Faculty 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:

Metaphysical Univocity and the Immanent Frame: Defending Religious Liberty in a Secular Age?

Abstract:

This article is the first installment of three articles. This article examines and appropriates concepts such as metaphysical univocity (a scheme initiated by John Duns Scotus and enriched by insights proffered by Muslim philosopher Ibn Sīnā) and then considers the immanent frame as part of my defense of religious liberty. The second installment applies my defense to current controversies in the United States. The third installment utilizes ideas and concepts from the first two articles as part of a comparative study of religious liberty in Turkey wherein I considers the status of religious minorities within Turkey’s borders. This tri-part study is sparked by the contention that:

The freedom to practice one's chosen faith is of vital importance to the United States. It was a quest for religious freedom that motivated many of America's founders, and this remains fundamental to [the United States]. As President Obama said in 2010, "The principle that people of all faiths are welcome in [our] country, and will not be treated differently by their government, is essential to who we are." Today, throughout the world and indeed even here in the [Organization for Security & Cooperation in Europe] (OSCE), governments and societies are struggling with rising religious diversity even as they are called upon to protect the fundamental rights of individuals in all communities who seek to practice their own religious beliefs.

As [former] Secretary Clinton put it, "religious freedom provides a cornerstone for every healthy society." The right to believe or not to believe, and to practice one’s convictions without fear of government interference or restriction, is a basic human right. Today, religious freedom is restricted in ways both overt and subtle in too many countries, including participating States. [Ambassador Ian Kelly, United States Mission to the OSCE, Delivered at the OSCE (March 3, 2011).]

The first installment of this project shows there are, indeed, grounds for pessimism regarding the fate of religious liberty in both the Latin West and the United States.

Judicial Treatment of Daubert Motions: An Empirical Examination

By: James C. Cooper

Date Posted: 2015

No.: 15-12

Full text (most current version) on SSRN

Abstract:

In 1993, the Supreme Court established a new standard for the admissibility of expert evidence with its decision in Daubert v. Merrell Dow Pharmaceuticals. Daubert, provided an interpretation of Federal Rule of Evidence 702 that replaced the “general acceptance” standard under Frye v. United States, with one that focuses on methodological rigor. Several studies have attempted to examine the extent to which Daubert has been an effective gatekeeper in purging “junk science” from the courtroom. Rather than attempting to measure impacts from Daubert, this study examines the way in which courts handle Daubert motions. Utilizing a sample of 2,127 Daubert motions made in 1,010 private civil federal district court cases from 2003-2014, and involving 57 different causes of action, this paper empirically examines how courts handle Daubert motions. The data suggest that Daubert rulings serve as inflection points in litigation, and that the longer a Daubert motion pends with the court, the lower the odds of settlement. Using a Cox proportional hazards model, I estimate that the relative odds of settlement is nearly ten-times lower for cases with median motion pendency times compared to those in the 10th percentile, and cases with pendency times in the 90th percentile are three times less likely to settle than those with median pendency durations. The apparent impact of Daubert rulings on case termination suggests that courts might reduce litigation time and costs if they were to adopt “Lone Pine”-type procedures that structure expert discovery and concomitant Daubert motions early, especially for claims that require expert testimony to prove certain elements.

Patent Assertion Entities and Antitrust: A Competition Cure for a Litigation Disease?

Abstract:

PAEs have been much in the news because of certain practices that imply their demand for royalties is nothing more than extortion based upon the nuisance value of a lawsuit the PAE might bring, or explicitly threatens to bring, if no agreement is reached with the party practicing the patent. The PAE phenomenon has prompted suggestions that the antitrust laws be applied to limit the effect that PAEs have upon innovation by the companies most affected, typically those in the high-tech sector.

We conclude there is no evidence at this point that PAEs create a new or unique antitrust problem, that their business model warrants more or less scrutiny than others as a matter of antitrust analysis, or that competition enforcement agencies would be coming to the aid of consumers by devising creative extensions of or departures from the standard antitrust framework in order to address PAEs’ conduct and business arrangements. If and when PAEs present legitimate antitrust problems by acquiring or otherwise creating market power to anticompetitive ends, which is certainly possible, the standard antitrust framework is fully capable of reaching that conduct and providing adequate remedies.

