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Full-Text Articles in Law
Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat
Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat
Articles
No abstract provided.
An Information Theory Of Willful Breach, Omri Ben-Shahar, Oren Bar-Gill
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 …
Land Virtues, Eduardo Peñalver
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
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
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
Canonizing The Civil Rights Revolution: The People And The Poll Tax, Bruce Ackerman, Jennifer Nou
Articles
No abstract provided.
The Death Of Judicial Conservatism, David A. Strauss
Interpretive Preferences And The Limits Of The New Formalism, Adam Badawi
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 …
Same-Sex Marriage And The Establishment Clause, Geoffrey R. Stone
Same-Sex Marriage And The Establishment Clause, Geoffrey R. Stone
Articles
No abstract provided.
One Hat Too Many - Investment Desegregation In Private Equity, M. Todd Henderson, William A. Birdthistle
One Hat Too Many - Investment Desegregation In Private Equity, M. Todd Henderson, William A. Birdthistle
Articles
The nature of private-equity investing has changed significantly as two dynamics have evolved in recent years: portfolio companies have begun to experience serious financial distress, and general partners have started to diversify and desegregate their investment strategies Both developments have led private-equity shops-once exclusively interested in acquiring equity positions through leveraged buyouts- to invest in other tranches of the investment spectrum, most particularly public debt. By investing now in both private equity and public debt of the same issuer, general partners are generating a host of new conflicts of interest between themselves and their limited partners, between multiple general partners …
Beyond The Prisoners' Dilemma: Coordination, Game Theory, And Law, Richard H. Mcadams
Beyond The Prisoners' Dilemma: Coordination, Game Theory, And Law, Richard H. Mcadams
Articles
No abstract provided.
Judicial Audiences And Reputation: Perspectives From Comparative Law, Tom Ginsburg, Nuno Garoupa
Judicial Audiences And Reputation: Perspectives From Comparative Law, Tom Ginsburg, Nuno Garoupa
Articles
Whether judges are motivated to make good law or maximize policy goals, they need to develop and maintain a good reputation with some audience. We distinguish internal and external audiences for individual judicial decision-making: internal audiences are those within the judiciary itself, while external audiences include lawyers, the media or the general public. Different legal systems emphasize different audiences: some rely on external audiences that encourage judges to invest in their individual reputations, while others emphasize internal audiences that facilitate the collective reputation of the judiciary as a whole. The article analyzes the interaction between internal and external audiences over …
Are American Ceos Overpaid, And, If So, What If Anything Should Be Done About It?, Richard A. Posner
Are American Ceos Overpaid, And, If So, What If Anything Should Be Done About It?, Richard A. Posner
Articles
No abstract provided.
What The Law Should (And Should Not) Learn From Child Development Research, Emily Buss
What The Law Should (And Should Not) Learn From Child Development Research, Emily Buss
Articles
No abstract provided.
The Rights Of Migrants: An Optimal Contract Framework, Adam B. Cox, Eric A. Posner
The Rights Of Migrants: An Optimal Contract Framework, Adam B. Cox, Eric A. Posner
Articles
Why do migrants enjoy some of the rights associated with citizenship? Existing accounts typically answer this question in terms of obligation-of a duty on the part of states to confer citizenship. Moreover, scholars tend to lump together the rights conventionally associated with citizenship when they answer this question. In contrast, this Article disaggregates the rights associated with citizenship, asks what both states and migrants want, and inquires into how the suite of rights associated with citizenship might advance those interests. States want to encourage migrants to enter their territory and to make country-specific investments, but states also have an interest …
Corporate Philanthropy And The Market For Altruism, M. Todd Henderson, Anup Malani
Corporate Philanthropy And The Market For Altruism, M. Todd Henderson, Anup Malani
Articles
Academics and businesspeople have long debated the merits of corporate philanthropy. It is our contention that this debate is too narrowly focused on the role of corporations. There is a robust market for philanthropic works--which we call the market for altruism--in which nonprofit organizations, the government, and for-profit corporations compete to do good works. In this Essay, we describe this market and the role corporations play in satisfying the demand for altruism. We conclude that corporations should only engage in philanthropy when they have a comparative advantage over nonprofits and the government. Moreover, the government must avoid discriminating--particularly when setting …
Scaling Property With Professor Ellickson, Lee Anne Fennell
Scaling Property With Professor Ellickson, Lee Anne Fennell
Articles
Bob Ellickson's work is so wide-ranging, thought-provoking, and important that doing it justice here is an impossibility-so I will admit defeat on that score at the outset. Instead, I want to focus on one recurring theme that runs through much of his scholarship and that has been especially important to my own thinking about property: that scale matters. Ellickson cashes out this idea in many rich and interesting ways, but I will use three broad propositions that emerge from his work as a way of organizing my remarks. First, that the scale at which activities and events unfold should drive …
The Pto's Future: Reform Or Abolition?, Jonathan Masur
Is The Bankruptcy Code An Adequate Mechanism For Resolving The Distress Of Systemically Important Institutions?, Edward Morrison
Is The Bankruptcy Code An Adequate Mechanism For Resolving The Distress Of Systemically Important Institutions?, Edward Morrison
Articles
No abstract provided.
