Faculty Working Papers

In the ratification debate over the U.S. Constitution, Poland’s constitution was regularly cited as a negative example—a constitutional form to avoid. But the most alert of the American Founders understood that even under a new federal constitution, American politics would have to contend with centrifugal forces analogous (in some ways) with those faced by the Poland of that era. In response to this challenge, early American statesmen developed self-limiting conventions in regard to tariffs, spending and foreign policy commitments—remedies analogous (in some ways) with those that operated in Poland before partition.

In the groundbreaking case SEC v. Panuwat, the Securities and Exchange Commission (SEC) successfully pioneered a legal theory referred to as “shadow” insider trading. This concept extends traditional insider trading paradigms to situations where an individual, privy to material non-public information (MNPI) regarding one company, capitalizes on that knowledge to trade securities in another company. The case against Matthew Panuwat, a former executive at Medivation, illuminates this novel application of the law.

According to the SEC’s complaint, Panuwat, an employee of pharmaceutical company Medivation, became aware that Medivation would soon be bought out. Just a few minutes after learning that information, Panuwat commenced purchasing out-of-the-money, short-term call options in another company, Incyte. The SEC argued that Incyte was a closely comparable company to Medivation, and therefore, these trades in Incyte constitute prohibited insider trading.

It is difficult to overstate the expansion Panuwat represents for potential liability for insider trading. To be sure, the defense bar will attack this unfair and unwise regulation-through-litigation, and the defense bar will be joined by academics, public interest groups, and supporters in the business community. In the meantime, every entity and individual involved in the capital markets—from public companies to retail traders—need to take head of the increased risks and perils that comes with trading in a post-Panuwat market. For companies, this includes at least re-evaluating insider trading policies and educating directors, officers, and employees on the new landscape. And securities lawyers need to adjust their advice to clients and strategies for defending insider trading investigations, regulatory actions, and prosecutions.

Ultimately, Congress needs to step in and define by legislation what is and is not illegal insider trading, which it has never done to date. One can debate what should and should not be permitted, but Congressional action would provide the best opportunity for consideration of the competing considerations of the scope and contours of the insider trading laws.

This testimony discusses how copyright should be applied to works created with the aid of Generative Artificial Intelligence (GAI). When determining whether to register claims of copyright for creative works made by humans with the use of GAI we should begin by looking to the acts of the human creator not at the outputs of the GAI. If a human has met the minimal creativity requirements set out by the Supreme Court in Feist Publications, Inc., v. Rural Telephone Service Co., then the question is whether the interaction with the GAI undermines a claim to human authorship or merely extends an authentic human vision for a work. Applying this approach, at least some creative works authored by humans using the assistance of GAI will be protectable by copyright.

In Feist, the Supreme Court called originality “the touchstone” of copyright and distinguished creative acts from mere sweat-of-the-brow effort. However, the Court did not set a particularly high bar, requiring only that authors demonstrate a minimal level of creativity. The Court also stated that “[t]he mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author.” This means that determining originality must turn on the creative acts of the author—in the context of AI assisted creative works, the question is what creative acts has the human author taken? More specifically, the proper inquiry is whether the human author has used GAI as an artist uses any other tool or material to bring their creative vision to life or has the use of GAI served to substitute for the artist’s own creativity. Put another way, has the artist deployed GAI or engaged it authentically and in their own voice—in a manner that demonstrates the artist is staying true to their creative vision? The full testimony explores this question in greater depth.

Further, while liability for training of GAIs must be resolved, denying humans IP protection to otherwise protectable works that use GAIs is counterproductive. It will relegate legitimate human works to the category of synthetic data. Additionally, denying copyright to humans who create works with the assistance of GAIs if the work is otherwise sufficiently original to qualify for protection will do nothing to instill respect for IP rights in those who develop and train GAIs. To the contrary, doing so will merely disenfranchise creative workers from being able to claim copyright in expressive works based on the media/tools they choose to work with—relegating their works to the category of synthetic data and foreclosing to these human artists the opportunity to control or be compensated for use of their works. Such works would then immediately become available for GAI training without the need for any permissions from the human creator who used the GAI to make the creative work. This would exploit creative workers on both the input side (by not protecting copyright in the initial materials the GAI is trained on) and on the output side (by not protecting copyright in the expressive works created by humans using the GAI in their authorship).

