Working Papers

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Note: The papers on this web site are often initial drafts. The most current version is available through the Social Science Research Network (SSRN).

Recent Working Papers:

Pioneer of Retirement: Justice Samuel Nelson

Abstract:

In November 1872, Justice Samuel Nelson retired from the U.S. Supreme Court. The formal farewells were of the good-spirited kind that prominent public figures have almost always received: heavy on recitations of his virtues, light on mentions of flaws that were really, of course, merely misunderstood manifestations of his greatness. There were, however, two unusual features of the Nelson celebrations. This article sketches those oddities and makes a couple of suggestions about their significance then and now.

Estimating the Effects of Immigration Enforcement on Local Policing and Crime: Evidence from the Secure Communities

By: Elina TreygerAaron ChalfinCharles Loeffler

Date Posted: 2014

No.: 14-09
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Abstract:

Recent changes in U.S. immigration enforcement have sought to complement strong border enforcement with a renewed emphasis on enforcement in the country’s interior. In 2008, the federal government introduced “Secure Communities,” a program that requires local law enforcement agencies to share arrestee information with federal immigration officials at the time of booking. Supporters of the program have argued that it will enhance public safety by facilitating the efficient removal of criminal aliens. Critics of the program have expressed concern that it will encourage local law enforcement agencies to engage in discriminatory or arbitrary policing practices, making arrests for the sole purpose of checking an individual’s immigration status. Since its introduction in 2008, the program has expanded to include all U.S. jurisdictions. We employ the staggered activation dates of Secure Communities across counties to examine whether the program has a detectable effect on the crime rates or the arrest behavior of municipal law enforcement agencies across U.S. cities. We do not observe any clear effect of the program on either crime or arrest patterns, suggesting that at least across the nation’s biggest cities, there is little evidence either for the most ambitious promises of the program or the greatest fears behind involving local law enforcement agencies in immigration enforcement.

Extrajudicial Reticence: Nine Justices Take a Brief Break from Constitutional Commentary

Abstract:

For a long time, Justices of the U.S. Supreme Court felt free to express their views about the Constitution not only in their judicial opinions, but also in their off-the-bench writing. There came a time, however, when they seemingly did not feel so free – just briefly, in 1991. And then things returned to normal. This article sketches the background and context of that stop-and-start, and then speculates about how and why it happened.

Response to ‘Pervasive Sequence Patents Cover the Entire Human Genome’

By: Shine TuChristopher M. Holman Adam MossoffTed M. SichelmanMichael RischJorge L. ContrerasYaniv HeledGregory DolinLee Petherbridge

Date Posted: 2014

No.: 14-07
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Abstract:

In a widely reported article by Jeffrey Rosenfeld and Christopher Mason published in Genome Medicine, significant misstatements were made, because the authors did not sufficiently review the claims – which define the legal scope of a patent – in the patents they analyzed. Specifically, the authors do not provide an adequate basis for their assertion that 41% of the genes in the human genome have been claimed.

The Hon. Diane P. Wood and the Case of the Missing Commission

Abstract:

A tribute to Chief Judge Diane P. Wood via a short memoir about the loss of her judicial commission, and her handling of its replacement and framing.

Behavior, Paternalism, and Policy: Evaluating Consumer Financial Protection

By: Adam C. Smith Todd Zywicki

Date Posted: 2014

No.: 14-05
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Abstract:

This paper examines the relationship between behavioral law and economics (BLE) as a policy prescription platform and its influence on the regulations emerging from the Consumer Financial Protection Bureau (CFPB). We show how these regulations are inconsistent with the intent and purpose of improving consumer choices. We further demonstrate that the selective modeling of behavioral bias in the BLE framework causes an overestimation of the ability of regulators, who in actuality use inefficient, heavy-handed rules based on little if any real empirical findings of “consumer irrationality.” Accordingly, the broader lesson on the misapplication of behavioral economics goes beyond the ill-considered policies emerging from the CFPB.

Uncertainty, Evolution, and Behavioral Economic Theory

By: Geoffrey A. Manne Todd Zywicki

Date Posted: 2014

No.: 14-04
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Abstract:

Armen Alchian was one of the great economists of the twentieth century, and his 1950 paper, Uncertainty, Evolution, and Economic Theory, one of the most important contributions to the economic literature. Anticipating modern behavioral economics, Alchian explains that firms most decidedly do not – cannot – actually operate as rational profit maximizers. Nevertheless, economists can make useful predictions even in a world of uncertainty and incomplete information because market environments “adopt” those firms that best fit their environments, permitting them to be modeled as if they behave rationally. This insight has important and under-appreciated implications for the debate today over the usefulness of behavioral economics.

