David Campbell, ‘The Non‐existence of Markets in the Economic Analysis of Law à la Mode’

Eric A Posner and E Glen Weyl, Radical Markets: Uprooting Capitalism and Democracy for a Just Society, Princeton, NJ: Princeton University Press, 2018, xxii, 337 pp, £24.00. Readers of this journal still following law and economics, particularly the variant associated with Richard Posner, who celebrated his eightieth birthday this year, will have been surprised by the left-wing nature of a number of the things said over the last decade or so. Influenced, of course, by the financial crash and by the success of extremely interventionist policies intended to prevent it from turning into, so far as this conveys any meaning, a complete breakdown of the financial system, Posner himself became an enthusiastic advocate of both Keynesian general demand management and Pigouvian piecemeal regulatory intervention; a far cry from the position of one who first came to prominence by advocating deregulation in the most strident way …

David Campbell, The Non‐existence of Markets in the Economic Analysis of Law à la Mode, Modern Law Review, volume 82, issue 5, September 2019, pages 951-965.

‘The future of law and economics and the legacy of Guido Calabresi’ – Special number of the European Journal of Law and Economics

The future of law and economics and the legacy of Guido Calabresi (Wendy J Gordon and Alain Marciano)

Mistaken about mistakes (Kathryn Zeiler)

Do we need behavioral economics to explain law? (Peter T Leeson)

Complexity and the Cathedral: making law and economics more Calabresian (Henry E Smith)

Law, economics and Calabresi on The future of law and economics (Alain Marciano and Giovanni Battista Ramello)

Law and economics versus economic analysis of law (Keith N Hylton)

Does law and economics help decide cases? (Conor Clarke and Alex Kozinski)

Law and economics and the role of explanation: A comment of Guido Calabresi,The Future of Law and Economics (Brian H Bix)

European Journal of Law and Economics volume 48, issue 1, August 2019

Alix Rogers, ‘Unearthing the Origins of Quasi-Property Status’

Under contemporary American law human corpses and some bodily parts are classified as quasi-property. Quasi-property is an American legal conception composed of limited interests that mimic some of the functions of property, but does not formally qualify as property. It is a uniquely American, idiosyncratic and misunderstood legal category. Quasi-property status is most typically associated with intellectual property given the Supreme Court decision of International News Services v Associated Press. That human remains and bodily materials are classified as quasi-property is less well known. The confusion surrounding the quasi-property status of the dead has negative implications for current and future research, medicine and broader society. Litigation surrounding the treatment and status of those who died in the 9/11 World Trade Center attack hinged on quasi-property. Clearly resolving the quasi-property status of the dead is becoming increasingly important in the wake of biotechnological advances. In March 2018 a Y Combinator start-up, Nectome, promised to preserve, digitize and reanimate brains. The project is concerning for many reasons, but one major concern is the ambiguous status of the dead that the company will experiment upon and, ultimately, offer services to.

This paper explores the origins of quasi-property and investigates why American judges ascribed quasi-property status to human remains. The adoption of quasi-property status is notable because judges broke with hundreds of years of inherited common law, and forsook a legal tenant prescribed by Blackstone and Coke. Understanding its origins, therefore, has broader implications for our understanding of the development of American law. I show that the academic literature and case law have mistaken both the origin of, and reasoning behind quasi-property status. Scholars and judges cite a 1872 Rhode Island Supreme Court decision as the foundational case on quasi-property status of the dead. My research shows that, in fact, the first case occurred instead in Cleveland, Ohio a year earlier. Further, my analysis of this initial case, and surrounding socio-cultural context, reframes our understanding of the forces behind quasi-property status. The traditional account in the literature and case law of the emergence of quasi-property status points to America’s lack of ecclesiastical courts, which historically had jurisdiction over cemeteries and burial in England. I argue that the existing explanation does not sufficiently account for the initial application, the dominance, or the persistence of the unique status of quasi-property by American courts. This paper advances a novel argument that socio-cultural changes forged in the maelstrom of the Civil War precipitated the initial use and later systematic adoption by American courts of quasi-property status for human remains. My discovery and re-examination of the subsequent rise of quasi-property at the turn of the nineteenth century has important implications for how contemporary courts should conceive of this deeply contested legal category.

