Law and Economics Commons^™

Poverty Offsetting, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

No abstract provided.

How Well Does The G20 Reflect African Interests And Priorities?: Some Thoughts Following The Los Cabos, Mexico Summit, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

The leaders of the G20 countries have now held seven summits -- enough to begin critically evaluating how well the G20 serves the interest of specific sub-parts of the international community. The purpose of this paper is to assess how well the G20 responds to African interests. It is divided into three parts. The first is a brief description of the most recent summit, held on June 18-19, 2012 in Los Cabos, Mexico. The second part is a brief discussion of the criteria that will be used in this evaluation. The third part is an assessment of the G20 against …

The Law And Economics Of Fluctuating Criminal Tendencies And Incapacitation, Murat C. Mungan

Faculty Scholarship

Economic analyses of criminal law are frequently and heavily criticized for being unable to explain many criminal law rules and doctrines that people find intuitively just. Existing economic models cannot properly explain, for instance, why criminal law distinguishes between (i) repeat offenders and first-time offenders, (ii) murder and voluntary manslaughter, and (iii) remorseful and non-remorseful offenders.

In this Article, I propose a new and richer economic theory of crime that captures the rationales behind these practices, and potentially behind many other important criminal law principles and doctrines. Unlike an overwhelming majority of previous economic analyses, my theory accounts not only …

You Can’T Get Rid Of It So You Might As Well Tax It:The Economic Impact Of Nevada’S Legalized Prostitution, David Goldman

Student Works

No abstract provided.

The Cathedral Engulfed: Sea-Level Rise, Property Rights, And Time, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Sea-level rise will require many new initiatives in land use regulation to adapt to unprecedented climate conditions. Such government actions will prompt regulatory and other takings claims, and also will be shaped by apprehension of such claims. This article analyzes the categories of land use regulations and other government initiatives likely to be enacted to adapt to sea-level rise and anticipates the takings claims that may be brought against them. In addition to hard and soft coastal armoring, the article considers regulations intended to force or induce development to retreat from rising waters. Retreat regulations present difficult takings problems, because …

Made In The U.S.A.: Corporate Responsibility And Collective Identity In The American Automotive Industry, Benjamin Levin

Scholarship@WashULaw

This Article seeks to challenge the corporate-constructed image of American business and American industry. By focusing on the automotive industry and particularly on the tenuous relationship between the rhetoric of automotive industry advertising and the realities of doctrinal corporate law, I hope to examine the ways that we as social actors, legal actors, and (perhaps above all) consumers understand what it means for a corporation or a corporation’s product to be American. In a global economy where labor, profits, and environmental effects are spread across national borders, what does it mean for a corporation to present the impression of national …

Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly

Journal Articles

Insights from economics and the economic analysis of law may be useful in analyzing succession law, including intestacy and wills as well as nonprobate transfers such as trusts. After surveying prior works that have examined succession from a functional perspective, I explore the possibility of utilizing tools like (i) transaction costs, (ii) the ex ante/ex post distinction, and (iii) rules versus standards, to illuminate the design of the Uniform Probate Code. Specifically, I investigate how these tools, which legal scholars have employed widely in other contexts, may be relevant in understanding events like the nonprobate revolution and issues like “dead …

Fantasies And Illusions: On Liberty, Order, And Free Market, Bernard E. Harcourt

Faculty Scholarship

Critical thinkers have used various terms to describe the collective imaginary that has real effects on individuals, society, and politics. Freud used the term “einer Illusion” to characterize religious belief in his work, The Future of an Illusion, though many others in the psychoanalytic tradition would turn to the notion of fantasy. Marx sometimes used the term illusion and he notoriously deployed the optical illusion and the phantasmagoria in his famous discussion of commodity fetishism. (And Marx, of course, is the father of Ideologiekritic). Foucault at times used the language of fantasy and phantasms, in an early period deployed the …

After The Great Recession: Regulating Financial Services For Low- And Middle-Income Communities, Ronald J. Mann

Faculty Scholarship

This paper, prepared as a speech at Washington and Lee Law School, discusses regulatory strategies for lending to LMI households after the Great Recession. It argues that the CFPB's emphasis on behavioral economics is likely to lead it astray, especially if it relies on assumptions drawn from experience with middle-class behavior to interfere with the choices made by LMI households that face a different set of opportunities than the middle-class households more familiar to regulators. More generally, the paper suggests that most of the financial distress faced by LMI households is a result of broader social and institutional problems, and …

