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Full-Text Articles in Law
The Arbitrator As Agent: Why Deferential Review Is Not Always Pro-Arbitration, Tom Ginsburg
The Arbitrator As Agent: Why Deferential Review Is Not Always Pro-Arbitration, Tom Ginsburg
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Economic Foundations Of The Law Of The Sea, Alan O. Sykes, Eric A. Posner
Economic Foundations Of The Law Of The Sea, Alan O. Sykes, Eric A. Posner
Coase-Sandor Working Paper Series in Law and Economics
The United Nations Convention on the Law of the Sea has a plausible economic logic. Jurisdiction over portions of the ocean is assigned to states which can regulate them most cheaply and value them the most. These jurisdictional rights are subject to limits that reflect the interests of other states in navigation and other uses of the seas. For the vast areas of the ocean that no state can regulate, the Convention provides for an open access regime subject to simple rules, mostly self-enforcing, to limit conflict over resources.
Hiding In Plain Sight? Timing And Transparency In The Administrative State, Anne Joseph O'Connell, Jacob Gersen
Hiding In Plain Sight? Timing And Transparency In The Administrative State, Anne Joseph O'Connell, Jacob Gersen
Coase-Sandor Working Paper Series in Law and Economics
Anecdotal evidence of agencies burying bad news is rife in law and politics. The bureaucracy regularly is accused of announcing controversial policies on holidays and weekends when public attention is elsewhere. We show that this conventional wisdom is wrong, or at least significantly incomplete. The conventional wisdom is riddled with theoretical holes, and there is little systematic empirical evidence to support it. After critiquing the conventional account of agencies hiding bad news, we articulate and defend a revised theory of strategic timing in administrative law. We argue that timing decisions rarely affect the visibility of decisions but can drive up …
Impermissible Ratemaking In Health-Insurance Reform: Why The Reid Bill Is Unconstitutional, Richard A. Epstein
Impermissible Ratemaking In Health-Insurance Reform: Why The Reid Bill Is Unconstitutional, Richard A. Epstein
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Reputation, Information And The Organization Of The Judiciary, Nuno Garoupa, Tom Ginsburg
Reputation, Information And The Organization Of The Judiciary, Nuno Garoupa, Tom Ginsburg
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Against Permititis: Why Voluntary Organizations Should Regulate The Use Of Cancer Drugs, Richard A. Epstein
Against Permititis: Why Voluntary Organizations Should Regulate The Use Of Cancer Drugs, Richard A. Epstein
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Antitrust And Innovation: Framing Baselines In The Google Book Search Settlement, Randal C. Picker
Antitrust And Innovation: Framing Baselines In The Google Book Search Settlement, Randal C. Picker
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Assessing Competition Issues In The Amended Google Book Search Settlement, Randal C. Picker
Assessing Competition Issues In The Amended Google Book Search Settlement, Randal C. Picker
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Easterbrook On Copyright, Randal C. Picker
Easterbrook On Copyright, Randal C. Picker
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Heller's Gridlock Economy In Perspective: Why There Is Too Little, Not Too Much, Private Property, Richard A. Epstein
Heller's Gridlock Economy In Perspective: Why There Is Too Little, Not Too Much, Private Property, Richard A. Epstein
Coase-Sandor Working Paper Series in Law and Economics
This Article critiques Michael Heller's important contribution in the Gridlock Economy. At no point does it take the position that gridlock, or the associated anticommons, is not a serious issue in the design of a legal system. But it does insist that gridlock is not the major source of social dislocation, or that private ownership is the major source of gridlock. More concretely, the articles examines the other important sources of economic distortion that are unrelated to economic gridlock from private action. These include the use of excessive government subsidies (as with health care), misguided government licenses (as with broadcast …
Interest Groups And The Problem With Incrementalism, Saul Levmore
Interest Groups And The Problem With Incrementalism, Saul Levmore
Coase-Sandor Working Paper Series in Law and Economics
Incrementalism, as opposed to dramatic change, is conventionally lauded in law as the prudent path of change--a path that gives credit to history and precedent. But the conventional view pays little attention to interest groups. Step-by-step change poses a serious problem when it alters the constellation of supporters and opponents of further moves. The core problem is that once an interest group loses and becomes subject to some regulation, it has reason to turn on its competitors and encourage that they be similarly regulated. The laws that emerge on the incrementalist's path may therefore not mark progress toward socially desirable …
Justifying Jones, M. Todd Henderson
Justifying Jones, M. Todd Henderson
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Nra V. City Of Chicago: Does The Second Amendment Bind Frank Easterbrook?, Richard A. Epstein
Nra V. City Of Chicago: Does The Second Amendment Bind Frank Easterbrook?, Richard A. Epstein
Coase-Sandor Working Paper Series in Law and Economics