This is not to say some activities of PAEs are not problematic or do not call for law reform insofar as PAEs are exploiting aspects of the litigation system to extract settlements based not upon the merits of their claims but rather upon the cost of defending against them. The rise of PAEs, however, does not mark the first time lawyers have found a way to profit from bringing or threatening to bring cases purely for their settlement value. Indeed, this has been a recurring problem, though it has arisen in a variety of otherwise unrelated types of litigation.

Therefore, we suggest caution before changing substantive antitrust standards or enforcement policies to reach PAEs rather than proceeding upon the reasonable premise that the inefficiencies associated with PAEs are the result of a litigation problem.

Amicus Brief in Obergefell v. Hodges

By: Andrew Koppelman Ilya Somin

Date Posted: 2015

No.: 15-10

Full text (most current version) on SSRN

Abstract:

This Supreme Court amicus brief argues that denial to same-sex couples of the right to marry is sex discrimination.

If April DeBoer were a man, or James Obergefell a woman, or Valeria Tanco a man, or Greg Bourke a woman, then state law would readily give them the relief they seek. But because the state laws challenged in these cases provide that only a man can marry a woman and only a woman can marry a man – or that existing marriages will be denied recognition if they do not fi t this description – April and James and Valeria and Greg are being discriminated against on the basis of their sex. Such gender-based classifications constitute sex discrimination. Accordingly, they must be subjected to intermediate scrutiny.

NFIB v. Sebelius and the Constitutional Debate over Federalism

By: Ilya Somin

Date Posted: 2015

No.: 15-09

Full text (most current version) on SSRN

Abstract:

The litigation that culminated in the Supreme Court’s ruling in NFIB v. Sebelius represented a class between two opposing visions of constitutional federalism: one contending that courts should allow Congress nearly unlimited power over anything that might potentially affect the national economy, and another that advocates strong judicial enforcement of constitutional limits on federal authority. This clash can be traced through all three arguments offered to justify the Affordable Care Act individual health insurance mandate: claims that it was authorized under the Commerce Clause, the Necessary and Proper Clause, and the Tax Clause. It also lies at the heart of the otherwise distinct debate over the constitutionality of the ACA’s Medicaid expansion.

Efforts to justify the mandate or the Medicaid expansion without giving Congress virtually unlimited power fall apart under close inspection. The same is true of Chief Justice John Roberts’ opinion holding that a modified version of the individual mandate is authorized by the Tax Clause, though not by the other two clauses cited by the government.

Neither side in the conflict over constitutional federalism won a decisive victory in NFIB. Events since that ruling demonstrate that the debate between them is likely to continue for a long time to come.

NFIB is noteworthy for the way it made clear the depths of the division between the two visions of federalism. It may also have been the first major Supreme Court case in which the blogosphere played a major role in developing legal arguments and shaping public debate. Both the conflict over federalism and the role of the blogosphere in shaping legal debate are likely to recur in future cases.

The Costs of Regulatory Redundancy: Consumer Protection Oversight of Online Travel Agents and the Advantages of Sole FTC Jurisdiction

By: James C. Cooper

Date Posted: 2015

No.: 15-08

Full text (most current version) on SSRN

Abstract:

Every administration in recent history has attempted to reduce regulatory redundancies. One area of regulatory redundancy that deserves attention is the FTC’s and Department of Transportation’s (DOT) consumer protection authority over online travel agents (OTAs), which generated $111 billion in revenue last in 2013. This regulatory redundancy guarantees that two agencies will oversee OTAs, prevents harmonization of online consumer protection policy, and is likely to impose unnecessary costs on OTAs to adhere to two separate regulatory regimes. The importance of this conflict will grow as privacy and data security become preeminent consumer protection issues and DOT expands its jurisdiction to online information providers. Efficiency suggests the FTC as the sole consumer protection overseer of OTAs. Only the FTC has the current capacity to regulate all OTA activities, and it enjoys unrivaled expertise with respect to e-commerce consumer protection. Further, in contrast with FTC’s ex post enforcement approach, which focuses on actual or likely consumer harm, DOT’s ex ante regulatory approach is ill-suited for the fast moving world of e-commerce. Finally, the FTC faces more serious internal and external constraints on its enforcement authority, which tends to temper the potential for regulatory overreach. There are several possible ways to effect this regulatory reform, ranging from the complete abolition of DOT’s aviation consumer protection authority and the FTC Act’s common carrier exemption, to a memorandum of understanding between FTC and DOT that harmonizes policy.

