cssi/SciSciGPT-SciSciNet huggingface dataset:
By the Light of Virtue: Prison Rape and the Corruption of Character

This article addresses the problem of prison rape in the United States from a philosophical perspective. A series of prison rape "jokes" by public officials and commercial advertisers in recent years seems to celebrate the fact of prison rape, which suggests a disparity between our official conception of prison as a form of punishment in the United States - punitive primarily because of the curtailment of liberty - and the conditions that actually prevail in these institutions. After outlining the nature and scope of the problem of prison rape, the article reviews the Supreme Court's Eighth Amendment jurisprudence as it bears on the duty of corrections officials to ensure the health and safety of prison inmates. This analysis reveals that the traditional liberal rights framework is inadequate to capture the wrongness of prison rape. Specifically, the rights model fails to incorporate considerations of motive and character that seem central to any account of this phenomenon. Virtue ethics provides an alternative normative framework that adds an important dimension to our understanding of the problem of prison rape, including an assessment of the ways in which what we do (or fail to do) defines who we are.
The Superagency Solution

In many parts of the country, hydraulic fracturing has brought energy development onto people’s doorsteps. Efforts by local governments to employ traditional land use mechanisms to study and mitigate some of the impacts of these latest intrusions have erupted into battles over the scope of statewide agencies’ control. Forgotten in this fray are many renewable energy resources. As a general rule, they are not subject to statewide oversight, and consequently renewable energy providers must navigate the myriad of siting and permitting requirements of local jurisdictions. For several years, scholars have urged more statewide renewable energy siting procedures to level the playing field. California is the national leader in renewable energy deployment, yet its statewide energy commission does not have jurisdiction over the siting of photovoltaic solar or wind energy plants. This article explores when statewide siting is beneficial and when * Professor of Law, University of Denver Sturm College of Law. The author would like to acknowledge the following for their valuable assistance with this piece: Kristen T. Castanos, Partner, Stoel Rives, LLP; Megan Day, Senior Project Planner, Juwi Solar Inc.; Michael J. Levy, Secretary/Chief Counsel California Unemployment Insurance Appeals Board and formerly Chief Counsel for the California Energy Commission; Mark Safty, Partner, Holland & Hart; Dana Zentz, VP of Commercial Development, Summit Power Group; and her research assistants, Samantha Peaslee and Levi Stubbs. Access additional articles at SSRN: http://ssrn.com/author=725005 2014 / The Superagency Solution 190 it may be contraindicated, making a case for consolidation of all largescale siting under the purview of California’s “superagency,” the California Energy Commission.
Sovereignty as exchange of political property rights

I develop a positive theory of sovereignty that is rooted in political exchange. The key concept I use to characterize sovereignty is self-enforcing exchange of political rights. I conclude that a sovereign is an individual or body party to political exchange that does not rest on third-party enforcement. Importantly, sovereignty is an emergent phenomenon, defined in the process of bargains between holders of political power. I describe how political bargains within and across polities influences the distribution of political rights characterized by sovereignty, and I conclude by showing how my conception of sovereignty is compatible with theoretical understanding, and practical existence, of polycentric governance.
Majority Norms, Multiculturalism, and Gender Equality

Although many scholars have discussed the conflict that can arise between multiculturalism and gender equality, both critics and defenders of multiculturalism have largely overlooked a variety of interactive dynamics between majority and minority cultures that have important implications for the theory and practice of multiculturalism. Examining cases in the U.S. context, this essay argues for an interactive view of the dilemmas of gender and culture that is attentive to interconnections between majority and minority cultures. What is of particular concern for debates on multiculturalism is that the mainstream legal and normative frameworks within which minority claims for accommodation are evaluated have themselves been informed by patriarchal norms, which in turn have offered support for gender hierarchies within minority cultures. The interactive view defended here suggests the need to scrutinize both minority and majority norms and practices in evaluating the claims of minority cultures.
All the Wild Possibilities: Technology That Attacks Barriers to Access to Justice

Predicting how technology will affect the future of the legal profession is difficult and unreliable work. Technological developments, including document assembly software, have improved the delivery of legal services. However, existing legal services cannot address the bulk of the legal problems faced by the poor. Legal aid agencies are able to handle only 20 percent of the legal needs of the poor. Recently, a modest software tool called “A2J Author” was created to reach a greater portion of the low-income population in need of legal services. A2J Author allows lawyers to build guided Internet interviews for prospective clients and self-represented litigants. This software tool has been adopted across the United States and in several foreign countries as an interface for public access to legal processes. A2J Author originated as a collaboration between courts, legal aid agencies, and funding sources to attack barriers to access to justice. Whether A2J Author can transform the delivery of legal aid and government services to low-income people remains to be seen. Yet A2J Author helps us imagine all the wild possibilities that technology can offer to solve the problem of access of justice.
The Big Game: Metaphor and Education in the Simpson Trial

