Law and Economics Commons^™

Why Law Now Needs To Control Rather Than Follow Neo-Classical Economics, John William Draper

Pace Environmental Law Review

This article argues that neo-classical economics places an emphasis on short-term gain over precaution, and in doing so, places the lives of a myriad of individual humans—and even the species itself—at risk. Given the foreseeable risks, if humanity wants to survive longer, we need to rethink our economic principles and priorities and the relationship between economics and law.

I begin with a most brief overview of the various sources of risk to the human species and its life support system. Then I will move on to look at how neo-classical economics interacts with significant risk.

Replacing Havoc: Creating Rules For Sovereign Default, Edward J. Kelley

Cleveland State Law Review

Sovereign debt is an ongoing threat to a State’s economic stability and its citizens’ standard of living. A single occurrence of default begins a cycle in which it becomes increasingly more difficult for an indebted State to pay its debts and ensure the survival of its citizens. Because central banking systems and direct spending are often inadequate methods to boost an indebted State’s economy, a more expansive solution to sovereign debt is required. The initial solution to the growing problem of sovereign debt is an international treaty that will allow the world economy to establish monitoring mechanisms to prevent debt …

Not Complicit, But Inadequate: Looking At The Concurrent Rise Of Human Rights And Neoliberalism, Sonia Lawrence

Articles & Book Chapters

No abstract provided.

Incentive Regulation, New Business Models, And The Transformation Of The Electric Power Industry, Inara Scott

Michigan Journal of Environmental & Administrative Law

The electric utility sector is in the midst of paradigmatic change. Market forces include decreased load growth, technological advances in distributed energy resources, pressures for decarbonization, and demands for increased efficiency and new utility services. Meanwhile, as the utility monopoly is undermined and profits slow, financial analysts signal increasing risk to potential utility investors. Suggestions for transforming the existing regulatory structure abound. At the broadest level, such proposals reflect an established divide between energy policy, which traditionally focuses on economics and markets, and environmental law, which is based in the protection of natural resources and ecosystems. To marry the two …

Economic Solutions To Nuclear Energy's Financial Challenges, Zachary Robock

Michigan Journal of Environmental & Administrative Law

This Note presents a legal, economic, and regulatory roadmap to drive long-term innovation in sustainable energy generation. Next-generation nuclear power, which fundamentally mitigates many safety and nuclear waste issues, is the focus of this Note; however, the economic concepts can be applied to encourage solar, wind, advanced battery, and other sustainable technologies with high upfront costs and low long-term variable costs. Advanced nuclear energy generation is economically competitive on a long-term levelized cost basis, but suffers from a timing issue—a large amount of capital is needed upfront, with repayment over several decades, during which time significant capital costs can accrue …

Banks, Break-Ins, And Bad Actors In Mortgage Foreclosure, Christopher K. Odinet

University of Cincinnati Law Review

No abstract provided.

Causation And Standard Of Proof From An Economic Perspective, Bruno Deffains, Claude Fluet, Maiva Ropaul

Chicago-Kent Law Review

Causation is a problematic notion, as explained by Ronald Coase regarding the “bilateral nature” of externalities. However, causation has played only a minor role in standard economic models of civil liability. An exception is the sub-literature on Uncertainty Over Causation and the Determination of Civil Liability, the benchmark paper written by Steven Shavell in 1985: “. . . the familiar notion that for parties to be led to reduce accident risks appropriately, they should generally face probability-discounted or ‘expected’ liability equal to the increase in expected losses that they create. This, of course, is naturally the case in the absence …

Attribution Of Liability: An Economic Analysis Of Various Cases, Michael Faure

Chicago-Kent Law Review

In many cases liability is attributed in a different way than through the clear cut situation where one tortfeasor causes harm to one single victim. Those cases of complicated attributions in tort law are analyzed in this article from an economic perspective. After briefly sketching the economic starting points in section II, the way in which multiple tortfeasors are dealt with in the law is analyzed in section III. Section IV analyzes the perspective of multiple tortfeasors in law and economics, distinguishing between the situations of full solvency, insolvency and insurability of more particularly joint and several liability. The article …

Economic Analysis Of Liability Apportionment Among Multiple Tortfeasors: A Survey, And Perspectives In Large-Scale Risks Management, Julien Jacob, Bruno Lovat

Chicago-Kent Law Review

The economic analysis of civil liability aims to demonstrate how the civil liability system can be set to provide the potential injurers with optimal incentives to regulate the level of risk they bear. However, despite a wide range of applications, there are few studies on the apportionment of liability between several tortfeasors. In this article, we especially focus on the case of an industrial activity involving a firm, whose activity is potentially harmful for the society, and one of its input providers. They both have an impact on the level of risk through an effort in care and quality. After …

Causation: Linguistic, Philosophical, Legal And Economic, Richard W. Wright, Ingeborg Puppe

Chicago-Kent Law Review

Causation plays an essential role in attributions of legal responsibility. How-ever, considerable confusion has been generated in philosophy, law and economics by the use of causal language to refer not merely to causation in its basic (actual/factual/natural) sense, which refers to the operation of the laws of nature, but also to the quite different normative issue of appropriate legal responsibility. To reduce such confusion, we argue that causal language in these disciplines should be used to refer solely to causation in its basic sense. While it is often said that the law need not and should not concern itself with …