Living Originalism: The Magical Mystery Tour

By: Nelson Lund

Date Posted: 2015

No.: 15-07

Full text (most current version) on SSRN

Abstract:

In a brilliant theoretical maneuver, Professor Jack Balkin has proposed to marry originalism and living constitutionalism. His move resembles President Jefferson’s appeal to Americans, in his First Inaugural Address, to accept that “we are all Republicans, we are all Federalists.” If Balkin’s goal is to send originalism to the same fate as the Federalist Party, he has already made substantial progress.

This short essay begins with a summary of the core features of Balkin’s theory. It then turns to the recent work of Professor Steven G. Calabresi. A founder of the Federalist Society who clerked for Judge Robert Bork and Justice Antonin Scalia, Calabresi was also a special assistant to Attorney General Meese and a speechwriter for Vice President Quayle. He went on to become one of the most frequently cited academic originalists of his generation, but he has now fully converted to Balkin’s “living originalism.”

Calabresi’s conversion suggests that wedding bells are ringing pretty loudly for Balkin’s union of two theories that were once thought to be irreconcilable. This essay argues that the marriage will leave originalism in much the same position as the legal death that married women experienced under the old rules of coverture.

On Engineering Urban Densification

Abstract:

City planning in America began as a Progressive Era exercise, intended to pre-serve property values and implicitly incorporate the social norms of officials and planners. Over time, rigid zoning was replaced by flexibility, accompanied by opaque bargaining between localities and developers. Still, even in vibrant large cities, homeowner preferences for low density largely prevailed over attempts to enhance agglomeration through increasing density. The effect is to reduce economic opportunity for individuals, and cities less prosperous.

One method of increasing agglomeration is the imposition of densification, utilizing the assembly of transient coalitions that could impose grand bargains between alderman and strong mayors. Expert planners would devise detailed quotas for desirable and undesirable uses in different parts of the city, and recipients of favorable zoning would receive regulatory property that is locked in place by procedural and constitutional requirements. Roderick Hills and David Schleicher advocate this approach in City Replanning.

This Article reviews the history of idealistic, and later pragmatic, comprehensive planning and zoning. It then analyzes the case for agglomeration, and how it might be obtained through density mandates. The Article subsequently reviews undesirable consequences of such mandates. It asserts that grand bargains attenuate democratic decisionmaking, significantly reinforce the perceived evils of the current system, and are apt to be ineffective.

Preemption in the Rehnquist and Roberts Courts: An Empirical Analysis

By: Michael GreveJonathan KlickMichael PetrinoJ.P. Sevilla

Date Posted: 2015

No.: 15-05

Full text (most current version) on SSRN

Abstract:

This article presents an empirical analysis of the Rehnquist Court’s and the Roberts Court’s decisions on the federal (statutory) preemption of state law. In addition to raw outcomes for or against preemption, we examine cases by subject-matter, level of judicial consensus, tort versus regulatory preemption, party constellation, and origin in state or federal court. We present additional data and analysis on the role of state amici and of the U.S. Solicitor General in preemption cases, and we examine individual justices’ voting records. Among our findings, one stands out: over time and especially under the Roberts Court, lawyerly preemption questions have assumed a distinctly ideological flavor. Preemption cases are much more likely to be contested than they were in earlier decades; and in those cases, once-rare judicial bloc voting has become common.

The Mainstreaming of Libertarian Constitutionalism

Abstract:

Libertarian constitutional thought is a distinctly minority position among scholars and jurists, one that at first glance has little connection with either modern Supreme Court jurisprudence or the liberalism that remains dominant in the legal academy. However, libertarian ideas have more in common with mainstream constitutional thought than at first meets the eye. They have also had greater influence on it.

