Category: Economic Analysis of Law

The Corporate University: Recent Developments

There are many memorable images in Rob Nixon’s book Slow Violence and the Environmentalism of the Poor. Describing the “risk relocation” that is a prime function of the global economy, he offers this vision of Nigeria:

Often, as a community contends with attritional assaults on its ecological networks, it isn’t granted equitable access (or any access at all) to modernity’s basic infrastructural networks . . . . Like those Niger Delta villages where children for decades had no access to electricity for studying at night, while above their communities Shell’s gas flares created toxic nocturnal illumination. Too dark for education, too bright for sleep: modernity’s false dawn. (42)

Exxon is now “a corporation so large and powerful — operating in some 200 nations and territories — that it really has its own foreign policy.” As Steve Coll observes, the US “gives Chad only a few millions dollars a year in aid, while Exxon’s taxes and royalties can be worth as much as $500 million.” Had Exxon directed only 10% of its 2008 profits to political expenditures that year, it would have spent “more than every candidate for President and every candidate for Senate spent at the last election.” In a surprising number of contexts, corporations enjoy far more freedom of action, and secrecy, than states.

Is it any wonder, then, that universities are beginning to shift allegiance, to pursue the agenda of corporate donors instead of public values? Conferences like EduFactory have chronicled the long history of the corporate university; Philip Mirowski has critiqued it in books and edited collections. But it feels like we are on the verge of a phase change, an irreversible acceleration of dynamics once muted and slowed by the ancient cultural identity of the university. Consider these developments:

1) Martha McCluskey has described “economics scholars simultaneously acting as academic experts on the public interest and as sellers of this expertise to the highest private bidder.” She has chronicled a number of troubling aspects of a recent report on fracking issued by the “Shale Resources and Society Institute” (SRSI) of SUNY Buffalo:
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Swindling/Selling, Bribing/Contributing, Extorting/Taxing

At the recent Security and Human Behavior conference, I got into a conversation that highlighted perhaps my favorite legal book ever, Arthur Leff’s “Swindling and Selling.”  Although it is out of print, one measure of its wonderfulness is that used copies sell now for $125.  Then, in my class this week on The Ethics of Washington Lawyering (yes, it’s a fun title), I realized that a key insight from Leff’s book applies to two other areas – what is allowed in campaign finance and what counts as extortion in political office.

Swindling/selling.  The insight I always remember from Leff is to look at the definition of swindling: “Alice sells something to Bob that Bob thinks has value.”  Here is the definition of selling: “Alice sells something to Bob that Bob thinks has value.”  See?  The exchange is identical – Bob hands Alice money.  The difference is sociological (what society values) and economic (can Bob resell the item).  But the structure of the transaction is the same.

Bribing/contributing.  So here is a bribe: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.”  Here is a campaign contribution: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.”  Again, the structure of the transaction is identical.  There are two likely differences: (1) to prove the bribe, the prosecutor has to show that Bob did the later action because of the $10,000; and (2) Alice is probably careful enough to give the money to Bob’s campaign, and not to him personally.

 Extorting/taxing.  Here is the classic political extortion: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.”  Here is how it works when a federal or state government hires someone: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.”  The structure of the transaction is the same – Bob keeps 90% of the salary and gives 10% to Alice.  The difference here?  Like the previous example, the existence of bureaucracy turns the bad thing (bribing or extorting) into the acceptable thing (contributing/taxing).  In the modern government, Alice hires Bob, and Bob sends the payment to the IRS.  The 10% does not go to Alice’s personal use, but the payment on Bob’s side may feel much the same.

For each of these, drawing the legal distinction will be really hard because the structure of the transaction is identical for the lawful thing (selling, contributing, taxing) and for the criminal thing (swindling, bribing, extorting).  Skeptics can see every transaction as the latter, and there is no objective way to prove that the transaction is actually legitimate.

I am wondering, did people know this already?  Are there citations to previous works that explain all of this?  Or, perhaps, is this a simple framework for describing things that sheds some light and merits further discussion?


BRIGHT IDEAS: Welcoming Barbara van Schewick to Discuss Network Non-Discrimination in Practice

On Friday, I learned that Professor Barbara van Schewick would be releasing a ground-breaking white paper entitled Network Neutrality and Quality of Service: What a Non-Discrimination Rule Should Look Like.  Lucky for us, Professor van Schewick agreed to come aboard to talk to us about her white paper, which she released on Monday, see her post here.  Her paper provides the first detailed analysis of the Federal Communications Commissions’ non-discrimination rule and of its implications for network providers’ ability to manage their networks and offer Quality of Service.  Crucially, it proposes a non-discrimination rule that policy makers can, and should, adopt around the world – a rule that the FCC adopted at least in part.

