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Faculty Working Papers

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 Catalog to locate a working paper.

Research Paper Series

Working Papers

Recent Working Papers:

Law Enforcement with Rent Dissipation

Murat C. Mungan, J. Shahar Dillbary

We consider a framework which brings together losses arising from rent-dissipation and the workhorse model of law enforcement. Governmental actors engage in a contest to share the proceeds from the enforcement of the law through monetary fines, which leads to rent-dissipation. This causes monetary sanctions to be costly, rendering the model used for studying nonmonertary sanctions a better fit for their analysis. The effect of rent-dissipation on optimal sanctions is directly related to the sanction elasticity of offenses measured at the classic optimum (i.e., where the expected sanction equals the direct harm from the offense). When offenses are inelastic, the optimal sanction is smaller than the classic optimum and it is decreasing in the degree of rent-dissipation; and a legislator who does not fully internalize contest costs chooses an overly-punitive sanction which is smaller than the classic optimum. The opposite results are obtained when offenses are elastic. We discuss implications and extensions.

Revocation on Divorce and the State as Heir: Fixing the Uniform Probate Code

Thomas P. Gallanis

Suppose that, prior to a divorce, a testator devises the residue of his estate to his spouse if she survives him, otherwise "one half to my heirs and one half to my spouse's heirs." If the testator dies after the divorce and without revising the will, who is entitled to the residue? The answer under the Uniform Probate Code (UPC) will come as a surprise. One half of the residue will escheat to the state as the heir of the former spouse. The result arises from a glitch in the UPC inadvertently introduced when the UPC was revised in 1990. This Article identifies and analyzes the glitch and proposes a statutory solution for the Uniform Law Commission and the legislatures of enacting states.

Natural Property Rights

Eric R. Claeys

Natural Property Rights presents a novel theory of property based on individual, pre-political rights. A just system of property protects people's rights to use resources, and it also orders those rights consistent with natural law and the public welfare. Drawing on influential property theorists such as Grotius, Locke, Blackstone, and early American statesmen and judges, as well as recent work in normative and analytical philosophy, Natural Property Rights shows how natural rights guide political and legal reasoning about property law. It examines how natural rights justify the most familiar institutions in property, including public property, ownership, the system of estates and future interests, leases, servitudes, mortgages, police regulation, and eminent domain. The book studies examples familiar from the law covering tangible resources; chattels, real property, energy, and water law. Thought-provoking and comprehensive, Natural Property Rights shows how property at once secures individual freedom and serves the common good.

Although Natural Property Rights repays study on its own, it also offers an important alternative to contemporary perspectives on property. In relation to philosophy and political-theory scholarship, Natural Property Rights justifies property as the object of a right. But the right is not grounded in autonomy as it is in the political theories of Robert Nozick and many other libertarians; it is grounded instead in foundations associated with perfectionism, eudaimonism, and human flourishing. And the book reminds philosophers and political theorists how many factors besides analytic concepts and normative foundations matter in property; it shows how legal property rights develop from practical reasoning and the specification of general prepolitical rights.

In relation to legal scholarship, Natural Property Rights offers an important alternative to the normative theories that loom largest today—Progressive property, law and economics, and  expertise-driven approaches to property (as in Tahoe-Sierra Preservation Council v. Tahoe-Regional Planning Agency (2002) and Kelo v. New London (2005)). Consistent with Progressive property, natural law and rights link property to human flourishing. But natural law and rights still justify property as the object of an individual right, and not as an entitlement to do what regulators or judges think will contribute to flourishing in the relevant community. Consistent with the best law-and-economics scholarship, natural law and rights guide reasoning about the effects of recognizing property rights in law. But natural law and rights address familiar challenges faced by law and economics—about when and why legal systems have legitimate political authority to coerce citizens, with the state’s monopoly over violence, to obey efficient rules. And natural law and rights reconcile individual property rights with the public welfare as called for in expertise-driven approaches—without threatening individual freedom as those approaches do.

