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Law School Record, vol. 69, no. 2 (Spring 2023)
Get PDFMessage from the Dean How Disagreement Remade Corporate Law “So Deeply Our Hearts Were Allied” Clearing a Path for Entrepreneurs Teaching and Mentorship That ‘Students Treasure and Universities Celebrate’ ‘You Get a Toe in the Water’ Alumni News: Books Published by Alumni in 2022 Development News Alumni in Memoriamhttps://chicagounbound.uchicago.edu/lawschoolrecord/1153/thumbnail.jp
“Law, Economics, and International Development”
No full textEconomic growth is perhaps the most successful way to eradicate poverty, improve people’s health, and promote human rights. Finding ways to promote economic development in developing countries is thus one of the world’s most pressing problems. What, if anything, can law and economics teach us about how to approach it? This lecture explained the insights that many of the core tenants of law and economics—like its focus on efficiency, faith in markets, and emphasis on private over public law—offer for thinking about international development
Managing and Monitoring the Menopausal Body
Get PDFThis Essay explores how menopausal bodies are managed and monitored in contemporary U.S. culture. The focus is on two distinct aspects of that management and monitoring: menopausal hormone therapy (MHT) and the burgeoning market for technology-driven menopause products and services. While each of these allegedly improves the menopause experience, a closer investigation reveals a more complex interaction of profit motives and traditional notions of gender identity. The Essay identifies problems with current medical and business practices and suggests a role for law in destigmatizing menopause, ensuring availability and safety of MHT, and enhancing privacy for users of menopause-oriented apps and digital services
Careful consideration of menopause brings this Essay into ongoing conversations about theorizing beyond the gender binary and stereotypical notions of femininity. Purveyors of both MHT and menopause-related digital products and services appeal to mostly cisgender women by emphasizing ideas of youthfulness, attractiveness, and sexual desirability. We locate these profit seekers within “menopause capitalism,” the marketing and selling of menopause-related products through messages that celebrate autonomy, community, or femininity from entities that are, at their core, commercial enterprises
Residents Against Housing
Get PDFIncumbent residents routinely oppose residential development.1 Interestingly, this is true of both homeowners and renters, if for opposite reasons. Homeowners typically worry that new housing will cause the market value of their own homes to fall, resulting in a hit to what is usually a house-heavy personal wealth portfolio.2 Tenants typically worry that new housing will cause the market value of their own homes to rise, generating pressure toward higher rents and displacement.3 Both homeowners and tenants also express concern that new housing development will change the character of their neighborhoods in unwanted ways.4
Resident opposition to housing plays out in community after community across the country, with pernicious effects on productivity and equity.5 These efforts choke off the supply of homes—essential ingredients in every human being’s life plan—in the very places where people most wish to live. The consensus view among housing scholars is that all of this opposition to residential development is wrongheaded. While homeowner opposition is often cast as normatively illegitimate NIMBYism, tenant opposition is criticized for just plain getting the facts wrong. Citing the law of supply and demand, academics point out that adding more housing will tend to decrease, not increase, the price of housing, which should help rather than harm the pocketbooks of tenants.6
Professor John Infranca’s thoughtful and well-reasoned piece accepts this premise, but asks whether we should nonetheless view antidevelopment opposition by incumbent residents of some communities differently, not just as a matter of political expediency, but as a normative matter.7 Specifically, should people residing in lower-income communities that have been historically disadvantaged by redlining and other forms of racism and disinvestment have a greater say in what happens next, development-wise? For Infranca, such differential treatment “should be designed primarily to address unwanted changes to neighborhood character and the claims of long-term residents to a distinct stake in the neighborhood,” while “[o]ther local concerns, most notably concerns regarding displacement and rent increases, do not justify special treatment in the form of greater local control.”8
