Law and Economics Commons^™

The Effectiveness Of The Minnesota Buffer Law And Its Impacts On People, Ellen P. Isakson

Journal of Earth and Life Science

In January 2015, the then-governor of Minnesota Mark Dayton announced new legislation that would require 50-foot vegetation buffers along all waterways in Minnesota; this legislation would come to be known as the Minnesota buffer law, exact requirements being “perennial vegetative buffers of up to 50 feet along lakes, rivers, and streams and buffers of 16.5 feet along ditches” (Albert, 2017; MN Board of Water and Soil Resources [MN BWSR] 4 ). A buffer in the context of vegetation and natural resource management is a strip of vegetation around a body of water “designed to intercept stormwater runoff and minimize soil …

Asking The Right Questions About Legal Finance In United States Aggregate Dispute Resolution, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Third-party legal finance is one of the most controversial modern developments in civil justice, both in the United States and across the globe. It is particularly controversial when mentioned in the same breath as aggregate litigation. Current debate trains on a series of repeated questions: whether and how to ban litigation finance in aggregate litigation; whether the use of litigation finance should be disclosed in discovery; and whether litigation finance is allowed under various (and often ancient) legal doctrines. Obscured from view is what I believe to be the most fundamental question: What is the proper role of litigation finance …

Too Essential To Fail: Lessons From County Fiscal Crises, Michael A. Francus

Journal Articles

This Article draws out the lessons of counties for municipal finance. To do so, the Article begins by unpacking the municipal finance regulations that have provided counties with extraordinary fiscal safety. The Article then turns to case studies of the eleven counties that either filed for bankruptcy or had state fiscal interventions since the passage of the Bankruptcy Code in 1978. Those case studies show how counties' finances can (in rare cases) go wrong despite well-designed municipal finance regulations. The case studies also show how counties have successfully responded to those crises through bankruptcy and fiscal intervention.

Using that analysis, …

Perception Pending: What Do Patents Signal To Consumers?, Alexander Billy, Neel Sukhatme

Articles

Patent law encourages inventors to label their products as “patented,” to mark their legal status and potentially secure monetary damages from infringing competitors. We examine whether such labels might have a separate and direct impact on consumers, by affecting how they view patented products and influencing what they purchase. We develop and conduct two experiments to isolate the impact of patent status on consumer behavior. In an online randomized experiment, we demonstrate how increasing the salience of patent status heightens consumers' beliefs that products are innovative and well made. We also reveal consumers' surprisingly sophisticated understanding of the patenting process …

Mailing It In: Due Process Requires Technology-Driven Safeguards In Public Benefits, Eric Lukoff

Celebrating WCL Student Authors

Due process in safety net public benefit programs requires agencies to employ modern technology in providing notice that is reasonably likely to reach participants. The Supreme Court has held that due process is dependent on the time, place, and circumstances in which it operates. Scholars have further argued that due process is adaptable to changing facts and circumstances over time. Yet, mailed paper notices remain the standard in providing notice to participants in public benefit programs.

Living in poverty today looks significantly different than it did nearly fifty years ago at the time of Mathews v. Eldridge, where the Court …

Trademark Fair Use Is No Joke, Christine Farley

Scholarly Articles in Law Reviews & Journals

This Article examines how the Supreme Court's 2023 decision in Jack Daniel's Properties v. VIP Products reveals the limitations of using parody as a framework for resolving tensions between trademark rights and free speech. While the Court's ruling narrowed trademark protection in certain instances and acknowledged the importance of protecting parodic speech, it ultimately avoided addressing fundamental questions about the relationship between trademark law and the First Amendment. The Article argues that courts' reliance on parody as a paradigmatic case of permissible trademark use has become a distraction that prevents necessary reform of trademark law to better accommodate First Amendment …

Rebalancing Retirement: How 401(K) Plans Exacerbate Inequality And What We Can Do About It, Quinn Curtis, Leo E. Strine, David H. Webber

Faculty Scholarship

Incentives for individuals to save for retirement currently total 1.5% of US GDP. For that substantial investment, we get a system that actually deepens wealth inequality. The top 10% of earners capture 60% of the associated tax benefits, and employer matching contributions disproportionately favor the highest earners. Although defined contribution plans have long been subject to non-discrimination requirements aimed at ensuring that benefits do not accrue predominantly to the wealthiest participants, these rules have little bite. In an irony, we estimate that the entire 401(k) system would fail the non-discrimination test that every employer offering such a plan is expected …

