Law Commons^™

Getting To Yes: The Role Of Coercion In Debt Renegotiations, Vincent S.J. Buccola, Marcel Kahan

Coase-Sandor Institute for Law & Economics Research Paper Series

A debt contract’s value depends on the parties’ ability to alter its terms. But although the rules of alteration are for that reason an important part of the design of debt instruments, the academic literature lacks a framework for making sense of them. Recent upheavals in restructuring practice have emphasized the practical importance of a working theory of alteration, however, and in particular of the rules governing what debtors can do to procure creditor acquiescence to proposed changes. This article develops a comprehensive account of the methods of consent solicitation broadly construed. We offer four principal contributions. First, we identify …

A New Measure Of Surviving Children That Sheds Light On Long-Term Trends In Fertility, Anup Malani, Ari Jacob

Coase-Sandor Institute for Law & Economics Research Paper Series

The consequences of fertility decline flow primarily from reduction in the number of surviving children, i.e., both births and survival, not simply from reductions in births. Therefore, neoclassical economic theories that attempt to explain fertility decline (e.g., quantity-quality models) hinge on preferences for surviving children, not births per se. This paper provides a new measure of surviving children. Effective fertility rate (EFR) is the product of the current fertility rate and the projected probability that a child survives until some age A. This age A could be between 15-49 for a measure (EFRR) that tracks reproductive potential, or 15-65 for …

Noisy Factors In Law, Adriana Z. Robertson, Pat Akey, Mikhail Simutin

Coase-Sandor Institute for Law & Economics Research Paper Series

For years, academic experts have championed the widespread adoption of the “Fama-French” factors in legal settings. Factor models are commonly used to perform valuations, performance evaluation and event studies across a wide variety of contexts, many of which rely on data provided by Professor Kenneth French. Yet these data are beset by a problem that the experts themselves did not understand: In a companion article, we document widespread retroactive changes to French’s factor data. These changes are the result of discretionary changes to the construction of the factors and materially affect a broad range of estimates.

n this Article, we …

Does Paying To Pollute Make Pollution Seem Less Bad?, Hajin Kim

Coase-Sandor Institute for Law & Economics Research Paper Series

Does Paying to Pollute Make Pollution Seem Less Bad? Hajin Kim* October 2024 Abstract A common critique of market-based instruments is that they commodify pollution and so reduce its moral stigma. If true, the increasing use of market-based instruments could reduce concern for the environment. With a preregistered and demographically representative experimental vignette study of over 2000 Americans, this project finds evidence against the anti-commodification critique. Participants randomly assigned to learn about market-based regulations of a fictitious new pollutant, malzene, did not find malzene pollution to be less morally problematic than those randomly assigned to learn about a mandate dictating …

Price Discipline For Non-Price Loan Terms, Adam Badawi, Vincent S.J. Buccola, Greg Nini

Coase-Sandor Institute for Law & Economics Research Paper Series

A standard model of capital markets contracting posits that issuers select non-price terms to optimize future flexibility relative to the price they imagine investors will charge for it. To assess such a model’s capacity to explain term selection in the syndicated loan market, we study the secondary market reaction to events—the appearance and proliferation of a new type of restructuring transaction known as an uptier—that spurred change in primary market contracting. We find only weak (and fragile) evidence of a significant price effect. The imprecision of our results reveals, as a general matter, a challenge for scholars of fixed-income contracting …

Predictability And Adaptation In Law And Other Markets, Saul Levmore

Coase-Sandor Institute for Law & Economics Research Paper Series

People and enterprises that are subject to the law find it useful to know what the law is at present, but then also to anticipate future rules. If laws are stable this is easily done. Stability is more common where the judicial branch is concerned, because precedents are often valued, and for good reason. They are more often followed by judges than by those involved in other methods of law- making. But in all of lawmaking, and even in the private sphere, there is value to consistency and certainty. And yet, surprises can be attractive if they are not confronted …

An Apa For Tax, David A. Weisbach

Coase-Sandor Institute for Law & Economics Research Paper Series

Recent Supreme Court cases threaten to upend the administrative law applicable to the tax system. Loper Bright eliminates Chevron deference. Ohio v. EPA heightens the scrutiny given to regulatory preambles. And Corner Post effectively eliminates the statute of limitations for challenging the validity regulations. A number of lower court decisions move in the same direction, aggressively using administrative law to invalidate guidance. Combined, these decisions threaten to make issuing guidance much more difficult and to slow the guidance process.

