cssi/SciSciGPT-SciSciNet huggingface dataset:
Moral Judgments, Expressive Functions, and Bias in Immigration Law

In a lucid and trenchant style characteristic of Professor Hiroshi Motomura’s writing, Immigration Outside the Law offers rich descriptive and prescriptive analyses of three major themes underlying debates about unauthorized migration: the meaning of unlawful presence, state and local involvement in the regulation of unauthorized migration, and the integration of unauthorized migrants into American society. This review advances several ideas that I argue are important to understanding these key themes. In brief, I suggest that a more comprehensive understanding of public debates about unauthorized migration requires examining lay moral judgments about unlawful presence, the expressive functions of immigration law, and the nature of contemporary forms of racial and ethnic bias against Latinos. I discuss how considering these ideas in connection with the book’s key themes and arguments might extend, strengthen, and complicate the book’s analysis and insights.
Non-Stationary Stochastic Optimization

We consider a non-stationary variant of a sequential stochastic optimization problem, in which the underlying cost functions may change along the horizon. We propose a measure, termed variation budget, that controls the extent of said change, and study how restrictions on this budget impact achievable performance. We identify sharp conditions under which it is possible to achieve long-run average optimality and more refined performance measures such as rate optimality that fully characterize the complexity of such problems. In doing so, we also establish a strong connection between two rather disparate strands of literature: (1) adversarial online convex optimization and (2) the more traditional stochastic approximation paradigm (couched in a non-stationary setting). This connection is the key to deriving well-performing policies in the latter, by leveraging structure of optimal policies in the former. Finally, tight bounds on the minimax regret allow us to quantify the “price of non-stationarity,” which ...
Do Community Banks Benefit from Diversification

This paper examines the link between diversification and risk-adjusted performance for small community banks. The results show diversification benefits within broad activity classes, but not between them. Specific business lines are linked with very different ex post outcomes, however, so the mix of activities is also important. In particular, an increased focus on noninterest income-generating activities is associated with declines in risk-adjusted performance, as are commercial and industrial lending and trading. This is a potential dark side of the search to diversify as managers may enter businesses where they have little experience or comparative advantage. A final set of results shows significant differences in the determinants of risk-adjusted performance for community banks relative to larger banks, which suggests that a competitive opportunity remains for community banks.
Equity Premium and Dividend Yield regressions: A lot of noise, little information, confusing results

Suppose that the equity premium is forecasted by dividend yields. Even if such a relationship does exist, there is so much noise in the equity premium that estimation, inference and forecasting cannot be carried out using the faint signal coming from the dividend yields. For analyzing equity/dividend data, it is useful to quantify the signal in a given sample. We define an index of signal strength or information accumulation, by renormalizing the signal to noise ratio. The novelty in our parameterization is that the index of information accumulation explicitly influences rates of convergence and can even lead to inconsistent estimation, inconsistent testing, unreliable R^20s and no out of sample forecasting power. Indeed, we prove that if the signal to noise ratio is close to zero, forecasts from the existing model will not do better than the simple unconditional mean. Thus, it is not surprising that dividend yield forecasts of the equity premium cannot outperform its mean. The analytic framework is general enough to capture most previous econometric findings related to the equity/dividend relationship.
Small Countries and Preferential Trade Agreements "How severe is the innocent bystander problem?"

This paper examines the welfare implications of preferential trade agreements (PTAs) from the perspective of small countries in the context of a multi-country, general equilibrium model. We calibrate our model to represent one relatively small country and two symmetric big countries. We consider two cases. In one case, the small country is an "innocent bystander," that is, it is left out of a PTA between the two large countries. In the second case, the small country signs a PTA with one of the large countries. We simulate the model and calculate consumption allocations, prices, trade volume, and tariffs in these two cases considering three different equilibria: Free Trade (FT), Free Trade Area (FTA), and Customs Union (CU). We find that free trade is the best outcome for the small country. If the large country PTA takes the form of a CU then the cost of being an "innocent bystander" is very large. If it is a FTA then the cost of being an "innocent bystander" is relatively modest. In fact, the small country prefers to be an "innocent bystander" to being a member of a FTA with one of the large countries.
Optimal cash management under uncertainty

We solve an agent's optimization problem of meeting demands for cash over time with cash deposited in bank or invested in stock. The stock pays dividends and uncertain capital gains, and a commission is incurred in buying and selling of stock. We use a stochastic maximum principle to obtain explicitly the optimal transaction policy.
The Curious Case of Corporate Liability Under the Alien Tort Statute: A Flawed System of Judicial Lawmaking

