Research

My research is focused on what I call “legal design”:  thinking about the way rule systems work in human societies, what makes them work or work better, and how to build legal infrastructure that is better adapted to a global complex economy.  My book, Rules for a Flat World:  Why Humans Invented Law and How to Reinvent It for a Complex Global Economy (2017–available at Amazon and Google) pulls together a lot of this work in a way that I hope is accessible to people who don’t usually spend a lot of time thinking about law.  The papers listed below are academic publications that range across topics in the theory of law, legal markets, legal innovation, access to justice, and the role of contracts in economic relationships.

You can find my papers at BEPress  or SSRN

Publications

2016       “Scaffolding: Using Formal Contracts to Build Informal Relations to Support Innovation.” (with Iva Bozovic) Forthcoming, Wisconsin Law Review

2016       “The Problem of Social Order: What Should We Count as Law?” Forthcoming, Journal of Law and Social Inquiry

2016       “Is Rule of Law an Equilibrium Without Private Ordering?” (with Barry Weingast) Forthcoming, NOMOS

2016       Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy Oxford University Press

2016       “How to Regulate Legal Services to Promote Access, Innovation, and the Quality of Lawyering.” (with Deborah Rhode). Hastings Law Journal Vol 67, pp. 1191-1223.

2016       “Life in the Law-Thick World: The Legal Resource Landscape for Ordinary Americans.” (with Jamie Heine). In S. Estreicher and J Radice (eds.) Beyond Elite Law: Access to Civil Justice in America (Cambridge: Cambridge University Press).

2015       “Building Legal Order in Ancient Athens.” (with Federica Carugati and Barry Weingast) Journal of Legal Analysis Vol. 7, pp. 291-324.

2014       “Microfoundations of the Rule of Law.” (with Barry Weingast) Annual Review of Political Science Vol. 17, pp. 21-42.

2014       “Constitutions as Coordinating Devices.” (with Barry Weingast) S. Galiani and I. Sened (eds.) Institutions, Property Rights, and Economic Growth: The Legacy of Douglass North. (Cambridge: Cambridge University Press).

2014       “Innovating to Improve Access: Changing the Way Courts Regulate Legal Markets.” Daedalus Vol 143, pp. 83-95.

2014       “The Cost of Law: Promoting Access to Justice through the (Un)Corporate Practice of Law.” International Review of Law and Economics Vol 38, pp. 43-63.

2013       “Review of The Economics of International Law by Eric Posner and Alan Sykes.” Journal of Economic Literature Vol. 51, pp. 897-900.

2013       “Democracy, Courts and the Information Order.” (with Dan Ryan) European Journal of Sociology Vol 54, pp. 67-95.

2013       “Law without the State: Legal Attributes and the Coordination of Decentralized Collective Punishment.” (with Barry Weingast) Journal of Law and Courts Vol. 1, pp. 3-34.

2012       “Attorney-Client Confidentiality.” (with Shmuel Leshem) In C. Sanchirico (ed.) Encyclopedia of Law and Economics (2nd Ed.), Vol. 8: Procedural Law and Economics (Northhampton, MA: Edward Elgar Publishing)

2012       “Rational Reasonableness: Toward a Positive Theory of Public Reason.” (with Stephen Macedo) The Law & Ethics of Human Rights Vol 6, pp. 7-46. [With comment by Nir Eyal “Grounding Public Reason in Rationality: The Conditionally-Compassionate Medical Student, and Other Challenges.” The Law & Ethics of Human Rights Vol 6, pp. 48-68.]

2012       “What is Law? A Coordination Model of the Characteristics of Legal Order.” (with Barry Weingast) Journal of Legal Analysis Vol 4, pp. 471-514.

2012       “Legal Infrastructure and the New Economy.” I/S: A Journal of Law and Policy for the Information Society Vol 8, pp. 1-59. [With comments and reply.]

2011       “The Dynamic Quality of Law: Judicial Incentives, Legal Human Capital and the Adaptation of Law.” Journal of Economic Behavior and Organization Vol. 79, pp. 80-94.

2011       “Equipping the Garage Guys in Law.” Maryland Law Review Vol 70, pp. 484-498.

2011       Rules for Growth: Promoting Innovation and Growth Through Legal Reform (with R. Litan, et al: The Kauffman Foundation Task Force on Law, Innovation and Growth) Ewing Marion Kauffman Foundation.

2011       “Producing Law for Innovation.” In R. Litan, et al. (eds.) Rules for Growth

2010       “Higher Demand, Lower Supply? A Comparative Assessment of the Legal Resource Landscape for Ordinary Americans.” Fordham Urban Law Journal Vol 37, pp. 129-156.

