Law and Economics Commons^™

Alan Isaacman And The First Amendment: A Candid Interview With Larry Flynt's Attorney, Clay Calvert, Robert D. Richards

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Resurrecting Incipiency: From Von's Grocery To Consumer Choice, Robert H. Lande

All Faculty Scholarship

The merger incipiency doctrine is virtually ignored in the courts today. This article argues that it should be resurrected, and it also explores the ways that effectuating Congressional intent in the area would reinvigorate merger policy.

The article documents how the legislative history of the antimerger statutes shows that Congress intended mergers to be evaluated under an incipiency approach, and explores the possible meanings of this idea. It then shows that this is a strong basis for reviving significantly stricter or more prophylactic merger enforcement.

The article shows how there are aspects of the doctrine that could be revived without …

Predicting The Future Of Employment Law: Reflecting Or Refracting Market Forces?, Stewart J. Schwab

Cornell Law Faculty Publications

In this Article I predict how employment law will change in the future. My task is positive rather than normative. I will not argue that the developments I foresee are good ones to be applauded. Rather, they arise "inevitably" from the way the law will react to changes in labor markets.

Of course, as Professor Ronald Dworkin emphasizes, in developing a theory of law one cannot sharply distinguish between the positive and normative. Dworkin points out that even in describing the current legal framework, one must choose what to highlight and what to ignore, a process based on values. When …

Views On Multidisciplinary Practice With Particular Reference To Law And Economics, New York, And North Carolina, Sydney M. Cone Iii.

Articles & Chapters

This Article-after describing analytical gaps in the work of the ABA Commission on MDP, and after criticizing the analysis of MDP by the law and economics school and the Big Five subset thereof-sets forth, with commentary, proposals relating to MDP developed by the New York State Bar Association and the MDP Task Force of the North Carolina Bar Association. It concludes by comparing these proposals in the context of the law governing lawyers in the United States.

Welfare, Children And Families: The Impact Of Welfare Reform In The New Economy, Georgetown University Law Center

Philip A. Hart Memorial Lecture

In 2001, University Professor, William Julius Wilson of Harvard University, delivered the Georgetown Law Center’s twenty-first Annual Philip A. Hart Memorial Lecture: "Welfare, Children and Families: The Impact of Welfare Reform in the New Economy."

William Julius Wilson is Lewis P. and Linda L. Geyser University Professor at Harvard University. He is one of only 20 University Professors, the highest professional distinction for a Harvard faculty member. After receiving the Ph.D. from Washington State University in 1966, Wilson taught sociology at the University of Massachusetts at Amherst, before joining the University of Chicago faculty in 1972. In 1990 he was …

The Uneasy Marriage Of Export Incentives And The Income Tax, Mihir A. Desai, James R. Hines Jr.

Articles

This paper investigates the economic effect of tax incentives for American exports. These incentives include a partial tax exemption for export profits (available by routing exports through foreign sales corporations) and the allocation of some export profits to foreign-source income for purposes of U.S. taxation. The analysis highlights three important aspects of these policies. First, official figures appear to understate dramatically the tax expenditures associated with some U.S. export incentives. Correctly measured, total export benefits provided through the income tax are equivalent to a 1-percent ad valorem subsidy. Second, the 1984 imposition of more rigorous requirements for obtaining export subsidies …

The Liberal Commons, Hanoch Dagan, Michael A. Heller

Articles

Following the Civil War, black Americans began acquiring land in earnest; by 1920 almost one million black families owned farms. Since then, black rural landownership has dropped by more than 98% and continues in rapid decline-there are now fewer than 19,000 black-operated farms left in America. By contrast, white-operated farms dropped only by half, from about 5.5 million to 2.4 million. Commentators have offered as partial explanations the consolidation of inefficient small farms and intense racial discrimination in farm lending. However, even absent these factors, the unintended effects of old-fashioned American property law might have led to the same outcome. …

The Current Life Insurance Crisis: How The Law Should Respond, Kyle D. Logue

Articles

This article explores some of the issues raised by the new evidence of underinsurance. Part I explores the initial theoretical question: why do people buy life insurance? Put differently, what function does life insurance serve? Part II provides some background on the life insurance market as it currently exists. Thus, Part II summarizes the major types of life insurance that are currently offered and summarizes the main elements of the current regulatory regime for life insurance companies. Part III then provides support for the claim that households tend to drastically underconsume life insurance. Section A of that Part summarizes the …

