cssi/SciSciGPT-SciSciNet huggingface dataset:
The Relevance of International Law to the Domestic Decision on Prosecutions for Past Torture

The US, as a champion of human rights abroad, has often been skeptical and even critical when other states have granted de facto amnesty allowing impunity for gross violations of human rights. Nonetheless, some now argue that the US should turn a blind eye to the evidence indicating that under the Bush Administration US government officials formulated and implemented a policy of torture. Naturally, arguments about US national security have been central to the debate. The CIA’s own reports insist that enhanced interrogation techniques have been effective in yielding valuable information vital to the national security of the United States, but the utility of torture, is subject to question. Complicated though it may be, the debate over whether to prosecute officials for past acts of torture is a very important discussion to have. Unfortunately, it is being conducted on an unduly narrow basis. It is true that torture violates US law and would be the essential basis of any such prosecution. This might suggest that the decision is a matter solely within the domestic jurisdiction of the US. But in addition to US domestic laws the US has obligations under international law regarding the crime of torture. These too are relevant to this important debate. Enlarging the US internal debate to include relevant aspects of international law should not be objectionable, because international torture norms are essentially US core norms. Their application to the US helps to reinforce the values and processes of our own Constitution. The prohibition of torture under international law mirrors the prohibition of cruel or unusual punishment under the 8th Amendment of the US Constitution, while the Torture Convention’s mandatory enforcement regime complements the rule of law under the US Constitution by requiring the investigation and prosecution of those who commit torture. The shocking history of US torture policy under the Bush Administration demonstrates that at times even the US needs external pressure to respect its own values.Successful prosecution now may be difficult due to reliance upon (subsequently withdrawn) opinions by the Justice Department’s Office of Legal Counsel (OLC) which suggested that many acts of torture, such as water-boarding were indeed legal. Despite this difficulty, US failure to pursue the option of prosecution would only compound any previous US violations of the Torture Convention.
Managers’ Unethical Fraudulent Financial Reporting: The Effect of Control Strength and Control Framing

In response to numerous recent cases involving materially misstated financial information arising from fraudulent financial reporting, companies, auditors, and academics have increased their focus on strengthening internal controls as a means of deterring such unethical behaviors. However, prior research suggests that stronger controls may actually exacerbate the very opportunistic behavior the controls are intended to curb. The current study investigates whether the efficacy of an implemented control is conditioned on not only the strength of the control (weaker or stronger), but also on how the firm frames the purpose for implementing the control (e.g., monitoring or coordinating). A monitoring purpose frames controls as reducing managers’ opportunities to engage in self-interested behavior, while a coordinating purpose frames controls as facilitating coordination between the firm and its managers. We posit that the efficacy of stronger controls to reduce unethical fraudulent reporting depends on the control frame. Using an experiment, this study investigates the interactive effect of control strength and control frame on managers’ fraudulent reporting decisions. As predicted, our results show that when controls are framed for monitoring purposes, stronger controls result in less fraudulent reporting than weaker controls. Conversely, when controls are framed for coordinating purposes, stronger controls result in more fraudulent reporting than weaker controls. Our results suggest that an inconsistency between the firm’s choice of the control strength and the control frame reduces the efficacy of the implemented control to curb unethical reporting behaviors. Furthermore, supplemental analysis shows that managers’ rationalization helps explain the interactive effect of control strength and communicated control purpose on fraudulent reporting.
Significance tests harm progress in forecasting

Abstract I briefly summarize prior research showing that tests of statistical significance are improperly used even in leading scholarly journals. Attempts to educate researchers to avoid pitfalls have had little success. Even when done properly, however, statistical significance tests are of no value. Other researchers have discussed reasons for these failures. I was unable to find empirical evidence to support the use of significance tests under any conditions. I then show that tests of statistical significance are harmful to the development of scientific knowledge because they distract the researcher from the use of proper methods. I illustrate the dangers of significance tests by examining a re-analysis of the M3-Competition. Although the authors of the re-analysis conducted a proper series of statistical tests, they suggested that the original M3-Competition was not justified in concluding that combined forecasts reduce errors, and that the selection of the best method is dependent on the selection of a proper error measure. I show that the original conclusions were correct. Authors should avoid tests of statistical significance; instead, they should report on effect sizes, confidence intervals, replications/extensions, and meta-analyses. Practitioners should ignore significance tests and journals should discourage them.
Reforming European Merger Review: Targeting Problem Areas in Policy Outcomes

