Law and Economics Commons^™

Fixing Forum Selling, Brian L. Frye, Christopher J. Ryan Jr.

University of Miami Business Law Review

“Forum selling” is jurisdictional competition intended to attract litigants. While consensual forum selling may be beneficial, non-consensual forum selling is harmful because it encourages jurisdictions to adopt an inefficient pro-plaintiff bias. In the last 20 years, the Eastern District of Texas has adopted an aggressive and remarkably successful policy of non-consensual forum selling in patent infringement actions. In 2016, 44% of all patent infringement actions were filed in the Eastern District of Texas, and 93% of them were filed by patent assertion entities or “patent trolls.”

In December 2016, the Supreme Court granted certiorari in TC Heartland v. Kraft, …

Be Careful What You Wish For? Reducing Inequality In The 21st Century, Reuven S. Avi-Yonah, Orli Avi-Yonah

Law & Economics Working Papers

Stanford historian Walter Scheidel’s The Great Leveler: Violence and the History of Inequality from the Stone Age to the Twenty-First Century (Princeton Univ. Press, 2017), is, in some respects, the anti-Piketty. Scheidel accepts Piketty’s view that inequality tends to grow over time, but adds a crucial caveat that runs directly opposite to Piketty’s optimistic proposals. Scheidel argues that the historical record demonstrates that inequality can only be reduced by violent means. Therefore, the Piketty proposals to reduce inequality peacefully are unrealistic, and Scheidel concludes his book by arguing that we should accept inequality as the price of peace: “All of …

Law In Hiding: Market Principles In The Global Legal Order, Odette Lienau

Cornell Law Faculty Publications

Standing in the background of the global legal order are a range of what might be called “market principles” or “market givens” -- collective presentations or beliefs about how markets work -- which are treated as objective descriptions at a particular time and place. This Article argues that such market givens should be understood as a kind of “law in hiding,” shaping the policy space available to states and other actors and affecting global legal developments in important but unrecognized ways. Drawing on examples from global financial law, rules on capital mobility, and sovereign debt practices, I demonstrate how market …

What Is It Like To Be A Beetle? The Timelessness Problem In Gilson’S Value Creation Thesis, Jeffrey M. Lipshaw

Suffolk University Law School Faculty Works

This is a contribution to the 2014 mini-symposium honoring the thirtieth anniversary of the publication of Ronald Gilson’s seminal article Value Creation by Business Lawyers. In it, he coined two powerful metaphors: that of lawyers as “transaction cost engineers” and as beetles studied by their entomologist brethren in the legal academy. As a former lawyer-beetle and a current academic-entomologist, I am quite sure that the transaction cost economics he used to explain value creation missed something important about the subjective and real world experience of being a lawyer-beetle. In this essay, I (a) summarize two different but significantly related critiques …

Exploiting The Poor: Housing, Markets, And Vulnerability, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Matthew Desmond provocatively claims that landlords exploit poor tenants in his Pulitzer Prize winning book, Evicted: Poverty and Profit in the American City (2016). This essay celebrates Desmond's work and explores the exploitation claim, focusing on how landlords deliberately exploit vulnerable tenants and on forms of market-based exploitation.

Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman

Faculty Publications

Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of religion in the market. This article develops three theories of the proper relationship between commerce and religion and applies them to these conflicts. The first approach would apply the norms of liberal democratic governments to market actors. The second approach posits that any market outcome is legitimate so long as it results from voluntary contracts. These approaches yield contradictory and indeterminate advice on the conflicts …

Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol

Michigan Law Review

Review of The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy by Daniel J. Gifford and Robert T. Kudrle.

The Immanent Rationality Of Copyright Law, Shyamkrishna Balganesh

Michigan Law Review

Review of What’s Wrong with Copying? by Abraham Drassinower.

Prolegomenon To A Defense Of The City Of Gold, David A. Westbrook

Journal Articles

In recent political contests, economics has been used as a subjective language of disputation and identification, contradicting the field's traditional aspirations to objectivity, even science. In both partisan politics and the related but not identical bifurcation between "populist" and "establishment" or "elite" discourse, positions have become routinized into antagonistic tropes. This poses a serious problem for the United States, which uses political discourse not only for politics, but to create social cohesion among disparate groups. More generally, elites bereft of Marx no longer have a grammar with which to conceptualize, critique, and ultimately defend the global liberal order that they …

Comment On 'Fundamental Tax Reform: A Comparison Of Three Options', James R. Hines Jr.

Book Chapters

Alan Viard’s chapter, “Fundamental Tax Reform: A Comparison of Three Options” is a thoughtful, even-handed, and most worthwhile contribution to the analysis of major reforms that, if adopted, would move the tax system strongly in the direction of taxing consumption. The chapter nicely illustrates the complexity of the tax reform problem by exposing a range of available reform options, with an accompanying range of welfare implications. Even among tax reforms with common objectives, there can be strongly differing economic and distributional consequences. Furthermore, otherwise-similar reforms can and do appeal to very different political constituencies....

