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Abstract:
Few events obtain the same instant worldwide news coverage as multiple victim public shootings. These crimes allow us to study the alternative methods used to kill a large number of people (e.g., shootings versus bombings), marginal deterrence and the severity of the crime, substitutability of penalties, private versus public methods of deterrence and incapacitation, and whether attacks produce copycats. Yet, economists have not studied this phenomenon. Our results are surprising and dramatic. While arrest or conviction rates and the death penalty reduce normal murder rates, our results find that the only policy factor to influence multiple victim public shootings is the passage of concealed handgun laws. We explain why public shootings are more sensitive than other violent crimes to concealed handguns, why the laws reduce both the number of shootings as well as their severity, and why other penalties like executions have differential deterrent effects depending upon the type of murder.

Abstract:
Few events obtain the same instant worldwide news coverage as multiple victim public shootings. These crimes allow us to study the alternative methods used to kill a large number of people (e.g., shootings versus bombings), marginal deterrence and the severity of the crime, substitutability of penalties, private versus public methods of deterrence and incapacitation, and whether attacks produce "copycats." The criminals who commit these crimes are also fairly unusual, recent evidence suggests that about half of these criminals have received a "formal diagnosis of mental illness, often schizophrenia." Yet, economists have not studied multiple victim shootings. Using data that extends until 1999 and includes the recent public school shootings, our results are surprising and dramatic. While arrest or conviction rates and the death penalty reduce "normal" murder rates and these attacks lead to new calls from more gun control, our results find that the only policy factor to have a consistently significant influence on multiple victim public shootings is the passage of concealed handgun laws. We explain why public shootings are more sensitive than other violent crimes to concealed handguns, why the laws reduce the number of shootings and have an even greater effect on their severity.

Abstract:
In this paper we raise questions concerning the widely accepted proposition that economic efficiency requires that copyright protection be limited in its duration (often shorter than the current term). We show that just as an absence of property rights in tangible property would lead to inefficiencies, so intangible works that fall into the public domain may be inefficiently used because of congestion externalities and impaired incentives to invest in maintaining and exploiting these works. Although a system of indefinite renewals could lead to perpetual copyrights or very long terms, this is unlikely. Our empirical analysis indicates that (1) fewer than 11 percent of the copyrights registered between 1883 and 1964 were renewed at the end of their 28-year term, even though the cost of renewal was small; (2) copyrights are subject to significant depreciation and have an expected or average life of only about 15 years; and (3) copyright registration and renewals are highly responsive to economic incentives for the shorter the expected life of a copyright and the higher the registration and renewal fees, the less likely are both registration and renewal. This in turn suggests that a system of modestly higher registration and renewal fees than at present, a relatively short initial term (20 years or so), and a right of indefinite renewal (possibly subject to an overall maximum term of protection of say 100 years) would cause a large number of copyrighted works to be returned to the public domain quite soon after they were created. A further benefit of indefinite renewal is that it would largely eliminate the rent-seeking problem that is created by the fact that owners (and users) of valuable copyrights that are soon to expire will expend real resources on trying to persuade (dissuade) Congress to extend the term.

intellectual property, property rights

Abstract:
This paper analyzes the connection between ideology and voting of judges using a large sample of court of appeals cases decided since 1925 and Supreme Court cases decided since 1937. The ideological classifications of votes (e.g., liberal or conservative) are dependent variables in our empirical analysis and the independent variables include the party of the appointing President, the relative number of Republican and Democratic Senators at the time of the judge's confirmation, the appointment year, characteristics of the judge (e.g., gender, race and prior experience), and the ideological make-up of the judges on the court in which the judge sits as measured by the relative number of judges appointed by Republican and Democratic Presidents. We have a number of interesting results, including how a judge's voting's is affected by the voting of the other judges he serves with. We find a political-polarization effect among Justices appointed by Democratic but not by Republican Presidents; that is, the fewer the judges appointed by Democratic Presidents, the more liberally they vote. With regard to court of appeals judges, we find a conformity effect: if the number of judges appointed by Republican Presidents increases (decreases) relative to the number appointed by Democratic Presidents, all judges in the circuit tend to vote more conservatively (more liberally).

judicial behavior, judicial votes, judicial ideology, public choice, attitudinal theory, law and politics

