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Agenda for 16th Class• Admin

– Slide Handout– Lunch Wednesday 12:30-1:30. Meet between rooms 433 and 434– Thank you for electing me PILF Bake Sale judge

• Changes in response to feedback• Review of Cleaner Ski• Information

Assignment for Next Class• King v Burwell (Obama Care case), #129 (pp. 616-29)

• Questions to think about / Writing Assignment for Group 4 – Questions 1-11 on pp. 628-29

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Mid-Semester Feedback• More structure

– Where are we going?– How are topics connected?– Why relevant and important?

• Slow down• More Info about final• Length of assignments

– Please remember that you can get full credit for writing 2 good pages, even if you do not answer all the questions

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Structure of Class• Interpretation

– Statutory Interpretation. Chapter 1 (## 3-12)– Common Law Interpretation. ## 127, #37

• Normative Reasoning– Economic Analysis. Chapter 4– Rights. Chapter 5A,C-E

• Legal Theory– Dworkin/Scalia. Chapter 6 (already covered)– Positivism & Realism. Chapter 2 ##20-23 – Rules & Standards. #126,128

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Exam Info• Probably

– In class• ~12 multiple choice questions• Could finish in 40 minutes, but will have 1-2 hours

– Take home• 1 essay• Could finish in 2 hours, but will have several more hours

• Open book -- Can use any materials, including dictionary and calculator• Multiple choice and Essay will test your ability to apply methods of

interpretation and normative reasoning to new factual/legal situations– Will not test details of cases or other materials have read– Will be like exercises we have done for class

• Warden Grim, Flower, Union Pacific, Cleaner Skies• Cleaner Skies is best indication integrates interpretive and normative

materials– Will give 2-3 more examples of old exams which integrate

normative and interpretive parts of class– Model answer for Cleaner Skies is exam memo and 3 model

answers• Will post other old exams & answers later

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How to Study• Prepare carefully for each class

– Do as many writing assignments as you can• Especially assignments which are old exams

• Review after each class– Make sure you understand all the concepts– Review model answers posted to Portal

• Especially model answers to old exams• Outlining

– Do your own– Other outlines can be model– Other outline can help you check and improve

• In late November / early December– Do additional old exams that I will post

• Write out full answer individually• Discuss and compare answers in group• Discuss and compare to model answers in group

• Review class in early December

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Last Class – Cleaner Skies• Integration of interpretive and normative part of class

– Interpretive – 4 methods of statutory interpretation– Normative – Economic analysis

• Best integration in this problem was purposivist– Weak purpose – to reduce diesel pollution

• Does not explain why construction excluded– Better purpose – to reduce diesel pollution efficiently

• Fits better with statute– Reduction of shipping pollution is efficient: WTP>cost– Reduction of construction pollution is inefficient: WTP<cost

• Is reducing dredging pollution efficient ?– Maybe no: WTP<cost– Maybe yes. WTP may be poor measure of value, because of

wealth effects• Could also have integrated economic analysis into pragmatic interpretation

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Integration of Interpretive & Normative Reasoning• Statutory interpretation

– Textualist. • Text of statute may require or suggest economic analysis or cost-

benefit analysis• The EPA shall issue regulations of diesel emissions using cost-

benefit analysis• The EPA shall issues reasonable regulations of diesel emissions

– Intentionalist• Legislators might have mentioned discussed economic analysis,

efficiency, or cost-benefit analysis during debates– Purposivist

• See Cleaner Skies, National Society– Pragmatic

• Always relevant– Also consider other normative frameworks that will start discussing next

weak• Case for next class provides another example of integration of interpretive

and normative reasoning– Statutory interpretation and economics of information

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Integration of Interpretive & Normative Reasoning• Common law interpretation

– See Posner opinion in Sarnoff• Does NY law forbid enforcement of conditions not to compete• NY precedents are murky, so Posner does economic analysis to

decide whether conditions not to compete should be enforceable• Consistent with Posner’s view that implicit logic of common law is

economic efficiency– More generally, economic analysis may be good way of finding principle

which fits precedents and provides guidance for future cases• Or maybe not (see Dworkin)

– When law is unclear, judges often turn to favored normative framework• For some judges, that is economic analysis

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Information• Efficiency of competition assumes perfect information• Imperfect information is a transactions cost

– Efficient allocation of resources may be impaired by imperfect information

• Imperfect information (like externalities) is ubiquitous– When law school and student choose each other

• Law school doesn’t know how smart or hardworking students are• Students don’t know how good school is• Law school tries to gather info – admissions process• Students try to gather info – US News, campus visits, blogs• But information gathering is expensive and imperfect

– When promisor breaches• May not know how much harm will cause promisee• May not know whether judge will find breach or not• Judge or jury may not know whether breach intentional or accidental• Judge or jury may not know whether promisee could have mitigated

damages• Discovery and trial try to get answers to these questions, but

expensive and not completely accurate

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The Market & Information• Market corrects or mitigates some informational

problems– Product markets

• Consumer Reports, Angie’s List, Amazon consumer reviews, EBay ratings, etc.