Is Racial Discrimination Ever Charitable?

Thomas P. Gallanis

Is racial discrimination permissible for a charity? The question is salient and timely. Our nation faces a stark choice between two competing visions of how the law should assess racial discrimination. One view, articulated by Professor Ibram X. Kendi, among others, is that racial discrimination in favor of members of minority groups is an appropriate response to society’s prior discrimination against them. A competing view, articulated by the Supreme Court in SFFA v. Harvard,  is that racial discrimination is odious tout court: eliminating racial discrimination means ending all of it.

This Essay tackles an aspect of the question that has not received much scholarly attention. The Supreme Court’s decision in SFFA v. Harvard has prompted commentary on racial discrimination and the Equal Protection Clause of the U.S. Constitution and Title VI of the Civil Rights Act of 1964,  the latter of which prohibits discrimination by programs and activities receiving federal financial assistance.  The commentary after SFFA v. Harvard also extends to Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment,  and Section 1981, which prohibits discrimination in, among other things, the making and enforcing of contracts.  Recent actions taken by the Trump Administration vis-à-vis Harvard University raise the issue of racial discrimination as a basis for revoking federal tax-exempt status under Section 501(c)(3) of the Internal Revenue Code.  But little attention has been given to the law of charity, which derives  from the law of charitable trusts. In order to qualify for tax exemption as a charity, a charity must be a charity.  What does and should the law of charity say about racial discrimination after SFFA v. Harvard?

This Essay proceeds in four main parts. Part I examines the law of charity and its requirement that a charity must not violate public policy. Part II explores three Supreme Court decisions salient to public policy and racial discrimination. The public policy limitation in the law of charity derives from the law of charitable trusts, but it is influenced by federal law, including the Court’s decisions; also, state law influences federal law when federal courts determine the issue of federal tax-exempt status. Part III examines the legal landscape after the Court’s decision in SFFA v. Harvard. Part IV proposes a path forward, arguing that the time has come for state and federal courts and taxing authorities to declare that racial discrimination by a charity violates public policy irrespective of the race of the individuals harmed by it. A brief conclusion follows.

Public Choice Theory and Law

Jeremy Kidd, Todd J. Zywicki

Public choice theory applies economic principles—especially rational self-interest, incentive structures, and methodological individualism—to the study of political and legal institutions. While traditionally used to explain legislative and regulatory behavior, this entry explores how public choice insights apply more broadly across the legal landscape. Concepts such as concentrated benefits and dispersed costs, rational ignorance, and rent-seeking help explain how legal actors—judges, litigants, bureaucrats, and interest groups—interact within institutional constraints. The entry examines how these dynamics shape the evolution of litigation, the behavior of administrative agencies, and even constitutional change. By grounding legal processes in the same incentive-driven analysis used in economics, public choice theory offers a powerful explanatory framework for why legal outcomes often diverge from publicly stated goals.

Should We Fear Personalized Pricing?

John M. Yun

The practice of personalized pricing involves using information about a consumer to more accurately estimate an individual’s willingness-to-pay for a product to calibrate pricing to that individual. If the practice grows, what does this imply for consumer welfare—particularly for digital markets where there is an abundance of user data? While some consumers may end up enjoying lower prices and having greater access to markets, other consumers will likely end up paying higher prices relative to the counterfactual, that is, a world without personalized pricing but likely some other forms of price discrimination. Nonetheless, it is unlikely that all consumers are made worse off relative to the counterfactual. Additionally, there are reasons that mitigate the concern that the practice of personalize pricing will grow. First, there could be competitive pressure to not engage in the practice—as firms that explicitly avoid personalized pricing will have a competitive advantage in the eyes of consumers. Relatedly, firms that do engage in personalized pricing will likely be stigmatized in the market, which creates a strong disincentive to widely adopt the practice.

