cssi/SciSciGPT-SciSciNet huggingface dataset:
Prosecutorial Misconduct and Constitutional Remedies

INTRODUCTION 714 I. PROSECUTORIAL INTENT AND “DO JUSTICE” 720 A. Ascertaining Prosecutorial Intent 722 B. Ethical Rules 727 C. Due Process 729 II. PROSECUTORIAL INTENT AND THE DECISION ABOUT WHO AND WHAT TO PROSECUTE 732 A. Vindictive Prosecutions: Isn’t That What You’re Paid For?........ 734 1. The Presumption of Vindictiveness 735 2. The Irrelevance of Actual Intent 738 B. Selective Prosecution: You Can’t Get There From Here 747 III. PROSECUTORIAL MISCONDUCT AND EVIDENCE OF GUILT 754 A. The Knowing Use of Perjured Testimony 756 B. Extending Due Process to Undisclosed Evidence 760 C. The Destruction of Evidence 767 D. Loss of Evidence Through Governmental Delay 772 1. The Sixth Amendment Speedy Trial Right 772 2. Due Process and the Initiation of Criminal Prosecutions.... 775 IV. BATSON LIES 780 A. Equal Protection and Peremptory Challenges 782 B. The Effect of Implausible Responses 787 V. MISCONDUCT DURING TRIAL: CAN DOUBLE JEOPARDY CONTROL PROSECUTORIAL MISCONDUCT? 798 A. Manifest Necessity for a Mistrial 800 B. Goading Defendants to Seek a Mistrial 803 C. Prosecutorial Misconduct as a Separate Basis for a Double Jeopardy Violation 809 VI. PROSECUTORIAL MISCONDUCT AND THE PROBLEM OF REMEDY 816 A. Are Due Process and Double Jeopardy Interchangeable? 820 B. Sanctioning Prosecutors Directly 828
The Internet, Securities Regulation, and Theory of Law

Rarely has a change in the environment affected society as dramatically as the Internet. It has transformed the way we retain, transfer, and exchange information. At minimal cost, the Internet offers us far more information at a faster pace than ever before. It enables us to interact around the globe with more people than at any time in the past. When such dramatic environmental changes occur, drastic changes in the law often follow. 1 The Internet affects the environment in which securities markets operate, and the laws that govern them. 2 The use of the Internet has already begun to change the way information about securities is disseminated and the way in which securities are traded, 3 two activities that are regulated by the securities laws. 4 When the environment changes drastically, the gap between law in action and law on the book, between practice and theory, tends to widen. This Article is aimed at bridging this gap. Should the securities laws be adapted to the use of the Internet? If so, how? What path of inquiry should be taken to answer the questions and how should we think about adapting law to a changing environment of actors and actions subject to law? The main purpose of the Article is to begin this inquiry.
Exploitation, Altruism, and Social Welfare: An Economic Exploration

Child labor is often condemned as a form of exploitation. I explore how the notion of exploitation, as used in everyday language, can be made precise in economic models of child labor. Exploitation is defined relative to a specific social welfare function. I first show that under the standard dynastic social welfare function, which is commonly applied to intergenerational models, child labor is never exploitative. In contrast, under an inclusive welfare function, which places additional weight on the welfare of children, child labor is always exploitative. Neither welfare function captures the more gradual distinctions that common usage of the term exploitation allows. I resolve this conflict by introducing a welfare function with minimum altruism, in which child labor in a given family is judged relative to a specific social standard. Under this criterion, child labor is exploitative only in families where the parent (or guardian) displays insufficient altruism towards the child. I argue that this welfar...
AIDS caps, contraceptive coverage, and the law: an analysis of the federal anti-discrimination statutes' applicability to health insurance.

Traditionally, health insurers have enjoyed the freedom to determine their own terms of coverage, to decide to what extent, if any, patients should be reimbursed for different kinds of treatment, and to establish premium prices. Health insurers typically deny coverage for speech therapy, eye glasses, hearing aids, most foot care, and treatment for infertility. Many insurance providers also exclude or severely limit coverage for mental health, dental care, AIDS, diabetes mellitus, morbid obesity, epilepsy, and alcoholism or drug abuse. Therefore, while some Americans enjoy full coverage for all their health needs, others who have insurance and suffer from serious or even life-threatening conditions, such as AIDS, must incur the expense of costly therapy or forego treatment if it is unaffordable. At the same time, a significant number of federal laws exist that prohibit various forms of discrimination with respect to health insurance coverage. These include: the Americans with Disabilities Act (ADA), addressing disability discrimination; Title VII of the Civil Rights Act of 1964 (Title VII), addressing gender, race, national origin and religious discrimination relating to employment-provided health benefits; The Equal Pay Act (EPA), addressing differences in employment-provided benefits based on gender; The Age Discrimination in Employment Act (ADEA), focusing on employment discrimination based on age; and the Health Insurance Portability and Accountability Act (HIPAA), which prohibits certain discriminatory conduct by health insurers. The article argues that in the arena of health insurance, the statutory scheme that purports to protect individuals against disability, gender, and age discrimination is characterized by significant gaps and loopholes. Consequently, while the statutes prohibit some discriminatory insurance practices, their reach is confined, and their effectiveness is limited. The article provides a detailed analysis of the language of the ADA, Title VII, and other statutes, as they apply to health insurance. It also critiques the courts' interpretation of the statutory language in the areas of disability and gender discrimination. The article concludes with a discussion of various means by which the statutory gap could be remedied and protection for health insurance beneficiaries could be enhanced.
OVERCOMING THE MARITAL PRESUMPTION