Human Rights Risks In Clean Energy Supply Chains: Racial Capitalism, Critical Minerals, And Corporate Responsibility, Erika George

Faculty Scholarship

This paper argues that decarbonization will fail to deliver climate justice unless the transition to clean energy confronts the racialized political economy that has historically structured extractive activity and shaped international economic law. Grounding its analysis in racial capitalism, the paper contends that the growing demand for critical minerals risks reproducing patterns of exploitation, expropriation, and expulsion. Using lithium extraction in Chile as a case study, it shows how colonial legacies, dictator-era neoliberal reforms, and present-day regulatory architectures governing foreign investment and natural resource extraction have prioritized investors over human rights and the environment. Recent decisions of the International Court …

Al Assisted Inventing And Its Impact On The Patent System, Ben Gross

Cardozo Arts & Entertainment Law Journal

The note examines the challenges posed by AI-assisted inventing to the patent system, particularly focusing on the "black box" nature of AI, which obscures the inventive process and complicates patent requirements such as inventorship and disclosure.

Guide To Virginia Legal Information Resources: Sources Of Law, Research Guides, And Self-Help Books For Self-Represented Litigants, Second Edition, Sam Cabo

Law Faculty Publications

Since our first iteration of the Guide to Virginia Legal Information Resources in March 2023, the Guide has been distributed far and wide. It has been made available on public library websites (for example it was featured as a bullet point on the website of the Bristol Public Library and uploaded to the website of the Waynesboro Public Library). It has been cataloged by academic libraries (for example, the University of Virginia Library has an entry in its online catalog) and has been included in LibGuides at academic law libraries (there is a link to the Guide in the Virginia …

Institutions And Economic Development, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: Though forty years have passed since the American Indian Law Review published Economic Development in Indian Country: What Are the Questions? by Professor Frank Pommersheim, many of the same challenges and questions about economic development remain. This brief Essay looks back at Pommersheim’s work, surveys the state of scholarship on economic development today, and offers a few ideas about the future of such work. To this day, economic development remains a backwater among law professors compared to sexier topics like criminal jurisdiction, civil authority over nonIndians, and whatever is the most recent opinion from the U.S. Supreme Court. But …

Trumpian Populism And The Changing Intellectual Landscape In Antitrust: Century-Old Resonances, The New Right And Possible End Of An Era., Jonathan B. Baker

Scholarly Articles in Law Reviews & Journals

Three sides predominated in the U.S. antitrust policy debate during the Biden administration: neo-Brandeisians (or antimonopolists), centrist reformers (or post-Chicagoans), and conservatives (or Chicagoans). At that time, Trumpian populists did not comfortably fit with any of these groups and were at best secondary participants in policy discussions.

Nine months after the start of the second Trump administration, the intellectual landscape was different. Trumpian populism has now taken center stage at the antitrust enforcement agencies through two senior appointments-- Abigail (Gail) Slater as Assistant Attorney General for Antitrust in the Department of Justice (DOJ) and Mark Meador as a Federal Trade …

What Is Copywritable In Software?, Charles Duan

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Virtual Currency As Real Currency, Jeffrey A. Maine

Faculty Publications

Convertible virtual currency is increasingly equated with the notion of real currency. Indeed, the increased acceptance of virtual currency as a payment method among retailers and consumers, the evolution of new types of virtual currency that alleviate price volatility, and the recent expansion of foreign country initiatives confirm the strong trajectory toward virtual currency’s function as a transactional currency. Yet, the tax system continues to classify all forms of virtual currency as “property,” and not “currency,” which results in immediate taxation every time someone buys something with virtual currency. This Article argues that the adopted tax treatment of virtual currency …

Partial Additionality: The Blunt Metric Distorting Carbon Market, Anthony L. Moffa, Joseph Newlen

Faculty Publications

The widespread recognition that climate change presents an existential threat to humanity has spurred the development of numerous technologies, regulatory structures, and voluntary actions aimed to mitigate the pending disaster.