In NRA v. City of Chicago, Judge Easterbrook held that the Second Amendment, which protects the right to keep and bear arms, did not bind state governments. This article examines the reasoning that he uses to reach that result, which it contrasts with the style of argumentation that led to the opposite conclusion in Judge O'Scannlain's decision in Norkdye v. King. Easterbrook's approach emphasized the imperative need for lower court deference to the Supreme Court's explicit Reconstruction Era holdings that the Second Amendment does not bind the states, even after the Supreme Court's game-changing decision in District of Columbia V. …
Pre-Closing Liability, Omri Ben-Shahar
Pre-Closing Liability, Omri Ben-Shahar
Coase-Sandor Working Paper Series in Law and Economics
Two years after Penzoil v. Texaco threatened to burst the seam of contract formation and find binding commitments before negotiations ended, Judge Easterbrook stitched the rupture. His landmark decision in Empro v. Ball Co. held that a letter-of-intent, which is subject to the preparation of a more comprehensive formal document, is not binding. Each party can freely walk away from it prior to the closing, without incurring any liability and without the court scrutinizing the reasons for the negotiations breakdown. Many courts have since cited and followed Judge Easterbrook's approach. In this commentary, I argue that that this freedom to …
Procd V. Zeidenberg And Cognitive Overload In Contractual Bargaining, Eric A. Posner
Procd V. Zeidenberg And Cognitive Overload In Contractual Bargaining, Eric A. Posner
Coase-Sandor Working Paper Series in Law and Economics
Judge Frank Easterbrook's opinion in ProCD v. Zeidenberg has been heavily criticized for ignoring the law and making unrealistic assumptions about the ability of consumers to read and understand contract terms. This contribution to a symposium on Judge Easterbrook's judicial output argues that the opinion is a classic example of the manipulation of legal doctrine to advance a policy goal— here, enabling sellers to communicate contract terms when buyers' time and attention are limited. Contrary to the conventional wisdom, Judge Easterbrook implicitly assumes that buyers are fallible, not hyperrational; his doctrinal solution persuasively addresses the problem of cognitive overload while …
Viewing Unconscionability Through A Market Lens, David Gilo, Ariel Porat
Viewing Unconscionability Through A Market Lens, David Gilo, Ariel Porat
Coase-Sandor Working Paper Series in Law and Economics
This Article calls for a move to the third phase in courts' attitudes toward consumer contracts. In the first phase, consumer contracts were considered ordinary contracts by courts thus requiring no special treatment. In the second phase, courts and legislatures became suspicious of consumer contracts and developed several tools for handling them, focusing on the characteristics of the parties and the transaction. In this Article, we suggest that it is time to introduce a third phase: Rather than examining each consumer contract in isolation, courts need to acknowledge that consumer contracts are a market-phenomenon which calls for a market-based approach. …
Accounting For Differences Among Patients In The Fda Approval Process, Mark Van Der Laan, Anup Malani, Oliver Van Der Bembom
Accounting For Differences Among Patients In The Fda Approval Process, Mark Van Der Laan, Anup Malani, Oliver Van Der Bembom
Coase-Sandor Working Paper Series in Law and Economics
The FDA employs an average-patient standard when reviewing drugs: it approves a drug only if the average patient (in clinical trials) does better on the drug than on control. It is common, however, for different patients to respond differently to a drug. Therefore, the average-patient standard can result in approval of a drug with significant negative effects for certain patient subgroups (false positives) and disapproval of drugs with significant positive effects for other patient subgroups (false negatives). Drug companies have a financial incentive to avoid false negatives. After their clinical trials reveal that their drug does not benefit the average …
Expanding Liability For Negligence Per Se, Ariel Porat
Expanding Liability For Negligence Per Se, Ariel Porat
Coase-Sandor Working Paper Series in Law and Economics
In order to succeed in a tort suit under negligence per se, a victim must be of the class of persons protected by the statute and his injury must be of the type that the statute was intended to prevent. Referring to them as "the limiting liability conditions", this Article calls for a diminishment of their role in determining liability in torts. It is argued that whenever non-compliance with a statutory provision increases risks to the class of persons the victim belongs to or of the type of injury the victim suffered and those risks are foreseeable, there is a …
Incentives For Surveillance Of Infections Disease Outbreaks, Anup Malani, Ramanan Laxminarayan
Incentives For Surveillance Of Infections Disease Outbreaks, Anup Malani, Ramanan Laxminarayan
Coase-Sandor Working Paper Series in Law and Economics
This paper examines the incentives for countries to report disease outbreaks such as swine flu, avian flu and SARS to the international community. Even cursory analysis suggests countries have conflicting incentives regarding whether to report an outbreak. Reporting an outbreak may bring medical assistance, but also trigger trade sanctions to contain an outbreak. Modeling the decision as a signaling game where a country has private but imperfect evidence of an outbreak provides additional insights. First, not all sanctions discourage reporting. Sanctions based on fears of an undetected outbreak (false negatives) encourage disclosure by reducing the relative cost of sanctions that …
