Band 3, Heft 2

Miller v. Schoene approved the uncompensated destruction of cedar trees that were alternate hosts to a fungus that damaged apples but not cedars. Supreme Court Justice Harlan F. Stone’s opinion noted that deciding for either cedar or apple growers would amount to action by the state. Scholars have claimed that Miller marked the demise of the public/private distinction in constitutional law. This article presents historical evidence to the contrary. A widely-accepted standard—higher commercial value—commonly decided whose interests should prevail in such controversies. The analysis also shows that moral hazard explains why cedar owners were denied just compensation, which orchardists had originally been willing to tax themselves to pay. Cedar owners whose land actually gained in value when their trees were cut down nonetheless availed themselves of damages.

We attempt to revise the inspection game used by George Tsebelis to model phenomena in criminal justice. The refinement has been conducted by disaggregating the game payoffs and then using findings from empirical studies to reconstruct the game. In contrast to Tsebelis’ propositions, we find that the severity of punishment may affect the offending behavior of individuals. The result also holds for the case in which the authority initiates crime prevention programs, by providing incentives to those who do not have a criminal history. The impact of increasing the severity of punishment on reducing individuals’ offending behavior is less certain than that of instigating crime prevention programs. This result holds so long as the authority does not alter the levels of enforcement.

In this paper we assert that, if an offender can dispose of some or all of his wealth after violating the law, raising the fine up to his wealth level will induce him to dispose of his wealth, thereby increasing social cost without deterring more offenses. This suggests that the socially optimal fine should be set below the offender's maximum wealth level.

Courts may determine that an offer is irrevocable due to the offeree’s reasonable reliance on it. For instance, the landmark case of Drennan v. Star Paving Co. (1958) held a subcontractor’s price offer to be irrevocable once it had been relied upon by the general contractor in computing his overall bid. However, a rule of implied irrevocability raises two main difficulties. First, it seems unfair to force the offeror to commit, but not the offeree. Second, from an ex ante perspective, the implied irrevocability rule seems to deter parties from submitting low-priced, unqualified offers. These concerns have led several scholars to argue for modification of the rule. This paper rationalizes the implied irrevocability rule by demonstrating that the above concerns are unfounded. We demonstrate that whereas some restrictions on the offeree’s freedom to conduct bid shopping ex post (i.e., after the uncertainties are resolved) are essential in order to allow him to receive viable price offers ex ante, these restrictions need not be absolute nor legally enforced. Partial restrictions, in the form of a self-enforced Binding Range, may well suffice. The plausible existence of a self-enforced Binding Range ensures that offerors have incentives to submit irrevocable bids because they can expect to earn a profit by submitting the best offer. This paper characterizes the optimal size of the Binding Range, and explores what legal provisions should be applied when the self-enforced Binding Range is sub-optimal.

This study empirically investigates whether racial and ethnic differences in police searches of stopped drivers reflect efficient enforcement or biased policing. Null hypotheses consistent with efficient enforcement are derived from alternative assumptions regarding police objectives: 1) police seek to maximize public safety, and 2) police seek to maximize the hit rate. We use both an outcomes-based non-parametric analysis and a standard benchmarking parametric approach (regression analysis). Both approaches yield the same results: law enforcement officers display both personal and police cultural bias in their propensity to search African American and Latino drivers. African American and Latino status tends to lower the guilt signal required for police suspicion. Further, white officers police differently than their African American and Latino colleagues. White officers are 73 percent of the sworn police force, conduct 88 percent of the searches, and have a hit rate of 20 percent. Latino officers are 11 percent of the sworn labor force, conduct 8 percent of the searches, and have a hit rate of 24 percent. African American officers are 15 percent of the sworn labor force, conduct 4 percent of the searches, and have a hit rate of 26 percent. The preferential treatment of white drivers by police is attenuated with increases in the fraction of racial and ethnic minority residents in the county where the stop occurred.

Many legal scholars believe that equity should be considered in designing legal rules. Kaplow and Shavell (1994) seriously challenged this approach. They proved that the tax transfer system is superior to legal rules in redistributing wealth. This paper reexamines their 'double distortion' claim, presenting two main arguments. The first shows that the 'double distortion' claim is not necessarily valid under welfarism. In particular, under an ex post approach to welfarism, which generally implies that society pays attention to the ex post (actual) rather than expected redistribution, the proof of the tax superiority breaks down. Secondly, and more importantly, it is proven that, in principle, tort rules can easily be designed to circumvent 'double distortion' effects. Thus, the tort system is not inherently more inefficient than the tax-transfer system in accomplishing redistribution. The paper generally concludes that although there are often no good reasons for redistribution within the legal system, theoretically and a priori it is not an inferior redistribution mechanism.

In a comprehensive study extending prior research, Prince and Rubin (2002) use the event study methodology, and find negative market reaction to a sample of 15 initial filings of product liability litigation and 29 other litigation events against U.S. automakers between 1973 and 1995. They conclude that the event study methodology is a useful way to measure the costs of litigation. In contrast, after examination of a new sample of 144 initial filing events and 465 other litigation events for six major automobile firms from 1985 to 2000, and after re-examining Prince and Rubin’s data, we find that the market reaction to all but the most extreme and infrequent events is generally not significant. We suggest that the event study methodology may not generally be useful to study the social costs of litigation, but may be useful for unexpected abnormal litigation events where the potential liabilities (including reputation and other losses triggered by litigation) may far exceed the legal liability reserves set up by firms. We find mixed results for the market impact of litigation against a competitor. When a product liability lawsuit is first filed against a U.S. firm, the market values of the Japanese firms significantly decline. When a Japanese firm is sued for product liability, the U.S. firms register a significant increase in market value. However, these spillover results have to be interpreted with caution because of small sample sizes and possible confounding events.