This article examines the impact of the O.J. Simpson trial on law students’ vision of legal ethics and trial strategy.
Will the SEC Survive Financial Regulatory Reform

The Securities and Exchange Commission’s (“SEC”) conspicuous failures during the financial crisis of 2008 have led many to question the agency’s relevance in the modern financial era. Some commentators have called for the creation of new super-agencies to assume a substantial portion of the SEC’s duties. Others highlight enforcement failures and question the agency’s commitment to its investor protection mission. Despite its recent missteps and persistent calls for regulatory overhaul, the SEC’s future seems secure for now as President Obama’s reform proposals (the “Obama Plan”) as currently conceived preserve the agency’s independence.
The Virtue in Bankruptcy

In response to a gap in the corporate bankruptcy literature, this Article offers a new positive theory of corporate bankruptcy law based on virtue ethics. The dominant theory of corporate bankruptcy law—the creditors’ bargain model—is necessarily incomplete because it does not account for bankruptcy courts’ equitable and discretionary powers, or for bankruptcy courts’ need to consider decision-making criteria other than economic efficiency. By contrast, virtue ethics offers insights about these features of corporate bankruptcy law for at least three reasons. First, bankruptcy courts appear to give content to bankruptcy laws by using virtue ethical principles. Second, virtue ethics’ decisionmaking process—practical wisdom—provides insights into how bankruptcy judges balance concerns about efficiency, justice, and fairness when reaching decisions. This is particularly true when the bankruptcy court’s equitable jurisdiction or discretionary powers are implicated. Third, virtue ethics’ symbiotic consideration of means and ends parallels the process bankruptcy judges are called on to use when exercising their discretionary or equitable powers under numerous provisions of the Bankruptcy Code.
A Right to Voluntary Euthanasia? Confusion in Canada in Carter

In Carter v. Canada (Attorney General), Justice Lynn Smith held that the Canadian Criminal Code’s prohibitions on murder and assisting suicide infringe Sections 7 and 15 of the Canadian Charter of Rights and Freedoms to the extent that those prohibitions outlaw voluntary, active euthanasia and physician-assisted suicide. This article suggests the judgment is defective in at least four key respects: misunderstanding the principle of the inviolability of human life; concluding that laws against assisting suicide discriminate against those physically incapable of committing suicide; evading the logical “slippery slope” argument; and (as the Irish High Court has since concluded in Fleming v. Ireland) misinterpreting the evidence from jurisdictions with relaxed laws.Although the judgment of Justice Smith has been reversed by the British Columbia Court of Appeal, the reversal turned on questions of constitutional law, not on these four criticisms. These criticisms remain important, not least as the case is to be heard by the Supreme Court of Canada.
Tort-Agency Partnerships in an Age of Preemption

At the core of the tort preemption cases before the U.S. Supreme Court is the extent to which state law can impose more stringent liability standards than federal law. The express preemption cases focus on whether the state law requirements are “different from, or in addition to” the federally imposed requirements. And the implied conflict preemption cases examine whether the state law standards are incompatible (impossibility preemption) or at least at odds (obstacle preemption) with the federal regulatory scheme. But the preemption cases in the appellate pipeline — what I shall term the “second wave” of preemption cases — address a separate analytic question. Their focus is less on the substantive aspects of regulatory standards, and more on their enforcement. When can state tort law impose substantive duties or obligations that are “parallel” to federal requirements without thereby encroaching upon a federal agency’s discretionary enforcement prerogative? This is the new frontier in products liability preemption. My proposed model suggests that courts facing these new issues should solicit input from federal agencies before resolving them. The model thereby offers a hybrid private-public model for the regulation of health and safety. It advocates an extension of my “agency reference model” to the “enforcement preemption” context: courts should place more emphasis on FDA input when deciding whether tort requirements are “parallel” to federal dictates, and (perhaps even more so) whether, even if they are, they nonetheless infringe on the federal agency’s discretionary enforcement prerogatives. Courts would thus seek guidance from federal agencies to determine whether a private right of action exists for the enforcement, via state law claims, of federal regulations.
Welfare, Dialectic, and Mediation in Corporate Law

