Legal Commentary

Self-Promotion and Other Thoughts on Healthcare

Posted on March 24, 2010
First, I?ll be speaking in a forum about the individual mandate (and probably other aspects of the newly passed bill) this evening in Pasadena, California (6:30 pm PDT). So if you?re in the area, please come. The forum will also be recorded and aired on KPCC sometime tomorrow...

Peer Production and Transaction Costs

Posted on March 12, 2010
The concept of peer production is hardly new to me. Wikipedia and Linux, the most visible examples of peer production, long ago convinced me that intellectual products can be produced by means of a distributed network of individuals working largely without supervision or central control...

New Paternalism on the Slippery Slopes, Part 9: Framing in Public Policy

Posted on February 27, 2010
And after another long interruption, I?m finally going to finish my series of excerpts from Mario Rizzo?s and my article, ?Little Brother Is Watching You: New Paternalism on the Slippery Slopes.? There are three more posts, including this one.As discussed in an earlier post, the new paternalists use the notion of framing -- that is, the idea that people?s choices respond to seemingly irrelevant differences in how the choice situation is presented -- to justify a variety of policy interventions...

New Paternalism on the Slippery Slopes, Part 10: Rejoinder to Objections

Posted on February 27, 2010
Some new paternalists have recognized the slippery-slope objections to their approach, and they have made some effort to respond. But we find the responses insufficient (p. 735-737):In their book Nudge, Sunstein and Thaler recognize the slippery-slope objections to their policies, and offer three responses...

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New Paternalism on the Slippery Slopes, Part 11: Avoiding Paternalist Slopes

Posted on February 27, 2010
This will be the final installment in my series of excerpts from Mario?s and my article on the slippery-slope potential of new paternalism. The comments on the posts have been minimal, so I?m uncertain how helpful this series has been. Since I?m considering doing the same with a closely related article Mario and I have just published, please let us know what you think...

Uncompensated Care for the Uninsured

Posted on February 24, 2010
As David Henderson observes, it's nice to see that the Economic Report of the President actually includes facts and sources. Of course, that opens the analysis up to criticism it wouldn't otherwise face.The Report notes four sources of inefficiency in health insurance markets: adverse selection, moral hazard, the Samaritan's dilemma, and incomplete insurance contracts...

Self-Promotion: Pro and Con on the Individual Healthcare Mandate

Posted on February 17, 2010
I was featured in Monday's L.A. Times "pro and con" article on the individual healthcare mandate. Here's a key bit:The point of the individual mandate is to balance the risk pool, but that's not really what insurance is supposed to do. With car insurance, the idea is not that you want good drivers to pay for accidents caused by bad drivers...

New Paternalism on the Slippery Slopes, Part 8: Hyperbolic Discounting in Public Policy

Posted on January 15, 2010
As discussed in a previous post in this series, the new paternalists often use the concept of hyperbolic discounting (roughly, excessive impatience) to show that people make systematic errors that could, in principle, be corrected by government intervention...

My Favorite Motions

Posted on January 06, 2010
Faculty meetings may have their charms, but efficiency does not rank among them. Many a time I have looked around a room full of my colleagues, long minutes into a winding discussion of what was supposed to take only a few moments to resolve, considered the full agenda still stretching before us, and bemoaned the deadweight social costs of law school governance...

Linguo-Economic Blogging

Posted on January 01, 2010
Two recent posts at my brother Neal?s blog ?Literal-Minded? caught my attention because of their connection to economics.First, Neal links an article on whether ?no problem? is an acceptable substitute for ?you?re welcome.? Personally, I have no problem with ?no problem...

New Paternalism on the Slippery Slopes, Part 7: The Inevitable Misinterpretation of New Paternalist Arguments

Posted on January 01, 2010
Happy new year! After a holiday-induced hiatus, I?m now resuming the series of excerpts from Mario Rizzo?s and my recently published article, ?Little Brother Is Watching You: New Paternalism on the Slippery Slopes.?A number of our claims in the paper rely on the new paternalists? arguments (which are largely based in behavioral economics) being misconstrued or misrepresented by other parties such as politicians, bureaucrats, and rent-seekers...

New Paternalism on the Slippery Slopes, Part 6: Rent Seekers

Posted on November 25, 2009
POST NUMBER 6: RENT-SEEKERSAs discussed in the previous post, the ?experts? in charge of implementing new paternalist policies will have a tendency to simplify their own theories to make them useful for crafting policy. That alone creates slippery-slope potential...

New Paternalism on the Slippery Slopes, Part 5: Deference to Authority

Posted on November 21, 2009
Another problem with the new paternalism is that it necessarily involves greater deference to the authority of experts. Here is the basic logic (p. 710):Substantial deference to authority is inherent in the application of new paternalist ideas to public policy...

New Paternalism on the Slippery Slopes, Part 4: Context Dependence

Posted on November 14, 2009
New paternalists have also relied on the notion of context dependence to justify their policies. But as with hyperbolic discounting, they unjustifiably assume the existence of an inconsistency of preferences gives the policymaker license to choose among the inconsistent preferences...

New Paternalism on the Slippery Slopes, Part 3: Hyperbolic Discounting

Posted on November 10, 2009
New paternalists often rely on the phenomenon of ?hyperbolic discounting? to justify their policies. Hyperbolic discounting is difficult to define in a non-mathematical way. It is sometimes summarized as excessive impatience, but that?s an over-simplification...