Professor van Schewick is an Associate Professor of Law and Helen L. Crocker Faculty Scholar at Stanford Law School, an Associate Professor (by courtesy) of Electrical Engineering in Stanford University’s Department of Electrical Engineering, and Director of Stanford Law School’s Center for Internet and Society.

This post is a terrific prelude to our online symposium on van Schewick’s book Internet Architecture and Innovation (MIT Press 2010), which is considered the seminal work on the science, economics and policy of network neutrality.  We will be holding our symposium in honor of the book’s paperback release in the early fall.

Thanks so much for coming aboard, and I hope this post gets you excited for our discussion in the fall.

H/T: Marvin Ammori and Elaine Adolfo


Are Hackers Inefficient?

It’s been a very interesting first day at the Security and Human Behavior 2012 conference, chaired by computer security guru Bruce Schneier.

A number of speakers agreed on a basic description of computer security vulnerabilities: (1) there is a long run-up period where vulnerabilities exist but are not exploited; and (2) an exploit is developed and other attackers adopt it rapidly.

That raises the question — are the hackers (collectively) being efficient? The analogy is to the debate in economics about the Efficient Capital Markets Hypothesis (ECMH).  The ECMH essentially says that you cannot expect to get above-normal returns — the market is efficient and you can’t beat the market.  (Since the 2008 crash there has been lots of new doubt about the ECMH among mainstream economists.)

The long period of non-attacks at least raises the possibility that there is “inefficiently low investment in hacking.”  I use “inefficient” here in a special sense — the market is “inefficient” if there are attack strategies for the hackers that are likely to get a high risk-adjusted return.  When there are so many vulnerabilities that are not attacked, the idea is that hackers collectively quite possibly are leaving money on the table.

Of course, a certain level of non-attacks is rational.  Suppose you expect to spend $1000 in time and effort to write an attack, and the expected pay-off is only $700.  Then we rationally don’t see that attack.  But the large number of existing vulnerabilities at least hints that if you spend $1000 then you might expect a big pay-off, such as $5000. After all, the attacks get used a lot once they are publicized, showing a potential pay-off.

I actually wrote about the ECMH and computer security in a 2004 article called “A Model for When Disclosure Helps Security: What is Different About Computer and Network Security?”  But it was a short discussion at the end of a piece that people read for other reasons.  The computer security folks at the conference today hadn’t worked through the comparison and seemed intrigued — I think it might be a fruitful way to think about vulnerabilities and hacker behavior.


Constitutional Limits on the Inter-State Market for Sovereign Territory

On Friday, I asked why there seems to be no inter-governmental market for sovereign territory, at least in the United States. Many of the thoughtful comments to the post suggested important political considerations that might prevent the market from clearing, particularly in the international context. I’ll try to address some of those considerations in my next post, but first I want to focus on the domestic context, and specifically on what limits the Constitution might place on inter-state sales of sovereign territory.


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British Paradoxes

I’ve recently heard Martin Wolf described as one of the world’s preeminent financial journalists (here and here). I was therefore puzzled to read his column characterizing banking as a “high productivity sector[].” In March, 2011, Wolf called the financial sector “locusts” in his Ralph Milliband Lecture. I doubt anyone who listened to the lecture would get the idea that Wolf wanted to praise the implicit governmental backing that is at the heart of the sector’s prosperity as a model of “productivity.” The paradoxes here are enough to make me turn to James Livingston’s discussion of productive capacity in the appendix of his recent book Against Thrift.

On another puzzling note from Britain: it appears that Nassim Taleb has become a key advisor to David Cameron, the Prime Minister. The Tories have seized on Taleb’s withering skepticism as an epistemological foundation for a politics of austerity (that is, since no one has any idea what to do, the safest thing is for government to do nothing but downsize itself). I think Taleb may be poised for a long career as a bipartisan advisor, since Labour could use theories of epistemic modesty to prove that no one knows if government intervention would fail.

The Tories aren’t going whole hog for Taleb, though: they appear singularly uninterested in his proposals to end bonuses at TBTF banks, or to break them up. I strongly suspect that the only parts of the Taleb program that will pass are those that help entrench existing elites—a selective adoption that only exacerbates the fragility he identifies as the critical problem of modern society.


The Market for Sovereign Territory

I’m thrilled to be back at Co-Op, and I look forward to blogging about a few rough ideas that seem to be shaping up as summer research projects. The first of them starts with a story.

Once upon a time, sovereigns bought and sold themselves to one another. Specifically, they purchased sovereign territory. The United States, to take the easiest example, looks the way it does not just because of military conquest, but because of bold real estate deals, including most notably the Adams-Onis Treaty, the Louisiana Purchase, and the Alaska Purchase. Occasionally such sales were tied up with military action, as with the Treaty of Guadalupe Hidalgo, which ended the Mexican-American War, transferred the Mexican Cession, and committed the United States to pay Mexico $15 million “[i]n consideration of the extension acquired.”