Infranca’s “modest case for distinct treatment”9 thus rests on two hard-to-dispute claims: (1) that housing supply is the solution to, and not the cause of, housing unaffordability; and (2) that people living in lower-income communities long ravaged by racism and economic exclusion have a stronger normative basis for resisting neighborhood change than do affluent NIMBYs.10 Yet taking the first proposition seriously means that the people who are in the strongest normative position in opposing housing also tend to be on the shakiest ground empirically.11 Infranca addresses this tension by shifting attention away from incumbents’ arguments about rent levels and displacement risks—the subjects of quantitative empirical work—and toward incumbents’ efforts to protect interests like community character.12 This move cannot fully escape the empirical shakiness at the heart of opposition in lower-income communities, however, as many of the qualitative changes that incumbents oppose may not be substantially caused by (and indeed, should be mitigated by) the addition of new housing.13
In this response, I suggest repurposing this causal weakness in the case against housing into a fulcrum for policy. The fact that adding housing supply reduces rather than increases home prices makes it workable— and incentive-compatible—to pair new housing development with protection against rising local housing costs.14 Notably, this approach distinguishes between two sets of fears voiced by housing opponents: those that relate to increasing home values (more commonly expressed in prototypical gentrification scenarios) and those that relate to decreasing home values (more commonly raised in traditional exclusionary zoning scenarios). Concerns about housing price increases stand on different empirical and normative footing than those relating to home value declines, which makes them both especially important and unusually feasible to address.15 Protecting incumbents against rising housing costs in neighborhoods experiencing growth in housing supply aligns both with current empirical understandings and with the normative distinctions that Infranca draws.
This essay proceeds in two steps. Part I reviews reasons for opposition to housing development and discusses how incumbents’ arguments interact with the empirics of housing supply. Part II makes a case for addressing incumbent concerns about housing price increases while expanding housing supply. Such a policy response would not be premised (counterfactually) on new supply causing price increases, but rather on the potential for exogenous changes in demand to drive up prices. Residents would be insured against catastrophic losses caused by these external forces if (and only if) their neighborhoods undertook loss mitigation by adding significant new housing supply.1
Against Anti-Tax Exceptionalism
Get PDFThis paper examines the arguments found in what has become known as the anti-tax exceptionalism literature. That literature seeks to apply the rules of administrative law to tax procedures. The core claim is that the procedures used by the Internal Revenue Service and the Treasury routinely violate the requirements of administrative law. Secondarily, that literature argues that this is normatively bad: the Treasury and Internal Revenue Service should not be treated differently from other administrative agencies because the tax system is not exceptional. Promoting the goals of administrative law, that literature argues, requires that the tax system conform to standard procedures.
This paper addresses both claims. First, it shows that the procedures used by tax administrators substantially comply with administrative law requirements. The central doctrinal claim of the anti-tax exceptionalism literature is incorrect. Second, the paper considers normative concerns of the anti-tax exceptionalism literature, focusing on three: (i) uniformity versus exceptionalism, (ii) information flows, and (iii) accountability. Regarding uniformity, even assuming that current tax procedures do not comply with administrative law requirements, uniformity would not be a desirable goal. Administrative law is, and should remain, flexible, adapting to the needs of widely varying agencies. Moreover, the goal of reforms to tax procedures should be to improve the operation of the system, not conform it to procedures used by agencies that operate in different contexts. The framing of uniformity versus exceptionalism misstates the issue. Regarding information flows and accountability, the remedies suggested by the anti-tax exceptionalism literature, notably greater use of notice and comment procedures and more supervision of tax administration by courts, are not good ways of meeting those goals. The paper offers alternative, better methods of improving information flows and accountability. The paper concludes that we should reject the claims of the anti-tax exceptionalism literature on both positive and normative grounds
Regulatory Trading