Boddie And Beyond: Rights Of The Indigent Civil Litigant, Armand J. Prisco

The Catholic Lawyer

No abstract provided.

Tackling The Social Determinants Of Health: A Central Role For Providers, Jessica Mantel

Georgia State University Law Review

Americans’ poor health and high health care costs largely stem from social, environmental, and behavioral factors that adversely impact health. Yet, health care providers traditionally have neglected the social determinants of health, focusing instead on medically treating patients’ symptoms. As a result, addressing the social determinants of health has primarily been the domain of government and community groups. Unfortunately, the efforts of the public health and social services sectors are stymied by chronic underfunding, a situation unlikely to change in the current political environment. This article identifies a potential solution to this problem: recent health care reforms that encourage health …

Risk And Resilience In Health Data Infrastructure, Nicholson Price

Law & Economics Working Papers

Today’s health system runs on data. However, for a system that generates and requires so much data, the health care system is surprisingly bad at maintaining, connecting, and using those data. In the easy cases of coordinated care and stationary patients, the system works — sometimes. But when care is fragmented, fragmented data often result.

Fragmented data create risks both to individual patients and to the system. For patients, fragmentation creates risks in care based on incomplete or incorrect information, and may also lead to privacy risks from a patched-together system. For the system, data fragmentation hinders efforts to improve …

Transition Support Mechanisms For Communities Facing Full Or Partial Coal Power Plant Retirement In New York, Lisa Anne Hamilton, Radina Valova, Karl R. Rábago

Environmental Law Program Publications @ Haub Law

New York State is undergoing a rapid and unprecedented energy transformation, particularly in the electricity sector. As new resources and technologies emerge to meet the demands of 21st century life, regulators must balance the need for cost effective and equitable participation in wholesale power markets while maintaining reliability on the grid. Furthermore, it is critical that all New Yorkers participate fully in the promise of a revitalized and equitable energy future. Such a transformation requires that the needs of all communities are factored into the polices and regulations that move New York toward the bold goals set forth under its …

The Limits Of Performance-Based Regulation, Cary Coglianese

University of Michigan Journal of Law Reform

Performance-based regulation is widely heralded as a superior approach to regulation. Rather than specifying the actions regulated entities must take, performance-based regulation instead requires the attainment of outcomes and gives flexibility in how to meet them. Despite nearly universal acclaim for performance-based regulation, the reasons supporting its use remain largely theoretical and conjectural. Owing in part to a lack of a clear conceptual taxonomy, researchers have yet to produce much empirical research documenting the strengths and weaknesses of performance-based regulation. In this Article, I provide a much-needed conceptual framework for understanding and assessing performance-based regulation. After defining performance-based regulation and …

Law-And-Economics Approaches To Labour And Employment Law, Stewart J. Schwab

Cornell Law Faculty Publications

This article describes the distinctive approaches that law and economics takes to labour and employment law. The article distinguishes between ‘economic analysis of law’ and ‘law and economics’, with the former applying economic models to generally simple legal rules while the latter blends messier institutional detail with legal and economic thought. The article describes three eras of law-and-economics scholarship, recognizing that economics teaches that markets work and markets fail. Era One emphasizes that labour laws and mandatory employment rules might reduce overall social welfare by preventing a benefit or term from going to the party that values it most highly. …

Pain And Suffering Damages In Personal Injury Cases: An Empirical Study, Yun-Chien Chang, Theodore Eisenberg, Tsung Hsien Li, Martin T. Wells

Cornell Law Faculty Publications

Many jurisdictions award pain and suffering damages, yet it is difficult for judges or juries to quantify pain. Several jurisdictions, such as California, cap pain and suffering damages or other noneconomic damages, and legal scholars have proposed ways to control such damages. Reforms and proposals, however, have been based on limited empirical evidence. It remains an open question whether components of economic damages explain pain and suffering damages. This study employs a unique dataset of Taiwan district court cases and uses detailed information on the components of pecuniary damages. Pain and suffering damages highly correlate with the plaintiff’s medical expenses, …

Rethinking Criminal Contempt In The Bankruptcy Courts, John A. E. Pottow, Jason S. Levin

Law & Economics Working Papers

A surprising number of courts believe that bankruptcy judges lack authority to impose criminal contempt sanctions. We attempt to rectify this misunderstanding with a march through the historical treatment of contempt-like powers in bankruptcy, the painful statutory history of the 1978 Bankruptcy Code (including the exciting history of likely repealed 28 U.S.C. § 1481), and the various apposite rules of procedure. (Fans of the All Writs Act will delight in its inclusion.) But the principal service we offer to the bankruptcy community is dismantling the ubiquitous and persistent belief that there is some form of constitutional infirmity with "mere" bankruptcy …