This article challenges the widely held view that the Alien Tort Statute (ATS) imposes liability on private corporations for violations of customary international law. I lay out the modern origins and development of this cause of action in U.S. federal courts and argue that doctrine rests on shaky, indeed illusory, analytical and jurisprudential foundations. Despite the absence of a well defined norm of customary international law that imposed liability upon private corporations, courts, when they even considered the validity of the claims, built a consensus around the fact that no norm existed forbidding the imposition of liability on private corporations. This doctrinal approach was particularly questionable in light of the Supreme Court’s position that recognition of causes of action under the ATS be limited to situations involving violations of norms that are specific, universal, and obligatory. Finally, I argue that the rise of this flawed consensus reveals that our system of federal courts is particularly ill-suited to the type of independent lawmaking that modern ATS doctrine has enabled up to this point. These developments indicate that courts should adopt a restrictive approach to corporate liability under the ATS going forward.
THE SOCIAL MULTIPLIER

Aggregate data is often used to make inferences about individual level behavior. If there are social interactions in which one person's actions influence his neighbor's incentives or information, then these inferences are inappropriate. The presence of positive social interactions, or strategic complementarities, implies the existence of a social multiplier where aggregate relationships will overstate individual elasticities. We present a brief model and then estimate the size of the social multiplier in three areas: the impact of education on wages, the impact of demographics on crime and group membership among Dartmouth roommates. In these contexts, there is a significant social multiplier. (JEL: HO, JO, CO)
New Therapies, Old Problems, or, A Plea for Neuromodesty

This article suggests that investigational deep brain stimulation (DBS) for mental disorders raises few new bioethical issues. Although the scientific basis of the procedure may be both complex and largely unknown, addressing informed consent in such situations is a familiar problem. After reviewing the legal and moral background for investigating DBS and the scientific difficulties DBS faces as a potential treatment for mental disorders, the article focuses on informed consent and makes two primary suggestions. The study of DBS may proceed, but “hyper-disclosure” of the complexities should be required for competent subjects or proper surrogates if the candidate is not competent, and the most rigorous standard for competence should be employed. Throughout, neuromodesty and caution are urged.
Drones: Public Interest, Public Choice, and the Expansion of Unmanned Aerial Vehicles

Unmanned Aerial Vehicles (UAVs) or “drones” have become a core component of the US military arsenal following September 11, 2001. In much of the literature and public discourse regarding drones, it is assumed that drone policy is created within the broader “public interest.” That is, those who construct drone policy set aside private incentives and other motives to construct policy solely to achieve the goals of US citizens and maximize some larger social welfare function. This paper identifies the conjectures associated with this public interest ideal and examines their accuracy. I find a general disconnect between the evidence and the public interest assumption. In several cases, the evidence directly contradicts the assumption of public interest. In light of these findings I offer an alternative analytical framework, the “public choice” framework to adjudicate between observed realities and stated goals.
MARKET MAKERS' SUPPLY AND PRICING OF FINANCIAL MARKET LIQUIDITY

Abstract The bid/ask spread (inverse of liquidity) in turbulent financial markets—modeled theoretically—adjusts to market-makers’ average costs. Market liquidity declines (spread increases) with increasing absolute value of market-makers’ security inventories and volatility of security price and order flow.
Skeptical Parasitism and the Continuity Argument

Abstract: Recent literature on skepticism has raised a nearly univocal voice in condemning skeptical argumentation on the grounds that such argumentation necessarily involves our adopting some nonordinary or unnatural perspective. Were this really so, then skeptical conclusions would not speak to us in the way in which skeptics think they do; we would be “insulated” from any such conclusions. I argue that skeptical argumentation need not rely on any nonordinary or unnatural standards. Rather, the skeptic's procedure is to offer a critique from within. Having given my argument for this claim (which I call the Continuity Argument), I consider and respond to two important objections. I conclude that the skeptic has a powerful meta-argument to be deployed in defending the legitimacy of his skeptical conclusions against the slings and arrows of (those I call) the half-true theorists.
Pecuniary Reparations Following National Crisis: A Convergence of Tort Theory, Microfinance, and Gender Equality

Numerous possible contexts can impel national governments to start reparations programs. From the array of possibilities, this Article focuses on reparations for the effects of a crisis that ravaged a whole nation—for example civil war, genocide, dictatorship, or apartheid—rather than on one discrete, odious deviation from the norms of a functioning democracy. Isolated incidents can generate urgent needs for repair, but the reparations under discussion in this Article presume a more fundamental ambition: a declaration of the nation’s past as broken, and its future in need of mending.1 The government of a nation, acknowledging grave strife in its
The Architecture of Accreditation

