Eric A. Posner's research while affiliated with University of Illinois at Chicago and other places
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Publications (244)
A large academic literature discusses the nondelegation doctrine, which is said to bar Congress from enacting excessively broad or excessively discretionary grants of statutory authority to the executive branch or other agents. The bulk of this literature accepts the existence of the doctrine, and argues only about the terms of its application or t...
Empirical findings that common ownership is associated with anticompetitive outcomes including higher prices raise questions about possible policy responses. This comment evaluates the major proposals, including antitrust enforcement against common owners, regulation of corporate governance, regulation of compensation of management of portfolio fir...
We provide experimental evidence for the existence of “rent stigma,” a preference for owning goods or real estate to renting them. In one experiment, anonymous respondents preferred owning a car or house to renting them, even though the transaction was constructed to be identical in each case in terms of economic payoffs and risk. In a second exper...
How do regulatory agencies decide how strictly to regulate an industry? They sometimes use cost-benefit analysis or claim to, but more often the standards they invoke are so vague as to be meaningless. This raises the question whether the agencies use an implicit standard or instead regulate in an ad hoc fashion. We argue that agencies frequently u...
102 Cornell Law Review 87 (2016)Regulatory agencies are required to perform cost-benefit analysis of major rules. However, in many cases regulators refuse to report a monetized value for the benefits of a rule that they issue. Sometimes, they report no monetized value; at other times, they report a monetized value but also state that not all benefi...
Countries have entered into several hundred bilateral labor agreements (BLAs), which control the conditions under which source countries send migrant workers to host countries. What has not been fully explained or empirically tested is why countries would sign these agreements. We conduct a statistical examination of these agreements using an origi...
The regulatory state has become a cost-benefit state, in the sense that under prevailing executive orders, agencies must catalogue the costs and benefits of regulations before issuing them, and in general, must show that their benefits justify their costs. Agencies have well-established tools for valuing risks to health, safety, and the environment...
The standard form of electoral system in the United States—plurality voting with one person, one vote—suffers from countless defects, many of which stem from its failure to enable people to register the intensity of their preferences for political outcomes when they vote. Quadratic voting, an elegant alternative system proposed by Glen Weyl, provid...
This introduction to the Public Choice special issue on “quadratic voting (QV) and the public good” provides an opinionated narrative summary of the contents and surveys the broader literature related to QV. QV is a voting rule, proposed by one of us Weyl (Quadratic vote buying. http://goo.gl/8YEO73, 2012), Lalley and Weyl (Quadratic voting. https:...
The existing system of private property interferes with allocative efficiency by givingowners the power to hold out for excessive prices. We propose a remedy in the form of atax on property, based on the value self-assessed by its owner at intervals, along with arequirement that the owner sell the property to any third party willing to pay a pricee...
The Coase Theorem states that if transaction costs are zero, the efficient allocation of resources will occur, regardless of the initial distribution of entitlements, so long as the entitlements are well defined. Many scholars have cited the Coase Theorem for various claims—that government regulation is of limited importance, that Pigouvian taxes a...
According to entrenched conventional wisdom, the president enjoys considerable advantages over other litigants in the Supreme Court. Because of the central role of the presidency in the U.S. government, and the expertise and experience of the solicitor general's office, the president usually wins. However, a new analysis of the data reveals that th...
The presidents who routinely are judged the greatest leaders are also the most heavily criticized by legal scholars. The reason is that the greatest presidents succeeded by overcoming the barriers erected by Madison’s system of separation of powers, but the legal mind sees such actions as breaches of constitutional norms that presidents are suppose...
A statistical analysis of voting by Supreme Court justices from 1937 to 2014 provides evidence of a loyalty effect-justices more frequently vote for the government when the president who appointed them is in office than when subsequent presidents lead the government. This effect exists even when subsequent presidents are of the same party as the ju...
Many human rights advocates believe that development agencies—agencies that define their mission as providing economic and
technical aid to impoverished countries—should be required to respect and promote human rights law. This style of human rights
imperialism should be resisted. While development agencies should obviously comply with domestic law...
This comment on Cass Sunstein’s paper, †Fifty Shades of Manipulation", argues that “manipulation†— “controlling or playing upon someone by artful, unfair, or insidious means especially to one’s own advantage†— has always been regarded as wrongful, an indirect form of fraud, by common law courts and government regulators. The manip...
The standard form of electoral system in the United States—plurality voting with one person, one vote—suffers from countless defects, many of which stem from its failure to enable people to register the intensity of their preferences for political outcomes when they vote. Quadratic voting, an elegant alternative system proposed by Glen Weyl, provid...
