Here are links, citations, and other information for my publications and recent working papers

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Recent Publications

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Antitrust Time Travel: Entry & Potential Competition (with H. Su), 85 Antitrust Law Journal (forthcoming 2023).
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    Forthcoming
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    Abstract
    Entry analysis and potential competition doctrine have much in common. Both draw from predictions about future entry. Both require difficult assessments of entry barriers and incentives. Both are currently a doctrinal mess. This Article offers a clarifying perspective. Instead of separating analysis according to litigation posture (who wins or loses if the argument is proved) why not merge the offensive and defensive implications of potential competition and instead focus attention on the kind of competitive time travel in question? Is the claim about forward time travel (entry will impact future competition)? Or is it about backward time travel (the possibility of future entry is impacting current competition)? Separating analysis in this way reveals analytical flaws and unprincipled asymmetries in current thinking. It also exposes problems and paradoxes that beset all time travel arguments in rule of reason analysis.
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    Market Definition, in 1 Research Handbook on Abuse of Dominance and Monopolization (Pinar Akman, Konstantinos Stylianou, & Or Brook eds., Edward Elgar forthcoming ).
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      ResearchGate
      Abstract
      Monopolization, in the United States, and abuse of dominance, in the European Union, embody different philosophies about how best to police single firm conduct in competition law. Surprisingly, their disagreement ends at market definition. Both doctrines define relevant markets by similar processes and use relevant markets for similar purposes. In some contexts, this type of agreement would be a welcome sight. Here, it reflects a pocket of confusion in each area of law. This chapter describes the confusion of current market definition practices and takes some initial steps toward a more coherent approach.
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      Seven Myths of Market Definition, Antitrust Chronicle (Apr 2022).
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        ResearchGate
        Abstract
        Roughly a year into control of the federal antitrust agencies, President Biden’s antitrust team is turning its attention to policies and enforcement practices. They seem poised to start, as antitrust so often does, with market definition. This is an appropriate target for review but also perilous territory for the administration. Even slight missteps in market definition could spell disaster for broader enforcement objectives. To help policy work start from a solid foundation, this essay identifies seven common myths of market definition and explains how to avoid them.
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        Modular Market Definition, 55 U.C. Davis Law Review 1091 (2021).
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          U.C. Davis L. Rev.
          Westlaw
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          Hein
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          ResearchGate
          Abstract

          Surging interest in antitrust enforcement is exposing, once again, the difficulty of defining relevant markets. Past decades have witnessed the invention of many tests for defining markets, but little progress has been made, or even attempted, at reconciling these different tests. Modern market definition has thus become a confused agglomeration of often conflicting ideas about what relevant markets are and how they should be defined and used. The result—unpredictable and unreliable market boundaries—is an unsure footing for the complicated cases and policy questions now before us.

          This Article responds to the problem of confused market definition with a simple but powerful approach to dealing with multiple tests for defining markets. The basic insight is that different tests scope markets appropriate for serving different needs. Helpful market definition can thus proceed in two steps. First, identify the substantive purposes for which markets are being defined in a particular application. Second, select the test that defines markets most suited to serving those purposes.

          This modular approach to market definition offers several advantages over the current conflation of different tests. First, the modular approach promises greater predictability and reliability in market definition practice. Second, it provides a more legally honest and economically coherent explanation of how the various tests for defining markets fit together. Third, it contributes to ongoing policy discussions, clarifying how relevant markets work in antitrust law and how they can be leveraged to empower more efficient and effective enforcement practices.

