Bankruptcy has a tort problem. Chapter 11 predictably subordinates the claims of tort and other involuntary creditors to those of financial lenders, a fact which encourages firms to rely excessively on secured debt and discount the interests of those they might incidentally harm. For this reason, many scholars have advocated changing repayment priorities to move […]
A huge literature contemplates the theoretical relationship between judicial deference and agency rulemaking. But relatively little empirical work has studied the actual effect of deference on how agencies draft regulations. As a result, some of the most important questions surrounding deference—whether it encourages agencies to focus on policy analysis instead of legal analysis, its relationship […]
Why are green shoe options used in initial public offerings (IPOs)? And why do underwriters usually short sell an issuer’s stock in connection with its IPO? Are underwriters permitted to profit from these trading positions? Scholars have long argued that underwriters use green shoe options together with short sales to facilitate price stabilizing activities, and […]
Recent conservation and administrative law scholarship emphasizes the need for potential legal adversaries to work together. Stakeholders and regulators can pool their political capital, money, property, expertise, and legal leverage to achieve more than could be accomplished through mere mechanical implementation of statutory commands. Most commentators associate collaboration with programs promoting fuzzy objectives to engage […]
In the largest system of federal adjudication—Social Security disability adjudication—outcomes depend more on the randomly assigned judge than on the strength of the case. Does the administrative appeals process use resources effectively to reduce that arbitrariness and limit the discretion of administrative law judges? If not, how and why does it fail? These are empirical […]
The default rules of corporate law make shareholders’ control rights a function of their voting power. Whether a director is elected or a merger is approved depends on how shareholders vote. Yet, in private corporations shareholders routinely alter their rights by contract. This phenomenon of shareholder agreements—contracts among the owners of a firm— has received […]
The Federal Reserve’s recent, unprecedented corporate debt purchases will further reduce the cost of corporate debt relative to equity. Given the already high degree of leverage in the corporate sector, I argue that this is a dangerous policy choice. However, the best solution is not to outlaw the Fed’s crisis actions, but to reform other […]
Throughout its history, the development of theoretical law and economics has depended on, and been shaped by, empirical analyses of law. Theoretical law and economics scholars cannot draw persuasive positive or normative conclusions about legal rules unless the models employed accurately capture the factors affecting people’s responses to legal rules. Models thus must accurately describe […]
From a welfarist perspective, willingness to pay (WTP) is relevant only as a proxy for individual preferences or utilities. Much of the criticism levied against the WTP criterion can be understood as saying that WTP is a bad proxy for utility, or that WTP contains limited information about preferences. Specifically, critics of WTP claim wealth […]
Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and the U.S. Supreme Court has endorsed companies’ ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business […]
This Essay explores the relationship between normative law and economics and legal theory. We claim that legal theory must account for law’s coerciveness, normativity, and institutional structure. Economic analyses that engage these features are an integral part of legal theory, rather than external observations about law from an economic perspective. These analyses, or economic analysis […]