This paper is an attempt to derive priorities for the reform of European merger policy from observed problems with decision making in merger cases. We identify problems in the application of theory and empirical method as well as the impact of resource constraints and the potential for systematic decision bias. In contrast to the intense debate about the merits of a switch from a dominance criterion to a significant lessening of competition test, we find that such a switch would not effectively address any of the problems in Commision decision making on mergers. Similarly, the lack of an efficiency defense does not seem to explain any of the weaknesses of European merger policy. In contrast, we find that most of the problem areas identified in current merger control practice can be effectively addressed by reforming the merger procedure, the internal organization of merger control in the Commission, as well as addressing resource issues. Together with carefully crafted merger guidelines these should have strong priority for the reform of merger policy in Europe.
Communication in legislative bargaining

We investigate the Baron-Ferejohn (The American Political Science Review 83(4): 1181–1206, 1989) model of legislative bargaining with cheap talk between the designated proposer and potential coalition partners. Communication results in substantially increased proposer power close to the stationary subgame perfect equilibrium prediction. This is achieved primarily through voters competing with each other to get the proposer to include them in the winning coalition, while arguing for a zero allocation for redundant voters. Voters typically follow through on their stated reservation shares, but proposers often fail to partner with voters making excessively low offers, as these are more likely to be reneged on.
Between Realism and Resistance: Shi'I Islam and the Contemporary Liberal State

On the question of commitment to the nonliberal state, Shiʿi doctrine, which can best be gleaned from the voluminous works of modern Grand Ayatollahs, can be ambiguous. Nevertheless, some forms of what might be dubbed orthodox Shiʿism appear more compatible with modern notions of liberalism than others. This Article divides modern Shiʿi thought on the nation‐state, and the devout believers relationship thereto, into four categories. The Article concludes as a general matter that at least three of those categories appear possibly compatible with liberalism, and a fourth almost appears to recommend liberalism as a preferred form of political order. Nevertheless, the association of liberalism with Western thought at a time when so much of the global Muslim community is deeply hostile to the West and its ideas creates a substantial obstacle to its broader adoption. 1Special thanks to my research assistant Robin Belinsky for her extensive research into the writings of Grand Ayatollahs Sistani and Fadlallah.
Insurance law between business law and consumer law

This report responds to the questionnaire for the Eighteenth Inter national Congress on Comparative Law on Commercial Law? Insurance law between business law and consumer law. Although the U.S. insurance market is enormous and includes a substantial con sumer component, for the most part U.S. insurance law does separately protect insurance consumers. U.S. insurance law is neither a branch of private contract law nor of public commercial law, but is its own field that includes aspects of both public and private law. From a procedural standpoint, no significant distinction is drawn be tween insurance and other civil litigation, except that insurance companies make more use of the declaratory relief mechanism than other litigants. State insurance regulators provide some administra tive protection for consumers, but it is difficult to determine its effectiveness. The Federal government's role in insurance law is lim ited by the McCarran-Ferguson Act. As a result, each of the fifty states has a comprehensive and robust system of insurance regulation through statutes, administrative regulations, and common law rules. Some common law rules provide greater protection to consumers, such the reasonable expectations doctrine and the "sophisticated insured" exception to the ambiguity rule, but neither of these examples has much significance under current U.S. insurance law. State regulatory regimes protect both commercial insureds and consumers through market conduct regulation, approval of policy forms, and price regula tion. This regulation is supplemented by common law rules such as the rule imposing tort liability for insurer bad faith conduct and the interpretive rule that ambiguous provisions are construed in favor of insurance coverage.
Patent Infringement as Criminal Conduct

