Law Commons^™

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

Public Law and Legal Theory Working Papers

No abstract provided.

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

Public Law and Legal Theory Working Papers

No abstract provided.

Personalizing Precommitment, Lee Anne Fennell

Public Law and Legal Theory Working Papers

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 …

Legal Or Political Checks On Apex Criminality: An Essay On Constitutional Design, Aziz Z. Huq

Public Law and Legal Theory Working Papers

How should constitutional designers address the problem of apex criminality, or criminal actions by those elected or appointed to high positions in a national government? I offer three general observations about this difficult question of constitutional design. First, it is not at all clear that a constitutional designer ought to expend effort on creating accountability mechanisms to address apex criminality. Second, if a designer does choose to address the question, she must opt between two highly imperfect options—a ‘legal’ mechanism embedded in a nonpartisan body such as a prosecutor’s office, or a ‘political’ mechanism, which runs through an elected body …

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

Public Law and Legal Theory Working Papers

No abstract provided.

The Dance Of Partisanship And Districting, Nicholas O. Stephanopoulos

Public Law and Legal Theory Working Papers

Academic studies of redistricting tend to be either doctrinal or empirical, but not both. As a result, the literature overlooks some of the most important aspects of the mapmaking process and its judicial supervision, like how they relate to the broader American political context. In this Article, I try to fill this gap. I first observe that the half-century in which federal courts have decided redistricting cases can be divided into two periods: one lasting from the 1960s to the 1980s, in which voters and politicians were both comparatively nonpartisan; and another reaching from the 1990s to the present day, …

Regulatory Bundling, Jennifer Nou, Edward H. Stiglitz

Public Law and Legal Theory Working Papers

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 …

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

Public Law and Legal Theory Working Papers

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 …

The Consequences Of The Tcja's International Provisions: Lessons From Existing Research, Dhammika Dharmapala

Public Law and Legal Theory Working Papers

This paper discusses the potential consequences of the international tax provisions of the recent Tax Cut and Jobs Act (TCJA), drawing on existing research. The TCJA’s dividend exemption provision is expected to eliminate distortions to the amount and timing of dividend repatriations. However, the efficiency gains from increased repatriations – which are primarily expected to increase shareholder payout – are likely to be modest. The paper uses the observed behavior of firms during the repatriation tax holiday implemented in 2005 to infer the relative magnitudes of the burdens created by the repatriation tax under the old (pre-TCJA) regime and by …

Accountability Claims In Constitutional Law, Nicholas Stephanopoulos

Public Law and Legal Theory Working Papers

Several of the Supreme Court’s most controversial constitutional doctrines hinge on claims about electoral accountability. Restrictions on the President’s power to remove agency heads are disfavored because they reduce the President’s accountability for agency actions. Congress cannot delegate certain decisions to agencies because then Congress is less accountable for those choices. State governments cannot be federally commandeered because such conscription lessens their accountability. And campaign spending must be unregulated so that more information reaches voters and helps them to reward or punish incumbents for their performances.

There is just one problem with these claims. They are wrong—at least for the …

Sexual Harassment And Corporate Law, Daniel Hemel, Dorothy S. Lund

Public Law and Legal Theory Working Papers

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 …

Article Ii And Antidiscrimination Norms, Aziz Z. Huq

Public Law and Legal Theory Working Papers

The Supreme Court’s judgment in Trump v. Hawai’i validated a prohibition on entry to the United States from several largely Muslim-majority countries, and at the same time repudiated a longstanding precedent associated with the Japanese-American internment of World War II. This Article closely analyzes the relationship of these twin holdings. It uses their dichotomous valances as a lens onto the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a generative tension between the two holdings. Contrary to …

The Measure Of A Metric: The Debate Over Quantifying Partisan Gerrymandering, Nicholas Stephanopoulos, Eric Mcghee

Public Law and Legal Theory Working Papers

Over the last few years, there has been an unprecedented outpouring of scholarship on partisan gerrymandering. Much of this work has sought either to introduce new measures of gerrymandering or to analyze a metric—the efficiency gap— that we previously developed. In this Essay, we reframe the debate by presenting a series of criteria that can be used to evaluate gerrymandering metrics: (1) consistency with the efficiency principle; (2) distinctness from other electoral values; (3) breadth of scope; and (4) correspondence with U.S. electoral history. We then apply these criteria to both the efficiency gap and other measures. The efficiency gap …

Statutory Interpretation On The Bench: A Survey Of Forty-Two Judges On The Federal Courts Of Appeals, Abbe R. Gluck, Richard A. Posner

Public Law and Legal Theory Working Papers

This Article reports the results of a survey of a diverse group of forty-two federal appellate judges concerning their approaches to statutory interpretation. The study reveals important differences between their approaches and the approach that the Supreme Court purports to take. It also helps to substantiate the irrelevance of the enduring, but now-boring, textualism-versus-purposivism debate. None of the judges we interviewed was willing to associate himself or herself with “textualism” without qualification. All consult legislative history. Most eschew dictionaries. All utilize at least some canons of construction, but for reasons that range from “window dressing,” to the use of canons …

Disagreement, Anti-Realism About Reasons, And Inference To The Best Explanation, Brian Leiter

Public Law and Legal Theory Working Papers

No abstract provided.