Wither Consumer Welfare? Antitrust in the Biden Years

Douglas H. Ginsburg

The consumer welfare standard has been the lodestar of antitrust policy for more than four decades, ensuring predictable decision making by the Government’s antitrust agencies and the courts. From the beginning of his term, however, President Biden and his administration signaled their intent to embark on a different and more aggressive approach to antitrust policy. The FTC and the Antitrust Division of the DOJ proceeded to issue many new guidelines and policy statements, and to pursue novel theories in merger enforcement actions and civil litigation. The FTC also issued a substantive competition rule for the first time in decades, and significantly increased the information required to be submitted by firms seeking approval of a merger. The agencies deemphasized consumer welfare and economic analysis more generally, instead elevating the importance of market structure and other populist goals such as the preservation of small businesses. This, in turn, diminished the agencies’ persuasiveness in court, where they lost half of their merger cases. The most effective parts of the Biden administration’s agenda were those that aligned most closely with traditional economic principles, particularly in monopolization cases. The lesson to be drawn is that antitrust enforcement still is most successful and best preserves competition when it is guided by economic principles — in particular, the consumer welfare standard — rather than other goals.

The Supreme Court, Education, and the KKK in the 1920s

David E. Bernstein
Meyer v. Nebraska and Pierce v. Society of Sisters present historians with a puzzle. The Court had refused previous opportunities to initiate a due process jurisprudence that expanded beyond freedom of contract and property rights. Why did the Court suddenly adopt a more aggressive understanding of the Due Process Clause in Meyer and Pierce?
As has been discussed elsewhere, there are several plausible and non-exclusive explanations. This article focuses on the Justices’ hostility to the Ku Klux Klan. The Klan had been a leading force behind laws regulating or banning private education, and the Court’s decisions in Meyer and Pierce likely in part reflected a pushback against the Klan’s agenda.
Part I of this Article discusses the Klan’s resurgence in the early 1920s and its role in sponsoring legislation targeting private schools. This included the Oregon compulsory public education law invalidated by the Court in Pierce.
Part II discusses the Court’s hostility to the Klan. This section discusses a significant anti-Klan ruling that has received little scholarly attention, the 1928 case of Bryant v. Zimmerman. In Zimmerman, the Court upheld a New York law requiring certain membership organizations, including the Ku Klux Klan, to register their membership lists with the state. The Court held that this requirement did not violate constitutional rights, particularly freedom of association or due process. Importantly, the Court’s holding was not based on a rejection of the notion that the Fourteenth Amendment protects the freedoms of private membership organizations. Rather, the Court focused on the malevolent nature of the Klan.

Public Use, Exclusionary Zoning, and Democracy

Ilya Somin
The twentieth anniversary of Kelo v. City of New London is a good opportunity to consider the broader significance of public use for constitutional theory, and to explore parallels between the “public use” issue at stake in that case, and another major issue in constitutional property rights under the Takings Clause: exclusionary zoning. In the twenty years since Kelo, exclusionary zoning and the housing crisis it has caused have emerged as major issues in public policy and legal debate. Kelo famously ruled that the Fifth Amendment requirement that takings must be for a “public use” does not bar the employment of eminent domain to take homes for privately owned “economic development.” The Court endorsed a broad definition of “public use” that included almost any disposition of condemned property that might benefit the public in some way. Exclusionary zoning – defined here as regulatory restrictions on the types of housing that can be built in a given area - is a major factor in the national housing crisis, that has increased housing costs, prevented millions of people from “moving to opportunity,” and impaired economic growth and innovation. opportunities. There are striking and largely unnoticed parallels between the “public use” question decided in Kelo and the constitutional issues raised by exclusionary zoning.
Part I highlights the strikingly similar history of the two issues. In both cases, there is a strong originalist argument that the policy in question – private-to-private condemnations in one case, exclusionary zoning in the other – violate the property rights provisions of the Fifth Amendment. The former violates the requirement that the use of eminent domain be for a “public use;” the latter that severe restrictions on owners’ rights to use their land require “just compensation” under the Takings Clause. But, in both cases, the Supreme Court and federal courts generally have taken a highly deferential approach since the rise of Progressive and New Deal-era skepticism of property rights. That skepticism was in large part driven by concerns that judicial protection for property rights is undemocratic, inhibits government planning, and tends to benefit the rich at the expense of the poor and disadvantaged.
Part II outlines ways in which the traditional conventional wisdom on these two issues is wrong. Judicial deference on both public use and exclusionary zoning has greatly harmed the poor and disadvantaged, particularly racial minorities. Moreover, stronger judicial review can actually further “representation-reinforcement” in two ways: by giving voice to groups excluded from the political process, and by empowering them to “vote with their feet.” 
Part III briefly highlights some synergies between judicial enforcement of public use limitations on eminent domain, and enforcement of restrictions on exclusionary zoning. Both help empower people to live where they wish. Striking down exclusionary zoning would make it harder for local governments to keep people out; Reversing Kelo would make it harder for them to expel those already living in the area. Opponents of exclusionary zoning could also potentially learn useful lessons from the Kelo experience on how litigation can be effectively combined with political action.