Criminal and civil law differ greatly in their use of the element of intent. The purposes of intent in each legal system are tailored to effectuate very different goals. The Supreme Court’s recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), however, imported a criminal concept of intent — willful blindness — into the statute for patent infringement, a civil offense, despite these differences. This importation of a criminal law concept of intent into the patent statute is novel and calls for examination. This Article compares the purposes behind intent in criminal law with the purposes behind intent in patent law to demonstrate that this importation does not achieve the policy goals of the patent regime. Criminal law jurisprudence requires an intent element for three reasons: to ascribe a level of moral blameworthiness to an act, to separate criminal from civil liability, and to shield otherwise innocently acting defendants from criminal punishment. Patent infringement actions, by contrast, lack an intent element because they almost exclusively seek to remedy economic harms. The importation of criminal concepts of knowledge into the patent infringement statute may therefore lead to unwanted consequences, particularly, higher-than-warranted burdens of proof for patent holders. To this end, equating criminal mental states to civil ones risks treating patent infringement as criminal conduct. This Article concludes by proposing that courts should examine the purposes of mental state requirements on a statute-by-statute basis.
Collusion in Auctions with Constrained Bids: Theory and Evidence from Public Procurement

We study the mechanics of cartel enforcement and its interaction with bidding constraints in the context of repeated procurement auctions. Under collusion, bidding constraints weaken cartels by lim...
Empirical evidence on repeat restatements

SYNOPSIS: This study examines the characteristics and market consequences of repeat restatements. We find that 38 percent of the restating companies in our sample restate at least twice between 200...
Black Swans and Black Elephants in Plain Sight: An Empirical Review of Central Bank Independence

Prior to the 2008 financial crisis, it was easy to see the logic of delegating monetary policy to private central bankers. It was widely accepted that politicians could not be trusted with monetary policy because of their short-term time horizons and fixations on their next elections. They would be tempted to spike the punch bowl just when central bankers, with their longer time horizons, would be taking the punch bowl away from the party.1 The credibility of the Federal Reserve in helping maintain low inflation seemed to confirm the conventional wisdom of keeping central banks insulated from politics. Legal scholars have largely deferred to this orthodox economics consensus on central bank structure by avoiding the constitutional critique of broad delegations to privately-directed central banks.2 But the
Safeguarding the Commander's Authority to Review the Findings of a Court-Martial

“Do you really think that after a jury has found someone guilty, and dismissed someone from the military for sexual assault, that one person [the commander], over the advice of their legal counselor, should be able to say, ‘Never mind’?” Senator Claire McCaskill recently posed this question in a hearing before the Senate Armed Services Committee, as she and others expressed outrage over the disapproval of a sexual assault conviction by a military commander. Her question reflects a justifiably profound respect for the verdicts of juries, one that runs deep in American legal tradition, but reveals a basic misunderstanding about the court-martial panel in the military. The court-martial panel is not a true jury. Federal juries in criminal cases must have twelve jurors and be unanimous. State juries must have at least six jurors, and five of six jurors voting to convict is not enough to satisfy the Sixth Amendment. Unlike federal and state juries, the panel that convicted the accused in the sex assault case discussed above had only five members and it did not have to be unanimous – only a two-thirds vote, or four out of five, was needed for a conviction. No five-member panel, unanimous or not, is a jury. Because the panel was not a true jury, the panel’s verdict will not always resemble the commonsense judgment of a jury. The Supreme Court made clear that court-martial panels are not juries. Because a court-martial panel is not a true jury, the commander should retain the authority to review its findings for this reason alone. The commander’s authority to review the findings is actually a safeguard against the court-martial panel’s verdict, which is sometimes not supported by the evidence. Part I introduces the right to trial by jury as the key to liberty in the American scheme of justice. It also explains why the Founding Fathers denied military members this right along with all other protections of the Bill of Rights. Part II discusses the historical foundations of the court-martial and why the military justice system developed separately from the civilian justice system. The court-martial was and still is, first and foremost, a tool of discipline and not a court of law. Part III describes the essential differences between panels and juries and why those differences materially affect the reliability of verdicts. Part IV discusses the safeguards enacted by Congress to make up for the panel’s structural flaws. These safeguards are as unorthodox to the American scheme of justice as they are now controversial. They should not be eliminated unless the panel’s structural flaws are also corrected. Part V contains recommendations for amending the Uniform Code of Military Justice, to include a return to the original understanding that courts-martial should be limited in times of peace to disciplinary infractions. If the commander’s role seems antiquated today, so, too, is the denial of genuine due process to the men and women who serve in the U.S. Armed Forces.
State Regulation and the Necessary and Proper Clause

