Least Cost Avoidance: The Tragedy of Common Safety

This paper shows that the least cost avoider approach in tort is not necessarily the optimal way to attain least cost avoidance when accidents can be avoided by either of two parties. When parties do not observe each other\u27s costs of care at the time of the accident and are unable to determine which party is the least cost avoider, they fail to anticipate the outcome of the adjudication. Under these circumstances, accident avoidance becomes a commons problem because care by each individual party reduces the prospect of liability for both parties. As a result parties suboptimally invest in care. We show that regulation removes this problem and is superior to tort liability both when parties act simultaneously and when they act sequentially. We further examine how different liability rules perform in this respect

Legislatures, Judges, and Parole Boards: The Allocations of Discretion under Determinate Sentencing

The most significant development in criminal sentencing in recent decades has been the shift from indeterminate to determinate sentencing. Yet no study has systematically explored the factors leading to this shift. In this Article, we provide the first analysis to explain why state legislatures enact reforms that significantly reduce both judges\u27 and parole boards\u27 discretion over criminal sentencing. First, we develop a political economy model that explains why legislatures acting in their own self-interest may be motivated to enact these laws. Our model predicts that legislatures are more likely to enact determinate sentencing reforms when there is tension among the political ideologies of legislatures, judges, and parole boards. Then, we empirically test the predictions of our political economy model using data from all fifty states over the period from 1960 to 2000. Our analyses confirm that political variables, such as divided government, are the primary influences on legislatures\u27 decisions to enact determinate sentencing reforms. These results are consistent with our model\u27s hypothesis: long histories of divided government produce clashes among the sentencing goals of legislatures, parole boards, and judges, and legislatures respond by enacting reforms that take power away from the judges and parole boards. Our conclusions are especially important given recent court cases and criticisms that challenge the future of determinate sentencing reforms

Judicial Independence and Party Politics in the Kelsenian Constitutional Courts: The Case of Portugal

In this paper we test to what extent the Kelsenian-type of constitutional judges are independent from political parties by studying of the Portuguese Constitutional Court. The results yield three main conclusions. First, constitutional judges in Portugal are quite sensitive to their political affiliations and their political party\u27s presence in government when voting. Second, peer pressure is very relevant. Third, the 1997 reform that was enacted to increase judicial independence has had no robust statistically significant effect