2009       “The Public and the Private in the Provision of Law for Global Transactions.” In Volkmar Gessner (ed.) Contractual Certainty in International Trade: Empirical Studies and Theoretical Debates on Institutional Support for Global Economic Exchanges. Oxford: Hart Publishing.

2009       “The Role of International Law Firms and Multijural Human Capital in the Harmonization of Legal Regimes.” In Albert Breton, Anne Des Ormeaux, Katharina Pistor, and Pierre Salmon, (Eds.), Multijuralism: Manifestations, Causes, and Consequences. Aldershot: Ashgate Publishing)

2009       “Toward a 21st-Century Health Care System: Recommendations for Health Care Reform.” (with Kenneth Arrow, Alan Auerbach, et al.) Annals of Internal Medicine Vol. 150, Issue 7, pp. 493-495

2009       “The Strategy of Methodology: The Virtues of Reductionism for Comparative Law.” (Focus Feature: Response to Comments on “Levers of Legal Design” by Pierre Legrand, Ralf Michaels and John Reitz) University of Toronto Law Journal Vol. LIX, No. 2, pp. 223-235

2008       “Legal Barriers to Innovation: The Growing Economic Cost of Professional Control over Corporate Legal Markets.” Stanford Law Review Vol. 60 pp. 1689-1732; Reprinted in Regulation Vol. 31, No. 3, pp. 14-21

2008       “Framing the Choice between Cash and the Courthouse: Experiences with the 9/11 Victim Compensation Fund.” Law & Society Review Vol. 42, pp. 645-682

2008       “The Levers of Legal Design: Institutional Determinants of the Quality of Law. Journal of Comparative Economics Vol. 36, pp. 43-73

2007       “Don’t Forget the Lawyers: Legal Human Capital and the Role of Lawyers in Supporting the Rule of Law.” DePaul Law Review Vol. 55, pp. 401-421

2006       “On Public versus Private Provision of Corporate Law.” (with Eric Talley) Journal of Law, Economics and Organization Vol. 22, pp. 414-441

2006       “Judging Science: An Essay on the Unscientific Basis of Beliefs about the Impact of Law on Science and the Need for Better Data about Law.” Journal of Law and Policy Vol. 14, pp. 137-163

2005       “Exploring Economic and Democratic Theories of Litigation: Differences between Individual and Organizational Litigants in the Disposition of Federal Civil Cases.” Stanford Law Review Vol. 57, pp. 1275-1327

2005       “The September 11th Victim Compensation Fund: ‘An Unprecedented Experiment in American Democracy.’” The Future of Terrorism Risk Insurance. Defense Research Institute; reprinted in A.V. Sarsimha Rao D&O and Terrorism Insurance Hyderabad, India: ICFAI Press

2005       “Feminism, Fairness and Welfare: An Invitation to Feminist Law and Economics.” Annual Review of Law and Social Science Vol. 1, pp. 285-306. Reprinted in Lee Anne Fennell and Richard H. McAdams (eds.) Fairness in Law and Economics. Northampton, MA: Edward Elgar (2014)

2005       “The Many Legal Institutions that Support Contractual Commitment.” in Claude Menard and Mary Shirley (eds.) Handbook of New Institutional Economics. Netherlands: Kluwer. pp. 175-203

2004       “Where Have All the Trials Gone? Settlements, Non-trial Adjudications and Statistical Artifacts in the Changing Disposition of Federal Civil Cases.” Journal of Empirical Legal Studies Vol. 1, pp. 705-734

2004       “Delivering Legality on the Internet: Developing Principles for the Private Provision of Commercial Law.American Law and Economics Review Vol. 6, pp.154-184

2002       “Privatizing Commercial Law: Lessons from ICANN. Journal of Small and Emerging Business Law Vol. 6, pp. 257-283

2001       “Privatizing Commercial Law.” Regulation Vol. 24, No. 1, pp. 40-45; Reprinted in New Zealand Business Law Quarterly Vol. 7, pp. 287-295

2000      “Changing the Path of the Law.” in Steven J. Burton (ed.), The Path of the Law and Its Influence: The Legacy of Oliver Wendell Holmes Jr. Cambridge: Cambridge University Press. pp.278-284

2000       “The Price of Law: How the Market for Lawyers Distorts the Justice System.” Michigan Law Review Vol. 98, pp. 953-1006

