Constitutional theory branches into decision theory and discourse theory. The former concentrates on how constitutional decisions are or should be made, the latter on how constitutional issues are or should be discussed. For its part, originalism began as a method for resolving constitutional disagreement but it has migrated into discourse theory, as well. Jack Balkin’s “living originalism” illustrates the move. This essay examines inclusive versions of originalism like Balkin’s that permit many different answers to constitutional questions. The essay then suggests pathologies associated with loose constitutional discourse in general. For instance, a large domain for constitutional discourse can crowd out nonconstitutional argument and raise the stakes of disputes in ways that discourage compromise, creativity, and trust. Under certain conditions, loose constitutional discourse is a distraction that cannot moderate societal divisions. At its worst, loose constitutional discourse retards progress toward goals that it is supposed to achieve. We still have much to learn about how constitutional discourse operates in fact and how it interacts with nonconstitutional argument. At the moment, those inquiries probably are more important than more talk about how we ought to talk about constitutional law.
{"title":"Talk About Talking About Constitutional Law","authors":"Adam M. Samaha","doi":"10.2139/SSRN.1945432","DOIUrl":"https://doi.org/10.2139/SSRN.1945432","url":null,"abstract":"Constitutional theory branches into decision theory and discourse theory. The former concentrates on how constitutional decisions are or should be made, the latter on how constitutional issues are or should be discussed. For its part, originalism began as a method for resolving constitutional disagreement but it has migrated into discourse theory, as well. Jack Balkin’s “living originalism” illustrates the move. This essay examines inclusive versions of originalism like Balkin’s that permit many different answers to constitutional questions. The essay then suggests pathologies associated with loose constitutional discourse in general. For instance, a large domain for constitutional discourse can crowd out nonconstitutional argument and raise the stakes of disputes in ways that discourage compromise, creativity, and trust. Under certain conditions, loose constitutional discourse is a distraction that cannot moderate societal divisions. At its worst, loose constitutional discourse retards progress toward goals that it is supposed to achieve. We still have much to learn about how constitutional discourse operates in fact and how it interacts with nonconstitutional argument. At the moment, those inquiries probably are more important than more talk about how we ought to talk about constitutional law.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2011-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67806424","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The superior efficiency of the common law has long been a staple of the law and economics literature. Generalizing from this claim, the legal origins literature uses cross-country empirical research to attempt to demonstrate this superiority by examining economic growth rates and the presence of common law legal systems. We argue that this literature fails to adequately characterize the relevant legal variables and that its reliance on broad-brush labels like “common law” and “civil law” is inappropriate. In this Article, we first examine the efficiency literature’s claims about the common law and find that it fails to accurately account for important distinctions across common law legal systems and under-specifies key terms. We next turn to the lengthy debate over replacing the common law with a civil code that raged across the nineteenth century United States, drawing from the arguments of the participants the key factors that promote efficient outcomes. We conclude that a focus on legal systems’ ability to cheaply identify efficient rules, restrain rent-seeking in the formulation and application of rules, adapt rules to changed conditions, reveal the law to those affected by it, and enable contracting around inefficient rules would be more appropriate than the current emphasis on labels. Further, more attention to transition costs would make efforts at reform more credible.