Parentage law is heavily influenced by the number “two.” The traditional paradigm of one mother and one father, especially a married mother and father, has been a bedrock of Western society. In recent decades, however, the traditional two parent paradigm has started to erode and courts have responded. For example, some courts have held that a child can have two legal parents of the same sex. In other cases, a child has been deemed to have just one legal parent and yet in others, even three legal parents. These cases highlight shifts within the law of parentage that have occurred as the nuclear family has decreased in prominence and as the use of assisted reproductive technologies has changed the ways in which families are created. I have previously advocated for the expansion of legal parentage to persons not traditionally considered a legal parent, such as the lesbian partner of a legal mother. I have also suggested that, in limited circumstances, courts consider conferring legal parentage in more than two adults who are raising a child including recognizing that a child might have two fathers. In my home state of Michigan, the traditional two parent paradigm is firmly entrenched as illustrated, in part, by the state's strict marital presumption, which does not permit a putative father the ability to challenge the husband's paternity. About one-fifth of U.S. jurisdictions have a similarly strict marital presumption. In this short essay, I criticize the lingering marital presumption and use the critique to illustrate broader inconsistencies within the law of parentage. I also make some modest suggestions for parentage law reform. Key Points for the Family Law Community: • Family law should embrace changing family forms and recognize more than two legal parents for some children. • The marital presumption, while historically expedient, should be replaced with an intent and function based assumption of parentage.
The multiple phases of interstellar and halo gas in a possible group of galaxies at z ∼ 1

We used HIRES/Keck profiles (R=6 km/s) of MgII and FeII in combination with FOS/HST spectra (R=230 km/s) to place constraints on the physical conditions (metallicities, ionization conditions, and multi-phase distribution) of absorbing gas in three galaxies at z=0.9254, 0.9276, and 0.9343 along the line of sight to PG 1206+459. The chemical and ionization species covered in the FOS/HST spectra are HI, SiII, CII, NII, FeIII, SiIII, SiIV, NIII, CIII, CIV, SVI, NV, and OVI, with ionization potentials ranging from 13.6 to 138 eV. The multiple MgII clouds exhibit complex kinematics and the CIV, NV and OVI are exceptionally strong in absorption. We assumed that the MgII clouds are photoionized by the extra-galactic background and determined the allowed ranges of their physical properties as constrained by the absorption strengths in the FOS spectra. A main result of this paper is that the low resolution spectra can provide meaningful constraints on the physical conditions of the MgII clouds, including allowed ranges of cloud to cloud variations within a system. We find that the MgII clouds, which have a typical size of ~100 pc, give rise to the SiIV, the majority of which arises in a single, very large (~5 kpc), higher ionization cloud. However, the MgII clouds cannot account for the strong CIV, NV, and OVI absorption. We conclude that the MgII clouds are embedded in extended (10-20 kpc), highly ionized gas that gives rise to CIV, NV, OVI; these are multi-phase absorption systems. The high ionization phases have near-solar metallicity and are consistent with Galactic-like coronae surrounding the individual galaxies, as opposed to a very extended common "halo" encompassing all three galaxies.
Do investors forecast fat firms? Evidence from the gold-mining industry

Conventional economic theory assumes that firms minimize costs given output, but news articles and managers indicate that firms cut costs when they are in economic distress and grow fat when they are relatively wealthy. Under conventional theory, firm value is convex in the price of a competitively supplied input or output, but we find that the stock values of many gold-mining companies are concave in the price of gold. We show that this is consistent with fat accumulation when a firm grows wealthy. We then address alternative explanations and discuss where fat in these companies might reside.
Fierce and Critical Faith: A Remembrance of Penny Pether

Penny Pether's fierce and critical faith teaches us that if we would seek knowledge, we must first hold ourselves open to the lives of others; we must face the faces of all those who are other life, and acknowledge our responsibility for them, and to them.
Fukushima: Catastrophe, Compensation, and Justice in Japan