1999       “A Coordination Model of the Sexual Division of Labor.” Journal of Economic Behavior and Organization Vol. 40, pp. 125-153

1999       The Second Wave of Law and Economics (with Megan Richardson). Annandale, Australia: Federation Press

1999       “Of Sovereignty and Contract: Damages for Breach of Contract by Government.” University of Southern California Interdisciplinary Law Journal Vol. 8, pp. 467-537

1998       “An Information-Based Approach to Labeling Biotechnology Consumer Products.” (with David Thomson). Journal of Consumer Policy Vol. 21, pp. 551-578 and in Bartha M. Knoppers and Alan D. Mathios (eds.) Biotechnology and the Consumer. Kluwer Academic Press

1998       “Information-Based Principles for Rethinking Consumer Protection Policy” (with Robert Howse and Michael Trebilcock). Journal of Consumer Policy Vol. 21, pp.131-169

1998       “Law-and-Economics from a Feminist Perspective.” in Peter Newman (ed.) The New Palgrave Dictionary of Economics and the Law, Vol. 2, pp. 455-459.

1998       “Sexual Harassment.” in Peter Newman (ed.) The New Palgrave Dictionary of Economics and the Law Vol. 3, pp. 455-458

1998       “An Expressive Theory of Contract: From Feminist Dilemmas to a Reconceptualization of Rational Choice in Contract Law.University of Pennsylvania Law Review Vol. 146, pp.1235-1285. (Reviewed in Stephen Gardbaum, “Law, Incommensurability and Expression” University of Pennsylvania Law Review, Vol. 146, pp. 1687-1699.)

1998       Review of Margaret Jane Radin Contested Commodities: The Trouble with Trade in Sex, Children, Body Parts and Other Things. University of Toronto Law Journal Vol. 48, pp. 151-155

1997       “An Incomplete Contracting Perspective on Fiduciary Duty.” Canadian Business Law Journal Vol. 28, pp. 141-154

1996       “Rational Women: A Test for Sex-Based Harassment.” California Law Review Vol. 83, pp. 1151-1189

1996       “The Second Wave of Law and Economics: A Review of Michael Trebilcock’s The Limits of Freedom of Contract.” University of Toronto Law Journal Vol. 46, pp. 181-200

1995       “Just Borders: Normative Economics and Immigration Law.” in Warren Schwartz (ed.) Justice in Immigration. Cambridge: Cambridge University Press. pp. 201-211

1995       “The Dilemma of Choice: A Feminist Perspective on The Limits of Freedom of Contract.” Osgoode Hall Law Journal Vol. 33, pp. 337-351

1994       “Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap.” Georgetown Law Journal Vol. 82, pp. 89-107

1994       “Weighing the Value of Vagueness: An Economic Perspective on Precision in the Law.” California Law Review Vol. 82, pp. 541-554

1994       “Judicial Competence and the Interpretation of Incomplete Contracts.” Journal of Legal Studies Vol. 23, pp. 159 – 184

1993       “Not the ‘Radical’ Feminist Critique of Sex and Reason.” (response to Richard Posner, “The Radical Feminist Critique of Sex and Reason”). Connecticut Law Review Vol. 25, pp. 533-546

1992       “The Economics of Copyright: An Historical Perspective.” ASCAP Copyright Law Symposium No. 38, pp. 1-46. Reprinted 2001 in The Economics of Intellectual Property (R. Towse and R.W. Holzhauer, eds.) (awarded National First Prize, 1988 Nathan Burkan Memorial Competition in Copyright Law)

1992       “Incomplete Contracts and Statutes.” International Review of Law and Economics Vol. 12, pp. 257-259

1992       “Flirting with Science: Richard Posner on the Bioeconomics of Sexual Man.” (reviewing Richard Posner Sex and Reason) Harvard Law Review Vol. 106, pp. 479-503

1992       “Bias in the Evolution of Legal Rules.” Georgetown Law Journal Vol. 80, pp. 583-616; excerpted in Kenneth G. Dau-Schmidt and Thomas S. Ulen (eds.) A Law and Economics Anthology (1998) and reprinted in Paul H. Rubin (ed.) The Evolution of Efficient Common Law (2007), pp.249-282

1991       “Credible Spatial Preemption through Franchising.” RAND Journal of Economics Vol. 22, pp. 531-543

1990    “Problematic Relations: Franchising and the Law of Incomplete Contracts.” Stanford Law Review Vol. 42, pp. 927-992; excerpted in Richard Craswell and Alan Schwartz (eds.) Foundations of Contract Law (1994), pp.203-210