Abstract:
When individuals infringe copyright, they often use tools, services, and venues provided by other parties. An enduring legal question asks to what extent those other parties should be held liable for the resulting infringement. For example, should a firm that produces photocopiers be required to compensate authors for any unauthorized copies made on that firm's machines? What about firms that manufacture personal computers or offer Internet access; should they be liable, at least in part, for online music piracy? Modern copyright law addresses these issues through a variety of common law doctrines and statutory provisions. In this essay, we introduce those rules and evaluate them from an economic perspective. In the process, we emphasize that every mechanism for rewarding authors inevitably introduces some form of inefficiency, and thus the only way to determine the proper scope for indirect liability is to weigh its costs and benefits against those associated with other plausible mechanisms for rewarding authors.

copyright, indirect liability, third-party liability, Grokster, Napster, vicarious, contributory

Abstract:
This paper examines from the standpoint of economics the relationship between copyright law, borrowed images and the post-modern art form known as appropriation art. Artists and judges have very different views regarding how the law should treat appropriation art. The artist perceives legal restraints on borrowing copyrighted images as a threat to artistic freedom. The law gives artists no special privileges to borrow copyrighted material. Although there are no market impediments to licensing most copyrighted images, fair use would lower transaction and access costs. These cost savings should more than offset the reduced incentives to create new images in cases where the appropriation artist has already paid for the image or is making only a few copies. In contrast, when the appropriation artist makes many copies, he should be treated no differently from a firm that incorporates licensed images in products such as calendars, coffee mugs and beach towels.

Abstract:
This paper presents an economic model of the harmful error rule in criminal appeals. We test the implications of the model against legal doctrines governing reversible and nonreversible error of criminal convictions and on a sample of more than 1000 criminal defendants who appealed their convictions in the U.S. courts of appeals between 1996 and 1998. Among the more important theoretical and empirical findings of the paper are the following. Intentional prosecutor and judge errors are more likely to be found harmful and lead the appellate court to reverse the defendant's conviction than are inadvertent errors. Prosecutor errors are more likely to be forgiven than judge errors, in part because judge errors are likely to have greater influence on jurors. Errors are less likely to be harmful when defendants face a higher error-free probability of conviction. Finally, appellate courts are more likely to publish an opinion when they are reversing the lower court.


LSN - Criminal Law and Procedure, Empirical Studies, Litigation and Procedure

Abstract:
This paper presents an economic model of the harmful error rule in criminal appeals. We test the implications of the model against legal doctrines governing reversible and nonreversible error of criminal convictions and on a sample of more than 1000 criminal defendants who appealed their convictions in the U.S. courts of appeals between 1996 and 1998. Among the more important theoretical and empirical findings of the paper are the following. Intentional prosecutor and judge errors are more likely to be found harmful and lead the appellate court to reverse the defendant's conviction than are inadvertent errors. Prosecutor errors are more likely to be forgiven than judge errors, both because judge errors are likely to have greater influence on jurors and because a judge who has failed to correct a prosecutor's error (even an intentional one) has quite likely also failed to correct an offsetting defense error. Errors are less likely to be harmful when defendants face a higher error-free probability of conviction. Appellate courts are more likely to publish an opinion when they are reversing the lower court since the likelihood that the case presents a difficult issue on which precedent would be helpful is greater when there is disagreement among judges.

Abstract:
This paper presents an economic analysis of the Visual Arts Rights Act of 1990 (VARA) which provides attribution and integrity rights, commonly called moral rights, for defined types of artistic works. The paper shows that these laws may actually harm artists by adding contracting and transaction costs in the art market. For most works, these costs will be trivial because collectors have a strong self-interest in preserving works in good condition. These costs are likely to be significant, however, for works subject to destruction or alteration in the future, such as site-specific works and works installed in buildings, because purchasers will require waivers rather than risk violating the Act. The paper also examines the few cases that have been litigated under VARA. Consistent with the economic model, these cases involve large-scale works by relatively unknown artists that have been destroyed by building projects. Finally, the paper presents an empirical analysis of state moral rights laws. Nine states enacted these laws prior to VARA. These laws had no significant effect on artist earnings but a positive and significant effect on the number of artists living and working in the state.