Rogers, Alix, Unearthing the Origins of Quasi-Property Status (July 1, 2019). Hastings Law Journal, 2020.

Doug Lichtman, ‘The Perspiration Principle’

Should copyright be awarded in an instance where a work of authorship lacks inspiration and is instead simply the result of necessary and genuine hard work? Should patents likewise be offered to inventors whose achievements derive not from any flash of genius but from sweat and labor alone? In this Essay, Professor Lichtman revisits the economic case in favor of a ‘perspiration principle’ under which hard work would be a sufficient trigger for intellectual property protection, even in instances where the resulting achievements lack the creative spark that patent and copyright law typically require.

Doug Lichtman, The Perspiration Principle, 18 John Marshall Review of Intellectual Property Law 463 (2019).

Pappas and Flatt, ‘The Costs of Creating Environmental Markets: A Commodification Primer’

… the Article constructs a model for evaluating market emergence and success, and with this framework, the Article makes two major contributions. First, it offers a concrete and pragmatic method for gauging the desirability of market tools for certain resources in the environmental context and beyond. For instance, the model can identify specific situations where a cap-and-trade approach will be less effective than a Pigouvian-tax, or where a licensing system will be superior to a laissez-faire one. Consideration of severance costs and adjustment failure costs offers a generalizable model for describing the feasibility of commodifying environmental goods, prescribing interventions to marginally improve market instruments in general, and evaluating governance approaches for a variety of contexts.

Second, this Article contributes to the theoretical literature on commodification by offering a positive economic framework that can synthesize the leading scholarship and explain existing reservations regarding commodification. It provides a descriptive economic account that can help ground moral intuitions and objections about markets and commodification. As a result, it gives fresh insight into why existing laws and policies are as they are, and it bridges moral and economic arguments, providing a common point of departure for future engagement in these debates.

Michael Pappas and Victor B Flatt, The Costs of Creating Environmental Markets: A Commodification Primer, 9 UC Irvine Law Review 731 (2019).

David Owens, ‘Property and Authority’

It is widely believed that personal property rights are to be justified by reference to the interest potential owners have in controlling things that matter to them. The first part of the paper develops one form of this view, highlighting its several theoretical merits. I then raise two problems for the control interest hypothesis (as I call it) and defend a novel alternative, one based on the idea that human beings have an interest in controlling their normative situation. This authority interest hypothesis shares the merits of the control interest hypothesis whilst lacking its defects.

Owens, David, Property and Authority (August 12, 2019). Journal of Political Philosophy, volume 27, no 3, 2019.

Elizabeth Carter, ‘Are Premarital Agreements Really Unfair: An Empirical Study of Premarital Agreements’

Are premarital agreements categorically unfair? Critics of premarital agreements cling to the (unfounded) belief that premarital agreements are categorically one-sided, coercive, and designed to benefit the wealthier spouse – usually the man. Courts, legislators, and scholars have too often relied on assumptions about premarital agreements without delving in to the facts. They have looked almost everywhere to support their views, except for the one place that really matters: the actual agreements. The result, predictably, is a paternalistic system predicated on a near religious belief that women who sign premarital agreements are uneducated, unsophisticated, economically dependent actors who need the state to protect them from the overreaching of their husbands and their own stupidity. For the few women this paternalistic system might protect, it harms a great many more by reinforcing negative stereotypes and eroding individual autonomy.

This paper builds on my previous work and offers something that has been sorely lacking in the field – empirical data. This paper presents my initial findings of a study involving all of the premarital agreements between opposite-sex couples recorded in Jefferson Parish, Louisiana between January 1, 2013 and December 31, 2016 – a total of 474 premarital agreements. My findings cast considerable doubt upon many of the stereotypes about the parties that enter into premarital agreements. The quintessential stereotype of a couple with a premarital agreement is the rich businessman and his (much) younger ‘trophy’ bride. For the couples in this study, however, large age discrepancies are the exception rather than the rule. We have long assumed that premarital agreements are most common in second marriages. Although that is generally true for the couples in this study, the reality is a good deal more nuanced. Nearly a quarter of the agreements in this study were entered into by two spouses with no prior marriages. Longstanding assumptions about substance and procedure are also challenged by my study. We have been suspicious of premarital agreements that are signed shortly before the wedding out of fear that they result from duress or coercion. Yet, the vast majority of the couples in this study signed their agreements shortly before their weddings. Isn’t it more likely that these couples procrastinated rather than coerced? We have long assumed that premarital agreements involve the waiver of property rights and spousal support by the poorer spouse for the benefit of the richer spouse. Again, the data paint a more complex and interesting picture.