The Federalist’s Dilemma: State AI Regulation & Pathways Forward

Evangelos Razis, James C. Cooper

AI has captured everybody’s imagination, especially policymakers. The extent to which imagination has translated into action, however, is a mixed bag. At the federal level, Congress has studied the issue, weighed grand proposals, and held countless hearings on AI but has enacted only modest legislation. While executive branch agencies and the FTC have talked a big game, their accomplishments have also been modest, mostly due to limits on legal authority. Not surprisingly, as with data privacy, states have stepped into the vacuum created by federal inaction with AI regulations of their own. Typically, states acting as laboratories is a good thing, allowing experimentation and competition to hone the efficiency and fit of regulatory regimes to different situations. But when the subject of regulation is interstate – and in this case global—by nature, a patchwork of state regimes is far from ideal. The solution to this dilemma is often seen as a binary: allow the state patchwork to evolve for better or worse, or stop it in its tracks with a federal preemptive response. We see this as a false choice and offer two potentially better paths. First, would be for Congress to enact a national “moratorium” on state laws regulating AI. We argue that this as a superior approach because it will arrest potentially harmful regulation and the patchwork problem and alleviate pressure on Congress to pass premature AI laws merely to prevent the states from acting. Second, would be to honor choice of law provisions in AI-related contracts, thereby fostering competition among firms and states to provide efficient AI regulation. Borrowing from the ideas of Larry Ribstein and various coauthors, we argue that firms would compete for consumers by choosing to be regulated by the regime that maximized their profits, and states would compete to enact efficient laws. In sum, we think the current rush to regulate AI, whether at the state or federal level, is premature. Regulators have existing tools to address consumer harms. The problem is that our federal system, just like nature, abhors a vacuum, and states are filling it with a patchwork of potentially onerous and inconsistent AI requirements. The pressure to prevent state action, in turn, may force Congress’ hands into an ill-considered and hasty response that is little better than the states’ alternative. We see our hybrid approaches as a way out of this dilemma.

Supporting Free Speech and Countering Antisemitism on American College Campuses

David E. Bernstein, David L. Bernstein

This article addresses what university leaders should do about the surge of antisemitism on American college campuses following Hamas’s October 7, 2023 atrocities from the perspective of committed free speech liberals—who both happen to be named David Bernstein—who also wish to protect the civil rights of Jewish students. 

The authors first note that many antisemitic incidents on campus have involved vandalism, assault, and disruptive and illegal protests (e.g., building occupations and illicit encampments) and other acts that violate content-neutral regulations. While the perpetrators of these acts have often defended themselves as engaging in freedom of expression, these acts can and should be punished without infringing free speech. 

Similarly, while faculty should be free to advocate anti-Israel positions, even extremist ones, universities must draw the line when such advocacy turns into discrimination against individuals with ties to Israel or with “Zionist” political positions, or when a professor participates in the BDS movement’s boycott guidelines in ways that conflict with university policy or the law. 