Overdetermined Causation Cases, Contribution And The Shapley Value, Samuel Ferey, Pierre Dehez

Chicago-Kent Law Review

The overdetermined causation cases (duplicative causation, concurrent causes, etc.) challenge the consistency and relevance of the but for test in torts. A strict application of the but for criterion to these cases leads to paradoxes and solutions that violate common sense. This explains why a large amount of literature has been developed in philosophy and jurisprudence to provide more accurate causation criteria. This paper adds to this literature by considering over-determination cases from an economic and mathematical point of view. Following Martin van Hees and Matthew Braham in their 2009 article Degrees of Causation, we consider over-determined cases through cooperative …

Where There's Smoke, There's Fire: The State-Tribal Quandry Of Tribal Marijuana, Kyle Montour

American Indian Law Journal

No abstract provided.

The Shochu Conundrum: Economics And Gatt Article Iii, Alex Davis

Undergraduate Economic Review

This paper will discuss the National Treatment (NT) obligation contained in Article III of the General Agreement on Tariffs and Trade (GATT) 1994 as applied in precedential tax discrimination cases. Case law has not taken a firm stance on the economic versus legal interpretation of the likeness/directly competitive or substitutable (DCS) criterion or the principle of “so as to afford protection” (SATAP) captured in Article III.2. After examining the case law on discriminatory taxation, I conclude that the NT obligation in trade agreements is imperfect. Nonetheless, NT is a critical component of these agreements, and the international trade order would …

Considering Consequences: Autonomy’S Missing Half, Catherine A. Hardee

Pepperdine Law Review

In a subtle but discernible trend, courts, commentators, and policymakers increasingly use autonomy-based justifications to support expanding economic rights. Their use of autonomy, however, is inconsistent with the concept of traditional liberal autonomy that proponents of economic rights embrace. This is because many, if not most, economic choices have some measure of consequences ameliorated by state action. This Article exposes the conceptual incoherence of this approach and argues that these autonomy-based arguments are invalid when they fail to acknowledge the vital role consequences play in constituting liberal autonomy. It also demonstrates that the failure to account for consequences in determining …

Operational Autonomy And Public Accountability In Statutory Corporations: A Case Study Of Ghana’S Development Experience And A Blueprint For Reform, E. A. Botchwey

Georgia Journal of International & Comparative Law

No abstract provided.

Nuclear Power Plant Policy Comparison Between The U.S. And Republic Of Korea, Vara Ha

Sustainability and Social Justice

Five years after the Fukushima accident, people and countries still argue about the opportunity costs of denuclearization. While nuclear power generation has safety and waste issues, it is carbon free. Climate change has created more pressure for greenhouse gas reduction, so a few countries have decided to maintain or even increase nuclear power generation. The United States ranks first for using nuclear power produced by electricity generation, while the Republic of Korea, the closest country in proximity to Japan, ranks fourth in countries that use nuclear power. In fact, Korea even rapidly increased nuclear business after the Fukushima accident. Despite …

Animal Legal Defense Fund V. Otter: Industrial Food Production Simply Is Not A Private Matter, Lucy L. Holifield

Journal of Food Law & Policy

About half of the states have either passed or attempted to pass laws aimed at stifling criticism and exposure of factory farms throughout the country. This unwanted exposure is often the result of undercover reporters gaining access to the interior of meat-producing entities by seeking and obtaining employment. Their reports often expose filthy and dangerous conditions, substantial animal abuse, and the incorporation of unfit animal products into the public's food supply.

How The Internet, The Sharing Economy, And Reputational Feedback Mechanisms Solve The “Lemons Problem”, Adam Thierer, Christopher Koopman, Anne Hobson, Chris Kuiper

University of Miami Law Review

This paper argues that the sharing economy—through the use of the Internet and real time reputational feedback mechanisms—is providing a solution to the lemons problem that many regulators have spent decades attempting to overcome. Section I provides an overview of the sharing economy and traces its rapid growth. Section II revisits the lemons theory as well as the various regulatory solutions proposed to deal with the problem of asymmetric information. Section III discusses the relationship between reputation and trust and analyzes how reputational incentives affect commercial interactions. Section IV discusses how information asymmetries were addressed in the pre-Internet era. It …

Cybersecurity, Data Breaches, And The Economic Loss Doctrine In The Payment Card Industry, David W. Opderbeck

Maryland Law Review

Data breaches are pervasive and costly. Recent civil data breach cases have centered on the consumer credit card payment chain in the retail industry. An important issue in such cases is whether the economic loss doctrine should bar negligence claims for purely pecuniary losses suffered by a non-negligent party, such as an issuing bank or a federal credit union that must incur costs to reimburse cardholders for the fraudulent use of stolen card numbers.

The economic loss doctrine should not bar these claims. Large-scale data networks, such as consumer credit card networks, often entail significant network externalities. These include externalities …

Foreword: Innocent Until Proven Poor, Sara Zampierin

Michigan Journal of Race and Law

One of the core tenets of our criminal justice system is the presumption of innocence until proven guilty. As the title of the Symposium recognizes, we have allowed our justice system to ignore that presumption for people living in poverty in a variety of ways. Instead, it often inflicts additional and harsher punishment on individuals because of their poverty.