Law and Economics Commons^™

The Disrupted Path To Becoming Easy, Breezy, Beautiful: How Companies Are Deceiving Consumers With Their Animal Testing Products, Wendy Chao

University of San Francisco Law Review

No abstract provided.

Association For The Promotion Of Political Economy And The Law (Appeal): Transforming Law And Economic Power, Martha T. Mccluskey

Journal Articles

This article reflects on the Association for the Promotion of Political Economy and Law (APPEAL), formed in 2012 as the first contemporary scholarly group named for the emerging field of Law and Political Economy (LPE). APPEAL organizes academics and allies to address urgent social problems by exploring possibilities for reorienting the economy toward justice, equality, and democracy. To mobilize ideas for change, APPEAL emphasizes collaborative intellectual communities. I situate APPEAL in the context of a neoliberal political movement to capture law’s power by investing in the Law and Economics message that economic power inevitably limits democracy and social justice. Though …

The Fresh Start Paradox: Economic Disaster Relief Available To Title 11 Debtors, Kellsie Davis Ruane

Emory Bankruptcy Developments Journal

The Small Business Administration (“SBA”) has been providing disaster relief in the form of Economic Injury Disaster Loans (“EIDLs”) since its inception in 1953. In the context of the COVID-19 pandemic, the CARES Act charged the SBA with issuing forgivable loans through the Paycheck Protection Program (“PPP”) to small businesses which would otherwise face permanent closure. Though the CARES Act did not specifically grant the SBA authority to do so, the SBA interpreted its powers to include the ability to set requirements for loan approval which were not laid out in the Act itself. Specifically, the SBA promulgated a rule …

Corporate Governance And Gender Equality: A Study Of Comply-Or-Explain Disclosure Regulation, Aaron A. Dhir, Sarah Kaplan, Maria Arabella Robles

Seattle University Law Review

In 2020, the Nasdaq Stock Market filed a proposal with the U.S. Securities and Exchange Commission seeking permission to adopt a board diversity-related disclosure requirement for its listed companies. In 2021, the SEC approved the proposal, thus entrenching Nasdaq’s position as the most significant stock exchange to date to mandate listing rules that reflect the intention of diversifying corporate boardrooms. Nasdaq’s movement into the diversity space is not the first attempt to address homogeneous boards in the U.S. In 2009, the SEC adopted a rule requiring publicly traded firms to report on whether they consider diversity in identifying director nominees. …

Judicial Ethics And The Eradication Of Racism, Dontay Proctor-Mills

Seattle University Law Review

In 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington’s Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan’s face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

Defi: Shadow Banking 2.0?, Hilary J. Allen

Scholarly Articles in Law Reviews & Journals

The growth of so-called “shadow banking” was a significant contributor to the financial crisis of 2008, which had huge social costs that we still grapple with today. Our financial regulatory system still hasn’t fully figured out how to address the risks of the derivatives, securitizations, and money market mutual funds that comprised Shadow Banking 1.0, but we’re already facing the prospect o fShadow Banking 2.0in the form of decentralized finance, or “DeFi.” DeFi’s proponents speak of a future where sending money is as easy as sending a photograph–but money is not the same as a photograph. The stakes are much …

Digital Nudges: Contours And Challenges, Avishalom Tor

Book Chapters

Digital nudges—that is, significantly behavioral interventions that use software and its user-interface design elements—are an increasingly pervasive feature of online environments that shapes behavior both online (e.g., changing online privacy settings) and offline (e.g., taking a flu vaccine due to a text message reminder). Although digital nudges share many characteristics of their offline counterparts, they merit particular attention and analysis for two important reasons: First, the growing ubiquity of digital nudges makes encountering them nearly unavoidable in daily life, thereby bringing into sharper relief the promise and perils of nudges more generally. Second, the potentially greater potency of digital—compared to …

The Law And Economics Of Freshwater, Bruce R. Huber

Book Chapters

The chapter is a tribute to Klaus Mathis for his invaluable contributions at the intersection of law and economics.