Finally, the Copyright Office currently requires authors to “disclose and disclaim” more than de minimis use of GAI in creative works. This approach causes problems for creators because it requires the creator to exercise control and foreseeability over a device they have not manufactured, trained or deployed into the marketplace. Instead, the relevant inquiry should be whether the creator is executing their own intellectual conceptions.

This Article will evaluate the consequences of the General Data Protection Regulation (“GDPR”) implemented by the European Union (“EU”) in 2018. Despite its aim to bolster user privacy, empirical evidence from thirty-one studies suggests a nuanced impact on market dynamics. While GDPR modestly enhanced user data protection, it also triggered adverse effects, including diminished startup activity, innovation, and increased market concentration. Further, this Article will uncover a complex narrative where gains in privacy are offset by compliance costs disproportionately affecting smaller firms. This Article will also highlight the challenges of regulating highly innovative markets, which is particularly important given subsequent EU regulations, such as the Digital Markets Act (“DMA”) and Digital Services Act (“DSA”). As other jurisdictions consider similar privacy regulations, the GDPR experience is a cautionary tale.

For over 250 years, Western intellectuals have been pronouncing capital punishment a barbarity doomed to be swept into the dustbin of history. The death penalty, we have repeatedly been told, is an “anachronism” inconsistent with the spirit of the modern age—a relic that would, in a generation or two, fade away. What is distinctive about recent decades is the confidence and monolithic quality of elite opinion, at least in the West. There is a swelling confidence that the death penalty is, at last, at the cusp of extinction.

This Article questions the descriptive claim that the death penalty is dying, either in the United States or in the world at large. Simply counting the number of nations that have technically abolished the death penalty fails to capture the apparent permanence of capital punishment. Many non-Western civilizations retain the death penalty with a vigor that surprises and disappoints Western intellectuals. And even within the United States, given the prohibitive cost of imposing a death sentence, it is remarkable how determined so many Americans are to continue to execute the worst of criminals.

As argued in this Article, the simplest answer to the puzzle of capital punishment’s persistence is that the retributive impulse is, as Justice Potter Stewart observed, “part of the nature of man.” The answer is so obvious that what is puzzling is not the persistence of the death penalty but that some people regard this persistence as puzzling. The dismay of modern Western intellectuals at the recurring failure of abolitionist efforts points to defining features of that intelligentsia. Since the Enlightenment, many intellectuals have regarded nature as a weak and even nonexistent constraint on human progress. It is from this perspective that the persistence of capital punishment, so seemingly rooted in human nature, comes to sight as such a puzzling disappointment.

The regulatory scheme for the crypto industry can be described as uncertain, at best. The lack of regulatory clarity and agency over reliance on enforcement actions in the place of proper rulemaking will stifle the industry in U.S. markets. The SEC’s haphazard regulatory approach has created more questions and uncertainty. Staff Accounting Bulletin 121 (“SAB 121”) is a prime example of how the SEC’s desperate grasp for regulatory authority implicates the major questions doctrine and the Administrative Procedures Act. This Article analyzes current crypto litigation alongside SAB 121. It identifies a pattern of circumventing the Administrative Procedures Act and violations of the major questions doctrine in crypto actions taken by the SEC. This Article concludes that the current regulatory approach will likely cause irrevocable harm to the crypto industry and procedures under the Administrative Procedures Act. Judicial intervention is required, but piece-meal litigations pose a further risk to the industry. Courts should review and under-stand the entire regulatory scheme, not just the coin or regulation at issue, to fully appreciate the major questions doctrine and procedural implications posed by agencies in their rushed and ineffective approach at regulating the crypto industry.

The European Commission invited public input on competition in virtual worlds and generative artificial intelligence. The GAI commended the Commission for studying competition in these young and dynamic fields. The GAI suggested that such a study should not seek to make fixed judgments, to justify presumptions of anticompetitive effects or to impose preconceived rules. The legal standards and mechanisms of competition enforcement have shown abundant capacity to address novel technologies and business practices and may be relied upon until a persuasive case for change emerges as a result of specific enforcement experiences. The GAI described the long history in the United States of displacing competition with ex ante economic regulation in key sectors, resulting in serious long-run restraints on competition, innovation and economic performance. Such regulation—involving transportation, energy, communications and other sectors—was abolished in some sectors and severely curtailed in others as the result of a broad consensus among scholars and policymakers—recognizing the negative results—that has largely prevailed since the late 1970s. The GAI also suggested that the Commission—which has allowed only 31 days for public input and has stated that it "may organize a workshop" on the subject in the second quarter of 2024, should consider additional steps to advance its inquiry, including seeking additional public input. This would allow a more searching study in light of the complex and rapidly evolving circumstances prevailing in these sectors.