Accreditation systems can be analyzed in terms of the designer's choices in three dimensions. One dimension is purpose of accreditation, where purpose may relate to program quality or quality of outcomes. The second dimension consists of types of accreditation norms used to achieve these purposes. There are five principal types of norms available in this dimension: process-quality norms, output norms, power- allocation norms, self-determination norms, and consumer-protection norms. The third dimension consists of degree of regulation, which includes prescriptiveness or extensiveness of regulation. A sound accreditation system will make choices along each of these three dimensions. Understanding the range of possible structures helps one design, revise, and effectively analyze accreditation systems.
An empirical study of how third-party websites influence the feedback mechanism between online Word-of-Mouth and retail sales

Abstract Firms use social media marketing to promote products and collect consumer feedback for the product development process. Their practice of investing in retailer-hosted Word-of-Mouth (internal WOM) is supported by a positive feedback mechanism between internal WOM and retail sales. Internal WOM is a sales influencer: consumers can get informed about a product by a large volume of internal WOM. It is also a sales outcome: greater past sales lead to more WOM. Beyond internal WOM, consumers are shown to search widely for product information on third-party websites. Consequently, many firms also start to invest in content on third-party websites. However, little is known regarding the interplay between internal WOM and the contents of third-party websites, which have both been invested in by firms in recent years. In the context of the online software market, this study examines how WOM hosted by third-party websites (external WOM) and third-party free sampling influence the feedback mechanism between internal WOM and retail sales. Using data from Download.com and Amazon.com , we analyze the impact via a simultaneous equation model in a Bayesian hierarchical framework. We find that external WOM and third-party free sampling moderate the sales-outcome role of internal WOM in different ways. Receiving external user reviews amplifies the impact of past sales on volume of internal WOM; whereas third-party free sampling weakens the impact of past sales on internal WOM. Moreover, this impact of external WOM and third-party free sampling on the sales-outcome role of internal WOM is much more significant than their impact on the sales-influencer role of internal WOM.
A note on estimation of two-sided matching models

Abstract We propose an estimation strategy for two-sided matching models with non-transferable utility based on the characterization using pre-matching that exploits a fixed-point characterization of the set of stable matchings.
Tail-Risk Perspectives

For purposes of risk management, typically used return distributions are asymptotic to zero, the most popular being the Gaussian and power functions. Yet this asymptotic property of tail risk is relatively unexploited in interpreting the most vexing of managerial behaviors, the tendency to obliviousness regarding the most threatening hazards facing the organization. In this article, I explore implications of vanishingly small probabilities in the tail, relate these to the writings of Kahneman and Taleb, and present a novel interpretation of existential risks. This new discernibility interpretation of tail risk is then related to selected cognitive biases—overconfidence, anchoring, and groupthink—widely discussed in behavioral economics and finance. Cognitive biases are seen as diminishing the discernibility of remote probabilities confronted in the negative tail of the returns distribution. In contrast, enterprise risk management (ERM) practices are shown to be discernibility enhancers. Both cognitive biases and ERM, therefore, are consonant with and support the discernibility interpretation of tail risk, thus providing an explanation of some of the most puzzling and egregious errors of omission.
Beyond Labor Market Outcomes: The Impact of the Minimum Wage on Nondurable Consumption

How eff ective is the minimum wage at raising nondurable household consumption through the redistribution of income towards poor workers? Using novel data on retail sales by county, I exploit variation in the minimum wage rates across states and over time to answer this question. I find that a 10% increase in the minimum wage increases sales by 1.1%. I argue that such a large eff ect is explained by positive spillovers benefi ting the bottom quarter of the labor income distribution. As expected, the expenditure response to minimum wage hikes is stronger in counties where the policy is more binding.
Path Dependence, Lock-In, and History

Do economies and markets make remediable errors in the choice of products? Does the economy "lock-in" to these incorrect choices even when the knowledge that these choices are incorrect is readily available? The literature of path dependence may be understood to argue that these lock-ins and errors occur, even in a world characterized by voluntary decisions and individually maximizing behavior. In this article, we examine path dependence and illustrate three different forms of the term, each having a different implication regarding market errors and lock-in. Two of these meanings are common in the economy but provide no support for the claims that remediable errors occur. The third meaning, which does imply irremediable error, we show to be based on highly restrictive and implausible assumptions. The analysis is illustrated by examining the market's choice of video-recorder formats. Path dependence has been offered as an alternative analytical perspective for economics, a revolutionary reformulation of the neoclassical paradigm. Brian Arthur, a leading figure in this literature, distinguishes between "conventional economics," which largely avoids increasing returns or path dependence, and the new "positive feedback economics," which embraces them (Arthur, 1990: 99). Before we stroll too far along the path dependence path, however, it makes sense to stop, take stock, and figure out where that path is leading us. The claim for path dependence is that a minor or fleeting advantage or a seemingly inconsequential lead for some technology, product, or standard can have important and irreversible influences on the ultimate market allocation of resources, even in a world characterized by voluntary decisions and individually maximizing behavior. The path dependence literature comes to us accompanied and motivated by amathematical literature of nonlinear dynamic models, known as chaos or complexity models, for which a key finding is "sensitive dependence
Domestic Relations Law: Federal Jurisdiction and State Sovereignty in Perspective

