Courser, Zachary, Eric Helland, and Kenneth P. Miller, eds. Parchment Barriers: Political Polarization and the Limits of Constitutional Order. University Press of Kansas, 2018.
Abstract: The United States has become ever more deeply entrenched in powerful, rival, partisan camps, and its citizens more sharply separated along ideological lines. The authors of this volume, scholars of political science, economics, and law, examine the relation between our present-day polarization and the design of the nation’s Constitution. The provisions of our Constitution are like “parchment barriers”—fragile bulwarks intended to preserve liberty and promote self-government. To be effective, these barriers need to be respected and reinforced by government officials and ordinary citizens, both in law and in custom. This book asks whether today’s partisan polarization is threatening these constitutional provisions and thus our constitutional order. The nation's founders, clearly concerned about political division, designed the Constitution with numerous means for controlling factions, restraining majority rule, and preventing concentrations of power. In chapters that span the major institutions of American government, the authors of Parchment Barriers explore how partisans are pushing the limits of these constitutional restraints to achieve their policy goals and how the forces of majority faction are testing the boundaries the Constitution draws around democratic power. What, for instance, are the dangers of power being concentrated in the executive branch, displaced to the judiciary, or assumed by majority party leaders in Congress? How has partisan polarization affected the nature, size, and power of the administrative state? And why do political parties, rather than working to facilitate the constitutional order as envisioned by James Madison, now chafe against its limits on majority rule? Parchment Barriers considers the implications of polarization for policy, governance, and the health of American democracy.
Helland, Eric. The Role of Health Care Liens in Litigation and Recovery. Research Report. RAND Corporation, 2018.
Abstract: Third-party liens have increasingly become an issue in resolving mass litigation events. Traditionally, liens in the civil justice system represent a claim by a creditor against a plaintiff's (the debtor's) cause of action. In recent years, Medicare and increasingly other forms of health insurance have been given far more extensive lien rights, particularly with regard to the obligations they are owed by defendants' insurers. Because these rights extend beyond the plaintiff to the plaintiff's lawyer and the defendant, these rights have made resolving these liens a requirement of settlement. Not surprisingly, anecdotal evidence suggests that liens are becoming more frequent. This is potentially problematic if liens become sufficiently burdensome or costly that potential litigants do not pursue cases. In this paper the author examines the different types of health care liens and trends in prevalence, as well as how liens have changed the landscape of claim resolution. The author uses a unique dataset on the resolution of a number of mass compensation events, as well as smaller claims. He finds that health care liens are relatively common in his dataset of mass compensation events. Moreover, he finds some evidence that smaller-value liens are more prevalent among Medicare liens, which is consistent with the hypothesis that Medicare liens' more extensive rights relative to other lien types lead the Center for Medicare Services to pursue more and smaller liens than private lien holders.
Helland, Eric, Daniel Klerman, and Alex Yoon-Ho Lee. “Maybe There is No Bias in the Selection of Disputes for Litigation.” Journal of Institutional and Theoretical Economics, vol. 174, no. 1, 2018, pp. 143-170.
Abstract: New York closing-statement data provide unique insight into settlement and selection. The distributions of settlements and adjudicated damages are remarkably similar, and the average settlement is very close to the average judgment. One interpretation is that selection effects may be small or nonexistent. Because existing litigation models all predict selection bias, we develop a simple, no-selection-bias model that is consistent with the data. Nevertheless, we show that the data can also be explained by generalized versions of screening, signaling, and Priest–Klein models.
Helland, Eric and Jonathan Klick. “Medicare Secondary Payer and Settlement Delay.” Journal of Empirical Legal Studies, vol. 15, issue 2, 2018, pp. 356-377.
Abstract: The Medicare Secondary Payer Act of 1980 and its subsequent amendments require that insurers and self‐insured companies report settlements, awards, and judgments that involve a Medicare beneficiary to the Centers for Medicare and Medicaid Services. The parties then may be required to compensate CMS for its conditional payments. In a simple settlement model, this makes settlement less likely. Also, the reporting delays and uncertainty regarding the size of these conditional payments are likely to further frustrate the settlement process. We provide results, using data from a large insurer, showing that, on average, implementation of the MSP reporting amendments led to a delay in the resolution of disputes involving auto accidents of about six months.
Helland, Eric, and Kenneth P. Miller. “Polarization and the Administrative State.” Parchment Barriers: Political Polarization and the Limits of Constitutional Order, edited by Zachary Courser, Eric Helland, and Kenneth P. Miller. University Press of Kansas, 2018, pp. 97-118.
Helland, Eric and Jungmo Yoon. “Multilevel Selection in Litigation Data: A Bounds Approach.” Journal of Institutional and Theoretical Economics, vol. 174, no. 1, 2018, pp. 115-130.
Abstract: The selection effects in litigation data are one of the most daunting problems facing legal researchers. We develop a bounds approach to dealing with multiple levels of selection. We build on work by Helland and Yoon on the English rule's effect on litigation outcomes. The English rule prescribes that the loser of a lawsuit pays the winner's litigation costs. When we take selection due to settlement and to drops into account, the bounds analysis suggests that some conclusions in the works of Hughes and Snyder (1990 and 1995)) may not be robust to the most extreme forms of selection.
Mungan, Murat C., Eric Helland, and Jonathan Klick, editors. Supreme Court Economic Review, Volume 24. The University of Chicago Press, 2018.
Abstract: The Supreme Court Economic Review is a faculty-edited, peer-reviewed, interdisciplinary law and economics series with a particular focus on economic and social science analysis of judicial decision making, institutional analysis of law and legal structures, political economy and public choice issues regarding courts and other decision-makers, and the relationship between legal and political institutions and the institutions of a free society governed by constitutions and the rule of law. Contributors include renowned legal scholars, economists, and policy-makers, and consistently ranks among the most influential journals of law and economics.