Well before the Fukushima disaster of March 11, 2011, governments in the developed world struggled with victim compensation in cases of environmental contamination, harms caused by pharmaceutical products, terrorist attacks, and more. All of those are important precedents to Fukushima, but none of them approach the breadth of harms resulting from the triple disaster of huge earthquake, massive tsunami, and nuclear meltdown now known in Japan as 3/11. With close to 20,000 people dead or missing, one million homes fully destroyed or seriously damaged, and 100,000 people displaced, getting those whose lives were affected by the events in Fukushima back on their feet is a daunting task. How should Japanese society, and the Japanese state, respond? How much compensation, if any, should be offered to the victims? What types of losses should be considered compensable? Which institutions are best equipped to evaluate and manage a system of redress?
Discussion of Real Investment Implications of Employee Stock Option Exercises

Bens, Nagar, and Wong [BNW, 2001] investigate how employee stock option plans influence corporate payout policy and investing decisions. BNW hypothesize that firms divert cash from profitable investment expenditures to fund share repurchases in an attempt to mitigate earnings-pershare (EPS) dilution from stock option exercises. The relation between corporate finance, managerial incentives and investing decisions is a rich and important area of academic research. In recent years, the widespread growth in employee stock option plans has spurred increased interest on the part of shareholders, regulators and academics as to the effects of these plans on financing activities, incentives and equity valuation. Further, there is growing evidence that managers are concerned with the financial accounting implications of stock options plans (e.g., Carter and Lynch [2001]1). BNW motivate their study with four assumptions about managerial behavior. The first assumption is that managers believe employee stock option exercises "dilute" EPS. Second, BNW assert that managers believe share repurchases mechanically increase EPS. Third, BNW assume that managers and/or investors myopically focus on short-term EPS. The fourth critical assertion is that BNW's sample of S&P 500 firms have severe cash constraints and high financing costs (e.g., low free cash flow, small reserves of liquid assets, and no source of inexpensive short-term debt financing) that force
Tobit model estimation and sliced inverse regression

It is not unusual for the response variable in a regression model to be subject to censoring or truncation. Tobit regression models are specific examples of such a situation, where for some observations the observed response is not the actual response, but the censoring value (often zero), and an indicator that censoring (from below) has occurred. It is well-known that the maximum likelihood estimator for such a linear model assuming Gaussian errors is not consistent if the error term is not homoscedastic and normally distributed. In this paper, we consider estimation in the Tobit regression context when homoscedasticity and normality of errors do not hold, as well as when the true response is an unspecified nonlinear function of linear terms, using sliced inverse regression (SIR). The properties of SIR estimation for Tobit models are explored both theoretically and based on extensive Monte Carlo simulations.We show that the SIR estimator is a strong competitor to other Tobit regression estimators, in tha...
Analytical Procedures: A Data Envelopment Analysis Approach

In this paper, we demonstrate the usefulness of Data Envelopment Analysis (DEA) as an analytical procedure for auditors, especially in the planning stage of the audit, to determine the extent of audit and to assess the preliminary risk level of the client. We believe that DEA can also be used in the overall review stage to detect any anomalies and to assess the reasonableness of financial statements. DEA‐based analytical procedures can provide consistent and reliable red ags and benchmarks for auditors to compare a client to other firms in the same industry. We provide an illustrative use of DEA as an analytical procedure for auditing a client in the oil and gas industry. We also provide validation for DEA as an analytical procedure.
Schiavo and Contemporary Myths About Dying

When the Schiavo case burst onto the national scene, most of us assumed that everyone would see the case as we did. But instead, Schiavo showed that U.S. pluralism was alive and well in decisions about life-sustaining treatment. Schiavo demonstrated, too, that at least some of this pluralism reflects misguided myths about human life and death. In this essay, I examine the myths that Schiavo exposed. One such myth is that death with dignity is easily attainable in modern America, as long as people make living wills. Another myth is that only patients themselves are permitted to take quality of life into account when deciding about life-sustaining interventions. A third myth is that research advances are bringing an end to the difficulties of aging. To examine the myths, I draw on public commentary about Schiavo and on four texts published in 2005, when the case was in the headlines.
No Universal Target: Distinguishing Between Terrorism and Human Rights Violations in Targeted Sanctions Regimes

