cssi/SciSciGPT-SciSciNet huggingface dataset:
Beyond the (Current) Fourth Amendment: Protecting Third-Party Information, Third Parties, and the Rest of Us Too

For at least thirty years the Supreme Court has adhered to its third-party doctrine in interpreting the Fourth Amendment, meaning that so far as a disclosing party is concerned, information in the hands of a third party receives no Fourth Amendment protection. The doctrine was controversial when adopted, has been the target of sustained criticism, and is the predominant reason that the Katz revolution has not been the revolution many hoped it would be. Some forty years after Katz the Court's search jurisprudence largely remains tied to property conceptions. As I have demonstrated elsewhere, however, the doctrine is not the universal constitutional rule in the United States. Eleven states reject the doctrine, providing some constitutional search and seizure protection to information in the hands of third parties, and another eleven give some reason to believe they might reject it.But it is one thing to urge that some third-party information should by protected, and quite another to articulate how and when different information should be accessible to police. To answer this question it makes sense to turn to the most robust source of practical applications we have, namely those states that have diverged from the federal doctrine. Although state courts often employ a gestalt jurisprudence that defies precise delineation, an analysis of many cases reveals a set of relevant factors that would seem to be consistently useful in determining whether law enforcement access should be restricted, and if so in what manner. What such analysis does not reveal is a tidy system of bright-line delineations, seemingly at odds with two thoughtful alternatives to the current federal doctrine proposed by Daniel Solove and Christopher Slobogin.Part I of this article frames the discussion via recent events. The realization that the National Security Agency has been parsing phone conversations, dialing records, and banking records since the terrorist attacks of September 11, 2001, demonstrates that the third-party doctrine is very much a contemporary concern. The decision last term in Georgia v. Randolph demonstrates that five members of the Supreme Court are willing to depart from the doctrine, at least in the context of the home. Part II then utilizes the existing state (and to a limited extent federal) jurisprudence to determine and explain what factors are relevant in determining whether to constitutionally restrict law enforcement access. This yields an uncertain calculus that also logically challenges the essentially unrestricted ability of law enforcement to probe the recollection of a recalcitrant witness. In Part III I compare my approach to the seemingly more administrable proposals of Professors Solove and Slobogin. I conclude with a tentative defense of the current multi-faceted - and therefore necessarily uncertain - jurisprudence. Although its administrability is imperfect, it more appropriately distinguishes between and among different types and amounts of third-party information.
Are Rights Efficient - Challenging the Managerial Critique of Individual Rights

Introduction 1053 I. Individual Rights in the Adversarial, Economic, and Bureaucratic Contexts 1061 A. Individual Rights and the Theory of the Adversary System..... 1063 1. Advantages of Adversarial Procedures 1063 a. Accuracy and Impartiality 1065 b. Policy Innovation 1067 c. The Integrity of the Adjudicatory Process 1068 d. Negotiation and Accommodation 1069 e. Legitimacy and Acceptance 1070 2. The Disentitlement Movement and Critiques of Adversarial Procedures 1071 a. Narrow Self-Interest 1071 b. Manipulation of Evidence 1072 c. Social Comity 1072 d. Social and Economic Inequalities 1073 B. The Economic Efficiency of Individual Rights 1074 C. Criticism of Entitlements to Public Assistance 1077 1. Weaknesses of the Anti-Entitlement Narrative 1077 2. Confounding Substantive and Structural Changes 1078 II. The Impact and Limits of Enforceable Rights in Public-Benefit Programs 1081 A. Origins of Legal Entitlement as a Management Tool 1082
Are Evidence-Related Ethics Provisions "Law"?

This essay considers the issue of whether evidence-related provisions in the legal ethics codes should be considered law. The essay identifies the pertinent provisions, compares them to their counterparts in evidence law, and considers when and whether judicial and bar standards diverge. To the extent they do, the essay analyzes the possible reasons why and the significance of those reasons for treating the codes= evidence provisions as binding legal constraints. Although on the surface the divide between the professional rules and evidence law seems wide, the essay suggests that the reasons have more to do with the context in which judges and bar associations establish standards than with a difference in normative outlook. The decision of whether to allow particular code provisions to influence legal standards necessarily varies, thus making it impossible to categorically characterize the codes as legal or non-legal in nature.
Globalizing up corporate law