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          The Logic of Market Definition (with D. Glasner), 83 Antitrust Law Journal 293 (2020).
            Published At
            Antitrust L.J.
            Westlaw
            Hein
            In Repositories
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            ResearchGate
            Abstract
            Despite all the commentary that the topic has attracted in recent years, confusion still surrounds the proper definition of relevant markets in antitrust law. This article addresses that confusion and attempts to explain the underlying logic of market definition. It does so by way of exclusion: identifying and explaining three common errors in the way that courts and advocates approach the exercise. The first error is what we call the natural market fallacy. This is the mistake of assuming that relevant markets are identifiable constructs and features of competition, rather than the purely conceptual analytic devices that they actually are. The second error is what we call the independent market fallacy. This is the failure to appreciate that relevant markets do not exist independent of any theory of harm but must always be customized to reflect the details of a specific theory of harm. The third error is what we call the single market fallacy. This is the tendency to seek some single, best relevant market, when in reality there will typically be many relevant markets that could be helpfully and appropriately drawn to aid in the analysis of a given case or investigation. In the course of identifying and debunking these fallacies, the article clarifies the appropriate framework for understanding and conducting market definition.
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            Anticompetitive Entrenchment, 68 University of Kansas Law Review 1133 (2020) (symposium).
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              Kansas Law Review
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              ResearchGate
              Abstract
              Mounting public concern with the exercise of market power in concentrated markets demands a response. While modern antitrust emphasizes the prevention of market power over reaction to its exercise, it does contain one indirect but potentially important tool for addressing problems with already existing concentration and market power: the often-overlooked theory of resistance to anticompetitive entrenchment in merger enforcement. This article explores how traditional concerns with the entrenchment of market power might be updated and reintroduced to serve as a vehicle for addressing problematic markets in the modern antitrust framework. The article explains this theory of anticompetitive entrenchment, its limits, and appropriate conditions for its use, in the context of two specific applications: (1) tacit collusion among oligopolists, and (2) the exploitation of market power by a dominant firm in a protected position.
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              Lumps in Antitrust Law, University of Chicago Law Review Online, March 2020 (symposium).
                Published At
                Chicago Law Review Online
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                ResearchGate
                Abstract
                This paper uses the framework of aggregation and separation that Lee Fennell develops in Slices and Lumps to discuss two fundamental questions of antitrust policy. First, how far does the lumpiness of trading partners dictate the limits of antitrust policy? Second, what does antitrust miss under the common practice of lumping price, consumer welfare, and allocative efficiency together? Discussion of these questions is clarified and sharpened by the vocabulary of Fennell’s framework.
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                Antitrust Amorphisms, Antitrust Chronicle (Nov 2019).
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                  CPI (text version)
                  CPI (audio version)
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                  ResearchGate
                  Abstract
                  Advocates of traditional antitrust are increasingly called upon to the defend the existing framework. In doing so they face a challenge: the traditional framework is actually quite difficult to explain. The problem is not that modern antitrust involves a lot of advanced economics—though that is also true. The problem is that foundational antitrust concepts like "harm to competition" and the protection of "consumer welfare" are shockingly ill-defined. This essay highlights several of the dormant ambiguities in these concepts, and thus the obstacles that antitrust has set for itself by failing ever to fully define its terms.
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                  Insincere Evidence (with M. Gilbert), 105 Virginia Law Review 1115 ().
                  • evidence
                  Published At
                  Virginia Law Review
                  Westlaw
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                  ResearchGate
                  Abstract

                  Proving a violation of law is costly. Because of the cost, minor violations of law often go unproven and thus unpunished. To illustrate, almost everyone drives a little faster than the speed limit without getting a ticket. The failure to enforce the law against minor infractions is justifiable from a cost-benefit perspective. The cost of proving a minor violation—for example, a driver broke the speed limit by one mile per hour—outstrips the benefit. But it has the downside of underdeterrence. People drive a little too fast, pollute a little too much, and so on.

                  This paper explores how insincere rules, meaning rules that misstate lawmakers’ preferences, might reduce proof costs and improve enforcement. To demonstrate the argument, suppose lawmakers want drivers to travel no more than 55 mph. A sincere speed limit of 55 mph may cause drivers to go 65 mph, while an insincere speed limit of 45 mph may cause drivers to drop down to, say, 60 mph—closer to lawmakers’ ideal. Insincere rules work by creating insincere evidence. In the driving example, the insincere rule is akin to adding 10 mph to the reading on every radar gun.

                  We distinguish insincere rules from familiar concepts like over-inclusive rules, prophylactic rules, and proxy crimes. We connect insincere rules to burdens of persuasion, showing how they offset each other. Finally, we consider the normative implications of insincere rules for trials, truth, and law enforcement. The logic of insincerity is not confined to speed limits. The conditions necessary for insincerity to work pervade the legal system.

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                  Challenges for Comparative Fact-Finding, 23 International Journal of Evidence & Proof 100 () (symposium).
                  • evidence
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                  Sage Journals
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                  Abstract

                  A paradigm shift is underway in scholarship on legal fact-finding. Recent work points clearly and consistently in the direction that persuasion is the product of purely comparative assessments of factual propositions. This paper comments on the philosophical roots of this shift to a comparative paradigm. It also highlights two serious challenges for the comparative approach: (1) articulation of a coherent test of the beyond-a-reasonable-doubt standard, and (2) definition of what it means for a fact-finder to weigh an unspecific or disjunctive factual claim.

