Copyright (c) 2009 Yale Law School All rights reserved. http://digitalcommons.law.yale.edu/lepp_papers Recent documents in John M. Olin Center for Studies in Law, Economics, and Public Policy Working Papers en-us Tue, 30 Jun 2009 12:12:17 PDT 3600 http://digitalcommons.law.yale.edu/lepp_papers/291 http://digitalcommons.law.yale.edu/lepp_papers/291 Sun, 02 Oct 2005 11:12:23 PDT John Donohue Constitutional Law Law Law and Society http://digitalcommons.law.yale.edu/lepp_papers/290 http://digitalcommons.law.yale.edu/lepp_papers/290 Sun, 02 Oct 2005 11:05:30 PDT This essay provides an overview of the central theoretical law and economics insights concerning antidiscrimination law across a variety of contexts including discrimination in labor markets, housing markets, consumer purchases, and policing. The different models of discrimination based on animus, statistical discrimination, and cartel exploitation are analyzed for both race and sex discrimination. I explore the theoretical arguments for prohibiting private discriminatory conduct and illustrate the tensions that exist between concerns for liberty and equality. I also discuss the critical point that one cannot automatically attribute observed disparities in various economic or social outcomes to discrimination, and illustrate the complexities in establishing the existence of discrimination. The major empirical findings showing the effectiveness of federal law in the first decade after passage of the 1964 Civil Rights Act are contrasted with the generally less optimistic findings from subsequent antidiscrimination interventions. John Donohue Commercial Law Consumer Protection Law Employment Practice http://digitalcommons.law.yale.edu/lepp_papers/289 http://digitalcommons.law.yale.edu/lepp_papers/289 Sun, 02 Oct 2005 10:50:38 PDT David H. Autor Employment Practice http://digitalcommons.law.yale.edu/lepp_papers/288 http://digitalcommons.law.yale.edu/lepp_papers/288 Wed, 14 Sep 2005 13:08:03 PDT Ian Ayres Employment Practice Intellectual Property Law http://digitalcommons.law.yale.edu/lepp_papers/287 http://digitalcommons.law.yale.edu/lepp_papers/287 Wed, 14 Sep 2005 12:38:03 PDT The Supreme Court's affirmative action decisions in Grutter v. Bollinger and Gratz v. Bollinger changed the meaning of "narrow tailoring." While the narrow tailoring requirement has always had multiple dimensions, a central meaning has been that the government must use the smallest racial preference needed to achieve its compelling interest. We might have expected, therefore, that if the Court were to uphold one of the two programs at issue in Grutter and Gratz, it would, all other things being equal, uphold the program with smaller racial preferences. We show, however, that the preferences in the admissions program upheld in Grutter were larger than the preferences in the admissions program struck down in Gratz. This result was not necessarily wrong, but the Court's analysis was wrong. The Grutter and Gratz Courts replaced the "minimum necessary preference" requirement with a requirement that admissions programs provide "individualized consideration," which we show amounts to a "Don't Tell, Don't Ask" regime. The Court will not "ask" probing questions about the size and differentiation of preferences as long as the government decisionmaker does not "tell" the Court how much of a racial preference it is giving. Indeed, as an example of the differential standards the Court applied, we demonstrate that while the Court impugned the admissions program at issue Gratz for making race decisive for "virtually every minimally qualified minority applicant," in fact the fraction of qualified minority applicants for whom race was decisive was smaller in the admissions program struck down in Gratz than it was in the admissions program upheld in Grutter. We call for a return to the minimum necessary preference requirement. Instead of examining whether preferences are "individualized," courts should determine whether the constitutionally relevant benefits of granting preferences of a given size outweigh the constitutionally relevant costs, both overall and at the margin. Ian Ayres Constitutional Law Education Law Legal Education http://digitalcommons.law.yale.edu/lepp_papers/285 http://digitalcommons.law.yale.edu/lepp_papers/285 Tue, 28 Oct 2003 09:48:47 PST Economic theories of legal compliance emphasize legal sanctions, while psychological and sociological theories stress the perceived legitimacy of law. Without disputing the importance of either mechanism, we test a third way that law affects behavior, an expressive theory that claims law influences behavior by creating a focal point around which individuals coordinate. The focal point theory makes three claims: (1) that the need for coordination is pervasive because "mixed motive" games involving coordination model common disputes; (2) that, in such games, any third-party cheap talk that calls the players' attention to a particular equilibrium tends to produce that equilibrium; and (3) that law, by publicly endorsing a particular equilibrium, tends to call the players' attention to that outcome. After explaining the first and third claim, we offer an experimental test