Commonly known as the domestic relations exception, the United States Supreme Court's broad disclaimer of federal power over family law matters symbolizes the inherent division of power fundamental to a dual sovereignty. Although the Court announced the disclaimer only in dicta, and no authoritative analysis of its validity exists, federal courts have adamantly declared that the domestic relations exception divests them of jurisdiction over divorce, alimony, and child custody. Within the last twenty years, however, a growing number of federal courts have questioned the validity and contours of the domestic relations exception. This questioning indicates a basic misunderstanding of the role of federal courts in domestic relations law. A reexamination of the domestic relations exception will help to clarify this recent confusion. This investigation necessarily considers the allocation of power between the federal and state governments. After examining the historical development and gradual expansion of the domestic relations exception, this article then explores its validity. This article suggests a framework for analyzing the domestic relations exception. The framework is designed to avoid confusion in the courts, to increase consistency in the application of the exception, and to reach results consistent with the development of the domestic relations exception and principles of comity and federalism.
Optimal beliefs in the long run: An overlapping generations perspective

Abstract People have the natural tendency to be optimistic and believe that good outcomes in the future are more likely, but also want to avoid overestimation that could result in bad decision-making. Brunnermeier, Brunnermeier and Parker (2005) and Brunnermeier et al. (2007) established an optimal beliefs framework that balances these two incentives. This paper follows and extends the optimal beliefs framework to consider optimal beliefs in the long run in an overlapping generations sense. Assuming no short-selling, results show that, in almost all cases, there does not exist a stable and interior long-term optimal belief.
The Decreasing Ontological Density of the State in Catholic Social Doctrine

Over the last century-plus, Catholic social thought has gradually reduced the ontological density of the state, to the point that the state now appears to have only a tentative grasp on the natural law basis of its legitimacy. During the first part of the twentieth century, Catholic social doctrine tended to view the legitimate state as a participant in the divine rule; although draped in a sacred mantle, the state was subject to the limits imposed by the divine and natural law. In response to the totalitarian states’ transgressing of those limits at mid-century, Catholic thinkers reduced the scope and stature of the state’s place in man’s life in society, while insisting that the state remain tethered to the natural law. Today, however, Catholics and others face a laicized state that utterly denies its obligations under the natural law. While Pope John Paul II eventually responded to this denial by emphasizing the natural law limits on the state, Pope Benedict has instead summoned leaders and citizens to acknowledge and develop a state that is committed to “reason,” even if this means inviting unbelievers to act “as if God exists.” As understood by Pope Benedict XVI, the state, a servant of individuals and diverse societies, is to receive its content and direction from, among other sources, the Church; it is to receive reason purified by faith.
Trade creation and diversion revisited: Accounting for model uncertainty and natural trading partner effects

SUMMARY The effect of preferential trade agreements (PTAs) on trade flows is subject to model uncertainty stemming from the diverse and even contradictory effects suggested by the theoretical PTA literature. The existing empirical literature has produced remarkably disparate results and the wide variety of empirical approaches reflects the uncertainty about the ‘correct’ set of explanatory variables that ought to be included in the analysis. To account for the model uncertainty that surrounds the validity of the competing PTA theories, we introduce Bayesian model averaging (BMA) to the PTA literature. Statistical theory shows that BMA successfully incorporates model uncertainty in linear regression analysis by minimizing the mean squared error, and by generating predictive distributions with optimal predictive performance. Once model uncertainty is addressed as part of the empirical strategy, we find strong evidence of trade creation, trade diversion, and open bloc effects. Our results are robust to a range of alternative empirical specifications proposed by the recent PTA literature. Copyright © 2010 John Wiley & Sons, Ltd.
The Rising Cost of Child Care in the United States: A Reassessment of the Evidence

Abstract Anecdotal evidence suggests that the cost of child care in the U.S. has increased substantially over the past few decades. This paper marshals data from a variety of sources to rigorously assess the issue. It begins by using a large survey dataset to trace the evolution in families’ child care expenditures. I find that the typical family currently spends 14 percent more on child care than it did in 1990. This is less than half the increase documented in previous work. In addition, most families allocate approximately the same share of income to child care as they did several decades ago. The next section of the paper examines the trend in the market price of child care. The evidence suggests that after persistent, albeit modest, growth throughout the 1990s, market prices have been essentially flat for at least a decade. In the paper's final section, I analyze several features of the child care market that may have implications for prices, including the demand for child care, the skill-level of the child care workforce, and state regulations. A few findings are noteworthy. First, I show that child care demand stagnated around the same time that market prices leveled-off. Second, although the skill-level of the child care workforce increased in absolute terms, highly-educated women increasingly find child care employment less attractive than other occupations. Finally, child care regulations have not systematically increased in stringency, and they appear to have small and inconsistent effects on market prices. Together, these results indicate that the production of child care has not become more costly, which may explain the recent stagnation in market prices.
Benefits to Homeowners from Mortgage Portfolios Retained by Fannie Mae and Freddie Mac

