Steven Shavell

"Abstract: When would an individual expect that adherence to the law would advance the social good? This time-honored question is not only of theoretical interest; it also holds practical importance to the degree that individuals wish to further social well-being. In the stylized model on which I focus, an individual's knowledge of factors relevant to social welfare is inferior to that of lawmakers in some respects and is superior in others. Thus, in assessing whether obeying a legal rule would promote social welfare, an individual must take into rational account not only that the rule will impound certain superior information of lawmakers, but also that the rule will often fail to reflect his or her private information. A second issue that an individual must consider in deciding whether following the law would be socially desirable is a compliance externality: the potential influence of the witnessing of his or her compliance behavior on the compliance behavior of observers. The conclusions from the model of socially desirable conformance to the law are interpreted, including their implications for the moral obligation to obey the law"--John M. Olin Center for Law, Economics, and Business web site.

A response to Howard Chang's article, A liberal theory of social welfare : fairness, utility, and the Pareto principle. (Yale Law Journal, vol. 110, no. 2 (Nov. 2000)).

"The socially desirable design of the appeals process is analyzed assuming that it may involve either an initial discretionary review proceeding - under which the appeals court would decide whether to hear an appeal - or else a direct appeal. Using a stylized model, I explain that the appeals process should not be employed when the appellant's initial likelihood of success falls below a threshold, that discretionary review should be used when the likelihood of success lies in a mid-range, and that direct appeal should be sought when this likelihood is high. Further, I emphasize that appellants should often be able to choose between discretionary review and direct appeal, notably because appellants may beneficially elect discretionary review to save themselves (and the judicial system) expense. This suggests the desirability of a major reform of our appeals process: appellants should be granted the right of discretionary review along with the right that they now possess of direct appeal at the first level of appeals."--John M. Olin Center for Law, Economics, and Business web site.

"This article develops the point that the problems associated with contractual holdup may justify legal intervention in theory, and the article relates this conclusion to legal intervention in practice. Contractual holdup is considered for both fresh contracts and for modifications of contracts. The law can in principle alleviate the incentive and risk-bearing problems due to holdup in two ways. One approach is for the law simply to void agreements made in certain circumstances, since that will remove the prospect of profit from holdup. This policy may be desirable when the events that permit holdup are engineered, for these events would not have been instigated if they would not have resulted in enforceable contracts. When situations of need are not engineered (bad weather puts a ship in jeopardy), flat voiding of contracts is undesirable, since contracts for aid in situations of need (to tow a ship) are often socially beneficial. In these circumstances, the policy of controlling the contract price is preferable, as that policy can reduce the problems of holdup but still allow contracts to be made. Both types of legal intervention in contracts and their modifications -- voiding without regard to price and control of price -- are used by courts to counter problems of pronounced holdup. Also, various price control regulations appear to serve the same objective, at least in part, for instance maximum price ordinances for car towing services, emergency price regulations, and the historically important rule of laesio enormis of the Middle Ages"--National Bureau of Economic Research web site.

"The appeals process -- whereby litigants can have decisions of adjudicators reviewed by a higher authority -- is a general feature of formal legal systems (and of many private decisionmaking procedures). It leads to the making of better decisions, because it constitutes a threat to adjudicators whose decisions would deviate too much from socially desirable ones. Further, it yields this benefit without absorbing resources to the extent that adjudicators can anticipate when appeals would occur and would thus make decisions to forestall the actual occurrence of appeals"--National Bureau of Economic Research web site.

"Abstract: Taxation and liability are compared here as means of controlling harmful externalities. It is emphasized that liability has an advantage over taxation: inefficiency of incentives arises under taxation when, as would be typical, it would be impractical for a tax to reflect all variables that significantly affect expected harm, whereas efficiency of incentives under liability does not require the state to determine expected harm -- it requires only that injurers pay for harm that occurs. However, taxation enjoys an advantage over liability: incentives under liability are diluted to the degree that injurers might escape suit. The optimal joint use of taxation and liability is also examined, and it is shown that liability should be employed fully because liability creates more efficient incentives than taxation; a tax should be used only to take up the slack due to thepossibility that suit for harm would not be brought"--John M. Olin Center for Law, Economics, and Business web site.

"We explain in this Article that the benefits of product liability may well be outweighed by its costs in a wide range of circumstances. One benefit is that the threat of liability may induce firms to improve product safety. However, this benefit is limited: even in the absence of product liability, firms would often be motivated by market forces to enhance product safety because their sales are likely to fall if their products harm consumers; moreover, their products must frequently conform to safety regulations. Consequently, product liability might not be expected to exert a significant additional influence on product safety ; and the available empirical evidence suggests that such liability does not in fact have a measurable effect on the frequency of product accidents. A second benefit of product liability is that it causes product prices to increase to reflect the riskiness of products and thereby may improve consumer purchase decisions. But this benefit also involves a detriment, because product prices may rise excessively and undesirably chill purchases. A third benefit of product liability is that it compensates victims of product-related accidents for their losses. Yet this benefit is only partial, for accident victims are already often compensated by their insurers for some or all of their losses. Potentially offsetting the benefits of product liability are its costs, which are great. To transfer a dollar to a victim of a product accident requires more than a dollar on average in legal expenses. Given the limited benefits and the high costs of product liability, we conclude that it may be socially undesirable — especially for widely sold products, with respect to which market forces and regulation are relatively strong. This judgment is in tension both with the broad social endorsement of product liability and with proposals for its reform, which generally do not question its existence. Our more critical assessment of product liability stems from the fact that we engage in an analysis of its benefits and costs, whereas neither the proponents of product liability nor its reformers undertake to do so"--John M. Olin Center for Law, Economics, and Business web site.

"Abstract: The conventional rationale for copyright of written works, that copyright is needed to foster their creation, is seemingly of limited applicability to the academic domain. For in a world without copyright of academic writing, academics would still benefit from publishing in the major way that they do now, namely, from gaining scholarly esteem. Yet publishers would presumably have to impose fees on authors, because publishers would no longer be able to profit from reader charges. If these author publication fees would actually be borne by academics, their incentives to publish would be reduced. But if the publication fees would usually be paid by universities or grantors, the motive of academics to publish would be unlikely to decrease (and could actually increase) -- suggesting that ending academic copyright would be socially desirable in view of the broad benefits of a copyright-free world. If so, the demise of academic copyright should probably be achieved by a change in law, for the "open access" movement that effectively seeks this objective without modification of the law faces fundamental difficulties"--John M. Olin Center for Law, Economics, and Business web site.