Law Commons^™

Procedural Flexibility In Three Dimensions, Ronen Avraham, William Hubbard, Itay E. Lipschits

Coase-Sandor Working Paper Series in Law and Economics

No abstract provided.

Political Discrimination In The Law Review Selection Process, Adam S. Chilton, Jonathan Masur, Kyle Rozema

Coase-Sandor Working Paper Series in Law and Economics

No abstract provided.

Norming In Administrative Law, Jonathan Masur, Eric A. Posner

Coase-Sandor Working Paper Series in Law and Economics

No abstract provided.

Stalling, Conflict, And Settlement, William Hubbard

Coase-Sandor Working Paper Series in Law and Economics

No abstract provided.

Does The Priest And Klein Model Travel? Testing Litigation Selection Hypotheses With Foreign Court Data, Yun-Chien Chang, William Hubbard

Coase-Sandor Working Paper Series in Law and Economics

No abstract provided.

Stock Market Reactions To India's 2016 Demonetization: Implications For Tax Evasion, Corruption, And Financial Constraints, Dhammika Dharmapala, Vikramaditya S. Khanna

Coase-Sandor Working Paper Series in Law and Economics

No abstract provided.

Decisionmaking On Multimember Courts: The Assignment Power In The Circuits, Daniel Hemel, Kyle Rozema

Coase-Sandor Working Paper Series in Law and Economics

No abstract provided.

Sexual Harassment And Corporate Law, Daniel Hemel, Dorothy Shapiro Lund

Coase-Sandor Working Paper Series in Law and Economics

The year 2017 marked an inflection point in the evolution of social norms regarding sexual harassment. While victims of workplace harassment had long suffered in silence, the surfacing of serious sexual misconduct allegations against Hollywood producer Harvey Weinstein encouraged many more victims to tell their personal stories of abuse. These scandals have spread beyond Hollywood to the rest of corporate America, leading to the departures of several high-profile executives as well as sharp stock price declines at a number of firms. In the past year, shareholders at four publicly traded companies have filed lawsuits alleging that corporate directors and officers …

The Bankruptcy Partition, Douglas G. Baird, Anthony Casey, Randal C. Picker

Coase-Sandor Working Paper Series in Law and Economics

Many current bankruptcy debates—from critical vendor orders to the Supreme Court’s decision last year in Czyzewski v. Jevic Holding Corporation—begin with bankruptcy’s distributional rules and questions about how much discretion a judge should have in applying them. It is a mistake, however, to focus on distributional questions without first identifying the bankruptcy partition and ensuring it is properly policed. What appear to be distributional disputes are more often debates about the demarcation of the bankruptcy partition and the best way to police it.

Once the dynamics of establishing and policing the bankruptcy partition are taken into account, there is little …

Collective Bargaining Rights And Police Misconduct: Evidence From Florida, Dhammika Dharmapala, Richard H. Mcadams, John Rappaport

Coase-Sandor Working Paper Series in Law and Economics

No abstract provided.

Who Conducts Oversight? Bill-Writers, Lifers, And Nail-Biters, Brian D. Feinstein

Coase-Sandor Working Paper Series in Law and Economics

The landmark Legislative Reorganization Act of 1946 charges Congress, through its standing committees, to “exercise continuous watchfulness” over the executive branch. Yet, committees differ markedly in their performance of this responsibility; the modal House committee does not convene oversight hearings in the typical year, while other committees holds dozens of hearings. This Article compares the characteristics of committee chairs that pursue oversight vigorously with those that do not. Surprisingly, I find that chairs’ previous prosecutorial or other legal experience has no discernable connection with oversight activity. Instead, committees that engage in frequent oversight tend to be chaired by productive lawmakers …

Antitrust Remedies For Labor Market Power, Suresh Naidu, Eric A. Posner, E. Glen Weyl

Coase-Sandor Working Paper Series in Law and Economics

Recent research indicates that labor market power has contributed to wage inequality and economic stagnation. Although the antitrust laws prohibit firms from restricting competition in labor markets like in product markets, the government does little to address the labor market problem and private litigation has been rare and mostly unsuccessful. The reason is that the analytic methods for evaluating labor market power in antitrust contexts are primitive, far less sophisticated than the legal rules used to judge product market power. To remedy this asymmetry, we propose methods for judging the effects of mergers on labor markets. We also extend our …

Appendix To 'The Marginal Revenue Rule In Cost-Benefit Analysis', Daniel Hemel, Jennifer Nou, David A. Weisbach

Coase-Sandor Working Paper Series in Law and Economics

No abstract provided.