While many criticize globalization as producing a “race to the bottom” in which multinational corporations move activities to nations with less legal protections accorded to workers, the environment, and so on, others argue that globalization may actually lead to an increase in legal protection --- “trading or globalizing up.” This chapter contributes to the dialogue by looking at globalizing up in the corporate law context and specifically at examples in which globalization led to greater legal protections for minority shareholders against self-enriching conduct by controlling parties or large shareholders. While existing literature has examined globalizing up through the importation of corporate laws and corporate governance institutions by nations seeking to attract foreign capital for local corporations, this chapter, by discussing three recent cases, explores how globalization increases protections of minority shareholders when, as a result of international capital flows, foreigners become subject to a different nation’s more demanding corporate law.
THE ROLE OF THE COMMON PRIOR IN ROBUST IMPLEMENTATION

We consider the role of the common prior for robust implementation in an environment with interdependent values. Specifically, we investigate a model of public good provision which allows for negative and positive informational externalities. In the corresponding direct mechanism, the agents’ reporting strategies are strategic complements with negative informational externalities and strategic substitutes with positive informational externalities.We derive the necessary and sufficient conditions for robust implementation in common prior type spaces and contrast this with our earlier results without the common prior. In the case of strategic complements the necessary and sufficient conditions for robust implementation do not depend on the existence of a common prior. In contrast, with strategic substitutes, the implementation conditions are much weaker under the common prior assumption. (JEL: C79, D82)
The effect of underreporting on LIBOR rates

On May 29, 2008, the Wall Street Journal reported that several large international banks were reporting unjustifiably low LIBOR rates. Since then two large banks, Barclays and UBS, have paid significant fines for manipulating their LIBOR rates, and additional banks are expected to be fined. This paper investigates whether the underreporting of LIBOR rates by some banks significantly affected the reported LIBOR rate by testing whether there was a significant change in the relationship between the LIBOR rate and another rate that reflects the default risk of banks.
Changing Patterns of Legal Representation in Divorce: From Lawyers to Pro Se

Governmental assistance for legal representation in civil cases is far greater in the United Kingdom than in the United States of America. This article explores the extent of legal support for low–income Americans, particularly in the area of family law. Examination of the data on self–representation across the United States and over time shows decreased reliance on lawyers. Drawing on institutional and individual perspectives, the article then explores why individuals choose to represent themselves in divorce. What do lawyers add to a divorce besides cost? The article suggests patterns of lawyering depending upon the lawyer and the resources of the client. While some pro se individuals may thrive in the divorce process without the need of a lawyer, others are disadvantaged by the lack of services available to them. The matching process between case needs and legal representation does not work.
MODEL-FREE INFERENCE FOR TAIL RISK MEASURES

Understanding uncertainty in estimating risk measures is important in modern financial risk management. In this paper we consider a nonparametric framework that incorporates auxiliary information available in covariates and propose a family of inferential methods for the value at risk, expected shortfall, and related risk measures. A two-step generalized empirical likelihood test statistic is constructed and is shown to be asymptotically pivotal without requiring variance estimation. We also show its validity when applied to a semiparametric index model. Asymptotic theories are established allowing for serially dependent data. Simulations and an empirical application to Canadian stock return index illustrate the finite sample behavior of the methodologies proposed.
End-of-life decision making: what we don't know, we make up; what we do know, we ignore.

The recent emergence of substantial empirical research in bioethics reveals gaps between “reality” and the normative principles that largely instruct American bioethics and the legal framework of health care. This Article examines how the debate over the appropriate source of legal and ethical norms in medicine has been played out in judicial decisions regarding the legalization of physician-assisted suicide.The article begins with an analysis of the Ninth Circuit’s 1996 majority opinion in Compassion in Dying v. Washington, later reversed by the Supreme Court. In support of the legalization of physician-assisted suicide, the Ninth Circuit emphasized the role of empirical research and public opinion polls. The article also examines the results of SUPPORT, a large empirical study of the principles of bioethics in practice. SUPPORT revealed a gap between physician behavior and the normative expectations of physicians, with researchers responding to the study with a call for increased empirical evidence to test the workability of patient choice in end-of-life care. In response to this wave of “empiricalism” in bioethics, the article points out that what is not known is often made up. The Ninth Circuit’s perception of assisted suicide as beneficial is a value judgment and is unlikely to be resolved empirically. While empirical research could measure physicians’ behavior pre- and post-legalization, it cannot answer whether the behavior is more or less ethical. Further, empirical studies such as SUPPORT are unlikely to ever provide conclusive enough results to predict the direction and impact of change in bioethics.The article also cautions not to ignore what is known. It is possible that, as the Ninth Circuit predicts, physicians will be able to better protect patients if assisted suicide is legalized. However, currently available evidence in the medical treatment of pain reveals a high incidence of pain neglect and non-compliance with patients’ treatment choices. It seems foolhardy to legalize assisted death on the basis of a fantasy of physician commitment to patient choice in health care.
Optimal Priority Structure, Capital Structure, and Investment