Alchian’s explanation of the role of market forces in shaping outcomes poses a serious challenge to behavioralists’ claims. While Alchian’s (and our) conclusions are born out of the same realization that uncertainty pervades economic decision making that preoccupies the behavioralists, his work suggests a very different conclusion: The evolutionary pressures identified by Alchian may have led to seemingly inefficient firms and other institutions that, in actuality, constrain the effects of bias by market participants. In other words, the very “defects” of profitable firms — from conservatism to excessive bureaucracy to agency costs — may actually support their relative efficiency and effectiveness, even if they appear problematic, costly or inefficient. In fact, their very persistence argues strongly for that conclusion.

In Part I, we offer a short summary of Uncertainty, Evolution, and Economic Theory. In Part II, we explain the implications of Alchian’s paper for behavioral economics. Part III looks at some findings from experimental economics, and the banking industry in particular, to demonstrate how biases are constrained by firms and other institutions – in ways often misunderstood by behavioral economists. In Part IV, we consider what Alchian’s model means for government regulation (with special emphasis on antitrust and consumer protection regulation).

The Deportation Conundrum

Abstract:

The unauthorized immigration population on U.S. territory is estimated to stand at 11.5 million. What is to be done about this population? This question might be addressed by the currently uncertain efforts at comprehensive immigration reform. No reform, however, can obviate the need to think about the deportation conundrum– that is, about whether and when deportation is the appropriate response to widespread violations of immigration law. The public debate gravitates towards the misleading opposition of “mass deportation” and “amnesty.” These labels focus unduly on the level of enforcement, or the question of how many people should be deported and how many allowed to remain. This question fails to capture the substantive reasons that lead people to oppose or welcome immigrants in their vicinity and misconceives what is actually at stake in deportation policy. Deportation serves a dual function: it is a screening mechanism and a system of penalties for legal violations. Both of these functions dictate the need to prioritize enforcement on some basis that reflects the perceived costs and benefits that accompany immigrant presence. This Article argues that centrally crafted and nation-wide priorities turn out to be poor proxies for sorting immigrants on the relevant bases. The nature of the consequences of immigrant presence most relevant to priority setting calls for sub-federal participation in this task. Under the status quo, states and localities cannot meaningfully assert their own priorities, but they can overwhelm federal authorities with enforcement requests or obstruct federal enforcement through non-cooperation. In this way, all disagreements between the levels of government culminate in a stand-off regarding levels of enforcement. Opening alternative avenues for sub-federal actors to take part in priority-setting would exploit the sub-federal comparative advantage, and refocus the national debate on the questions about deportation that matter most.

“What Exactly Are You Implying?”: The Elusive Nature of the Implied Copyright License

Abstract:

Every copyright lawyer knows Effects Associates v. Cohen, the case of the exploding alien yogurt. The Ninth Circuit’s opinion raises—and doesn’t really answer—troubling doctrinal questions about the nature of an implied copyright license: Is it a kind of contract, and if so, what kind? What principles govern whether one exists and whether it can be terminated? Is it transferable by the licensee? Does it bind assignees of the copyright? And what sources of law should courts look to in deciding these matters?  

Building on prior work about the nature of a license interest, I provide an account of implied copyright license doctrine that seeks to answer these questions while staving off two different misconceptions. One is the faulty premise that licenses are contractual obligations, and that therefore findings of implied license must be somehow justified in accordance with state contract law. The other is the view that implied license is an open-ended invitation for courts to override owners’ rights of control in service of various policy goals. 

Distinguishing implied license from the adjacent doctrines of estoppel, exhaustion, and compulsory license, I show it to be rooted, not in contract, but in the same implied consent that is recognized as providing a defense to property and other torts. Implied license doctrine uses context-based default rules to allocate the burdens of seeking or disclaiming grants of permission, thereby discouraging opportunism and reducing transaction costs without harming copyright owners’ legitimate interests in control. In addition, I show how explaining implied license doctrine through a property framework resolves the problems of irrevocability, transferability, and choice of law that have long led to confusion in this part of the law.

 

Resolving Conflicts between Competition and Other Values: The Roles of Courts and Other Institutions in the U.S. and the E.U.

Abstract:

In this essay we compare and contrast the methods used by courts and other institutions in the United States and in the European Union to resolve the conflicts that inevitably arise between competition law and other laws, policies, and values. In the U.S., because its generally-worded antitrust statutes give judges great interpretive freedom, the courts, in the course of deciding concrete disputes,  play a large role in defining the boundary between antitrust and other bodies of law. In the E.U., competition law is effectively “constitutional” by virtue of its being part of the Treaty on the Functioning of the European Union, as a result of which the courts are more constrained in what they can do. At the same time, the Treaty permits the E.U.’s enforcement agency, the Directorate-General for Competition, to issue ex ante exemptions that serve to mediate between competition law and other laws and values. Flexibility is among the chief virtues of the U.S. approach to the reconciliation of conflicting concerns. The E.U. approach is less flexible but may provide greater predictability for private actors.