These decisions are based on the Administrative Procedure Act or related statutes rather than constitutional principles. Therefore, to the extent that …

Should Unions Play A Role In Merger Review?, Eric A. Posner

Coase-Sandor Institute for Law & Economics Research Paper Series

Agencies currently evaluate mergers by conducting a truncated cost-benefit analysis in which the impacts of a proposed merger on various markets must be estimated. Many critics question this method, which requires data that are not always available and assumptions that are not always reliable. An alternative approach would be to conduct merger review as a “structured bargain” among affected parties or their representatives, on the model of corporate bankruptcy. For example, where merging firms are unionized, the unions could be given the right to block a merger that harms their members. Appointed representatives or the agencies themselves could be given …

Lost Time: Paying For Delays Associated With Labor Strikes And Traffic Jams, Saul Levmore

Coase-Sandor Institute for Law & Economics Research Paper Series

Waiting is often costly. In many settings, one party delays to impose costs on another. In other settings, delay yields a small gain while imposing significant costs on others who cannot easily bargain. Where the parties can bargain, at least one expects the other to relent and to bring about a settlement that is mutually beneficial. Inasmuch as time offers the opportunity to gather information, compare alternatives, and reach yet better bargains, law does not and should not simply discourage all delays. On the other hand, it is often the case that when parties delay before reaching a bargain, they …

Bankruptcy By Another Name, Anthony Casey, Joshua Macey

Coase-Sandor Institute for Law & Economics Research Paper Series

Abstract

In a recent Essay, Abbe Gluck, Elizabeth Chamblee Burch, and Adam Zimmerman object to the increasing use of bankruptcy to resolve mass tort claims. They and others are concerned that bankruptcy reduces plaintiff voice, impedes the development of state law remedies, and limits discovery that can drive state and federal regulation regulatory interventions. This Online Response Essay addresses these critiques. Contrary to popular descriptions of the bankruptcy system, bankruptcy courts do not simply aim to maximize economic efficiency and financial recoveries. Bankruptcy includes numerous procedures, including robust disclosure, bellwether trials, future claims representatives, and voting, to ensure a fair …

Simplicity And Complexity In Law And In Markets, Saul Levmore

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Disclosure Puzzles In Patent Law, Jonathan S. Masur, Lisa Larrimore Ouellette

Coase-Sandor Institute for Law & Economics Research Paper Series

Since its inception, patent law has required that inventors publicly disclose information about their inventions in exchange for receiving patent rights. This foundational requirement is policed through multiple doctrines: patents fail enablement if “undue experimentation” is needed to practice the invention, and they lack adequate written description when they fail to establish the inventor’s “possession” of the invention.

Despite disclosure doctrines’ centrality, fundamental puzzles about their application remain unresolved. What are the boundaries between enablement and written description? Do equivalents claimed via the doctrine of equivalents have to be enabled or described? Are the rules different for after-arising technologies? Federal …

A Commitment Rule For Insolvency Forum, Anthony Casey, Aurelio Gurrea-Martínez, Robert K. Rasmussen

Coase-Sandor Institute for Law & Economics Research Paper Series

In this article, we propose a new rule for determining the proper forum for insolvency proceedings. Currently, the Model Law on Cross-Border Insolvency— promulgated by the United Nations Commission on International Trade Law (“UNCITRAL”)—looks to a debtor’s center of main interest (“COMI”) to determine the proper forum for a foreign main insolvency proceeding. This rule is flawed. It is both inflexible and manipulable. It is also indeterminate and neither requires nor allows advance commitment by debtors. As a result, it leads to uncertainty, increases litigation costs, and opens the door to opportunistic manipulation by debtors. These costs, in turn, raise …

Control Rights And Chapter 11'S Expanding Scope, Jared I. Mayer

Coase-Sandor Institute for Law & Economics Research Paper Series

Control rights are rights to control how a debtor uses certain resources, such as rights to foreclose on collateral, terminate a contract, or prevent assignment of contractual rights. Law and economics scholars have mused whether bankruptcy law should supplant control rights, but they’ve assumed that all control rights share the same goal: to protect a party’s investment in a company.