{"title":"The Fable of the Codes: The Efficiency of the Common Law, Legal Origins & Codification Movements","authors":"Nuno Garoupa, Andrew P. Morriss","doi":"10.2139/SSRN.1925104","DOIUrl":"https://doi.org/10.2139/SSRN.1925104","url":null,"abstract":"The superior efficiency of the common law has long been a staple of the law and economics literature. Generalizing from this claim, the legal origins literature uses cross-country empirical research to attempt to demonstrate this superiority by examining economic growth rates and the presence of common law legal systems. We argue that this literature fails to adequately characterize the relevant legal variables and that its reliance on broad-brush labels like “common law” and “civil law” is inappropriate. In this Article, we first examine the efficiency literature’s claims about the common law and find that it fails to accurately account for important distinctions across common law legal systems and under-specifies key terms. We next turn to the lengthy debate over replacing the common law with a civil code that raged across the nineteenth century United States, drawing from the arguments of the participants the key factors that promote efficient outcomes. We conclude that a focus on legal systems’ ability to cheaply identify efficient rules, restrain rent-seeking in the formulation and application of rules, adapt rules to changed conditions, reveal the law to those affected by it, and enable contracting around inefficient rules would be more appropriate than the current emphasis on labels. Further, more attention to transition costs would make efforts at reform more credible.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2011-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67791496","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Strong Precautionary Principle, an approach to risk regulation that shifts the burden of proof on safety, can provide a valuable framework for preventing harm to human health and the environment. Cass Sunstein and other scholars, however, have consistently criticized the Principle, rejecting it as paralyzing, inflexible, and extreme. In this reassessment of the Strong Precautionary Principle, I highlight the significant benefits of the Principle for risk decision making, with the aim of rescuing the Principle from its dismissive critics. The Principle sends a clear message that firms must research the health and environmental risks of their products, before harm occurs. It does not call for the elimination of all risk, nor does it ignore tradeoffs, as Sunstein has alleged. Rather, through burden shifting, the Principle legitimately requires risk creators to research and justify the risks they impose on society. By exploring where the Principle already operates successfully in U.S. law--examples often overlooked by the critics--I highlight the Principle's flexibility and utility in regulatory law.
{"title":"Rescuing the Strong Precautionary Principle from its Critics","authors":"Noah M. Sachs","doi":"10.31228/osf.io/4xgv8","DOIUrl":"https://doi.org/10.31228/osf.io/4xgv8","url":null,"abstract":"The Strong Precautionary Principle, an approach to risk regulation that shifts the burden of proof on safety, can provide a valuable framework for preventing harm to human health and the environment. Cass Sunstein and other scholars, however, have consistently criticized the Principle, rejecting it as paralyzing, inflexible, and extreme. In this reassessment of the Strong Precautionary Principle, I highlight the significant benefits of the Principle for risk decision making, with the aim of rescuing the Principle from its dismissive critics. The Principle sends a clear message that firms must research the health and environmental risks of their products, before harm occurs. It does not call for the elimination of all risk, nor does it ignore tradeoffs, as Sunstein has alleged. Rather, through burden shifting, the Principle legitimately requires risk creators to research and justify the risks they impose on society. By exploring where the Principle already operates successfully in U.S. law--examples often overlooked by the critics--I highlight the Principle's flexibility and utility in regulatory law.