Disclosure Norms, Eric L. Talley

Faculty Scholarship

The purpose of this Article is to interrogate the relationship between judicial error and extralegal norms more formally, focusing particularly on typical corporate disclosure contexts. In so doing, I shall argue that this relationship is far less clear-cut than much of the literature suggests. Using a formal, game-theoretic model of information disclosure, I demonstrate that in the presence of judicial error, a society that benefits from extralegal norms of honest disclosure might ironically favor more expansive legal regulation than would a similarly situated society in which norms are weak or nonexistent. Thus, in contrast to the common argument that norms …

The Methodological Commitments Of Contemporary Contract Theory, Jody S. Kraus

Faculty Scholarship

Autonomy and economic theories of contract seem to provide incompatible accounts of contract law. In this Chapter, I argue that what appear to be first-order disagreements over particular contract doctrines are really implicit second-order disagreements reflecting the divergent methodological commitments of autonomy and economic theories. I argue that autonomy theories accord priority to the normative project of justifying existing contract doctrine, treat contract law as consisting in the plain meaning of doctrine, require contract theory to explain the distinctive character of contract law, and take the ex post perspective in adjudication. In contrast, economic theories accord priority to the positive …

Unocal Fifteen Year Later (And What We Can Do About It), Ronald J. Gilson

Faculty Scholarship

The coincidence of the new millennium and the fifteenth anniversary of the Delaware Supreme Court's announcement of a new approach to takeover law provides an occasion to evaluate a remarkable experiment in corporate law – the Delaware Supreme Court's development of an intermediate standard of review for appraising defensive tactics. This assessment reveals that Unocal has developed into an unexplained and likely inexplicable preference that control contests be resolved through elections rather than through market transactions. In doing so, the remarkable struggle between the chancery court and the supreme court for Unocal's soul is canvassed. The author also maintains that …

Sales And Elections As Methods For Transferring Corporate Control, Ronald J. Gilson, Alan Schwartz

Faculty Scholarship

Delaware case law has rendered the tender offer obsolete as a method for purchasing a company whose directors oppose the acquisition. A potential acquirer facing target opposition today must run an insurgent director slate, in the expectation that its directors are more likely to sell. The Delaware courts have not justified their preference for elections over markets as the preferred vehicle for implementing changes in control. Informal scholarly analyses ask transaction cost questions, such as whether proxy contests are more costly than takeovers. This article attempts to break new ground by asking whether there are systematic differences in the performance …

What Happened To Property In Law And Economics?, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

Property has fallen out of fashion. Although people are as concerned as ever with acquiring and defending their material possessions, in the academic world there is little interest in understanding property. To some extent, this indifference reflects a more general skepticism about the value of conceptual analysis, as opposed to functional assessment of institutions. There is, however, a deeper reason for the indifference to property. It is a commonplace of academic discourse that property is simply a "bundle of rights," and that any distribution of rights and privileges among persons with respect to things can be dignified with the (almost …

Restrictive Covenants, Employee Training, And The Limits Of Transaction-Cost Analysis, Gillian Lester

Faculty Scholarship

Restrictive covenants are an increasingly common feature of employment, used across a wide range of industries, occupations, and employees. In its most common form, a restrictive covenant prohibits an employee from competing with the employer within a certain geographic area fora specified period of time after departure, usually one or two years. Sometimes these clauses are drawn more narrowly, proscribing specific activities such as continued dealings with former customers. Regardless of scope, the typical remedy when an employee breaches such a covenant is injunctive relief.

A substantial literature within law and economics debates the merits of restrictive covenants from an …

Taking The Protection-Access Tradeoff Seriously, Harvey S. Perlman

Vanderbilt Law Review

Law and economics scholarship has contributed much to our understanding of both the nature of intellectual property rights generally and the features of individual intellectual property regimes. Indeed it is hard to imagine a field other than antitrust law that is so explicitly governed by economic thinking. In authorizing the copyright and patent systems, Article I, Section 8 of the United States Constitution expressly incorporates a social welfare imperative as the basis for its grant of power.' Certainly economists and economically oriented legal academics have given the field the attention it is due.

I am far from being a sophisticated …

Constitutional Change And International Government, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

Just Compensation, Incentives, And Social Meanings, Hanoch Dagan

Michigan Law Review

In Takings and Distributive Justice, I proposed a progressive interpretation of the Compensation Clause. In his response, published in this issue, Professor Lunney challenges the plausibility and the desirability of my interpretation and proposes an alternative. This Essay compares our approaches. It concludes that Professor Lunney's careful examination of the public choice analysis of takings does refine my theory. Contrary to Professor Lunney's claims, however, these refinements reinforce - rather than undermine - the viability of a progressive takings doctrine. Parts I and II set the stage by summarizing the principal claims made, respectively, in my original Article and in …

Governing Sports In The Global Era: A Political Economy Of Major League Baseball And Its Stakeholders, Mark S. Rosentraub

Indiana Journal of Global Legal Studies

No abstract provided.

