Economic Challenges for the Law of Contract

This Essay introduces general equilibrium theory (GET) and mechanism design theory (MD) in a general sense (rather than in piece meal applications) to the study of contract law. As a positive matter, this introduction reveals three understudied areas: (i) when the equilibrium contract is individually rational but collectively irrational; (ii) the role of courts in market completion projects; and (iii) the implementation of renegotiation- proof mechanisms. As a normative matter, incorporating GET and MD insights into the study of contract law supports broad freedom of contract and formalist interpretative practices. Lastly, this Essay points to several areas for future research, highlighting the central role of law and economics analysis in identifying feasible mechanism design programs for contract law

Toward a Touchstone Theory of Anti-Racism: Sex Discrimination Law Meets #LivingWhileBlack

White supremacy and anti-Black racism continue their pervasive and destructive paths in contemporary American society. From the murder of George Floyd to the daily exclusions of Black bodies from white spaces, the nation’s failure to right the wrongs of chattel slavery and racism continues to be highlighted in stark relief. This article centers the racism made manifest through #LivingWhileBlack aggressions and examines it through the lens of two sex discrimination law doctrines: sex stereotyping and protections against sex discrimination in public accommodation laws. It asks what work can sex discrimination law do for the project of dismantling anti-Black racism and white supremacy, specifically in public and recreational spaces? The article contends that these two threads of sex discrimination law are generative of a new lens through which to analyze and address #LivingWhileBlack aggressions. It does so by introducing the concept of a “White Privilege Stereotype,” a form of racial stereotyping through which white people seek to retaliate against Black people when Black people engage in activities coded as “white,” often in places that are also coded as “white.” Black people challenge the privileges of whiteness by seeking to enjoy those privileges in the same way they are enjoyed by white people, which causes white observers to lash out and retaliate. Conceptualizing #LivingWhileBlack aggressions in this way creates a link to sex stereotyping and thus to the body of sex discrimination law that both recognizes and prohibits sex stereotyping. The article makes this conceptual link by drawing an analogy between how gender and racial hierarchies have been preserved, in part, through stereotyping and the policing and punishing of the oppressed group’s nonconformity with such stereotypes. It proposes a “touchstone” theory of inquiry for understanding #LivingWhileBlack aggressions. This theory envisions multiple “touchstones”—legal, political, and cultural—that may inform our analysis of white supremacy. It asserts that lessons from sex discrimination law are one such analytical touchstone, while recognizing that a number of touchstones are necessary to fully unpack and address #LivingWhileBlack aggressions. Analyzing #LivingWhileBlack aggressions through the lens of sex discrimination law may yield two positive results. First, looking at the problem with a new perspective may lead to different, additional, or more comprehensive strategies for disrupting and dismantling white supremacy. Second, utilizing a sex discrimination frame to consider #LivingWhileBlack aggressions holds the potential to make legible to white women, in particular, the connection between their own oppression and the oppression of Black people, and thus create the opportunity for coalition building

Abortion in the Time of COVID-19: Telemedicine Restrictions and the Undue Burden Test

During the COVID-19 pandemic, even while many traditional restrictions on telemedicine have been relaxed, few states have suspended existing regulatory restrictions on the remote provision of medication abortions (teleabortions). Simultaneously, an overlapping subset of states have cited the public health emergency as a reason to curtail access to surgical abortion. This Comment suggests that under the Fourteenth Amendment and Supreme Court precedent, these two actions, taken together, have the effect of posing an undue burden to abortion access, especially for women from disadvantaged backgrounds. It first describes the politicized regulatory landscape surrounding teleabortions and argues that expanded teleabortion is a safe alternative when states restrict access to surgical abortions due to a public health emergency. In light of the unique burdens of the pandemic, a failure to provide access to either constitutes an undue burden. Last, the results of select states’ experimentation with teleabortion during the pandemic could provide additional data points in favor of integrating teleabortion into reproductive healthcare, even after the COVID-19 pandemic lapses

Legal Analysis, Policy Analysis, and the Price of Deference: An Empirical Study of Mayo and Chevron

A huge literature contemplates the theoretical relationship between judicial deference and agency rulemaking. But relatively little empirical work has studied the actual effect of deference on how agencies draft regulations. As a result, some of the most important questions surrounding deference—whether it encourages agencies to focus on policy analysis instead of legal analysis, its relationship to procedures like notice and comment—have so far been dominated by conjecture and anecdote. Because Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. applied simultaneously across agencies, it has been difficult to separate its specific causal effect from other contemporaneous events in the 1980s, like the rise of cost-benefit analysis and the new textualism. This Article contends with this problem by exploiting a unique event in administrative law: the Supreme Court’s 2011 decision in Mayo Foundation v. United States, which required that courts apply Chevron deference to interpretative tax regulations. By altering the deference regime applicable to one specific category of regulation, Mayo created a natural experiment with a treatment group (interpretative tax regulations) and a control group (all other regulations)

The Non-Consequentialist Uses of Economic Analysis: A Comment on Dagan and Kreitner, Economic Analysis in Law