Recent scholarship has shown that mutual funds and other institutional investors may cause softer competition among product market rivals because of their significant ownership stakes in competing firms in concentrated industries. While recent calls for litigation against them under Section 7 of the Clayton Act are understandable, private or indisc...
Judges on a multimember court might vote in two different ways. In the first, judges behave solipsistically, imagining themselves to be the sole judge on the court, in the style of Ronald Dworkin’s mythical Judge Hercules. On this model, judges base their votes solely on the information contained in the legal sources before them – statutes, regulat...
The financial crisis of 2007-2008 exposed gaps in the law that authorizes federal agencies to provide emergency liquidity support. This essay describes the ways in which legal constraints hampered response to the crisis, proposes reforms that would make possible a unified and strong response, and criticizes the Dodd-Frank Act for weakening, rather...
The existing system of private property interferes with allocative efficiency by giving owners the power to hold out for excessive prices. We propose a remedy in the form of a tax on property, based on the value self-assessed by its owner at intervals, along with a requirement that the owner sell the property to any third party willing to pay a pri...
During the height of the financial crisis in 2008 and 2009, the government bailed out numerous corporations, including banks, investment banks, and automobile manufacturers. While the bailouts helped end the financial crisis, they were intensely controversial at the time, and were marred by the ad hoc, politicized quality of the government interven...
Most economists believe that the government should impose Pigouvian taxes on firms that produce negative externalities like pollution, yet regulatory agencies hardly ever use their authority to create Pigouvian taxes. Instead, they issue command-and-control regulations. Our major point is that, contrary to the conventional wisdom, regulators typica...
Law professors routinely accuse each other of making politically biased arguments in their scholarship. They have also helped produce a large empirical literature on judicial behavior that finds that judicial opinions sometimes reflect the ideological biases of the judges who join them. Yet no one has used statistical methods to test the parallel h...
Conventional democratic institutions aggregate preferences poorly. The norm of one-person-one-vote with majority rule treats people fairly by giving everyone an equal chance to influence outcomes but fails to give proportional weight to people whose interests in a social outcome are stronger than those of other people. This problem leads to the fam...
Many people vigorously defend particular institutional judgments on such issues as the filibuster, recess appointments, executive privilege, federalism, and the role of the courts. These judgments are defended publicly with great intensity and conviction, but some of them turn out to be exceedingly fragile, in the sense that their advocates are pre...
A statistical analysis of voting by Supreme Court justices from 1937 to 2014 provides evidence of a loyalty effect--justices more frequently vote for the government when the president who appointed them is in office than when subsequent presidents lead the government. This effect exists even when subsequent presidents are of the same party as the j...
The judicial behavior literature typically assumes that politicians nominate judges on the basis of their ideology. That assumption helps explain studies that show a statistical correlation between the party of the nominating president and the ideological direction of the votes of judges. However, the assumption is too simple. Casual empiricism sug...
Regulatory agencies are required to perform cost-benefit analysis of major rules. However, in many cases regulators refuse to report a monetized value for the benefits of a rule that they issue. Sometimes, they report no monetized value; at other times, they report a monetized value but also state that not all benefits have been quantified. On occa...
Most economists believe that the government should impose Pigouvian taxes on firms that produce negative externalities like pollution, yet regulatory agencies hardly ever use their authority to create Pigouvian taxes. Instead, they issue command-and-control regulations. Our major point is that, contrary to the conventional wisdom, regulators typica...
There is considerable variation in countries’ respect for human rights. Scholars have tried to explain this variation on the basis of current conditions in countries—such as democracy and civil war—and events from the recent past, such as ratification of human rights treaties. This literature has ignored the influence that geographic factors and hi...
International organizations use a bewildering variety of voting rules — with different thresholds, weighting systems, veto points, and other rules that distribute influence unequally among participants. We provide a brief survey of the major voting systems, and show that all are controversial and unsatisfactory in various ways. While it is tempting...
This lecture is an introduction to the use of agency models in law and economics. It is designed for first year law students with no background in economics. A simple example is used to illustrate the basic tradeoff between incentives and insurance when a principal is unable to observe an agent's level of effort. The example is then generalized, an...
Shareholder voting is a weak and much criticized mechanism for controlling managerial opportunism. Among other problems, shareholders are often too uninformed to vote wisely, and majority and supermajority rule permits large shareholders to exploit small shareholders. We propose a new voting system called Quadratic Vote Buying (QVB), according to w...
In a typical pattern in the literature on public law, the diagnostic sections of a paper draw upon political science, economics or other disciplines to offer deeply pessimistic accounts of the motivations of relevant actors in the legal system. The prescriptive sections of the paper, however, then issue an optimistic proposal that the same actors s...
