Law and Economics Commons^™

The Ambition And Transformative Potential Of Progressive Property, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

The emerging progressive property school celebrates and finds its meaning in the social nature of property. Rejecting the idea that exclusion lies at the core of property law, progressive property scholars call for a reconsideration of the relationships owners and nonowners have with property and with each other. Despite these ambitions, progressive property scholarship has so far largely confined itself to questions of exclusion and access. This Essay argues that such an emphasis glosses over race-related acquisition and distribution problems that pervade American history and property law. The modest structural changes supported by progressive property scholars fail to account for …

A Tale Of Three Hoaxes: When Literature Offends The Law, Molly Guptill Manning

Articles & Chapters

No abstract provided.

Markets As A Moral Foundation For Contract Law, Nathan B. Oman

Faculty Publications

No abstract provided.

Rethinking Microfinance, Lan Cao

Faculty Publications

No abstract provided.

Agenda: A Low-Carbon Energy Blueprint For The American West, University Of Colorado Boulder. Natural Resources Law Center, University Of Colorado Boulder. Renewable And Sustainable Energy Institute, Western Resource Advocates, Rocky Mountain Research Station (Fort Collins, Colo.)

A Low-Carbon Energy Blueprint for the American West (Martz Summer Conference, June 6-8)

The future of the planet may depend upon our ability to increase energy supplies even as we reduce carbon emissions. This conference will address how a low-carbon energy program might evolve with a particular focus on the American West. It will focus on the future of energy in the West--on a “managed transition” to a different energy mix, on the need to nest this effort in a framework that acknowledges interconnections, and on identifying the most salient opportunities to consider the legal, political, financial, and technical challenges.

Happiness, Efficiency, And The Promise Of Decisional Equity: From Outcome To Process, Jeffrey L. Harrison

Pepperdine Law Review

Those who resist the teachings of law and economics are rightfully concerned that economic efficiency is largely based on the predictions of relatively acquisitive people about what will make them feel or be better off. Due to a variety of factors, these predictions often turn out to be wrong. The explosion in happiness research would appear to have the potential to close the link between choices and actual outcomes and, consequently, make the concept of efficiency more meaningful. This Article explores this promising advance. It concludes that direct focus on one concept or another of happiness or "better-off-ness" does not …

Compatible Or Conflicting: The Promotion Of A High Level Of Employment And The Consumer Welfare Standard Under Article 101, Tom C. Hodge

William & Mary Business Law Review

The antitrust, or competition, regime of the European Union (EU) differs substantially from that of the United States, because EU competition law forms part of the EU Treaties and is therefore imbibed with the multiple values of the European Union itself. Accordingly, it is by no means clear or settled if the anti-cartel law of the European Union, Article 101 TFEU, must focus solely on a consumer welfare standard or must also consider the broad and multiple policy aims enshrined in the EU Treaties. If Article 101 must balance multiple aims, this would be in stark contrast to Section 1 …

Behavioral Advertising: From One-Sided Chicken To Informational Norms, Richard Warner, Robert Sloan

All Faculty Scholarship

When you download the free audio recording software from Audacity, you agree that Audacity may collect your information and use it to send you advertising. Billions of such pay-with-data exchanges feed information daily to a massive advertising ecosystem that tailors web site advertising as closely as possible to individual interests. The vast majority want considerably more control over our information. We nonetheless routinely enter pay-with-data exchanges when we visit CNN.com, use Gmail, or visit any of a vast number of other websites. Why? And, what, if anything, should we do about it? We answer both questions by describing pay-with-data exchanges …

The Dog That Didn't Bark: Private Investment Funds And Relational Contracts In The Wake Of The Great Recession, Robert C. Illig

Michigan Business & Entrepreneurial Law Review

In the aftermath of the subprime mortgage crisis, the contract rights of numerous hedge funds and venture capital funds were breached. These contracts were complex and sophisticated and had been negotiated at great time and expense. Yet despite all of the assumptions of neo-classical contracts theory, nothing happened. Practically none of these injured parties sued to enforce their rights. Professor Illig uses this dearth of litigation to conduct a form of natural experiment as to the value of contract law. Discrete market participants contracted before the crash and then pursued their rights in court afterwards, while relational market participants contracted …

Understanding The United States' Incarceration Rate, William T. Pizzi

Publications

What has caused prison sentences to climb so sharply and consistently in the last four decades?

