Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 30 of 161
Full-Text Articles in Law
Book Review (Reviewing Martha Minow, In Brown's Wake: Legacies Of America's Educational Landmark (2010)), Gerald Rosenberg
Book Review (Reviewing Martha Minow, In Brown's Wake: Legacies Of America's Educational Landmark (2010)), Gerald Rosenberg
Articles
No abstract provided.
Property's Memories, Eduardo Peñalver
Ostrom's Law: Property Rights In The Commons, Lee Anne Fennell
Ostrom's Law: Property Rights In The Commons, Lee Anne Fennell
Coase-Sandor Working Paper Series in Law and Economics
Elinor Ostrom's work has immeasurably enhanced legal scholars' understanding of property. Although the richness of these contributions cannot be distilled into a single thesis, their flavor can be captured in a maxim I call Ostrom's Law: A resource arrangement that works in practice can work in theory. Ostrom's scholarship challenges the conventional wisdom by examining how people interact over resources on the ground – an approach that enables her to identify recurring institutional features associated with long-term success. In this essay, I trace some of the ways that Ostrom's focus on situated examples has advanced interdisciplinary dialogue about property as …
Political Risk And Sovereign Debt Contracts, Eric A. Posner, Stephen J. Choi, G. Mitu Gulati
Political Risk And Sovereign Debt Contracts, Eric A. Posner, Stephen J. Choi, G. Mitu Gulati
Coase-Sandor Working Paper Series in Law and Economics
Default on sovereign debt is a form of political risk. Issuers and creditors have responded to this risk both by strengthening the terms in sovereign debt contracts that enable creditors to enforce their debts judicially and by creating terms that enable sovereigns to restructure their debts. These apparently contradictory approaches reflect attempts to solve an incomplete contracting problem in which debtors need to be forced to repay debts in good states of the world; debtors need to be granted partial relief from debt payments in bad states; debtors may attempt to exploit divisions among creditors in order to opportunistically reduce …
Political Risk And Sovereign Debt Contracts, Eric A. Posner, Stephen J. Choi, G. Mitu Gulati
Political Risk And Sovereign Debt Contracts, Eric A. Posner, Stephen J. Choi, G. Mitu Gulati
Public Law and Legal Theory Working Papers
Default on sovereign debt is a form of political risk. Issuers and creditors have responded to this risk both by strengthening the terms in sovereign debt contracts that enable creditors to enforce their debts judicially and by creating terms that enable sovereigns to restructure their debts. These apparently contradictory approaches reflect attempts to solve an incomplete contracting problem in which debtors need to be forced to repay debts in good states of the world; debtors need to be granted partial relief from debt payments in bad states; debtors may attempt to exploit divisions among creditors in order to opportunistically reduce …
Some Skeptical Comments On Beth Simmons's Mobilizing For Human Rights, Eric A. Posner
Some Skeptical Comments On Beth Simmons's Mobilizing For Human Rights, Eric A. Posner
Public Law and Legal Theory Working Papers
These comments address some theoretical, empirical, and normative claims made by Beth Simmons in her book, Mobilizing for Human Rights. The empirical heart of the book is rigorous, but because of the shallowness of the data and the limits of the empirical methodology, the implications for human rights law are narrow and to a large extent ambiguous.
The Boundaries Of The Moral (And Legal) Community, Brian Leiter
The Boundaries Of The Moral (And Legal) Community, Brian Leiter
Coase-Sandor Working Paper Series in Law and Economics
No abstract provided.
Accounting For Anticipation Effects: An Application To Medical Malpractice Tort Reform, Anup Malani, Julian Reif
Accounting For Anticipation Effects: An Application To Medical Malpractice Tort Reform, Anup Malani, Julian Reif
Coase-Sandor Working Paper Series in Law and Economics
While conducting empirical work, researchers sometimes observe changes in outcomes before adoption of a new treatment program. The conventional diagnosis is that treatment is endogenous. Observing changes in outcomes prior to treatment is also consistent, however, with anticipation effects. This paper provides a framework for comparing the different methods for estimating anticipation effects and proposes a new set of instrumental variables that can address the problem that subjects' expectations are unobservable. The paper uses this framework to analyze the effect of tort reform on physician supply and finds that accounting for anticipation effects doubles the estimated effect of tort reform.