Three Essays On The Economics Of Crime And Education, Joy Kanengiser

Graduate Theses, Dissertations, and Problem Reports (ETD)

The first chapter investigates the labor market impacts of the Clean Slate Law, a policy designed to reduce barriers to entry by automating the sealing of criminal records. Using IPUMS CPS data from six states, I employ a difference-in-differences framework with individual fixed effects and an event study design to identify changes in employment outcomes. I find that the Clean Slate policy increases employment by 0.33 percentage points and weekly hours worked by 0.44 hours (approximately 24 minutes). Full-time employment rises, while self-employment declines by 0.12 percentage points, suggesting a shift from informal to more stable, formal jobs. These employment …

Special-Purpose Governments, Conor Clarke, Henry Hansmann

Scholarship@WashULaw

When one thinks of government, what comes to mind are familiar general-purpose entities like states, counties, and cities. But more than half of the 90,000 governments in the United States are strikingly different: They are “special-purpose” governments that do one thing, such as supply water, fight fire, or pick up the trash. These entities have expanded far more rapidly than any other form of government. Yet they remain understudied, and they present at least two puzzles. First, special-purpose governments are difficult to distinguish from entities that are typically regarded as business organizations—such as consumer cooperatives—and thus underscore the nebulous border …

Reflections On Translating Law And Economic Models For Lawyers And Law Professors, Scott Baker

Scholarship@WashULaw

Written as part of a keynote address for the 20th Annual Asian Law and Economics Conference, these remarks reflect on the way lawyers, judges, and law professors without economic training view and use law and economic models. After revisiting notably successes of classic results from the tort model – results that have penetrated the legal profession – it turns to the translation of more recent models of lawyer argumentation and precedent. Throughout, the point is to demonstrate how model insights can be used to help argue cases and distinguish precedent.

Measuring Income And Income Inequality, Conor Clarke, Wojciech Kopczuk

Scholarship@WashULaw

Income inequality is important, but attempts to measure it arrive at strikingly different conclusions. Why? We use recent disputes over measuring United States income inequality to return to first principles about both the income concept and inequality measurement. We emphasize two broad points. First, no measure of the income distribution is truly comprehensive, or could attempt to be comprehensive without making controversial choices. We document the practical and conceptual problems that the standard ideal—comprehensive Haig-Simons income—raises. Second, much of the controversy in this area turns on the many tradeoffs between starting with individual tax data versus more expansive income concepts. …

Can The Sec Mandate Disclosures That Contain Both Financial And Social Information? The Case Of The Human Capital Management Disclosures, Patrick M. Corrigan

Journal Articles

Human capital contributes directly to the top and bottom line of corporate financial performance. However, theory predicts, and empirical studies suggest, that firms underinvest in human capital because of a classic public goods problem: since employees can always leave to work for another employer, firms cannot expect to bear all the fruits of investments they make in human capital. As human capital becomes more important in the modern service and technology economy, the ills of this public good problem are growing and the deficiencies of underinvestment becoming more apparent. This Article studies the potential role of human capital management disclosures. …

Spending Clause Standing, Edward Webre Plaut

Michigan Law Review

The Biden Administration’s American Rescue Plan Act allotted almost $220 billion to state, local, and tribal governments to help combat the COVID-19 pandemic. This money, the Coronavirus State and Local Fiscal Recovery Fund, gave recipients wide spending discretion to address their struggling economies. But the legislation had one key limitation: Recipients could not use the money to “directly or indirectly” cut their taxes. If a recipient violated this “Offset Provision,” the Department of the Treasury might recoup the funds.

Nearly two-dozen states alleged that the Offset Provision was unduly coercive and ambiguous, violating the Spending Clause. However, with no threatened …

Anticompetitive Directors, Lane Miles, Mark A. Lemley, Rory Van Loo

Faculty Scholarship

Antitrust scholars have virtually ignored the question of who controls corporations by sitting on their boards of directors. We show that the problem of who sits on boards of directors is considerably greater than previously believed. Drawing on a new dataset spanning both public and private companies across multiple industries, we find evidence that individual board members sit simultaneously on boards of competitors throughout the economy, despite such “interlocking directorates” being illegal under antitrust law. Many of these individuals are senior directors at private equity, venture capital, and other firms investing in the competing firms on whose boards they sit. …

Foundations For Platform Liability, Kathryn E. Spier, Rory Van Loo

Faculty Scholarship

From spreading misinformation to selling deadly products, bad actors use technology platforms to their advantage while causing devastating harms to privacy, health, and even democracy. Despite their central role in enabling these bad actors, the platforms almost entirely escape liability. This legal immunity is purportedly grounded in economics. From the beginning, courts and legislatures feared that liability would chill innovation, growth, and user access. They also speculated that platforms have sufficient market incentives to voluntarily police bad actors, making liability unnecessary.