Instrument Choice Is Instrument Design, David A. Weisbach
Instrument Choice Is Instrument Design, David A. Weisbach
Coase-Sandor Working Paper Series in Law and Economics
This paper analyzes the choice between taxes and cap and trade systems (also referred to here as a permit system or a quantity restriction) as methods of controlling greenhouse gas emissions. It argues that in the domestic context, with proper design, the two instruments are essentially the same. Commonly discussed differences in the two instruments are due to unjustified assumptions about design. In the climate change context and within a single country there is sufficient design flexibility that these differences can be substantially eliminated. To the extent that there are remaining differences, there should be a modest preference for taxes, …
Liability For Future Harm, Ariel Porat, Alex Stein
Liability For Future Harm, Ariel Porat, Alex Stein
Coase-Sandor Working Paper Series in Law and Economics
This Article considers the possibility of imposing liability in torts for a wrongfully created risk of future harm. We examine the American and English court decisions pertaining to this issue and consider whether a probability-based compensation for the victim's expected—albeit not yet materialized—harm is just and efficient. We demonstrate how the virtues of a legal regime that allows a tort victim to recover compensation for her expected harm overshadow its vices. We conclude that a person's risk of sustaining harm in the future should be actionable whenever the risk is substantial. We further conclude that it should be left to …
One-Way Contracts: Consumer Protection Without Law, Omri Ben-Shahar
One-Way Contracts: Consumer Protection Without Law, Omri Ben-Shahar
Coase-Sandor Working Paper Series in Law and Economics
What if consumer contracts were legally enforceable only against the consumers, but not against the business? This paper, part of my project on the "myths of consumer protection," describes a regime of "one-way contracts"— contracts between consumers and business to which only consumers are bound, the business is not. A breaching business would face no contractual liability. The paper argues that many consumer contracts are already disguised one-way contracts. It then demonstrates the variety of alternative consumer protections devices that would emerge in the total absence of legal protection. In a one-way contracts world, transactions will be redesigned to limit …
Henry Louis Gates And Racial Profiling: What’S The Problem?, Bernard E. Harcourt
Henry Louis Gates And Racial Profiling: What’S The Problem?, Bernard E. Harcourt
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Judging Women, Eric A. Posner, Stephen J. Choi, G. Mitu Gulati, Mirya Holman
Judging Women, Eric A. Posner, Stephen J. Choi, G. Mitu Gulati, Mirya Holman
Coase-Sandor Working Paper Series in Law and Economics
Judge Sonia Sotomayor's assertion that female judges might be "better" than male judges has generated accusations of sexism and potential bias. An equally controversial claim is that male judges are better than female judges because the latter have benefited from affirmative action. These claims are susceptible to empirical analysis. Primarily using a dataset of all the state high court judges in 1998-2000, we estimate three measures of judicial output: opinion production, outside state citations, and co-partisan disagreements. We find that the male and female judges perform at about the same level. Roughly similar findings show up in data from the …
The Bankruptcy Exchange, Douglas G. Baird
The Bankruptcy Exchange, Douglas G. Baird
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
The Holmesian Bad Man’S First Critic, Douglas G. Baird
The Holmesian Bad Man’S First Critic, Douglas G. Baird
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
The Unbounded Home, Property Values Beyond Property Lines, Lee Anne Fennell
The Unbounded Home, Property Values Beyond Property Lines, Lee Anne Fennell
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Against Feasibility Analysis, Eric A. Posner, Jonathan Masur
Against Feasibility Analysis, Eric A. Posner, Jonathan Masur
Coase-Sandor Working Paper Series in Law and Economics
Feasibility analysis, a method of evaluating government regulations, has emerged as the major alternative to cost-benefit analysis. Although regulatory agencies have used feasibility analysis (in some contexts called "technology-based" analysis) longer than cost-benefit analysis, feasibility analysis has received far less attention in the scholarly literature. In recent years, however, critics of cost-benefit analysis have offered feasibility analysis as a superior alternative. We advance the debate by uncovering the analytic structure of feasibility analysis and its normative premises, and then criticizing them. Our account builds on two examples of feasibility analysis, one conducted by OSHA and the other by EPA. We …
Controlling Residential Stakes, Lee Anne Fennell, Julie Roin
Controlling Residential Stakes, Lee Anne Fennell, Julie Roin
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Credit Derivatives Are Not "Insurance", M. Todd Henderson
Credit Derivatives Are Not "Insurance", M. Todd Henderson
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.