See also the News feed of working papers as they are released.
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:
Deception, Materiality, and the Economics of Consumer Protection Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University
This comment is submitted in response to the United States Federal Trade Commission (“FTC”) hearing on Consumer Privacy as part of the Hearings on Competition and Consumer Protection in the 21st Century. We submit this Comment based upon our extensive experience and expertise in consumer protection, antitrust law, and economics.
Making Federalism Great Again: How the Trump Administration's Attack on Sanctuary Cities Unintentionally Strengthened Judicial Protection for State Autonomy
By Ilya Somin
“Sanctuary cities” - jurisdictions that refuse to assist federal government attempts to deport undocumented immigrants - have become a major focus of political conflict over immigration policy. The Trump administration’s efforts to punish sanctuary jurisdictions have led to multiple legal battles over constitutional federalism.
The administration’s crackdown on sanctuary jurisdictions has helped make federalism great again. It achieved this unintended outcome by generating a series of court decisions protecting state and local governments against federal coercion, and by leading many on the political left to take a more favorable view of judicial enforcement of constitutional limits on federal power.
This is the first academic article to attempt a comprehensive evaluation of the federalism issues at stake in the Trump-era litigation on sanctuary cities. The article assesses the three main sets of sanctuary cases that have arisen during the Trump administration: legal challenges to Trump’s January 2017 executive order targeting sanctuary cities, challenges to the Justice Department’s July 2017 policy of conditioning federal law enforcement grants on state and local government cooperation with efforts to deport undocumented immigrants, and the administration’s lawsuit against California’s “sanctuary state” law. So far, at least, all three have led to notable victories for advocates of constitutional limits on federal power.
The sanctuary litigation has also produced a noteworthy reversal of the usual ideological valence of judicial enforcement of federalism, with progressive “blue” jurisdictions relying on legal doctrines traditionally associated with the political right. Whether this helps trigger a more lasting shift in attitudes towards federalism remains to be seen.
By Aurelie Ouss, Megan Stevenson
Recent criminal justice reform efforts have focused on electing progressive prosecutors to implement change, such as the reduction of cash bail as a requirement for pretrial release. However, critics worry that removing cash bail will decrease accountability and increase failure-to-appear in court. We test this by looking at the effects of the No-Cash-Bail reform policy initiated by Philadelphia’s recently elected District Attorney, Larry Krasner. Under this policy, the DA’s office stopped requesting cash bail for defendants charged with a large variety of different offenses, both misdemeanor and felony. This policy led to an immediate 23% increase (12 percentage points) in the fraction of eligible defendants released with no monetary or other conditions (ROR), and a 22% (5 percentage points) decrease in the fraction of defendants who spent at least one night in jail, but no detectable difference for longer jail stays. The main effect of this policy was therefore to reduce the use of collateral to incentivize court appearance. In spite of this large decrease in the fraction of defendants having monetary incentives to show up to court, we detect no change in failure-to-appear in court or in recidivism, suggesting that reductions in the use of monetary bail can be made without significant adverse consequences. These results also demonstrate the role of prosecutors in determining outcomes over which they have no direct authority, such as setting bail.
The Federal Trade Commission Hearings on Competition and Consumer Protection in the 21st Century: Consumer Privacy, Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University
This comment is submitted in response to the United States Federal Trade Commission (“FTC”) hearing on Consumer Privacy as part of the Hearings on Competition and Consumer Protection in the 21st Century. We submit this comment based upon our extensive experience and expertise in consumer protection, antitrust law, and economics. As an organization committed to promoting sound economic analysis as the foundation of antitrust enforcement and competition policy, the Global Antitrust Institute commends the FTC for holding these hearings and for inviting discussion concerning a range of important topics.
Are Corporations People? Book Review of We the Corporations: How American Businesses Won Their Civil Rights
This is a review of UCLA Law Professor Adam Winkler’s We the Corporations: How American Businesses Won Their Civil Rights. Among its virtues, the book explains the influence of colonial charters on American constitutional development, turns on its head the conventional wisdom about how “corporate personhood” relates to the granting of constitutional rights to corporations, and explains why the most important expansion of corporate rights was a product of liberal, not conservative, supreme court justices.
The review criticizes the book, on the other hand, for neglecting early religious freedom cases involving corporations, conflating free market arguments with pro-corporation ones, neglecting the importance of the incorporation doctrine in establishing corporate rights, wildly overstating the importance of the Powell memo, failing to reckon with the partisan reasons Democrats and liberals support campaign finance reform, and more generally accepting dubious progressive shibboleths such as the “race to the bottom” as valid.
