Working Papers

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Bound print copies of George Mason School of Law’s working paper series on law and economics are available in the Law Library. The bound set often includes initial drafts of papers. Search Mason’s Classic Catalog to locate a working paper.

Recent Working Papers:

Does Price Discrimination Intensify Competition? Implications for Antitrust

By: James C. CooperLuke FroebDaniel O'BrienSteven Tschantz

Date Posted: 2014

No.: 14-30

Full text (most current version) on SSRN

Abstract:

As a general proposition, antitrust law is hostile to price discrimination. This hostility appears to derive from a comparison of perfect competition (with no price discrimination) to monopoly (with price discrimination). Importantly, economists have known for some time that some forms of price discrimination by oligopolists yield different welfare outcomes than price discrimination by a monopolist. This article focuses on the antitrust implications of price discrimination based on consumer location by spatial competitors that, in contrast to monopoly price discrimination, lowers prices for all consumers. In an important class of spatial models and many real world markets, the consumers to whom one firm would like to raise price – its strong market – are another firm’s weak market to which it would like to lower price. When this “best-response asymmetry” exists, the equilibrium outcome of spatial competitors reacting to each other’s discriminatory price reductions may be lower prices for all consumers and lower profits for all firms, compared to an equilibrium in which all firms offer uniform pricing to all consumers. We identify three areas of antitrust that could benefit from this economic insight: mergers of spatial competitors; the use of price discrimination to infer market power; and Robinson-Patman enforcement.

Competing Visions of Patentable Subject Matter

Abstract:

Although many people disagree about whether various types of subject matter (e.g. human genes, diagnostic tests, or business methods) are or should be patentable, they ostensibly agree on the overarching framework within which the issue is analyzed. Almost everyone in legal debates—in courts and in the scholarly literature—talks about patentable subject matter (PSM) in the consequentialist terms of promoting innovation and of maximizing utilitarian benefits while minimizing utilitarian costs. A solution to PSM debates is thus understood to involve merely the collection of better data and more empirical evidence to answer the utilitarian-economic question.

This Article challenges the widely shared premise. The ostensible consensus that everyone agrees that PSM law is about answering an agreed-upon utilitarian-economic question is an illusory one. In reality, debates about PSM law are not just about differences in empirical intuitions over economic costs and benefits; they are more importantly about differences in moral values, as well as about the relative weight of moral concerns vis-à-vis utilitarian concerns in patent law. Better data and more evidence will not resolve what is in reality a debate over first- and second-order normative commitments. Without candidly acknowledging and addressing the value differences that underlie PSM debates, the law in this area will remain an intractable mess.

A Return to Coercion: International Law and New Weapons Technologies

By: Jeremy RabkinJohn Yoo

Date Posted: 2014

No.: 14-28

Full text (most current version) on SSRN

Abstract:

In recent years, the U.S. has threatened air strikes against Syria and insisted on the possibility of air strikes against Iran, in both cases to deter development of weapons of mass destruction. Such threats represent a return to the idea that international law allows states to impose punitive measures by force. Most academic specialists claim that the UN Charter only authorizes force in immediate self-defense. Many commentators embrace the related doctrine that lawful force can only be exercised against the opposing military force. But there remains more logic in the older view, that international law authorizes force for a wider variety of challenges and against a wider range of legitimate targets. Since there is no global protective service, nations must use force more broadly in self-defense and greater powers must sometimes use force to resist the spread of weapons of mass destruction, to disrupt terror networks, to stop aggressive designs before they provoke all out war. There are good reasons to insist on restraints that limit loss of life among civilians, but civilian property does not have the same claims. But with today's technologies, cyber attacks or drone strikes can focus on carefully chosen civilian targets. That approach can help resolve disputes between nations with less overall destruction -- the ultimate purpose of the laws of war.

Removal: Necessary and Sufficient for Presidential Control

By: Neomi Rao

Date Posted: 2014

No.: 14-27

Full text (most current version) on SSRN

Abstract:

Legal and political uncertainty continues to surround the independent agencies. Courts and scholars have recognized that control over administration usually depends on political realities rather than on legal categories of "independence." This perspective, however, tends to disregard the constitutional boundaries for administration. Contrary to the conventional view, I explain why Congress's authority over agency structure must have judicially enforceable limits in order to prevent encroachment on the executive power. In light of the constitutional text and structure, this Article demonstrates that the ability to remove principal officers is necessary and sufficient for presidential control of the executive branch. This means that all agencies, including the so-called independent agencies, must answer to the President. The principle allows Congress and the President to operate within their respective spheres while leaving most questions about actual administrative control to the political process. Limits on the President's removal authority have always been in tension with the basic constitutional design and in recent years there has been growing dissatisfaction with the meaning, structure, and effects of independence. The precedents and functional justifications for supporting agency independence have largely collapsed. The issue is ripe for reconsideration. The constitutional structure requires presidential control and supervision over administration and the removal power provides the mechanism for the possibility of such control.