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2011-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639279","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 2000, a group of American entrepreneurs moved to a former World War II antiaircraft platform in the North Sea, seven miles off the British coast. There, they launched HavenCo, one of the strangest start-ups in Internet history. A former pirate radio broadcaster, Roy Bates, had occupied the platform in the 1960s, moved his family aboard, and declared it to be the sovereign Principality of Sealand. HavenCo’s founders were opposed to governmental censorship and control of the Internet; by putting computer servers on Sealand, they planned to create a “data haven” for unpopular speech, safely beyond the reach of any other country. This Article tells the full story of Sealand and HavenCo—and examines what they have to tell us about the nature of the rule of law in the age of the Internet. The story itself is fascinating enough: it includes pirate radio, shotguns, rampant copyright infringement, a Red Bull skateboarding special, perpetual motion machines, and the Montevideo Convention on the Rights and Duties of State. But its implications for the rule of law are even more remarkable. Previous scholars have seen HavenCo as a straightforward challenge to the rule of law: by threatening to undermine national authority, HavenCo was opposed to all law. As the fuller history shows, this story is too simplistic. HavenCo also depended on international law to recognize and protect Sealand, and on Sealand law to protect it from Sealand itself. Where others have seen HavenCo’s failure as the triumph of traditional regulatory authorities over HavenCo, this Article argues that in a very real sense, HavenCo failed not from too much law but from too little. The “law”
{"title":"Sealand, HavenCo, and the Rule of Law","authors":"James Grimmelmann","doi":"10.31228/osf.io/46rd2","DOIUrl":"https://doi.org/10.31228/osf.io/46rd2","url":null,"abstract":"In 2000, a group of American entrepreneurs moved to a former World War II antiaircraft platform in the North Sea, seven miles off the British coast. There, they launched HavenCo, one of the strangest start-ups in Internet history. A former pirate radio broadcaster, Roy Bates, had occupied the platform in the 1960s, moved his family aboard, and declared it to be the sovereign Principality of Sealand. HavenCo’s founders were opposed to governmental censorship and control of the Internet; by putting computer servers on Sealand, they planned to create a “data haven” for unpopular speech, safely beyond the reach of any other country. This Article tells the full story of Sealand and HavenCo—and examines what they have to tell us about the nature of the rule of law in the age of the Internet. The story itself is fascinating enough: it includes pirate radio, shotguns, rampant copyright infringement, a Red Bull skateboarding special, perpetual motion machines, and the Montevideo Convention on the Rights and Duties of State. But its implications for the rule of law are even more remarkable. Previous scholars have seen HavenCo as a straightforward challenge to the rule of law: by threatening to undermine national authority, HavenCo was opposed to all law. As the fuller history shows, this story is too simplistic. HavenCo also depended on international law to recognize and protect Sealand, and on Sealand law to protect it from Sealand itself. Where others have seen HavenCo’s failure as the triumph of traditional regulatory authorities over HavenCo, this Article argues that in a very real sense, HavenCo failed not from too much law but from too little. The “law”","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2011-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639115","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2009-01-01DOI: 10.1017/CBO9780511609800.005
Carolyn Jones
{"title":"Dollars and Selves: Women’s Tax Criticism and Resistance in the 1870s","authors":"Carolyn Jones","doi":"10.1017/CBO9780511609800.005","DOIUrl":"https://doi.org/10.1017/CBO9780511609800.005","url":null,"abstract":"","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9780511609800.005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57077551","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
B. Yandle, Joseph A. Rotondi, Andrew P. Morriss, Andy Dorchak
The bootleggers and Baptists public choice theory of regulation explains how durable regulatory bargains can arise from the tacit collaboration of a public-interest-minded interest group (the Baptists) with an economic interest (the bootleggers). Using the history of tobacco regulation, this Article extends the bootleggers and Baptists theory of regulation to incorporate the role of policy entrepreneurs like the state attorneys general and private trial lawyers who joined forces to regulate tobacco by litigation. We denominate these actors televangelists and demonstrate that they play a pernicious role in regulation. The Article begins by showing how tobacco regulation through the 1980s fit the traditional bootleggers and Baptists public choice model. It then explores the circumstances that made it possible for the emergence of the televangelists as a regulatory partner that the bootleggers would prefer. The Article then criticizes televangelist-bootlegger bargains as likely to result in substantial wealth transfers from large, unorganized groups to the coalition partners. It also shows how televangelist-bootlegger coalitions are more pernicious than bootlegger-Baptist coalitions. Finally, it concludes with suggestions for how to make televangelist-bootlegger coalitions less durable.