Mortgage investing is the domain of financial intermediaries, such as Fannie Mae and Freddie Mac, who possess specialized knowledge and experienced analytic teams. Capital is channeled to homeowner/borrowers at lower cost through such entities. As the demand for mortgage borrowing outstrips aggregate domestic saving (which is currently negative) foreign sources of capital should become even more significant. Foreign capital can be channeled efficiently into the U.S. mortgage market by Fannie and Freddie. Their debt has the highest credit standing and their risk management ability has been demonstrated by their enormous “retained portfolios” of mortgages.
Instrumental variable methods using dynamic interventions

Recent work on dynamic interventions has greatly expanded the range of causal questions researchers can study while weakening identifying assumptions and yielding effects that are more practically relevant. However, most work in dynamic interventions to date has focused on settings where we directly alter some unconfounded treatment of interest. In policy analysis, decision makers rarely have this level of control over behaviors or access to experimental data. Instead, they are often faced with treatments they can affect only indirectly and whose effects must be learned from observational data. In this paper, we propose new estimands and estimators of causal effects based on dynamic interventions with instrumental variables. This method does not rely on parametric models and does not require an experiment. Instead, we estimate the effect of a dynamic intervention on the instrument. This robustness should reassure policy makers that these estimates can be used to effectively inform policy. We demonstrate the usefulness of this estimation strategy in a case study examining the effect of visitation on recidivism.
Trust and Growth

Why does trust vary so substantially across countries? This paper presents a general equilibrium growth model in which heterogeneous agents transact and face a moral hazard problem. Agents may trust those with whom they transact, but they also have the opportunity to invest resources in verifying the truthfulness of claims made by transactors. We characterise the social, economic and institutional environments in which trust will be high, and show that low trust environments reduce the rate of investment. The predictions of the model are examined empirically for a cross-section of countries and have substantial support in the data.
How Petty is Petty Corruption? Evidence from Firm Surveys in Africa

Summary Evidence suggests that corruption is costly for African firms. This paper, however, shows that a minor difference in the way the question on bribe payments is asked has a large effect on estimates of the size of the burden. On average, firms report payments that are between 4 and 15 times higher when they report them as a percent of sales than when they report them in monetary terms. The paper discusses several possible reasons for this, but none explain the difference. One plausible remaining reason is that firm managers overestimate bribes when they report them in percentage terms.
Symmetric Pass-Through of Tariffs and Exchange Rates Under Imperfect Competition: An Empirical Test

Abstract This paper examines the effect of tariffs and exchange rates on U.S. prices of Japanese cars, trucks and motorcycles. In particular, we test whether the long-run pass-through of tariffs and exchange rates are identical: the symmetry hypothesis. We find that this hypothesis is easily accepted in our sample. We also find that the pass-through relation varies across products, ranging from about 0.6 for trucks to unity for motorcycles. These coefficients have very different implications for trade policy. We explain the results based on demand, cost and institutional conditions in each industry.
Piney Run: The Permits Are Not What They Seem

In 2001, the Fourth Circuit addressed the permit shield provision of the Clean Water Act and found it to provide broad-scale protection for polluters. In Piney Run Preservation Association v. County Commissioners of Carroll County, the Fourth Circuit held that facilities with discharge permits are protected from lawsuits even when discharging pollutants not contained within their permits. Under this ruling, permit holders may discharge, without fear of penalty, any disclosed pollutant within the reasonable expectation of the permitting authority. This decision is worrisome because it does not protect the goals of the Clean Water Act and deprives the public of information about pollutants in the environment.
Residual risk revisited

Abstract If a portfolio is not mean-variance efficient, the residual variances from its market model regressions should help explain expected returns. Previous research produced no statistically reliable residual risk premium estimates. This paper examines alternative econometric methods for measuring risk premiums, highlighting corrections for measurement error in market model parameter estimates, the use of individual securities as opposed to grouped portfolios, the comparison of the Fama-MacBeth and Black-Jensen-Scholes formulations, and methods for aggregating subperiod risk premium estimates. The results suggest measurement error corrections produce different and apparently significant residual risk effects, the Black-Jensen-Scholes formulation yields more reliable estimates, and the estimates are sensitiveto the aggregation method.
Habeas Corpus, Suspension, and Detention: Another View