Not enough kidneys are donated each year to satisfy the demand from patients who need them. Strong moral and legal norms interfere with market-based solutions. To improve the supply of kidneys without violating these norms, we propose legal reforms that would strengthen the incentive to donate based on altruistic motives. We propose that donors be...
Calls for benefit-cost analysis in rule-making based on the Dodd-Frank Wall Street Reform Act have revealed a paucity of work on allocative efficiency in financial markets. We propose three principles to help fill this gap. First, we highlight the need to quantify the "statistical cost of a crisis" in order to trade-off the risk of a crisis against...
The standard model of judicial behavior suggests that judges primarily care about deciding cases in ways that further their political ideologies. But judicial behavior seems much more complex. Politicians who nominate people for judgeships do not typically tout their ideology (except sometimes using vague code words), but they always claim that the...
This paper builds on contributions to a Conference on Benefit-Cost Analysis of Financial Regulation, held at the University of Chicago, to show how benefit-cost analysis (BCA) of financial regulations should be conducted. Our major themes are that (1) on theoretical grounds, BCA should be easier for financial regulation than for other areas of regu...
The standard model of judicial behavior suggests that judges primarily care about deciding cases in ways that further their political ideologies. But judicial behavior seems much more complex. Politicians who nominate people for judgeships do not typically tout their ideology (except sometimes using vague code words), but they always claim that the...
In an earlier article, Regulation, Unemployment, and Cost-Benefit Analysis, we argued that regulatory agencies should incorporate the costs of unemployment into cost-benefit analyses of proposed regulations. We argued that alternatives to including unemployment costs in cost-benefit analysis — including feasibility analysis and job loss analysis —...
Balance-of-powers arguments are ubiquitous in judicial opinions and academic articles that address separation-of-powers disputes over the president’s removal authority, power to disregard statutes, authority to conduct foreign wars, and much else. However, the concept of the balance of powers has never received a satisfactory theoretical treatment....
The macroeconomic policies of states can produce significant costs and benefits for other states, yet international macroeconomic cooperation has been one of the weakest areas of international law. We ask why states have had such trouble cooperating over macroeconomic issues, when they have been relatively successful at cooperation over other econo...
In reaction to defaults on sovereign debt contracts, issuers and creditors have strengthened the terms in sovereign debt contracts that enable creditors to enforce their debts judicially and that enable sovereigns to restructure their debts. These apparently contradictory approaches reflect attempts to solve an incomplete contracting problem in whi...
A treaty satisfies what we call International Paretianism if it advances the interests of all states that join it, so that no state is made worse off. The principle might seem obvious, but it rules out nearly all the major proposals for a climate treaty, including proposals advanced by academics and by government officials. We defend International...
Immigration law scholars should give more attention to the institutional structure of immigration law and, in particular, the way that the government addresses problems of asymmetric information in the course of screening potential migrants and attempting to control their behavior once they arrive. Economic models of optimal contracting provide a u...
Contract scholarship has given little attention to the production process for contracts. The usual assumption is that the parties will construct the contract ex nihilo, choosing all the terms so that they will maximize the surplus from the contract. In fact, parties draft most contracts by slightly modifying the terms of contracts that they have us...
The financial crisis of 2008 was caused in part by speculative investment in complex derivatives. In enacting the Dodd-Frank Act, Congress sought to address the problem of speculative investment, but merely transferred that authority to various agencies, which have not yet found a solution. We propose that when firms invent new financial products,...
The Common European Sales Law is designed as an optional instrument that European parties engaged in cross-border transactions could choose for their transactions in preference to national law. The goal is to increase cross-border transactions and perhaps to enhance European identity. But the CESL is unlikely to achieve these goals. It raises trans...
Immigration law both screens migrants and regulates the behavior of migrants after they have arrived. Both activities are information-intensive because the migrant’s “type” and the migrant’s post-arrival activity are often forms of private information that are not immediately accessible to government agents. To overcome this information problem, th...
This volume brings together essays by many of the leading scholars of comparative constitutional design from many perspectives to collectively assess what we know - and do not know - about the design process as well as particular institutional choices concerning executive power, constitutional amendment processes and many other issues. Bringing tog...
The financial crisis of 2008 was caused in part by speculative investment in sophisticated derivatives. In enacting the Dodd-Frank Act, Congress sought to address the problem of speculative investment, but merely transferred that authority to various agencies, which have not yet found a solution. Most discussions center on enhanced disclosure and t...