The Borkean Dilemma: Robert Bork and the Tension between Originalism and Democracy

Abstract:

As a constitutional theorist, the late Judge Robert Bork was best known for his advocacy of two major ideas: originalism and judicial deference to the democratic process. In some cases, these two commitments may be mutually reinforcing. But Judge Bork largely failed to consider the possibility that his two ideals sometimes contradict each other. Yet it has become increasingly clear that consistent adherence to originalism would often require judges to impose more constraints on democratic government rather than fewer. The tension between democracy and originalism is an important challenge for Bork’s constitutional thought, as well as that of other originalists who place a high value on democracy. We could call the trade-off between the two the “Borkean dilemma.”

Part I of this Essay briefly outlines Bork’s well-known commitments to both originalism and judicial deference to the democratic process. Part II discusses his failure to resolve the potential contradiction between the two. In Part III, I explain why the tension between originalism and deference has become an increasingly serious problem for originalists and briefly consider some possible ways to resolve, or at least minimize, the contradiction. Some of these theories have potential, especially the idea that many types of judicial review might actually promote rather than undermine popular control of government. Ultimately, however, none of them comes close to fully resolving the conflict between originalism and democracy. The consistent originalist will likely have to accept substantial constraints on democracy. The consistent adherent of deference to the democratic process will have to reject judicial enforcement of major parts of the original meaning of the Constitution.

Whither Symmetry? Antitrust Analysis of Intellectual Property Rights at the FTC and DOJ

Abstract:

In modern antitrust law, intellectual and other forms of property have been treated symmetrically as a matter of principle. Recent actions by the Federal Trade Commission and Antitrust Division of the Department of Justice, however, sound a departure from this salutary principle of symmetry. In this paper, we describe and defend the principle against the recent barrage of agency testimony and enforcement actions discouraging holders of standard essential patents from pursuing preliminary injunctions or exclusion orders; arguing that breach of a FRAND commitment constitutes an antitrust violation; and tightening merger review involving standard essential patents.

The Behavior of Federal Judges: A View from the D.C. Circuit

Abstract:

In their book The Behavior of Federal Judges, Professors Lee Epstein and William Landes and Judge Richard Posner offer many insights into the workings of the federal judiciary. Two of their findings, however, strike me as curious: (1) A high rate of dissent in the U.S. Court of Appeals for the District of Columbia Circuit, and (2) a significant ideological influence upon decisions of the courts of appeals generally. In this brief essay, I examine these findings based upon limited quantitative evidence and some direct observations drawn from 27 years of service on the D.C. Circuit.

The Interpretation-Construction Distinction in Patent Law

By: Tun-Jen ChiangLawrence Solum

Date Posted: 2013

No.: 13-69
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Abstract:

The ambiguity of claim language is generally considered to be the most important problem in patent law today. Linguistic ambiguity is believed to cause tremendous uncertainty about patent rights. Scholars and judges have accordingly devoted enormous attention to developing better linguistic tools to help courts understand patent claims.

In this Article, we explain why this diagnosis is fundamentally wrong. Claims are not often ambiguous, and linguistic ambiguity is not a major cause of the uncertainty in patent law today. We shall explain what really causes the uncertainty in patent rights, how the erroneous diagnosis of linguistic ambiguity has led the literature off track, and what will get us back on track to solving the uncertainty problem.

Ampersand, Tornillo, and Citizens United: The First Amendment, Corporate Speech, and the NLRB

Abstract:

Contrary to the Citizens United validation of a firm’s speech rights, and disregarding the possibility that government speech/press regulation could conceivably facilitate the outright regulation of the press, the NLRB recent opinion in Ampersand shrinks a newspaper’s First Amendment rights. Although it is possible that press activity plays an important role in public affairs as an antidote to government overreach and abuses of power, the NLRB deploys its power in a way that may threaten the free press. The NLRB’s decision in Ampersand fits conveniently, accidentally, or consciously within an arrangement illuminated by the dissent in Citizens United. This arrangement implies that when rights-bearing individuals pool their economic and ideological resources to form a firm that enters into commerce, their constitutional rights do not necessarily remain intact for a variety of public welfare reasons. Whether the latter claim is correct or not, the NLRB’s Ampersand opinion materializes as part of a wide-ranging labor movement effort to resuscitate unionization, premised on the thesis that workers’ yearning for an effective voice in the governance of their workplace has not waned in the face of union decline.