Dagan and Kreitner have offered a rich and elegantly written discussion of the normative uses of economic analysis of law. For Dagan and Kreitner, a scholar uses economic analysis normatively either when she evaluates a legal rule or institution or when she makes policy recommendations. These two normative uses of economic analysis are closely related but distinct. Evaluation often starts from some ideal theory while policy design is clearly non-ideal. Moreover, in policy design, questions of institutional competence and capacity play a central role that they do not have in straightforward evaluation. I do not, however, pursue these distinctions here.Evaluative approaches divide into two classes: consequentialist and non-consequentialist. Dagan and Kreitner discuss the role of economic analysis in both classes. The role of economic analysis in consequentialist evaluation and design flows naturally from economic methodology. Any consequentialist evaluation or policy design requires a theory of how individuals, both private citizens and public officials, behave in response to legal rules. Economic analysis of law offers the most clearly elaborated and developed theory of such behavior. In addition, the structure of the theory provides a natural way to make welfarist evaluations as the theory explains behavior in terms of the preferences of the agents

Debunking the Myths: International Commercial Arbitration and Section 1782(a)

International commercial arbitration continues to be the preferred dispute resolution mechanism for cross-border commercial disputes. Its popularity resides not only in the allure of efficient and flexible proceedings, but in the prospect of having highly qualified and reputable experts decide cases without the danger of national biases. Despite it being a private method of dispute resolution, international arbitration ultimately relies on an intergovernmental legal framework that allows enforcement of arbitral awards in over 150 countries in the world. Yet, arbitrators are constrained in their search for truth; they lack the coercive power to compel parties and non-parties to produce evidence that may be crucial to the outcome of the proceedings

Remixing Resources

This Essay argues for an approach to resource access that connects rather than separates questions of efficiency and distribution. It proceeds from the premise that putting together the most valuable combinations of resources—including human capital—is of central and increasing normative importance. Structuring law to facilitate these combinations should be a primary task for property scholars working in the law and economics tradition. Doing so requires engaging with the processes through which complementary resources produce value in a modern society, recognizing how property doctrines work to put together and keep together complementary resource sets, and confronting the ways in which material inequality and unremediated injustice stand in the way of realizing valuable complementarities. Because a complementarity-based vision of property holds the potential to promote efficiency and distributive goals simultaneously, it illuminates how an integrative approach might offer policy-relevant traction toward both objectives

The Americans with Disabilities Act and Termination of Parental Rights Cases: An Examination of Appellate Decisions Involving Disabled Mothers

The right to parent has long been regarded as one of our most treasured fundamental rights. Despite the disability rights movement’s many achievements, especially the passage of the Americans with Disabilities Act (“ADA”) in 1990, the right to parenthood remains inaccessible to many people with disabilities. Scholars and advocates have posited that the ADA has not adequately protected the rights of parents with disabilities involved with the child welfare system, particularly at the termination of parental rights phase. This Article develops this critique as applied to an original empirical study of 2,064 appellate termination of parental rights decisions adjudicated between 2006 and 2016 that involved mothers with disabilities. This is the first study to conduct quantitative analyses to identify factors that predict whether the ADA is raised or applied in these cases. In particular, we aimed to understand if a mother’s disability type predicts whether courts raise or apply the ADA

Color of Covid and Gender of Covid: Essential Workers, Not Disposable People

We live in a viral moment—a moment of interconnected pandemics. The COVID-19 crisis provides a window into the underlying pandemics of inequality, economic insecurity, and injustice. In fact, the viruses of sexism, racism, and economic instability are pre-existing conditions of an unjust legal system—baked into our nation at the Founding in the shadow of chattel slavery, female disenfranchisement, property-based voting rights, and Native American dispossession. COVID-19 has not created these conditions, but instead has amplified the persisting inequalities upon which the nation was built.At the same time, the current viral moment reveals that vulnerability is universal—inherent in being human—making Martha Fineman’s vulnerability analysis particularly timely for theorizing a framework that manages our common vulnerabilities, even against a backdrop of differential vulnerability. Commentators have observed, “coronavirus doesn’t discriminate . . . But America does.” Even as COVID-19 has unmasked deeply embedded structural inequalities, this moment of interlinked pandemics of coronavirus, inequality, and economic precarity affects us all, albeit disparately, and has torn at the very fabric of the social contract we owe one other and, in fact, depend on. Drawing on insights from Derrick Bell’s notion of “interest-convergence” and Ruha Benjamin’s idea of “viral justice,” I propose a new concept, “viral convergence.” Both descriptive and prescriptive, I offer the idea of viral convergence as a way not only to analyze this moment of interlinked crises, but also to utilize it productively. The road ahead calls for new legal paradigms and political coalitions that offer both universal solutions (for our shared vulnerabilities) and more targeted solutions (for disparate impacts). As Arundhati Roy suggests, we must both acknowledge the tragedy while also utilizing this crisis for transformational change by viewing the COVID-19 pandemic as a “portal” to a more just and equal world

The Architecture of Critique

Irony, contradiction, discontinuity, antagonism, ambiguity, paradox, antinomy, aporia, contingency, indeterminacy, ambivalence—in a list that continues. For decades, these have been the bywords of critical thought, whether within legal studies, left historiography, or humanistic inquiry at large. A constellation of such terms has defined what it means to do “theory,” for that philosophical tradition’s structuralist-Marxist, poststructuralist-deconstructive, and other contemporary proponents. On the one hand, those grammars capture the broad intellectual ethos or spirit that has animated critical and revisionist scholarship since theory’s heyday and institutionalization beginning in the 1970s. But on the other, they have also acted as the central apparatus of critique: it has been doctrinal that unmasking properties like contradiction, paradox, discontinuity, and antagonism will work simultaneously to disclose and to critique structures of power and domination. Vested with intensely political labor, that conceptual matrix has not only summed up the essence of a radical, left, or progressive politics but also been understood to distinguish such a political project from a (neo)liberal-legalistic-rationalist one