Whereas many scholars have argued that platform immunity is blind to justice, this Article shows that it is also …

Trust Law And The Tides Of Colonialism, Allison Anna Tait

Law Faculty Publications

Tethered to and inextricably linked with the absence or decline of democratic governance, there has always been empire. Empires rise and fall, as they say, but the imperial impulse is perennial and new iterations of old empires emerge with dismal regularity, showing us that imperial formations are hard to erase...

The Masterplot Of The Market, Allison Anna Tait, Luke Norris

Law Faculty Publications

Stories about the family, work, and the market circulate in law, legal discourse, and beyond. The family, we are told by numerous authorities, is a non-market site, centred on emotional attachment rather than economic transaction. It is a site of interpersonal care, growth, and nurturance that acts as a counter to the excesses of an unbridled marketplace. The market, in contrast, is a site where autonomous beings contract, pursuing their interests efficiently and maximising wealth. This is one masterplot of the market, which, as it operates in the United States, constructs certain household members outside of the market and constructs …

Property And Information, Jeanne L. Schroeder, David G. Carlson

Articles

The article proceeds as follows. As the information theory is a reaction to legal realism, Part I explores its antecedents in the work of Wesley Newcomb Hohfeld and Ronald H. Coase. Part II presents the information theory as arising from Professor Smith’s interpretation of the Coase theorem.11 In the imaginary world of TC0, we are supposedly indifferent to organizing by property and organizing by contract. Property eclipses contract as the organon of the economy because property reduces the cost of delineation and processing—of speaking and comprehending. We show that this theory is founded on a misunderstanding of Coase. Part III …

From Evictions To Innovations: The 2024 Access To Justice Symposium In Review, Pavan Parikh, Nick Zingarelli

University of Cincinnati Law Review

No abstract provided.

Seizing Welfare From The Bankrupt, Michael D. Sousa

University of Cincinnati Law Review

The earned income tax credit (EITC) is currently the largest means-tested antipoverty program in the United States that assists low-income working families surviving along the edges of poverty. A central component of the national welfare system, the EITC has lifted millions of families with children out of poverty and has produced myriad benefits for their everyday lives. But most of the poor and near-poor endure in the low-wage labor market and often lead turbulent financial lives, plagued by precarious employment along with deleterious material and psychological constraints in budgeting for daily expenses. For the segment of these families also burdened …

Why The Ostensible Agency Tort Doctrine Is Incoherent, Daniel Harris

University of Miami Business Law Review

One of the most perplexing areas of current tort law is the ostensible agency tort doctrine, which courts use to determine whether companies should be held liable for the negligence of their independent contractors. In most cases, liability under this doctrine requires proof the plaintiff detrimentally relied on a representation that the contractor was an employee of the defendant. However, in cases involving the negligence of independent contractor emergency room doctors, courts often hold hospitals liable under the ostensible agency tort doctrine without requiring such proof. Why does the doctrine take two inconsistent forms?

This Article argues that the law’s …

Scrutiny Of Employee Covenants Not To Compete Under The Rule Of Reason: An Empirical Inquiry, Daniel A. Crane

Notre Dame Law Review Reflection

For over 300 years, the common law has scrutinized employee covenants not to compete for their reasonableness. That is about to change. On April 23, 2024, the Federal Trade Commission announced a rule that will prohibit employers from imposing noncompete agreements on workers. The rule declares all covenants not to compete in the employment context to be unfair methods of competition under section 5 of the FTC Act. If the rule takes effect, thirty million contracts will become illegal. The FTC justifies this rule based on the ostensibly pernicious effects of employee covenants not to compete—limiting employee opportunities to pursue …