This article explores the connections between mainstream and libertarian constitutional thought in recent decades. On a number of important issues, modern Supreme Court doctrine and liberal constitutional thought has been significantly influenced by pre-New Deal libertarian ideas, even if the influence is often unconscious or unacknowledged. This is particularly true on issues of equal protection doctrine and modern “substantive” due process as it pertains to “noneconomic” rights. Here, both the Supreme Court and much of the mainstream academic left have repudiated early twentieth century Progressivism, which advocated across-the-board judicial deference to legislatures. They have also rejected efforts to eliminate common law and free market “baselines” for constitutional rights.

The gap between libertarian and mainstream constitutional thought is much greater on issues of federalism and property rights. Here too, however, recent decades have seen significant convergence. Over the last thirty years, the Supreme Court has begun to take federalism and property rights more seriously, and the idea that they should get strong judicial protection has attained greater intellectual respectability. Moreover, much of libertarian constitutional thought merely seeks to apply to federalism, property rights, and economic liberties, the same principles that mainstream jurists and legal scholars have applied in other areas, most notably “noneconomic” constitutional rights and separation of powers.

Giving It Away at The Strand: A Short Story of Rights and Relationships in Intellectual Property

By: Ross Davies

Date Posted: 2015

No.: 15-03

Full text (most current version) on SSRN

Abstract:

In early 1916, Arthur Conan Doyle (the versatile and productive Victorian/Edwardian-era writer remembered nowadays mostly for his Sherlock Holmes stories), sent a letter and a package to Herbert Greenhough Smith, his longtime editor at The Strand Magazine. Could it be that Conan Doyle was having a little fun, making a slightly grim legal joke about his demand that the Strand return his old manuscripts? He may well have known enough about intellectual property law, or about the history of publishing, to be aware that some of the most important ownership-of-manuscript lawsuits had involved letters and diaries. And in “The Adventure of the Golden Pince-Nez” (the story in the package Conan Doyle had sent) the killing of an innocent person – a character who might have been based on Herbert Greenhough Smith – happens during a righteous attempt by another person to recover wrongfully withheld letters and a diary.

The Law and Economics of Proportionality in Discovery

By: Jonah Gelbach Bruce Kobayashi

Date Posted: 2015

No.: 15-02

Full text (most current version) on SSRN

Abstract:

This paper analyzes the proportionality standard in discovery. Many believe the Advisory Committee's renewed emphasis on this standard has the potential to infuse litigation practice with considerably more attention to questions related to the costs and benefits of discovery. We discuss the history and rationale of proportionality's inclusion in Rule 26, adopting an analytical framework that focuses on how costs and benefits can diverge in litigation generally, and discovery in particular. Finally, we use this framework to understand the mechanics and challenges involved in deploying the six factors included in the proportionality standard. Throughout, we emphasize that the proportionality standard requires both difficult-to-answer positive questions and unavoidably normative judgments.

Like Uber, But for Local Governmental Policy: The Future of Local Regulation of the “Sharing Economy”

By: Daniel Rauch David Schleicher

Date Posted: 2015

No.: 15-01

Full text (most current version) on SSRN

Abstract:

In the past five years, “sharing economy” firms like Uber, ZipCar, AirBnB and TaskRabbit have generated both huge market valuations and fierce regulatory contests in America’s cities. Incumbent firms in the taxi, hotel and other industries, as well consumer protection, labor and neighborhood activists, have pushed for regulations stifling or banning new sharing economy entrants. Sharing firms have fought back, using their popularity with consumers and novel political strategies, lobbying for freedom to operate as broadly as possible without government interference. But to date, both participants and observers of these “sharing wars” have relied on an unstated assumption: if the sharing firms win these fights, their future will be largely free from government regulation. Local governments will either shut sharing down, or they will leave it alone.

But this assumption is almost surely wrong. If sharing firms prevail in the current fights over the right to operate (and indications suggest they will), it is unlikely that cities and states ignore them. Instead, as sharing economy firms move from being upstarts to important and permanent players in key urban industries like transportation, hospitality and dining, local and state governments are likely to adopt the type of mixed regulatory strategies they apply to types of firms with whom sharing firms share important traits, from property developers to incumbent taxi operators. Using tools of agglomeration economics and public choice, this Article sketches the future of such policy regimes.