The Method of Law and Economics: Lectures on the George Mason School: Lecture 1-What Matters?

Abstract:

My objective in this course is to provide a general introduction to the method and content of the economic analysis of law, as it has been developed in the English-language literature, with emphasis on the contributions of those who are associated with what I believe will be known to history as the George Mason school of thought. Secondarily, I would like to use the course to convey some idea of the nature of instruction in American law schools.

Learning Law and Economics

Abstract:

The purpose of this book is to provide an elementary introduction to the body of thought known as “law and economics,” or alternatively as “economic analysis of law.” As is implied by its alternative name of economic analysis of law, the field of law and economics is concerned primarily with applying the methods of economic analysis to law and legal problems. Thus, law and economics primarily is a method of analysis; it is not a philosophy, political, moral, or otherwise; it is a tool. As such, it has achieved application across a spectrum of topics in law, and is used by people holding widely divergent perspectives on the legal process. Because of its increasing success in application, law and economics also can be viewed as a chapter in intellectual history, and one that is continuing today.

My aim in writing this book is two-fold. First, I seek to bring the essentials of law and economics to a wider audience, including those who are not professionally involved or previously trained in either law or economics. Second, the treatment here emphasizes an important aspect of economic analysis that too often is overlooked or de-emphasized in other introductory treatments, which is the economics of information production.

There are several excellent existing works on law and economics, including some introductory treatments, but these tend to be aimed at relatively specialized audiences, such as American law students or graduate economics students. My objective is to make law and economics accessible to the interested general reader, whether in the United States or elsewhere. As such, the book can be used as a text in undergraduate or graduate University courses, as well as law schools and economics graduate courses, or for self-study by others interested in the subject, whatever their prior background. Of necessity, my objective leads me to neglect certain topics and simplify others. However, simplicity need not produce a lack of sophistication. Overall, my aim is to show the broad usefulness of the few simple ideas that make up the law-and-economics paradigm. Detailed refinements or leading-edge critiques of the analysis, and debates over the normative implications of law and economics, largely are left to other works.

Who should be interested in learning law and economics? In my opinion, nearly everyone should be interested in learning something about law and economics, because its subject matter affects everyone who lives in society. Economics studies the conditions and consequences of human choice, and law is concerned with the conditions for human cooperation within a social group. Taken together, law and economics focus on the conditions for successful human cooperation within a society. Members of a society, which is most of us, all have an interest in meeting our own personal objectives within the social group, which may bring us into conflict with others. Economic analysis of law addresses the question of how those individual interests can be reconciled with one another.

Civil Procedure Reconsidered

Abstract:

The economic analysis of civil procedure can be enriched by a more thorough consideration of the productive functions of civil adjudication. The previous literature has recognized that civil adjudication does have products–conventionally described as dispute resolution services, plus precedents for future cases–but otherwise has tended to treat civil litigation as a tax on productive activity, or, worse yet, as unproductive or counter-productive rent-seeking activity.

While all of those perspectives can have their uses in certain contexts, they are all incomplete, because none captures an essential function of civil litigation within the legal system, which is learning, meaning the production of new knowledge or information, and not merely the exchange or revelation of pre-existing knowledge or information. Adding this perspective profoundly changes the economic analysis of civil litigation, which cannot thereafter be treated merely as a zero-sum (or negative-sum) game of strategic posturing and bargaining.

A more thorough consideration of the information-production function of civil adjudication presents a difficult and daunting task, because it requires more searching consideration of an obvious fact that has been recognized but not fully developed in the previous literature, which is that procedural law and substantive law act as both complements and substitutes for one another. This means that a full economic analysis of procedural law necessarily must account for its interactions with the substantive law that is sought to be enforced, which is inherently a complex undertaking. That approach also cuts against the usual instincts of analysts in all fields, which is to carve up the subject of study into more easily digestible parts for examination.