By Craig Lerner
How is an originalist judge in the common law tradition to reconcile the competing demands of the Constitution’s original meaning and an accumulating body of nonoriginalist precedents? This Article explores the dilemma of constitutional originalism through a comprehensive review of Justice Scalia’s Eighth Amendment jurisprudence. In this legal context the dilemma is infused with a moral dimension. Many punishment practices common in 1791 are widely considered barbaric today. When confronted with the choice between the Eighth Amendment’s original meaning and a clearly erroneous precedent that better aligns the Constitution with the moral tenor of the times, which is an originalist judge to choose?
In an essay published soon after joining the Supreme Court, Justice Scalia outlined an answer to this question. He anticipated that his Eighth Amendment opinions would be framed as arguments in the alternative—first, the Constitution, properly understood, did not foreclose a punishment; and, in the alternative, even if nonorginalist precedents were followed for the sake of argument, the result would be the same, because there was “inadequate indication that any evolution in social attitudes has occurred.” Almost all of his Eighth Amendment opinions proved to be of this character. As demonstrated in this Article, Justice Scalia’s hopeful expectation that he could achieve orginalist results through such a strategy was disappointed. One problem is that the strategy presumes that there has been no meaningful “evolution in social attitudes” with respect to punishment since 1791. The deeper problem is that it is not enough for the community’s “social attitudes” to remain durable. The relevant question is whether the moral sentiments of the legal elites who ascertain these “social attitudes” remain durable. In one of his final Eighth Amendment opinions, Justice Scalia conceded the defeat of sake-of-argument originalism. He intimated a willingness to pursue a more heroic originalist agenda, potentially displacing mountains of nonoriginalist precedent. This Article highlights the tension an originalist judge faces, more than two centuries after the Constitution’s ratification, between a principled adherence to original meaning, which can appear revolutionary, and a humbler originalism, which can appear opportunistic.
By Ross Davies
The vicissitudes of post-Civil War currency policy are reflected in variations in the text of Arthur Conan Doyle's novel, "The Valley of Fear."
Comment of the Global Antitrust Institute, George Mason University School of Law, on the Australian Competition & Consumer Commission's Digital Platforms Inquiry, Preliminary Report
This Comment is submitted to the Australian Competition & Consumer Commission (ACCC) for consideration in relation to its Digital Platforms Inquiry, Preliminary Report (2018). We detail several fundamental methodological shortcomings and analytical gaps in the Preliminary Report, which ultimately do not support the recommendations considered for implementation. The GAI Competition Advocacy Program provides a wide range of recommendations to facilitate adoption of economically sound competition policy.
By Murat Mungan
This article considers the possibility of simultaneously reducing crime, prison sentences, and the tax burden of financing the criminal justice system by introducing positive sanctions, which are benefits conferred to individuals who refrain from committing crime. Specifically, it proposes a procedure wherein a part of the imprisonment budget is re-directed towards financing positive sanctions. The feasibility of reducing crime, sentences, and taxes through such reallocations depends on how effectively the marginal imprisonment sentence reduces crime, the crime rate, the effectiveness of positive sanctions, and how accurately the government can direct positive sanctions towards individuals who are most responsive to such policies. The article then highlights an advantage of positive sanctions over imprisonment in deterring criminal behavior: positive sanctions operate by transferring or creating wealth, whereas imprisonment operates by destroying wealth. Thus, the conditions under which positive sanctions are optimal are broader than those under which they can be used to jointly reduce crime, sentences, and taxes. The analysis reveals that when the budget for the criminal justice system is exogenously given, it is optimal to use positive sanctions when the imprisonment elasticity of deterrence is small, which is a condition that is consistent with the empirical literature. When the budget for the criminal justice system is endogenously determined, it is optimal to use positive sanctions as long as the marginal cost of public funds is not high.
By Ilya Somin
One of the biggest problems with modern democracy is that most of the public is usually ignorant about politics and government. Many people understand that their votes are unlikely to change the outcome of an election and don't see the point in learning much about politics. This creates a nation of people with little political knowledge and little ability to objectively evaluate what they do know.
Democracy and Political Ignorance mines the depths of public ignorance in America and reveals it as a major challenge for democracy. It weighs various potential solutions, concluding that political ignorance is best mitigated and its effects lessened by decentralizing and limiting government. People make better decisions when they choose what to purchase in the market or which state or local government to live under, than when they vote at the ballot box, because they have stronger incentives to acquire relevant information and to use it wisely.
The second edition of Democracy and Political Ignorance fully updates its analysis to include new discussions of the “Big Sort” and its implications for “voting with your feet,” the connection between political ignorance and the disproportionate political influence of the wealthy, new proposals for increasing political knowledge, and up-to-date survey data on political ignorance from recent elections.
The Introduction outlines the core argument of the book, and provides summaries of the chapters that follow.