Default on sovereign debt is a form of political risk. Issuers and creditors have responded to this risk both by strengthening the terms in sovereign debt contracts that enable creditors to enforce their debts judicially and by creating terms that enable sovereigns to restructure their debts. These apparently contradictory approaches reflect attemp...
These comments address some theoretical, empirical, and normative claims made by Beth Simmons in her book, Mobilizing for Human Rights. The empirical heart of the book is rigorous, but because of the shallowness of the data and the limits of the empirical methodology, the implications for human rights law are narrow and to a large extent ambiguous.
The deference thesis is that Congress and the judiciary should defer to the executive’s policy judgments during national emergencies. A recent criticism of the deference theory draws on the analogy of the emergency room medical protocol to argue that emergencies call for rule-bound constraint of the executive rather than deference to it. However, t...
Diverse measures are used as proxies for judicial ability, ranging from the college and law school a judge attended to the rate at which her decisions are cited by other judges. Yet, there has been little serious examination of which of these ability measures is better or worse at predicting the quality of judicial performance - including the manag...
Regulatory agencies take account of the potential unemployment effects of proposed regulations in an ad hoc, theoretically incorrect way. Current practice is to conduct feasibility analysis, under which the agency predicts the unemployment effects of a proposed regulation, and then declines to regulate (or weakens the proposed regulation) if the un...
Lifetime tenure maximizes judicial independence by shielding judges from political pressures, but it creates problems of its own. Judges with independence may implement their political preferences. Judges may remain in office after their abilities degrade with age. The U.S. federal system addresses these problems in an indirect way. When judges’ pe...
In much of the scholarly literature on international law, there is a tendency to condemn violations of the law and to leave it at that. If all violations of international law were indeed undesirable, this tendency would be unobjectionable. We argue in this paper, however, that a variety of circumstances arise under which violations of international...
Conventional wisdom holds that boilerplate contract terms are ignored by parties, and thus are not priced into contracts. We test this view by comparing Greek sovereign bonds that have Greek choice-of-law terms and Greek sovereign bonds that have English choice-of-law terms. Because Greece can change the terms of Greek-law bonds unilaterally by cha...
Lifetime tenure maximizes judicial independence by shielding judges from political pressures, but it creates problems of its own. As is widely known, judges with judicial independence may implement their political preferences or shirk in other ways. Less attention has been given to another problem: that judges will remain in office after their abil...
If a plaintiff brings two claims, each with a 0.4 probability of being valid, the plaintiff will usually lose, even if the claims are based on independent events, and thus the probability of at least one of the claims being valid is 0.64. If a plaintiff brings two independent claims, and each of them is too weak to justify a remedy, the plaintiff w...
Diverse measures are used as proxies for judicial ability, ranging from the college and law school a judge attended to the rate at which her decisions are cited by other judges. Yet there has been little serious examination of which of these ability measures is better or worse at predicting the quality of judicial performance—including the manageme...
Carl Schmitt is too important to be left to the Schmitt specialists. Although scholars in law and other disciplines who could profit from Schmitt have begun to do so, they are sometimes repelled by Schmitt’s conceptualistic style and jargon. This chapter attempts to demystify Schmitt by interpreting some of his main insights through the lens of mod...
The constitution of the Roman Republic featured a system of checks and balances that would eventually influence the American founders, yet it had very different characteristics from the system of separation of powers that the founders created. The Roman senate gave advice but did not legislate; the people voted directly on bills and appointments in...
The United Nations Convention on the Law of the Sea demonstrates plausible economic logic by assigning jurisdiction over portions of the ocean to the states that value them the most and can regulate them most cheaply, while respecting other states’ interests in navigation and additional uses of the seas. For the vast oceanic areas that no state can...
Human rights law does not appear to enjoy as high a level of compliance as the laws of war, yet is institutionalized to a greater degree. This paper argues that the reason for this difference is related to the strategic structure of international law. The laws of war are governed by a regime of reciprocity, which can produce self-enforcing patterns...
Globalization, some legal scholars suggest, is a force that makes increasing convergence among different countries’ constitutions more or less inevitable. This Essay explores this hypothesis by analyzing both the logic – and potential limits – to four different mechanisms of constitutional convergence: first, changes in global “superstructure”; sec...
The maxim “divide and conquer” (divide et impera) is invoked frequently in law, history, and politics, but often in a loose or undertheorized way. We suggest that the maxim
is a placeholder for a complex of ideas related by a family resemblance, but differing in their details, mechanisms and implications.
We provide an analytic taxonomy of divide a...