Get PDFRegulatory trading systems, such as the SO2 cap-and-trade system, are ubiquitous in environmental and natural resources law. In addition to cap-and-trade systems for pollutants such as SO2, NOx, and CO2, environmental and natural resources law uses trading in areas such as endangered species, water quality, wetlands, vehicle mileage, and forestry and farming practices. Trading, however, is rarely used as a regulatory approach in other areas of law. This Article seeks to identify the reasons for this dichotomy. To understand the dichotomy, the Article examines the uses of trading in environmental and natural resources law, where it has been successful, and where problems have arisen, including hot spots problems, environmental justice problems, measurement problems, and moral problems with the use of markets. It then considers the possibility of trading in six nonenvironmental areas of law to see whether trading can be helpful, and if not, why not. The analysis suggests a number of reasons for the dichotomy, including that (1) environmental problems tend to have larger costs and benefits, making it more worthwhile to incur the costs of a trading regime in environmental contexts than elsewhere; (2) trading may not work well because of hot spots, measurement, or other problems; and (3) trading may be inconsistent with the underlying premises of a regulatory system. Finally, in some cases, there is no good reason for the dichotomy other than institutional inertia, and trading should be considered as a supplement or replacement for existing regulatory approaches in those cases
Regulating Product Return Policies: The Trade-off between Efficiency and Distribution
No full textThe proliferation of product returns entails substantial financial and environmental costs. Nonetheless, regulators typically restrict firms from charging consumers high fees for returning products, which facilitates returns. To analyze the consequences of such interventions, we consider a market in which consumers have private information about their expected consumption utility. We show that monopolistic sellers have an incentive to inefficiently trigger too many returns even without regulation, as low return fees enable them to screen consumers and reap their surplus. Regulators then face a trade-off: upper bounds on return fees exacerbate inefficiency by causing sellers to trigger even more returns but also lead to a redistribution of wealth from monopolistic sellers to consumers. This trade-off also arises when consumers have an endowment effect. However, if sellers can induce overoptimistic beliefs about the utility from consumption (for example, through advertisements), upper bounds on return fees may also lead to higher social welfare
Democracy, Social Media, and Freedom of Expression: Hate, Lies, and the Search for the Possible Truth
Get PDFThis Essay is a critical reflection on the impact of the digital revolution and the internet on three topics that shape the contemporary world: democracy, social media, and freedom of expression. Part I establishes historical and conceptual assumptions about constitutional democracy and discusses the role of digital platforms in the current moment of democratic recession. Part II discusses how, while social media platforms have revolutionized interpersonal and social communication and democratized access to knowledge and information, they also have led to an exponential spread of mis- and disinformation, hate speech, and conspiracy theories. Part III proposes a framework that balances regulation of digital platforms with the countervailing fundamental right to freedom of expression, a right that is essential for human dignity, the search for the possible truth, and democracy. Part IV highlights the role of society and the importance of media education in the creation of a free, but positive and constructive, environment on the internet
Does ESG Crowd Out Support For Government Regulation?
Get PDFDo voluntary corporate prosocial efforts reduce or amplify support for government regulation? We build a theory of opposing mechanisms. Voluntary efforts could make it seem like the problem is being fixed (“Coca-Cola is already tackling plastic waste!”) and thus that regulation is unnecessary. Or they could make the problem seem more important (“even Walmart is addressing this”) or regulation more feasible (“regulation will not impose excessive costs on industry”). Because these factors move in opposing directions, we posit that any crowding-in or crowding-out effects will be small and context-dependent. To test our theory, we ran two preregistered, randomized controlled studies with over 2800 participants, drawing from the real-world materials firms used to advertise their voluntary efforts. We find no economically significant effects from the voluntary efforts on popular support for government regulation, and we find evidence consistent with our theory that competing mechanisms are at play
Bargaining over Beauty: The Economics of Contracts in Renaissance Art Markets
Get PDFWe study contracting practices in the market for paintings in Renaissance Italy. Building on insights from the economic analysis of contracts and qualitative analysis of primary sources, we first show that transaction costs threatened the relationship between buyer—the patron—and seller—the painter. We empirically investigate the channels through which transaction costs influenced contracting practices using a novel data set measuring the content and structure of 90 commission documents from the later 13th to the early 16th century. We find strong evidence that patrons used formal contracts to mitigate painters’ opportunism but little evidence that artists’ age-related reputation for honest dealing had a systematic effect on contracting practices