This essay comments on William Klein's Criteria for Good Laws of Business Association. Klein bids us to cull, modify, and restate a set of proposed criteria for good corporate law so as to state the law's goals more clearly. This essay takes up the invitation. It suggests that the criteria on which we can agree lie at a high level of generality: Corporate law makes us all welfare consequentialists who agree that good corporate law is about encouraging productivity. We differ over the means to that end in debates that have over time evolved away from the ideological and toward the functional. Within this framework, corporate law has two core and generally accepted objectives - freedom of action for management and the minimization of the cost of capital. The firm's legal boundaries follow from these core objectives, and adherence to them triggers resistance to theoretical calls for social responsibility and constituent empowerment. In contrast, corporate law's core subject matter, the terms of the shareholder-manager agency relation, implicates tensions between the dual purposes of freedom of action for management and the minimization of the cost of capital. Corporate law mediates these tensions with open-ended terms and piecemeal resolutions. Although theorists have offered meta level means to resolve the tensions, the practice has never responded by endorsing the theories. Absent an ex ante set of empirically verifiable formulas for productive business organization, this debate will continue unresolved.
The U.S. Supreme Court's New Dukedom: The Hour and Year, or a Proposal Quite Near

In late 1999, the federal government sued thirty-six electric power facilities to enforce several of the Clean Air Act's New Source Review (NSR) and New Source Performance Standards (NSPS) provisions. As these cases have slowly churned through the courts, the government has simultaneously tinkered with these rules through various rulemaking initiatives. Taken together, these actions have clouded the meaning of critical NSR and NSPS provisions, and generated many additional civil and legislative battles. This Article focuses on the U.S. Supreme Court's review of one such civil battle - the Fourth Circuit's decision in United States v. Duke Energy Corp. - and EPA's subsequent rulemaking response. The Article first dissects the Fourth Circuit's opinion, argues that it was wrongly decided, and urges the U.S. Supreme Court to reach a different conclusion. Then, the Article outlines EPA's proposed regulatory solution to the Fourth Circuit's decision and proposes two vastly different regulatory responses. Unlike EPA's proposal, this Article's proposals unify the NSR and NSPS provisions and provide greater regulatory flexibility without significantly weakening the NSR program. Regardless of what the U.S. Supreme Court decides, this Article takes the position that Congress or EPA should adopt one of its proposals because the proposals ease industry burdens, provide greater environmental protection, and simplify the entire NSR and NSPS process.
Interference alignment using finite and dependent channel extensions: The single beam case

Vector space interference alignment (IA) is known to achieve high degrees of freedom (DoFs) with infiniteindependent channel extensions, but its performance is largely unknown for a finite number of possibly dependent channel extensions. In this paper, we consider a K-user Mt x Mr MIMO interference channel (IC) with an arbitrary number of channel extensions T and arbitrary channel diversity order L (i.e., each channel matrix is a generic linear combination of L fixed basis matrices). We study the maximum DoF achievable via vector space IA in the single beam case (i.e., each user sends one data stream). We prove that the total number of users K that can communicate interference free using linear transceivers is upper bounded by NL + N2/4, where N = min{M t T, M r T}. An immediate consequence of this upper bound is that for a Single-Input Single-Output (SISO) IC the DoF in the single beam case is no more than min { √5/4K, L + 1/4T}. When the channel extensions are independent, i.e., L achieves the maximum M r M t T, we show that this maximum DoF lies in [M r + M t - 1, M r + M t ] regardless of T. Unlike the well-studied constant MIMO IC case, the main difficulty is how to deal with a hybrid system of equation (zero-forcing condition) and inequalities (full rank condition). Our approach combines algebraic tools that deal with equations with an induction analysis that indirectly considers the inequalities.
A Total Requirements View of a Tourism and Hospitality Market is More Accurate Than Traditional Location Quotients

The traditional use of location quotients to determine the cluster of local industries that produce products and services primarily for export is outdated in that it uses employment ratios only. A better approach uses the total dollars spent locally. Combined with absolute levels of employment, this research shows that the tourism and hospitality industry cluster is very different from those selected traditionally. Dollars-spent-locally uses data from local input–output tables and presents a more accurate profile of the interrelationships among tourism and hospitality industries. The authors illustrate this more accurate approach for one area using current cross-sectional industry data.
Holographic Coulomb Branch Flows with N = 1 Supersymmetry

We obtain a large, new class of = 1 supersymmetric holographic flow backgrounds with U(1)3 symmetry. These solutions correspond to flows toward the Coulomb branch of the non-trivial = 1 supersymmetric fixed point. The massless (complex) chiral fields are allowed to develop vevs that are independent of their two phase angles, and this corresponds to allowing the brane to spread with arbitrary, U(1)2 invariant, radial distributions in each of these directions. Our solutions are ``almost Calabi-Yau:'' The metric is hermitian with respect to an integrable complex structure, but is not Kahler. The ``modulus squared'' of the holomorphic (3,0)-form is the volume form, and the complete solution is characterized by a function that must satisfy a single partial differential equation that is closely related to the Calabi-Yau condition. The deformation from a standard Calabi-Yau background is driven by a non-trivial, non-normalizable 3-form flux dual to a fermion mass that reduces the supersymmetry to = 1. This flux also induces dielectric polarization of the D3-branes into D5-branes.
Size really doesn't matter: In search of a national scale effect