{"title":"Bootleggers, Baptists & Televangelists: Regulating Tobacco by Litigation","authors":"B. Yandle, Joseph A. Rotondi, Andrew P. Morriss, Andy Dorchak","doi":"10.2139/SSRN.1010695","DOIUrl":"https://doi.org/10.2139/SSRN.1010695","url":null,"abstract":"The bootleggers and Baptists public choice theory of regulation explains how durable regulatory bargains can arise from the tacit collaboration of a public-interest-minded interest group (the Baptists) with an economic interest (the bootleggers). Using the history of tobacco regulation, this Article extends the bootleggers and Baptists theory of regulation to incorporate the role of policy entrepreneurs like the state attorneys general and private trial lawyers who joined forces to regulate tobacco by litigation. We denominate these actors televangelists and demonstrate that they play a pernicious role in regulation. The Article begins by showing how tobacco regulation through the 1980s fit the traditional bootleggers and Baptists public choice model. It then explores the circumstances that made it possible for the emergence of the televangelists as a regulatory partner that the bootleggers would prefer. The Article then criticizes televangelist-bootlegger bargains as likely to result in substantial wealth transfers from large, unorganized groups to the coalition partners. It also shows how televangelist-bootlegger coalitions are more pernicious than bootlegger-Baptist coalitions. Finally, it concludes with suggestions for how to make televangelist-bootlegger coalitions less durable.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2007-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68124490","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this Article, Professor Parrish explores the legitimacy of the U.S. Supreme Court's use of foreign law in constitutional adjudication. In recent years, the U.S. Supreme Court has used foreign law as persuasive authority in a number of highly contentious cases. The backlash has been spirited, with calls for foreign law to be categorically barred from constitutional adjudication, and even for Justices to be impeached if they cite to foreign sources. Last year, the condemnation of comparative constitutionalism reached a high note, as a barrage of scholarship decried the practice as illegitimate and a threat to our national sovereignty. The result has been a change to the debate's tenor. Instead of exploring how to use foreign materials in a sophisticated, refined manner, the debate has been reduced to an overly simplistic one of all or nothing. This Article is the first to systematically address the recent condemnation of the U.S. Supreme Court's use of foreign law as persuasive authority. After explaining how the debate has unfolded, the Article critiques the arguments recently made by those who oppose the use of foreign law. The Article reveals how those arguments are misplaced, at times extreme, and inconsistent with a long history of American jurisprudence. In particular, the Article explains how comparative constitutionalism is a hallmark of our state court system. The Article then explains how the use of foreign law is not only sensible, but compatible with American constitutionalism and the proper role of the judiciary. Professor Parrish concludes that the judiciary's use of foreign law as persuasive authority is largely commendable, not illegitimate. The recent attacks against the use of foreign law are spurred on by rhetoric not substance: a storm in a teacup.
{"title":"Storm in a Teacup: the U.S. Supreme Court's Use of Foreign Law","authors":"Austen L. Parrish","doi":"10.2139/SSRN.891269","DOIUrl":"https://doi.org/10.2139/SSRN.891269","url":null,"abstract":"In this Article, Professor Parrish explores the legitimacy of the U.S. Supreme Court's use of foreign law in constitutional adjudication. In recent years, the U.S. Supreme Court has used foreign law as persuasive authority in a number of highly contentious cases. The backlash has been spirited, with calls for foreign law to be categorically barred from constitutional adjudication, and even for Justices to be impeached if they cite to foreign sources. Last year, the condemnation of comparative constitutionalism reached a high note, as a barrage of scholarship decried the practice as illegitimate and a threat to our national sovereignty. The result has been a change to the debate's tenor. Instead of exploring how to use foreign materials in a sophisticated, refined manner, the debate has been reduced to an overly simplistic one of all or nothing. This Article is the first to systematically address the recent condemnation of the U.S. Supreme Court's use of foreign law as persuasive authority. After explaining how the debate has unfolded, the Article critiques the arguments recently made by those who oppose the use of foreign law. The Article reveals how those arguments are misplaced, at times extreme, and inconsistent with a long history of American jurisprudence. In particular, the Article explains how comparative constitutionalism is a hallmark of our state court system. The Article then explains how the use of foreign law is not only sensible, but compatible with American constitutionalism and the proper role of the judiciary. Professor Parrish concludes that the judiciary's use of foreign law as persuasive authority is largely commendable, not illegitimate. The recent attacks against the use of foreign law are spurred on by rhetoric not substance: a storm in a teacup.