The article also tackles "harder" cases, where offensive speech, such as pro-Hamas chants and extremist anti-Zionist rhetoric, that test the limits of free expression. The authors argue that universities should protect such speech, in part because of liberal principle, and in part because of the pragmatic judgment that in long-run Jews thrive where liberalism, including free speech liberalism, thrives.

On the other hand, universities may not enforce double standards in speech regulation, exemplified by Harvard and University of Pennsylvania’s tolerance of antisemitic rhetoric while punishing other offensive speech. The authors agree that the proper solution to such double standards is to protect speech across-the-board, though they disagree on the proper strategy with regard to universities that insist on enforcing double standards.

The article concludes that universities must consistently apply content-neutral rules, maintain institutional neutrality, and protect both free speech and nondiscrimination to create an environment where Jewish students and others can thrive. By disentangling speech from unlawful conduct and addressing administrative hypocrisy, the authors offer a nuanced liberal framework for resolving these campus challenges.

The Injunction Function: How and Why Courts Secure Property Rights in Patents

Adam Mossoff

Property rights facilitate market transactions and economic growth by securing exclusive rights to their owners. This economic principle is true for all property rights, whether in land or in inventions. Today, many judges, lawyers, and commentators misunderstand this fundamental truth in patent law. Patent owners are no longer able to obtain injunctions against continuing or willful violations of their property rights, especially if they are using the licensing business model that was first employed in the U.S. innovation economy in the 1790s. This alteration in patent remedies was wrought by the Supreme Court in its 2006 decision in eBay v. MercExchange.

Given the mistaken conventional wisdom today about injunctions, this article describes the economic and normative function of injunctions as the legal backstop for negotiations in the free market. Despite litigators and judges thinking this remedy is the end of the story, because it issues at the end of a hearing against a defendant found to be infringing a valid patent, an injunction is just the beginning of the commercial story. In cases of unauthorized commercial use of an asset in which the owner sues to stop this trespass, an injunction is what compels a company or person to negotiate with the property owner for the use of this asset. Injunctions facilitate arms-length negotiations and the setting of market prices through these contracts and licenses. This article reestablishes these key normative and economic insights in patent law. It describes how eBay altered the historical doctrine for securing patents with injunctions against continuing infringement, and how this has undermined the economic function of patents, which have been secured as property rights in the U.S. innovation economy from the early American Republic.

An Update on the Capital One/Discover Merger: Is There a Subprime Market for Credit Cards?

Todd J. Zywicki
The proposed $35 billion combination of Discover Financial Services Inc. and Capital One Financial Corp. has faced scrutiny regarding its impact on “subprime” credit-card customers. Though the deal has been approved by federal regulators, there remains the potential that states could object to the combination on grounds that it harms subprime consumers. This issue brief examines whether such consumers constitute a distinct market for antitrust purposes and concludes they do not.
A fundamental challenge is the absence of a standardized definition of “subprime.” Credit bureaus, lenders, and government agencies use different credit-score thresholds to classify consumers—e.g. VantageScore considers scores between 300-600 to be subprime, while FICO uses different terminology entirely. This inconsistency makes it impossible to clearly delineate a market segment. Additionally, credit scores are highly dynamic, with research showing that about 40% of subprime borrowers improved to higher credit tiers during the pandemic.
Consumers with lower credit scores have numerous alternatives to traditional credit cards, including secured cards, buy-now-pay-later services (used by 21% of consumers with credit records in 2022), and personal loans. These substitutes prevent the merged entity from exercising market power. Major banks like JPMorgan Chase, Citigroup, and Bank of America already serve subprime borrowers, and could expand these offerings if needed.
Rather than harming competition, a merged Capital One-Discover could benefit consumers with lower credit scores by expanding the reach of Capital One’s sophisticated analytics, which identify lower-risk individuals among those with subprime scores. While the combined company would control approximately 30% of subprime credit-card balances, this falls far short of monopoly power, given the competitive constraints from other issuers and alternative credit products.