– Insurance• Medical exam before life insurance

– Loan markets• Credit ratings, loan applications

– Schools (see previous slide)

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Information & the Law• Much of law is concerned with information

– Litigation is principally about production of information– Much consumer regulation is forced disclosure of information

• Nutritional labeling• Securities Law

– Prospectus before initial offering– Quarterly reporting of profits

• MPG for cars• APR for loans and savings instruments

– Contract law• Limitation of damages to those which are “forseeable” forces

promisee with high damages to disclose (Hadley v Baxendale)

– Product liability law makes price of product reflect producer’s estimate of expected liability

• Expected liability likely (otherwise) unknown to consumer

– Title recordation in Property law

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Moral Hazard• Insurance context

– Insured has suboptimal incentive to take precautions• If insured against fire, may not install sprinklers or be as careful with fireplace• If have health insurance, may not be as careful to eat right or exercise• If have health insurance, may request treatments that unlikely to be effective

– Tort law is form of insurance• Product liability may make consumers less careful• Duty to rescue may make parents (and others) less careful

– Government programs are a form of insurance• Welfare may dull incentive to work• Income tax may dull incentives to work

• Contracts generally– After contract entered into, party may have incentive to act in way that is

detrimental to other party• Employee may not work hard• Lawyer paid by hour may spend too much time on project• Renter may not take good care of apartment

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Responses to Moral Hazard• Gather information

– Moral hazard is result of fact that insurer does not know how insured is behaving• If insurer knew, then could condition insurance on insured behaving properly

– Insurer’s “monitor” insured• Fire insurer may inspect home for smoke detectors, brush clearance, roof

materials, etc• Government monitors welfare recipients, requires job search, etc.

• Deny insurance if precautions not taken– Comparative/contributory negligence in tort– Insurance exclusion for arson– Fire employees if shirk

• Build incentive into contract– Insurance seldom covers full cost of hazard

• So insured has some incentive to take precaution– Employer can make pay proportional to output

• Government regulation seldom helpful– Government doesn’t usually have superior information– But sometimes can help

• By using information gathering of criminal law• By threatening larger penalties (e.g. imprisonment)• E.g. imprisonment for securities fraud

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Moral Hazard, Coase Theorem, & Externalities

• Cost of obtaining relevant information is transactions cost– If info could be obtained costlessly, moral hazard

wouldn’t exist– Since info is expensive, inefficiency may result

• Moral Hazard is kind of externality– Insured imposes costs on insurer– Employee imposes costs (or less benefit) on

employer– Sometimes not considered an externality, because

• Insured and insurer are in contractual relationship• Employer and employee in contractual relationship

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Principal-Agent Problem• Many situations where one person (agent)

works for another (principal)– Lawyer works for client– Employee works for employer– Promisor works for promisee

• Problem– How get agent to act in interest of principal– Problem is often moral hazard

• Agent can take actions which adversely affect prinicipal (not work sufficiently hard (shirking), damage equipment, etc.)

Responses to Principal-Agent Problem• Monitoring

– Terminate contract if agent shirks• Performance-based contract

– Pay agent in accordance with some measure of performance• Contingent fee for lawyer

– Plaintiff’s lawyer gets 1/3rd of damages, if prevails• Piece work• Pay CEO in stock or option• Bonuses for good performance evaluations

• Input-based contacts– Hourly fee or wage– Cost-plus construction contracts

• Fixed fee contracts– Salary

• Best contract depends on circumstances– Incentive contract -- if performance easy to measure– Fixed fee – if repeated interactions or agent is very concerned about

reputation– Input based – if cost unpredictable, agent is risk averse, and efficiency

can be monitored

Adverse Selection I• Markets may fail where one side lacks information and thus sets prices

based on average– Thus inducing those who are above average to leave the market (but

price not attractive to them• Classic example: Insurance

– If insurer has imperfect information• Insurance priced at average risk• But person who knows low risk may then decide not to insurer• But that raises average risk of those still buying insurance• Thus raising prices• Causing more people to drop out of insurance market

– Examples• Health insurance• Product liability/warranty, if voluntary

– Those who are careful may opt not to purchase warraty– Thus raising average risk and cost…

Adverse Selection Example I• Suppose 2 people want life insurance

– A is smoker, 10% probability that will die next year• $10,000 expected cost to insurer for $100,000 policy• A is willing to pay $11,000 for insurance

– B is non-smoking marathon-runner• 1% probability that will die next year• $1,000 expected cost to insurer for $100,000 policy• B is willing to pay $2000 for insurance

• If insurer can’t get credible information on smoking and exercise habits– Price for insurance, if both A and B are both buying

insurance must be at least, $5500 (average of $10,000 and $1,000)

– But then insurance is not worthwhile to B

Adverse Selection II• Lemons problem

– Used car purchaser has imperfect information– Willing to pay price that reflects average used car quality– But person who has above average quality used car doesn’t want to sell

at average price, so doesn’t sell– But that lowers average quality and thus price, leading more used car

owners not to sell– Other examples

• Loans for new businesses

Responses to Adverse Selection• Ex ante information gathering

– So can price product in accordance with individual characteristics, rather than market average

– Life insurance – blood pressure and cholestoral screenings, different rates for smokers, etc.