This Article considers a number of timely and important issues in the interpretation and application of the Habeas Corpus "Suspension Clause" of the Constitution. After discussing several preliminary issues—including (1) whether the Clause imposes an affirmative obligation on the federal government; (2) if so, the nature of that obligation; (3) the locus of authority to suspend the writ; (4) the limitations on the availability of the writ that may violate the Clause; and (5) the availability of judicial review of the validity of a purported suspension—the Article turns to the principal question addressed: the effect of a valid suspension of the writ upon underlying rights. * William Nelson Cromwell Professor of Law, Emeritus, Harvard University. My deepest thanks to Bruce Hay, Dan Meltzer, and Amanda Tyler for their insightful comments and suggestions on earlier drafts.
The Constitutional Logic of Campaign Finance Regulation

This essay explores the potential implications of the creation of a distinct "election period" through the BCRA reforms to campaign finance law. The idea of a separate set of rights of expression during the immediate pre-election period is a relative newcomer to American law, but is a central feature of campaign finance law in other countries. The creation of a defined election period is the underpinning of strong restrictions on political speech in countries such as Britain, and is currently the source of tension under European law. Recent decisions of the European Court of Human Rights, most notably in Bowman v. United Kingdom, highlight the fundamental divide between animating conceptions of liberty and equality in the funding of the political process. By mildly introducing the idea of a separate regulatory sphere for a temporally-defined election period, BCRA intriguingly invites a reexamination of the core constitutional logic of American campaign finance law.
Torture, Necessity and Existential Politics

This paper takes up the political theory sketched by the infamous (and now withdrawn) Office of Legal Counsel memorandum of August 1, 2002. That memorandum proposed for the Bush Administration a theory of executive emergency powers, including the power to use torturous interrogation techniques otherwise barred by domestic and international law. According to the memorandum, both the power to deploy torture and other forms of coercive interrogation, and the general freedom of the executive to direct policy in times of war, are grounded in a justification of necessity. The central aim of my paper is to explore the force and limits of necessity claims in moral and political theory as a general matter. In particular, I argue that we make use of two very different concepts of rights, one concept that serves to impose limits on institutional, welfarist considerations, and another that is far more sensitive to such considerations. Instances of the former are core human rights protections; instances of the latter are rights over property. We must also distinguish between two concepts of necessity, as fact and as justification. The confusion displayed in legal and philosophical thought concerning torture in extremes is a consequence of the failure to grasp these distinctions. When necessity is deployed as a justification, it vitiates the content of the principles it claims to override, and lends itself to the psychological and institutional abuses of which we have such stark evidence. Understanding necessity as fact, by contrast, demands that we resist the impulse towards justifying and institutionalizing the exception, while acknowledging the theoretical limits of the justifying force of our principles. I also pursue in this paper the striking parallels between the Administration's claims of emergency power and exceptional justification, and the political theory of Carl Schmitt, the German constitutional thinker who developed an argument about the need for extra-constitutional executive power in times of existential crisis for the Weimar Republic. As with Schmitt's theory, the administration's theory gains (potential) executive effectiveness at the cost of rejecting two of the deepest legacies of the Enlightenment: the inviolability of the individual and the priority of right to power.
A Unique Bench, A Common Code: Evaluating Judicial Ethics in Juvenile Court

Recent cases involving ethical scandals on the juvenile court bench have caught the interest of legal scholars, judges, practitioners, and the public. This article proposes a new theoretical framework for assessing these problems and articulates a series of vital ethical reforms. Despite their distinct role in an atypical court, juvenile court judges are not subject to unique ethical standards. Most jurisdictions have adopted the ABA Model Code of Judicial Conduct as the ethical code guiding juvenile court judges. However, this Model Code, intended to apply to any person in a decision-making capacity, was created for a more conventional type of judging than is expected from a juvenile court judge. Because these standards do not address the exceptional roles and challenges facing juvenile court judges, the potential for ethical violations and injustice is significant. This article therefore recommends innovative textual revisions designed to provide much-needed ethical guidance to juvenile court judges in three critical areas: (1) ex parte communications; (2) competence; and (3) demeanor and decorum. The implementation of ethical guidelines tailored for this specialized court will remedy an existing flaw in the scheme of judicial ethics, while reinforcing judges’abilities to determine the best outcomes for troubled youth.
The "Accidental Procreation" Argument for Withholding Legal Recognition for Same-Sex Relationships

