Commons and Growth: The Essential Role of Open Commons in Market Economies
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We would like to thank the workshop participants at University of Michigan Law School, Northwestern University Law School, Notre Dame Law School, University of Toronto Law School, Stanford Law School, and N.Y.U. School of Law; and conference participants at the 2024 American Law and Economics Association Meeting for many helpful comments and suggestions. We are most grateful to Jonathan Morad Artal (Stanford Class of 2025) and Andrea Lofquist (Michigan Class of 2024) for their valuable research assistance and comments on earlier drafts.
We would like to thank the workshop participants at University of Michigan Law School, Northwestern University Law School, Notre Dame Law School, University of Toronto Law School, Stanford Law School, and N.Y.U. School of Law; and conference participants at the 2024 American Law and Economics Association Meeting for many helpful comments and suggestions. We are most grateful to Jonathan Morad Artal (Stanford Class of 2025) and Andrea Lofquist (Michigan Class of 2024) for their valuable research assistance and comments on earlier drafts.
The flexibility to renegotiate can facilitate long-term contracting and thereby beneficial reliance investments and risk allocation. The prospect of modification can induce contracting parties who expect their bargaining power to improve to enter into contracts earlier and realize the advantages of longer-term relationships. Otherwise, those parties might decline to contract or delay until those opportunities realize, thereby foregoing the benefits of long-term risk allocation or reliance investments. The parties decide not only whether, but also when, to make legally binding commitments to each other. Courts should be more lenient in enforcing contract modifications that, prompted by a shift in bargaining power, may have only a redistributive effect. Parties can design under-compensatory damages that would provide a credible threat of breach ex post to facilitate ex post modification. Requiring good faith in modification (along with damages) can constrain possible holdup and protect reliance investments and risk allocation.
This Article has benefited from workshops at Harvard Law School, Northwestern Pritzker School of Law, the University of Chicago Law School, the University of Virginia School of Law, and Yale Law School, in addition to helpful comments from, and conversations with, Ian Ayres, Will Baude, Curt Bradley, Danielle Citron, Alex Hemmer, Aziz Huq, Alison LaCroix, David Strauss, David Weisbach, and Taisu Zhang. We finally thank the Neubauer Collegium and the University of Chicago Data Science Institute for their generous financial support.
This Article has benefited from workshops at Harvard Law School, Northwestern Pritzker School of Law, the University of Chicago Law School, the University of Virginia School of Law, and Yale Law School, in addition to helpful comments from, and conversations with, Ian Ayres, Will Baude, Curt Bradley, Danielle Citron, Alex Hemmer, Aziz Huq, Alison LaCroix, David Strauss, David Weisbach, and Taisu Zhang. We finally thank the Neubauer Collegium and the University of Chicago Data Science Institute for their generous financial support.
The central concern of structural constitutional law is the organization of governmental power, but power comes in many forms. This Article develops an original account of data’s structural law—the processes, institutional arrangements, transparency rules, and control mechanisms that, we argue, create distinctive structural dynamics for data’s acquisition and appropriation to public projects. Doing so requires us to reconsider how law treats the category of power to which data belongs. Data is an instrument of power. The Constitution facilitates popular control over material forms of power through distinctive strategies, ranging from defaults to accounting mechanisms. Assessing data’s structural ecosystem against that backdrop allows us to both map the structural law of data and provide an initial diagnosis of its deficits. Drawing on our respective fields—law and computer science—we conclude by suggesting legal and technical pathways to asserting greater procedural, institutional, and popular control over the government’s data.
For thoughtful comments, the authors thank Jennifer Arlen, Rick Brooks, Kevin Davis, Brian Galle, Jacob Goldin, and participants in workshops at Columbia Law School, Texas A&M University School of Law, and the American Law and Economics Association Annual Meeting. Ji Young Kim provided excellent research assistance.
For thoughtful comments, the authors thank Jennifer Arlen, Rick Brooks, Kevin Davis, Brian Galle, Jacob Goldin, and participants in workshops at Columbia Law School, Texas A&M University School of Law, and the American Law and Economics Association Annual Meeting. Ji Young Kim provided excellent research assistance.
For thoughtful comments, the authors thank Jennifer Arlen, Rick Brooks, Kevin Davis, Brian Galle, Jacob Goldin, and participants in workshops at Columbia Law School, Texas A&M University School of Law, and the American Law and Economics Association Annual Meeting. Ji Young Kim provided excellent research assistance.
The negative moral emotions of guilt and shame impose real social costs but also create opportunities for policymakers to engender compliance with legal rules in a cost-effective manner. This Essay presents a unified model of guilt and shame that demonstrates how legal policymakers can harness negative moral emotions to increase social welfare. The prospect of guilt and shame can deter individuals from violating moral norms and legal rules, thereby substituting for the expense of state enforcement. But when legal rules and law enforcement fail to induce total compliance, guilt and shame experienced by noncompliers can increase the law’s social costs. The Essay identifies specific circumstances in which rescinding a legal rule will improve social welfare because eliminating the rule reduces the moral costs of noncompliance with the law’s command. It also identifies other instances in which moral costs strengthen the case for enacting legal rules and investing additional resources in enforcement because deterrence reduces the negative emotions experienced by noncompliers.