With the passage of the United States' Magnitsky Act and the Russian Federation's anti-adoption law, the world has seen a shift in the use of targeted sanctions. These new pieces of legislation target not terrorist organizations or individuals affiliated therewith, but suspected human rights violators outside the sanctioning state's territory. The international law principles of state sovereignty and individual rights bar such unilateral expansion without appropriate procedural safeguards. This Note argues that collective targeted sanctions against suspected terrorists are theoretically and practically different from a state’s unilateral use of targeted sanctions against a foreign national suspected of violating international human rights law because the latter directly violates a state’s sovereignty as well as the individual’s due process rights. Therefore, international actors must approach the two situations differently, and thereby bring themselves into relative compliance with international law. Part I of this Note describes general sanctions regimes and targeted sanctions, their differences, and how the principles of universal jurisdiction, state sovereignty, and individual rights are implicated by the use of targeted sanctions. Part II argues that using targeted sanctions against individuals affiliated with a recognized state government (as opposed to non-state groups, such as terrorist organizations), infringes on the target state’s exclusive internal jurisdiction, in violation of international law. It also explains how targeted sanctions may, and often do, violate individuals’ due process rights. Part III suggests that, given its unique position in the international legal system, the U.N. is obligated to protect both types of rights, and further recommends that the U.N. protect those rights by regulating the use of unilateral targeted sanctions by member states.
Escalation firebreaks in the cyber, conventional, and nuclear domains: moving beyond effects-based logics

Is nuclear strategist Herman Kahn’s effects-based escalation ladder still pertinent in the information age? Despite the growing literature on cyber security, most studies have sidestepped important questions of how conflict escalates in the cyber domain. To better understand this dynamic, we advance two main theoretical pathways of escalation, one in which actors respond with increasing intensity based on the effect of an attack, irrespective of how it is conducted (through cyber, conventional, or nuclear) and another in which the means of attack determines the actor’s willingness to escalate. We then test those effects- and means-based pathways with an original experiment that probes support for escalation, focusing on the American public, a key actor in debates about nuclear escalation and deterrence. Our study suggests that cyber attacks create a threshold that restrains the escalation of conflict. Americans are less likely to support retaliation with force when the scenario involves a cyber attack even when they perceive the magnitude of attacks across domains to be comparable. Our findings therefore cast doubt on the credibility of policy maker assertions that cyber attacks will be treated “like any other attack” and more broadly the logic of cyber deterrence that rests on the U.S. having the political resolve to retaliate for a cyber attack.
Predictable corporate distributions and stock returns

Corporate managers frequently announce corporate distributions, including stock splits, stock dividends, special dividends, and increases in regular dividends, on the anniversary of a like announcement at the same firm. The market appears to not fully appreciate the implications of current distributions for future distributions and stock returns, as a simple strategy that involves purchasing firms with high predicted probabilities of distribution announcements earns significant abnormal monthly returns. These results are distinct from previously documented return regularities related to regular earnings and dividend announcements and return seasonality.
Themes that Thread through Society: racism and athletic manifestation in the African‐American community

Abstract The purpose of this article is to examine and critically analyze the impact of sport in the African‐American community. This critique of the social and behavioral outcomes of sport in the African‐American community will include philosophical, historical, and sociological inquiry most affecting the plight of the African‐American male in academics and athletics. Data on the perceptions of contemporary African‐American men participating in sport in higher education will also add more support to the conclusion that race and sport are socially constructed in society.
Signaling, Learning and Screening Prior to Trial: Informational Implications of Preliminary Injunctions

The decision to request a preliminary injunction—a court order that bans a party from certain actions until their lawfulness are ascertained in a final court ruling at trial—is an important litigation instrument in many areas of the law including antitrust, copyright, patents, trademarks, employment and labor relations as well as contracts. The process of filing for a preliminary injunction and the court’s ruling on such a request generates information that can affect possible settlement decisions. We consider these implications when there is uncertainty about both the plaintiff’s damages as well as the merits of case in the eyes of the court. Both plaintiff and defendant revise their beliefs about the case strength in dispute once they observe the court’s ruling on preliminary injunctive relief. We study how such learning affects the likelihood of settlement. A precursor to this analysis is the study of the strategic role of preliminary injunctions as a means to signal the plaintiff’s willingness to settle.
Corporate Law After Hobby Lobby

We evaluate the U.S. Supreme Court's controversial decision in the Hobby Lobby case from the perspective of state corporate law. We argue that the Court is correct in holding that corporate law does not mandate that business corporations limit themselves to pursuit of profit. Rather, state law allows incorporation 'for any lawful purpose.' We elaborate on this important point and also explain what it means for a corporation to 'exercise religion.' In addition, we address the larger implications of the Court's analysis for an accurate understanding both of state law's essentially agnostic stance on the question of corporate purpose and also of the broad scope of managerial discretion.
Including Estimates of the Future in Today's Financial Statements

This paper explains why the question is how, not if, today's financial statements should include estimates of the future. Including such estimates is not new, but their use is increasing. This increase results primarily because standard‐setters believe asset and liability measures that reflect current economic conditions and up‐to‐date expectations of the future will result in more useful information for making economic decisions, which is the objective of financial reporting. This is why standard‐setters seem focused on fair value accounting. How estimates of the future are incorporated in financial statements depends on the asset and liability measurement attribute, and on financial reporting definitions of assets and liabilities. The present definitions depend on identifying past transactions or events that give rise to expected inflows or outflows of economic benefits and, for inflows, control over the expected benefits. Thus, not all expected inflows or outflows of economic benefits are recognized. D...
Disclosure of Managers' Forecasts in Interim Financial Statements: A Study of Effective Tax Rate Changes