Export Pioneers In Latin America, Charles F. Sabel, Eduardo Fernández-Arias, Ricardo Hausmann, Andrés Rodriguez-Clare, Ernesto Stein

Faculty Scholarship

Export Pioneers in Latin America analyzes a series of case studies of successful new export activities throughout the region to learn how pioneers jump-start a virtuous process leading to economic transformation. The cases of blueberries in Argentina, avocados in Mexico, and aircraft in Brazil illustrate how an initially successful export activity did not stop with the discovery of a single viable product, but rather continued to evolve. The book explores the conjecture that costly burdens to entrepreneurial self-discovery (due to the deterrent effects of imitation by competitors) have held back potential exporters in post-reform Latin America. It also considers the …

Law, Economics, And The Burden(S) Of Proof, Eric L. Talley

Faculty Scholarship

This chapter presents an overview of the theoretical law and economics literature on the burden of proof within tort law. I begin by clarifying core legal definitions within this topic, demonstrating that the burden of proof actually refers to at least five doctrinal concepts that substantially overlap but are not completely interchangeable. I then provide a conceptual roadmap for analyzing the major extant contributions to this topic within theoretical law and economics, emphasizing three key dimensions that organize them: (a) where they fall in the positive-normative spectrum; (b) what type of underlying modeling framework they employ (ranging from decision theoretic …

Securities Class Actions Against Foreign Issuers, Merritt B. Fox

Faculty Scholarship

This Article addresses the fundamental question of whether, as a matter of good policy, it is ever appropriate that a foreign issuer be subject to the U.S. fraud-on-the-market private damages class action liability regime, and, if so, by what kinds of claimants and under what circumstances. The bulk of payouts under the U.S. securities laws arise out of fraud-on-the-market class actions – actions against issuers on behalf of secondary market purchasers of their shares for trading losses suffered as a result of issuer misstatements in violation of Rule 10b-5. In the first decade of this century, foreign issuers became frequent …

Microinsurance: A Case Study Of The Indian Rainfall Index Insurance Market, Xavier Giné, Lev Menand, Robert W. Townsend, James Vickery

Faculty Scholarship

Efforts have been made in India and other countries in recent years to develop formal insurance markets to improve diversification of weather-related income shocks. This article aims to survey the features of one of these markets, the Indian rainfall index insurance market. “Index insurance” refers to a contract whose payouts are linked to a publicly observable index; in this case, the index is cumulative rainfall recorded on a local rain gauge during different phases of the monsoon season. This form of insurance is now available at a retail level in many parts of India, although these markets are still in …

One (Firm) Is Not Enough: A Legal-Economic Analysis Of Ec-Fasteners, Chad P. Brown, Petros C. Mavroidis

Faculty Scholarship

The WTO’s Appellate Body (AB) dealt with a number of issues for the first time in the Report of EC-Fasteners. Importantly, the AB discussed the consistency of the European Union (EU) regulation with the multilateral rules on the conditions for deviating from the obligation to calculate individual dumping margins. Although China formally won the argument, the AB may have opened the door to treat China as a non-market economy (NME) even beyond 2016 when China’s NME-status was thought to expire under the terms of China’s 2001 WTO Accession Protocol. The AB further dealt with numerous other issues ranging from statistical …

Virtue Ethics And Efficient Breach, Avery W. Katz

Faculty Scholarship

The concept of "efficient breach" – the idea that a contracting party should be encouraged to breach a contract and pay damages if doing so would be more efficient than performance – is probably the most influential concept in the economic analysis of contract law. It is certainly the most controversial. Efficient breach theory has been criticized from both within and without the economic approach, but its most prominent criticism is that it violates deontological ethics – that the beneficiary of a promise has a right to performance, so that breaching the promise wrongs the promisee.