We study the interaction between financing and investment decisions in a dynamic model, where the firm has multiple debt issues and equityholders choose the timing of investment. Jointly optimal capital and priority structures can virtually eliminate investment distortions because debt priority serves as a dynamically optimal contract. Examining the relative efficiency of priority rules observed in practice, we develop several predictions about how firms adjust their priority structure in response to changes in leverage, credit conditions, and firm fundamentals. Notably, financially unconstrained firms with few growth opportunities prefer senior debt, while financially constrained firms, with or without growth opportunities, prefer junior debt. Moreover, lower-rated firms are predicted to spread priority across debt classes. Finally, our analysis has a number of important implications for empirical capital structure research, including the relations between market leverage, book leverage, and credit spreads and Tobin's Q, the influence of firm fundamentals on the agency cost of debt, and the conservative debt policy puzzle. The Author 2011. Published by Oxford University Press on behalf of The Society for Financial Studies. All rights reserved. For Permissions, please e-mail: journals.permissions@oup.com., Oxford University Press.
Charismatic Code, Social Norms, and the Emergence of Cooperation on the File-Swapping Networks

In this paper Professor Strahilevitz addresses the question of why individual members of peer-to-peer file-swapping networks such as Napster, Gnutella, and Kazaa consciously choose to share their unlicensed copies of copyrighted content with anonymous strangers despite the absence of economic incentives for doing so. Rational choice theorists and many social psychologists ordinarily expect that in the absence of face-to-face contact or other communication, strangers who expect neither to engage in repeat-player interactions nor to be sanctioned for free-riding will be unlikely to contribute to a public good if such cooperation is somewhat costly. Yet Strahilevitz's study found that a majority of those users who downloaded songs from the MusicCity/Kazaa network shared at least some portions of their music collections with anonymous peers, despite an absence of face-to-face contact and a near absence of other user-to-user communication and repeat-player interactions. Previous research has suggested that many of these users do incur real costs in order to share their content. Strahilevitz attributes this cooperative behavior in part to the file-swapping networks' "charismatic code." Charismatic code is a technology that presents each member of a group with a distorted picture of his fellow group members by magnifying cooperative behavior and masking uncooperative behavior. Strahilevitz argues that users who are exposed to charismatic code and benefit from other users' contributions to these networks are likely to mimic the cooperative behavior they observe. The social norm of reciprocity can therefore engender surprisingly robust cooperation in environments that are characterized by fleeting interactions among anonymous individuals. Strahilevitz concludes that cooperative uploading is nevertheless the weak link in peer-to-peer file transfers, observing that strategies that magnify the prevalence of free-riding or otherwise diminish users' impulse to upload present attractive possibilities for curtailing copyright infringement on the Internet.
On the use of instrumental variables in accounting research

Abstract Instrumental variable (IV) methods are commonly used in accounting research (e.g., earnings management, corporate governance, executive compensation, and disclosure research) when the regressor variables are endogenous. While IV estimation is the standard textbook solution to mitigating endogeneity problems, the appropriateness of IV methods in typical accounting research settings is not obvious. Drawing on recent advances in statistics and econometrics, we identify conditions under which IV methods are preferred to OLS estimates and propose a series of tests for research studies employing IV methods. We illustrate these ideas by examining the relation between corporate disclosure and the cost of capital.
Is It the Investment Bank or the Investment Banker? A Study of the Role of Investment Banker Human Capital in Acquisitions

Using a novel data set that links individual investment bankers to the acquisition deals they advise on, we find that individual investment bankers with greater deal experience are associated with higher acquisition returns and post-acquisition operating performance, particularly for acquirers in complex and more opaque industries. The advisory fee on acquisitions is also positively associated with the investment banking team’s experience. Finally, when more experienced investment bankers switch to a new bank, acquirers are more likely to move with them. Overall, our results suggest that the human capital of individual investment bankers is valuable to acquirers.
Regulatory ambiguity in the market for bitcoin

The standard economic approach to considering the effects of a policy tends to neglect the prospect of regulatory ambiguity. I describe four sources of regulatory ambiguity and survey the literature considering the effects of ambiguity on entrepreneurial activity. I also explain how jurisdictional redundancy, where multiple agencies regulate the same action or industry, increases the likelihood of regulatory ambiguity. I offer a brief description of the regulatory environment of bitcoin in the United States in order to provide specific examples of the sources of regulatory ambiguity identified herein.
Economic consequences of aviation system disruptions: A reduced-form computable general equilibrium analysis