In some recent works, negligence-based liability has been severely criticized. It has been argued that negligence-based liability does not form a convincing basis for liability assignment. Causation-based liability has been proposed as an alternative basis of liability determination. Parisi and Fon (2004) have studied the efficiency properties of the causal apportionment of liability. The authors have shown that when care levels as well as activity levels of the parties affect the causation of an accident, causation based liability does not provide efficient incentives for the parties. In this paper, we assume the activity levels to be constant. Under this assumption, we have demonstrated the existence of liability rules that are efficient and at the same time `consistent' with the requirement of causation liability. In addition, it is shown that under these rules the equilibrium outcome is unique. The analysis has been undertaken in a very general framework.

Harsh sanctions are conventionally assumed to primarily benefit vulnerable targets. Contrary to this perception, this article shows that augmented sanctions often serve the less vulnerable targets. While decreasing crime, harsher sanctions also induce the police to shift enforcement efforts from more to less vulnerable victims. When this shift is substantial, augmented sanctions exacerbate—rather than reduce—the risk to vulnerable victims. Based on this insight, this article suggests several normative implications concerning the efficacy of enhanced sanctions, the importance of victims’ funds, and the connection between police operations and apprehension rates.

In most countries, wireless communications rely on administrative allocation of radio spectrum. The inefficiencies associated with this centralized approach have led economists, starting with Coase in 1959, to suggest “propertyzing” radio spectrum. Critics of this approach assert that property rights impose prohibitive transaction costs and inhibit development of wireless services. Reforms enacted in Guatemala (in 1996) and El Salvador (in 1997) have largely implemented policies suggested by Coase, yielding a natural experiment. Evidence generated in the mobile telephone market suggests that these regimes are associated with relatively efficient policy outcomes, including abundant spectrum availability and a high degree of competitiveness, and with correspondingly low retail prices and high rates of output (minutes of use). Further, such markets appear to avoid high transaction costs in the public or private sectors. We conclude that these liberal reforms tend to produce results consistent with Coase’s policy conjecture.

What explains the popularity of law and economics (L&E) in some academic communities and the scarcity of such scholarship in others? Many explanations have been given for the centrality of economic analysis in American legal thought and its marginality in Europe. This article examines what drives scholars to select L&E as a topic for research. It does so by implementing the methodology of many papers in the field – by assuming that regulation and incentives matter. Legal scholars face very different academic incentives in different parts of the world. In some countries, the academic standards for appointment, promotion and tenure encourage legal scholars to concentrate on L&E. In others, they strongly discourage such research. Thus, we should expect wide variation in the participation rate of legal scholars in the L&E discourse across countries. On the other hand, economists are evaluated with similar yardsticks everywhere, and thus their participation rate is likely to vary much less. The hypothesis of this paper is that academic incentives are a major factor in the level of participation in L&E scholarship. This "incentives hypothesis" is presented and then examined empirically with data gathered from the list of authors in L&E journals and the list of participants in L&E conferences. The data generally support the hypothesis. In legal academia, the incentives to focus research on L&E topics are the strongest in Israel, weaker in North America, and weakest in Europe. In fact, the data reveal that lawyers' authorship of L&E papers weighted by population is about ten times higher in Israel than in North America; while in Europe it is almost five times lower than in North America. By comparison, the weighted participation level of economists – who face relatively similar academic environments across countries – in L&E research is not significantly different across countries.

We offer a model that sheds light on the debate over whether corporate ownership concentration converges to the Berle-Means image. Our model takes into account the importance of both legal rules and firm-specific arrangements. Our analytical result is that share ownership concentration either persists or falls depending on the relative importance of these protective arrangements. In particular, our model predicts: (a) diffuse corporate ownership in nations that impose legal limits on blockholders’ clout to expropriate minority shareholder rights, and (b) concentrated corporate ownership in nations that rely on asset specificity as a form of investor protection.Our empirical work suggests partial convergence toward Berle-Means diffuse share ownership. It is thereby reasonable to infer the existence of path dependent forces on ownership concentration. But this result does not preclude the possibility of functional convergence or convergence to the diffuse form of share ownership via cross-listings on the major U.S. stock exchanges that impose stringent disclosure and listing requirements. In essence, these results suggest a case for the co-existence of the preexisting path-dependency and functional-convergence stories.

This paper shows that unilateral-harm contexts with role-type uncertainty can create incentives similar to bilateral-harm contexts. For this purpose, we show that the result of Dharmapala and Hoffmann (2005), namely that standard liability rules do not lead to efficient care choices by injurer and victim if precaution costs are interdependent and harm is unilateral whereas they can in the case of bilateral harm, depends on role-type certainty.

Sequential innovation with actual patent infringement and uncertainty in litigation is analyzed. Comparative statics shows that within a wide range of model parameters, a basic researcher holding a patent is able to extract all of the profit facilitated by the basic innovation. The patent holder achieves this by offering a licensing contract which the subsequent innovator accepts in the shadow of paying infringement damages. It is further demonstrated that, under rather general circumstances, broader patent breadth may diminish the patent holder’s incentive to innovate: that is to extract all of the profit from the subsequent innovator commercializing the innovation.

This article develops a model in which firms may commit to disclose varying amounts of two types of information, accuracy information and agency information, and in which a regulator may also mandate disclosures. The resulting analysis provides a way to better understand the relationship between disclosure regulation and social welfare, including issues such as: how disclosure regulation can generate social welfare gains (contra Dye, 1990; Admati & Pfleiderer, 2000), why imposing disclosure requirements on only certain firms and certain information may be efficient, and why stricter mandatory disclosure requirements may be an efficient regulatory response to more robust public securities markets (contra La Porta, Lopez de Silanes, & Shleifer, 2006).