Toward A Theory Of Motion Practice And Settlement: Comment, Adam C. Pritchard

Articles

"Scott Baker (2017) has provided a thought-provoking contribution to this symposium volume, helping us to better understand the strategic game of litigation. In terms of both resources and actual disputes resolved, pretrial practice is vastly more important than actual trials. Trials are a rarity in the American civil justice system, as the overwhelming majority of disputes are resolved via settlement. Indeed, rational-choice scholars have struggled to explain why all disputes are not resolved via settlement, as settlement avoids the expense of a trial, which is a dead-weight loss to both sides of the dispute. The parties’ mutual incentive toward settlement …

Weak Law V Strong Ties: An Empirical Study Of Business Investment, Law And Political Connections In China, Wei Zhang, Ji Li

Research Collection Yong Pung How School Of Law

Based on a large-scale survey of Chinese entrepreneurs, our study explores how institutions (formal and informal) influence investment decisions made by private companies. The study finds that, consistent with the conventional view, a more effective legal system is correlated with short-term general investment, and that the judiciary is important mainly because of its restraint over the state. The role of effective courts, however, diminishes when private entrepreneurs consider making long-term investment. We find a positive association between the entrepreneurs’ political backgrounds and their R&D investment, suggesting that Chinese courts, in spite of decades of reform, are not yet viewed as …

Undressing Naked Economic Protectionism, Rational Basis Review, And Fourteenth Amendment Equal Protection, Robert M. Ahlander

BYU Law Review

No abstract provided.

The Altruistic Rich? Inequality And Other-Regarding Preferences For Redistribution, Matthew Dimick, David Rueda, Daniel Stegmueller

Journal Articles

What determines support among individuals for redistributive policies? Do individuals care about others when they assess the consequences of redistribution? This article proposes a model of other-regarding preferences for redistribution, which we term income-dependent altruism. Our model predicts that an individual’s preferred level of redistribution is decreasing in income, increasing in inequality, and, more importantly, that the inequality effect is increasing in income. Thus, even though the rich prefer less redistribution than the poor, the rich are more responsive, in a positive way, to changes in inequality than are the poor. We contrast these results with several other prominent …

Murray Energy Corporation V. Mccarthy, Sarah M. Danno

Public Land & Resources Law Review

Holding that the widespread effects of environmental regulation on the coal industry constituted sufficient importance, the Northern District of West Virginia ordered the Environmental Protection Agency to conduct analysis on employment loss and plant reduction resulting from regulatory effects. In admonishing the EPA’s inaction, the court ruled that the Agency had a non-discretionary duty to evaluate employment and plant reduction. Furthermore, the court held that the EPA’s attempt to put forth general reports in place of required evaluations was an invalid attempt to circumvent its statutory duty.

The Deformation Of Contract In The Information Society, Margaret Jane Radin

Law & Economics Working Papers

The HLA Hart Memorial Lecture delivered at Oxford on May 24, 2016. The Lecture considers how the advent and growth of the information society is posing challenges for the traditional theories of contract, and for the duties of the State with regard to contractual ordering. In particular, the Lecture considers the lack of ‘fit’ between certain prevalent uses of contract and the underlying justification for contract enforcement.

Blockchain, Bitcoin, And Vat In The Gcc: The Missing Trader Example, Richard Thompson Ainsworth, Musaad Alwohaibi

Faculty Scholarship

Blockchain is coming to tax administration and will cause fundamental change. This article considers the potential for blockchain technology as it applies to the introduction of a value added tax in the Gulf Cooperation Council.

Blockchain technology disrupts centralized ledgers. Blockchain improves efficiency, security and transparency. Perhaps no centralized ledger system presents more challenges than that of the modern tax administration. The central data storage system of a modern tax authority contains all return, payment, and audit activity for all taxpayers arranged tax-by-tax for three years or longer periods of time.

It is likely that blockchain will come first to …

The War On Poverty: Lawyers And Logistics, James M. Rose

The Catholic Lawyer

No abstract provided.

Assessing Political Economy In Native American Nations, W. Gregory Guedel Ph.D, Jd

American Indian Law Journal

No abstract provided.

Money Is For Nothing: The Inherent Want Of Consideration Found In Substantial Exclusivity Terms Within Tribal-State Compacts, Paul C. Alexander Ii

American Indian Law Journal

No abstract provided.

Trump & Vat: Nafta, Trade Barriers, And Retaliatory Tariffs, Richard Thompson Ainsworth

Faculty Scholarship

During the first presidential debate President-elect Donald J. Trump argued that the value added tax (VAT) operated as a trade barrier to American business everywhere. He particularly pointed to the North American Free Trade Agreement (NAFTA). Mexico was a special concern. China was also a concern, but in this instance Trump was troubled both by China’s VAT and by China’s alleged currency manipulation.

This paper can only consider the VAT aspect of Trump’s trade policy. There appears to be some confusion about the operation of the VAT, particularly the border adjustment mechanism, and how US tariffs could “level the playing …

Annals Of International Studies (Annales D'9tudes Internationales)., Josef Rohlik

Georgia Journal of International & Comparative Law

No abstract provided.