Legal Theory Blog

All the theory that fits.

New Papers on the Net

New Papers on the Net
Here is today’s roundup:

    Michael Abramowicz (George Mason) posts Information Markets, Administrative Decisionmaking, and Predictive Cost-Benefit Analysis. From the abstract:

      FutureMAP, a project of the Defense Advanced Research Projects Agency, was to involve experiments to determine whether information markets could improve Defense Department decisionmaking. Information markets are securities markets used to derive information from the prices of securities whose liquidation values are contingent on future events. The government intended to use such a market to assess the probabilities of potential political assassinations, and the indelicacy of this potential application contributed to a controversy leading to the cancellation of the program. In this Article, Professor Abramowicz assesses whether information markets in theory could be useful to administrative agencies, and it concludes that information markets could help discipline administrative agency predictions, but only if a number of technical hurdles such as the danger of manipulation can be overcome. Because the predictions of well-functioning information markets are objective, they function as a tool that exhibits many of the same virtues in predictive tasks that cost-benefit analysis offers for normative policy evaluation. Both approaches can help to overcome cognitive errors, thwart interest group manipulation, and discipline administrative agency decisionmaking. The Article suggests that the two forms of analysis might be combined to produce a “predictive cost-benefit analysis.” In such an analysis, an information market would predict the outcome of a retrospective cost-benefit analysis, to be conducted some years after the decision whether to enact a particular policy. As long as the identity of the eventual decisionmaker cannot be anticipated, predictive cost-benefit analysis estimates how an average decisionmaker would be expected to evaluate the policy. Because the predictive cost-benefit analysis assessment is not dependent on the identity of current agency officials, they cannot shade the numbers to justify policies that the officials prefer for idiosyncratic or ideological reasons.

    Robert Thompson (Vanderbilt) posts Agency Law and Asset Partitioning, forthcoming in the University of Cincinnati Law Review. Here is the abstract:

      The law’s recognition of a corporation as an entity separate from its shareholders permits corporate planners to partition assets in a way that often contributes to economic efficiency. That first-mover advantage, however, is not unlimited and the law regularly limits the abuse of such planning, as in non-consensual settings where the entity named as the actor lacks sufficient assets to pay harms arising out of the business. Agency law has been a traditional means by which liability has been extended beyond the corporate entity in particular circumstances. This paper explores how this traditional use of agency law has dissipated and the growing use of agency law to reinforce separateness and asset partitioning, even in non-consensual settings. The central point of discussion is the Supreme Court’s decision in U.S. v. Bestfoods, an environmental case in which the Court contained liability within a corporate subsidiary. The article suggests this use goes beyond traditional agency principles, such that a deeper analysis of this context would be warranted.

    Nelson Lund (George Mason) posts Carnival of Mirrors: Laurence Tribe’s ‘Unbearable Wrongness’, forthcoming in Constitutional Commentary. From the abstract:

      Professor Tribe has now done to me just what I claim he did to the Supreme Court in eroG v. hsuB. By repeatedly distorting what I actually said, Unbearable Wrongness creates illusory targets that Professor Tribe then holds up to ridicule. Leaving aside his many mischaracterizations of what I said, and the many arguments that he left unanswered in his extremely lengthy rebuttal, I focus here on our most significant points of disagreement: whether the Court’s rationale for the decision in Bush v. Gore suffers from an “almost embarrassing bankruptcy,” and whether the Court was legally prohibited from deciding the case at all.
      These are the important issues, and it is important to keep in mind that Professor Tribe’s attacks on me are significant only because he desperately needs to show that any legal defense of the Court is silly. That is the only way to sustain his own claim that the Court was playing a shell game in Bush v. Gore, or as he now says, that the Court’s decision deserves to be greeted with “head-scratching incredulity.” Professor Tribe’s claim is not just that Bush v. Gore was wrongly decided, but rather that no reasonable person could defend the decision. That is an extraordinarily serious accusation against the Court, and I say that the accusation is itself outrageous.