Freedom Of Contract In An Augmented Reality: The Case Of Consumer Contracts, Scott R. Peppet

Publications

This Article argues that freedom of contract will take on different meaning in a world in which new technology makes information about places, goods, people, firms, and contract terms available to contracting parties anywhere, at any time. In particular, our increasingly "augmented reality" calls into question leading justifications for distrusting consumer contracts and strengthens traditional understandings of freedom of contract. This is largely a descriptive and predictive argument: This Article aims to introduce contract law to these technologies and consider their most likely effects. It certainly has normative implications, however. Given that the vast majority of consumer contracting occurs in …

The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French

Faculty Scholarship

As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for …

Poverty Offsetting, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Plus Factors And Agreement In Antitrust Law, William E. Kovacic, Robert C. Marshall, Leslie M. Marx, Halbert L. White

Michigan Law Review

Plus factors are economic actions and outcomes, above and beyond parallel conduct by oligopolistic firms, that are largely inconsistent with unilateral conduct but largely consistent with explicitly coordinated action. Possible plus factors are typically enumerated without any attempt to distinguish them in terms of a meaningful economic categorization or in terms of their probative strength for inferring collusion. In this Article, we provide a taxonomy for plus factors as well as a methodology for ranking plus factors in terms of their strength for inferring explicit collusion, the strongest of which are referred to as "super plus factors."

Efficient Breach Of International Law: Optimal Remedies, 'Legalized Noncompliance,' And Related Issues, Eric A. Posner, Alan O. Sykes

Michigan Law Review

In much of the scholarly literature on international law, there is a tendency to condemn violations of the law and to leave it at that. If all violations of international law were indeed undesirable, this tendency would be unobjectionable. We argue in this Article, however that a variety of circumstances arise under which violations of international law are desirable from an economic standpoint. The reasons why are much the same as the reasons why nonperformance of private contracts is sometimes desirable- the concept of "efficient breach," familiar to modern students of contract law, has direct applicability to international law. As …

Explaining The Importance Of Public Choice For Law, D. Daniel Sokol

Michigan Law Review

The next generation of government officials, business leaders, and members of civil society likely will draw from the current pool of law school students. These students often lack a foundation of the theoretical and analytical tools necessary to understand law's interplay with government. This highlights the importance of public choice analysis. By framing issues through a public choice lens, these students will learn the dynamics of effective decision making within various institutional settings. Filling the void of how to explain the decision-making process of institutional actors in legal settings is Public Choice Concepts and Applications in Law by Maxwell Steams …

Antitrust Review Of The At&T/T-Mobile Transaction, Maurice E. Stucke, Allen Grunes

College of Law Faculty Scholarship

In this Essay, we review AT&T Inc.’s proposed $39 billion acquisition of T-Mobile USA, Inc., under federal merger law, under the U.S. Department of Justice and Federal Trade Commission’s 2010 Horizontal Merger Guidelines, and with a focus on possible remedies. We find, under a rule of law approach, that the proposed acquisition is presumptively anticompetitive, and the merging parties in their public disclosures have failed to overcome this presumption. Next we find that under the Merger Guidelines, there is reason to believe that the transaction may result in higher prices to consumers under several different plausible theories. Finally, we turn …

A New Experiment On Rational Behavior, Myles R. Macdonald

CMC Senior Theses

Behavioral economics is widely recognized as a rising field in economics, one whose discoveries and implications are not yet completed or understood. At the same time, economic theory plays an enormous role in our governmental and legal system. In particular, the Coase Theorem and its implications have affected nearly every area in the field of law and economics. This paper proposes a experimental test of Coasean bargaining in situations using two competitive players whose payoffs depend on minimizing their costs of mitigating the externality. A rational player’s action can be predicted ahead of time, and the rationality of the game’s …

Rlt: A Preliminary Examination Of Religious Legal Theory As A Movement, Samuel J. Levine

Scholarly Works

No abstract provided.

The Limitations Of An Economic Agency Cost Theory Of Trust Law, Lee-Ford Tritt

UF Law Faculty Publications

Should the donor's specific interests or potentially conflicting theoretical economic principles control the creation and administration of trusts? In a highly influential article advancing an agency cost framework for trust law, Harvard Law Professor Robert Sitkoff suggests retooling trust law to focus on wealth maximization and to minimize costs stemming from an assumed misalignment of the interests between deemed "principals" and "agents" within the trust setting. An agency cost theory of trust law, however, reduces the complex, highly idiosyncratic, and emotionally charged nature of trust law into a simple business relationship. Given the special nature of trust law and practice-where …

Offsetting And The Consumption Of Social Responsibility, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