Firms are not shy about disclosing their low prices to attract consumers, but they seem to hesitate when it comes to their data practices. If data is increasingly the price we pay, this is surprising. Before we pronounce the meager evidence of unraveling as a symptom of a market failure, however, we need further investigation. We need to know which equilibrium we are in — one in which disclosure is consistent with consumer preferences; a lemons market, in which asymmetric information plagues consumers and firms and keeps them from the privacy they want; or something in between. That is, we need to know if privacy even wants to unravel. Regulation might be appropriate when (1) there is broad agreement that the conduct at issue is harmful, and (2) the government has sufficient information to craft a correct standard. For all other cases, it is preferable to at least attempt a market allocation of data practices. This could be accomplished by providing the FTC with tools to transform what consumers perceive as cheap talk into credible commitments. Chief among them would be the ability to levy penalties sufficient to deter deception over privacy, while also signaling a reluctance to seek monetary remedies for good faith attempts to make privacy claims more understandable to consumers.

The Supreme Court’s landmark decision in Ohio v. American Express (“Amex”) remains central to the enforcement of antitrust laws involving digital markets. Specifically, the decision established a framework to assess business conduct involving transactional, multisided platforms from both an economic and legal perspective. At its crux, the Court in Amex integrated both the relevant market and competitive effects analysis across the two distinct groups who interact on the Amex platform, that is, cardholders and merchants. This unified, integrated approach has been controversial, however. The primary debate is whether the Court’s ruling places an undue burden on plaintiffs under the rule of reason paradigm to meet its burden of production to establish harm to competition. Enter Epic v. Apple (“Epic”): a case involving the legality of various Apple policies governing its iOS App Store, which, like Amex, is a transactional, multisided platform. While both the district court and the Ninth Circuit largely ruled in favor of Apple over Epic, these decisions are of broader interest for their fidelity to Amex. A careful review of the decisions reveals that the Epic courts operationalized Amex in a practical, sensible way. The courts did not engage in extensive balancing across developers and users as some critics of Amex contended would be required. Ultimately, the courts in Epic (a) considered evidence of effects across both groups on the platform and (b) gave equal weight to both the procompetitive and anticompetitive effects evidence, which, this Article contends, are the essential elements of the Amex precedent. Relatedly, the Epic decisions illustrate that the burden of production on plaintiffs in multisided platform cases is not higher than in cases involving regular, single-sided markets. Additionally, both parties, whether litigating single-sided or multi-sided markets, are fully incentivized to bring evidence to bear on all aspects of the case. Finally, this Article details how the integrated Amex approach deftly avoids potential issues involving the out-of-market effects doctrine in antitrust, which limits what type of effects courts can consider in assessing conduct.

The right to “petition the government for a redress of grievances” is vital to a functioning democracy. The preservation of competitive markets also provides tremendous benefits to consumers in the form of lower prices and increased quality. On occasion, however, these important values come into conflict when petitioning harms marketplace rivals. Recognizing this potential conflict, the Supreme Court fashioned the Noerr-Pennington doctrine, which immunizes from antitrust scrutiny legitimate attempts to influence all three branches of government. But so-called “sham” petitioning— engaging the judicial, executive, or legislative branch only as a subterfuge to gain market power via the collateral damage imposed on a rival rather than to vindicate First Amendment rights—can cause real pain for consumers. For example, drug companies have used Noerr to shield their attempts to exploit the Hatch-Waxman Act to impose higher drug prices on consumers through reverse settlements and improper Orange Book listings. In two important cases twenty years apart—California Motor Transport and Professional Real Estate Investors (PREI)—the Supreme Court fleshed out the sham exception but left some important ambiguities. Not surprisingly, the lack of clarity led to a circuit split: while all circuits agree that PREI is the correct standard when entertaining a single petition, they disagree over the standard for determining whether a pattern of petitions is a sham. In this paper, we argue that the two standards can coexist once one understands that the optimal standard for a sham must adjust to its informational environment. Employing error-cost analysis, we derive a likelihood ratio test for sham petitioning that takes into account the increased information that accompanies a larger number of petitions. We show that when there is a sufficiently large number of petitions, lowering the threshold showing for a sham can increase the accuracy of the sham test by dramatically increasing the statistical power of courts to detect sham petitioning (reduce type-II errors), while increasing the level of protection for First Amendment petitioning (reduce type-I errors). Accordingly, maintaining the stringent PREI standard when faced with multiple petitions merely squanders valuable information that could potentially save consumers from suffering the anticompetitive pain that comes with sham petitioning. Importantly, this test maintains a necessary objective component as commanded by PREI. If the test for a sham is too stringent, a substantial amount of anticompetitive behavior that does not vindicate First Amendment values may be immunized and go unaddressed. Thus, getting Noerr’s balance between First Amendment and competition values right is key to prevent consumers from suffering too much sham pain.

