Law Commons^™

Regulatory Trading, David A. Weisbach

Coase-Sandor Institute for Law & Economics Research Paper Series

Regulatory trading systems, such as the SO2 cap and trade system, are ubiquitous in environmental and natural resources law. In addition to cap and trade systems for pollutants such as SO2, NOx and CO2 , environmental and natural resources law uses trading in areas such as endangered species, water quality, wetlands, vehicle mileage, and forestry and farming practices. Trading, however, is rarely used as a regulatory approach in other areas of law. This paper seeks to identify the reasons for this dichotomy. To understand the dichotomy, the paper examines the uses of trading in environmental and natural resources law, where …

The Corporate Governance Of Public Utilities, Aneil Kovvali, Joshua A. Macey

Coase-Sandor Institute for Law & Economics Research Paper Series

Rate regulated public utilities own and operate one-third of U.S generators and nearly all the transmission and distribution system. These firms receive special regulatory treatment because they are protected from competition and subject to rate caps. In the past decade, they also have been at the center of high-profile corporate scandals. They have bribed regulators to secure subsidies for coal-fired generators and nuclear reactors. They have caused wildfires and coal ash spills that resulted in hundreds of deaths and billions of dollars in liability. Their failure to maintain reliable electric service has contributed to catastrophic blackouts. Perhaps most consequentially, they …

Residents Against Housing, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

Incumbent residents routinely oppose residential development.¹ Interestingly, this is true of both homeowners and renters, if for opposite reasons. Homeowners typically worry that new housing will cause the market value of their own homes to fall, resulting in a hit to what is usually a house-heavy personal wealth portfolio.² Tenants typically worry that new housing will cause the market value of their own homes to rise, generating pressure toward higher rents and displacement.³ Both homeowners and tenants also express concern that new housing development will change the character of their neighborhoods in unwanted ways.⁴

Resident opposition …

Expecting Corporate Prosociality, Hajin Kim

Coase-Sandor Institute for Law & Economics Research Paper Series

Teaching people that corporations must exclusively maximize profits can reduce “win-wins”—what is both profitable and good for society. If everyone believes that corporations must maximize profits only, nobody will protest when corporate pursuits of profits harm society—the firms were fulfilling their duty and meeting investor and consumer expectations. But what if people instead believed that corporations should consider their social impacts, even sometimes at the expense of profits? Consumers, employees, and investors might be more willing to object to corporate harms by changing their purchasing, job choice, and investing behaviors or by petitioning corporate leaders for redress. Those objections would …

Duplicative Taxation Among The States: A Problem Not Worth Solving?, Julie Roin

Coase-Sandor Institute for Law & Economics Research Paper Series

Recent legal and economic changes—not to mention the rise in telecommuting caused by COVID--have raised the salience of a long-simmering fact about the operation of state and local income tax systems: some multistate employers and employees pay a combined income tax liability that is higher than the tax they would have borne had they operated in just one jurisdiction. Seemingly beyond the reach of the courts to correct, there have been persistent calls for Congressional action to eliminate or reduce this “duplicative” taxation. This Article suggests that the alleged problem may be both less of a problem, and more resistant …

Climate Change Policy In The International Context: Solving The Carbon Leakage Problem, David A. Weisbach, Samuel S. Kortum

Coase-Sandor Institute for Law & Economics Research Paper Series

Under the Paris Agreement, nations set their own emissions goals and policies. As a result, climate policies vary widely across countries, with some countries imposing stringent emissions policies and others doing very little. A key problem when carbon policies vary across countries is that energy-intensive industries can relocate to places with few or no emissions restriction. Relocated industries would continue to pollute but would be operating in a less desirable location. Moreover, the countries that imposed strict emissions reductions lose the benefit of having those industries located domestically. This problem, known as leakage, is one of the key reasons the …

Against Anti-Tax Exceptionalism, David A. Weisbach

Coase-Sandor Institute for Law & Economics Research Paper Series

This paper examines the arguments found in what has become known as the anti-tax exceptionalism literature. That literature seeks to apply the rules of administrative law to tax procedures. The core claim is that the procedures used by the Internal Revenue Service and the Treasury routinely violate the requirements of administrative law. Secondarily, that literature argues that this is normatively bad: the Treasury and Internal Revenue Service should not be treated differently from other administrative agencies because the tax system is not exceptional. Promoting the goals of administrative law, that literature argues, requires that the tax system conform to standard …