Abstract The state of the art approach to economic consequence analysis (ECA) is computable general equilibrium (CGE) modeling. However, such models contain thousands of equations and cannot readily be incorporated into computerized systems to yield rapid estimates of economic impacts of various types of transportation system failures due to natural hazards, terrorist attacks or technological accidents. This paper presents a reduced-form approach to simplify the analytical content of CGE models and make them more transparent and enhance their utilization potential. The reduced-form CGE analysis is conducted by first running simulations one hundred times, varying key parameters, such as the magnitude of the initial shock, duration, location, behavioral responses, and resilience, according to a Latin Hypercube sampling procedure. Statistical analysis is then applied to the “synthetic data” results in the form of both ordinary least-squares and quantile regression. The analysis yields linear equations that are incorporated into a computerized system and utilized along with Monte Carlo simulation methods for propagating uncertainties in economic consequences. Although our demonstration and discussion focuses on aviation system disruptions caused by terrorist attacks, the approach can be applied to a broad range of threat scenarios.
Cross Dressing and the Criminal

Drawing upon cultural studies, literary theory, and criminal law, Cross Dressing and the Criminal argues that cross dressing as a metaphor, as a sign, as a practice has the potential to subvert not only expectations about gender, but also about race, sexuality, class, and status. Taking up Judith Butler's suggestion that we could all benefit from serious play, and turning to the criminal arena, this essay conceptualizes a justice system in which officers, prosecutors, jurors, and judges engage in imaginative acts of cross dressing in cases where implicit biases may be present. Such imaginative acts, the essay argues, would not only have the salutary effect of foregrounding such biases. It would also allow decision-makers to override them.
Skewness Preference and Seasoned Equity Offers

We find that the degree of expected idiosyncratic skewness in seasoned equity issuers’ stock returns is an important determinant of flotation costs and subsequent abnormal stock performance. High skewness issuers incur significantly greater offer price discounts, particularly when institutional share allocation is largest, pay higher gross underwriting spreads, and exhibit poorer stock performance in the three years after issuance, all compared to low skewness issuers. These results suggest that skewness-induced overpricing increases the flotation costs of seasoned equity offers and leads to poor subsequent stock performance.
Constitutionalism: East Asian Antecedents

To what degree can traditional Asian political and legal institutions be seen as embodying constitutionalist values? This question has risen to the fore in recent decades as part of a new attention to constitutionalism around the world, as well as the decline in orientalist perceptions of Asia as a region of oppressive legal traditions. As constitutionalism has spread beyond its alleged homeland in the West, it behooves us to ask about the relationship between the particular ideas that emerged in enlightenment Europe and North America with the previous political-cultural understandings of non-European societies. This inquiry has implications for thinking about legal transplants, and for our understanding of how constitutions work in the contemporary world. Ultimately, it calls into question the Western narrative of exceptionalism, in which constitutionalism and the rule of law are seen as distinctive Western contributions.
Independence of Capacity Ordering and Financial Subsidies to Risky Suppliers

The risk of supply disruptions because of suppliers' financial problems plays a prominent role in manufacturers' risk portfolios. Even large suppliers (e.g., Delphi) could file for bankruptcy, and manufacturers' actions, such as financial subsidies to suppliers, profoundly affect suppliers' financial health. Using a dynamic, stochastic, periodic-review model of the manufacturer's joint capacity reservation and financial subsidy decisions and a general firm-value model of the supplier's financial state, this paper addresses the following questions: What is the optimal joint capacity ordering and financial subsidy policy for the manufacturer? Must subsidy and capacity ordering decisions be made jointly? How good are the recommendations from the traditional procurement models, which ignore the benefits of controlling the supplier's financial state through subsidies? The paper presents general assumptions that allow the manufacturer to make ordering decisions independent of subsidy decisions and investigates interactions between ordering and subsidy decisions when these assumptions are violated. Conditions are presented for the optimal subsidy policy to have a “subsidize-up-to” structure and for the optimal ordering decisions to be newsvendor fractiles.
Market Value Signal Extraction and the Misapplication of SFAS 133 in the U.S. GSE's

Abstract The misapplication of the Statement of Financial Accounting Standards 133 in the U.S. Government-Sponsored Enterprises had obscured the first signals of trouble in mortgage securities. Still, regulators should have detected signals using their market value of equity measure, after statistical modification of related balance sheet accounts. The nonlinearity in this measure would imply that any implementation by management could significantly understate the exposure of portfolio equity to interest rate changes.
ICT use in the developing world: An analysis of differences in computer and internet penetration

