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Remixing Resources

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This Essay argues for an approach to resource access that connects rather than separates questions of efficiency and distribution. It proceeds from the premise that putting together the most valuable combinations of resources—including human capital—is of central and increasing normative importance. Structuring law to facilitate these combinations should be a primary task for property scholars […]

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Transactions Benefits

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At least since Ronald Coase, law and economics has been deeply engaged with transactions costs. These frictions can prevent resources from being efficiently deployed in production and goods from reaching their highest-valuing users. The systematic study of how to reduce or minimize transactions costs has yielded explanations, for example, of the boundary between the firm […]

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The Boundaries of Normative Law and Economics

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Normative law and economics remains controversial decades after its emergence despite its successes in legal scholarship and its similarity to influential approaches in economics. The reason is that many of its proponents have exaggerated its value for policy while discounting other methods, tainting the enterprise. Normative law and economics as a method of policy analysis […]

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Economic Challenges for the Law of Contract

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This Essay introduces general equilibrium theory (GET) and mechanism design theory (MD) in a general sense (rather than in piece meal applications) to the study of contract law. As a positive matter, this introduction reveals three understudied areas: (i) when the equilibrium contract is individually rational but collectively irrational; (ii) the role of courts in […]

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What Do Lawyers Contribute to Law and Economics?

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The law-and-economics movement has transformed the analysis of private law in the United States and, increasingly, around the world. As the field developed from 1970 to the early 2000s, scholars have developed countless insights about the operation and effects of law and legal institutions. Throughout this period, the discipline of law-and-economics has benefited from a […]

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Towards an Administrative Law of Central Banking

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A world in turmoil caused by Covid-19 has revealed again what has long been true: the Federal Reserve is arguably the most powerful administrative agency in government, but neither administrative-law scholars nor the Fed itself treat it that way. In this Article, we present the first effort to map the contours of what administrative law […]

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The Departmental Structure of Executive Power: Subordinate Checks from Madison to Mueller

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This Article examines the departmental structure of the executive branch, which facilitates, channels, and delimits the exercise of executive power. This structure is grounded in the text of the Constitution, which refers to “Department[s]” in the Necessary and Proper Clause, Appointments Clause, and Opinion Clause. The concept of the department also played a key role […]

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Congress’s Commissioners: Former Hill Staffers at the S.E.C. and Other Independent Regulatory Commissions

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The expression “personnel is policy” has become a truism in Washington. Yet our understanding of how the political branches use appointments to project influence into the administrative state is incomplete. This Article leverages data on almost one-thousand commissioners serving on eleven major independent regulatory commissions to chart, for the first time, Congress’s growing practice of […]

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Taxing Buybacks

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A recent rise in the volume of corporate share repurchases has prompted calls for changes to the rules governing stock buybacks. These calls for reform are animated by concerns that buybacks enrich corporate executives at the expense of productive investment. This emerging antibuyback movement includes prominent politicians as well as academics and Republicans as well […]

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Agency Costs, Corporate Governance, and the American Labor Union

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Acute agency costs exist in unions as they do in other complex organizations. Specifically, union officials are imperfect representatives of the rank-and-file workers they ostensibly represent. Yet far less attention has been paid to addressing agency costs in the context of unions than in the context of public corporations, where the separation of share ownership […]

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Horizontal Shareholding and Network Theory

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This paper uses network theory to argue that the consequences of horizontal ownership by large investment institutions are more complicated than, and sometimes the complete opposite of, what conventional economic theory predicts. Horizontal ownership occurs when a large investment institution, such as Vanguard or BlackRock, simultaneously holds large stakes in many different companies in the […]

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Statutory Diagrams

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We live in a republic of statutes, yet understanding those statutes has become so cognitively difficult that judges cannot properly interpret them, citizens cannot properly understand them, and legislatures cannot properly write them. This Note presents a new tool for reducing the cognitive difficulty of understanding and applying statutes: statutory diagrams. The Note presents the […]

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Pharmaceutical Pricing When Success Has Many Parents

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Pharmaceutical companies claim that high prices for drugs are needed to offset the costs and risks associated with research and development. In most instances, though, the initial (basic) research that leads to new discoveries is conducted at public institutions and paid for with public funds. Drugmakers tend to take over the process of bringing new […]

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Artificial Intelligence and Climate Change

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As artificial intelligence (AI) continues to embed itself in our daily lives, many focus on the threats it poses to privacy, security, due process, and democracy itself. But beyond these legitimate concerns, AI promises to optimize activities, increase efficiency, and enhance the accuracy and efficacy of the many aspects of society relying on predictions and […]