The Death Of The Income Tax (Or, The Rise Of America’S Universal Wage Tax), Edward J. Mccaffery

Indiana Law Journal

The killing of the income tax has not been open and notorious: such is not the style of contemporary politics. As with other markers of progressive social policy—the promises of universal health care, Obamacare, come to mind6—the income tax is dying a death by stealth, albeit stealth played out in plain view. The plot lines of the tragedy are apparent. The individual “income” tax has been split in two. One tax, for the masses, is a simple, increasingly formless wage tax. This wage/income tax adds higher brackets onto the payroll tax, the model toward which the wage/income tax aims, to …

Takings, Efficiency, And Distributive Justice: A Response To Professor Dagan, Glynn S. Lunney Jr.

Michigan Law Review

In A Critical Reexamination of the Takings Jurisprudence, I addressed an efficiency problem that arises when the government attempts to change property rights in a manner that burdens a very few for the benefit of the very many. Specifically, in the absence of compensation, the collective action advantage of the few in organizing to oppose the proposed measure will often give them a decided edge against the many. As a result of that advantage, the few will too often be able to persuade the legislature not to act, even when an objective evaluation of the proposal's costs and benefits would …

The Anticompetitive Effect Of Passive Investment, David Gilo

Michigan Law Review

There are many cases in which a firm passively invests in its competitor. For example, Microsoft passively invested in $150 million worth of the nonvoting stock of Apple, its historic rival in the operating systems market. Also, in November 1998, Northwest Airlines, the nation's fourth-largest airline, purchased 14% of the common stock of Continental Airlines Inc., the nation's fifth-largest (and fastest growing) airline. Northwest competes with Continental on seven routes, serving 3.6 million passengers per year. In another example, TCI, the nation's largest cable operator, became a passive investor with a 9% stake (which can be increased, under the terms …

Legal Services Attorneys As Partners In Community Economic Development: Creating Wealth For Poor Communities Through Cooperative Economics, Laurie A. Morin

University of the District of Columbia Law Review

No abstract provided.

Motherhood And Contract: Always Crashing In The Same Car, Elise Bruhl

Buffalo Women's Law Journal

No abstract provided.

Editor's Observations: The 2001 Economic Crime Package: A Legislative History, Frank O. Bowman Iii

Faculty Publications

On April 6, 2001, the U.S. Sentencing Commission approved a group of amendments to guidelines governing the sentencing of economic crimes. These measures, collectively known to as the “economic crime package,” are the culmination of some six years of deliberations by both the Conaboy and Murphy Sentencing Commissions working together with interested outside groups such as the defense bar, the Justice Department, probation officers, and the Criminal Law Committee of the U.S. Judicial Conference, The package contains three basic components. First, the now-separate theft and fraud guidelines, Sections 2B1.1 and 2F1.1, will be consolidated into a single guideline. Second, the …

Briefing Paper On Problems In Redefining "Loss" (U.S. Sentencing Commission Economic Crime Symposium), Frank O. Bowman Iii

Faculty Publications

On October 12-13, 2000, the U.S. Sentencing Commission sponsored its Third Symposium On Crime and Punishment in the United States: Federal Sentencing Policy for Economic Crimes and New Technology Offenses. The afternoon of the first day of the meeting was devoted to discussing the concept of “loss” as a measurement of defendant culpability and offense seriousness. The conferees were divided into small groups to discuss discrete sub-issues relating to “loss” and its place in sentencing economic crimes under the Guidelines. Following the small group discussions, the discussion leaders (“facilitators”) addressed a plenary session of the conference to report on the …

Globalization And The Reproduction Of Hierarchy, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

Issues Associated With New Developments And Transfers: A West Slope Perspective, Eric Kuhn

Water and Growth in the West (Summer Conference, June 7-9)

8 pages.

Chronic And Emerging Water Issues In The South Platte/Front Range Corridor, James S. Lochhead

Water and Growth in the West (Summer Conference, June 7-9)

16 pages.

Municipal Demands As The Stimulus For Innovation: Tales From The Lower Colorado River Basin, Jerome C. Muys

Water and Growth in the West (Summer Conference, June 7-9)

17 pages.

The Water Development-Growth Relationship: Case Studies, Edward F. Harvey

Water and Growth in the West (Summer Conference, June 7-9)

7 pages.