Specifically, local and state governments will adopt some combination of the following policies in addition to insisting on consumer/incumbent protections: (1) subsidizing sharing firms to encourage expansion of services that produce public goods, generate substantial consumer surplus and/or minimize the need for excessive regulation of the property market; (2) harnessing sharing firms as a tool for redistribution; and/or (3) contracting with sharing firms to provide traditional government services. The future of sharing economy regulation will be very different from its present, and the changes will pose profound legal, political and ethical questions for our cities.

Anglo-American Dissent From the European Law of War: A History with Contemporary Echoes

Abstract:

Additional Protocol I to the Geneva Conventions (1977) lays down the “basic rule” that attacks must not be directed at “civilian objects” any more than at “civilians.” Red Cross commentators and others assert that the law of war has embraced this “rule” for many centuries. In fact, the leading commentators in Britain and America disputed this rule in the Nineteenth Century and well into the Twentieth Century. They defended naval seizures of private property as a perfectly reasonable war measure, along with raids on private property of the sort exemplified by General Sherman’s Georgia campaign in the Civil War. Even European commentators, arguing for complete immunity of civilian objects in war, traced the doctrine not to remote tradition but to the mid-18th Century doctrines of Jean-Jacques Rousseau. In the hands of German interpreters, that doctrine was invoked to justify extreme brutality against “resistance” to invading armies. Even today, the “basic rule” does not serve the reasonable claims of humanity in all circumstances.

Opening Pandora’s Black Box: A Coasian 1937 View of Performance Rights Organizations in 2014

Abstract:

This article applies Ronald Coase’s analysis from his 1937 article on the Nature of the Firm to analyze the large music publishers’ recent decisions to withdraw “new media” digital rights to publicly perform musical compositions from the performing rights organizations ASCAP and BMI. The analysis examines how these publishers’ costs and benefits of using ASCAP and BMI have changed over time from technology and from the constraining effects of the 1941 antitrust decrees that govern ASCAP and BMI. Taking the effects of these changes into account, the music publishers’ decisions to use direct market transactions, despite substantial transactions costs savings associated with use of the performing rights organizations, is consistent with the broader comparative and dynamic analysis of the marginal costs and benefits of using these organizations contemplated by Coase in his 1937 paper.

Holmes, Coase & Blackmail

By: Ross Davies

Date Posted: 2014

No.: 14-66

Full text (most current version) on SSRN

Abstract:

From beginning to end, the Holmes-versus-Milverton story is peppered with law. At the start, for example, law determines when Watson can tell the story at all. And it is a legal document that Milverton – an infamous blackmailer – is reading moments before his timely end. The story also features a distinctive type of lawlessness – at least by modern standards – that runs through the “Canon” (the 60 Holmes stories with an Arthur Conan Doyle byline): a blackmailer is almost always confronted by, and is often killed by, a blackmail victim exerting deadly force. Holmes has no objection to victims (at least some of them) killing their blackmailers, as he explains when asked by Inspector Lestrade of Scotland Yard to help search for suspects in the Milverton killing: “Well, I am afraid I can’t help you, Lestrade,” said Holmes. “The fact is that I knew this fellow Milverton, that I considered him one of the most dangerous men in London, and that I think there are certain crimes which the law cannot touch, and which therefore, to some extent, justify private revenge. No, it’s no use arguing. I have made up my mind. My sympathies are with the criminals rather than with the victim, and I will not handle this case.” Holmes is endorsing vigilantism, a dubious stance for a sophisticated proponent of justice. Had he had access to the scholarship of economist-to-be Ronald Coase, and had he been more mindful of judicial opinion about blackmail in his own day, Holmes might have described the Milverton killing differently.

Rational Basis With Economic Bite

By: Steven Menashi Douglas Ginsburg

Date Posted: 2014

No.: 14-65

Full text (most current version) on SSRN

Abstract:

In The Classical Liberal Constitution, Richard Epstein argues that the normative theory of classical liberalism underlies the Constitution and gives life to its guarantees; many constitutional guarantees have been undermined, however, by unduly deferential judicial review that is satisfied if there is a “rational basis,” real or hypothetical, for a law. Yet even the rational basis standard asks whether a law serves a legitimate government purpose, which entails normative assumptions about the ends a government may permissibly pursue. Before the New Deal, the Supreme Court applied a form of rationality review that was deferential but not toothless because the Court had a stronger sense of the proper scope of the police power. The contemporary Court applies more searching “rational basis with bite” but only where it thinks impermissible purposes are at play, particularly where legislation appears to target a vulnerable group. Rational basis review, therefore, is variable depending upon the Court’s normative frame.