– Health insurance – exclusion of preexisting conditions

– Inspection and certification of used cars

• Warranties• Reputation• Mandatory insurance

– So no one can drop out of market– Health insurance “mandates” / universal coverage

Questions on pp. 254ff• 4. Consider an employment decision. A law firm is considering whether to

offer an associate position to a 2L, and the 2L is deciding whether to accept the offer.

• a) What are the information asymmetries in this potential transaction? What relevant information does the 2L know which the firm does not? What relevant information does the firm know which the 2L does not?

• b) What can the firm do to (partially) overcome the information asymmetry?• c) What can the 2L do to (partially) overcome the information asymmetry?• d) Note that many law firms and lawyers have no written contracts. In such

cases, the law provides default rules. One of those default rules is “employment at will,” which means that the employee can quit at any time, and the employer can fire the employee at any time. How does employment at will help overcome informational asymmetries or at least reduce their adverse affects?

• e) Are there any legal rules which help overcome the informational symmetries?

Questions on pp. 254ff• 5. Consider the way home mortgages are often sold. A bank contracts with

a mortgage broker. A mortgage broker is an independent businessperson, not an employee of the bank. The mortgage broker solicits customers and, when a customer wants a loan, helps the customer fill out the relevant paperwork and sends the paperwork to the bank for approval of the loan.

• a) The contract with the mortgage broker might specify that the mortgage broker gets a fixed salary – perhaps $3000 per month. What problems might occur under such a contract? Would the bank be wise to offer such a contract?

• b) The contract with the mortgage broker might specify that the mortgage broker gets a percentage of the value of all loans approved. For example, the mortgage broker might get 0.5% of the value of each loan, which would be $2500 on a $500,000 loan. What problems might occur under such a contract? Would the bank be wise to offer such a contract?

• c) What macro-economic problems might occur if most loans were negotiated through contacts such as those described in (b)?

• d) Can you think of a better contract between the bank and the mortgage broker?

• e) The relationship between a bank and a mortgage broker presents all three types of asymmetric information problems discussed in readings ##50-51, supra – adverse selection, moral hazard, and principal-agent. Identify which aspects of the relationship present which kinds of problems.

Gilson, Role of Lawyers• Functions of Lawyer

– Litigate– Advise– Draft & negotiate contracts (transactional lawyer)

• Role of Transactional Lawyer– Transaction Cost Engineer

• Reduce transactions costs for benefit of both parties• Solve informational problems• Lawyers often cynically viewed just transactions costs

– But Gilson suggests that function of (good) lawyer is to reduce transactions costs

– Value Creation• Function of (good) lawyer is to “create value”

– i.e. increase the pie– Not just bargaining to get greater share of surplus for client

– Other roles• Regulatory compliance• Getting most for client

Gilson, Corporate Acquisition Agreement • Lawyer as transactions cost engineer

– Lawyer create value (increases pie) by reducing transaction costs, especially informational problems

• Representations and Warranties– Detailed statements of facts concerning the relevant business

• Including accuracy of financial statements, absence of particular liabilities, ownership and condition of key assets, pending litigation.

– Seller liable if turn out to be false– Purpose. Provide credible information that is key to transaction and its

pricing• Earn out provisions

– Part of price depends on performance of business• Part of payment delayed and contingent on how well business does

– Helps parties to agree on deal, even if disagree on profitability of business

– Also gives former owners an incentive to help

Gilson, Corporate Acquisition Agreement II• Covenants and Conditions

– Covenants. Agreement on how owner will conduct business in period between signing of contract and transfer of ownership

– Conditions, if not satisfied, relieve buyer of obligation to purchase

Question on pp. 273ff• 1. Would you characterize the informational problem

in a typical corporate acquisition agreement as primarily an adverse selection, moral hazard, or principal-agent problem?

• 2. Gilson mentions “Convenants and Conditions” as one of the four main components of an acquisition agreement (see p. 258), but he doesn’t say much about them. What kind of informational problem do you think they address? Adverse selection? Moral hazard? Principal-agent?

• 3. Gilson focuses on private, contractual solutions to the informational problems posed by corporate acquisitions. Is there a role for courts, legal rules, and/or legislation?

•