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                  A Likelihood Story: The Theory of Legal Fact-Finding, 90 University of Colorado Law Review 1 ().
                  • evidence
                  Published At
                  Colorado Law Review
                  Westlaw
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                  ResearchGate
                  Abstract

                  Are racial stereotypes a proper basis for legal fact-finding? What about gender stereotypes, sincerely believed by the fact-finder and informed by the fact-finder’s life experience? What about population averages: if people of a certain gender, education level, and past criminal history exhibit a statistically greater incidence of violent behavior than the population overall, is this evidence that a given person within this class did act violently on a particular occasion?

                  The intuitive answer is that none of these feel like proper bases on which fact-finders should be deciding cases. But why not? Nothing in traditional probability or belief-based theories of fact-finding justifies excluding any of these inferences. Maybe intuition goes astray here. Or maybe something about the traditional theory of fact-finding is wrong. Arguing the latter, this article proposes a new theory of fact-finding. In contrast to historic probability and belief-based theories, this paper suggests that idealized fact-finding is an application of likelihood reasoning—the statistical analog of the ancient legal concept of the “weight of evidence” and the formal analog of modern descriptions of legal fact-finding as a process of comparing the relative plausibility of competing factual stories on the evidence.

                  This likelihood theory marks a fundamental change in our understanding of fact-finding, with equally fundamental implications for practice and procedure. The theory simplifies fact-finding, describing every burden of persuasion as an application of the same reasoning principle. It harmonizes recent scholarship on fact-finding, showing that work on the cognitive processes of fact-finders can be formalized in a comprehensive and coherent theory of the ideal fact-finding process. It explains evidentiary mores, justifying hostility to naked statistical evidence, for example. And it provides new insights into the effects of subjective beliefs on fact-finding, showing not only the harm that results from asking fact-finders to decide cases based on their personal beliefs about the facts, but also the way forward in reorienting fact-finding away from prejudice, bias, and subjective beliefs, and toward the firmer ground of the evidence itself.

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                  Published At
                  Virginia Law Review
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                  Abstract

                  Of all constitutional puzzles, the nondelegation principle is one of the most perplexing. How can a constitutional limitation on Congress’s ability to delegate legislative power be reconciled with the huge body of regulatory law that now governs so much of society? Why has the Court remained faithful to its intelligible principle test, validating expansive delegations of lawmaking authority, despite decades of biting criticism from so many camps? This Article suggests that answers to these questions may be hidden in a surprisingly underexplored aspect of the principle. While many papers have considered the constitutional implications of what it means for Congress to delegate legislative power, few have pushed hard on the second part of the concept: what it means for an agency to have legislative power.

                  Using game theory concepts to give meaning to the exercise of legislative power by an agency, this Article argues that nondelegation analysis is actually more complicated than it appears. As a point of basic construction, a delegation only conveys legislative power if it (1) delegates lawmaking authority that is sufficiently legislative in nature, and (2) gives an agency sufficient power over the exercise of that authority. But, again using game theory, this Article shows that an agency’s power to legislate is less certain than it first appears, making satisfaction of this second element a fact question in every case.

                  This more complicated understanding of the nondelegation principle offers three contributions of practical significance. First, it reconciles faithful adherence to existing theories of nondelegation with the possibility of expansive delegations of lawmaking authority. Second, it suggests a sliding-scale interpretation of the Court’s intelligible principle test that helps explain how nondelegation case law may actually respect the objectives of existing theories of nondelegation. Third, it identifies novel factors that should (and perhaps already do) influence judicial analysis of nondelegation challenges.