The Going Private Phenomenon: Causes And Implications, Richard A. Epstein, M. Todd Henderson
The Going Private Phenomenon: Causes And Implications, Richard A. Epstein, M. Todd Henderson
Articles
No abstract provided.
Romancing The Court, Gerald Rosenberg
Reputation, Information And The Organization Of The Judiciary, Tom Ginsburg, Nuno Garoupa
Reputation, Information And The Organization Of The Judiciary, Tom Ginsburg, Nuno Garoupa
Articles
No abstract provided.
Property Rights, State Of Nature Theory, And Environmental Protection, Richard A. Epstein
Property Rights, State Of Nature Theory, And Environmental Protection, Richard A. Epstein
Articles
No abstract provided.
Judicial Evaluations And Information Forcing: Ranking State High Courts And Their Judges, Eric A. Posner, Stephen J. Choi, G. Mitu Gulati
Judicial Evaluations And Information Forcing: Ranking State High Courts And Their Judges, Eric A. Posner, Stephen J. Choi, G. Mitu Gulati
Articles
Judges and courts get evaluated and ranked in a variety of contexts. The President implicitly ranks lower-court judges when he picks some rather than others to be promoted within the federal judiciary. The ABA and other organizations evaluate and rank these same judges. For the state courts, governors and legislatures do similar rankings and evaluations, as do interest groups. The U.S. Chamber of Commerce, for example, produces an annual ranking of the state courts that is based on surveys of business lawyers. These various rankings and evaluations are often made on the basis of subjective information and opaque criteria. The …
Foreword: Fault In Contract Law, Omri Ben-Shahar, Ariel Porat
Foreword: Fault In Contract Law, Omri Ben-Shahar, Ariel Porat
Articles
No abstract provided.
The Effects Of Liberalization On Litigation: Notes Toward A Theory In The Context Of Japan, Tom Ginsburg
The Effects Of Liberalization On Litigation: Notes Toward A Theory In The Context Of Japan, Tom Ginsburg
Articles
This Essay examines the under-studied relationship between liberalization and litigation. Liberalization should lead to expanded civil litigation for four reasons: (1) new market entrants are less subject to informal sanctions and may have a greater propensity to go to court; (2) privatization transfers resources away from the state, expanding the number of transactions subject to civil law regimes; (3) liberalization reduces the government’s ability to resolve disputes outside the courts; and (4) liberalization leads to economic development, which is generally litigation-enhancing. We test these propositions using a unique dataset of prefecture-level civil litigation data in Japan during the 1990s. Using …
Let Us Never Blame A Contract Breaker, Richard A. Posner
Let Us Never Blame A Contract Breaker, Richard A. Posner
Articles
Holmes famously proposed a "no fault" theory of contract law: a contract is an option to perform or pay, and a "breach" is therefore not a wrongful act, but merely triggers the duty to pay liquidated or other damages. I elaborate the Holmesian theory, arguing that fault terminology in contract law, such as "good faith," should be given pragmatic economic interpretations, rather than be conceived of in moral terms. I further argue that contract doctrines should normally be alterable only on the basis of empirical investigations.
The President And Immigration Law, Adam B. Cox, Cristina M. Rodriguez
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 …
Richard Epstein And Discrimination Law, Richard H. Mcadams
Richard Epstein And Discrimination Law, Richard H. Mcadams
Articles
No abstract provided.
The United States, Israel & Unlawful Combatants, Curtis A. Bradley
The United States, Israel & Unlawful Combatants, Curtis A. Bradley
Articles
The Essay considers how members of a terrorist organization should be categorized under international law when the organization is engaged in an armed conflict with a nation. In particular, the essay discusses whether these members can properly be categorized as a type of “combatant” or whether they must instead always be categorized as “civilians.” The proper categorization can have significant implications for the nation’s authority under international law (and potentially also domestic law) to subject members of a terrorist organization to military targeting and detention. The United States and Israel currently have different legal approaches to the question, and the …