Law and Economics in all seinen Facetten Festschrift zu Ehren von Klaus Mathis trans: Law and Economics in All His Facets: Festschrift in Honor of Klaus Mathis

Series: Schriften zur Rechtstheorie, vol. 309

Nudge Efficiency, Avishalom Tor

Book Chapters

Only a small portion of the substantial literature on behavioral interventions ("nudges") that developed over the last fifteen to twenty years has considered nudges from an economic perspective. Moreover, despite the importance of the topic for a law and economics assessment of this increasingly common form of regulation, even fewer contributions have examined whether and when behavioral instruments are likely to make an efficient means for increasing social welfare. This chapter therefore offers some basic observations about nudge efficiency: Part I opens with a reminder that behavioral instruments should be implemented only when they are the most efficient means available …

If You Can't Beat Them, Join Them: Richard Posner And Behavioral Law And Economics, Avishalom Tor, Doran Teichman, Eyal Zamir

Journal Articles

Since its publication in 1973, Economic Analysis of Law (the Treatise) by Richard Posner has been recognized as the canonical treatise in the field. Given this status, observing changes over time in the different editions of the book can highlight substantial and methodological shifts in the area. On this backdrop, this brief essay will highlight Posner's change of attitude towards behavioral analysis of law over the years, culminating with the incorporation of behavioral insights into the las edition of this book, published in 2024.

Alliance Politics In Corporate Debt Restructurings, Diane Lourdes Dick

Emory Bankruptcy Developments Journal

Alliance politics have always been a complicating factor in corporate restructurings. Negotiations between and among large groups of corporate stakeholders naturally require that parties expend time and resources on building coalitions, overcoming holdouts, and fleshing out their collective action. But recent trends suggest that alliance politics—rather than sound financial and economic decisions—may be driving restructuring outcomes, introducing new risks and inefficiencies in the financial markets. For instance, restructuring proponents increasingly use wedge strategies and divide-and-conquer tactics to exacerbate the coordination problems that lenders in large syndicates already face, giving rise to hostile restructurings that have the potential to introduce dangerous …

The Samuels-Buchanan Correspondence And The Lost Opportunity For A Positive Public Choice Scholarship, Luke Petach

Faculty Scholarship

This article revisits the debate between James Buchanan and Warren Samuels over Miller v. Schoene (1928). The initial court case—concerning the rights of government in the face of conflicting private interests—and subsequent debate between Buchanan and Samuels have important implications for the interrelations between legal and economic processes, the difference between a normative and positive theory of public choice, and the nature of public choice more generally. In published papers and private correspondence, the writings of Samuels reveal an alternative conception of public choice theory as a positive endeavor divorced from the free market normative implications of Buchanan’s work. Application …

Reasonableness, Scott Baker, Giri Parameswaran

Scholarship@WashULaw

This paper investigates what makes behavior reasonable. Two actors exert effort towards a goal. The planner knows each actor's cost of effort. The actors know their own cost, but not their counter-party's. We find that the planner will not base incentives on the actors' cost of care (information that is free and accurate). Instead, the planner identifies a common standard of `reasonableness' for many agents to follow to foster coordination and avoid waste. Meanwhile, the planner forgives the least able and holds them to a lower standard customized to their costs, while never upping the standard for the most able.

Net Positive: Imposing A Duty To Warn On Baseball Stadium Operators, Eric Rothman

Cardozo Arts & Entertainment Law Journal

The note argues that the Baseball Rule, which shields stadium operators from liability for foul ball injuries if they provide minimal protections, is outdated and inadequate given modern conditions. It proposes modifying the rule to include a duty to warn spectators of each foul ball as it is hit, drawing on Japan's successful implementation of a real-time warning system. This approach balances spectator safety with the preservation of baseball's unique fan experience.

Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg

Faculty Scholarship

Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Camey v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware's requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue "will likely be raised again." The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Delaware governors and chief justices lined up to defend the state's "nonpartisan" …

Navajo Statehood: From Domestic Dependent Nation To 51st State, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

The Supreme Court’s recent holding in Oklahoma v. Castro-Huerta that “Indian country is part of the State, not separate from the State” is a reminder of tribal sovereignty’s precarious foundation under U.S. law. The Court’s holding not only broke with longstanding precedent regarding the relationship between tribes and states, but it is also incompatible with the lived experience of those living in the Navajo Nation. The Navajo Nation, not the states and not the federal government, has primary responsibility for governing an area roughly the size of West Virginia. Yet most maps of the United States demarcate only state boundaries, …

Corporate Consolidation Of Rental Housing & The Case For National Rent Stabilization, Brandon Weiss

Scholarly Articles in Law Reviews & Journals

Rental housing in the United States is increasingly owned by corporate landlords that operate under a different set of incentives, behind a level of anonymity previously unavailable, and pursuant to practices that often exacerbate an already precarious housing landscape for tenants. Marketsensitive and nuanced rent stabilization laws have reemerged at the state and local level as a viable policy option to help regulate escalating rents and prevent tenant displacement. These laws, when well drafted, can address outdated critiques of strict rent caps and can complement alternative approaches, like those of the politically popular Yes In My Backyard (YIMBY) movement, which …

Climate Choice Architecture, Felix Mormann

Faculty Scholarship

Personal choices drive global warming nearly as much as institutional decisions. Yet, policymakers overwhelmingly target large-scale industrial facilities for reductions in carbon emissions, with individual and household emissions a mere afterthought. Recent advances in behavioral economics, cognitive psychology, and related fields have produced a veritable behavior change revolution. Subtle changes to the choice environment, or nudges, have improved stake-holder decision-making in a wide range of contexts, from healthier food choices to better retirement planning. But the vast potential of choice architecture remains largely untapped for purposes of climate policy and action. This Article explores that untapped potential and makes the …

The Failure Of Market Efficiency, William Magnuson

Faculty Scholarship

Recent years have witnessed the near total triumph of market efficiency as a regulatory goal. Policymakers regularly proclaim their devotion to ensuring efficient capital markets. Courts use market efficiency as a guiding light for crafting legal doctrine. And scholars have explored in great depth the mechanisms of market efficiency and the role of law in promoting it. There is strong evidence that, at least on some metrics, our capital markets are indeed more efficient than they have ever been. But the pursuit of efficiency has come at a cost. By focusing our attention narrowly on economic efficiency concerns—such as competition, …

Private Environmental Nudges, Anthony Moffa

Faculty Publications

Environmentalist outcry against single-use plastics has rapidly translated into municipal and state policy. Bans and taxes on plastic bags, and, to a lesser extent, polices targeting plastic food/drink containers and plastic straws, have popped up all over the country. Many large national corporations, including Starbucks, Disney, and Hyatt to name a few, have also taken steps to reduce the amount of single-use plastics that their customers add to the waste stream.

Two ongoing discussions in the environmental law scholarship parallel these innovations in policy. The first re-examines the proper role for subnational governments in environmental policymaking, reviving a debate about …

How Regulations Undervalue Occupational Fatalities, W. Kip Viscusi, Robert J. Cramer

Vanderbilt Law School Faculty Publications

The U.S. Occupational Safety and Health Administration establishes incentives for safety by setting and enforcing regulatorystandards. Using four and a half decades of inspection data, this article provides a comprehensive analysis of the factors underpinning penalties following fatalities. The “fatality premium” for regulatory violations following a worker death is quitemodest and is several orders of magnitude below the value-of-a-statistical-life figure needed to establish efficient levels of deterrence in the absence of all other financial incentives. Although there are low statutory caps on penalties, only 8% of thepenalties for violations involving fatalities are constrained by the cap, suggesting that current statutes …

A Theory Of Claim Resolution, Scott Baker, Lewis A. Kornhauser

Scholarship@WashULaw

We study claim resolution. A claim consists of a global fact and a local fact. The global fact is observed by the principal and the agent. The local fact is observed by the agent alone. The agent resolves the claim; the principal decides whether the agent is more likely wrong or right. The principal and agent can disagree about the weight to accord each fact or the overall evidence threshold. The agent cares whether the principal follows or ignores her advice. We characterize how the equilibrium varies with the nature of disagreement. Despite lacking commitment power, we nd that the …