The new marijuana federalism is here, but is it here to stay? In this Article, I address that question by way of two related points, a practical one and a technical one, and I ultimately argue that state regulation should have a bigger role in fixing the limits of federal constitutional power.The practical point is that the current regime of state marijuana legalization is unstable, and it is a miracle that it is working as well as it is. Because marijuana remains contraband at the federal level, businesses and lawmakers who invest in responsible legalization at the state level have no guarantee their investments are safe from the whims of federal law enforcement. Moreover, even if the federal drug laws are not actively enforced in those states, the laws create serious problems for banks, lawyers, and others who might otherwise want to work with the in-state marijuana industry. The technical point is that this instability can be traced to an importantly erroneous footnote in the Supreme Court’s decision in Gonzales v. Raich. Footnote 38 claims that state law can never be relevant to the scope of Congress’s power under the Commerce Clause or the Necessary and Proper Clause. That conclusion is wrong, is not required by the rest of the Court’s enumerated powers jurisprudence, and should be cast aside.The Necessary and Proper Clause should be interpreted to give states a bigger role in determining when the federal drug laws are constitutional. Congress’s power to reach purely in-state conduct is premised on the possibility of interstate spillovers. If a state legalizes and regulates a drug in a way that minimizes the risk of spillovers into the interstate black market, the federal drug laws should be forbidden to apply within that state. This both creates a more stable set of incentives for states to responsibly manage local behavior and provides a more satisfactory formal grounding for the executive nonenforcement policy.
Reactions to Computerized Testing in Selection Contexts

Organizations are increasingly using computerized tests (e.g., multimedia, web-based, computer adaptive testing) in selection systems. A 2 (mode of presentation: paper-and-pencil – computerized)×2 (technical level of the job: high technical job–low technical job)×2 (selection decision: rejected or selected) between subjects design was used to assess proposed relationships between reactions to tests, their antecedents, and their consequences. While test-takers' post-test perceptions did not significantly differ as a result of mode of administration, computer anxiety and experience with computing were important factors in performing successfully. Significant relationships were found between post-feedback reactions and test-takers' intentions. The discussion highlights implications for implementing computerized selection tools.
The gender gap

The author explains the “gender gap” as a Nash equilibrium of a game with incomplete information about women's work at home and in the marketplace. Expectations about women's lower wages leads to the overutilization of women in the household, and this, in turn, leads to lower productivity and lower wages for women in the marketplace. The situation is rational but generally Pareto inferior. With logistic learning by doing, at high levels of skill there is a Pareto-superior equilibrium, where men and women share efforts equally at home and receive the same pay in the marketplace, firms enhance their profits, and there is more welfare at home. Inequity at home breeds inequity in the marketplace and, reciprocally, inequity in the marketplace leads to inequity at home, causing a persistent gender gap. Appropriate contracts may be needed to implement the superior solution, since generally governments do not intervene in family matters.
Memory Parameter Estimation in the Presence of Level Shifts and Deterministic Trends

We propose estimators of the memory parameter of a time series that are robust to a wide variety of random level shift processes, deterministic level shifts and deterministic time trends. The estimators are simple trimmed versions of the popular log-periodogram regression estimator that employ certain sample size-dependent and, in some cases, data-dependent trimmings which discard low-frequency components. We also show that a previously developed trimmed local Whittle estimator is robust to the same forms of data contamination. Regardless of whether the underlying long/shortmemory process is contaminated by level shifts or deterministic trends, the estimators are consistent and asymptotically normal with the same limiting variance as their standard untrimmed counterparts. Simulations show that the trimmed estimators perform their intended purpose quite well, substantially decreasing both finite sample bias and root mean-squared error in the presence of these contaminating components. Furthermore, we assess the tradeoffs involved with their use when such components are not present but the underlying process exhibits strong short-memory dynamics or is contaminated by noise. To balance the potential finite sample biases involved in estimating the memory parameter, we recommend a particular adaptive version of the trimmed log-periodogram estimator that performs well in a wide variety of circumstances. We apply the estimators to stock market volatility data to find that various time series typically thought to be long-memory processes actually appear to be short or very weak long-memory processes contaminated by level shifts or deterministic trends.
Auditor Liability and Client Acceptance Decisions

