Welcome to the   Yale Law School Legal Scholarship Repository. This repository provides open, global access to the scholarship of Yale Law School faculty and jornals, as well as a selection of unique collections. 

  • Better Rules for Worse Economies: Efficient Legal Rules Over the Business Cycle

    Listokin, Yair; Bassine, Peter (Harvard Business Law Review, 2022)
    Laws and regulations designed for robust economies often perform miserably in deep recessions. In a healthy economy, the best legal rule from an economic perspective maximizes productive capacity. In a recession, however, spending, not productive capacity, limits the size of the economy. Recessions also shift incentives, meaning that inputs to an efficient legal rule change with the business cycle for microeconomic as well as macroeconomic reasons. As a result, legal rules that are efficient in a growing economy often waste resources in recessions. Unemployment insurance (" UT") eligibility rules illustrate the business cycle variability of the efficient legal rule. In robust economies, tight unemployment eligibility rules maximize capacity by encouraging greater labor supply and consequently higher output. In recessions, by contrast, labor supply does not, constrain output. Boosting incentives to find work does not increase employment when jobs, rather than workers, are scarce. Instead, spending (" aggregate demand") is the economy's limiting factor. In recessions, lax unemployment eligibility rules reduce inequality and enhance spending and demand for labor, resulting in higher output. Previous writing in law and macroeconomics prescribes a" countercyclical legal policy" response to variability in the efficient legal rule over the business cycle.'If strict legal rules raise output in ordinary times but permissive rules raise output in recessions, then legal rules should be tight in the growth phase of the business cycle but lax in recessions.'And UT policy sometimes strives for this countercyclical variation. In the CARES Act passed in March 2020 to mitigate COVIID-19's devastating impacts on the economy,
  • Monetary Finance

    Listokin, Yair; Galle, Brian (Tax Law Review, 2021)

    Post, Robert (Hofstra Law Review, 2022)
    The author argues that framing the tension in American law schools as a freedom of expression issue is unhelpful and inaccurate.It suggest that the core issue lies in the pedagogical question of how best to achieve the educational mission of law schools. It also mentions that the principles of free speech, which are essential for democratic self-governance. The author emphasizes the importance of empathy, and creative educational interventions in navigating the challenges faced by law schools.

    Tyler, Tom R; Vardsveen, Trace C (Fordham Urban Law Journal, 2022)
    The public's trust in legal authorities has declined precipitously in recent years, along with a slip in the perceived legitimacy of these authorities. Prosecutors are no exception. Amidst growing debate about their contributions to social His like mass incarceration, prosecutors have faced mounting pressure for greater accountability in their decision-making. Studies onthepolice and courts provide insightinto apossible solution. This body Of work has long shown that a critical framework through which the public views legal authorities is the perceived fairness of their decisionmaking processes, including the provision of explanations these authorities provide for their legal decisions. Thus, accountability, legitimacy, and trust in the eyes of the public rests, in part, on evaluating the fairness of decisionmaking processes, which itself requires the ability to distinguish between legal authorities' use of what the law and the public consider appropriate and inappropriate criteria when making legal decisions. Such evaluations can only occur when the factors that shape these decisions are known. Therefore, transparency in legal authorities' decision-making is core to the project of maintaining and building legitimacy and trust. However, as scholars have observed, prosecutorial decision-making largely occurs within a black box, rendering prosecutors' lack of transparency an obstacle to accountability, and in turn, legitimacy, and trust. In this Essay, we argue that an empirical methodology called "processtracing" can peer inside the black box of prosecutorial decision-making to help identify the factors that shape prosecutors' legal decisions, thus increasing transparency in their decision-making overall. As such, this methodology is helpful in several ways. First, it allows prosecutors to compare whatfactors actually drive their charging decisions to a normative legal framework so that they can adjust their behavior to better adhere to such standards. Second, it enables prosecutors to compare those factors with what the public considers to be important regarding prosecution. And third, it supplies prosecutors with a data-driven way to explain the reasoning behind their decisions to the public. Thus, prosecutors can highlight where their decision-making aligns with the public's views of prosecution to reinforce accountability, legitimacy, and trust. Where alignment with the public is weak, prosecutors can identify the legal factors influencing their decisions to promote accountability, legitimacy, and trust. Looking to the future of prosecution, a process-tracing approach provides a basis for a more nuanced, data-driven way to address prosecutorial reform - that is, reform grounded in the idea of building authentic trust between the public and legal authorities like prosecutors.

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