Abstract I search for a “scale” effect in countries. I use a panel data set that includes 200 countries over forty years and link the population of a country to a host of economic and social phenomena. Using both graphical and statistical techniques, I search for an impact of size on the level of income, inflation, material well-being, health, education, the quality of a country's institutions, heterogeneity, and a number of different international indices and rankings. I have little success; small countries are more open to international trade than large countries, but are not systematically different otherwise. J. Japanese Int. Economies 20 (4) (2006) 482–507.
Private Standards in Public Law: Copyright, Lawmaking and the Case of Accounting

Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by non-governmental organizations. Departures from such standards expose citizens to criminal, civil and administrative sanctions, yet private actors generate, control and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach and no framework exists to facilitate analysis. This Article contributes an analytical framework and, for the federal government, nominates the Director of the Federal Register to implement it. Analysis is animated using among the oldest and broadest examples of this pervasive but stealthy phenomenon: embodiment by Congress and the Securities and Exchange Commission of privately-promulgated accounting standards in public law. With accounting standards as a case study, the framework delineates three routes through which private standards are embodied in public law - denominated as strong, weak and semi-strong - and articulates associated copyright and lawmaking consequences. As to copyright, the framework mediates conflicts between public access to legal materials and private incentives to produce standards. It addresses the effect of copyright protection that biases standard setters to focus on quantity instead of quality and prevents third parties from improving standards through derivative works. As to lawmaking, the Article explains alternative governmental strategies to achieve regulatory leverage while adhering to private non-delegation doctrines and publication requirements. The Article appeals to scholars of administrative law, theorists concerned with intellectual property law and its broader political and public policy contexts, and those interested in informational and standard-setting aspects of accounting. Contributions will be of practical use to governmental officials who look to private standards in their regulatory functions, standard-setters in developing standards to aid those officials, and judges in resolving disputes involving citizens subject to or using these standards. While driving new avenues in three specific legal areas (copyright law, administrative law and securities regulation), the Article's inquiry into contemporary lawmaking is of general significance.
Model uncertainty, recalibration, and the emergence of delta–vega hedging

We study option pricing and hedging with uncertainty about a Black–Scholes reference model which is dynamically recalibrated to the market price of a liquidly traded vanilla option. For dynamic trading in the underlying asset and this vanilla option, delta–vega hedging is asymptotically optimal in the limit for small uncertainty aversion. The corresponding indifference price corrections are determined by the disparity between the vegas, gammas, vannas and volgas of the non-traded and the liquidly traded options.
Tax Ferrets, Tax Consultants, Bounty Hunters, and Hired Guns: The Property Tax Netherworld Fueled by Contingency Fees and Champertous Agreements

Contingency fee agreements between local tax assessors and contract auditors on the one hand, and property owners and private tax consultants on the other, create perverse financial incentives that undermine the integrity of state and local tax administration. When local governments engage outside auditors to identify undervalued or escaped taxable property, the practice raises serious due process and ethical concerns. As a matter of policy, diverting a share of property tax revenue to private third parties in consideration for outsourced tax assessment services undermines public accountability and reduces net property tax revenue for local government services. And when states allow private tax consultants to use contingency fee agreements to solicit clients seeking to reduce their share of local property taxes, they unwittingly divert substantial tax revenue to private entrepreneurs. The associated private transaction cost of seeking uniformity in local tax assessment unduly burdens the entire property tax system. Because contingency fee agreements with nonattorneys are generally unregulated by state law, honest taxpayers effectively subsidize not only property tax dodgers, but also contract auditors and private tax consultants.
Integration of the global carbon markets

Abstract This paper analyzes the market architecture and common factors of emission reduction instruments in Europe and North America. Spot and futures prices across exchanges in Europe are cointegrated, but the futures curve beyond the calendar year evolves independently. Despite narrower spreads, political uncertainties about the Clean Development Mechanism have kept EUA and CER prices from converging. RGGI allowances share a common trend with EUA, and the European markets adjust to the U.S. price trend. A $0:10 shock to RGGI prices leads to a one-month $0:64 cumulative increase in EUA prices. The introduction of cap and trade legislation in the U.S. has broken a cointegrating relationship in voluntary prices. Voluntary instruments that are convertible into mandatory allowances imply less than a 20% probability of price convergence between the U.S. and Europe by 2013.
Modeling Trade Direction