Carter, Elizabeth Ruth, Are Premarital Agreements Really Unfair: An Empirical Study of Premarital Agreements (August 12, 2019).

Courtney Joslin, ‘Autonomy in the Family’

Scholars largely support the concept of choice in family form. But while scholars largely agree on this abstract goal, they do not agree on which legal rules best further that end. Take the issue of economic rights for nonmarital partners. The conventional doctrine treats nonmarital partners as legal strangers. No rights arise out of their relationship. Like other legal strangers, they can alter this default rule by entering into an agreement to share. But unless they do so, the parties have no obligations to each other. The dominant scholarly defense of this rule sounds in the register of family autonomy, that is, respect for choice in family form.

This Article accomplishes two key goals. First, it offers a novel lens through which to reconsider how best to promote meaningful choice in family form. By carefully mining another area of nonmarriage law, the law of nonmarital parentage, this Article demonstrates that the conventional doctrine undermines rather than furthers that goal. To make that choice a meaningful one, the law must recognize and respect a range of different types of families that people have chosen to create.

Second, this Article draws on nonmarital parentage law, as well as the almost entirely overlooked body of what I call ‘interstitial marriage cases’, to demonstrate that courts are capable of applying more capacious rules that give effect to chosen families. In this way, marriage-related developments can be utilized to expand rather than to forestall the law of nonmarriage.

Joslin, Courtney G, Autonomy in the Family (August 12, 2019). 66 UCLA Law Review 912 (2019).

Ting Xu, ‘A law-and-community approach to compensation for takings of property under the European Convention on Human Rights’

Studies of takings of property highlight the increasing penetration of state power into private life. Controversies regularly surround compensation provisions. Many academic analyses and decisions of the European Court of Human Rights have supported the proposition that market value offers the best approximation of just compensation. However, full market value compensation may not be guaranteed if the taking of property fulfils certain legitimate objectives of the ‘public interest’. To unpack the complexity surrounding compensation provisions under the European Convention on Human Rights, this paper adopts and develops a ‘law-and-community’ approach – an important dimension, not previously investigated in the study of takings of property – which sees ‘community’ as networks of social relations, and views law as not only grounded in community but also existing to regulate communal networks. This paper then identifies the limits of both Art 1, Protocol 1 of the ECHR and the current approaches to compensation in the light of this law-and-community approach. In so doing, the paper makes a distinctive contribution by offering a new socio-legal interpretation of controversies surrounding compensation for takings of property beyond the private/public divide and by proposing an alternative framework of engaging law and regulation in wider social life.

Ting Xu, A law-and-community approach to compensation for takings of property under the European Convention on Human Rights, Legal Studies, volume 39, issue 3, September 2019, pp 398-414. DOI: https://doi.org/10.1017/lst.2018.26.

Hanjo Hamann, ‘The German Federal Courts Dataset 1950-2019: From Paper Archives to Linked Open Data’

Various reasons explain why Europe lags behind the United States in empirical legal studies. One of them is a scarcity of available data on judicial decision making, even at the highest levels of adjudication. By institutional design, civil‐law judges have lower personal profiles than their common‐law counterparts. Hence very few empirical data are available on how courts are composed and how that composition changes over time. The present project remedies that by easing access to such data and lowering the threshold for empirical studies on judicial behavior. This paper introduces the German Federal Courts Dataset (GFCD) as a resource for empirical legal scholars, with the objective of inspiring more European lawyers to engage with empirical aspects of civil‐law adjudication. To that end, several thousand pages of German court documentation were digitized, transcribed into machine‐readable tables (ready to be imported into statistics software), and published online (www.richter-im-internet.de). To simultaneously explore innovative ways of sharing public‐domain datasets, the data were modeled as linked open data and imported into the Wikidata repository for use in any computational application.

Hanjo Hamann, The German Federal Courts Dataset 1950–2019: From Paper Archives to Linked Open Data, Journal of Empirical Legal Studies, volume 16, issue 3, September 2019, pages 671-688.