Externalities are one of the most fundamental market failure justifications for government action, and Pigouvian taxes and subsidies are standard tools for correcting them. Even so, neither the legal nor the economic literature offers any comprehensive account of when policymakers should prefer taxes to subsidies or vice versa. This Article takes up that task. Prior…
"Cultural cognition" refers to the unconscious influence of individuals' group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected "speech" from unprotected "conduct." Study subjects viewed a video of a political demonstration. Half the subjects believed…
This paper identifies two distinctive features of ancient constitutional design that have largely disappeared from the modern world: constitution-making by single individuals and constitution-making by foreigners. We consider the virtues and vices of these features, and argue that under plausible conditions single founders and outsider founders offer advantages over constitution-making by representative bodies of citizens,…
Should the law secure to copyright owners control over new technological uses of their works? Or should the law leave technological innovators free to explore and exploit such uses? The greater the control afforded to copyright owners, the greater the incentive to produce content, but also the greater the disincentive to produce better technologies to…
States use judicial conduct commissions to discipline judges who misbehave, but there is a large disparity among commissions in the number of disciplinary actions they take. What makes some commissions more prone to mete out discipline than others? This Note uses a case study of California's Commission on Judicial Performance to tease out several theories:…
This Note analyzes the effectiveness of derivatives clearinghouses in decreasing systemic risk upon a counterparty default. The analysis first explains how a derivatives clearinghouse can successfully reduce systemic risk by analyzing LCH.Clearnet's management of the Lehman default in 2008. Next, the analysis demonstrates that if a clearinghouse could not manage a default and became insolvent,…