I propose a modeling approach to classifying trades as buys or sells. Modeled classifications consider information strengths, microstructure effects, and classification correlations. I also propose estimators for quotes prevailing at trade time. Comparisons using 2,800 US stocks show modeled classifications are 1-2% more accurate than current methods across dates, sectors, and the spread. For Nasdaq and NYSE stocks, 1% and 1.3% of improvement comes from using information strengths; 0.9% and 0.7% of improvement comes from estimating quotes. I find evidence past studies used unclean data and indications of short-term price predictability. The method may help detect destabilizing order flow.
What Have We Learned About Earnings Management? Integrating Discontinuity Evidence

The accounting literature includes numerous examples of discontinuities at prominent benchmarks that are widely interpreted as evidence that earnings are managed to meet those benchmarks. However, there are a few examples where discontinuities do not exist, which are sometimes interpreted as inconsistent with earnings management. Alternative explanations for discontinuities have also been suggested. This paper reviews, evaluates, and integrates the available evidence and concludes that the theory that earnings are managed to meet benchmarks provides the simplest and most complete explanation for the body of discontinuity-related evidence.
AN EMPIRICAL ANALYSIS OF PAYMENT CARD USAGE

This paper exploits a unique data set on the payment card industry to study issues associated with two-sided markets. We show that consumers concentrate their spending on a single payment network (single-homing), although many maintain unused cards that allow the ability to use multiple networks. Further, we establish a regional correlation between consumer usage of one of the four major networks (Visa, Mastercard, American Express and Discover) and merchant acceptance of these cards. This correlation is suggestive of the existence of a positive feedback loop between consumer usage and merchant acceptance. JEL L140, L800 Very preliminary
Making the Case for Megan’s Law: A Study in Legislative Rhetoric

Floor speeches by legislators constitute an important body of legal rhetoric. This article studies the Megan's Law legislative floor debates in both the United States Congress and the New York state legislature. The article begins by setting out three practical purposes of legislative debate. First, it can influence voting decisions. Second, it educates and influences both the media and the voting public. Finally it provides a rich source of interpretive material for the judiciary. The article then sets out a naturalistic description of these speeches, comparing the two jurisdictions. Legislators in both Washington, DC and Albany argued for the new laws primarily by painting a grim picture of the status quo. They offered horrific accounts of individual child victimization, questionable statistical claims about the extent of the molestation and abduction crisis, and dehumanizing descriptions of child sexual offenders. Particularly within the U.S. Congress, legislators spent little time touting bills' virtues or rebutting the many possible criticisms of these controversial provisions. New York legislators, perhaps because of their greater political diversity, offered more nuanced critiques of the bills. The article then assesses legislators' rhetorical tropes and claims. Storytelling, for instance, presented both problems and benefits as a primary rhetorical tool for promoting the new social policy. And despite the apparent value of statistical proof, such empirical data was easily manipulated by savvy legislators. Many issues were underdeveloped during the Megan's Law debates. For example, while virtually all legislators spoke exclusively of white offenders and victims, legislators' rhetoric entirely excluded a discussion of the laws' likely disparate impact on African-Americans. Similarly, few legislators acknowledged that benefits of the law - if any were to be had - would flow almost entirely to suburban, and other low density, communities. Finally, the article considers how the Megan's Law debates educated the public, affected legislative voting, or shaped judicial interpretation of the bills. Because it concludes that the Megan's Law legislative debates did not optimally serve these three practical aims, the article evaluates new approaches to enriching the content of legislative debate. It argues that legislatures could appoint a public legislative advocate - the equivalent of a public defender, within the legislative context - or adopt new codes of debate. In any case, legislators should look for ways to improve and enhance the rhetoric of legislative debate.
Single Crossing Properties and the Existence of Pure Strategy Equilibria in Games of Incomplete Information

This paper analyzes a class of games of incomplete information where each agent has private information about her own type, and the types are drawn from an atomless joint probability distribution. The main result establishes existence of pure strategy Nash equilibria (PSNE) under a condition we call the single crossing condition (SCC), roughly described as follows: whenever each opponent uses a nondecreasing strategy (in the sense that higher types choose higher actions), a player's best response strategy is also nondecreasing. When the SCC holds, a PSNE exists in every finite-action game. Further, for games with continuous payoffs and a continuum of actions, there exists a sequence of PSNE to finite-action games that converges to a PSNE of the continuum-action game. These convergence and existence results also extend to some classes of games with discontinuous payoffs, such as first-price auctions, where bidders may be heterogeneous and reserve prices are permitted. Finally, the paper characterizes the SCC based on properties of utility functions and probability distributions over types. Applications include first-price, multi-unit, and all-pay auctions; pricing games with incomplete information about costs; and noisy signaling games.
Good Buffer, Bad Buffer: Smoothing in Banks’ Loan Loss Provisions and the Response to Credit Supply Shocks

Good Buffer, Bad Buffer: Smoothing in Banks’ Loan Loss Provisions and the Response to Credit Supply Shocks
The Parol Evidence Rule and the United Nations Convention on Contracts for the International Sale of Goods: Justifying Beijing Metals & Minerals Import/Export Corp. v. American Business Center, Inc.