ABSTRACT: The accounting profession has raised concerns that excessive liability exposure renders audit firms unwilling to provide audit services to risky clients, limiting the prospective clients' ability to raise external capital. We address this concern in a model in which the auditor evaluates the riskiness of the client before accepting the client engagement. We consider a setting in which a shift to stricter legal liability regimes not only increases the expected damage payments from the auditor to investors in case of audit failure, but also increases litigation frictions such as attorneys' fees. The main finding is that the relationship between the strictness of the legal regime and the probability of client rejection is U‐shaped. Our model suggests that in environments with moderate legal liability regimes, the client rejection rate is lower than in environments with relatively strong or relatively weak legal regimes.
Physicians and Patients Who "Friend" or "Tweet": Constructing a Legal Framework for Social Networking in a Highly Regulated Domain

Social networks connect intimates, friends, and acquaintances that share history, strangers who share interests, or businesses and the customers they serve. This article explores how participation in online social networks blurs the boundaries between personal and professional relationships or commentary, while making available “private” information in what only appears to be a secluded area. These issues are explored within the framework of the highly regulated health domain, casting doubts on the appropriateness of some professional activities and identifying considerable risks for patients and their health-related information.
Supply, Demand, and Consequences: The Impact of Information Flow on Individual Permitting Decisions Under Section 404 of the Clean Water Act

This paper focuses on a public trust resource -- wetlands -- and examines an issue that has been studied primarily with reference to health-based pollution-control statutes. This paper assesses whether information gaps create an obstacle to successful regulation under section 404 of the Clean Water Act (CWA or "the Act") as it applies to discharges of dredged and fill material in wetlands. It focuses on how section 404 and the regulations governing permitting determine information demands, information supply, and the legal consequences of a gap between supply and demand. The goal of this inquiry into the demand/supply/consequences scheme is to determine if, taken as a whole, the scheme is coherent and rational in light of the policies that underlie section 404.
Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts

This article examines the classic work of Felix Frankfurter and James M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System (1928), comparing its approach and findings to those of leading histories of the lower federal courts that have appeared in the last quarter century. Although the Frankfurter and Landis book was a pathbreaking history of the jurisdiction and caseload of the lower federal judiciary, it was far more than that. In form and rhetoric an “objective” and “scientific” study of “the federal system,” it was in fact an elaborate historical justification for a set of reform proposals intended not only to make the federal courts more efficient but also to reshape their structure and jurisdiction to serve the Progressive political purposes that the authors shared with Justice Louis Brandeis. After explaining the book’s underlying political strategy and implications, the article traces its subsequent influence on thinking about the proper role and jurisdiction of the federal courts. Finally, the article reviews several dozen recent histories of the lower federal courts and outlines some of the ways in which the influence of the Frankfurter and Landis book continues and, more important, some of the ways in which recent works depart from it and substantially advance our understanding of the history and operation of the lower federal courts.
Learning Both Directions: How Better Federal-Local Land Use Collaboration Can Quiet the Call for Federal Lands Transfers