Innovation Policy Pluralism, Daniel Hemel, Lisa Larrimore Ouellette

Coase-Sandor Working Paper Series in Law and Economics

When lawyers and scholars speak of “intellectual property,” they are generally referring to a combination of two distinct elements: an innovation incentive that promises a market based reward to producers of knowledge goods, and an allocation mechanism that makes access to knowledge goods conditional upon payment of a proprietary price. Distinguishing these two elements clarifies ongoing debates about intellectual property and opens up new possibilities for innovation policy. Once intellectual property is disaggregated into its core components, each element can be combined synergistically with non-IP innovation incentives such as prizes, tax preferences, and direct spending on grants and government research, …

Judging Judicial Foreclosure, Brian D. Feinstein

Coase-Sandor Working Paper Series in Law and Economics

For the third time in the last several decades, policymakers are contemplating an overhaul of mortgage-finance regulations. Despite the considerable attention paid to how ex ante regulations affect the availability of credit and the appropriateness of the mortgage products that lenders offer, however, our understanding of how the legal framework governing foreclosures---a form of ex post borrower protection---affects mortgage lending is incomplete. Leveraging data on loan applicants that are geographically proximate and subject to the same federal mortgage-finance regulations and nearly identical state foreclosure regimes---but for the presence or absence of a judicial foreclosure requirement---this analysis enables the identification of …

Limited Inalienability Rules, Ariel Porat, Stephen D. Sugarman

Coase-Sandor Working Paper Series in Law and Economics

Most people’s entitlements are protected by a property rule, which means that their holders can sell them for a price. But some important entitlements are protected by an inalienability rule, and hence cannot be sold under any circumstances. For example, people cannot sell their organs. In most jurisdictions, women cannot be surrogate mothers for a fee (only for reimbursement of costs). People cannot sell their right not to be exposed to highly life-threatening conditions. Most constitutional rights are not transferrable. People cannot reassign their legal entitlements to social benefits provided by the government. Tort victims in many jurisdictions cannot sell …

Patents, Property, And Prospectivity, Jonathan Masur, Adam Mortara

Coase-Sandor Working Paper Series in Law and Economics

When judges change the legal rules governing patents, those changes are always retroactive. That is, they apply equally to patents that have already been granted and patents that do not yet exist. There are benefits to making a change in the law retroactive, particularly if the new legal rule is an improvement over what preceded it. But there are costs as well. Retroactive changes in the law upset reliance interests. This can be particularly harmful when those reliance interests involve rights or entitlements that form the basis for substantial financial investment, as is often the case with patents. What is …

States And Localities Can Offset Federal Tax Law's Impact On Their Residents, Daniel Hemel

Coase-Sandor Working Paper Series in Law and Economics

Recently enacted federal tax reform expands the standard deduction while limiting the deduction for state and local taxes. Many households will now be paying nondeductable state and local taxes, and may well resist state and local efforts to increase taxes for schools, hospitals, and other public services. In this article, Assistant Professor Daniel Hemel of the University of Chicago Law School discusses these issues and options for states and localities to offset the impact of federal tax reform.

Data Pollution, Omri Ben-Shahar

Coase-Sandor Working Paper Series in Law and Economics

Digital information is the fuel of the new economy.But like the old economy’s carbon fuel, it also pollutes. Harmful “data emissions” are leaked into the digital ecosystem, disrupting social institutions and public interests. This article develops a novel framework—data pollution— to rethink the harms the data economy creates and the way they have to be regulated. It argues that social intervention should focus on the external harms from collection and misuse of personal data. The article challenges the hegemony of the prevailing view—that the injuries from digital data enterprise are exclusively private. That view has led lawmakers to focus solely …

Personalizing Mandatory Rules In Contract Law, Omri Ben-Shahar, Ariel Porat

Coase-Sandor Working Paper Series in Law and Economics

Mandatory rules provide people protections they might otherwise fail to secure in their contracts. Because people vary in the degree of protection they need and the cost of protection they can afford, one-size-fits-all rules are too weak for some and too strong for others. This Essay examines the case for personalized mandatory protections. With the increasing availability of information about consumers, the law may soon be able to tailor mandatory protections that vary with each individual’s characteristics. We show that personalized protections increase the overall contractual surplus and prompt more people to enter into contracts. It eliminates cross-subsidies within a …

Contract Governance In Small World Networks: The Case Of The Maghribi Traders, Lisa Bernstein

Coase-Sandor Working Paper Series in Law and Economics

This Article revisits the best known example of successful private ordering in the economics literature: the Maghribi Jewish merchants who engaged in both local and long-distance trade across the Islamic Mediterranean in the eleventh century. Drawing on a case study of over 200 Maghribi merchant letters, it develops a network governance-based account of the way that private ordering might have supported exchange among the Maghribi traders with little or no reliance on the public legal system. The analysis reveals that a particular type of bridge-and-cluster configuration of ties among traders and trading centers--known as a “small-world network”—can have strong reputation-based …