In Beijing Metals & Minerals Import/Export Corp. v. American Business Center, Inc., the Fifth Circuit held that the parol evidence rule applies to contracts governed by the Convention on the International Sale of Goods. Perhaps because the court reached this conclusion without any recorded analysis, and only in footnote, the conclusion initially generated little or no commentary in the literature. Then, Professor Harry M. Flechtner argued in a well-reasoned article that the Fifth Circuit’s conclusion was incorrect. This Note responds to that article, seeking to justify the Fifth Circuit’s elliptic conclusion that the parol evidence rule applies to contracts governed by the Convention. The response is essential, first because the holding in Beijing Metals sets an important precedent for a fledgling area of U.S. jurisprudence, and second because the decision will remain persuasive authority for courts around the world.
CEO compensation, diversification, and incentives

This paper examines the relation between chief executive officers’ (CEOs’) incentive levels and their firms’ risk characteristics. I show theoretically that, when CEOs cannot trade the market portfolio, optimal incentive level decreases with firm's nonsystematic risk but is ambiguously affected by firm's systematic risk; when CEOs can trade the market portfolio, optimal incentive level decreases with nonsystematic risk but is unaffected by systematic risk. Empirically I find support for these predictions. Furthermore, I find that incentives for CEOs likely facing binding short-selling constraints decrease with systematic as well as nonsystematic risk, as predicted by theory. Thus, compensation practice is consistent with predictions of theory.
Respect Worthy: Frank Michelman and the Legitimate Constitution

When people gather to celebrate the contributions of a preeminent scholar like Frank Michelman, the most likely focus of discussion will be the important papers that scholar wrote in years past that have helped define a field and have taken on a canonical status. Frank has certainly written his share of those, and in a number of different areas of legal study. But there is special enjoyment in engaging the ideas of a great scholar that are still being formed and polished. So I take considerable pleasure in devoting my remarks today to Frank’s recent work in constitutional theory. This work begins, more or less, with his 1999 book, Brennan and Democracy, and has continued through a series of short papers and essays. Frank’s focus in these essays, as in much of his work generally, is on the intersection between constitutional theory and liberal political theory; his topic is constitutional legitimacy in a liberal state. Frank wants to know under what conditions a constitutional democracy with a system of judicial review roughly resembling that in the United States can properly make claims to democratic legitimacy, given a world of strong disagreement about the most important issues in political life. After all, when judges on a constitutional court interpret the country’s basic law, they often prevent governments from doing all sorts of things that some people think are necessary to achieve justice. Conversely, judges may permit governments (and individuals) to do all sorts of things that some people think are very unjust indeed. Given very serious disagreements about what is just and unjust, and about the rights and
Connecting social provisioning and functional finance in a post-Keynesian-Institutional analysis of the public sector

This paper establishes connections between the frameworks of social provisioning and functional finance, and discusses a post-Keynesian–Institutionalist theory of the public sector thatemergesoutoftheselinkages.Theconceptofsocialprovisioninghasemergedout of Institutional economics, and has been further developed byinstitutional and other heterodoxeconomists. Its potential as a methodological foundation that connects various heterodox approaches has received some growing attention. Such discussions have not referred in an analyticalmannertofunctionalfinance.Ontheotherhand,theprinciplesoffunctionalfinance havebeenelaboratedanddevelopedoutsideanexplicitgroundinginasocialprovisioningframework. The article specifies further the concept of social provisioning and discusses functional finance within such a framework. The framework of functional finance gains a structural and institutional grounding which enables a deeper and more critical conceptualization of the public sector.
Class Actions in the Administrative State: Kalven and Rosenfield Revisited

