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Smith, Henry

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Henry

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Smith, Henry
Author's Publications: search.filters.isAuthorOfPublication.542cdd03-8618-4d80-be6e-28341fb8ed7f

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Now showing 1 - 10 of 23
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    The Nature of Coasean Property
    (Springer Science + Business Media, 2012) Lee, Brian Angelo; Smith, Henry
    The Coase Theorem is widely regarded as pointing to the importance of positive transaction costs for the analysis of economic institutions. Various interpretations of the Coase Theorem regard transaction costs as some set of impediments to contracting, or more broadly, as the costs of providing institutional solutions to conflicts over resource use. The abstract nature of the Coasean hypothetical tends to promote an abstract notion of property as a thin entitlement: a right in a designated person to take certain actions or derive value from a set of resource attributes. On this view, property is like a collection of tiny contracts. The property rights furnished by actual property law are much more coarse grained than this, and property is correspondingly “incomplete” for transaction costs reasons. Property and contract are substitutes in some situations, but they often are not interchangeable—because of Coasean transaction costs.
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    Institutions and Indirectness in Intellectual Property
    (University of Pennsylvania, 2009) Smith, Henry
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    An Economic Analysis of Civil versus Common Law Property
    (2012) Chang, Yun-chien; Smith, Henry
    The article presents an analysis of civil law property and common law property. It mentions that the civil law system emphasizes on ownership and affects leaseholds whereas common law emphasizes on the estate system. The article identifies fault lines and offers an explanation of transaction cost for common and civil law. It highlights the delineating property rights of civil and common property laws and states that the civil law starts with ownership and common laws starts with feudalism.
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    Experimental analysis of the effect of standards on compliance and performance
    (Wiley-Blackwell, 2017) Boussalis, Constantine; Feldman, Yuval; Smith, Henry
    Laws can be written along a spectrum of specificity, ranging from vague standards to more detailed rules with particular examples. Behavioral and legal scholarship each present conflicting views about the optimal degree of specificity with which laws should be designed. From a behavioral standpoint, specificity is important to help people understand their goals and use their cognitive resources in a focused manner. At the same time, ambiguity in the law can even encourage good people to engage in creative interpretations of legal requirements, allowing them to justify unethical behavior, with limited awareness of the meaning of that behavior. By contrast, theories of crowding out, trust, and cooperation suggest that specificity can create resentment and lead to under-compliance and under-performance. These conflicting views about the effects of specificity serve as the background for this experimental project. This paper studies the effects of specificity on behavior in response to a directive that shares important features with the law. First, we examine the effect of specificity on compliance (following a directive) versus performance (beyond a minimum threshold). Second, we compare the controlling, limiting effects of specificity with its instructive, informative effects by comparing the interaction between specificity and monitoring with the interaction between specificity and good faith. We hypothesized that the combination of specificity and monitoring enhances the effect of specificity on compliance but harms performance and trust, whereas the combination of specificity and good faith enhances both the informative goal-setting aspects of specificity and people’s sense of commitment. The study employs an experimental design in which subjects edit a document after being exposed to detailed (vague) instructions, with (without) a reference to good faith, and with (without) monitoring (through sanctioning). The assignments were designed in such a way that people could engage in various levels of editing (both required and not required, reasonable and more than reasonable), allowing us to measure distinctly both compliance and performance. Our results suggest that when participants require information and guidance, as in the case of editing a document, specificity increases performance even beyond what is required relative to a vague standard condition.
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    Rose's Human Nature of Property
    (College of William and Mary, 2011) Smith, Henry