The right of the people to keep and bear arms, and its treatment by the courts, has gotten a lot of attention since the 2008 decision in which the Supreme Court for the first time in history held that a gun control regulation violated the Second Amendment. Robert Cottrol and Brannon Denning have published a very useful history of the developments that led to the Court’s dramatic reshaping of Second Amendment doctrine: To Trust the People with Arms: The Supreme Court and the Second Amendment. The book is of manageable length and it will be accessible to a lay audience.

The need for such a book arises in part from the complexity of the legal history and in part from confusion that has been created by disputes within the Supreme Court and among the lower courts. In addition, professional historians have very aggressively criticized the Court’s opinions and the legal scholarship that prepared the way for the sea change that began in 2008.

The current state of the law is exceptionally unsettled, and seems likely to remain in ferment for some time to come. Cottrol and Denning are cautiously optimistic that the Court can steer the nation toward a moderate and reasonable gun-control regime, and a majority of the Justices are probably aiming at just this result. Whatever lies ahead, this book will help non-specialists to intelligently follow and assess the coming legal developments.

We argue that exclusionary zoning—the imposition of restrictions on the amount and types of housing that property owners are allowed to build— is unconstitutional because it violates the Takings Clause of the Fifth Amendment. Exclusionary zoning has emerged as a major political and legal issue. A broad cross-ideological array of economists and land-use scholars have concluded that it is responsible for massive housing shortages in many parts of the United States, thereby cutting off millions of people – particularly the poor and minorities - from economic and social opportunities. In the process, it also stymies economic growth and innovation, making the nation as a whole poorer.

Exclusionary zoning is permitted under Euclid v. Ambler Realty, the 1926 Supreme Court decision holding that exclusionary zoning is largely exempt from constitutional challenge under the Due Process Clause of the Fourteenth Amendment, and by extension also the Takings Clause. Despite the wave of academic and public concern about the issue, so far, no modern in-depth scholarly analysis has advocated overturning or severely limiting Euclid. Nor has any scholar argued that exclusionary zoning should be invalidated under the Takings Clause, more generally.

We contend Euclid should be reversed or strictly limited, and that exclusionary zoning restrictions should generally be considered takings requiring compensation. This conclusion follows from both originalism and a variety of leading living constitution theories. Under originalism, the key insight is that property rights protected by the Takings Clause include not only the right to exclude, but also the right to use their property. Exclusionary zoning violates this right because it severely limits what owners can build on their land. Exclusionary zoning is also unconstitutional from the standpoint of a variety of progressive living constitution theories of interpretation, including Ronald Dworkin’s “moral reading,” representation-reinforcement theory, and the emerging “anti-oligarchy” constitutional theory. The article also considers different strategies for overruling or limiting Euclid, and potential synergies between constitutional litigation and political reform of zoning.

This essay was prepared for “The Future of Financial Regulation Symposium” October 6, 2023, sponsored by the C. Boyden Gray Center. I assess the future of consumer finance and financial protection by looking to the lessons of history. Consumer finance and financial protection in the United States exhibits a spontaneous evolution driven by changes in technology and consumer preferences in a repeated cycle. In general, consumers use consumer finance in a manner consistent with the predictions of rational behavior in order to improve their lives. Consistently, this goal of consumer betterment runs up against paternalistic and repressive laws, which attempt to prevent the beneficial evolution of technology and competition. Eventually economic forces overwhelm regulatory repression for the betterment of consumers.

I track three distinct eras in the evolution of consumer finance and financial regulation that provide a roadmap to the future evolution in the virtual era and emergent threats to consumers from private and public sources, including the growing use of the consumer finance system to infringe on the exercise of constitutionally-protected values.