This study examines whether managerial forecasts of annual effective tax rates, disclosed in interim financial statements, are useful in predicting future quarterly earnings, are incorporated in financial analysts' forecasts of quarterly earnings, or are impounded in stock prices. The integral view of interim financial reporting requires managers to make their best estimate of the effective income tax rate (ETR) to be in effect for the full fiscal year. Thus, the ETR reflected in interim financial statements represents the disclosure of certain private information regarding management's expectations for forthcoming earnings. Auditors review the income tax provision in conjunction with the release of interim financial statements, arguably lending credibility to management's ETR forecast. Our empirical analyses show that interim effective tax rate disclosures are useful in predicting next‐quarter earnings. However, financial analysts generally under‐utilize this information when firms report large decreases...
The Perpetual Anxiety of Living Constitutionalism

It certainly seems like the originalists are winning. Professor Jack Balkin - finding that he couldn't beat 'em - joined them. Living constitutionalists used to turn to Balkin as a reliable advocate; he recently wrote we are all living constitutionalists now. But Balkin has forsaken them. Losing such an important advocate might be a sign that what some once deemed the ascendant and dominant theory in constitutional interpretation is on the decline. Still, don't count living constitutionalism out of the game just yet.
Debt restructurings, holdouts, and exit consents

Abstract This paper investigates the use of exit consents in a sample of bond exchange offers during 1986–1997. We find that exit consents are common, approximately 56% of the exchange offers in our sample have them and 60% of the exit consents are by non-financially distressed firms. Using a probit model, we find that a set of variables that proxy for holdout problems is able to significantly explain the use of exit consents. Reducing holdouts is necessary for timely and efficient debt restructurings and achieving financial stability particularly in sovereign debt markets.
A PRIMAL-DUAL APPROACH TO NONPARAMETRIC PRODUCTIVITY ANALYSIS: THE CASE OF U.S. AGRICULTURE

Nonparametric methods for measuring productivity indexes based on bounds for the underlying production technology are presented. Following Banker and Maindiratta, the lower bound is obtained from a primal approach while the upper bound corresponds to a dual approach to nonparametric production analysis. These nonparametric bounds are then used to estimate input-based and output-based distance functions. These radial measures provide the basis for measuring productivity indexes. Application to times series data on U.S. agriculture indicates a large gap between the primal lower bound and the dual upper bound. This generates striking differences between the primal and dual nonparametric productivity indexes.
Gradient descent with random initialization: fast global convergence for nonconvex phase retrieval

This paper considers the problem of solving systems of quadratic equations, namely, recovering an object of interest $$\varvec{x}^{\natural }\in {\mathbb {R}}^{n}$$ from m quadratic equations/samples $$y_{i}=(\varvec{a}_{i}^{\top }\varvec{x}^{\natural })^{2}, 1\le i\le m$$ . This problem, also dubbed as phase retrieval, spans multiple domains including physical sciences and machine learning. We investigate the efficacy of gradient descent (or Wirtinger flow) designed for the nonconvex least squares problem. We prove that under Gaussian designs, gradient descent—when randomly initialized—yields an $$\epsilon $$ -accurate solution in $$O\big (\log n+\log (1/\epsilon )\big )$$ iterations given nearly minimal samples, thus achieving near-optimal computational and sample complexities at once. This provides the first global convergence guarantee concerning vanilla gradient descent for phase retrieval, without the need of (i) carefully-designed initialization, (ii) sample splitting, or (iii) sophisticated saddle-point escaping schemes. All of these are achieved by exploiting the statistical models in analyzing optimization algorithms, via a leave-one-out approach that enables the decoupling of certain statistical dependency between the gradient descent iterates and the data.
The Reputational Advantages of Demonstrating Trustworthiness: Using the Reputation Index with Law Students

Lawyers should care about their reputations. But exactly what sort of reputation should lawyers seek to establish and maintain in the largely nontransparent context of legal negotiation? And even if a lawyer has developed a reputation as a negotiator, how will he/she know what it is and how it came to be? I force my students to grapple with these questions by incorporating the issues of reputation and reputation development into my negotiation/mediation course. I introduced this innovation at the same time that I decided to increase my focus on developing students' skills in distributive (or value-claiming) negotiation. Although legal negotiation certainly offers frequent opportunities for the creation of integrative joint and individual gains, the process will almost inevitably involve distribution. The pie, once baked, must be cut. As a result, I now base a portion of my students' final grade on the objective results they achieve in two negotiation simulations. Two dangers of this assessment choice are that it can encourage students to focus only on the numbers and, even worse, engage in “sharp practice”— an extreme form of hard bargaining that tests ethical boundaries — in order to achieve the best short-term distributive outcomes. Of course, neither a quantitative focus nor sharp practice is synonymous with a distributive approach to negotiation. Nonetheless, to counterbalance the temptations posed by the focus on, and ranking of, objective results, I also base part of students' final grades on their scores on a “Reputation Index.” These scores are based on students' nominations of their peers, accompanied by explanatory comments. This article describes the Reputation Index and how I use it. It also explores the empirical support for the validity of the Reputation Index as a tool for simulating the development and assessment of lawyers' reputations in the “real world.” To that end, the article considers research regarding the bases for lawyers' perceptions of effectiveness in legal negotiation, the sometimes counterintuitive distinction between negotiation “approach” and negotiation “style,” and the relationships among perceptions of negotiation style, procedural justice, trustworthiness, and reputation.
Hail, No: Changing the Chief Justice