Even within the United States, sales of sovereign territory were not unheard of at the time of the Founding. The Constitution’s Enclave Clause specifically refers to the federal government’s power to “purchase[]” and essentially govern “Places” within states. And the states themselves often altered their borders, sometimes for economic reasons. In 1784, for example, North Carolina ceded 29,000,000 acres to the federal government to help pay back the nation’s Revolutionary War debt–a generous but ill-fated gesture that led to the short, unhappy, and largely forgotten life of the State of Franklin.

Somewhere along the way, the market for sovereign territory seems to have dried up, at least as far as I can tell. To be sure, there is still an active market for proprietary interests in public land; the federal government, after all, owns approximately 30% of the nation’s land. But borders–sovereign territory, rather than property–do not seem to be for sale, especially domestically. Why?


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The Eurozone as a Nexus of Contracts

Last last year, I had the pleasure of hearing a senior European policymaker address a gathering on the topic of the future of Europe. It was his considered view that no one could leave the Euro – and that the only path forward was more cowbell integration.  (It was 2011.  We were all so young and naive.)  Partly, this was a matter of facts-on-the-ground economic co-dependence. But he also believed in the strength of the overlapping treaties which would make exit all-but-impossible.  Indeed, I was struck at the time that Europe was imagined – at least in the heads of certain Europeans – as a bit of a sovereign arising from nexus of contracts. The contract terms in the Maastricht Treaty were sovereignty for prosperity.

Obviously, things have changed. But the metaphor looks like a better fit than ever.  It’s just that it looks like it is time for efficient breach of contract.


Stanford Law Review, 64.4 (2012)

Stanford Law Review

Volume 64 • Issue 4 • April 2012

The Tragedy of the Carrots:
Economics and Politics in the Choice of Price Instruments

Brian Galle
64 Stan. L. Rev. 797

“They Saw a Protest”:
Cognitive Illiberalism and the Speech-Conduct Distinction

Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans & Jeffrey J. Rachlinski
64 Stan. L. Rev. 851

Constitutional Design in the Ancient World
Adriaan Lanni & Adrian Vermeule
64 Stan. L. Rev. 907

The Copyright-Innovation Tradeoff:
Property Rules, Liability Rules, and Intentional Infliction of Harm

Dotan Oliar
64 Stan. L. Rev. 951

Testing Three Commonsense Intuitions About Judicial Conduct Commissions
Jonathan Abel
64 Stan. L. Rev. 1021

Derivatives Clearinghouses and Systemic Risk:
A Bankruptcy and Dodd-Frank Analysis

Julia Lees Allen
64 Stan. L. Rev. 1079


The Right to Data Portability (RDP) as a Per Se Anti-tying Rule

Yesterday I gave a presentation on “The Right to Data Portability: Privacy and Antitrust Analysis” at a conference at the George Mason Law School. In an earlier post here, I asked whether the proposed EU right to data portability violates antitrust law.

I think the presentation helped sharpen the antitrust concern.  The presentation first develops the intuition that consumers should want a right to data portability (RDP), which is proposed in Article 18 of the EU Data Protection Regulation.  RDP seems attractive, at least initially, because it might prevent consumers getting locked in to a software platform, and because it advances the existing EU right of access to one’s own data.

Turning to antitrust law, I asked how antitrust law would consider a rule that, say, prohibits an operating system from being integrated with software for a browser.  We saw those facts, of course, in the Microsoft case decided by the DC Circuit over a decade ago.  Plaintiffs asserted an illegal “tying” arrangement between Windows and IE.  The court rejected a per se rule against tying of software, because integration of software can have many benefits and innovation in software relies on developers finding new ways to put things together.  The court instead held that the rule of reason applies.

RDP, however, amounts to a per se rule against tying of software.  Suppose a social network offers a networking service and integrates that with software that has various features for exporting or not exporting data in various formats.  We have the tying product (social network) and the tied product (module for export or not of data).  US antitrust law has rejected a per se rule here.  The EU proposed regulation essentially adopts a per se rule against that sort of tying arrangement.

Modern US and EU antitrust law seek to enhance “consumer welfare.”  If the Microsoft case is correct, then a per se rule of the sort in the Regulation quite plausibly reduces consumer welfare.  There may be other reasons to adopt RDP, as discussed in the slides (and I hope in my future writing).  RDP might advance human rights to access.  It might enhance openness more generally on the Internet.  But it quite possibly reduces consumer welfare, and that deserves careful attention.