?, Geoffrey R. Stone
Articles
No abstract provided.
Hedonic Adaptation And The Settlement Of Civil Lawsuits, Jonathan Masur, John Bronsteen, Christopher Buccafusco
Hedonic Adaptation And The Settlement Of Civil Lawsuits, Jonathan Masur, John Bronsteen, Christopher Buccafusco
Articles
This Essay examines the burgeoning psychological literature on happiness and hedonic adaptation (a person's capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on the probability of pretrial settlement in civil litigation. The existing economic and behavioral models of settlement are incomplete because they do not incorporate the effect of adaptation on the sum for which a plaintiff is willing to accept an offer. When an individual first suffers a serious injury, she will likely predict that the injury will greatly diminish her future happiness. However, during the time that …
The Impotence Of Delaware's Taxes: A Short Response To Professor Barzuza's Delaware's Compentation, M. Todd Henderson
The Impotence Of Delaware's Taxes: A Short Response To Professor Barzuza's Delaware's Compentation, M. Todd Henderson
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
A Comparative Fault Defense In Contract Law, Ariel Porat
A Comparative Fault Defense In Contract Law, Ariel Porat
Coase-Sandor Working Paper Series in Law and Economics
This Article calls for the recognition of a comparative fault defense in contract law. Part I sets the framework for this defense and suggests the situations in which it should apply. These situations are sorted under two headings: cases of non-cooperation and overreliance. Part II unfolds the main argument for recognizing the defense. It recommends applying the defense only in cases where cooperation or avoidance of over-reliance is low-cost.
Belief In A Just World, Blaming The Victim, And Hate Crime Statutes, Dhammika Dharmapala, Nuno Garoupa, Richard H. Mcadams
Belief In A Just World, Blaming The Victim, And Hate Crime Statutes, Dhammika Dharmapala, Nuno Garoupa, Richard H. Mcadams
Coase-Sandor Working Paper Series in Law and Economics
The earliest economic theory of discrimination proposed the subsequently neglected idea of a "vicious circle" of discrimination (Myrdal, 1944). We draw on psychological evidence (that people derive utility from believing that the world is just) to propose a behavioral economic model in which the vicious circle envisaged by Myrdal can arise. We demonstrate the power of this approach through an application to the issue of whether and how to justify penalty enhancements for hate crimes against members of disfavored groups. The crucial assumption is that individuals engage in biased inference in order to preserve their Belief in a Just World, …
Beyond The Prisoner's Dilemma: Coordination, Game Theory And The Law, Richard H. Mcadams
Beyond The Prisoner's Dilemma: Coordination, Game Theory And The Law, Richard H. Mcadams
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Liability For Lapses: First Or Second Order Negligence?, Robert D. Cooter, Ariel Porat
Liability For Lapses: First Or Second Order Negligence?, Robert D. Cooter, Ariel Porat
Coase-Sandor Working Paper Series in Law and Economics
"First order precaution" directly affects the probability of an accident, such as judging the speed of a car and stepping on the brakes. Intentions are not always realized, so first order precaution is a draw from a probability distribution. Drawing an uncharacteristically low value is a "lapse." "Second order precaution" reduces the probability of a lapse. Examples include concentration when driving and preparation before performing a medical operation. The prevailing tort rule holds the injurer liable for harm caused by unreasonable first order precaution, regardless of second order precaution. Unlike the standard model, our model allows injurers to make second …
Belief In A Just World, Blaming The Victim, And Hate Crime Statutes, Dhammika Dharmapala, Nuno Garoupa, Richard H. Mcadams
Belief In A Just World, Blaming The Victim, And Hate Crime Statutes, Dhammika Dharmapala, Nuno Garoupa, Richard H. Mcadams
Public Law and Legal Theory Working Papers
The earliest economic theory of discrimination proposed the subsequently neglected idea of a "vicious circle" of discrimination (Myrdal, 1944). We draw on psychological evidence (that people derive utility from believing that the world is just) to propose a behavioral economic model in which the vicious circle envisaged by Myrdal can arise. We demonstrate the power of this approach through an application to the issue of whether and how to justify penalty enhancements for hate crimes against members of disfavored groups. The crucial assumption is that individuals engage in biased inference in order to preserve their Belief in a Just World, …
Beyond The Prisoner's Dilemma: Coordination, Game Theory, And The Law, Richard H. Mcadams
Beyond The Prisoner's Dilemma: Coordination, Game Theory, And The Law, Richard H. Mcadams
Public Law and Legal Theory Working Papers
No abstract provided.
The Political Economy Of Criminal Law And Procedure: The Pessimists' View, Richard H. Mcadams
The Political Economy Of Criminal Law And Procedure: The Pessimists' View, Richard H. Mcadams
Public Law and Legal Theory Working Papers
In The Pathological Politics of Criminal Law, Bill Stuntz provides a powerful critique of the modern American criminal justice system. Other commentators have criticized legislatures for constantly adding to an already overbroad set of criminal prohibitions. Stuntz explains the political dynamic that makes this outcome inevitable. The ultimate result is that the modern prosecutor defines what is criminal by her selection of cases to charge, while criminal legislation is a mere “side-show.” Stuntz concludes that this state of affairs is “lawless” and pathological. As a solution, he proposes that courts resurrect or expand certain constitutional doctrines to reclaim some of …
Testing The Over- And Under-Exploitation Hypothesis: Bestselling Musical Compositions (1913-32) And Their Use In Cinema (1968-2007), Paul J. Heald
Testing The Over- And Under-Exploitation Hypothesis: Bestselling Musical Compositions (1913-32) And Their Use In Cinema (1968-2007), Paul J. Heald
Coase-Sandor Working Paper Series in Law and Economics
Some economists assert that as valuable works transition from copyrighted status and fall into the public domain they will be underexploited and their value dissipated. Others insist instead that without an owner to control their use, valuable public domain works will be overexploited or otherwise debased. This study of the most valuable musical compositions from 1913-32 demonstrates that neither hypothesis is true as it applies to the exploitation of songs in movies from 1968-2007. When compositions fall into the public domain, they are just as likely to be exploited in movies, suggesting no under-exploitation. And the rate of exploitation of …
Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt
Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt
Coase-Sandor Working Paper Series in Law and Economics
The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states—states that have historically carried out few or no executions—probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and customary international law, practiced …