Whatever his substantive accomplishments, the late William Rehnquist’s tenure as Chief Justice of the United States reinforced that office’s distinctive character. Prone to admonish advocates who addressed him merely as “Justice” Rehnquist, he designed spiffy new robes for himself—inspired, apparently, by the character of the Lord Chancellor in Iolanthe—that were on display during the impeachment trial of President Clinton. This reflected, however idiosyncratically, a widely shared understanding of the importance of the office and the glory of holding it. Life tenure is a key part of its appeal. William Howard Taft famously preferred being Chief Justice to being President, and John Quincy Adams noted that while “the power of constructing the law is almost equivalent to the power of enacting it[, t]he office of Chief Justice of the Supreme Court is held for life, that of the President of the United States only for four, or at most for eight, years.”
Institutional entrepreneurship, wikipedia, and the opportunity of the commons

Copyright laws traditionally attempt to incentivize expression and minimize free rider problems through legal restrictions, at the expense of closing off access to cultural history. However, entrepreneurial changes to institutions and the creation of alternative governance structures can allow for spaces that facilitate expression without resorting to the copyright approach. Wikipedia, the free online encyclopedia, stands as a highly visible example of such institutional entrepreneurship, leveraging copyright law against its intended purpose. This paper uses the Bloomington School's IAD framework to explain the success of Wikipedia's alternative model of managing a common resource of free encyclopedia articles, and suggests a roadmap for understanding the role of institutional entrepreneurship in crafting alternative governance structures to foster expression.
Inferring Strategic Voting

We estimate a model of strategic voting and quantify the impact it has on election outcomes. Because the model exhibits multiplicity of outcomes, we adopt a set estimator. Using Japanese general-election data, we …nd a large fraction [75.3%, 80.3%] of strategic voters, only a small fraction [2.4%, 5.5%] of whom voted for a candidate other than the one they most preferred (misaligned voting). Existing empirical literature has not distinguished between the two, estimating misaligned voting instead of strategic voting. Accordingly, while our estimate of strategic voting is high, our estimate of misaligned voting is comparable to previous studies.
What Counts as Fraud? An Empirical Study of Motions to Dismiss Under the Private Securities Litigation Reform Act

This article presents the findings of a study of the resolution of motions to dismiss securities fraud lawsuits since the passage of the Private Securities Litigation Reform Act (PSLRA) in 1995. Our sample consists of decisions on motions to dismiss in securities class actions by district and appellate courts in the Second and Ninth Circuits for cases filed after the passage of the Reform Act to the end of 2002. These circuits are the leading circuits for the filing of securities class actions and are generally recognized as representing two ends of the securities class action spectrum. Post-PSLRA, the Second Circuit applies the least restrictive pleading standard to securities claims and the Ninth Circuit applies the most restrictive. The Ninth Circuit's post-PSLRA reputation as being a tougher venue in which to win securities fraud class actions is borne out by a significantly higher dismissal rate. The differences between the two circuits are also reflected in factors that correlate with dismissal. For example, allegations of violations of accounting principles other than revenue recognition correlate negatively with dismissal in the Second Circuit. This coefficient, however, is insignificant in our regressions for the Ninth Circuit. Allegations of revenue recognition violations are insignificant in both circuits, regardless of whether the issuer has been forced to restate those revenues. The circuits part ways on other factors as well: the Second Circuit is significantly less likely to dismiss cases with allegations of false forward-looking statements, a surprising result given the stringent standards for such statements imposed by the PSLRA. The Ninth Circuit is significantly less likely to dismiss complaints with allegations of ‘33 Act violations, and the Second Circuit is more likely to dismiss cases brought by the Milberg Weiss firm. When it comes to insider trading, however, both circuits are skeptical, and the allegations correlate with dismissal in both circuits.
Globalizing U.S. Employment Statutes Through Foreign Law Influence: Mexico’s Foreign Employer Provision and Recruited Mexican Workers