Therefore, the primary objective of this paper is to show why it is essential to consider the substance-procedure interaction in order to arrive at useful results. The implications are profound, because the substance-procedure interaction exposes the information-production function that lies at the heart of the civil adjudicative process: because neither parties nor tribunals nor the legal system can “know” anything until the point of definitive adjudication, the adjudicative process itself functions creatively and productively, much like the price system in open markets. Moreover, as adjudication is a substitute for as well as a complement to substantive law (or ex ante contracting), decisions to defer (or not defer) information production into the adjudicative stage themselves are productive decisions of economic moment. Therefore, the tradeoff between ex ante investment (as through contractual provisions, rules of substantive law, or parties’ decisions regarding their primary conduct) and ex post investment in adjudicative fact-finding is in no sense neglectable in the economic analysis of procedural law, but rather may be the single most important question to be examined.

In developing that thesis, this paper draws upon the insights of the Austrian economists, most notably Mises and Hayek. However, this is not a special “Austrian” perspective only, but a completely general point: once it is recognized that civil litigation creates a product in the form of new knowledge, then decisions to invest in litigation (versus its alternatives) must be treated not merely as “rent-seeking,” but also as embodying some element of innovation, and thus are analogous to other investments in new knowledge, such as research and development, or exploration for natural resources. Because the incentives affecting such investment decisions necessarily will affect the supply and price of new knowledge, then the rules of civil adjudication, no less than those of any other legal regulatory structure, will affect welfare through their effects on the creation and production of new information through litigation, or its alternatives.

The Perils of Regulatory Property in Land Use Regulation

Abstract:

“Regulatory property” is the right to engage in specified activities, made valuable by government prohibitions against competitors, and protected by de jure or de facto status as property. This Article explores regulatory property and focuses upon its applications in land use regulation. It considers, inter alia, transferrable development rights, exclusive leases of subsidized sports stadia, and urban revitalization condemnations for retransfer for pre-arranged private development. The Article concludes that these generally are unfair and inefficient practices.

O’Reilly v. Morse

Abstract:

O’Reilly v. Morse (1854) is a famous patent case. It is relied on by Justices and judges, discussed by scholars, and taught to students. Everyone agrees it was correctly decided: Chief Justice Roger Taney’s majority opinion stopped Samuel Morse’s attempt to control all telecommunication technologies with a patent that went far beyond his invented telegraph and encompassed modern email, fax machines and text messages. This conventional wisdom, however, is profoundly mistaken. It fails to account for the historical context in which Morse invented, patented, commercialized and ultimately was swept up in massive litigation over his innovative telegraph.

This paper corrects this anachronism by reinserting this full historical context back into our understanding of Morse. It details the invention and innovative commercial development of the telegraph, and it reveals that Chief Justice Taney’s opinion was not a sterling exemplar of patent law. Similar to his decisions in constitutional law and in other patent cases, Chief Justice Taney ignored established patent doctrines and instead decided the case on the basis of his own political biases. As a fervent Jacksonian Democrat, Chief Justice Taney viewed patents as state-granted monopolies, and not as property rights in technological innovation. It is only a happy accident for him that his judicial activism in O'Reilly v. Morse comported with much-later changes in patent law that made his opinion appear correct to our modern eyes — unlike Chief Justice Taney’s similar twisting of established law in Dred Scott to reach a result similarly dictated by his personal political preferences.

A Christmas Gift for the Supreme Court: How a 1959 Holiday Party Eclipsed a History of Discrimination

By: Ross Davies

Date Posted: 2014

No.: 14-21

Full text (most current version) on SSRN

Abstract:

On December 28, 1959, the New York Times published a little news item that was, in hindsight, both (1) a public relations triumph for Banning E. “Bert” Whittington, the U.S. Supreme Court’s Press Officer at the time, and (2) a jurisprudential and institutional relief for the Court. COURT DEFIES PRECEDENT: "One of the last institutions holding out against the Christmas Party succumbed last week. The Supreme Court had a pleasant but sober affair arranged by its press officer, Banning E. Whittington. Five of the Justices – Hugo L. Black, Felix Frankfurter, William O. Douglas, William J. Brennan Jr. and Potter Stewart – joined the small staff of employes. There were fruit punch, cookies and carols by a high school group, with some audience singing, too." The story has a tone that should ring familiar in the ears of modern consumers of Supreme Court news reporting: good-natured indulgence of that somewhat dull, somewhat behind the times, somewhat culturally clueless wallflower among our great institutions of national government. But the background to that story suggests that the Court was not at all clueless in 1959. Indeed, the Court’s handling of that Christmas party, and the Times coverage of it, may have helped the Court occupy the high ground during its continuing campaign in the 1960s against racial discrimination.