Does Accuracy Improve The Information Value Of Trials?, Scott Baker, Anup Malani
Does Accuracy Improve The Information Value Of Trials?, Scott Baker, Anup Malani
Coase-Sandor Working Paper Series in Law and Economics
We develop a model where products liability trials provide information to consumers who are not parties to the litigation. Consumers use this information to take precautions against dangerous products. A critical assumption is that consumers cannot differentiate between firms that have never been sued and firms that have been sued but settled out of court. In this framework, we show that perfectly accurate courts do not maximize information to consumers and thus welfare, contrary to Kaplow and Shavell (1994). More accurate courts provide more information only if producers go to trial. Greater accuracy, however, encourages producers of dangerous products to …
Governing Bad Behavior By Users Of Multi-Sided Platforms, David S. Evans
Governing Bad Behavior By Users Of Multi-Sided Platforms, David S. Evans
Coase-Sandor Working Paper Series in Law and Economics
Multi-sided platforms such as exchanges, search engines, social networks and software platforms create value by assembling and serving communities of people and businesses. They generally come into being to solve a transaction problem that prevents agents from getting together to exchange value. An essential feature of these platforms is that they promote positive externalities between members of the community. But as with any community, there are numerous opportunities for people and businesses to create negative externalities, or engage in other bad behavior, that can reduce economic efficiency and, in the extreme, lead to the tragedy of the commons. Multi-sided platforms, …
Improving The Fda Approval Process, Mark Van Der Laan, Anup Malani, Oliver Van Der Bembom
Improving 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 is safe and effective for the average patient in a clinical trial. It is common, however, for patients to respond differently to a drug. Therefore, the average-patient standard can reject a drug that benefits certain patient subgroups (false negative) and even approval a drug that harms other patient subgroups (false positives). These errors increase the cost of drug development – and thus health care – by wasting research on unproductive or unapproved drugs. The reason why the FDA sticks with an average patient standard is …
Implicit Bias In Legal Interpretation, Ward Farnsworth, Dustin F. Guzior, Anup Malani
Implicit Bias In Legal Interpretation, Ward Farnsworth, Dustin F. Guzior, Anup Malani
Coase-Sandor Working Paper Series in Law and Economics
What role do policy preferences play when a judge or any other reader decides what a statute or other legal text means? Most judges think of themselves as doing law, not politics. Yet the observable decisions that judges make often follow patterns that are hard to explain by anything other than policy preferences. Indeed, if one presses the implications of the data too hard, it is likely to be heard as an accusation of bad faith—a claim that the judge or other decision-maker isn't really earnest in trying to separate preference from judgment. This does not advance the discussion, and …
Regulation For The Sake Of Appearance, Adam M. Samaha
Regulation For The Sake Of Appearance, Adam M. Samaha
Coase-Sandor Working Paper Series in Law and Economics
Appearance is often given as a justification for decisions, including government decisions, but the logic of appearance arguments is not well theorized. This Article develops a framework for understanding and evaluating appearance-based justifications for government decisions. First, working definitions are offered to distinguish appearance from reality. Next, certain relationships between appearance and reality are singled out for attention. Sometimes reality is insulated from appearance, sometimes appearance helps drive reality over time, and sometimes appearance and reality collapse from the outset. Finally, sets of normative questions are suggested based on the supposed relationship between appearance and reality for a given situation. …
Does Accuracy Improve The Information Value Of Trials?, Scott Baker, Anup Malani
Does Accuracy Improve The Information Value Of Trials?, Scott Baker, Anup Malani
Public Law and Legal Theory Working Papers
