Copyright (c) 2009 USC Gould School of Law All rights reserved. http://works.bepress.com/usclaw Recent documents in Selected Works @ USC Gould School of Law en-us Tue, 24 Nov 2009 06:33:00 PST 3600 http://works.bepress.com/thomaslyon/68 http://works.bepress.com/thomaslyon/68 Thu, 12 Nov 2009 15:32:34 PST Thomas D. Lyon C. Publications in Books http://works.bepress.com/thomaslyon/67 http://works.bepress.com/thomaslyon/67 Tue, 10 Nov 2009 21:52:51 PST Thomas D. Lyon F. Short Pieces http://works.bepress.com/edward_mccaffery/21 http://works.bepress.com/edward_mccaffery/21 Tue, 04 Aug 2009 15:35:00 PDT This brief article summarizes an argument that the estate tax reform or repeal debate has always been about money: not the government's money from the tax, which is modest at best, but the politicians money from campaign contributions elicited to retain or repeal the tax. The article uses that theory to predict likely short term legislative developments. Edward J. McCaffery Taxation Politics Public Law and Legal Theory http://works.bepress.com/ghadfield/34 http://works.bepress.com/ghadfield/34 Fri, 15 May 2009 22:36:22 PDT In this essay, I revisit the public/private divide in order to explore more fully the potential for private production of law in global exchange and also to clarify what I think are differences in the way common law and civil legal scholars think about the public and the private in law. Gillian K. Hadfield Legal Design for Market Democracies Comparative Law and Economics http://works.bepress.com/ghadfield/33 http://works.bepress.com/ghadfield/33 Fri, 15 May 2009 22:22:42 PDT In this comment I respond to three comments by comparative legal scholars on my paper "Levers of Legal Design: Institutional Determinants of the Quality of Law." In this comment I respond to concerns about the potential for the reductionist methodology employed by economist to illuminate issues in comparative law, particularly in light of commitments in comparative legal scholarship to deep understanding of culture and respect for different legal systems. Gillian K. Hadfield Legal Design for Market Democracies Comparative Law and Economics http://works.bepress.com/ghadfield/32 http://works.bepress.com/ghadfield/32 Fri, 15 May 2009 21:56:55 PDT Much of the existing literature investigating the relationship between legal regimes and economic growth focuses on the agency problem of aligning judicial incentives with social welfare. In this paper I look instead at the factors that influence the quality of law when judges have incentives to promote social welfare but they have limited knowledge about the environment in which law is to be applied. The key insight is that the capacity for a legal regime to generate value-enhancing legal adaptation to local and changing conditions depends on its capacity to generate and implement adequate expertise about the environment in which law is applied. The central mechanism of adaptation is the interaction among three factors: 1) judicial incentives for rule-following and rule-adaptation, 2) litigant incentives for investing in costly evidence and innovative legal argument and 3) the accumulation of shared legal human capital- defined as the sum of litigant investments in evidence and argument- which determines the systemic likelihood of judicial error. Gillian K. Hadfield Legal Design for Market Democracies Comparative Law and Economics http://works.bepress.com/ghadfield/31 http://works.bepress.com/ghadfield/31 Fri, 15 May 2009 21:50:28 PDT In this paper I review the small amount of available data on the extent to which ordinary individuals in the U.S. have access to legal resources to navigate the law-thick world that Robert Kagan has famously called 'adversarial legalism--the American way of law.' I present this data in comparative context, relating what (little) we know about the availability of law in the U.S. to what (little) we know about the availability of law in other advanced societies and in countries transitioning to legally-mediated market democracy. I review first a set of 'legal needs' surveys that ask households about their experiences with difficult problems that are potentially subject to legal intervention or governance and their use of resources, including lawyers, to resolve those problems. The comparative analysis demonstrates that while the incidence of reported problems is relatively stable across countries (with the exception of Japan, which reports lower rates),and contact with lawyers is comparable, there are significant differences in the extent to which people in other countries are able to access other non-lawyer resources for help with a legal problem. Most strikingly, Americans appear significantly more likely to 'lump' their problems and do nothing as compared to people in other countries with arguably more robust delivery systems to provide individuals with access to legal resolutions. I then turn to macro indicators to shed light on the extent to which a country devotes resources to delivering the legal system in practice. Here I compare data on expenditure on courts and legal aid and numbers of judges, lawyers and cases in a set of European countries to the available US data. Here too we see that other countries, including those with still emerging legal systems, appear to expend considerably more resources than the US does on a per case. Together these 'tidbits' of data, which call for more careful empirical work, are suggestive of the conclusion that while the US system ostensibly relies heavily on law to mediate relationships among people and institutions, in practice there are few resources devoted to making law effective in practice, and apparently less so than in countries that are arguably less law-driven than our own. Gillian K. Hadfield Legal Design for Market