This article, one of several for the seventy-fifth anniversary volume of the University of Chicago Law Review, assesses the intellectual contribution of Harry Kalven, Jr. and Maurice Rosenfield's 1941 article in that journal on "The Contemporary Function of the Class Suit." Kalven and Rosenfield anticipated what would emerge thereafter as among the most distinctive features of the American civil justice system: the elaboration, in parallel, of both private class action litigation and public enforcement by the administrative state. Whereas Kalven and Rosenfield sought to delineate the "contemporary function" of the class action, the agenda for the law today consists of resolving two contemporary dilemmas to which that function has given rise. The first dilemma speaks to the tension between the class action device as a vehicle for privatized enforcement and the allocation of authority within the United States along both federal-versus-state and public-versus-private lines. The challenges for the law today in these regards consist of addressing two situations that are the converse of each other. The first consists of what one might describe as a class in search of a settlement; the second involves a settlement in search of a class. Recent developments from the Class Action Fairness Act to the controversial employment discrimination class action in Dukes v. Wal-Mart, Inc. are discussed in this light. The second dilemma stems from the recognition that settlements, not adversarial trials, stand as the endgame for class actions. Here, there is a need both for finality by way of class settlements and for attentiveness to the process due to absent class members. Kalven and Rosenfield's comparison of class actions and the administrative state has the potential to set longstanding debates over due process for absent class members on a new path. Current doctrine casts the basis for preclusion of class members in terms of a mixture of protections in the nature of individual autonomy (rights to participate and to opt out) and fiduciary oversight (from both class counsel and the rendering court). Since the early twentieth century, however, procedural thinking in connection with the administrative state has focused less on the individual autonomy familiar to one-on-one litigation and more on measures to hew - if only roughly - the loyalties of regulators over time to the interests of those they purport to serve. In an era when empirical research has documented the rarity with which rights of individual autonomy are actually exercised in class actions, the law of due process in that sphere would benefit from redirection along lines familiar to the administrative state. The article closes with analysis of some promising developments along these lines, with reference to the emerging literature on positive political accounts of the administrative state.
Labor Market Effects of Population Aging

This paper analyzes effects of population aging on the labor market and determines their broad implications for public policy. It takes Germany as an example, but it equally applies to the other large economies in Continental Europe. The paper argues that, alongside the amply discussed, demographically-determined increase in the contribution and tax burden which is responsible for the ever widening gap between gross and disposable earnings, two other important areas of policy deserve greater attention. First, it is unlikely that the decline in the relative size of the economically active population will be offset by higher capital intensity. Labor productivity will need to increase over and above this mechanism in order to compensate for the impact of population aging on domestic production. Hence, we will need more education and training to speed up human capital formation. Second, the shift in the age structure will also change the structure of demand for goods. This, in turn, will have large effects on the pattern of employment across different sectors of the economy and will require a substantial increase in labor mobility in order to accommodate these structural changes. ADDRESS:
Perfectly competitive innovation

Abstract Based partially on the belief that innovation is not possible under perfect competition, a huge number of papers have been written about the nature of innovation under monopoly or oligopoly. In fact, competitive rents can and do sustain innovation in the complete absence of monopoly power. However, little is known about the source and significance of these rents, or about the way in which innovative activity takes place under conditions of competition. We begin to remedy this imbalance by examining the way in which competitive innovators earn rents both in theory and in practice.
Critical Constitutionalism Now

In the fall of 1999, Mark Tushnet published a celebrated foreword to the Supreme Court edition of the Harvard Law Review arguing that the Rehnquist Court’s decisions could be understood as part of an era marked by divided government and sharply reduced ambitions for the transformative potential of constitutional law.1 Almost exactly two years later, on September 11, 2001, airplanes crashed into the World Trade Center. For the next three or four years, Tushnet’s characterization of our times seemed exactly backward: We appeared to be in the middle of an era of united government and of quite dramatic constitutional transformation. More recently still, things may have shifted yet again. As I write, in early fall of 2006, there has emerged a fragile possibility of a Democratic resurgence coupled with constitutional retrenchment. I cite these facts not to criticize Tushnet, who has been my constant friend and mentor and sometimes co-author for over thirty years. The massive intelligence bureaucracy of the United States government could not predict the World Trade Center attack, so Tushnet can hardly be blamed for failing to foresee it and its aftermath. Instead, I cite them to support one of the great lessons that Tushnet has taught me. The lesson is that we are always in the middle of things and that meaning, therefore, always extends backward rather than forward across time. We embed meaning in texts and events retrospectively, and no actor can control (or at least completely control) the meaning that subsequent generations will give to her words and actions.2 Tushnet has famously made this point with regard to court precedent.3 The meaning of judicial decisions cannot be fully discerned at the time they are decided. Rather, they develop meaning over time as future judges use the cases—often in quite unexpected ways—for their purposes. If this view is correct, and I am persuaded that it is, then it should come as no surprise
Strategic party heterogeneity

Political parties field heterogeneous candidates and send a variety of messages about their policy positions. Yet most voting models maintain that office-seeking parties should enforce intraparty homogeneity and cultivate clear party reputations. This article reconciles theory with reality by identifying a strategic rationale for parties to pursue heterogeneity. I develop a model in which two parties each select a distribution of potential candidates to compete in an upcoming election. The model demonstrates that well-positioned parties should indeed offer homogeneous candidate teams, but that parties with platforms distant from the median voter should cast a wide net. Extensions allow for multiple candidate signals, voters who care about party platforms and candidates’ positions, and voter uncertainty.
Gandhi’s Gift: Lessons for peaceful reform from India’s struggle for democracy