We develop a model where products liability trials provide information to consumers who are not parties to the litigation. Consumers use this information to take precautions against dangerous products. A critical assumption is that consumers cannot differentiate between firms that have never been sued and firms that have been sued but settled out of court. In this framework, we show that perfectly accurate courts do not maximize information to consumers and thus welfare, contrary to Kaplow and Shavell (1994). More accurate courts provide more information only if producers go to trial. Greater accuracy, however, encourages producers of dangerous products to …
Dustin Guzior And Anup Malani, Implicit Bias In Legal Interpretation, Ward Farnsworth
Dustin Guzior And Anup Malani, Implicit Bias In Legal Interpretation, Ward Farnsworth
Public Law and Legal Theory Working Papers
What role do policy preferences play when a judge or any other reader decides what a statute or other legal text means? Most judges think of themselves as doing law, not politics. Yet the observable decisions that judges make often follow patterns that are hard to explain by anything other than policy preferences. Indeed, if one presses the implications of the data too hard, it is likely to be heard as an accusation of bad faith—a claim that the judge or other decision-maker isn't really earnest in trying to separate preference from judgment. This does not advance the discussion, and …
Improving The Fda Approval Process, Mark Van Der Laan, Anup Malani, Oliver Van Der Bembom
Improving The Fda Approval Process, Mark Van Der Laan, Anup Malani, Oliver Van Der Bembom
Public Law and Legal Theory Working Papers
The FDA employs an average-patient standard when reviewing drugs: it approves a drug only if is safe and effective for the average patient in a clinical trial. It is common, however, for patients to respond differently to a drug. Therefore, the average-patient standard can reject a drug that benefits certain patient subgroups (false negative) and even approval a drug that harms other patient subgroups (false positives). These errors increase the cost of drug development – and thus health care – by wasting research on unproductive or unapproved drugs. The reason why the FDA sticks with an average patient standard is …
Regulation For The Sake Of Appearance, Adam M. Samaha
Regulation For The Sake Of Appearance, Adam M. Samaha
Public Law and Legal Theory Working Papers
Appearance is often given as a justification for decisions, including government decisions, but the logic of appearance arguments is not well theorized. This Article develops a framework for understanding and evaluating appearance-based justifications for government decisions. First, working definitions are offered to distinguish appearance from reality. Next, certain relationships between appearance and reality are singled out for attention. Sometimes reality is insulated from appearance, sometimes appearance helps drive reality over time, and sometimes appearance and reality collapse from the outset. Finally, sets of normative questions are suggested based on the supposed relationship between appearance and reality for a given situation. …
Talk About Talking About Constitutional Law, Adam M. Samaha
Talk About Talking About Constitutional Law, Adam M. Samaha
Public Law and Legal Theory Working Papers
Constitutional theory branches into decision theory and discourse theory. The former concentrates on how constitutional decisions are or should be made, the latter on how constitutional issues are or should be discussed. For its part, originalism began as a method for resolving constitutional disagreement but it has migrated into discourse theory, as well. Jack Balkin’s “living originalism” illustrates the move. This essay examines inclusive versions of originalism like Balkin’s that permit many different answers to constitutional questions. The essay then suggests pathologies associated with loose constitutional discourse in general. For instance, a large domain for constitutional discourse can crowd out …
A Critical Look At A Critical Look – Reply To Sanchirico, Joseph Bankman, David A. Weisbach
A Critical Look At A Critical Look – Reply To Sanchirico, Joseph Bankman, David A. Weisbach
Coase-Sandor Working Paper Series in Law and Economics
This paper responds to claims made by Chris Sanchirico in his paper, A Critical Look at the Economic Argument for Taxing only Labor Income. His paper, in part, criticizes the claims we made in "The Superiority of an Ideal Consumption Tax Over an Ideal Income Tax, 58 Stan. L. Rev. 1413 (2006). We show that he makes at least three critical mistakes. First, he systematically confuses a Haig-Simons tax with tax systems that have small positive or negative taxes on capital. Arguments for taxes on capital are not the same as arguments for a Haig-Simons income tax. Second, he argues …
Delegation In Immigration Law, Eric A. Posner, Adam B. Cox
Delegation In Immigration Law, Eric A. Posner, Adam B. Cox
