Monthly Archives: August 2014

An Empirical Test of Public Choice Theory

Susannah Camic Tahk, Public Choice Theory & Earmarked Taxes, N.Y.U. Tax L. Rev. (forthcoming, 2015), available at SSRN.

In 1980, James Q. Wilson, in The Politics of Regulation, predicted that laws with diffuse costs and concentrated benefits would be relatively easy to enact, but that laws with concentrated costs and diffuse benefits would be relatively hard to enact and, once enacted, hard to maintain. This hypothesis, one of the pillars of public choice theory, has long been asserted without empirical verification. Indeed, in 1994, Donald Green and Ian Shapiro, in Pathologies of Rational Choice Theory, challenged the willingness of theorists to accept such unverified predictions as true: “The discrepancy between the faith that practitioners place in rational choice theory [of which public choice theory is a branch] and its failure to deliver empirically warrants closer inspection of rational choice theorizing as a scientific enterprise.” In Public Choice Theory & Earmarked Taxes, Susannah Camic Tahk provides the first rigorous empirical support for Wilson’s hypothesis.

Her study explores the histories of 1497 state-level earmarked taxes between 1997 and 2005. Earmarked taxes, in general, produce more concentrated benefits than taxes the proceeds of which flow into a state’s general fund. Thus, we would expect earmarked taxes to perform strongly as revenue generators. And, indeed, Tahk finds that the earmarked taxes in her sample raised 58.39% more revenue in 2005 than in 1997—a larger percentage increase than any major federal tax over the same period. Continue reading "An Empirical Test of Public Choice Theory"

Is There Any Disincentive to Deceiving an International Court or Tribunal?

W. Michael Reisman and Christina Parajon Skinner, Fradulent Evidence Before Public International Tribunals: The Dirty Stories of International Law (Cambridge University Press 2014).

Although its publication may come a bit late for our summer reading, Professor Michael Reisman’s Herch Lauterpacht Memorial Lectures have finally (with the co-authorship of Christina Skinner) been released by CUP in the form of a long-awaited 222-page monograph, including a detailed and valuable index. Occasionally the passage of a decade (in this case somewhat more) between the spoken word and its reformulations in print leads to an attenuation of the bluntness of the message. Innocents whose sensibilities with respect to the realities of international adjudication may have been assaulted in the course of those three wintry evenings in Cambridge can now verify that the carryings-on reviewed by the authors are still captured with uncompromising directness, as the subtitle suggests. Given the essentially consensual nature of all international adjudication, this study should be given concerned attention in relation not only to permanent courts but also to arbitrators whose mandate is limited to a single case.

On one view, we really shouldn’t be the least shocked. After all, States repeatedly find it legitimate to put their own soldiers in harm’s way, and presumably think the slaughter of young people from neighboring countries is justified, in order to secure territorial ambitions or to maintain what they think of as their “credibility”. What then is a bit of forged evidence (or even a case entirely based on it) among urbane friends, when used for the same purpose but on the legal battlefield? Continue reading "Is There Any Disincentive to Deceiving an International Court or Tribunal?"

Introducing a Dose of Reality:  Broadening the Perspective of Legal Ethics to Include Social Science Research

Andrew M. Perlman, A Behavioral Theory of Legal Ethics, 90 Ind. L.J. (forthcoming 2014), available at SSRN.

Andy Perlman’s timing couldn’t be better. His new article, A Behavioral Theory of Legal Ethics, comes out just as negative reports of lawyers’ conduct are front page news again, this time as part of the GM story. The company’s lawyers failed to save their business and engineering colleagues from disastrous decisions; in fact, their conduct may have hindered GM from addressing problems systemically. While corporation counsel generally are not the sole check on ethical and competent decision making by company insiders, they certainly are positioned structurally to a framework that is intended to lead to good decision making. But it is not just corporate lawyers who are an issue for ethical conduct, of course. Prosecutors’ failure to reveal exculpatory evidence is a continuing concern, tax lawyers’ gaming the tax shelter system is the topic of a new book by Mitt Regan and Tanina Rostain (Confidence Games), and there are many more examples.

What makes Perlman’s article so timely is not simply the focus on lawyers’ failed judgments but his connection of these to a fundamental problem with the theory underlying legal ethics. This connection provides a larger context for considering ethical failures, moving beyond the particular characteristics of an individual to a general framework that spans lawyers’ individual differences and practice settings. According to Perlman, the theoretical foundation of legal ethics assumes that lawyers “are simultaneously capable of partisanship on behalf of clients while remaining sufficiently objective to ensure that their own conduct is ethical.”(p.6) In fact, the Model Rules of Professional Conduct obligate both partisanship (“in the sense of being aligned with a particular side of a matter” (p.6)) (see, for example, Model Rules of Professional Conduct 1.2) and the ability to consider the consequences of being a partisan in the context of obligations owed to non-clients (see, for example, Model Rules of Professional Conduct, Preamble and Scope (“Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.“). Nevertheless, this tension has not been adequately explored, according to Perlman: “Rarely,” he writes, do legal ethicists “discuss[] … whether this assumption relies on an accurate model of human behavior.” (p.11) It is just such a disconnect that has been identified as underlying the failings of GM’s lawyers according to a New York Times report, which commented that It is not clear whether any of G.M.’s lawyers even recognized there was an issue with how they were representing the company. Nor is it clear that they considered whether they needed to take action to protect it from greater harm.”1 Continue reading "Introducing a Dose of Reality:  Broadening the Perspective of Legal Ethics to Include Social Science Research"