Affirmative Action: Between the Oikos and the Cosmos

Abstract:

This essay reviews Sander & Taylor’s book, MISMATCH: HOW AFFIRMATIVE ACTION HURTS STUDENTS IT’S INTENDED TO HELP, AND WHY UNIVERSITIES WON’T ADMIT IT (MISMATCH) by situating its claims within a context. Context is supplied by examining three things: first, by reflecting on the contradictions embedded in the modern world; second, by exploring the paradoxes of Supreme Court jurisprudence; and finally, by observing the gulf between the cosmopolitan ideal predicated on appeals to Americans as citizens of the world who are provoked by reason and love of humanity and bounded only by universal moral obligations on the one hand, and a vision that sees citizens of the United States as individuals who are bounded by the primacy of their commitment to the nostos comprised by the local community of birth and the particularities of family and nation, on the other.

Several reasons spark this review of MISMATCH. First, the authors contend that they have “demonstrated that the present system of racial admissions preferences has grave problems and has shown a remarkable incapacity to heal itself,” a thesis that is made all the more puzzling given their corresponding claim that the United States “Supreme Court seems to be the only hope for serious and stable reform” of our current affirmative action system. Second, William Kidder and others have raised a number of serious issues that indicate Sander & Taylor have too often relied on either questionable data or incomplete data analysis. Third, the Court’s recent decision upholding the state of Michigan’s ban on racial preferences. Fourth and finally, the possibility that diversity as practiced within leading American universities has been transmuted into racial commodification. These factors, taken together, suggest that it is a propitious time to review the authors’ scholarship.

 

From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law

Abstract:

This article focuses on the role Justice Louis Brandeis played as a transitional figure in writing opinions that served as a bridge between the statist Progressives of the early twentieth century and mid-century legal liberals.

Brandeis was known as a civil libertarian in his day because he supported freedom of speech and labor union rights, which were the rights that the nascent left-leaning civil libertarian movement held most dear. But Brandeis was far from a consistent civil libertarian as the term has been understood since at least the Warren Court period. Nevertheless, Brandeis was responsible for guiding the Progressive wing of the Court away from the more consistently statist, deferential-to-democratic-majorities path charted by Justice Holmes to an agenda more accommodating to libertarian and equalitarian concerns.

Part I of this Article discusses Brandeis’s many deviations from civil libertarianism as it came to be understood in the post–New Deal period. These deviations include his acquiescence to coercive eugenics, his general lack of interest in African American rights, his support for protective labor legislation for women and concomitant disregard for women’s legal equality, his toleration of government abuses attendant to Prohibition enforcement, and his desire to repeal the Fourteenth Amendment.

Part II shows that despite these deviations, Brandeis had a significantly stronger record on civil liberties as a Supreme Court Justice than one would expect from someone of his Progressive outlook and background. Brandeis’s votes in favor of civil liberties created a civil libertarian corpus from the Progressive wing of the Supreme Court. This prevented judicial protection of what became core civil libertarian concerns from being associated primarily with the soon-to-be-discredited “Lochner Court,” and made it much easier doctrinally for later generations of liberal Justices to abandon early twentieth-century Progressivism’s blanket hostility to judicial review in favor of a jurisprudence favoring civil rights and civil liberties.

Price Controls on Payment Card Interchange Fees: The U.S. Experience

By: Todd ZywickiGeoffrey A. ManneJulian Morris

Date Posted: 2014

No.: 14-18

Full text (most current version) on SSRN

Abstract:

The Durbin Amendment to the Dodd-Frank financial reform legislation capped debit card interchange fees for banks with assets of $10 billion. Credit card and prepaid card interchange fees were not regulated. The cap, which took effect on October 11, 2011, cut the average interchange fee for covered banks from $0.50 to $0.24 per transaction.