Computer and Internet use, especially in developing countries, has expanded rapidly in recent years. Even in light of this expansion in technology adoption rates, penetration rates differ markedly between developed and developing countries and across developing countries. To identify the determinants of cross-country disparities in personal computer and Internet penetration, both currently and over time, we examine panel data for 161 countries over the 1999-2004 period. We explore the role of a comprehensive set of economic, demographic, infrastructure, institutional and financial factors in contributing to the global digital divide. We find evidence indicating that income, human capital, the youth dependency ratio, telephone density, legal quality and banking sector development are associated with technology penetration rates. Overall, the factors associated with computer and Internet penetration do not differ substantially between developed and developing countries. Estimates from Blinder-Oaxaca decompositions reveal that the main factors responsible for low rates of technology penetration rates in developing countries are disparities in income, telephone density, legal quality and human capital. In terms of dynamics, our results indicate fairly rapid reversion to long run equilibrium for Internet use, and somewhat slower reversion for computer use, particularly in developed economies. Financial development, either measured as bank lending or the value of stocks traded, is also important to the growth rate of Internet use.
Money models for MOOCs

Massive Open Online Courses (MOOCs) have faced a number of challenges developing sustainable revenue. In response, this article describes possible business models based on who pays (states, students, employers, or sponsors) and what they might pay to receive (content, skills certification, analytics, or activity). This leads to several unconventional possibilities, such as problem sponsored learning, collaborative group learning, and syndication in addition to many conventional possibilities, such as tuition, credentialing, and recruiting.
The Evolution of Lease-Purchase Guidelines in the State of Texas

Lease purchases, if used effectively, can be a viable means for governments to finance real property. This article describes the state of Texas' experiences with lease purchases of real property and the guidelines that the state has developed in attempts to improve the management of lease purchases. The article also discusses lessons learned in Texas that may be applicable to other governments and presents a framework for the effective management of lease purchases.
Reciprocity, non-discrimination and preferential agreements in the multilateral trading system

Abstract We present a framework for understanding and interpreting reciprocity and non-discrimination, the two principles that are the pillars of the multilateral trading system as embodied in GATT and its successor, the WTO. We show that the principle of reciprocity serves to neutralize the world-price effects of a country's trade policy decisions, and hence can deliver efficient trade-policy outcomes for its member governments provided that the externalities associated with trade intervention travel through world prices. We then establish that externalities indeed travel in this way if and only if tariffs also conform to the principle of non-discrimination (MFN). In this way, the principles of reciprocity and non-discrimination can work in concert to deliver efficient outcomes for the multilateral trading system. We also consider within our framework the implications of preferential agreements for the multilateral trading system. The introduction of free trade agreements complicates the way in which externalities are transmitted across countries, and in this environment the principle of reciprocity can no longer deliver efficient multilateral outcomes for its member governments. We do find, however, a limited place for customs unions in the multilateral trading system, provided that the member countries of the union have similar political preferences. As these conditions are quite stringent, we offer little support for the hypothesis that the principle of reciprocity can deliver an efficient multilateral trade agreement in the presence of preferential agreements. Instead, our results offer support for the view that preferential agreements pose a threat to the existing multilateral system.
A Liberalism of Sincerity: The Role of Religion in the Public Square

This article considers the extent to which the liberal nation-state ought to accommodate religious practices that contravene state law and to incorporate religious discourse into public debate. To address these questions, the article develops a liberalism of sincerity based on John Locke’s theory of toleration. On such an account, liberalism imposes a duty of sincerity to prevent individuals from consenting to a regime that exercises control over matters of core concern such as faith, religion, and conscience. Liberal theory grounds the legitimacy of the state in the consent of the governed, but consenting to an intolerant regime is illegitimate because it empowers government to demand insincere conduct. Thus, demanding that citizens pursue sincerity ensures that they do not consent away their individual liberties in exchange for promises of security and orderliness. The focus on sincerity also reorients the value that liberalism places on religious pluralism. Although many liberal theorists have proposed that religious pluralism is valuable because it provides individuals with a range of choices on how to live the good life, such theories provide little reason to promote and protect any particular religion. Indeed, if religions are important only because of the range of choice they provide, then the only concern of liberalism is to maintain enough religions so as to provide a meaningful range of options for how to live the good life; conversely, there is no reason to provide accommodations for any particular religion to aid its survival. By contrast, a liberalism of sincerity impels the liberal nation-state to widen the protections afforded to the expressions of sincerity, such as religious conduct and religious discourse. Because religious conduct and religious arguments flow from an individual’s commitment to sincerity, liberalism should provide broad protection for such religious activity in order to enable citizens to pursue sincerity.
Collateral damage: Dollar strength and emerging markets’ growth