Recently, three circuit courts applying rational basis review have held licensing laws that restrict entry into a field of economic activity are unconstitutional. These circuits have concluded that a state’s purpose to protect an interest group from economic competition is illegitimate — and have struck down licensing regulations that served no other purpose. This application of “rational basis with bite” to protect economic rights suggests another normative shift, one involving public disapproval of rent-seeking and special-interest legislation. In the nearly 60 years since the Court adopted its stance of extreme deference to economic legislation in Lee Optical, a deregulation movement has focused attention on the costs of excessive regulation and public choice theory has undermined the confidence expressed by the Court in Carolene Products that democratic political processes will protect the public from undesirable legislation. The occupational licensing laws invalidated in the circuit cases are precisely the sort of special-interest legislation that the political process is unlikely to screen out. Thus, even the modern concern with “clearing the channels of political change” suggests that heightened judicial scrutiny is warranted. Epstein connects that concern with the Madisonian focus on the problem of faction. His discussion suggests other types of economic legislation should be subject to judicial review using the “rational basis with bite” standard.

Same-Sex Marriage and the “Reconceiving” of Children

Abstract:

Historically, the U.S. Supreme Court has consistently highlighted the importance of procreation in its consideration of marriage in constitutional cases. Recently, however, litigants seeking same-sex marriage and judicial decisions sympathetic to their arguments have ignored the language and holdings of this long-standing body of law. Instead, they have focused nearly entirely upon adults’ interests in state marriage recognition. To the extent children are mentioned, it is for the purpose of speculating that children living within same-sex marriage households might indirectly benefit from recognition of adults’ rights to same-sex marriage.

This Article discusses the importance of states’ interests in procreation and child rearing and the Supreme Court’s constant recognition of those interests. Ultimately, this Article argues that judicial decisions recognizing same-sex marriage have marginalized, or “reconceived,” the role of children in marriage, in several important ways, all to the marked disadvantage of children.

Hayek’s Jurisprudence: And Ratnapala’s Hayek

Abstract:

Suri Ratnapala is one of the keenest and most insightful analysts of the thought of the great economist and social thinker F. A. Hayek. Hayek was the leading exemplar of the historical, or evolutionary, theory of law in the latter half of the 20th century, but his jurisprudential thought has been largely neglected by legal scholars. In two articles, Ratnapala outlined the core ideas of Hayek’s legal philosophy and developed their place within Hayek’s larger theory of economics, social thought, and epistemology. This article reviews Ratnapala’s analysis of Hayek’s legal theory and offers a few elaborations thereon.

Actavis and Multiple ANDA Entrants: Beyond the Temporary Duopoly

Abstract:

This paper examines the economics of litigation and settlement of patent disputes arising from Paragraph IV ANDA filings under the Drug Price Competition and Patent Term Restoration Act (“Hatch-Waxman Act”) within the framework set out in FTC v. Actavis. Recent economic analyses of reverse payment settlements are based upon a monopoly-to-duopoly model that assumes a single generic entrant. These analyses have been used to support antitrust rules that would enjoin reverse payments that exceed the cost of litigation. We demonstrate that the simple monopoly-to-duopoly models providing the analytical basis for the litigation cost benchmark for analyzing reverse payment settlements is incomplete. Our key institutional insight is the fact that entry by multiple firms follows the invalidation of a patent. Accounting for this critical institutional detail in a more generalized monopoly-to-duopoly model results in important and different implications for patent settlements, welfare, and application of the rule of reason pursuant to Actavis. The result is a broader settlement range than under the monopoly-to-duopoly model that yields robust incentives for the brand and generic entrant to settle the case. This broad settlement range makes attempts to regulate the size of patent settlements ineffective at achieving consumer welfare increasing settlements, or inducing the invalidation of “bad” patents through higher litigation rates. Incorporating multiple serial entrants also decouples the litigation-adjusted expected value of the patent and the consumer welfare standard, and further weakens the relationship between patent strength and the size of the settlement which has motivated numerous calls to deem presumptively unlawful all payments greater than anticipated litigation costs.