Distributing Deterrence Fairly: A New Rationale For Decoupling Tort Liability, H. Javier Kordi

Coase-Sandor Institute for Law & Economics Research Paper Series

Tort law faces a dilemma: how to adhere to a principle of make-whole compensation without entrenching social inequities. High-earning people receive greater compensation awards, resulting in an unequal distribution of deterrence. The deterrence disparity arises because injurers would rationally direct risky activity towards poorer victims to reduce liability costs; it persists even if race and gender classifications are barred from compensation. This Article offers a novel solution to the dilemma. It develops a decoupled liability regime under which injurers pay damages and are subject to standards of care that are invariant across individual victims, thus equalizing the distribution of deterrence. …

Does Esg Crowd Out Support For Government Regulation?, Hajin Kim, Joshua Macey, Kristen Underhill

Coase-Sandor Institute for Law & Economics Research Paper Series

Do voluntary corporate prosocial efforts reduce or amplify support for government regulation? We build a theory of opposing mechanisms. Voluntary efforts could make it seem like the problem is being fixed (“Coca-Cola is already tackling plastic waste!”) and thus that regulation is unnecessary. Or they could make the problem seem more important (“even Walmart is addressing this”) or regulation more feasible (“regulation will not impose excessive costs on industry”). Because these factors move in opposing directions, we posit that any crowding-in or crowding-out effects will be small and context-dependent. To test our theory, we ran two preregistered, randomized controlled studies …

Privacy Protection, At What Cost? Exploring The Regulatory Resistance To Data Technology In Auto Insurance, Omri Ben-Shahar

Coase-Sandor Institute for Law & Economics Research Paper Series

Regulatory and sociological resistance to new market-driven technologies, particularly to those that rely on collection and analysis of personal data, is prevalent even in cases where the technology creates large social value and saves lives. This article is a case study of such tragic technology resistance, focusing on tracking devices in cars which allow auto insurers to monitor how policyholders drive and adjust the premiums accordingly. Growing empirical work reveals that such “usage-based insurance” induces safer driving, reducing fatal accidents by almost one third, and resulting in more affordable and fair premiums. Yet, California prohibits this technology and other states …

Simplicity And Complexity In Law And In Markets, Saul Levmore

Coase-Sandor Institute for Law & Economics Research Paper Series

Richard Epstein’s Simple Rules for a Complex World1 is true to its title and to the author’s demonstrated genius over a long career. It is a libertarian-oriented enterprise in that it requires the reader to share in the belief that government programs are often wasteful and subject to unattractive interest group pressures and corrupt bureaucracies. More generally, Simple Rules is framed against a background in which the reader must share the libertarian view that individuals can and should be trusted to look after themselves and to make their own choices. Epstein likes “simple” rules; these include strict liability, a flat …

Timing The Regulatory Tightrope, Adriana Z. Robertson

Coase-Sandor Institute for Law & Economics Research Paper Series

Regulators face a hard problem. Novel products are developed and launched all the time. At first, regulators have very little information about the product, including its risks and benefits. Moving too quickly to impose regulations is therefore risky. And since the market for a nascent product is generally small, the benefits of regulation may also be small. It therefore makes sense to let the market develop a bit before taking action.

But waiting too long to intervene can also be perilous. Once enough time has passed, and the product becomes established, it can become extremely difficult to intervene. Now there …

How Progressive Is The U.S. Tax System?, Thomas Coleman, David A. Weisbach

Coase-Sandor Institute for Law & Economics Research Paper Series

We examine changes in tax progressivity over time. Because there are many possible definitions of progressivity and because methods of defining and allocating income vary, we look for results that are robust across studies and definitions of progressivity. To do this, we compare the results from three different publicly available datasets, those from Piketty, Saez, and Zucman (2018), Auten and Splinter (2023) and Congressional Budget Office (2023). Notwithstanding some headline results to the contrary, all three datasets show that the tax system has become more progressive and more redistributive over the last several decades, with much of that change occurring …