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2007-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67858520","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Much attention has been paid of late to unauthorized disseminations of classified information. A grand jury proceeding has been initiated to investigate the leak and publication of information about the National Security Agency's warrantless electronic surveillance program. And in a case currently pending in the Eastern District of Virginia, the U.S. government for the first time is prosecuting private citizens for exchanging classified information in the course of concededly non-espionage activities - specifically, political lobbying. These events illuminate the underdeveloped and deeply under-theorized state of the law on classified information leaks and publications. The central chasm in existing theory and doctrine on the topic - apart from how little of it exists - is that it fails adequately to integrate the separation of powers and free speech issues that the topic raises. This Article integrates these two sets of issues, considering both the free speech values at stake and the discretion and capacity constitutionally accorded the political branches to protect national security information. This Article concludes that the national security related powers of the political branches - particularly the executive branch's vast secret-keeping capacity - do not diminish the free speech protections that should apply in the realm of classified information. To the contrary, these powers make speech and transparency related checks particularly crucial in this realm. Significant first amendment protection for classified information leaks and publications, in short, is warranted. The President's Article II capacities enable him to oversee a vast classification system. This can be inferred from constitutional structure and history, and also has been borne out over time as the classification system and the administrative infrastructure to implement it have grown dramatically. But with such capacity for, and realization of, a secrecy system, come substantial implications for an informed populace and hence for the First Amendment and the very structure of self-government. And the particular form of Presidential secrecy that is classification is so broad and so scattered in its manifestations that it cannot effectively be matched through discrete information requests from Congress or other government players. Instead, the First Amendment demands some breathing room for disclosure by those within the vast secret-keeping infrastructure as well as by the press and the public to whom information might be leaked. This analysis explains the intuition that the press and the public should be highly protected from prosecution for classified information publication. This intuition is largely correct, although it does not preclude punishment that would meet stringent First Amendment standards. This Article's analysis also sheds light on the constitutional balance that must be struck in prosecuting government employees for information leaks. On the one hand, government
{"title":"Classified Information Leaks and Free Speech","authors":"Heidi Kitrosser","doi":"10.2139/SSRN.958099","DOIUrl":"https://doi.org/10.2139/SSRN.958099","url":null,"abstract":"Much attention has been paid of late to unauthorized disseminations of classified information. A grand jury proceeding has been initiated to investigate the leak and publication of information about the National Security Agency's warrantless electronic surveillance program. And in a case currently pending in the Eastern District of Virginia, the U.S. government for the first time is prosecuting private citizens for exchanging classified information in the course of concededly non-espionage activities - specifically, political lobbying. These events illuminate the underdeveloped and deeply under-theorized state of the law on classified information leaks and publications. The central chasm in existing theory and doctrine on the topic - apart from how little of it exists - is that it fails adequately to integrate the separation of powers and free speech issues that the topic raises. This Article integrates these two sets of issues, considering both the free speech values at stake and the discretion and capacity constitutionally accorded the political branches to protect national security information. This Article concludes that the national security related powers of the political branches - particularly the executive branch's vast secret-keeping capacity - do not diminish the free speech protections that should apply in the realm of classified information. To the contrary, these powers make speech and transparency related checks particularly crucial in this realm. Significant first amendment protection for classified information leaks and publications, in short, is warranted. The President's Article II capacities enable him to oversee a vast classification system. This can be inferred from constitutional structure and history, and also has been borne out over time as the classification system and the administrative infrastructure to implement it have grown dramatically. But with such capacity for, and realization of, a secrecy system, come substantial implications for an informed populace and hence for the First Amendment and the very structure of self-government. And the particular form of Presidential secrecy that is classification is so broad and so