Coase-Sandor Working Paper Series in Law and Economics
Immigration law both screens migrants and regulates the behavior of migrants after they have arrived. Both activities are information-intensive because the migrant's "type" and the migrant's post-arrival activity are often forms of private information that are not immediately accessible to government agents. To overcome this information problem, the national government can delegate the screening and regulation functions. American immigration law, for example, delegates extensive authority to both private entities—paradigmatically, employers and families—and to the fifty states. From the government's perspective, delegation carries with it benefits and costs. On the benefit side, agents frequently have easy access to information about the …
Pay For Regulator Performance, M. Todd Henderson, Frederick Tung
Pay For Regulator Performance, M. Todd Henderson, Frederick Tung
Coase-Sandor Working Paper Series in Law and Economics
Few doubt that executive compensation arrangements encouraged the excessive risk taking by banks that led to the recent Financial Crisis. Accordingly, academics and lawmakers have called for the reform of banker pay practices. In this Article, we argue that regulator pay is to blame as well, and that fixing it may be easier and more effective than reforming banker pay. Regulatory failures during the Financial Crisis resulted at least in part from a lack of sufficient incentives for examiners to act aggressively to prevent excessive risk. Bank regulators are rarely paid for performance, and in atypical cases involving performance bonus …
Deference To The Executive In The United States After 9/11: Congress, The Courts, And The Office Of Legal Counsel, Eric A. Posner
Deference To The Executive In The United States After 9/11: Congress, The Courts, And The Office Of Legal Counsel, Eric A. Posner
Public Law and Legal Theory Working Papers
The deference thesis is that Congress and the judiciary should defer to the executive’s policy judgments during national emergencies. A recent criticism of the deference theory draws on the analogy of the emergency room medical protocol to argue that emergencies call for rule-bound constraint of the executive rather than deference to it. However, this criticism rests on a misunderstanding of the tradeoff between rules and standards. Some scholars who have despaired of congressional or judicial constraint of the executive, but believe that some sort of constraint is desirable, have suggested that the executive’s own legal adviser, the Office of Legal …
Comparative Constitutional Law: Introduction, Tom Ginsburg, Rosalind Dixon
Comparative Constitutional Law: Introduction, Tom Ginsburg, Rosalind Dixon
Public Law and Legal Theory Working Papers
Comparative constitutional law is a newly energized field in the early 21st century. Never before has the field had such a broad range of interdisciplinary interest, with lawyers, political scientists, sociologists and even economists making contributions to our collective understanding of how constitutions are formed and how they operate. Never before has there been such demand from courts, lawyers and constitution-makers in a wide range of countries for comparative legal analysis. And never before has the field been so institutionalized, with new regional and international associations providing fora for the exchange of ideas and the organization of collaborative projects. This …
Delegation In Immigration Law, Eric A. Posner, Adam B. Cox
Delegation In Immigration Law, Eric A. Posner, Adam B. Cox
Public Law and Legal Theory Working Papers
Immigration law both screens migrants and regulates the behavior of migrants after they have arrived. Both activities are information-intensive because the migrant’s “type” and the migrant’s post-arrival activity are often forms of private information that are not immediately accessible to government agents. To overcome this information problem, the national government can delegate the screening and regulation functions. American immigration law, for example, delegates extensive authority to both private entities—paradigmatically, employers and families—and to the fifty states. From the government’s perspective, delegation carries with it benefits and costs. On the benefit side, agents frequently have easy access to information about the …
Latin American Presidentialism In Comparative And Historical Perspective, Jose Antonio Cheibub, Zachary Elkins, Tom Ginsburg
Latin American Presidentialism In Comparative And Historical Perspective, Jose Antonio Cheibub, Zachary Elkins, Tom Ginsburg
Public Law and Legal Theory Working Papers
No abstract provided.