Cross-Border Influencers: Democracy And Externalities, Saul Levmore

Coase-Sandor Institute for Law & Economics Research Paper Series

The United States does not allow foreigners to influence U.S. elections by giving money to political parties or candidates, but many other countries do allow cross-border influencing. Indeed, the variety of policies among countries is remarkable. Some countries, like the United States, that forbid financial contributions from outside the country, do permit cross-border contributions across domestic borders, such as those of states and cities. Meanwhile, Canadians cannot contribute to the campaigns of U.S. political candidates, and cannot even (lawfully) influence the American political process by purchasing campaign t-shirts or bumper stickers. This prohibition is in place even though, like constituents …

Grid Reliability In The Electric Era, Joshua Macey, Shelley Welton, Hannah Wiseman

Coase-Sandor Institute for Law & Economics Research Paper Series

The United States has delegated the weighty responsibility of keeping the lights on to a self-regulatory organization called the North American Electric Reliability Corporation (NERC). Despite the fact that NERC is one of the largest and most important examples of industry-led governance—and regulates in an area that is central to our economy and basic human survival— this unusual institution has received scant attention from policymakers and scholars. Such attention is overdue. To achieve deep decarbonization, the United States must enter a new “electric era,” transitioning many sectors to run on electricity while also transforming the electricity system itself to run …

The Gender Of Gideon, Kathryn A. Sabbeth, Jessica Steinberg

Faculty Publications

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the U.S. Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. In this Article, we present original data analysis demonstrating that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches. The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests. As this Article …

Crimes Against Probate, Kevin Bennardo, Mark Glover

Faculty Publications

Policymakers have increasingly turned their attention to wrongdoing that affects wills, such as the forgery of wills, the procurement of wills through coercion or deceit, and the destruction or suppression of wills. In particular, they have attempted to deter this misconduct by punishing wrongdoers through new forms of criminal and civil liability. Because the United States is on the precipice of the largest intergenerational wealth transfer in history, a significant portion of which will take place through wills, these attempts of deterrence are well-intentioned. However, their implementation has been flawed.

These implementation difficulties stem from the fact that a will …

Understanding Uncontested Prosecutor Elections, Carissa Byrne Hessick, Sarah Treul, Alexander Love

Faculty Publications

Prosecutors are very powerful players in the criminal justice system. One of the few checks on their power is their periodic obligation to stand for election. But very few prosecutor elections are contested, and even fewer are competitive. As a result, voters are not able to hold prosecutors accountable for their decisions. The problem with uncontested elections has been widely recognized, but little understood. The legal literature has lamented the lack of choice for voters, but any suggested solutions have been based on only anecdote or simple descriptive analyses of election data.

Using a logistic regression analysis, this Article estimates …

Pregnancy Advance Directives, Joan H. Krause

Faculty Publications

Part I of this Article provides a general introduction to the various types of advance directives available in the United States, including their goals and limitations. Part II provides a detailed overview of pregnancy restrictions, including comparisons of the substantive restrictions, procedural issues, and rationales for restricting the application of advance directives during pregnancy. Part III offers a critical analysis of both the scholarship addressing pregnancy restrictions and the litigation seeking to challenge the restrictions, demonstrating that the existing legal framework has not been satisfactory in resolving the issues—a situation that will only be exacerbated by the Supreme Court’s recent …

Rationing Access, Roy Baharad, Gideon Parchomovsky

Vanderbilt Law Review

Protection of common natural resources is one of the foremost challenges facing our society. Since Garrett Hardin published his immensely influential The Tragedy of the Commons, theorists have contemplated the best way to save common-pool resources-—national parks, fisheries, heritage sites, and fragile ecosystems-—from overuse and extinction. These efforts have given rise to three principal methods: private ownership, community governance, and use restrictions. In this Essay, we present a different solution to the commons problem that has eluded the attention of theorists: access rationing. Access rationing measures rely not only on restrictions on the number of users but also on a …

The Color Of Equity: Observations Of A Brown Buffalo On Indigenous Water Rights, Japanese Internment, And The Socio-Legal History Of The Colorado River, Tom I. Romero Ii

Scholarly Works

No abstract provided.