New Empirical Tests For Classic Litigation Selection Models, Yun-Chien Chang, William H.J. Hubbard

Coase-Sandor Working Paper Series in Law and Economics

Law and economics theorists have long advanced theories of litigation and settlement, including the canonical Landes-Posner-Gould (LPG) and Priest and Klein (PK) models. Famously, PK predict that, as settlement rates rise, plaintiff win rates approach 50%. Empiricists have tested this and other predictions from the theoretical literature, finding qualified support for the PK model. So far, though, empirical testing of these models has been hampered by two major limitations: First, these models make clear predictions about the effect of case stakes on settlement rates and plaintiff win rates, but lack of reliable data on stakes means these predictions have gone …

Regulatory Bundling, Jennifer Nou, Edward H. Stiglitz

Coase-Sandor Working Paper Series in Law and Economics

Regulatory bundling is the aggregation or disaggregation of legislative rules by administrative agencies. Agencies, in other words, can bundle what would otherwise be multiple rules into just one rulemaking. Conversely, they can split one rule into several. This observation parallels other recent work on how agencies can aggregate adjudications and enforcement actions but now focuses on legislative rules, the most consequential form of agency action. The topic is timely in light of a recent executive order directing agencies to repeal two regulations for every new one promulgated. Agencies now have a greater incentive to pack regulatory provisions together for every …

Torts And Restitution: Legal Divergence And Economic Convergence, Robert D. Cooter, Ariel Porat

Coase-Sandor Working Paper Series in Law and Economics

This Article explores the divergence in law and convergence in economics in dealing with harms and benefits. While tort law usually makes the injurer internalize wrongful harms through damages, restitution law does not enable the benefactor to internalize the benefits she confers on others without their request. In both harm and benefit cases, however, internalization seems to make economic sense for the same reason: injurers and benefactors alike will behave efficiently if they internalize the externalities that they create. The Article’s main goal is to develop eight liability rules for harm and benefit cases and to point out the symmetry …

Personalizing Precommitment, Lee Anne Fennell

Coase-Sandor Working Paper Series in Law and Economics

This Essay examines the potential for law to facilitate tailored precommitments to help people address self-control problems. This flavor of personalized law is unique in that it is voluntarily chosen and self-administered. There are practical and normative limits on the degree to which people can bind themselves in ways that they cannot later escape, but law can offer mechanisms that would help people design and implement flexible precommitments. Research suggests two potential lines for innovation. First, partitioning access to resources may constrain consumption in contexts from dieting to saving, even when the partitions can be unilaterally broken. Second, the chunkiness …

Assessing The Empirical Upside Of Personalized Criminal Procedure, Matthew B. Kugler, Lior Jacob Strahilevitz

Coase-Sandor Working Paper Series in Law and Economics

Though personalization of law is often viewed as a new idea, pockets of criminal procedure already tolerate it. Many courts have held that Miranda warnings must be tailored when read to juveniles or people with limited English proficiency; a suspect’s age is necessarily part of the judicial calculus when determining whether the police’s questioning of her is a custodial interrogation; and some state courts consider a person’s demographic characteristics when deciding whether they have consented to a search. The question before us now is whether society should go further. Should the law of criminal procedure pay more attention to individual …

A Regulatory Classification Of Digital Assets: Toward An Operational Howey Test For Cryptocurrencies, Icos, And Other Digital Assets, M. Todd Henderson, Max Raskin

Coase-Sandor Working Paper Series in Law and Economics

Digital assets are hot right now. Whether cryptocurrencies, like bitcoin, or initial coin offerings and tokens, this new asset class has captured the imagination of American investors. While it remains to be seen if this phenomenon has staying power, there is no doubt that these assets and their promoters have attracted the attention of the Securities and Exchange Commission. But neither Congress nor the SEC has formally elucidated which digital assets are securities and which are not.

This Article seeks to provide clarity in determining which digital assets are securities. It proposes two tests that operationalize the Supreme Court’s test …

The Spectrum Of Procedural Flexibility, Ronen Avraham, William H.J. Hubbard

Coase-Sandor Working Paper Series in Law and Economics

Sometimes the rules let you change the rules. In civil procedure, many rules are famously rigid—for example, neither the parties nor the judge can stipulate to subject matter jurisdiction—but closer inspection yields many ways that judges or parties (individually or by agreement) can change procedural defaults, such as the number of depositions, trial by judge or jury, or sometimes even jurisdiction. Whether the judge or parties have “flexibility” to change the rules of the game is an important, but understudied, aspect of procedure.

This Article is the first to document the full spectrum of procedural flexibility— the varied and sometimes …