By Todd Zywicki
Bruce Yandle is one of the most influential economists of his generation, especially in the fields of environmental economics and public choice economics. But Yandle is also one of the most gifted communicators of economics and economic principles of his generation. This chapter, written for a book celebrating Yandle’s career and contributions to economic thought, is inspired by Yandle’s unparalleled gift for communication. It focuses particularly on Yandle’s use of modes of reasoning and “visions” about the world to illustrate the challenges of communicating economic concepts to citizens and government officials and how recognizing those challenges can enable economists to communicate better and, in so doing, to improve the world through the design of better regulatory policies. The chapter begins by reviewing Yandle’s use of the frameworks of Thomas Sowell’s Conflict of Visions and Robert Pirsig’s Zen and the Art of Motorcycle Maintenance to explain public and governmental resistance to environmental economics and then supplements the analysis with more recent and related work by Jonathan Haidt and psychological personality-typing, focusing particularly on the Myers-Briggs Type Indicator framework. The chapter concludes with autobiographical reflections on how Yandle’s insights about economic communication and his pedagogical style have influenced my own efforts to communicate in the public arena with respect to questions of consumer financial protection which, like environmental regulation, is fraught with strong moral intuitions and contrasting visions of the world.
By Ilya Somin
One of the major goals of libertarianism – and liberalism generally – is expanding political freedom: the opportunity to exercise meaningful choice over the government policies we live under. The main opportunity for political choice in modern liberal democracies is ballot box voting. Despite some genuine virtues, it has serious flaws as a mechanism for enhancing political freedom. The average citizen has almost no chance of affecting the outcome of an electoral process. In part as a result, he or she also has strong incentives to make ill-informed and illogical decisions. We can do better on both fronts when we “vote with our feet.”
Part I of this chapter briefly outlines three types of foot voting: voting with your feet between jurisdictions in a federal system, foot voting in the private sector, and international migration. All three involve meaningful exercises of political choice. In Part II, I explain how foot voting is superior to ballot box voting as a mechanism of political freedom. It allows for more meaningful and better-informed choice. It is also superior from the standpoint of several leading accounts of political freedom: Consent, negative liberty, positive liberty, and nondomination.
Part III considers objections to foot voting based on theories of self-determination, under which current residents of a given territory have a right to exclude newcomers in order to protect the political freedom of the former. Such theories come in both group-oriented and individualistic variants. Group theories posit that certain groups have a right to exclude newcomers based on their ethnic, racial, or religious characteristics. Individualistic theories claim that current residents can exclude newcomers for much the same reasons that private property owners or members of a private club have a right to exclude. I argue that both types of claims have severe flaws. Part IV discusses some institutional reforms that can help expand foot voting opportunities, while mitigating potential downsides. Finally, the Conclusion briefly suggests some ways in which expanded foot voting can help brighten future prospects for promoting libertarian values.
The Supreme Court’s decision in Ohio v. American Express settled a number of critical issues concerning multisided platforms—including whether each side of a platform constitutes a separate relevant product market. The ruling also addressed whether a prima facie assessment of competitive harm must incorporate the impact to consumers on all sides of a platform. The Court, however, potentially narrowed the scope of its ruling by making an explicit distinction between “transaction” and “non-transaction” platforms. We examine whether this is a meaningful distinction and explain how the Court’s logic applies to non-transaction platforms.
Burdens and Balancing in Multisided Markets: The First Principles Approach of Ohio v. American Express
Multisided platforms have distinct and critical features that set them apart from single-sided markets. This realization has led to a split among courts, antitrust practitioners, and economists as to the best method to assess whether mergers or conduct that involve platforms result in the creation or maintenance of monopoly power and violate the antitrust laws. Some argue that each side of a platform constitutes a separate relevant product market. Others argue for a single, integrated market that incorporates all sides. We argue that any prima facie antitrust assessment of competitive harm must incorporate the impact to consumers on all sides regardless of market definition. We also explain why output effects should be the primary emphasis of competitive effects analyses. The Supreme Court recently and correctly adopted this approach in Ohio v. American Express.
The Constitutionality of Immigration Sanctuaries and Anti-Sanctuaries: Originalism, Current Doctrine, and a Second-Best Alternative
By Nelson Lund
The Supreme Court’s immigration jurisprudence is fundamentally misguided, in the sense that it has little basis in the original meaning of the Constitution. In this essay, I will explain why I think so, and what the Court might do to ameliorate the effects of its past mistakes without overruling a raft of settled precedents.
Part I analyzes the text of the Constitution, which offers a reasonably clear allocation of authority over immigration between the state and federal governments. The Foreign Commerce Clause empowers Congress to limit the entry of aliens onto American soil, and the Naturalization Clause authorizes Congress to set uniform criteria for admission to American citizenship. Nothing on the face of the Constitution permits Congress to displace the states’ residual authority over aliens, which includes the power to exclude or expel unsuitable persons from their own territory.
Part II reviews early debates in Congress about the scope and nature of federal power over immigration. There were important disagreements, some of which resemble today’s policy debates, but Congress generally refrained from going much beyond what the text of the Constitution pretty clearly authorizes.