      On the equal protection issue, Professor Tribe mischaracterizes the applicable precedents (especially by inventing a non-existent requirement of intentional discrimination in fundamental rights cases), misstates the holding in Bush v. Gore (especially by imputing to the Court a demand that the rules for recounting ballots must be “precisely drawn” and “completely” uniform), and falsely accuses the Court of having forbidden the Florida court to attempt a constitutionally permissible recount on remand.

      On justiciability, Professor Tribe has to my great satisfaction completely withdrawn the arguments that I called “spectacularly indefensible.” Unfortunately, he has not returned to the position that he took as a litigator in Bush v. Gore, where he implicitly treated the case as justiciable. Instead, Professor Tribe has now invented yet a third theory, which conflates the legal doctrine of justiciability with the prudential considerations advanced by Justices Souter and Breyer (neither of whom claimed that Bush v. Gore was nonjusticiable). Professor Tribe’s latest theory is entirely novel, and the Court committed no error in failing to think it up before he did. All nine Justices were right and Professor Tribe is wrong: Bush v. Gore was indeed justiciable under the applicable precedents.

    John Donohue (Stanford) posts The Final Bullet in the Body of the More Guns, Less Crime Hypothesis. From the abstract:

      In 1997, John Lott and David Mustard launched what has come to be one of the most remarkable tales in the history of public policy evaluation when they announced that laws permitting citizens to carry concealed handguns – so-called right-to-carry (RTC) laws – caused crime to fall. Hailed as heroes by the National Rifle Association (NRA) and its supporters, while derided as scoundrels by their staunchest critics, Lott and Mustard precipitated a scholarly and political odyssey that can teach us much about the techniques and limitations of sophisticated empirical research and the divergent norms of the scholarly and political realms. The bottom line is that recent work by Kovandzic and Marvell confirms the growing consensus that the best evidence does not support the thesis that adoption of RTC laws reduces crime. Nonetheless, this now discredited thesis continues to influence public policy as John Lott continues to try to persuade state legislators that RTC laws will lower violent crime despite the great weight of the evidence to the contrary.

    Fred McChesney (Northwestern University – Kellogg School of Management) posts Talking ‘Bout My Antitrust Generation: Competition For and In the Field of Competition Law, forthcoming in the Emory Law Journal. From the abstract:

      Twenty-seven years ago I took my law-school antitrust course, from a fledgling assistant professor who had just left the Federal Trade Commission. My performance was adequate, earning one of the better grades in the course, but not spectacular. Unspectacular enough that afterwards the professor said it disappointed him.

      In retrospect, I think I under-performed because I was a soon-to-be economist as well as a budding lawyer. Like many people back then, I approached antitrust with a presumption that the gears of industrial-organization economics and antitrust law meshed more or less synchronously. But such a presumption was unwarranted, to say the least. As the course developed, it increasingly dawned that antitrust law, supposedly devoted to enhancing competition, was more a part of the problem than the solution. A few who had thought about all this longer had figured it out already. But for a callow law student at the time, it was difficult to mesh the economics of competition with “competition” law. I went into the exam conflicted, and evidently it showed.

      The conflicts today are fewer, thanks to a new brand of antitrust thinking that has developed and a new breed of antitrust enforcers that have arrived over the past generation. Often the new thinkers and enforcers are one and the same. The assistant professor who taught me antitrust is now the Chairman of the Federal Trade Commission, having written prolifically on both the Commission and antitrust law generally. Likewise, seminal scholars – also among my contemporaries and teaching colleagues – such as Frank Easterbrook, Richard Posner and Diane Wood – now as judges apply the new law that they espoused as academics.

      This article describes aspects of the evolution by which new antitrust rules have emerged to stimulate the salutary (if incomplete) rapprochement between economics and law in antitrust. In effect, the new rules have emerged from various types of competition, of two general sorts. To invoke Harold Demsetz’s useful distinction, the competition has occurred in the field and for the field of antitrust. That is, the current generation has witnessed competition, first, as to which intellectual (including economic) paradigm animates antitrust law – competition for the field. As Section I details, competition for the field has included competition in the federal judiciary, some of that competition represented by acts of seeming judicial disobedience in antitrust. Thereafter, there has been considerable competition in the field, along lines to be described in section II, focusing on developments (some desirable, some not) in enforcement of the antitrust laws.

Other papers of interest:

Lawrence Solum

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