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

Public Law and Legal Theory Working Papers

Growing controversy surrounds the impact of labor unions on law enforcement behavior. Critics argue that unions impede organizational reform and insulate officers from discipline for misconduct. Yet collective bargaining tends to increase wages, which could improve officer behavior. We provide quasi-experimental empirical evidence on the effects of collective bargaining rights on violent incidents of misconduct. Our empirical strategy exploits a 2003 Florida Supreme Court decision (Williams), which conferred collective bargaining rights on sheriffs’ deputies, resulting in a substantial increase in unionization among these officers. Using a Florida state administrative database of “moral character” violations reported by local agencies between 1996 …

Police Violence In The Wire, Jonathan Masur, Richard H. Mcadams

Public Law and Legal Theory Working Papers

Police brutality—the unsanctioned, unlawful use of force by police against unarmed (and often defenseless) civilians—is one of the recurring motifs of The Wire.¹ The violence occurs in a variety of settings: occasionally the victim of the police brutality has done something to precipitate it (though the brutality is never justified), but more often the violence is unprovoked and senseless. Some police are one-time wrongdoers; others are repeat offenders. Some officers participate in the actual beatings, while others only cover up for the actions of their fellow officers. But in sum, the violence is regular and recurring, if not omnipresent. …

Fourth Amendment Gloss, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Conventional wisdom suggests that a constitutional right will constrain government actors. But a right defined in terms of what the state routinely does would impose in practice no brake on state action—and so seem pointless. Nevertheless, in defining Fourth Amendment rights, the Supreme Court frequently draws on the practice of regulated government actors to define the constitutional floor for police action. This Article is the first to isolate and analyze this seemingly paradoxical judicial practice. It labels it “Fourth Amendment gloss,” after an analogous mode of reasoning in separation-of-powers cases. The Article’s first aim is descriptive—to catalog the various ways …

Innovation Policy Pluralism, Daniel J. Hemel, Lisa Larrimore Ouellette

Public Law and Legal Theory Working Papers

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 marketbased 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, or …

Congress In The Administrative State, Brian D. Feinstein

Public Law and Legal Theory Working Papers

In an era of increased concern over presidential power, congressional oversight of the executive branch constitutes a substantial—but underappreciated—means of influencing agency decision-making. Scholars too often have overlooked it, and Congress is sub-optimally designed for its provision, but oversight has a significant impact on agency behavior

This Article provides a corrective. It presents the legal mechanisms that give oversight hearings their force and situates these hearings in their historical and legal context. In light of this framework and historical practice, the Article posits that ex post oversight hearings facilitate political control over the administrative state. Because oversight gets its bite …

Gender Discrimination In Online Markets, Christopher Anthony Cotropia, Jonathan Masur, David L. Schwartz

Public Law and Legal Theory Working Papers

We study whether a seller’s gender impacts the bargained-for price in a product market, specifically baseball cards, as well whether any discrimination that might be present is taste-based or statistically-based. We accomplish this by isolating the seller’s gender using an online transaction on eBay where the buyer is exposed to the seller’s gender by only the seller’s hand and name. We test for differential treatment in two environments: a field experiment, in which we actually sell cards on eBay, and a laboratory experiment, in which we conduct surveys via Amazon Mechanical Turk (MTurk). We find that there is consistent differential …

Limited Inalienability Rules, Ariel Porat, Stephen D. Sugarman

Public Law and Legal Theory Working Papers

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 …

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

Public Law and Legal Theory Working Papers

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 …

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

Public Law and Legal Theory Working Papers

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 …

Data Pollution, Omri Ben-Shahar

Public Law and Legal Theory Working Papers

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 …

Gender Discrimination In Online Markets, Christopher Anthony Cotropia, Jonathan S. Masur, David L. Schwartz

Public Law and Legal Theory Working Papers

We study whether a seller’s gender impacts the bargained-for price in a product market, specifically baseball cards, as well whether any discrimination that might be present is tastebased or statistically-based. We accomplish this by isolating the seller’s gender using an online transaction on eBay where the buyer is exposed to the seller’s gender by only the seller’s hand and name. We test for differential treatment in two environments: a field experiment, in which we actually sell cards on eBay, and a laboratory experiment, in which we conduct surveys via Amazon Mechanical Turk (MTurk). We find that there is consistent differential …

The Cross-Examination Of Mayella Ewell, Richard H. Mcadams

Public Law and Legal Theory Working Papers

No abstract provided.

Criminal Justice, Inc., John Rappaport

Public Law and Legal Theory Working Papers

In the past decade, major retailers nationwide have begun to employ a private, for-profit system to settle criminal disputes, extracting payment from shoplifting suspects in exchange for a promise not to call the police. This Article examines what retailers’ decisions reveal about our public system of criminal justice and the concerns of the agents who run it, the victims who rely on it, and the suspects whose lives it alters. The private policing of commercial spaces is well known, as is private incarceration of convicted offenders. This Article is the first, however, to document how industry has penetrated new parts …

Personalizing Mandatory Rules In Contract Law, Omri Ben-Shahar

Public Law and Legal Theory Working Papers

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 …

The Tax Legislative Process: A Byrd's Eye View, Ellen P. Aprill, Daniel J. Hemel

Public Law and Legal Theory Working Papers

The year 2017 was, among other distinctions, the year of the Byrd rule. This once-obscure Senate procedural provision—on the books since 1985 but only recently the stuff of page one news¹ — featured prominently in several failed attempts to repeal the Affordable Care Act in the spring and summer. Then again at year’s end, the Byrd rule played a central role in the successful effort to rewrite large swaths of the Internal Revenue Code. While the Byrd rule has influenced the legislative process in the past, never before has it drawn so much attention from the mainstream and trade …