The cap reduced annual revenues from interchange fees by between $6 billion and $8 billion. Covered banks have recouped these losses in indirect ways. In particular, they have:

  • Reduced the availability of fee-free current accounts. The total number of banks offering free current accounts fell by 50% between 2009 and 2013. In comparison, fee-free banking actually increased at banks not subject to the Durbin Amendment.
  • More than doubled the minimum monthly holding required on fee-free current accounts between 2009 and 2012, from around $250 to over $750.
  • Doubled average monthly fees on (non-free) current accounts between 2009 and 2013, from around $6 to more than $12.
  • These fee increases and loss of access to free checking contributed to an increase in the unbanked population of approximately 1 million people, mainly among low-income families.
  • Consumers have shifted their payment usage from debit cards to credit and prepaid cards, which were not subjected to price controls.

 

Most large retailers have seen significant cost reductions as a result of the Durbin Amendment, yet to date there is no evidence that those cost savings have been passed-through to consumers. Interchange fees have increased for merchants that make small-ticket transactions, as networks have eliminated discounts that they previously received, and smaller merchants have not seen any reduction in their merchant discount rates. Thus, while consumers have seen large and immediate increases in the cost of bank accounts, to date there is no evidence of reduced prices at the pump or checkout. We estimate that as a result of the Durbin Amendment, there will be a transfer of $1 billion to $3 billion annually from low-income households to large retailers and their shareholders, which have been the primary beneficiaries of the Durbin Amendment to date.

Natural Experiments in Mobile Phone Regulation: Estimated Effects of Prohibiting Handset Bundling in Finland and Belgium

By: Thomas HazlettSarah OhBrent Skorup

Date Posted: 2014

No.: 14-17

Full text (most current version) on SSRN

Abstract:

Vertical restrictions have theoretically ambiguous efficiency effects. Marketplace evidence is therefore required to reveal the presence of anti-competitive foreclosure. The bundling of mobile phones with cellular network service offers one such market test. Two European nations—Finland and Belgium—prohibited tying arrangements for mobile service and mobile devices (handsets) in wireless broadband (3G) markets. These rules were abandoned in 2006 and 2010, respectively, creating natural experiments.

This article compares 3G subscribership in European countries from 2003 through 2012. Finland and Belgium, while banning bundles, exhibited 3G penetration levels only about a third of the EU 15 average. Following their respective regime switches, relative 3G penetration levels improved markedly in these countries—Finland, in fact, became an EU leader. Regressions adjusting for market specific factors quantify the effects. The data are consistent with the view that carrier handset subsidies, which are strongly supported by bundling services with hardware, help internalize network effects that, if unsupported by the network carriers, may go unrealized. Vertical integration here appears to assist in productive ecosystem creation, not anti-competitive foreclosure.

Efficient Spectrum Reallocation With Hold-Ups and Without Nirvana

Abstract:

In 2010, the U.S. Federal Communications Commission (FCC) determined that up to 20 television channels should be shifted to mobile services. If successful, the reform could generate over $1 trillion in social gains. To achieve these efficiencies, regulators rejected traditional tools, which would have terminated existing wireless licenses, as too contentious. Instead, they chose to create a two-sided auction in which incumbent TV licensees state their offer prices to exit (broadcasting), being paid from the winning bids for mobile licenses (granted access to the reallocated TV spectrum). The FCC conducts this “incentive auction” and, importantly, unilaterally reassigns TV channels for stations remaining on the air. These involuntary transfers are designed to eliminate station hold-ups, allowing new blocks of contiguous spectrum (more valuable than scattered frequencies of equivalent bandwidth) to be made available for mobile licenses. A rival policy option – “overlay licenses” – would grandfather existing TV stations and then auction new licenses permitting liberal use of the TV Band (i.e., not restricted to broadcasting). Overlay winners could then bargain with TV stations to make more bandwidth available for mobile broadband. Policy makers rejected this approach on the grounds that incumbent TV licensees would engage in strategic hold-up, pre-empting efficient deals. But so, too, are hold-ups endemic in the design and implementation of incentive auctions; to asymmetrically ignore these costs is to commit the Nirvana Fallacy. This paper offers a template to avoid the Fallacy, evaluating transaction costs across the rival policy regimes. A first order quantification suggests that the costs of incentive auctions have been substantially under-estimated by regulators, perhaps reflecting confirmation bias and a principal-agent conflict in the assessment of policy options.

Brief of Amici Curiae Professors of Intellectual Property Law in Support of Google, Inc. and YouTube, LLC’s Petition for Rehearing En Banc in Garcia v. Google, Inc.