of the second. Specifically, we investigated how various forms of third party cheap talk influence the behavior of subjects in a Hawk/Dove or Chicken game. Despite the players' conflicting interests, we found that messages highlighting one equilibrium tend to produce that outcome. This result emerged when the message was selected by an overtly random, mechanical process, and also when it was delivered by a third-party subject; the latter effect was significantly stronger than the former only when the subject speaker was selected by a merit-based process. These results suggest that, in certain circumstances, law generates compliance not only by sanctions and legitimacy, but also by facilitating coordination around a focal outcome. Richard H. McAdams http://digitalcommons.law.yale.edu/lepp_papers/286 http://digitalcommons.law.yale.edu/lepp_papers/286 Tue, 28 Oct 2003 08:43:03 PST For many decades, scholars have puzzled over why the market for judicial clerks has been characterized by increasingly early bidding, with interviews and offers extended at progressively early points in a student's law school career. An important article published recently by Jolls, Avery, Judge Posner and Alvin Roth reported the results of a study the authors conducted of judges and clerks documenting the many ways in which the market operated inefficiently. In their view, the clerk market corresponds to other markets studied chiefly by Roth that show timing disturbances claimed to be market failures. The authors recommended adoption of a modified matching program, similar to the program that matches medical residents with hospitals. This paper reanalyzes the clerkship market and the other markets studied by Professor Roth from the standpoint of the costs and benefits of information acquisition. It shows that, far from market failure, the use of time as a currency in the market, represents the working out of market forces where other, more traditional terms of trade - in particular, price - are unavailable. The paper also shows that virtually all of the other markets studied by Roth that show timing peculiarities are characterized by restraints on the use of price to clear the market. George L. Priest http://digitalcommons.law.yale.edu/lepp_papers/284 http://digitalcommons.law.yale.edu/lepp_papers/284 Wed, 10 Sep 2003 15:17:42 PDT This Article argues that recent developments in economic theory provide a new rationale for the dichotomous approach of land use arrangements in the law of servitudes that is almost universal in the modern Western legal tradition. The treatment of certain land-related promises as enforceable contracts between parties, rather than real rights that run with the land in perpetuity, can be explained as an attempt to minimize the transaction and strategic costs resulting from dysfunctional property arrangements. As demonstrated by the Authors, benchmark doctrines such as "touch and concern," and the civil law principles of "prediality" and numerus clausus, have served as instruments to limit excessive or dysfunctional fragmentation of property rights. Section I of this Article describes the dichotomous approach of land use arrangements in the law of servitudes in Common Law and Civil Law systems. Section II provides a functional explanation of the legal rules in this area. Section III documents and explains the changing approach to land use law in both Common Law and Civil Law jurisdictions. Section IV discusses the role of property law in a changing economy. Section V reflects on the appropriate scope of freedom of contract in the law of servitudes. Section VI concludes. Ben W. F. Depoorter http://digitalcommons.law.yale.edu/lepp_papers/283 http://digitalcommons.law.yale.edu/lepp_papers/283 Wed, 10 Sep 2003 15:17:35 PDT In recent years, patent protection has extended into new areas, giving rise to serious concern about the lack of clear guidelines for patentability. We analyze the effect of introducing a patent opposition process that would allow patent validity to be challenged directly after a patent is granted. In many cases, such a system would avoid costly litigation at a later date. In other cases, the opposition process would increase the cost of conflict resolution, but would also reward holders of valid patents and limit the rewards to invalid patents. Our analysis suggests significant positive welfare gains from the introduction of a patent opposition process. Jonathan Levin http://digitalcommons.law.yale.edu/lepp_papers/282 http://digitalcommons.law.yale.edu/lepp_papers/282 Wed, 10 Sep 2003 15:17:27 PDT We consider a model of crime with rational Bayesian Jurors. We find that if jurors are not perfectly informed, even when there is no limit to the size of the punishment that can be imposed, it is not possible to deter all crime. There is a finite lower bound on the crime rate which results from the difficulties in achieving a conviction with imperfect evidence and very low crime rates. Crime can not be reduced below this rate by increasing the penalty, but the lower bound can be decreased by improving the quality of evidence presented to jurors, or by increasing the threshold of evidence necessary for prosecution. Ezra Friedman