VARA, copyright, art, moral rights laws

Abstract:
In 1997, the Christie's sale of 20th century art works from the estate of Victor and Sally Ganz netted more than $207 million, a record sum for a single-owner sale of art at auction. The paper presents estimates of the Ganzes' financial returns from investing in art using records the Ganzes' kept on the prices they originally paid for the works sold in 1997 and two earlier auctions in 1986 and 1988. Over the period 1948 to 1997 the Ganzes earned real rates of return ranging from 12 to over 21 percent for works sold at the three auctions. Overall, the Ganzes beat-often by a wide margin-the returns from diversified portfolios of common stocks. The empirical evidence shows that the Ganzes were not only lucky but skillful investors as well. Their financial success did not result from a few lucky purchases. They earned consistently high returns, regularly beating the stock market on works by different artists acquired at different time periods. I also found that buyers were willing to pay a price premium for works from the Ganz collection compared to "identical" works sold by others. For example, buyers paid between 25 and 90 percent more for prints from the Ganz collection than for otherwise identical prints. Whether this premium resulted from Christie's extensive promotion efforts prior to the auction or a kind of celebrity premium attached to their works or a combination of the two, I cannot tell.

Abstract:
Chief Justice John Roberts, and others, have noticed that the lawyer in an oral argument in the Supreme Court who is asked more questions than his opponent is likely to lose the case. This paper provides rigorous statistical tests of that hypothesis and of the related hypothesis that the number of words per question asked, as distinct from just the number of questions asked, also predicts the outcome of the case. We explore the theoretical basis for these hypotheses. Our analysis casts light on competing theories of judicial behavior, which we call the 'legalistic' and the 'realistic.' In the former, the questioning of counsel is a search for truth; in the latter, it is a strategy for influencing colleagues. Our analysis helps to distinguish between these hypotheses by relating questioning practices to the individual Justice’s ideology and to the role of a 'swing' Justice.

Supreme Court, judicial behavior

Abstract:
This paper develops a simple economic model of the demand for and supply of presidential pardons (including commutations and other clemency grants). The model assumes that the number of pardon applications depends on the expected benefits and costs of applying and the number of pardons depends on the president's calculation of his net political benefits from approving an application. This yields an equilibrium number of applications and pardons that can be estimated from time series data over the 1900 to 2005 period. Overall, the regression results support the model. For example, we find that the likelihood of receiving a pardon has a positive effect on applications; and that increases in the number of persons paroled (a substitute for a pardon) and in the time from conviction to pardon (which lowers the benefits of a pardon) reduces the number of applications. We also observe a positive time trend in applications that corresponds to the increase in the number of federal prisoners (and persons released from prison) that make up the pool of potential pardon applicants. With respect to the number of pardons, we find that democratic presidents (who we expect to be less tough on crime) are more likely to grant pardons; that the crime rate has a negative impact on pardons; and that the number of pardons increased during Prohibition and during wartime and postwar periods.

remissions, perogative

Abstract:
An important question in the economic study of enforcement is the appropriate, and the actual, division of responsibilities between public and private enforcers. This question has been brought into sharp focus recently by an article in which Gary Becker and George Stigler advocate the privatization of law enforcement. In the present article, we explore the idea that the area in which private enforcement is in fact clearly preferable to public enforcement on efficiency grounds is more restricted than Becker and Stigler believe; perhaps the existing division of enforcement between the public and private sectors approximates the optimal division. Part I develops an economic model of competitive, profit-maximizing private enforcement. The model predicts the level of enforcement and the number of offenses that would occur in a world of exclusively private enforcement. Part II refines the model to account for the presence of monopoly in the private enforcement industry, different assignments of property rights in legal claims, the effect of taxing private enforcers, nonmonetary penalties, and legal errors - elements ignored in the initial development of the model in Part I. Part III contrasts our model with other economic approaches to the enforcement question. Part IV presents a number of positive implications of the model, relating to the choice between public and private enforcement of criminal versus civil laws, the assignment of exclusive rights to the victims of offenses, the budgets of public agencies, the discretionary nonenforcement of the law, and the legal treatment of blackmail and bribery. The positive implications of the model appear to be consistent with observations of the real world, although the findings in Part IV must be regarded as highly tentative. An appendix discusses the economics of rewards - an important method of compensating private enforcers.

Institutional subscribers to the NBER working paper series, and resident of developing countries may download this paper without additional charge at www.nber.org

Abstract:
We believe that at a deeper level the independent judiciary is not only consistent with, but essential to, the interest-group theory of government. Part I of this paper explains our theory of the independent judiciary. Part II discusses several implications of the theory, relating to administrative regulation, the form of interest-group legislation, the tenure of judges, and constitutional adjudication. The appendix to this paper presents an empirical analysis of judicial independence using data on Acts of Congress that have been held unconstitutional by the Supreme Court.

