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Volume 64, Issue 4


The Tragedy of the Carrots

Economics and Politics in the Choice of Price Instruments
by  Brian Galle

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…


“They Saw a Protest”

Cognitive Illiberalism and the Speech-Conduct Distinction
by  Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans & Jeffrey J. Rachlinski

"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…


Constitutional Design in the Ancient World

by  Adriaan Lanni & Adrian Vermeule

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,…


The Copyright-Innovation Tradeoff

Property Rules, Liability Rules, and Intentional Infliction of Harm
by  Dotan Oliar

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…


Testing Three Commonsense Intuitions About Judicial Conduct Commissions

by  Jonathan Abel

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:…


Derivatives Clearinghouses and Systemic Risk

A Bankruptcy and Dodd-Frank Analysis
by  Julia Lees Allen

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,…