In administering the antitrust laws, is it relevant what a firm’s market power was when a business practice was first implemented? Relatedly, should the commonness of a practice — in terms of use by other firms in a market or industry — be a consideration when assessing its legality? This article proposes that, under certain, well-specified conditions, the legacy of a business practice and its commonness within a market can be used as a “marginally procompetitive presumption” under the rule of reason framework. Specifically, if a practice was implemented before a firm obtained substantial market power or a practice is commonly used by other firms across the market power spectrum, then the burden placed on defendants to demonstrate the practice is procompetitive should be lessened in proportion to the strength of the legacy and commonality.

The Reedy Creek Improvement Act of 1967 [hereinafter “1967 Act”], by all accounts is an extraordinary piece of legislation, designed principally to serve the private interests of a private corporation and its operation of Walt Disney World. This Report concludes that the 1967 Act, the political environment surrounding its creation and the maintenance of authorities under the Act, and governance pursuant to the Act have all accomplished a dangerous relaxation of normal limits on governmental power and structures of democratic accountability. In its analysis, this Report brings scholarly insights to bear upon the inquiry from constitutional law, statutory interpretation, democratic governance and institutional analysis from law and political science, land use planning, local government law, urban planning, administrative law and regulatory policy, and the interdisciplinary work animating positive political theory (explaining how politics actually works rather than how we wished it worked).

In particular the insights from public choice theory are applied to the 1967 Act, the RCID, and Disney for the first time in any substantial way as a matter of academic inquiry. As part of its work, the Report identifies the types of “masks” that Disney has used to obscure the private nature of the legislative deals it has profited from by attempting to clothe the 1967 Act and RCID authority in public interest-sounding frames. This Report also explores the scholarly literature explaining why agencies with single-industry-enhancing purposes or a single- or primary-entity constituency, like the RCID, tend to be captured by entities they govern.

Ordinary institutional design and limits, democratic accountability mechanisms, and constitutionally-grounded processes of good governance serve important purposes. They exist to ensure that government powers remain limited, democratic principles remain protected, citizens remain empowered, and powerful interest groups like Disney are thwarted from capturing the strong arm of the state to advance their private purposes. Indeed, the preservation of these principles of limited government and the rule of law requires erecting and respecting hurdles to government intervention to (1) ensure that government interference in private affairs is limited to serving the public interest and to those actions truly necessary and requiring such public intervention; and (2) to maximize the space for private ordering and market competition free of special privileges so that economic freedom, competition, innovation, and growth may flourish. Consequently, governance is intentionally difficult and time consuming, with the opportunity for the kind of broad public participation and scrutiny that leads to optimal decisionmaking, including balancing competing interests and recognizing that the neutrality principle grounding good governance prohibits picking favorites. Legislation that sets a framework risking the relaxation of these norms should be re-evaluated. Such re-evaluation is the focus of this Report.

This Report was originally filed with the Florida Legislature in December 2023 as “A Legal and Structural Analysis of the Legitimacy and Consequences of the Governance Regimes Established By the State of Florida’s 1967 Reedy Creek Improvement Act and Associated Laws.” The 2023 Report serves as the draft for a law review article now in progress by the working title at the head of this abstract.

Evidence from British practice to the 1789 Judiciary Act then up through nineteenth-century judicial opinions and the contemporary Federal Rules of Criminal Procedure suggests that the “interest of justice” standard to grant a new trial is more defendant-protective than the standard a number of federal circuit courts apply. That evidence suggests new trials were considered warranted whenever a guilty verdict was “contrary to the evidence.” Early jurists and theorists viewed the new trial right as an important safeguard of the underlying, more fundamental, constitutional right to a criminal jury trial—rather than in tension with it as several circuit courts have suggested in recent opinions.

Over the past two years, at least three federal circuit courts have issued opinions deepening the circuit divide on the proper evidentiary standard for district courts to grant Federal Rule of Criminal Procedure 33 new trial rights. The proper standard for affirming new trial grants was recently raised in a petition to the Supreme Court from one of Hunter Biden’s business associates, making the legal question an issue in cases with significant public valence. Although the Court recently denied this petition, another Second Circuit case raising the same circuit split continues to percolate following the Second Circuit’s interlocutory reversal of a new trial grant.