Citations
... In this sense, psychological ownership can include a range of different targetsmaterial (a car) as well as abstract (an idea), or in the form of persons (a friend) or social constructs (a family). Empirical studies show how psychological ownership affects attitudes, values and behaviors related to the specific entity (Peck & Shu, 2018), such as endowment effects (Beggan, 1992), the higher perceived value of an object (Dommer & Swaminathan, 2013;Kricheli-Katz & Posner, 2020) and increased emotional attachment (Shu & Peck, 2011). Van Dyne and Pierce (2004) show that feelings of ownership can increase personal sacrifice, the assumption of risk on behalf of the entity, and greater responsibility for and stewardship of the target entity. ...
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... En todo caso, resultó clara desde el comienzo de la vida constitucional en la región, la existencia una tensión entre la defensa doctrinal del ideal del autogobierno colectivo, y el sostén constitucional de cláusulas orientadas en dirección contraria, como las relativas a la conformación de un Poder Ejecutivo fuerte. 16 Algunos autores podrían decir que la concentración del poder en el Poder Ejecutivo constituye, en verdad, una estrategia reforzadora de la democracia, dada la relación más directa que existe entre el Ejecutivo y la ciudadanía, y la capacidad de esta última para controlar al primero (Posner & Vermeule 2010). Este análisis, sin embargo, parece gravemente defectuoso. ...
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... More broadly, online volunteers often have little power to shape the technology they co-create Preprint for ICWSM '22 with for-profit companies (Vincent et al., 2021). From a policymaking perspective, online volunteer work creates new labor mechanisms by subsidizing actual compensated labor (Postigo, 2009), and scholars have suggested that companies profiting from this free work may be contributing to an industry-wide decline in labor share (the proportion of business income allocated to wages) and, subsequently, exacerbating income inequality (Arrieta-Ibarra et al., 2018;Posner and Weyl, 2018). ...
... Society and learning about society should progress from the self, the home, the institution, and out into the broader scope of national and global positioning. Intellectual inquiry into the identity of self, liberated from imposed identities can progress into imagining the ever-more heterogeneous and multi-cultural sense of community that can grant us global mobility and laissez faire in its full true meaning (Posner et al., 2019). Neoliberalism and globalization were critical in spreading growth to poor countries over the past three decades and the recent backlashes of this in terms of financial contagion, migration crisis, trade disputes and terrorism, beg the question of how individuals can continue to gain and manage themselves through the inherent cross-border, cross-cultural conflicts. ...
... First, over the course of the last few decades, liberals often focused on a business-led agenda of economic policy-making and the justification of existing market institutions (Braunberger, 2016). Following the paradigm change toward supply-side economics of the early 1980s, many liberals propagated a form of trickle-down economics and supported economic deregulations (e.g., in the financial sector, in trade agreements, or in industrial policy-making) which often favored big corporations (Posner and Weyl, 2018). The result was that corporations, who initially had gained high market shares by superior efficiency, often used their market power to lobby successfully for various barriers to entry to protect their incumbent positions which made it harder for new innovative firms to enter the market or smaller firms to grow (Munger and Vilarreal-Diaz, 2019) with negative effects on consumer welfare. ...
... Conversely, periods of civil instability and political turmoil may deter governments to accept the jurisdiction of the International Criminal Court, except if ratification works in their best interest. In the same spirit, Chilton and Posner (2018) also face the potential endogeneity of ratification of treaties on human rights violations 27 . ...
... Where bilateral programmes exist (and their number has grown in recent THE ELUSIVE TRIPLE WIN 5 years, see e.g. Chilton and Posner 2018;Peters 2019), most of the bargaining power has remained with host rather than origin countries. As a consequence, the majority of today's TLMPs are largely 'made' in host countries and designed to benefit primarily the interests of the host country's population. ...
... These are certainly interesting and important questions that must be addressed in systematic ways, and some scholars have already started the task. In a recent empirical examination of Supreme Court deference to executive authority, Eric Posner and Lee Epstein used a database of 3783 Supreme Court cases that concerned American presidents from 1932 to 2016 (Posner and Epstein 2018). These cases are deemed to be of interest to presidents because they involve either an executive branch official or federal agency as a direct party. ...
... 86. See Nichols 2017Chilton and Posner 2015;Backus and Little forthcoming. 87. ...
... 73 The regulatory state has become a cost-benefit state, in the sense that under prevailing executive orders, agencies must catalog the costs and benefits of interventions before issuing them, and in general, must show that their benefits justify their costs. 74 Evaluating the WTP for kidney transplantation alongside the costs of kidney transplantation is important for policy makers when they come to consider state funding for kidney transplantation out of the limited resources of the national medical budget. The research findings show that end-stage kidney disease (ESKD) patients present a positive WTP for kidney transplantation, whether from a healthy living donor or from a deceased donor. ...
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