This essay argues that …

"Becker On Ewald On Foucault On Becker": American Neoliberalism And Michel Foucault's 1979 Birth Of Biopolitics Lectures, Gary S. Becker, Francois Ewald, Bernard E. Harcourt

Faculty Scholarship

In a series of lectures delivered in 1979 at the Collège de France under the title The Birth of Biopolitics, Michel Foucault conducted a close reading of Gary Becker’s writings on human capital and on crime and punishment, within the context of an elaboration and critique of American neoliberalism. Foucault was assisted at the time, at the Collège de France, by François Ewald. Since then, there has been ongoing debate over Foucault’s views about neoliberalism. In this historic meeting at the University of Chicago between Professors Becker and Ewald, Professor Ewald presents a framework to understand Foucault’s writings on Becker; …

Governing Interdependent Financial Systems: Lessons From The Vienna Initiative, Katharina Pistor

Faculty Scholarship

Financial markets have become globally interdependent, yet their governance has remained national at the core. This friction encumbers crisis management and distorts incentives for crisis prevention. The Vienna Initiative, formed to manage the fallout from the global crisis in the countries of Central and Eastern Europe (CEE), offers an alternative coordinated, multi-stakeholder governance framework. A critical prerequisite for such a regime is a coordinating agent, or ‘anchor tenant’, that is deeply vested in the stability of transnational financial systems, but does not directly compete with market actors or regulators. Lessons for more effective governance of financial interdependence are discussed.

The Future Of European Company Law, Peter Böckli, Paul L. Davies, Eilis Ferran, Guido Ferrarini, José M. Garrido Garcia, Klaus J. Hopt, Alain Pietrancosta, Katharina Pistor, Rolf Skog, Stanislaw Soltysinski, Jaap W. Winter, Eddy Wymeersch

Faculty Scholarship

This paper contains the views of the European Company Law Experts (ECLE) on the future of European company law. The paper accompanies the responses of the European Company Law Experts to the European Commission’s Consultation on the future of European Company Law of spring 2012. In the first part of the paper we set out our views on the objectives of European company law and in the following parts we discuss how the European Commission should proceed with rule making in the field of company law.

Parallel Exclusion, C. Scott Hemphill, Tim Wu

Faculty Scholarship

Scholars and courts have long debated whether and when "parallel pricing" – adoption of the same price by every firm in a market – should be considered a violation of antitrust law. But there has been a comparative neglect of the importance of "parallel exclusion" – conduct, engaged in by multiple firms, that blocks or slows would-be market entrants. Parallel exclusion merits greater attention, for it can be far more harmful than parallel price elevation. Setting a high price leaves the field open for new entrants and may even attract them. In contrast, parallel action that excludes new entrants both …

Stock Unloading And Banker Incentives, Robert J. Jackson Jr.

Faculty Scholarship

Congress has directed federal regulators to oversee banker pay. For the first time, these regulators are now scrutinizing the incentives of risk-takers beyond the bank's top executives. Like most public company managers, these bankers are increasingly paid in stock rather than cash. The ostensible reason is that stock-based pay aligns manager and shareholder interests. But portfolio theory predicts that managers will diversify away, or "unload," stock-based pay unless they are restricted from doing so. One way to deter unloading may be to require managers to disclose it, as investors and colleagues will assume that managers are unloading because they are …

Climate Justice, Daniel A. Farber

Michigan Law Review

Eric Posner and David Weisbach take the threat of climate change seriously. Their book Climate Change Justice offers policy prescriptions that deserve serious attention. While the authors adopt the framework of conventional welfare economics, they show a willingness to engage with noneconomic perspectives, which softens their conclusions. Although they are right to see a risk that overly aggressive ethical claims could derail international agreement on restricting greenhouse gases, their analysis makes climate justice too marginal to climate policy. The developed world does have a special responsibility for the current climate problem, and we should be willing both to agree to …

What Has Love Got To Do With It?: Sentimental Attachments And Legal Decision-Making, David Markell, Tom Tyler, Sarah Brosnan

Villanova Law Review (1956 - )

No abstract provided.

