An Analysis of Fee-Shifting Based on the Margin of Victory: On FrivolousSuits, Meritorious Suits and the Role of Rule 11

We show that, when plaintiffs cannot predict the outcome of litigation with certainty, neither the American rule of litigation cost allocation (under which each litigant bears its own expenses) nor the British rule (under which the losing litigant pays the attorneys' fees of the winning litigant) would induce plaintiffs to make optimal decisions to bring suit. In particular, plaintiffs may bring frivolous suits when litigation costs are sufficiently small relative to the amount at stake, and plaintiffs may not bring some meritorious suits when litigation costs are sufficiently large relative to the amount at stake. We analyze the effect of more general fee-shifting rules that are based not only upon the identity of the winning party but also on how strong the court perceives the case to be at the end of the trial -- that is, the 'margin of victory.' In particular, we explore how and when one can design such a rule to induce plaintiffs to sue if and only if they believe their cases are sufficiently strong. Our analysis suggests some considerations to guide the interpretation of Federal Rule of Civil Procedure 11.

Risk Regulation, Endogenous Public Concerns, and the Hormones Dispute: Nothing to Fear But Fear Itself?

The dispute between the United States and the European Union (EU) regarding the EU ban on meat imports treated with hormones raises the question: How should regulators respond to public fears that are disproportionate to the risks as evaluated by experts in risk assessment? If regulators cannot eliminate public fears through education, then there is some social benefit from regulations that reduce the feared risks and thereby reduce public anxiety and distortions in behavior flowing from that anxiety. These considerations imply that we cannot simply ignore public fears that technocrats would deem irrational. On the other hand, there is the danger that special interests may seek to generate consumer anxiety and lobby for regulations that serve their interests. I explore an approach that takes public fears seriously as social costs but also treats them as endogenous variables. I use this framework to evaluate risk regulations in terms of economic efficiency and suggest that the danger of inefficient regulation is most acute when domestic industries promote or sustain fears regarding imported products. From this perspective, the World Trade Organization ruling against the EU in the hormones dispute, based on the risk assessment requirements in the Agreement on Sanitary and Phytosanitary Measures, may represent a reasonable approach to guarding against the danger of regulatory protectionism, understood broadly to describe inefficient regulations that the importing country would not have adopted but for the foreign nationality of the producers disadvantaged by those regulations

Walls or Welcome Mats? Immigration and the Labor Market

While the public debate on immigration reform has been divisive, the tools of economics provide clear lessons for a way forward. The single most important lesson that economics holds for immigration policymakers is that immigration restrictions are costly, because they interfere with the free movement of labor. Most economists believe that the gains to global GDP from greater labor mobility are very large. Beyond the estimated gains to the world economy, the consensus among economists is that, as a whole, U.S. natives gain from immigration in the labor market. While immigration may have an adverse effect on some native wages and employment—particularly for the least skilled workers—the empirical evidence indicates these effects, if existent, are small.https://repository.upenn.edu/pennwhartonppi/1037/thumbnail.jp

Immigration Restriction as Redistributive Taxation: Working Women and the Costs of Protectionism in the Labor Market

In this paper, I argue that tax and transfer policies are more efficient than immigration restrictions as instruments for raising the after-tax incomes of the least skilled native workers. Policies to protect these native workers from immigrant competition in the labor market do no better at promoting distributive justice and are likely to impose a greater economic burden on natives in the country of immigration than the tax alternative. These immigration restrictions are especially costly given the disproportionate burden that they place on households with working women, which discourages female participation in the labor force. This burden runs contrary to the teachings of optimal tax theory and introduces excessive distortions in the labor market because the supply of female labor is more elastic than the supply of male labor. Thus, the best response to concerns about the effect of immigration on the distribution of income among natives is to increase the progressivity of the tax system

Cultural Communities in a Global Labor Market: Immigration Restrictions as Residential Segregation

Economists recognize that nations can gain from trade through not only the free movement of goods across national boundaries but also the free movement of services, capital, and labor across national boundaries. Despite the presumption that economic theory raises in favor of international labor mobility, the nations of the world maintain restrictions on immigration and show little inclination to liberalize these barriers significantly. Michael Walzer defends immigration restrictions as policies necessary to maintain distinct cultural communities and rejects the alternative of voluntary residential segregation at the local level. I argue that we should instead prefer voluntary segregation at the local level over segregation mandated by the government at the national level. Segregation at the local level allows individuals to enjoy the benefits of living in a community matching their preferences while still enjoying access to labor markets in other communities nearby. The type of segregation that Walzer defends, enforced at the national level through immigration restrictions, cuts workers off from valuable employment opportunities. First, I present a critique of Walzer’s claims from an economic perspective. I take the maximization of global economic welfare to be the appropriate objective, then explore whether the value of distinctive cultural communities can justify immigration restrictions. Second, I present a moral critique from a liberal perspective. I argue that even if immigration restrictions satisfy the preferences of incumbent residents for more extensive segregation than voluntary segregation can provide, this effect cannot justify immigration restrictions in a society committed to liberal ideals

Walls or Welcome Mats? Immigration and the Public Treasury

Advocates of restrictive immigration policies often claim that immigrants impose a net burden on the public treasury. The most comprehensive and authoritative study of the fiscal effects of immigration in the U.S. finds, however, that there is a net positive effect. If policymakers are concerned that less skilled immigrants may pose some risk of a fiscal burden, then restricting immigrant access to means-tested public benefits would be a better response than denying them admission. A path to citizenship for these immigrants need not entail a fiscal burden as long as their access to these public benefits and citizenship is sufficiently delayed.https://repository.upenn.edu/pennwhartonppi/1038/thumbnail.jp