scattered in its manifestations that it cannot effectively be matched through discrete information requests from Congress or other government players. Instead, the First Amendment demands some breathing room for disclosure by those within the vast secret-keeping infrastructure as well as by the press and the public to whom information might be leaked. This analysis explains the intuition that the press and the public should be highly protected from prosecution for classified information publication. This intuition is largely correct, although it does not preclude punishment that would meet stringent First Amendment standards. This Article's analysis also sheds light on the constitutional balance that must be struck in prosecuting government employees for information leaks. On the one hand, government","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2007-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67908985","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Congress designed the 2005 amendments to the federal Bankruptcy Code to decrease consumer bankruptcy filings, but does history suggest that is a reasonable expectation for the new law? Using government data, this paper examines the relationship between household debt and changes in the legal regime on bankruptcy filing rates. First, I find that the components of household debt have different relationships with bankruptcy filing rates over different time frames. Over both the short- and long-term, increased mortgage debt is associated with increased bankruptcy filing rates. Consumer debt, however, has a negative short-term relationship with bankruptcy filing rates but a positive long-term relationship. A run up in consumer credit seems to allow consumers to delay but not avoid bankruptcy. The relationships were statistically meaningful and robust to different specifications of statistical models. Previous amendments to the federal bankruptcy law in 1938 and 1979 did not have any significant effect on bankruptcy filing rates. Rather, after each of these enactments, bankruptcy filings continued to move with overall macroeconomic trends unabated by changes in the legal regime. The 1984 amendments, however, were associated with an increase in filing rates, a rather surprising result given that the 1984 amendments - like the 2005 amendments - were meant to crack down on perceived overly generous bankruptcy laws. Others have noted that the 1984 amendments were followed by an expansion of consumer credit, which the other findings suggest are associated with a long-term increase in the filing rate. Taken together, these findings suggest the 2005 amendments may similarly lead to an expansion of consumer credit and a long-term increase in the bankruptcy filing rate.
{"title":"The Paradox of Consumer Credit","authors":"Robert M. Lawless","doi":"10.2139/SSRN.906868","DOIUrl":"https://doi.org/10.2139/SSRN.906868","url":null,"abstract":"Congress designed the 2005 amendments to the federal Bankruptcy Code to decrease consumer bankruptcy filings, but does history suggest that is a reasonable expectation for the new law? Using government data, this paper examines the relationship between household debt and changes in the legal regime on bankruptcy filing rates. First, I find that the components of household debt have different relationships with bankruptcy filing rates over different time frames. Over both the short- and long-term, increased mortgage debt is associated with increased bankruptcy filing rates. Consumer debt, however, has a negative short-term relationship with bankruptcy filing rates but a positive long-term relationship. A run up in consumer credit seems to allow consumers to delay but not avoid bankruptcy. The relationships were statistically meaningful and robust to different specifications of statistical models. Previous amendments to the federal bankruptcy law in 1938 and 1979 did not have any significant effect on bankruptcy filing rates. Rather, after each of these enactments, bankruptcy filings continued to move with overall macroeconomic trends unabated by changes in the legal regime. The 1984 amendments, however, were associated with an increase in filing rates, a rather surprising result given that the 1984 amendments - like the 2005 amendments - were meant to crack down on perceived overly generous bankruptcy laws. Others have noted that the 1984 amendments were followed by an expansion of consumer credit, which the other findings suggest are associated with a long-term increase in the filing rate. Taken together, these findings suggest the 2005 amendments may similarly lead to an expansion of consumer credit and a long-term increase in the bankruptcy filing rate.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2006-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.906868","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67871260","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2005-08-24DOI: 10.1007/978-90-6704-477-6_12
Richard W. Painter
{"title":"Ethics in the age of un-incorporation: A return to ambiguity of pre-incorporation or an opportunity to contract for clarity?","authors":"Richard W. Painter","doi":"10.1007/978-90-6704-477-6_12","DOIUrl":"https://doi.org/10.1007/978-90-6704-477-6_12","url":null,"abstract":"","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2005-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"51462071","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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