Forensic Accounting and Valuation in Delaware Litigation

J.W. Verret

This Article describes the forensic accounting and valuation tools available to Delaware litigators in commercial and corporate litigation as well as family law. Further, it details the licensing process and standards applicable to forensic accountants and shows how the methods utilized in this profession can assist litigators in a variety of contexts. Delaware cases in which courts have accepted or limited the use of expert forensic accountant testimony are explored and general principles for utilizing forensic accounting expertise in Delaware litigation are developed. The uses of forensic accounting in Delaware litigation are demonstrated across appraisal actions, divorce cases, fraud and fiduciary actions and investigations, and economic damages estimation.

Assembly, Public Use, and Reciprocity of Advantage Regulation

Eric R. Claeys
This Article contributes to a symposium hosted at Yale Law School on the twentieth anniversary of Kelo v. City of New London (2005). The Article studies how rights-based property theories approach assembly, the process in which a government condemns property held by some private parties, consolidates that property, and assigns it to another private party to produce new social value. According to Kelo, the Fifth Amendment’s Public Use Clause limits government-backed assembly only barely. Rights-based theories can justify assembly, but they lay down stricter limits on it than Kelo does. In a rights-based legal system, the power to assemble property exercises not the eminent domain power but the police power, and specifically the power to regulate property to secure an average reciprocity of advantage. Two elements determine whether a law genuinely regulates in this manner—necessity, and a genuine reciprocity of advantage—and those elements can be applied to assembly projects.
This Article’s account of assembly avoids green-lighting most proposed assemblies (as Kelo does) without barring them all. Normatively, the account asks fair questions about assembly proposals. How compelling is the public’s case for forcing private citizens to sacrifice their property rights? And if an assembly project is supposed to produce social value, why shouldn’t the proprietors share in the advantage from the promised social gains? Doctrinally, this Article offers a roadmap for overhauling contemporary public use doctrine. The U.S. Supreme Court treated assembly problems as reciprocity of advantage problems in the first assembly cases it considered after the Fourteenth Amendment was ratified—Head v. Amoskeag Manufacturing Co. and Wurts v. Hoagland (both 1885), and Ohio Oil Co. v. Indiana (1900). If Head, Wurts, and Ohio Oil Co. treat assembly problems fairly, then the Court’s later assembly cases—from Clark v. Nash (1906), through Berman v. Parker (1954), to Kelo—should be limited or overruled.

Eleventh Circuit Conservatives Split on Gun Sales to Young Adults: Pryor v. Brasher in NRA v. Bondi

Nelson Lund

Legal debates between leftists and conservatives are rarely as interesting as “intramural” debates between conservatives. The Eleventh Circuit’s recent en banc decision in National Rifle Association v. Bondi illustrates the point. By a vote of 8-4, the court held that a Florida statute prohibiting the purchase of firearms by individuals between the ages of 18 and 21 does not violate the Second Amendment. The majority opinion was written by Chief Judge William H. Pryor, Jr., while Judge Andrew L. Brasher wrote the principal dissent. Both are able and principled jurisprudential conservatives, and Judge Brasher is a former law clerk for Chief Judge Pryor.

The dispute between these judges, which was solely about the proper application of the Supreme Court’s decisions in Bruen (2022) and Rahimi (2024), illustrates the problematic nature of that Court’s novel history-and-tradition test.

American Revolutions in the Law of Trusts

Thomas P. Gallanis

American trust law is revolutionary. It departs in fundamental ways from the trust law of other major common-law jurisdictions, such as England, Australia, Canada, the Hong Kong Special Administrative Region, and Singapore. It also differs greatly from the trust law of the major civil-law countries that have adopted the trust, such as mainland China and Japan. This Article identifies five revolutions in American trust law. Each revolution is examined in its historical context and with regard to its lasting effects. Together, the five revolutions explain American trust law's distinctiveness. The Article's primary aim is to shape how American trust law is understood, historically and today. The Article's contribution is as fundamental as periodization. We used to teach that the "Roman Empire" was followed by the "Early Middle Ages." This periodization was transformed by the pioneering scholarship of the historian Peter Brown. Professor Brown is credited with creating the field of Late Antiquity, approximately AD 250-750. Analogously, this Article's framework of the five revolutions is designed to shape our understanding of the history and development of America's distinctive trust law. Part I of the Article identifies and analyzes the five revolutions. Part II offers a personal assessment of American trust law's distinctiveness. A brief conclusion follows.