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                  Experimental Economics and the Law (with C. Holt), in 1 Oxford Handbook of Law and Economics 78 (Francesco Parisi ed., Oxford University Press ).
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                    Oxford
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                    Abstract
                    This chapter surveys the past and future role of experimental economics in legal research and practice. Following a brief explanation of the theory and methodology of experimental economics, the chapter discusses topics in each of three broad application areas: (1) the use of experiments for studying legal institutions such as settlement bargaining and adjudicative functions, (2) the use of experiments to explore legal doctrines, and (3) the use of experiments in litigation and trial strategy. The general theme of this material is a broad and versatile relationship between law and experimental economics.
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                    U. Chicago Press
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                    The U.S. legal system encourages civil litigants to quickly settle their disputes, yet lengthy and expensive delays often precede private settlements. The causes of these delays are uncertain. This paper describes an economic experiment designed to test one popular hypothesis: that asymmetric information might be a contributing cause of observed settlement delays. Experimental results provide strong evidence that asymmetric information can delay settlements, increasing average time-to-settlement by as much as 90% in some treatments. This causal relationship is robustly observed across different bargaining environments. On the other hand, results do not obviously confirm all aspects of the game-theoretic explanation for this relationship. And they suggest that asymmetric information may be only one of several contributing causes of settlement delay.
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                    JCL
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                    Abstract
                    The “structural presumption” is a proposition in antitrust law standing for the typical illegality of mergers that would combine rival firms with large shares of the same market. Courts and commentators are rarely precise in their use of the word “presumption,” and there is foundational confusion about what kind of presumption this proposition actually entails. It could either be a substantive factual inference based on economic theory, or a procedural device for artificially shifting the burden of production at trial. This paper argues that the substantive inference interpretation is the better reading of caselaw and the sounder application of the laws of antitrust and evidence. By instead interpreting the structural presumption as a formal rebuttable presumption, modern merger analysis needlessly complicates the use of market concentration evidence, and may be systematically undervaluing the probative weight of this evidence. At least in this context, a formal presumption likely confers less evidentiary weight than a simple substantive inference.
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                    Published At
                    Oxford
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                    The doctrine of chances remains a divisive rule in the law of evidence. Proponents of the doctrine argue that evidence of multiple unlikely events of a similar nature supports an objective, statistical inference of lack of accident or random chance on a particular occasion. Opponents argue that admissibility is improper because the underlying inference ultimately requires a forbidden form of character or propensity reasoning. Using formal probability modeling and simple numerical examples, this article shows that neither side is correct. Contrary to the claims of its proponents, the doctrine of chances provides no novel or independent theory of relevance. But contrary to the claims of its opponents, the doctrine of chances does not require character or propensity reasoning. An intuitive way to understand these properties is to interpret the doctrine-of-chances inference as a weak form of any inference that could be permissibly drawn if extrinsic events were simply bad acts for which culpability or intent were certain.
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                    Animal Law Review
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                    ResearchGate
                    Abstract
                    In many western countries, rising public concern for the welfare of agricultural animals is reflected in the adoption of direct regulatory standards. The United States has taken a different path, preferring a "market regulation" approach whereby consumers express their preference for agricultural animal welfare through their consumption habits, incentivizing desired welfare practices with dollar bills and obviating the need for direct government regulation. There is, however, little evidence that consumers in the United States actually demand heightened animal welfare practices at market. This article explores the failure of market regulation and the welfare preference paradox posed by consumers who express a strong preference for improved animal welfare in theory, but who do not actually demand heightened animal welfare in practice. I argue that the failure of market regulation is due to the inability of current voluntary and nonstandard animal welfare labeling practices to clearly and credibly disclose to consumers the actual treatment of agricultural animals. As a corollary, effective market regulation of agricultural animal welfare could be empowered simply by improving animal welfare labeling practices.
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                    Water Externalities: Tragedy of the Common Canal (with C. Holt, C. Johnson, and C. Mallow), 78 Southern Economic Journal 1142 ().
                      Published At
                      Wiley
                      EBSCO
                      JSTOR
                      In Repositories
                      Google Scholar
                      Abstract
                      Laboratory experiments are used to investigate alternative solutions to the allocation problem of a common-pool resource with unidirectional flow. The focus is on the comparative economic efficiency of nonbinding communications, bilateral “Coasian” bargaining, allocation by auction, and allocation by exogenous usage fee. All solutions improve allocative efficiency, but communication and bilateral bargaining are not generally as effective as market allocations. An exogenously imposed optimal fee results in the greatest allocative efficiency, closely followed by an auction allocation that determines the usage fee endogenously.
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                      An Experimental Study of Settlement Delay in Pretrial Bargaining with Asymmetric Information Dissertation: University of Virginia (advisors C. Holt and J. Pepper), UMI Pub. No. 3501713 ().
                        Published Version
                        ProQuest
                        Abstract

                        In the United States legal system, tort disputes often exhibit protracted delay between injury and settlement. That is, parties to a dispute tend to agree on settlement conditions only after engaging in lengthy legal sparring and negotiation. Resources committed to settlement negotiation are large and economically inefficient. Even small reductions in average settlement delay stand to affect large reductions in socially inefficient spending.