The Color(Blind) Conundrum In Colorado Property Law, Tom I. Romero Ii

Scholarly Works

No abstract provided.

Community Accountability, M. Eve Hanan, Lydia Nussbaum

Scholarly Works

This Essay takes a close look at how the idea of community accountability is used in current transformative and restorative justice efforts, situating the concept within the history of delegalization, or a collection of different efforts to reclaim conflict resolution and public safety from the state. In fact, these efforts to reclaim the authority and means of redressing harm from legal systems may track earlier efforts to reclaim dispute resolution from the state. In Part I, we situate both transformative and restorative justice movements in the history of delegalization while noting essential differences between the objectives of these two reform …

Ethics For Real Estate Lawyers Today, John G. Cameron Jr., Nancy B. Rapoport

Scholarly Works

This essay discusses various ethics issues that real estate lawyers experience: everything from new ABA Model Rule 8.4(g) (avoiding discrimination) to rules that apply when a lawyer works from home to technological competence and social media to the attorney-client privilege and to advance conflicts waivers. There is also a social science overlay that discusses why smart people do dumb things.

Limiting Overall Hospital Costs By Capping Out-Of-Network Rates, David Orentlicher, Kyra Morgan, Barak Richman

Scholarly Works

Contract theory offers a simple and wildly effective solution to surprise bills: Hospital admissions contracts are contracts with open price terms, which contract law imputes with market rates. This solution not only obviated the costly, time-consuming, and complicated (and still unimplemented) legislative fix in the No Surprises Act, but it also is a superior solution since it introduces superior incentives to disclose, compete, and economize.

Using data from the Nevada Department of Health and Turquoise Health, this paper explores the theory and empirics of employing contract law's solution to hospital surprise bills and its superiority over other legislative interventions.

Pandémie Et Travail De Plateforme: Réglementation Du « Lieu De Travail » Après Le Covid-19 Aux Usa [The Gig And The Platform: Regulating The “Workplace” After The Pandemic], Ruben J. Garcia

Scholarly Works

No abstract provided.

Racial Pay Equity In “White” Collar Workplaces, Nantiya Ruan

Scholarly Works

Part I outlines the many ways that corporate employers fail in racial equity efforts and the barriers that have been put into place to keep BIPOC workers from succeeding. Drawing from industrial organizational psychology and sociology, I identify six distinct challenges that must be remedied or ameliorated in order for BIPOC to achieve pay equity in the corporate climate. Part II identifies and analyzes the decades of litigation and class action settlements that have tried and failed to address the persistent lack of BIPOC representation in the financial industry. I categorize these cases into three waves of litigation intended to …

Work Hierarchies And Social Control Of Laborers, Nantiya Ruan

Scholarly Works

Some labor dynamics transcend place and time: workers provide the labor; management oversees the work; owners capitalize on the fruits of that labor. This hierarchy repeats across nations, industries, and eras. The actors in these stories have set roles and a particular stage to act upon. We are familiar with a narrative wherein the worker is forced to toil under extreme conditions, the manager motivates the worker to produce faster and more, and the owner reaps the rewards. And we usually know where our sympathies lie.

Professor McMurtry-Chubb's latest book, Race Unequals: Overseer Contracts, White Masculinities, and the Formation of …

Work Hierarchies And The Social Control Of Workers, Nantiya Ruan

Scholarly Works

Creighton Law Review Symposium on Professor Teri A. McMurtry-Chubb’s book, Race Unequals: Overseer Contracts, White Masculinities, and the Formation of Managerial Identity in the Plantation Economy.

Of Marks And Markets: An Empirical Study Of Trademark Litigation, Jessica M. Kiser, Sean P. Wright, Benjamin P. Edwards

Scholarly Works

Trademarks are increasingly valuable assets, and some companies aggressively enforce and protect these assets. Such aggressive tactics can harm small businesses and chill creativity and speech, but trademark owners are routinely told that the law requires them to stop all similar third-party trademark usage or risk abandonment of their rights. While prior scholarship has discussed how the risk of trademark abandonment is quite low, incentives built into trademark law still push companies to court. This Article presents the results of an event study utilizing an established database of trademark infringement cases to provide insight to decisionmakers on whether the stock …