Fantasies And Illusions: On Liberty, Order, And Free Markets, Bernard E. Harcourt
Fantasies And Illusions: On Liberty, Order, And Free Markets, Bernard E. Harcourt
Articles
No abstract provided.
The Ftc’S Proposal For Regulationg Ip Through Ssos Would Replace Private Coordination With Government Holdups, Daniel F. Spulber, F. Scott Kieff, Richard A. Epstein
The Ftc’S Proposal For Regulationg Ip Through Ssos Would Replace Private Coordination With Government Holdups, Daniel F. Spulber, F. Scott Kieff, Richard A. Epstein
Coase-Sandor Working Paper Series in Law and Economics
In its recent report entitled "The Evolving IP Marketplace," the Federal Trade Commission (FTC) advances a far-reaching regulatory approach (Proposal) whose likely effect would be to distort the operation of the intellectual property (IP) marketplace in ways that will hamper the innovation and commercialization of new technologies. The gist of the FTC Proposal is to rely on highly non-standard and misguided definitions of economic terms of art such as "ex ante" and "hold-up," while urging new inefficient rules for calculating damages for patent infringement. Stripped of the technicalities, the FTC Proposal would so reduce the costs of infringement by downstream …
Better Mistakes In Patent Law, Andres Sawicki
Better Mistakes In Patent Law, Andres Sawicki
Coase-Sandor Working Paper Series in Law and Economics
This Article analyzes patent mistakes—that is, mistakes made by the patent system when it decides whether a particular invention has met the patentability requirements. These mistakes are inevitable. Given resource constraints, some might even be desirable. This Article evaluates the relative costs of patent mistakes, so that we can make better ones. Three characteristics drive the costs of mistakes: their type (false positive or false negative), timing (early or late), and doctrinal basis (utility, novelty, nonobviousness, and so on). These characteristics make some mistakes more troubling than others. Consider, for example, the disclosure rules, which require that a patent reveal …
Hybrid Judicial Career Structures: Reputation V. Legal Tradition, Nuno Garoupa, Tom Ginsburg
Hybrid Judicial Career Structures: Reputation V. Legal Tradition, Nuno Garoupa, Tom Ginsburg
Coase-Sandor Working Paper Series in Law and Economics
Scholars have distinguished career from recognition judiciaries, largely arguing that they reflect different legal cultures and traditions. We start by noting that the career/recognition distinction does not correspond perfectly to the civil law/common law distinction, but rather that there are pockets of each institutional structure within regimes that are dominated by the other type. We discuss the causes and implications of this phenomenon, arguing that institutional structure is better explained through a theory of judicial reputation/legitimacy than through a theory of legal origin or tradition. We provide some preliminary empirical support for our account.
Regulation, Unemployment, And Cost-Benefit Analysis, Eric A. Posner, Jonathan Masur
Regulation, Unemployment, And Cost-Benefit Analysis, Eric A. Posner, Jonathan Masur
Coase-Sandor Working Paper Series in Law and Economics
Regulatory agencies take account of the potential unemployment effects of proposed regulations in an ad hoc, theoretically incorrect way. Current practice is to conduct feasibility analysis, under which the agency predicts the unemployment effects of a proposed regulation, and then declines to regulate (or weakens the proposed regulation) if the unemployment effects exceed an unarticulated threshold, that is, seem "too high." Agencies do not reveal the threshold, do not explain why certain unemployment effects are excessive, and do not explain how they compare unemployment effects and the net benefits of the regulation. Many agencies also predict unemployment effects incorrectly. The …