Category Archives: Law and Economics

Mitchell Johnston, ‘Reflective Remedies’

ABSTRACT This Note aims to develop and describe a new class of penalty, the reflective remedy, to address the problem of optimal deterrence when the law is uncertain. It describes a novel remedial option for traditional legal disputes, in which the activity level chosen by the defendant is ‘reflected’ over the socially optimal level, and […]

Curran and Santos, ‘Underwater Coase: Can Diving Save the Coral Reefs?’

ABSTRACT The absence of well-defined property rights in an ocean setting can lead to the over-exploitation of its resources. This paper examines one case, the Gili Islands, in Indonesia, where the weak enforcement of legally defined State rights led to the formalisation of local rules that protect coral reefs through a process of bargaining between […]

Camilla Hrdy, ‘Intellectual Property and the End of Work’

ABSTRACT The conventional wisdom is that intellectual property (IP) is good for jobs. Indeed, according to legislators and the US patent office, IP ‘creates jobs’. But this is not quite right. A primary function of IP is to increase the amount of innovation in the economy. Yet a significant subset of the innovations protected by […]

Cai, Murtazashvili and Murtazashvili, ‘The Politics of Land Property Rights’

ABSTRACT Legal reforms that improve the security of private property rights to land have characteristics of a public good with dispersed benefits. However, nothing ensures that the state will provide property protection as a public good. Some states provide property protection selectively to powerful groups. Others are unable to provide property protection. In this paper, […]

‘Judge Posner and Contract Law’ – special number of University of the Pacific Law Review

Introduction: Posner by the Number (Michael P Malloy) Judge Posner, a Modern Day Chancellor in Equity: An Explanation of Wisconsin Knife Works v National Metal Crafters (Robert D Brain) A Behavioral Economics View of Judge Posner’s Contracts Legacy (Deborah R Gerhardt) Three by Posner (Victor P Goldberg) Fingerprints: An Impressionistic and Empirical Evaluation of Richard […]

‘The Impossibility of Simple Models of Impossibility in Contract Law’

Uri Benoliel, The Impossibility Doctrine in Commercial Contracts: An Empirical Analysis, Brooklyn Law Review (forthcoming), available at SSRN. The use of theoretical economics to analyze legal rules faces a special challenge in contract law, particularly when applied to default rules rather than mandatory ones: it has to match up with what contracting parties are actually […]

‘Personalizing Copyright Law Using Consumer Demographics’

Adi Libson and Gideon Parchomovsky, Toward the Personalization of Copyright Law, 86 University of Chicago Law Review 527 (2019). Most people assume, if implicitly, that there is a substantial element of uniformity in our IP system. At first blush, our copyright and patent laws extend a (presumably) uniform set of rights to (presumably) uniform authors […]

Niels Philipsen, ‘The Role of Private Actors in Preventing Work-Related Risks: A Law and Economics Perspective’

ABSTRACT This contribution considers the regulation of work-related risks such as industrial accidents and occupational diseases, and more specifically the role of employers and employees in the regulation and prevention of such risks. First, a law and economics perspective will be provided on the delegation of regulatory design and enforcement tasks to private actors. Thereby […]

Lee Anne Fennell, ‘Property Attachments’

ABSTRACT This essay critiques Eric Posner and Glen Weyl’s ‘common ownership self-assessed tax’ (COST), which would place everyone’s belongings perpetually on the block at prices that the owners themselves choose (and must pay taxes on). Mechanisms for making self-assessed valuation the basis of both taxation and involuntary dispossession have been discussed by scholars for decades, […]

Michael Faure, ‘Economic Analysis of Product Liability’

ABSTRACT This chapter in a book on European product liability provides a summary of the economic approach to product liability. The economic theory of product liability based on the Coase Theorem is explained. Next, product liability when damage is suffered by third parties is analyzed. Specific attention is paid to the EU Product Liability Directive […]