It is widely acknowledged that Mexican nationals comprise a growing portion of the U.S. workforce, both as authorized and unauthorized workers. The focus on Mexican workers who are currently within the United States overshadows the fact that U.S. employers—typically with the help of their Mexico-based agents—are regularly recruiting and hiring low-wage Mexican workers in Mexico to work in the United States (hereinafter referred to as “recruited Mexican workers”). For instance, it was reported in January 2008 that “Iowa meatpackers actively recruited workers in Mexico” to have enough workers so that they could ship pork “from Iowa slaughterhouses to the rest of America.” Moreover, in conjunction with U.S. work authorization visa programs for low-skilled workers, there are vast networks operating within Mexico to help U.S. employers find employees who will travel to the United States to work. This article considers whether a provision of Mexican labor law—which unconditionally forbids foreign employers from failing to pay recruited Mexican workers’ relocation costs to the United States up front—may influence two domestic U.S. employment statutes in cases involving recruited Mexican workers.
Audit Pricing for Strategic Alliances: An Incomplete Contract Perspective

We study the pricing of audit services for strategic alliances, a governance structure involving an incomplete contract between separate firms. Since incomplete contracts do not specify all future contingencies, we expect that the nonverifiability of information and potential agency behavior in alliances increase audit complexity, resulting in higher audit fees. Our findings support this prediction. We then separate strategic alliances into joint ventures and contractual alliances, as the latter involve more complexity. We find that our audit fee results are largely driven by contractual alliances. We perform additional tests to rule out the concern that our audit fee results might be attributable to the impact of strategic alliances on distress risk, audit risk, or control risk. Contrary to the distress risk argument, we find that auditors are less likely to issue going-concern modified opinions when there is an increase in strategic alliances. Contrary to the audit risk argument, we find that an increase in strategic alliances is unrelated to the likelihood of financial misstatements. Contrary to the control risk argument, we find that an increase in strategic alliances is unrelated to internal control weakness opinions.
Employment as a Limitation on Self-Ownership

All contemporary societies are structured around work. It could be said that work is the organizing principle of most people’s lives; it structures the way they encounter material and social reality as well as the way they achieve status and self-esteem. Generally speaking, a person must be employed in order to consider herself, and be considered, a responsible and respected member of the community. Work understood as employment constitutes a necessity for most people in this world. Although some people may enjoy their work, and achieve self-fulfillment and status, they still work to survive. Few human beings live in the proverbial Garden of Eden; most people have to work in order to make a living. Welfare-state assistance, for those physically and mentally able to work, is neither eternal nor unconditional. This paper argues that the need to work violates effective self-ownership. For the sake of analytical clarity, I take a formalistic understanding of “work” as employment. (wagebased or self-employment). This strategy surely relegates significant normative discussion about the status of work and labor in relation with human nature and morality, as can be found in the works of Marx, Hegel, and many other philosophical luminaries. Taking up an analysis of the notion of work in this deep sense necessitates more space that I can afford to take here and although valuable in itself would not significantly add to the logical soundness of my self-ownership argument as presented in this essay. Defining work formalistically as remunerated activity highlights the obligatoriness aspect of much human effort which, I wish to claim, is constraining in a morally relevant sense, however enjoyable or willfully undertaken. As contemporary Hum Rights Rev (2011) 12:27–45 DOI 10.1007/s12142-010-0165-8
Inferring Accounting Information from Corporate Financing Choices: An Examination of Security Issuances in the Banking Industry*

This study examines the impact of regulatory capital and several of its determinants (i.e., earnings, loan loss provisions, charge-offs and growth) on bank managers' financing decisions and investors' interpretations of those decisions. The analysis is related to two streams of research. We add to the corporate finance literature that seeks to explain the market's reaction to security issuances by developing and testing a refined set of predictions of the demand for debt and equity capital using a sample of capital-regulated firms (banks). We extend the accounting literature that links regulatory capital-management decisions with bank performance by examining whether investors infer that performance. We find that bank managers' financing choices reflect their private information regarding the levels of regulatory capital, earnings, and charge-offs in the issuance year. We document a negative market reaction to capital-increasing issuances and a positive reaction to capital-decreasing issuances. A cross-sectional analysis of that market reaction indicates that investors infer managers' expectations of earnings in the issuance year.
Hearing Voices: Non-Party Stories in Abortion and Gay Rights Advocacy

policy point to be made. Then individual voices demonstrate the reality of those facts. For instance, here is an early example: Before this Court’s decision in Roe v. Wade, state governments were free to substitute their political judgments for the personal, moral judgments of women and the medical judgments of doctors. . . . Women obtained illegal abortions despite the illegality and grave risks involved, as these excerpts from the letters reveal: I remember Tijuana. I remember bugs crawling on walls as I waited for the “second part” of my abortion to take place. . . . I was sent to a “hotel” to wait three hours—a stinking cesspool of urine, sweat, filthy sheets and bugs—unidentifiable crawling creatures all over the walls, floors and crevices. . . . Where else could I have gone in 1963? Each page of the ten-page policy argument contains at least one excerpt from a Silent-No-More letter presented in just this way. Another example is found on page ten: Estimates of illegally induced abortions in the United States in the 1960’s ranged between 200,000 and 1,200,000 a year. Illegal abortions caused large numbers of deaths. In 1965, for example, 235 or 20 percent of all deaths related to pregnancy and childbirth were attributed to abortion. Thus, many women who obtained illegal abortions did not
Worshiping Separation: Worship in Limited Public Forums and the Establishment Clause