We examine the potential and limitations of nonviolent civil disobedience through the lens of the evolution of an iconic success: India’s struggle for democratic self-rule. We summarize evidence consistent with a theoretical framework that highlights two key challenges faced by nonviolent movements in ethnically diverse countries. The first challenge, that of forging a mass movement, was met through the brokering of a deal that took advantage of an external shock (in this case, the Great Depression) to align the incentives of disparate ethnic and social groups toward mass mobilization in favor of democracy and land reform. The second challenge, that of keeping the mass movement peaceful, was accomplished through organizational innovations introduced by Mohandas Gandhi in his reforms of the constitution of the Congress movement in 1919-23. These innovations took the movement from one dominated by a rich elite to one organized on the principle of self-sacrifice. This permitted the selection of future leaders who could then be trusted to maintain nonviolent discipline in pursuit of the extension of broad rights and public policy objectives.
Going Retro: Abolition For All

The opening of the twenty-first century has seen a flurry of death penalty repeals. This development is encouraging, but only partly so. Amidst the cheers for abolition, there is an unfairness of the highest order: the maintenance of the death penalty for some, but not others, for no other reason than the date of their crimes. State legislatures are repealing the death penalty prospectively only, and these states’ executive branches are leaving their prisoners on death row. In New Mexico and Connecticut, a total of thirteen prisoners remain on death row after those states abolished the death penalty. Some states, however, are “going retro.” In 2012, California’s Proposition 34 would have applied retroactively, reducing over 700 death row prisoners’ sentences to life without parole (“LWOP”). More states should attempt to pass retroactive death penalty repeals, but they are not doing so, for two reasons. The first is political: legislators are not pursuing retroactive legislation because they do not have the votes. The second reason is legal: legislators are not pursuing retroactive legislation because they believe that the separation of powers and state constitutional prohibitions on retroactive laws forbid it. These arguments are reasonable ones, and they reach far beyond the death penalty sphere—to retroactive crack sentencing laws and retroactive juvenile LWOP sentencing laws, among others. This Article argues that neither the separation of powers nor state constitutional prohibitions on retroactive laws prohibits states from retroactively repealing their death penalties. While politics may
An assessment of telecommunications reform in developing countries

The authors analyze the effect of policy reform in basic telecommunications on sectoral performance using a new panel data set for 86 developing countries across Africa, Asia, the Middle East, and Latin America and the Caribbean over the period 1985 to 1999. The authors address three questions: 1) What impact do specific policy changes-relating to ownership and competition-have on sectoral performance? 2) How is the impact of change in any one policy affected by the implementation of the other, and by the overall regulatory framework? 3) Does the sequence in which reforms are implemented affect performance? The authors find that both privatization and competition lead to significant improvements in performance. But a comprehensive reform program, involving both policies and the support of an independent regulator, produced the largest gains-an 8 percent higher level of mainlines and a 21 percent higher level of productivity compared to years of partial and no reform. Interestingly, the sequence of reform matters: mainline penetration is lower if competition is introduced after privatization, rather than at the same time. The authors also find that autonomous factors, such as technological progress, have a strong influence on telecommunications performance, accounting for an increase of 5 percent a year in teledensity and 9 percent in productivity over the period 1985 to 1999.
Does the Market Value Financial Expertise on Audit Committees of Boards of Directors

We examine three-day cumulative abnormal returns around the announcement of 702 newly appointed outside directors assigned to audit committees during a period before implementation of the Sarbanes-Oxley Act (SOX). Motivated by the SOX requirement that public companies disclose whether they have a financial expert on their audit committee, we test whether the market reacts favorably to the appointment of directors with financial expertise to the audit committee. In addition, because it is controversial whether SOX should define financial experts narrowly to include primarily accounting financial experts (as initially proposed) or more broadly to include nonaccounting financial experts (as ultimately passed), we separately examine appointments of each type of expert. We find a positive market reaction to the appointment of accounting financial experts assigned to audit committees but no reaction to nonaccounting financial experts assigned to audit committees, consistent with accounting-based financial skills, but not broader financial skills, improving the audit committee's ability to ensure high-quality financial reporting. In addition, we find that this positive reaction is concentrated among firms with relatively strong corporate governance, consistent with accounting financial expertise complementing strong governance, possibly because strong governance helps channel the expertise toward enhancing shareholder value. Together, these findings are consistent with financial expertise on audit committees improving corporate governance but only when both the expert and the appointing firm possess characteristics that facilitate the effective use of the expertise.