Abstract:
The use of precedents to create rules of legal obligation has, to our knowledge, received little theoretical or empirical analysis. This paper presents and tests empirically an economic approach to legal precedent that is derived mainly from the analysis of capital formation and investment. We treat the body of legal precedents created by judicial decisions in prior periods as a capital stock that yields a flow of information services which depreciates over time as new conditions arise that were not foreseen by the framers of the existing precedents. New (and replacement) capital is created by investment in the production of precedents.

Abstract:
A classic example of external benefits is the rescue of the person or property of strangers in high transaction cost settings. To illustrate, A sees a flowerpot about to fall on B's (a stranger's) head; if he shouts, B will be saved. A thus has in his power to confer a considerable benefit on B. The standard economic reaction to a situation in which there are substantial potential external benefits and high transaction costs is to propose legal intervention. In the example given, this would mean either giving A a right to a reward or punishing A if he fails to save B. Either method, we show, is costly and may result in misallocative effects. These objections to using the law to internalize the external benefits of rescue would be much less imposing were it not for altruism, a factor ignored in most discussion of externalities. Altruism may be an inexpensive substitute for costly legal methods of internalizing external benefits, though this depends on the degree of altruism, the costs of rescuee, and the benefits to the rescuee. Although the general legal rule is not to reward the rescuer (nor to impose liability), the law recognizes the fragility of altruism and entitles the rescuer to a reward in certain instances. These include rewards to professional rescuers on land (normally a physician) and to rescuers at sea. In both instances the costs of rescue are likely to be sufficiently high to discourage rescue unless the rescuer anticipates compensation.

Abstract:
This paper examines the question whether adjudication can be viewed as a private good, i.e., one whose optimal level will be generated in a free market. Part I focuses on private courts, noting their limitations as institutions for dispute resolution and rule creation but also stressing the important role that the private court, in its various manifestations, has played both historically and today. Part II discusses a recent literature which has argued that the rules generated in the public court system, in areas of the law where the parties to litigation are private individuals or firms and the rules of law are judge-made, are the efficient products of purely private inputs. Our analysis suggests that this literature has overstated the tendency of a common law system to produce efficient rules, although areas can be identified where such a tendency can indeed be predicted on economic grounds. Viewed as a contribution to the emergent literature on the positive economic theory of law, our finding that the public courts do not automatically generate efficient rules is disappointing, since it leaves unexplained the mechanisms by which such rules emerge as they seem to have done in a number of the areas of Anglo-American judge-made law. However, our other major finding, that the practices and law governing private adjudication appear to be strongly influenced by economic considerations and explicable in economic terms, is evidence that economic theory has a major role to play in explaining fundamental features of the legal system.

Abstract:
No abstract is available for this paper.

Abstract:
There is widespread concern that the criminal justice system, particularly in large urban areas, is breaking down under the strain of an increasing demand for its services and inadequate resources. At the center of the system, located between the police and the prisons, are the criminal courts. Statistics on rising crime rates, recidivism, arbitrary sentencing practices, court delay, and prison riots are taken as further evidence that the courts are failing. What has been notably scarcer is systematic empirical research on the criminal court system - research that can contribute to our understanding of the actual workings of the system and enable us to develop policies for improvement. The purpose of this study is to begin to remedy this deficiency by applying the quantitative techniques of economics to an analysis of some important issues in criminal court procedure.

Institutional subscribers to the NBER working paper series, and resident of developing countries may download this paper without additional charge at www.nber.org

Abstract:
This paper analyzes the connection between ideology and voting of judges using a large sample of court of appeals cases decided since 1925 and Supreme Court cases decided since 1937. The ideological classifications of votes (e.g., liberal or conservative) are dependent variables in our empirical analysis and the independent variables include the party of the appointing President, the relative number of Republican and Democratic Senators at the time of the judge‘s confirmation, the appointment year, characteristics of the judge (e.g., gender, race and prior experience), and the ideological make-up of the judges on the court in which the judge sits as measured by the relative number of judges appointed by Republican and Democratic Presidents. We have a number of interesting results, including how a judge‘s voting‘s is affected by the voting of the other judges he serves with. We find a political-polarization effect among Justices appointed by Democratic but not by Republican Presidents; that is, the fewer the judges appointed by Democratic Presidents, the more liberally they vote. With regard to court of appeals judges, we find a conformity effect: if the number of judges appointed by Republican Presidents increases (decreases) relative to the number appointed by Democratic Presidents, all judges in the circuit tend to vote more conservatively (more liberally).

Rational, Judicial, Behavior, Statistical, Supreme Court, Landes, Posner