By: Christopher NewmanJulie AhrensChristopher Sprigman

Date Posted: 2014

No.: 14-15

Full text (most current version) on SSRN

Abstract:

Amici are law professors who teach and write about copyright law. Amici are concerned that the Court’s opinion in this case, Garcia v. Google, Inc. (No. 12-57302), misinterprets a foundational element of the copyright law: the baseline requirements for copyrightability. Further, Amici anticipate that this Court’s decision, unless corrected, will create significant practical difficulties for firms and individuals producing the creative works that copyright is intended to incentivize.

A “Bare … Purpose To Harm”? Marriage and Catholic Conscience Post-Windsor

Abstract:

In United States v. Windsor, while the Supreme Court did not treat the question of religious exemptions from state laws recognizing same-sex marriage, the case could nevertheless affect the success of future efforts to attain religious exemptions. Windsor strongly suggested that any view of marriage excluding the possibility of same-sex unions is irrational and even hateful. Religious institutions and individuals, however, particularly the Catholic Church, are leading proponents of the view that opposite-sex marriage is uniquely valuable. Also for Catholics, this view forms a central and nonseverable part of a theological worldview encompassing teachings about matters such as the identity of God, and the meaning and purpose of life as servant love. Refusing to exempt Catholics from cooperating with same-sex marriage is therefore tantamount to denying them the right to practice their faith, or even insisting that they practice a different faith.

In order to address the matter of religious freedom in the context of state-recognized same-sex marriage, post-Windsor, this article will proceed as follows: Part I. will set forth Windsor’s treatment of the nature of marriage and its characterization – as “animus” – of a refusal to recognize a marital union between two persons of the same sex. Part II. will set forth the elements constituting the cosmological and anthropological significance of Catholic teachings about marriage. Part III. will discuss the benefits offered to a pluralistic society by its continuing to allow a visibly Catholic witness on marriage. It will also acknowledge practical hurdles to such a resolution.

Recognition and Volition: Remembering the Retirement of Justice Gabriel Duvall

By: Ross Davies

Date Posted: 2014

No.: 14-13

Full text (most current version) on SSRN

Abstract:

When Gabriel Duvall resigned from the U.S. Supreme Court in January 1835, he became its first conventional retiree – the first Justice to voluntarily leave the Court after making a career of it. Everyone before Duvall had either died in office or left after serving briefly (anywhere from four months to five years). Duvall served for more than 23 years. By leaving while still alive, after long service, and at an advanced age (he was 82), Duvall: (a) gave his fellow Justices their first occasion to publicly salute a departing colleague who had devoted himself to the Court, and (b) gave himself a dignified, respectable ending to a long and successful career in the law. But his colleagues did not rise to the occasion, and history has not granted him that ending. This little article is an attempt to partially offset those defects.

Schuette v. Coalition to Defend Affirmative Action and the Failed Attempt to Square a Circle

Abstract:

The question presented to the Supreme Court in Schuette v. Coalition to Defend Affirmative Action is, “Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions.” Given that the Supreme Court barely tolerates affirmative action preferences, it is exceedingly unlikely to endorse a lower court ruling that overturns a state ban on them.

Nevertheless, it is worth examining the reasoning of the Sixth Circuit's decision in Schuette, because it exemplifies many interesting nuances regarding the debate over the constitutionality of affirmative action preferences, nuances that were mostly ignored in the dissenting opinions. Judge Cole's opinion demonstrates (1) that despite decades of jurisprudence permitting state university affirmative action preferences only if used for “diversity” purposes, its legal advocates, including federal judges, still act under the assumption that the purpose of preferences is to benefit students who are members of underrepresented minority groups; (2) some affirmative action advocates cling to an obsolete model of American politics that posits that African Americans and members of other minority groups lack any substantial political power; (3) some affirmative action advocates tend to discuss the issue as if the only groups affected are African Americans and whites, neglecting both that Asian Americans tend to be harmed by university admissions' preferences, and that African Americans are a shrinking minority of those eligible for preferences, with Hispanics a significantly larger and faster-growing demographic group; and (4) affirmative action advocates tend to be dismissive of the claim that race is different and more problematic than other criteria that university officials may consider in admissions, for moral, historical, and practical reasons. While not unassailable, these reasons seem to provide a significant non-arbitrary rationale for state voters to ban official reliance on race and ethnicity.

The Second Amendment and the Inalienable Right to Self-Defense

By: Nelson Lund

Date Posted: 2014

No.: 14-11

Full text (most current version) on SSRN

Abstract:

This paper provides a very concise introduction to the history of the Second Amendment and the case law as it stands today.