Abstract We document a negative relation between the strength of the U.S. dollar and emerging markets’ growth: when the dollar is strong, emerging markets’ real GDP growth decreases—and vice versa. The main transmission channel is through (i) an income effect owing to the impact of the dollar on global commodity prices, and (ii) capital/production-inputs imports. As the dollar strengthens, dollar-commodity prices fall, depressing domestic demand growth via lower dollar income, thus reducing emerging markets’ growth. Domestic demand decelerates in countries relying on importing capital/inputs for domestic production, as their cost increases when their currencies weaken, despite any expansionary expenditure-switching effect.
The Cape Town Convention's International Registry: decoding the secrets of success in global electronic commerce

The International Registry, established pursuant to the Cape Town Convention on International Interests in Mobile Equipment, is a new global electronic commerce system for recording and establishing the relative priority of interests in aircraft equipment. Other examples of global electronic commerce systems include the airline computer reservation system, the SWIFT financial network, and payment card networks. The International Registry may be the most successful global electronic commerce system ever built in terms of the speed with which it was implemented, its adoption rate, and the dearth of controversy surrounding its operation. The real ‘driver’ of its success is demand for a more efficient aircraft financing regime, while its design is an ‘enabler’ of the realization of that goal. This paper also will identify some other factors that have contributed to its remarkable success, and will note how the relative absence of such factors may have limited the success of other global electronic commerce sy...
On the urbanization of poverty

The author identifies conditions under which the urban sector's share of the poor population in a developing country will be a strictly increasing and strictly convex function of its share of the total population. Cross-sectional data afor 39 countries and time-series data for for India are consistent with the expected theoretical relationship. The empirical results imply that the poor urbanize faster than the population as a whole. But the experience across developing countries suggests that a majority of the poor will still live in rural areas long after most people in the developing world live in urban areas.
Schooling and health: The cigarette connection☆

Schooling is significantly correlated with health status, but is the relationship causal? This paper tests the hypothesis that schooling causes differences in an important health-affecting behavior: cigarette smoking. The most striking result is that for persons with 12 to 18 years of completed schooling, the strong negative relation between schooling and smoking observed at age 24 is accounted for by differences in smoking behavior at age 17, when all subjects were still in the same grade. Causality from schooling to smoking, and by implication from schooling to health, is rejected in favor of a ‘third variable’ hypothesis.
The Role of Public Reason in Obergefell v. Hodges

Public reason, as developed by John Rawls, is the idea that the “moral or political rules that regulate our common life be, in some sense, justifiable or acceptable to all those persons over whom the rules purport to have authority.” This Essay explores the role that the idea of public reason plays in the opinions of Justice John Roberts and Justice Anthony Kennedy in Obergefell v. Hodges, the Supreme Court's 2015 landmark decision recognizing a constitutional right to same-sex marriage (SSM). Most notably: Roberts accuses Kennedy of violating public reason by grounding the right to SSM on a sectarian creed, namely, the comprehensive liberalism espoused by John Stuart Mill. Kennedy implicitly reproves citizens who support SSM bans on religious grounds, perhaps gesturing towards a civic duty or etiquette to refrain from supporting laws based solely on one’s creed. Roberts in turn criticizes Kennedy for unfairly applying the demands of public reason to ordinary citizens. In these ways, Roberts and Kennedy act less like exemplars of public reason, the role that Rawls envisions for a supreme court, and more like whistleblowers of others’ violations and misapplications of the idea.
Limited Liability Company Citizenship: Reconsidering an Illogical and Inconsistent Choice

The trend in diversity actions in Federal Court is to rigidly apply the formalistic rules for determining citizenship (aggregate or entity) to deem limited liability companies (LLCs) to have aggregate or "partnership" citizenship. While the approach is designed to reduce the federal docket; there is no evidence that it works. More importantly, this result-oriented approach is not based on well-reasoned analysis. This approach creates several illogical and inconsistent results. It bears no reflection on modern business realities, it undermines well established principles of law, and it undercuts the purpose for which diversity jurisdiction was established, This article suggests that, just as our ever evolving society forced the formalistic rules of Pennoyer to give way to the more functional approach in International Shoe, it is time for the formalistic rules for determining citizenship to evolve to reflect the modern realities of business organizations like the LLC.
Building a Strong Foothold in an Emerging Market: A Link Between Resource Commitment and Environment Conditions*