                        This research contributes to the understanding of settlement delay by carefully exploring one popularly advanced hypothesis for the phenomenon: the idea that asymmetric information over the value of a potential trial verdict might help to drive persistent settlement delay. A large-scale laboratory experiment is conducted with payment-incentivized undergraduate and law school subjects. The experiment closely implements a popular model of settlement delay in which litigants attempt to negotiate settlement under asymmetric information about the value of a potential trial verdict. The experiment is designed to address two broad research questions: (i) can asymmetric information over a potential trial verdict plausibly contribute to the protracted settlement delay observed in the field, and (ii) can specific policies be identified which might mitigate the settlement delay associated with asymmetric information?

                        In response to the first broad research question, experimental results strongly confirm the plausibility of asymmetric information contributing to settlement delay. Starting from a baseline of symmetric information, settlement delay in the laboratory is increased by as much as 95% when subjects are exposed to a controlled information asymmetry over the value of the potential trial verdict. This observation is found strongly robust to perturbations in the underlying bargaining environment.

                        In response to the second broad research question, experimental results do not strongly confirm the capacity of reasonable policy changes to affect large reductions in settlement delay. Collected data fail to indicate that any explored reform policy obviously reduces average settlement delay, though estimators are sufficiently imprecise that substantial effects on average delay cannot be ruled out. Settlement delay in the laboratory is responsive to changes in bargaining costs, but does not obviously respond to changes in the distribution of damages available at trial.

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                        Measurement Error in Criminal Justice Data (with J. Pepper and C. Petrie), in Handbook of Quantitative Criminology 353 (A. Piquero and D. Weisburd eds., Springer ).
                          Published At
                          Springer
                          ProQuest
                          In Repositories
                          Google Scholar
                          Abstract
                          While accurate data are critical in understanding crime and assessing criminal justice policy, data on crime and illicit activities are invariably measured with error. In this chapter, we illustrate and evaluate several examples of measurement error in criminal justice data. Errors are evidently pervasive, systematic, frequently related to behaviors and policies of interest, and unlikely to conform to convenient textbook assumptions. Using both convolution and mixing models of the measurement error generating process, we demonstrate the effects of data error on identification and statistical inference. Even small amounts of data error can have considerable consequences. Throughout this chapter, we emphasize the value of auxiliary data and reasonable assumptions in achieving informative inferences, but caution against reliance on strong and untenable assumptions about the error generating process.
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                          Selected Working Papers

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                          This paper surveys the use of nonparametric permutation tests for analyzing experimental data. The permutation approach, which involves randomizing or permuting features of the observed data, is a flexible and convenient way to draw statistical inferences in many common settings. It is particularly valuable when few independent observations are available, as is often the case for controlled experiments in economics and other social sciences. When viewed as a framework, the permutation method constitutes a comprehensive approach to statistical inference. In two-treatment testing, permutation concepts underlie popular rank-based tests, like the Wilcoxon and Mann-Whitney tests. But permutation reasoning is not limited to ordinal contexts. Analogous tests are easily constructed for the permutation of continuous measurements, and we argue that these non-ranked alternatives should often be preferred when working with continuous data. Permutation tests can also be used with multiple treatments, with ordered hypothesized effects, and with complex data structures, such as hypothesis testing in the presence of nuisance variables. Drawing examples from the experimental literature, this paper illustrates how permutation testing solves common data analysis challenges. Our aim is to help experimenters move beyond the handful of overused tests in play today, and to show how permutation testing constitutes a general framework for conducting statistical inference with experimental data.
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                          Abstract
                          Economic models of bargaining processes are used as a framework for studying some of the details and complexities inherent in legal bargaining. The presentation begins with a review of the abstract concept of bargaining and the importance of bargaining in both legal theory and practice. Simple examples then track two basic models of bargaining through a wide range of economic research, combining non-technical presentations of simple axiomatic and structural theories of bargaining, empirical data on bargaining behavior, and approachable overviews of behavioral and focal-point theories of bargaining. By way of conclusion, brief commentary is provided on the application of an economic approach to bargaining to the practice of settlement negotiation and the contract theory of unequal bargaining power.