Were Standard Oil's Railroad Rebates And Drawbacks Cost Justified?, Daniel A. Crane

Articles

In this essay, written for a symposium on the centennial anniversary of the Supreme Court's Standard Oil decision, I reexamine the costjustification question. In the first part, I explain why the cost-justification question is central to the entire case and its acquired and evolving historical meaning. In the second part, I review the evidence of claimed efficiencies passed on to the railroads. I conclude that there is evidence that Standard Oil passed along significant cost savings to the railroads and that these savings could have justified a portion of the rebates and drawbacks. However, I conclude that there is little …

Ain't I A Victim? The Intersectionality Of Race, Class, And Gender In Domestic Violence And The Courtroom, Geneva Brown

Cardozo Journal of Equal Rights & Social Justice

The legal system systematically fails to protect marginalized groups, particularly African American women, from intimate-partner violence due to entrenched race, gender, and class biases. These biases manifest in the courts' disregard for the unique experiences of African American women, as highlighted by Kimberlé Crenshaw's intersectionality theory. The article examines how systemic discrimination and the courts' failure to enforce protective orders perpetuate violence against this vulnerable population, emphasizing the lethal consequences of these failures. The analysis also critiques the Supreme Court's narrowing of constitutional protections in cases like DeShaney v. Winnebago County and Castle Rock v. Gonzales, which further erode …

The Roadmap For A Prospective Us-Asean Fta: Legal And Geopolitical Considerations, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

This article examines the legal framework governing economic relations between the United States and the Association of Southeast Asian Nations (ASEAN) and outlines a roadmap for a US-ASEAN Free Trade Agreement (FTA). Notwithstanding ASEAN’s emerging centrality in Asian regionalism, America remains the only Pacific power that has not concluded any form of FTA with ASEAN.This article explains that limited progress in Washington’s efforts stemmed from the domestic politics of the US Trade and Investment Framework Agreement (TIFA) approach and the Myanmar dilemma. It further analyses the challenges that the Trans-Pacific Partnership (TPP) Agreement negotiations have encountered and contends that the …

The Law And Economics Of Blockholder Disclosure, Lucian A. Bebchuk, Robert J. Jackson Jr.

Faculty Scholarship

The Securities and Exchange Commission is currently considering a rulemaking petition that advocates tightening the rules under the Williams Act, which regulates the disclosure of large blocks of stock in public companies. In this Article, we explain why the Commission should not view the proposed tightening as a merely "technical" change needed to meet the objectives of the Williams Act, provide market transparency, or modernize its regulations. The drafters of the Williams Act made a conscious choice not to impose an inflexible 5% cap on pre-disclosure accumulations of shares to avoid deterring investors from accumulating large blocks of shares. We …

The Brussels Effect, Anu Bradford

Faculty Scholarship

This Article examines the unprecedented and deeply underestimated global power that the EU is exercising through its legal institutions and standards, and how it successfully exports that influence to the rest of the world. Without the need to use international institutions or seek other nations' cooperation, the EU has a strong and growing ability to promulgate regulations that become entrenched in the legal frameworks of developed and developing markets alike, leading to a notable "Europeanization" of many important aspects of global commerce. The Article identifies the precise conditions for and the specific mechanism through which this externalization of EU's standards …

Tax Neutrality And Tax Amenities, David Hasen

Publications

Efforts to identify and implement an appropriate tax neutrality benchmark have been persistent themes in scholarly and policy debates on international taxation for fifty years. This paper questions whether the concept of tax neutrality has been adequately specified for analyzing the efficiency properties of international tax systems. As distinct from the closed-economy setting, in the open-economy setting, neither tax revenues received nor the burdens that tax revenues pay for may be taken as fixed. Because tax revenues finance infrastructure and other productivity-enhancing goods - so-called "tax amenities" - and because capital burdens infrastructure, the reallocation of tax revenues among jurisdictions …

The Market As A Legal Concept, Justin Deystone

Publications

In the wake of the recent financial crisis of 2008, and in the run-up to what some are calling a perfect fiscal storm, there is no shortage of commentary on the need for fundamental market reform. Though there are certainly disagreements about where the real problems are and what to do, almost all the commentary remains wedded to an old and entirely false image of “free competition.” Of course, there is hardly consensus about whether markets require the heavy hand of regulative control, or are better left to regulate themselves, but a belief in the distinction between these two images …

The Crisis Of The American Law School, Paul Campos

Publications

The economist Herbert Stein once remarked that if something cannot go on forever, it will stop. Over the past four decades, the cost of legal education in America has seemed to belie this aphorism: it has gone up relentlessly. Private law school tuition increased by a factor of four in real, inflation-adjusted terms between 1971 and 2011, while resident tuition at public law schools has nearly quadrupled in real terms over just the past two decades. Meanwhile, for more than thirty years, the percentage of the American economy devoted to legal services has been shrinking. In 1978 the legal sector …