This study examines how MNEs align resource commitment with environmental conditions (challenges and opportunities) when they invest in a foreign emerging market. MNEs often face a dilemma in allocating resources to this environment: without this commitment, they cannot build a strong competitive foothold; yet with over-commitment, there is excessive economic exposure. Our analysis of MNEs in a major emerging market suggests that resource commitment is an inverse function of market uncertainty and this inverse link is stronger for less strategically proactive MNEs. Resource commitment is also an increasing function of market opportunities and this function is stronger for firms emphasizing demand-side (as opposed to cost-side) gains. In addition, in a highly volatile industry, resource commitment is negatively associated with cultural distance, but in a relatively stable industry, it is positively associated with cultural distance. And finally, as foreign subsidiaries become older, the influence of cultural distance on resource commitment is weakened.
Tiers of Scrutiny in Enumerated Powers Jurisprudence

This Article identifies and analyzes the recent emergence of a “tiers of scrutiny” system in Supreme Court jurisprudence respecting the boundaries of Congress’s enumerated powers. The inquiry is motivated by the Court’s recent ruling on the federal healthcare law, which demonstrated that the national legislature’s election among its diverse textual sources of authority in Article I can have large, outcome-determinative consequences in constitutional challenges to federal laws. This is so because the Court not only delineates each power’s substantive boundaries differently but also applies distinct standards of review to the various legislative powers enumerated in Article I and elsewhere in the Constitution. Variation in the standard of review generates both synchronic and diachronic oscillation in the quantum of empirical justification and means-end rationality demanded of Congress. This observed heterogeneity in the judicial demand for legislative rationality and empirical evidence is quite distinct from questions of how broadly or narrowly the substance of each enumerated power is defined. This Article’s threshold contribution is a comprehensive documentation of variation in doctrinal formulae concerning the standard of review in enumerated powers cases. Having demonstrated the existence of tiers of scrutiny for enumerated powers, it then evaluates their use in enumerated powers jurisprudence. Drawing on political science scholarship, social choice theory, and public choice theory, it demonstrates that the Court’s use of tiers of scrutiny has deleterious effects on judicial and legislative incentives and behavior. This Article then identifies six potential justifications for the Court’s emergent practice of calibrating judicial review differentially by enumerated power. Closely examining each of those six justifications for stratified review, it finds all of them wanting. At the same time as it creates negative externalities, therefore, the practice of tiered review for enumerated powers lacks any compelling normative justification. By abandoning the emerging tiers of scrutiny and instead employing a lockstep approach to the review of enumerated powers, this Article suggests, federal courts would reduce opportunities for strategic behavior by judges and elected officials. The proposed doctrinal reformulation would also introduce clarity into a currently opaque, yet abidingly important, domain of public law.
Who Controls the Budget; The Legislature or the Executive?

Country-specific factors prevent a strong linear relationship between the legislature's budgetary powers and the extent of its separation from the executive. Electoral and voting systems, bicameralism, constitutional and legal constraints, voluntary contracts of political parties, and long-standing traditions all influence the relative budgetary powers of executives and legislatures. Differences in the legislature's budgetary authority in twenty-eight countries with five different forms of government are examined. It is concluded that differences in budgetary powers within a particular form of government are as great as those between different forms of government.
Optimal toeholds in takeover contests

Abstract We offer an explanation for why raiders do not acquire the maximum possible toehold prior to announcing a takeover bid. By endogenously modeling the target firm's value following an unsuccessful takeover we demonstrate that a raider may optimally acquire a small toehold even if the acquisition does not drive up the pre-tender target price. This occurs because although a larger toehold increases profits if the takeover succeeds it also conveys a higher level of managerial entrenchment and hence a lower firm value if the takeover fails. We derive new predictions regarding the optimal toehold and target value following a failed takeover. We also examine the impact of a rival bidder and dilution.
Dissecting the idiosyncratic volatility anomaly

Abstract The idiosyncratic volatility (IVOL) anomaly, documented in Ang, et al. (2006), has garnered a great deal of attention in the literature. Yet questions remain regarding the robustness and pervasiveness of the IVOL anomaly, with a particular concern that the IVOL anomaly might simply be the manifestation of market microstructure effect. In this paper, we show that the IVOL anomaly is strong and pervasive after we exclude stocks most susceptible to market microstructure noise — such as microcap stocks, penny stocks, and stocks with strong short-term return reversal. These results are robust to equal-weighting or value-weighting stocks in the IVOL portfolios. Our findings suggest that rather than being the cause of the anomaly, market microstructure noise actually weakens the IVOL anomaly.
Multiple directorships and corporate diversification

Abstract This paper investigates the impact of multiple directorships on corporate diversification. We hypothesize that multiple directorships affect the quality of managerial oversight and, thus, influence the degree of corporate diversification and firm value. The empirical evidence lends credence to this notion. Specifically, we find that directors’ busyness is inversely related to firm value. In other words, firms where board members hold more outside board seats suffer a deeper diversification discount. Further analysis also reveals that the negative effect of having overcommitted directors on the board is more pronounced in firms where agency costs are more severe, suggesting that the diversification discount is driven by agency conflicts. Our results aptly fit into the on-going debate on the benefits and detriments of multiple directorships.
What does the term structure tell us about future inflation