Part III traces the evolution of Supreme Court doctrine. The Court began by rooting federal immigration authority primarily in the Foreign Commerce Clause, where it belongs, but then misinterpreted that Clause. In the late nineteenth century, the Justices made a dramatic and largely unexplained shift to a non-textual theory under which broad federal authority over immigration and aliens is treated as an inherent aspect of American sovereignty.
Part IV shows that this doctrinal shift may not have had much practical significance. In non-immigration contexts, the Court eventually interpreted the Commerce Clause itself in a way that gave Congress practically the same far-reaching authority that the inherent power theory bestows in the immigration field. Thus, even if the Court had stuck with the Foreign Commerce Clause as the primary source of federal authority over immigration, the result would likely have been much the same as what the Court has mistakenly put in its place.
Part V assumes that the Court is very unlikely to reconsider the well-established inherent power theory. In recent decades, however, the Justices have been experimenting with doctrinal devices designed to put some limits on the almost unlimited Commerce Clause authority that previous cases had mistakenly conferred on Congress. The paper concludes with two examples showing how these limiting doctrines can and should be used to resolve recent controversies in which some states have desired to pursue policy objectives to which federal officials object.
This article appeared in the Cato Supreme Court Review addressing the Court's October Term 2017. The article addresses the Court's June 2018 opinion in Lucia v. SEC, which held that administrative law judges in the Securities and Exchange Commission are "Officers of the United States" within the meaning of the Constitution's Appointments Clause. Significant portions of this article are based on my earlier study of the original meaning of the Appointments Clause that the Stanford Law Review published in February 2018, see 73 Stan. L. Rev. 443 (2018).
This article is part of an Expert Analysis series of book reviews from judges originally published on Law360.
This Response addresses Professors Joseph Fishkin and David Pozen’s Asymmetric Constitutional Hardball. Fishkin and Pozen argue that Republicans have engaged in “asymmetric constitutional hardball” since 1993. This Response accepts the authors’ contention that Republicans have increasingly engaged in constitutional hardball but casts doubt on the purported asymmetry.
Part I questions whether one of the authors’ primary examples of Republican constitutional hardball—government shutdowns resulting from tensions over spending and other matters between Presidents Obama and Clinton on the one hand and congressional Republicans on the other—supports the authors’ thesis, especially given that the shutdowns could at least as easily be blamed on the Presidents as on Congress.
Part II highlights important examples of Democratic constitutional hardball, especially hardball by the Obama Administration, that are omitted from the authors’ analysis. Part II also briefly reviews reasons why Democrats have been increasingly inclined toward constitutional hardball.
Part III discusses in some detail a particularly important example of Obama Administration constitutional hardball—its efforts to reach and implement, over significant opposition in Congress, a nuclear agreement with Iran. These efforts circumvented Congress and involved lying to the public, engaging in legally aggressive lifting of sanctions on Iran, and even spying on the agreement’s domestic opponents.
By Adam Mossoff
Patents are increasingly swept up into the operations of agencies in the modern administrative state. This has raised anew the fundamental question whether patents are private property rights or special privileges, because this determines how constitutional guarantees apply to patents in administrative proceedings. If patents are private rights, full constitutional protections apply to them, such as the guaranty of due process. If patents are special privileges — deemed “public rights” — then they may be redefined or eliminated by the discretionary processes of administrative tribunals, such as the Patent Trial & Appeal Board. Today, courts and commentators reduce this fundamental legal classification to whether a right is born of a statute (public right) or a court decision (private right). They thus conclude that patents are public rights because they are “creatures of statute” enacted by Congress as authorized by the Constitution.
The classification of patents as public rights solely given their statutory provenance is profoundly mistaken. Modern courts and commentators have misconstrued one heuristic used by earlier courts as part of a broader inquiry in distinguishing between private rights and public rights. It was only a heuristic because all legal rights share mixed origins in both statutes and judicial decisions, including both property rights in land and in inventions. This Article surveys these well-known sources of property rights in both statutes and judicial decisions, revealing that conflating “common law” with private property rights is more legal myth than historical fact. As cases proliferate at the intersection of patent law, administrative law, and constitutional law, it is a fundamental error to classify patents as public rights in relegating these vested private property rights to the vagaries of administrative processes and decrees.
By Murat Mungan
Actors, whether guilty or innocent, may invest in costly measures to reduce their likelihood of being audited. The value of these investments are increasing in the probability with which they expect to be found guilty conditional on being audited. Because strengthening the standard of proof reduces the probability of conviction, it also reduces the investments by actors to engage in costly investments to reduce their likelihood of being audited. Therefore, when balancing such avoidance costs and deterrence effects, it is optimal to employ a stronger standard than that which maximizes deterrence, namely stronger than preponderance of the evidence.