Opposing the NLRB’s decision-making in Ampersand, this Article defends Ampersand as a “person” within the meaning of the Constitution; a “person” that is, and ought to be entitled to control the editorial content of its newspaper despite the counterclaims of reporters seeking to organize within the meaning of the NLRA.  Lastly, this Article concedes that any defense of speech/press rights for employers must contend with the persistent efforts of labor advocates to diminish what the Constitution appears to protect. This maneuver suggests that speech/press rights are likely to remain contingently unstable in our postmodern world, which teeters between freedom and government coercion.

The Four-Factor Penn Central Regulatory Takings Test

Abstract:

The Article examines the ad hoc, multifactor, regulatory takings doctrine derived from Penn Central Transportation Co. v. City of New York. It analyzes the conventional three-factor characterization of the Penn Central tests, and concludes that a four-factor approach better captures the dynamics of Penn Central analysis. “Parcel as a whole,” conceptually regarded as delimiting the relevant parcel for the Penn Central inquiry, in fact interacts with the “economic impact,” “investment-backed expectations,” and “character of the regulation” tests.

While the four-factor analysis advocated here is conceptually better and enhances understanding of how Penn Central operates, the doctrine remains under-theorized, subjective, with its factors mutually referential, and unable to provide a reliable guide to courts or litigants.

Payday Lending, Bank Overdraft Protection, and Fair Competition at the Consumer Financial Protection Bureau

By: Robert Clarke Todd Zywicki

Date Posted: 2013

No.: 13-66
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Abstract:

The Consumer Financial Protection Bureau (CFPB) is considering new regulation of payday lending and bank overdraft protection. The Dodd-Frank Act, which established the CFPB, recognizes that consumers benefit from competition among providers of consumer credit products. That law requires the CFPB to preserve fair competition by providing consistent regulatory treatment of similar products offered by both bank and nonbank lenders. We illustrate how this mandate for fair competition applies to the regulation of payday lending and bank overdraft protection, products that are offered by different entities but attract an overlapping customer base, compete with each other directly, and raise similar consumer protection concerns. Unequal regulation would provide a competitive advantage for one product over another, resulting in reduced choice and higher prices for consumers, without a corresponding increase in consumer protection. Therefore, as the CFPB considers new regulation of these products, it should be careful to regulate them similarly to preserve fair competition. 

Feeding the Right Stuff

Abstract:

Being a feeder judge (that is, a judge whose clerks routinely go on to clerk for a Justice of the U.S. Supreme Court) must be difficult. Hard at the start of the process and, alas, sometimes even harder at the end. While a number of forthright scholars and judges have described the challenges at the start, information about difficult endings is in shorter supply. But not nonexistent.

Koontz in the Mansion and the Gatehouse

Abstract:

This Article focuses on problems in implementing the U.S. Supreme Court’s expansion of its doctrine of unconstitutional conditions pertaining to land development approvals in Koontz v. St. Johns River Water Management District. As earlier developed in Nollan v. California Coastal Commission and Dolan v. City of Tigard, the doctrine applied only to unrelated or disproportional exactions of interests in real property. The doctrine was expanded in Koontz to include denials of development approval after landowner refusal to accede to unreasonable exaction demands, and also to exactions of money as well as real property interests.

Drawing an analogy to Yale Kamisar’s disparate treatment of criminal defendants in the “mansion” of the judicial system and the “gatehouse” of the police station, the Article discusses difficulties in implementing Koontz. It examines the difficulty of enforcing prohibitions on unreasonable coercion in informal bargaining between land development approval applicants and local regulators. The Article concludes by discussing specific procedural and substantive problems, and proposes some partial solutions.

Local Government Law’s “Law and ___” Problem

Abstract:

Local government law scholarship has a “law and ___” problem. It should be relatively uncontroversial to note that, over the last forty years, most fields of legal scholarship have been profoundly transformed by the incorporation of the tools and analytical methods used in economics, political science, and other social scientific disciplines. Local government law has not been immune. It is not hard to find in local government law scholarship discussions of concepts drawn from economics and political science, as well as from a host of other disciplines. What is notable, and what I will show in this Essay, is that these references are, for the most part, extremely dated.

Specifically, I will argue that local government law has not kept up with the intellectual movements that have defined the last twenty or so years in the study of cities or politics. I will focus on the two areas of social science that have been among the most important influences on legal scholarship generally: economics and positive political science. But as I will discuss in the conclusion, the same point could be made with respect to other social scientific disciplines. Our field has had many successes, but it is being held back by a failure to keep up with contemporary social science.