Abstract This empirical analysis indicates that for maturities of six months or less, the term structure of nominal interest rates provides almost no information about the future path of inflation but does provide information about the term structure of real interest rates. However, as maturities lengthen to nine and twelve months, the nominal term structure begins to contain information about future inflation, but ceases to provide information about the real term structure. These results are explained by differences in the relative variability of expected future inflation changes and real term structure slopes at different points in the term structure.
Performance reversals and attitudes towards risk in the venture capital (VC) market

Abstract In this paper, we find evidence of reversals in relative exit performance between the “short” and “long-run” in the VC market, with the short-run defined to be the first 5 years of business, and the long-run, the 6th year of business onwards. Using proxies for the risk of venture capital assets that are derived from VCs’ risk management strategies—investment staging and deal syndication—we find reversals in relative performance are explained by the coexistence of persistent and non-persistent attitudes towards risk along two complementary dimensions. First, while syndication strategy is persistent, attitudes towards portfolio risk reverse between the short- and long-run periods, such that syndication is associated with high risk portfolios in the short-run, and low risk portfolios in the long-run. Second, VCs that hold high quality portfolios in the short-run do not persist with this strategy; however, high quality portfolios are associated with superior long-run exit performance. The performance effects of the transitions in attitudes towards risk that we observe are consistent with theories of costly reputation building in markets characterized by adverse selection problems and empirical evidence that VCs’ deal screening skills are more important for success than advisory or monitoring skills.
Fixed Justice: Reforming Plea-Bargaining With Plea-Based Ceilings

The ubiquity of plea bargaining creates real concern that innocent defendants are occasionally, or perhaps even routinely, pleading guilty to avoid coercive trial sentences. Pleading guilty is a rational choice for defendants as long as prosecutors offer plea discounts so substantial that trial is not a rational strategy regardless of guilt or innocence. The long-recognized solution to this problem is to enforce limits on the size of the plea/trial sentencing differential. As a practical matter, however, discount limits are unenforceable if prosecutors retain ultimate discretion over charge selection and declination. Because the doctrine of prosecutorial charging discretion is immune to challenge, conventional fixed discounts are doomed to failure. This Article urges abandoning the effort to constrain prosecutors' discretion to make lenient plea offers and instead shifting regulatory focus to the creation of sentencing rules that prevent trial courts from imposing overly harsh trial sentences. The Article makes an original contribution to the plea bargaining literature by demonstrating that effective enforcement of discount limits is possible through adoption of plea-based ceilings. Ceilings would limit sentence differentials by ensuring that trial sentences do not exceed plea sentences by more than a modest amount. Because ceilings focus on limiting punitive trial penalties rather than preventing overly lenient plea offers, ceilings are practically enforceable in a way that conventional fixed discounts are not, and thus promise a method to improve the guilt/innocence sorting function of criminal procedure.
A Dynamic Network Oligopoly Model with Transportation Costs, Product Differentiation, and Quality Competition

This paper develops a new dynamic model of Cournot---Nash oligopolistic competition that includes production and transportation costs, product differentiation, and quality levels in a network framework. The production costs capture the total quality cost, which, in turn, can also represent the R&D cost. We first present the equilibrium version and derive alternative variational inequality formulations. We then construct the projected dynamical systems model, which provides a continuous-time evolution of the firms' product shipments and product quality levels, and whose set of stationary points coincides with the set of solutions to the variational inequality problem. We establish stability analysis results using a monotonicity approach and construct a discrete-time version of the continuous-time adjustment process, which yields an algorithm, with closed form expressions at each iteration. The algorithm is then utilized to compute solutions to several numerical examples. The framework can serve as the foundation for the modeling and analysis of competition among firms in industries ranging from food to pharmaceuticals to durable goods and high tech products, as well as Internet services, where quality and product differentiation are seminal.
Markets for Power in the United States: An Interim Assessment

The transition to competitive wholesale and retail markets for electricity in the U.S. has been a difficult and contentious process. This paper examines the progress that has been made in the evolution of wholesale and retail electricity market institutions. Various indicia of the performance of these market institutions are presented and discussed. Significant progress has been made on the wholesale competition front but major challenges must still be confronted. The framework for supporting retail competition has been less successful, especially for small customers. Empirical evidence suggests that well-designed competitive market reforms have led to performance improvements in a number of dimensions and benefited customers through lower retail prices.