Evidence unpacked by the article includes every reference to the new trial mechanism in documentary histories of the constitutional ratification debates and the First Congress, along with nineteenth and twentieth-century judicial opinions showing the important of the new trial motion in safeguarding the liberty of minorities, as well as the drafting history of the initial federal rules of criminal procedure. This evidence demonstrates the connection between criminal new trial motions and key constitutional democratic norms underlying the federal separation of powers and the role of jury trials in constraining federal executive authority.

While the Framers sought to create a document that would promote civic virtue, the Constitution they gave us fails to do so and its misincentives explain why America scores poorly on cross-country measures of public integrity. Amongst voters, there is nevertheless a demand for virtue politics, which bids to transform our system of government into one of strong presidential rule. The extent to which it will do so will depend on how courts police the trade-off between virtue and liberty. In doing so, courts will be called on to grapple with the most fundamental questions of political philosophy, even as the Framers had done.

Erie Railroad v. Tompkins is a cornerstone of modern American law. Erie overturned Swift v. Tyson, a case that had stood for nearly a century with minimal objection. Swift involved the negotiability of commercial paper and the holding of the case, that in disputes heard in federal courts under diversity jurisdiction, the court should use traditional common law methods to resolve the case rather than feeling bound by the authoritative pronouncements of a state court.

Correspondence between Harvard Law School’s Lon Fuller and Yale’s Arthur Corbin—arguably the two greatest Contracts Law professors of the mid-Twentieth Century—reveals widespread ridicule and dismay among commercial lawyers and scholars following Erie. Fuller quotes the great Harvard Constitutional Law scholar as saying the Supreme Court “pulled a brodie” in Erie. This article reviews Erie from the perspective of commercial law, rather than the public law commentary that has dominated discussion of the Erie doctrine since its birth, seeking to understand the depth of contempt for Erie among commercial lawyers in terms of its consequences, reasoning, and jurisprudential approach.

This symposium contribution outlines the significance of foot voting for America’s Hispanic population and highlights ways in which we can better empower them to “vote with their feet.” People vote with their feet when they make individually decisive choices about the government policies they wish to live under, as opposed to ballot box voting, where each voter usually has an only an infinitesimally small chance of determining electoral outcomes or otherwise affecting policy. There are three major foot voting mechanisms: through international migration, by moving between jurisdictions in a federal system, and by making choices in the private sector.

Part II summarizes the advantages of foot voting over conventional ballot box voting as a mechanism of political choice. Foot voters have more meaningful opportunities to make decisive choices with a real impact on their lives, and better incentives to become well-informed. Part III outlines ways in which Hispanics often benefit from foot voting opportunities even more than most other groups in American society. This applies to both international migration and domestic foot voting. Part IV describes ways in which we can enhance both international and domestic foot voting opportunities for Hispanics. Much can be accomplished by increasing access to legal migration, legalizing the status of current undocumented migrants within the United States, and breaking down barriers to domestic interjurisdictional foot voting.

Expanding Hispanic foot voting is not merely a benefit for this group alone. Empowering them to “move to opportunity” also benefits other groups, including native-born Americans of all races. The liberty and prosperity of America’s largest minority group is of obvious significance to the nation as a whole.

To date, Friedrich Hayek is the only winner of the Nobel Prize in Economics who also holds a law degree. The role of law is central to Hayek’s work and prominent in the research program of the Austrian School of Economics generally. Although Hayek’s contributions to jurisprudence are manifest, as are the influence of his economics ideas, his influence on the field of law and economics has remained modest. This lecture, delivered as the Keynote Lecture at the 2023 Asian Law & Economics Association Annual Meeting, provides an introduction to the fundamentals of an Austrian Law & Economics research program in contrast to the mainstream, Chicago-school research program that has dominated the field since its early history. Compared to the neoclassical approach, Austrian thinking provides a more insightful approach to many of the key concepts generally associated with the economic analysis of law: the nature and success of the common law as a system of law, the importance of stability and simple rules in the law, and the strong preference for private ordering via contract, personal autonomy, and voluntary exchange exhibited in the common law.

I identify and briefly describe six key distinguishing characteristics of the Austrian school that distinguishes it from neoclassical law and economics: (1) Methodological individualism, (2) utility and costs are subjective, (3) the division of knowledge, (4) spontaneous order, (5) competition as a discovery procedure, and (6) the nature of economic equilibrium. I will also highlight some of the ways in which examining law and economics through an Austrian framework provides valuable insights about law and economics.