This Article examines the relationship between individual consumption and consumption-based harms by focusing on the rise in consumption offsetting. Carbon offsets are but the leading edge of a rise in consumer options for offsetting externalities associated with consumption. Moving from examples of quasi offsetting to environmental offsetting and the possibility of poverty offset institutions, I argue that offsetting provides a valuable mechanism for individuals to correct for the harms associated with consumption. This Article makes two major contributions to how we understand the relationship between consumption and social responsibility. First, it identifies an emerging offsetting phenomenon in seemingly discrete market …

Economic Crisis And Share Price Unpredictability: Reasons And Implications, Edward G. Fox, Merritt B. Fox, Ronald J. Gilson

Faculty Scholarship

The volatility of share returns for individual companies increased sharply during the recent financial crisis. The larger part of this increase was due to a dramatic rise – five fold as measured by variance – in idiosyncratic risk. We find that this pattern repeats itself during each major economic reversal going back 85 years. Because idiosyncratic risk is what is involved, this increase cannot be explained by changes in predictions concerning the future course of the economy as a whole.

Our first goal is to explain why difficult economic times, which are defined in terms of market wide phenomena, make …

Korea's Patent Policy And Its Impact On Economic Development: A Model For Emerging Countries?, Jay A. Erstling, Ryan E. Strom

San Diego International Law Journal

The purpose of this paper will be to examine Korean patent policy as exemplified by its patent legislation and the activities of KIPO. Part II will take a brief look at the rationale underpinning Korea’s confidence in the power of the patent system to stimulate economic growth. Part III of the paper will look at the Korean Patent Act as an example of strong, comprehensive patent legislation that fully complies with international standards and responds well to the perceived needs of patent applicants. Part III will examine one of the highlights of Korean patent legislation, the Korean Invention Promotion Act, …

Governing Gambling In The United States, Maria E. Garcia

CMC Senior Theses

The role risk taking has played in American history has helped shape current legislation concerning gambling. This thesis attempts to explain the discrepancies in legislation regarding distinct forms of gambling. While casinos are heavily regulated by state and federal laws, most statutes dealing with lotteries strive to regulate the activities of other parties instead of those of the lottery institutions. Incidentally, lotteries are the only form of gambling completely managed by the government. It can be inferred that the United States government is more concerned with people exploiting gambling than with the actual practice of wagering.

In an effort to …

Preserving A Political Bargain: The Political Economy Of The Non-Interventionist Challenge To Monopolization Enforcement, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

The antitrust rules governing exclusionary conduct by dominant firms are among the most controversial in U.S. competition policy. During the first decade of the twenty-first century, they were debated in three arenas, involving legal policy, economic policy, and politics. In each arena, the dispute mainly arose as criticism of traditional standards by advocates of less intervention. Viewed through a political economy lens, the controversy can be understood as a potential challenge to an informal political bargain reached during the 1940s by which competition was adopted as national economic policy in preference to regulation or laissez-faire. From this perspective, and applying …

International Disparities Panel, Sean Flynn

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Human Rights Law On Trial In The Drc, William Paul Simmons

Human Rights & Human Welfare

The ongoing tragedy in Eastern Congo contains so many tragic lessons that it should shake to their very foundations all comfortable ideologies about human rights and politics. The atrocities in the DRC should implicate all but have so far resulted in almost limitless impunity. Here, I briefly put human rights law on trial for its role in perpetuating this tragedy.

Bailouts, Buy-Ins, And Ballyhoo, Robert C. Hockett

Cornell Law Faculty Publications

The bailout strategy now being pursued by Treasury under the recently authorized Troubled Asset Relief Plan, if “strategy” it can be called, remains obscure and erratic at best. All the while markets remain jittery and credit remains tight, as the underlying source of our present financial jitters—continued decline in the housing market and still mounting foreclosures—goes unaddressed. This piece proposes an interesting and novel approach to solving the financial problem. If it works out, it would eventually minimize the cost to the government.

Judicial Adherence To A Minimum Core Approach To Socio-Economic Rights – A Comparative Perspective, Joie Chowdhury

Cornell Law School Inter-University Graduate Student Conference Papers

Today’s world is witness to extraordinary inequality and the most desperate poverty. Millions of people across the world have no access to adequate food or water, basic health care or minimum levels of education. There are many avenues through which to approach the issue of improving socio-economic conditions. Courts, especially recently, have in certain countries, been seeking to ameliorate these conditions, to some extent, through the means of socio-economic rights adjudication.

For courts to effectively empower people to realize their socio-economic rights, attention to implementation of judgments is essential. A strong normative base for such judgments is just as crucial, …

Reputation As Property In Virtual Economies, Joseph Blocher

Faculty Scholarship

No abstract provided.