The Private Costs Of Behavioral Interventions, Avishalom Tor

Journal Articles

The increasing popularity of behavioral interventions—also known as nudges—is largely due to their perceived potential to promote public and private welfare at dramatically lower costs than those of traditional regulatory instruments, such as mandates or taxes. Yet, though nudges typically involve low implementation costs, scholars and policymakers alike tend to underestimate their often-substantial private costs. Once these costs are accounted for, most nudges turn out to generate significantly lower net benefits than assumed, and some prove less efficient or less cost-effective than traditional instruments. At other times, the private costs of behavioral interventions are sufficiently large to render them socially …

Essays On Public Policy, Justin Craig Heflin

Graduate Theses, Dissertations, and Problem Reports (ETD)

The first chapter examines the impact of Red Flag Laws on homicide rates and suicide rates. Red Flag Laws seek to implement gun control measures by allowing the removal of firearms from individuals who pose a danger to themselves or others. Using a two-way fixed effects (TWFE) difference-in-differences (DiD) estimations, I demonstrate a negative and plausibly causal relationship between a state implementing a Red Flag Law and homicide rates. While there is also a reduction in suicide rates, I am unable to make causal claims. This study is the first to empirically examine Red Flag Laws, with an eye towards …

The Price Of Fairness, Christopher Buccafusco, Daniel Hemel, Eric Talley

Faculty Scholarship

The COVID-19 pandemic led to acute supply shortages across the country as well as concerns over price increases amid surging demand. In the process, it reawakened a debate about whether and how to regulate “price gouging”—a controversy that continues as inflation has accelerated even as the pandemic abates. Animating this debate is a longstanding conflict between laissez-faire economics, which champions price fluctuations as a means to allocate scarce goods, and perceived norms of consumer fairness, which are thought to cut strongly against sharp price hikes amid shortages.

This Article provides a new, empirically grounded perspective on the price gouging debate …

Financial Inclusion, Cryptocurrency, And Afrofuturism, Lynnise E. Pantin

Faculty Scholarship

As a community, Black people consistently face barriers to full participation in traditional financial markets. The decentralized nature of the cryptocurrency market is attractive to a community that has been historically and systematically excluded from the traditional financial markets by both private and public actors. As new entrants to any type of financial market, Black people have increasingly embraced blockchain technology and cryptocurrency as a path towards the wealth-building opportunities and financial freedom they have been denied in traditional markets. This Article analyzes whether the technology’s decentralized system will lead to financial inclusion or increased financial exclusion. Without reconciling the …

Specific Performance: On Freedom And Commitment In Contract Law, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

When should specific performance be available for breach of contract? This question — at the core of contract — divides common-law and civil-law jurisdictions and it has bedeviled generations of comparativists, along with legal economists, historians, and philosophers. Yet none of these disciplines has provided a persuasive answer. This Article provides a normatively attractive and conceptually coherent account, one grounded in respect for the autonomy of the promisor’s future self. Properly understood, autonomy explains why expectation damages should be the ordinary remedy for contract breach. This same normative commitment justifies the “uniqueness exception,” where specific performance is typically awarded, and …

“Buy Now, Pay Later: No Fees. No Credit Check.”, Elaine Lee

Seattle Journal of Technology, Environmental, & Innovation Law

Afterpay and Affirm, are financial technology (“fintech”) platforms that allow consumers to split their low-cost purchases into four installment payments–with seemingly no interest, fees, or hard credit inquiries. Similar to retailer fees on credit card transactions, these companies generate most of their profits as the intermediary between consumers and merchants. By flaunting celebrities like A$AP Rocky and Keke Palmer, the loan products are heavily advertised as the “cool” alternative to traditional credit cards and are particularly well-received among Millennials and Generation Z (“Gen Z”) consumers. Consequently, consumer advocates are duly concerned that lenders irresponsibly extend credit to a young generation, …