This article examines “the accidental procreation argument,” an argument against same-sex marriage that still has some traction in United States appellate courts. The accidental procreation argument is meant to take the place of one of the central arguments made by states — and almost universally accepted by courts — in the first batch of cases in the United States about same-sex marriage. That original procreation-based argument — now widely acknowledged to be inadequate — posited that marriage is crucially related to procreation; therefore, since same-sex couples cannot procreate, same-sex couples should not be allowed to marry. The accidental procreation argument uses procreation in a different way, by focusing on a specific difference between same-sex couples and different-sex couples: different-sex couples can procreate without intending or planning to do so, while same-sex couples cannot. In other words, insofar as same-sex couples procreate, they must plan to do so, while different-sex couples, in contrast, can “accidentally procreate.” This article traces the origins of this new argument against legal recognition for same-sex relationships, places the argument in the context of today's legal debates, analyzes its strengths and weaknesses, and concludes by demonstrating its inadequacy.
Medellin and Originalism

In Medellin v. Texas, the Supreme Court permitted Texas to proceed with the execution of a Mexican national who, in violation of the United States’ obligations under the Vienna Convention on Consular Relations, had not been given timely notice of his rights of consular notification and consultation. It did so despite its finding that the United States had an obligation under treaty law to comply with an order of the International Court of Justice that Medellin’s case be granted review and reconsideration. The international obligation, the Court found, was not domestically enforceable because the treaties at issue were not self-executing. The five Justices who signed the Chief Justice’s majority opinion, including the Court’s self-proclaimed originalists, joined an opinion that construed the Constitution’s Supremacy Clause without any serious consideration of its language or the history of its drafting, ignoring evidence of the Supremacy Clause’s original meaning cited by the dissenting Justices. This Article explores the meaning of originalism in the context of the Court’s Medellin decision and contends that the majority’s opinion, while perhaps defensible on other grounds, cannot be reconciled with any identifiable version of originalism. Rather, it is best understood as a decision reflecting the conservative majority’s political commitment to favor principles of U.S. sovereignty and federalism over compliance with international obligations, even when the consequence of such a commitment is to enable state governments to undermine the foreign policy decisions of the political branches of the federal government. Ultimately, however, the Article concludes that Medellin’s case never should have come before the Court. The President has a duty to “take Care that the Laws be faithfully executed.” The Court determined that the Bush Administration did not satisfy this duty by issuing an Executive Memorandum directing states to comply with the judgment of the International Court of Justice. That being the case, the President now must comply with his Take Care Clause duties by Copyright  2009 by D.A. Jeremy Telman. * Associate Professor, Valparaiso University School of Law. I want to thank those who commented on earlier drafts of this Article, as well as those who indulged me in conversation and thereby helped me develop my ideas regarding the Medellin case and originalism, including Elizabeth Bruch, Zachary Calo, Stephen Griffin, Richard Stith, and Alan White. Remaining imperfections in the Article are mine alone.
False Forward-Looking Statements and the PSLRA's Safe Harbor

INTRODUCTION 596 I. THE HISTORY AND LURE OF PROTECTION FOR FORWARD-LOOKING STATEMENTS ... 599 A. PROTECTION FOR ISSUERS MAKING FORWARD-LOOKING STATEMENTS .. 601 B. THE TEXT OF PRONG ONE 601 C. MOST COURTS RESPECT THE IRRELEVANCE OF SCIENTER 603 II. CASE LAW INCORPORATING AN ACTUAL INTENT OR SCIENTER-LIKE INQUIRY INTO APPLICATION OF THE SAFE HARBOR 604 A. DISTRICT COURTS ARTICULATING AN ACTUAL INTENT “EXCEPTION” .... 605 B. THE SEVENTH CIRCUIT’S ASHER V. BAXTER AND SIMILAR DICTA IN OTHER CIRCUITS 609 III. THE LEGISLATIVE HISTORY OF THE PSLRA AND POSSIBLE EXPLANATIONS FOR ERRANT CASE LAW 613 A. LEGISLATIVE HISTORY: THE SAFE HARBOR AND THE PSLRA GENERALLY .. 613 B. FLAWS IN THE ERRANT SUBSET OF SAFE HARBOR DECISIONS 618 IV. POLICY ARGUMENTS 625 A. THE TRADEOFF BETWEEN AD HOC ADJUDICATION AND A STATUTORY PRESUMPTION 625 B. THE LIMITED HARM CAUSED BY TYPE II ERROR 630 C. PRONG ONE IS VALUABLE DESPITE TYPE II ERROR 631 V. PRESCRIPTION FOR PROPER ASSESSMENT, UNDER SAFE HARBOR PRONG ONE, OF ALLEGEDLY DECEITFUL FORWARD-LOOKING STATEMENTS 632 A. AVOIDING SCHAFFER’S FLAW REQUIRES CAREFUL PARSING OF “MIXED” STATEMENTS 632 B. STEERING CLEAR OF THE DEFECT IN SEEBEYOND AND ASHER 636 CONCLUSION 643
Is There Really a When-Issued Premium?