This student comment examines the circuit split regarding whether "worship" can be permissibly excluded from limited public forums. It argues that singling out worship for exclusion conflicts with Supreme Court precedent and the historical tradition of using public buildings for public worship services.
The Myth of the ‘Opportunity to Read’ in Contract Law

Standard form contracts in consumer transactions are usually not read by consumers. This “unreadness” of contracts creates opportunities for drafters to engage in unfair trade practices. Various doctrines of contracts and consumer protection law address this concern. One of the prominent solutions coming out of recent proposals for reform is to give individuals a more substantial opportunity to read the contract before manifesting assent. With the greater opportunity to read, more transactors will actually read the terms and assent to the boilerplate will be more “robust.” This Essay argues that solutions that focus on providing consumers an opportunity to read are useless, and can potentially be harmful. Most likely, greater opportunity to read would not produce greater readership of contracts—not the type that can help people make informed decisions—and the purpose of this solution would not be achieved, and could have unintended consequences. Even if the compliance with the requirement of opportunity-to-read is fairly cheap (e.g., giving consumers access to the boilerplate in advance), making this a central feature of the legal regulation of standard form contracts makes little sense. The paper ends by proposing non-legal approaches to making the contract terms more transparent, by building on market devices such as ratings and labeling. ________________________________________________________ ∗ Frank and Bernice Greenberg Professor of Law, University of Chicago Law School (omri@uchicago.edu). Helpful suggestions were provided by Fernando Gomez, Florencia Marotta-Wurgler, Ariel Porat, Carl Schneider, and Mustafa Unlu.
Globalization, Democracy, and the Need for a New Administrative Law

American administrative law is inextricably linked with the history of the relationship of the market to the state. This relationship, especially at the federal level, has varied over time, from the laissez-faire economic philosophy that typified federal involvement (or the lack thereof) in the nineteenth and early twentieth centuries, to the interventionist approaches taken by the federal government during the New Deal and beyond. Indeed, modern administrative law is, in large part, a product of federal attempts to regulate private enterprises through the creation of federal administrative agencies and administrative processes designed to control and legitimate agency power. Elsewhere I have argued that a new administrative law is emerging, characterized in part by the following factors: (1) new blends of public and private power at all levels of government; (2) a redefinition of what is public and what is private; (3) greater reliance on bargaining and negotiation models of decisionmaking when it comes to the way the state exercises its power; (4) a diminution of public participation stemming from increased reliance on privatization and, in effect, the delegation of public functions t o private entities; and (5) a market discourse that arguably narrows the role of noneconomic values in decisionmaking processes.
CEO Incentives—It's Not How Much You Pay, But How*

In this 1990 Harvard Business Review classic, the authors begin by correcting a number of widespread misconceptions: •Contrary to headlines at the time, top executives at the end of the 1980s were not receiving record salaries and bonuses. Instead they were catching up to real levels of pay that prevailed during the 1930s and had dropped sharply since then. •Annual changes in executive compensation during the 1970s and 1980s were largely unrelated to changes in corporate performance, with CEO total compensation varying by only about $3 with every $1,000 change in shareholder wealth. (And the variability of total CEO pay was no higher than that of the compensation of hourly and salaried employees.) •With respect to pay for performance, U.S. compensation practices in the '70s and '80s were getting worse rather than better over time. The percentage of stock ownership by CEOs in large public companies was ten times greater in the 1930s than in the 1980s. And during the previous 15 years (1975-1989), CEO holdings as a fraction of value had actually fallen. With the aim of reversing these trends, the authors offered three recommendations: •Substantial equity ownership by CEOs. •Structuring of cash compensation to provide big rewards for outstanding performance and meaningful penalties for poor performance. •Increased threat of dismissal for poor performance. Since publication of this article in 1990, the first and third of these goals have largely been accomplished (while the second has proved more elusive).
The Consequences of Consequentialist Criteria

The two most significant approaches to redistricting to emerge in the last generation are both consequentialist. That is, they both urge authorities to design—and courts to evaluate— district plans on the basis of the plans’ likely electoral consequences. According to the partisan fairness approach, plans should treat the major parties symmetrically in terms of the conversion of votes to seats. According to the competitiveness approach, districts should be as electorally competitive as is feasible.