This Article rejects that assumption. It shows that there are two kinds of control rights that bankruptcy law should treat differently. One kind - what this Article dubs “investment-backed control rights” - aims to protect a party’s investment in the …

Private Security And Public Police, Ben Grunwald, John Rappaport, Michael Berg

Coase-Sandor Institute for Law & Economics Research Paper Series

Private security officers outnumber police by a wide margin, and the gap may be growing. As cities have claimed to defund the police, many have quietly expanded their use of private security, reallocating spending from the public to the private sector. It is difficult to know what to make of these trends, largely because we know so little about what private security looks like on the ground. On one prevalent view of the facts, a shift from public to private security would mean little more than a change of uniform, as the two labor markets are deeply intertwined. Indeed, academics, …

Property Moves: Assembling Service Streams, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

In this essay, I consider how we might retrofit property rights to meet modern urban and environmental challenges, which have foundationally rewritten property’s job description. The way forward requires attending to the beneficial services that resources provide, and to the central role of assembly (and reassembly) in generating and sustaining those service streams. To that end, I catalog a repertoire of “property moves” aimed at the moving target of resource optimization. While these moves can be pursued in limited ways within our current property framework, pursuing them in concert at scale requires ownership that is built for ongoing reconfiguration. I …

Trade Secrecy's Information Paradox, Christopher Buccafusco, Jonathan S. Masur, Deepa Varadarajan

Coase-Sandor Institute for Law & Economics Research Paper Series

Trade secret law is meant to encourage socially beneficial behaviors by permitting firms to protect their investments in the creation of valuable information. In theory, the ability to protect valuable information will make firms more likely to create that information in the first instance. But the law can also be used to shield socially harmful behaviors from public oversight. Firms can assert trade secret protection to prevent journalists, watchdogs, and criminal defendants from learning whether they are engaged in dangerous, wrongful, or biased activity. Ideally, trade secret law should sort socially beneficial uses from socially harmful ones, permitting only the …

Restructuring Support Agreements: An Empirical Analysis, Katherine Waldock, Anthony Casey, Frederick Tung

Coase-Sandor Institute for Law & Economics Research Paper Series

Restructuring support agreements (RSAs), or contracts that commit bankruptcy parties to supporting a plan of reorganization that will conform to certain requirements, are now a common feature of Chapter 11. Parties utilize these agreements in nearly half of all large cases. While prior literature has debated the normative value of RSAs, we take an empirical approach to look at what provisions the parties include in these agreements and how those provisions have changed over time.

Our analysis looks at all RSAs associated with large bankruptcies through the end of 2020. We characterize the types of firms with RSAs, the parties …

Invisible Work And Labor Market Power; Or, Why Labor Should Be Commodified, Eric A. Posner

Coase-Sandor Institute for Law & Economics Research Paper Series

Certain types of work-like behavior are not treated as paid labor in the law—and thus are not taxed or given workplace protections, for example—and often are not understood to be work by ordinary people. This kind of “invisible work” is exceedingly common. It encompasses not only the frequently discussed example of household labor, but also the work, or some of the work, of (for example) athletes, soldiers, students, artists, volunteers, religious and political figures, and consumers who implicitly trade work as well as money for products and services. Invisible work is the product of cultural understandings left over from the …

Masthead

Touro Law Review

No abstract provided.