New Paternalism on the Slippery Slopes, Part 2: How New Paternalism Creates Gradients

Posted on November 07, 2009
A key conclusion of the literature on slippery slopes is that they are especially likely in the presence of gradients -- meaning situations in which there is a relatively smooth continuum from one policy to another, and in which it is difficult to draw sharp distinctions...

New Paternalism on the Slippery Slopes, Part 1

Posted on November 05, 2009
Mario Rizzo and I have just published a new article, "Little Brother Is Watching You: New Paternalism on the Slippery Slopes," in Arizona Law Review. You can find the full text here.Regular readers (if I still have any) will know I've written a great deal about the new paternalism...

Halloween Doppelgangers

Posted on October 31, 2009
If you've walked into a Halloween store recently, you've probably been treated to a soundtrack of what seem to be classic haunting favorites, like "Thriller" and "Ghostbusters" and "Weird Science." But if you listen closely, you will realize the original songs have been spirited away, their places taken by substandard doppelgangers -- lousy covers performed by unknown studio musicians...

How Top-Ranked Law Schools Got That Way, Pt. 3

Posted on August 31, 2009
Part one and part two of this series focused on the top law schools in U.S. News and World Report's 2010 rankings, offering graphs and analysis to explain why those schools did so well. This part rounds out the series by way of contrast. Here, we focus on the law schools that ranked 41-51 in the most recent USN&WR rankings, those that ranked 94-100, and the eight schools that filled out the bottom of the rankings...

How Top-Ranked Law Schools Got That Way, Pt. 2

Posted on August 23, 2009
In the first post in this series, I discussed the mysterious distribution of maximum z-scores in the top two tiers of law schools in U.S. News & World Report's 2010 rankings, and focused on the top-12 schools to solve that mystery. In brief, among the very top schools, employment nine months after graduation" ("Emp9") varies too little to make much of a difference in the schools' overall scores, whereas overhead expenditures/student ("Over$/Stu") varies so greatly as to almost swamp the impact of the other factors that USN&WR uses in its rankings...

How Top-Ranked Law Schools Got That Way, Pt. 1

Posted on August 20, 2009
How do law schools make it to the top of the U.S. News & World Report rankings? USN&WR ranks law schools based on 12 factors, each of which counts for a certain percentage of a school's total score. Peer Reputation counts for 25% of each law school's overall score, for instance, whereas Bar Passage Rate counts for only 2%...

Free Willie?

Posted on August 10, 2009
Thanks to comments on my earlier post, Copyright Duration and the Mickey Mouse Curve, I've been encouraged to reflect on what would happen if, in fact, Steamboat Willie had fallen into the public domain. Could we then reuse Mickey Mouse, the star of that show, without facing any liability to the Walt Disney Company? I drafted this answer for my book, Intellectual Privilege (here edited for blogging):Scholars have made surprisingly strong arguments that Steamboat Willie, a cartoon that the Walt Disney Company cites as establishing its copyright rights in Mickey Mouse, has fallen into the public domain...

Copyright Duration and the Mickey Mouse Curve

Posted on August 06, 2009
Herewith another recent addition to my draft book, Intellectual Privilege: A Libertarian View of Copyright, (inspired, in part, by Berin Szoka's recent claim, "I just don?t know what the right balance [for copyright] is! I?m glad there are others patient enough to try to figure it out...

Reforms Suggested by Modeling the Law School Rankings

Posted on August 04, 2009
As I recently observed, the close fit between law schools' scores in U.S. News & World Report's rankings and the scores of those same schools in my model of the ranking "suggests that law schools did not try game the rankings by telling USN&WR one thing and the ABA ...

What I Learned at the FBI

Posted on August 01, 2009
On Thursday I attended a seminar at the FBI for film and TV writers. There was lots of useful information, but what I found most interesting was the FBI agents' use of language. Specifically, I noticed that they regularly used the word 'forfeit' as a transitive verb meaning 'to acquire by asset forfeiture...

Unconstitutional Copyrights?

Posted on July 29, 2009
As part of a revise-and-resubmit process, I've been spending much of my summer upgrading my draft book, Intellectual Privilege: A Libertarian View of Copyright. That effort has led me to revisit copyright's constitutional foundations. I find them very shaky, indeed...

Z-Scores in Model of 2010 USN&WR Law School Rankings

Posted on July 23, 2009
If you want to know how U.S. News & World Report's law school rankings work, you'll want to know about z-scores. In very brief, z-scores measure how well each school performed relative to its peers, thereby establishing its rank. (See here for a fuller explanation...

Accuracy of the Model of the 2010 USN&WR Law School Rankings

Posted on July 22, 2009
I earlier offered a snapshot comparison of the scores generated by my model of the 2010 U.S. News & World Report law school rankings and the original. After Robert Morse, director of data research for USN&WR, asked me if I could quantify the fit between the two data sets, I realized that others might share his curiosity...

A Model of the 2010 USN&WR Law School Rankings

Posted on July 16, 2009
As in every year since 2005, I this year again built a model of the law school rankings published by the U.S. News & World Report ("USN&WR"). Figuring out the latest rankings?the "2010" rankings, as USN&WR's calls them?proved especially trying this time around...

Eat More, or Starve Yourself

Posted on July 12, 2009
According to a recent L.A. Times Science article, there?s new evidence that a calorie-deprived diet, with 10% to 30% fewer calories than the usual recommended intake, leads to better health and longer life. The evidence comes from a study of rhesus monkeys, though researchers believe (based on accumulating evidence) that the effect is probably common to all primates, including humans...

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