Political Debanking

Todd J. Zywicki
This article examines the escalating practice of “political debanking”—the involuntary termination of banking services to individuals and organizations based on their political or religious views—and its profound implications for free speech and democratic participation. Drawing on Milton Friedman’s insights about the interdependence of economic systems and free expression, the article argues that access to financial services is a prerequisite for exercising constitutional rights. It traces the rise of political debanking from the Obama Administration’s Operation Choke Point, which targeted disfavored industries under the guise of “reputation risk,” to its expansion under the Biden Administration, where individuals like Melania Trump and Michael Flynn faced account closures for their political stances. High-profile cases, including the cancellation of accounts tied to Donald Trump Jr.’s events and the National Committee for Religious Freedom, illustrate a growing weaponization of the financial system to suppress dissent.
The article distinguishes political debanking from other account closures (e.g., cryptocurrency or financial mismanagement) and critiques the regulatory framework that enables it, marked by opacity, discretion, and a lack of accountability. Despite Supreme Court rulings in NRA v. Vullo and Murthy v. Missouri, judicial remedies remain inadequate against subtle coercion in the modern regulatory state. With banks functioning as quasi-public entities due to extensive government privileges, the article proposes treating them as common carriers, mandating non-discriminatory access to services. It advocates for legislative and regulatory reforms, including reviving the Trump-era “Fair Access to Financial Services” rule, to safeguard free speech against future abuses, warning that without action, debanking will persist as a tool for silencing dissent.

The Economic Structure of Trade Secret Law

Tun-Jen Chiang

The standard economic account of trade secret law focuses on providing incentives for creating new inventions. The incentive-to-invent theory, however, provides little explanation for why the key doctrinal features of trade secret law are structured the way that they are. For example, providing ex ante incentives to invent does not easily explain the requirement that an inventor must take measures to preserve secrecy even after the invention has been created. Nor does it explain why trade secret misappropriation, unlike patent and copyright infringement, requires "improper" conduct by the defendant for liability. In this Article, I give a different theory of trade secret law. In this account, the primary economic purpose of trade secret law is not to preserve the incentive to invent, but to dissuade the possessor of a secret idea from using unreasonable and inefficient self-help countermeasures to protect the secret. As the Article will explain, this anti-countermeasure principle provides an overarching theory to explain the key structural features of trade secret law, in a manner that the incentive-to-invent theory does not.

The Supreme Court’s Mysterious 1920s Due Process Education Trilogy

David E. Bernstein

The Supreme Court's 1920s Education Trilogy cases-Meyer v. Nebraska, Pierce v. Society of Sisters, and Farrington v. Tokushige-were important milestones in American constitutional history.
These decisions protected private schools, religious and otherwise, from the threat of closure in many states. This preserved educational freedom for parents who preferred private education for their children.
As a constitutional matter, the Trilogy became the foundation of a due process jurisprudence that moved beyond liberty of contract, property rights, and police power considerations to a broader protection of fundamental rights.
This Article describes external forces that may have motivated this shift-revulsion at the Ku Klux Klan, backlash against Progressive statism of the sort that demanded the closure of private schools, and the Justices' need to cultivate political allies among ethnic and religious minority populations.
This Article also reviews the idiosyncratic biographical factors that may have led Justice Brandeis to join the majority in Meyer. Brandeis' vote with the majority helped preserve the Education Trilogy cases as precedents that later generations of liberal Justices felt comfortable relying upon.
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