Medical Taking Of Human Biological Material V. Traditional “Art Looting”: Henrietta Lacks And The Complex Ethical And Legal Liability Questions Raised By Her Unfortunate Case, Alyaa Chace

Touro Law Review

During a poignant saga of American history, Henrietta Lacks stands as an emblem of both scientific triumph and ethical controversy. In 1951, Mrs. Lacks, a tobacco farmer and mother of five, visited Johns Hopkins Hospital for treatment of what was later discovered to be advanced stage cervical cancer. Her doctors treated her with radium, which was standard practice at the time. However, Mrs. Lacks’s cancer rapidly metastasized and she ultimately passed away just months later on October 4, 1951, at the age of 31. During the course of her treatment, Mrs. Lacks’s cells were non-consensually removed for purposes of scientific …

A License To Discriminate? 303 Creative V. Elenis And Where The Supreme Court May Go, Christopher J. Manettas

Touro Law Review

No abstract provided.

Masthead

Touro Law Review

No abstract provided.

Foreword: The Life, Work & Legacy Of Felix Frankfurter, The Justice Known As “Ff”, Rodger D. Citron

Touro Law Review

No abstract provided.

John Marshall And Felix Frankfurter: An Icon And A Disappointment?, William E. Nelson

Touro Law Review

This article shows how Chief Justice John Marshall first developed the doctrine of judicial restraint in Marbury v. Madison to assure the public that the Supreme Court would not engage in politically oriented judicial review as colonial courts had in holding Parliament’s 1765 Stamp Act unconstitutional. Justice Felix Frankfurter, in contrast, adopted judicial restraint differently—by reading the scholarship of James Bradley Thayer. This article also shows that Frankfurter did not abandon his commitment to judicial restraint when during his years on the bench it began to serve conservative purposes rather than the progressive purposes it had once served.

Courting Citation Consistency: Justice Frankfurter And West Coast Hotel Co. V. Parrish, Helen J. Knowles-Gardner

Touro Law Review

This Article examines the three U.S. Supreme Court opinions authored by Justice Felix Frankfurter that cited the landmark decision in West Coast Hotel Co. v. Parrish (1937). I describe the three Parrish-citing opinions as: (1) “perfunctory”—Mayo v. Lakeland Highlands Canning Co. (1940) (Frankfurter, J., joined by Black and Douglas, JJ., dissenting); (2) “ugly”—Winters v. New York (1948) (Frankfurter, J., joined by Jackson and Burton, JJ., dissenting); and (3) “good”—American Federation of Labor v. American Sash & Door Co. (1949) (Frankfurter, J., concurring). Whatever one might think about the substance of these opinions, there is absolutely no doubt of the following. …

Table Of Contents

Touro Law Review

No abstract provided.

Felix Frankfurter: Liberal Lawyer, Conservative Justice, Jed S. Rakoff

Touro Law Review

The Hon. Jed S. Rakoff gave the first presentation at the conference, providing an introduction to Justice Felix Frankfurter by describing some of his accomplishments and situating his tenure on the Supreme Court in the context of the Court’s historically conservative orientation.

Felix Frankfurter, Collector Of People, John Q. Barrett

Touro Law Review

Felix Frankfurter engaged, intensely, with people—they were the treasures that he hunted down, evaluated, and collected. This essay, written on the great occasion of Brad Snyder’s Frankfurter biography, considers some of Frankfurter’s most treasured people. One group is people who made Frankfurter, including Frankfurter himself, Henry L. Stimson, and Franklin D. Roosevelt. Another group is Justice Frankfurter’s three great U.S. Supreme Court colleagues: Justices Hugo L. Black, Robert H. Jackson, and William O. Douglas. A third group is biographers who Frankfurter admired and pushed: Harlan Buddington Phillips, Mark DeWolfe Howe, Jr., McGeorge Bundy, Alexander Bickel, Andrew L. Kaufman, and Philip …

The Law Professor As Public Intellectual: Felix Frankfurter And The Public And Its Government, R. B. Bernstein

Touro Law Review

Professor R.B. Bernstein was a legal historian with a J.D. from Harvard Law School who taught at the Colin Powell School for Civic and Global Leadership at City College of New York and New York Law School. He presented the paper below on Professor Felix Frankfurter’s The Public and Its Government, published in 1930. A little more than two months after the conference, sadly, Professor Bernstein passed. His brother Steven Bernstein provided the Touro Law Review with the draft of the paper that Professor Bernstein was preparing to submit for publication. We have added footnotes and made only minor revisions. …