We use a unique set of equities in the when-issued market to provide new tests of the law of one price in financial markets. We compare the prices of when-issued and regular way shares of publicly traded subsidiaries and their parents around the time the subsidiaries are fully divested and we find that the when-issued shares of the subsidiary trade at a discount. Pricing differences stem from measurement factors such as exchange location and bid-ask clustering that bias the observed when-issued pricing differential away from zero. The remaining difference is due to asymmetric movements in bid and ask quotes in the two markets. We also find evidence of temporary price pressures on the date of execution of the spinoff of the subsidiary firms that bear resemblance to the pricing in the when-issued market. We interpret the evidence as consistent with the law of one price in the presence of transaction costs and microstructure phenomena.
Reaching for dividends

Abstract Interest rates dived into uncharted territories for an extended period after the financial crisis. What is the impact on investor behavior and asset prices? We find that when interest rates fall, flows into income-oriented equity funds increase, with higher dividend-yielding funds attracting more inflows after controlling for fund returns. Responding to their incentives, income fund managers tend to aggressively over-weight high dividend stocks in a low-rate environment. This behavior of “reaching for dividends” generates market impact: high dividend stocks tend to have higher prices when interest rates fall, and lower excess returns when interest rates subsequently normalize.
The Effects of “Early Offers” in Medical Malpractice Cases: Evidence from Texas

Medical malpractice litigation is costly and time consuming. Professor Jeffrey O'Connell, with various co-authors, has long advocated “early offer” rules that would encourage defendants to offer to settle for economic damages plus attorney fees, and punish plaintiffs who refuse such offers. Using detailed closed claims data from Texas for 1988–2005, we simulate the effects of these “early offers.” Under a base set of assumptions, early offers will sharply reduce payouts in cases with small economic damages (under $100,000, all amounts in 1988 dollars); will moderately reduce payouts in currently tried cases with economic damages from $100,000–$200,000 and would normally increase payouts (and therefore will not be made) in tried (settled) cases with economic damages over $200,000 ($100,000). Overall, we predict that early offers will be made in 72 percent of all cases, and will result in a 16 percent (20 percent) decline in payouts in tried (settled) cases. Almost all this effect comes from the sharp decline in payouts in cases with small economic damages. Defense costs will drop by roughly 60 percent (20 percent) in currently tried (settled) cases in which an early offer is made, and by about 13 percent overall. An early offer program will have very different effects on different types of plaintiffs, with especially large payout reductions for elderly and deceased plaintiffs. An early offer program also overlaps substantially in its effects with a statutory cap on noneconomic damages (which 26 states already have). Defendants in many of these states have already realized large reductions in payment of noneconomic damages; the additional reductions from an early offer program are modest and would often affect plaintiffs whose recoveries were already limited by damage caps. Our mixed results contrast sharply with dramatic claims by O'Connell and co-authors, who predict 70 percent reductions in both payouts and defense costs. Their estimates reflect the compound effects of a series of unreasonable assumptions.
Burdens of proof

The conceptual foundations of burdens of proof are examined, and the unified theory of evidentiary devices derivable from those foundations is explicated. Both the conceptual foundations and the unified theory generated are shown to rest on questionable assumptions about conventional probability theory. The resulting analytical difficulties are analyzed. Inference to the best explanation and the relative plausibility theory are examined as potentially providing the foundation to a superior conceptualization of the burden of proof.
Clemency in a Time of Crisis

At the state level, the power to pardon or commute a criminal sentence—that is, to grant clemency—is vested in either the Governor, an executive clemency board, or some combination thereof. Until very recently, clemency grants were a consistent feature of our criminal justice system. In the last four decades, though, state clemency grants have declined significantly; in some states, clemency seems to have disappeared altogether. In this Article, I contend that executive clemency should be revived at the state level in response to ongoing systemic criminal justice failings. Part I of this Article describes clemency at the state level today. Despite judicial and scholarly support for the role of clemency in our criminal justice system, state clemency practice fails to live up to its theoretical justifications. Part II of this Article makes the case for a policy of vigorous clemency on both theoretical and practical grounds. Not only was clemency designed, at least in part, to serve an error-correcting function, but also, today, there are several reasons why state executive actors may be able to use their clemency power robustly without suffering politically. In Part III, I address questions of implementation. If state executive actors are to pursue commutations of sentences or pardons, which inmates should be the subject of such pursuits? How can those executive actors best be insulated from political pressure? In sum, this Article argues that revitalizing state clemency is a valuable and viable component of broader criminal justice reform. 1 Drinan: Clemency in a Time Of Crisis Published by Reading Room, 2011 1122 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 28:4