Democracies Comparative Law and Economics Empirical Studies of Legal System http://works.bepress.com/edward_mccaffery/20 http://works.bepress.com/edward_mccaffery/20 Thu, 30 Apr 2009 16:13:39 PDT We argue that a spending tax, as opposed to an income or wage tax, is the "last best hope" for a return to significantly more progressive marginal tax rates than obtain today. The simple explanation for this central claim looks to incentive effects, especially for "rich people," as both economists and commentators are inclined to focus. High marginal tax rates under an income tax fall on and hence deter the socially productive activities of work and savings. High marginal rates under a wage tax fall on and hence deter the socially productive activity of work alone. But high marginal rates under a spending tax fall on and hence deter high-end spending, which is arguably a social "bad," and do not necessarily deter the social goods of work and savings. This is a possible empirical result. In this Article, we present the analytic arguments for it and sketch out a research agenda that might verify it. The idea is that because one can escape or defer paying taxes under a progressive spending tax by saving, an activity with positive social externalities, the efficiency costs of high marginal rates under a spending tax can be mitigated. Unless people work only in order to be able to spend on themselves, and even then only if they fully internalize in their present labor supply decisions the ultimate tax they will pay - and we argue that each of these assumptions is unlikely to hold in the extreme - a spending tax can bear more steeply progressive rates with less cost in efficiency or social wealth than can an income or wage tax. A progressive spending tax also holds out the possibility of sorting the rich or high ability into two groups, elastic savers and inelastic spenders, which could yield welfare gains unavailable under income or wage taxes, which under current technologies can only sort the high ability into workers and non-workers. Progressive spending taxes also fall on consumption financed by windfall gains, as to which unexpected good fortune ex ante incentive effects are likely to be weak.Most of the Article sets out analytic possibilities. In the final Section, we add a sketch of a welfarist and a fairness-based argument for progressive spending taxes, and conclude with a call for a major new research agenda. Edward J. McCaffery Economics Law and Economics Taxation http://works.bepress.com/edward_mccaffery/19 http://works.bepress.com/edward_mccaffery/19 Thu, 30 Apr 2009 16:13:38 PDT These are powerpoint slides from a presentation at a joint UCLA-Tax Policy Center Conference on Tax Policy in the Obama Era. The basic insight is that it will be difficult to raise significant revenue through the current tax system. Behavioral perspectives suggest that a series of small (or large) cuts, aiming towards a flattened rate structure - as we have seen in the Ronald Reagan and George W. Bush Administrations - are likely to be extremely popular. Undoing them with tax increases will be disproportionately psychically hard. Given that President Obama faces the perceived need for short term stimulus, likely meaning more small tax cuts, meeting his ultimate goals of reducing deficits and restoring more progression to the tax system will be difficult, if not impossible. Ultimately, the insights of behavioral economics may be most important in reconsidering the institutional mechanisms that produce tax and spending policy. Edward J. McCaffery Economics Law and Economics Public Law and Legal Theory Taxation http://works.bepress.com/mary_dudziak/34 http://works.bepress.com/mary_dudziak/34 Tue, 07 Apr 2009 17:09:46 PDT Assumptions about time are an aspect of the basic architecture of our thinking about law and war. Time is thought to be linear and episodic, moving from one kind of time (peacetime) to another kind of time (wartime) in sequence. Law is affected by what time it is, with a pendulum swinging from greater government power and lesser rights during wartime, to the opposite in peacetime. Drawing upon works on the history of time, this paper argues that our conception of "wartime" is culturally constructed and historically contingent. This understanding of war and time is also in tension with the practice of war in 20th century U.S. history.The paper turns to World War II, which is thought of as a traditional war, with clear temporal limits. But this war is harder to place in time than is generally assumed, as the different legal endings to the war span over a period of seven years. The fuzziness in the war's timing affects scholarship on rights and war, as scholars who believe themselves to be writing about the same wartime are not always studying the same years.The difficulty in confining World War II in time is an illustration of a broader feature of the twentieth century: wartimes bleed into each other, and it is hard to find peace on the twentieth century American timeline. Meanwhile, as all twentieth century wars occurred outside U.S. borders, a feature of American military strategy has sometimes been to increase the engagement of the American people in a war, and at other times to insulate them. Isolation from war enabled the nation to participate in war without most citizens perceiving themselves to be in a wartime. The essay closes with a discussion of the way anxiety about temporality surfaces in contemporary cases relating to Guantánamo detainees.The paper is part of a larger project that places war at the center of 20th century U.S. law and politics, rather than viewing war as something that had an episodic impact. Mary L. Dudziak Legal History Constitutional Law Human Rights Law Law and Society Politics Public Law and Legal Theory