    Many social theories claim to have the human being at their center. That has been more a matter of theory than practice in many of those theories. But in the case of Carol Rose’s scholarship on property it could not be more true. In many of her works, Carol develops sophisticated theories about property by focusing in on characters. While they are sometimes humorous and colorful, the characters capture something important about human nature, and Carol, like an older tradition that we could learn a lot from, explores property through the lens of human nature. In it she finds many twists and turns. I will focus on how the characters of the ninny and the scoundrel call for crystals and mud1—bright line rules and vague standards, yes, but quite a bit more than that. In Carol’s view a variety of the tragedy of the commons with crystals and mud leads to endless cycling between crystals and mud.2 At the end I will argue that human nature may also lead to a sort of equilibrium in the law, an equilibrium we could associate with the traditions of law versus equity. But for that to occur we do need some significant degree of moral consensus, upon which we can ground our equitable interventions. This need for moral consensus takes us back to Carol’s insights about human nature and to her humanistic bourgeois view of property based on narrative. Carol points out that famous accounts of property from Locke and Blackstone to Demsetz all involve a view—or views—of human nature.3 All of them ground a picture of property in self-interest, possible enlightened self-interest, but then import covertly a more cooperative or even altruistic aspect of people when it comes time to set up the property system.4 A system of private property requires collective action, and a world of narrowly rational utility maximizers—a character Carol once called “RUM” with, I think, the British meaning of “odd” in mind5—would have a difficult time getting the system off the ground. 1 Carol M. Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577, 577–78, 587 (1988) [hereinafter Rose, Crystals and Mud] (describing the “characters” who muck up bright line rules to include “ninnies, hard-luck cases, and the occasional scoundrels who take advantage of them”). 2 Id. at 595–604. 3 Carol M. Rose, Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory, 2 YALE J.L. & HUMAN. 37, 38–39 (1990) [hereinafter Rose, Property as Storytelling]. 4 Id. at 38–40. 5 Carol M. Rose, “Enough, and as Good” of What?, 81 NW. U. L. REV. 417, 417–22 (1987) (introducing the fictional character “Rational Utility Maximizer,” or “RUM”).
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    Modularity and Morality in the Law of Torts
    (2011) Smith, Henry
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    What Happened to Property in Law and Economics?
    (The Yale Law Journal Company, Inc., 2001) Merrill, Thomas; Smith, Henry
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    Intermediate Filing in Household Taxation
    (1998) Smith, Henry
    This article explores an alternative filing system between joint and individual filing, here termed "intermediate filing." Under such a system, instead of allowing couples to "split" their income as joint filers or forcing them to file as individuals, intermediate filing presents couples with a choice of individual filing as a default or fractional splitting. The ratio of the split would govern both tax treatment and property division (broadly defined) on divorce. The article shows that such a system carries with it various advantages in terms of equity, efficiency, and simplicity. In particular, the article analyzes the impact of the choice of intermediate versus joint versus individual filing on the tax treatment of nonmarket labor and the process of marriage formation. The analysis of intermediate filing also leads to a thought experiment on the role that sharing plays in the taxation of married couples and of multiple-taxpayer groups more generally.
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    Property as the Law of Things
    (Harvard University, Harvard Law School, 2012) Smith, Henry
    The New Private Law takes seriously the need for baselines in general and the traditional ones furnished by the law in particular. One such baseline is the “things” of property. The bundle of rights picture popularized by the Legal Realists downplayed things and promoted the expectation that features of property are detachable and tailorable without limit. The bundle picture captures too much to be a theory. By contrast, the information cost, or architectural, theory proposed here captures how the features of property work together to achieve property’s purposes. Drawing on Herbert Simon’s notions of nearly decomposable systems and modularity, the article shows how property employs a thing-based exclusion-governance architecture to manage complexity of the interactions between legal actors. Modular property first breaks this system of interactions into components, and this begins with defining the modular things of property. Property then specifies the interface between the modular components of property through governance strategies that make more direct reference to uses and purposes, as in the law of nuisance, covenants, and zoning. In contrast to the bundle of rights picture, the modular theory captures how a great number of features of property – ranging from in-rem-ness, the right to exclude, and the residual claim, through alienability, persistence, and compatibility, and beyond to deep aspects like recursiveness, scalability, and resilience – follow from the modular architecture. The Article then shows how the information cost theory helps explain some puzzling phenomena such as the pedis possessio in mining law, fencing in and fencing out, the unit rule in eminent domain, and the intersection of state action and the enforcement of covenants. The Article concludes with some implications of property as a law of modular things for the architecture of private law.