The West is polarized over federal lands management. And while there is ample political rhetoric to go around, beneath it all lie truly important questions about current land management practices and the complementary roles federal agencies and local communities could play in managing shared lands. In this essay, I argue that both federal land agencies and local governments are failing to engage in the type of land use planning necessary for strong federal-local collaboration. Further, if meaningful collaboration became the standard practice, some of the underlying furor over federal lands management could subside. On the local government side, planning has historically assumed that federal lands are outside the scope of community concern. Thus, for decades there has been a dearth of local vision about how federal lands integrate with a local comprehensive planning. More recently, but equally problematic, local governments have over-corrected, acting as if federal lands management is subservient to parochial land use directives. Both phenomena point to a basic illiteracy about federal land use planning.On the federal side, planning is so highly discretionary that it has become inexcusably inconsistent from one agency to the next, and experienced as arbitrary by the communities involved. Further, because federal planning occurs within the shadow of the National Environmental Protection Act (NEPA), federal agencies appear motivated to downgrade local government land use concerns as “nonsignificant” to avoid more rigorous environmental review procedures. In short, there are learning opportunities in both directions - a point aptly illustrated through a case study of the recent Comprehensive Conservation Plan for the Charles M. Russell National Wildlife Refuge.
Time-series and cross-sectional excess comovement in stock indexes

Abstract This paper is an empirical investigation of the excess comovement among 82 industry indexes in the U.S. stock market between January 5, 1976 and December 31, 2001. We define excess comovement as the covariation between two assets beyond what can be explained by fundamental factors. In our analysis, the fundamental factors are sector groupings and the three Fama-French factors. We then estimate residuals of joint (FGLS) rolling regressions of these fundamentals on industry returns. Finally, we compute excess comovement as the mean of square unconditional, statistically significant correlations of these residuals. We show that excess comovement is high (about 0.07, i.e., equivalent to an average absolute correlation of 0.26), statistically significant, and represents an economically significant portion (almost 30%) of the average gross square return correlation. Excess comovement is also uniformly significant across industries and over time and only weakly asymmetric, i.e., not significantly different in rising or falling markets. We explain more than 23% of this market-wide (and up to 73% of sector-wide) excess square correlation by its positive relation to proxies for information heterogeneity and U.S. monetary and real conditions, and its negative relation to market volatility and the level of the short-term interest rate. This evidence is consistent with the implications of portfolio rebalancing and product market theories of financial contagion, but offers little or no support for the correlated liquidity shock channel.
A Behavioral Framework for Securities Risk

INTRODUCTION The most difficult tasks for firms involve forecasting, managing, and disclosing risks. In the wake of the financial crisis, a serious examination of risk and risk management at publicly traded firms has occurred. After the crisis, much of the focus has been on new regulatory agencies and additional powers for existing regulators, while little energy has been expended on examining and improving the efficacy of the current securities risk-disclosure framework, which was intended to serve as a bulwark for investors. The landmark Dodd–Frank Wall Street Reform and Consumer Protection Act created the Consumer Protection Financial Bureau and expanded the powers of the Securities Exchange Commission, yet in 2,319 pages of legislation, no provision was included to en-
Optimal Trading with a Trailing Stop

Trailing stop is a popular stop-loss trading strategy by which the investor will sell the asset once its price experiences a pre-specified percentage drawdown. In this paper, we study the problem of timing to buy and then sell an asset subject to a trailing stop. Under a general linear diffusion framework, we study an optimal double stopping problem with a random path-dependent maturity. Specifically, we first analytically solve the optimal liquidation problem with a trailing stop, and in turn derive the optimal timing to buy the asset. Our method of solution reduces the problem of determining the optimal trading regions to solving the associated differential equations. For illustration, we implement an example and conduct a sensitivity analysis under the exponential Ornstein–Uhlenbeck model.
Cruel Choices: Autonomy and Critical Care Decision‐Making

Although autonomy is clearly still the paradigm in bioethics, there is increasing concern over its value and feasibility. In agreeing with those concerns, I argue that autonomy is not just a status, but a skill, one that must be developed and maintained. I also argue that nearly all health-care interactions do anything but promote such decisional skills, since they rely upon assent, rather than upon genuinely autonomous consent. Thus, throughout most of their medical lives, patients are socialised to be heteronomous, rather than autonomous. Yet, at the worst possible time--critical care decision-making--when life and death consequences are attached to the choices, the paradigm shifts and real consent is sought, even demanded, thereby making an often traumatic situation even harder. I go on, though, to also reject paternalistic models of beneficence as an alternative. Rather, I conclude that the problem is so fundamental in healthcare that a genuine solution would require a radical restructuring. I recommend steps that can be taken in the interim to improve the situation and to move toward such a restructuring.
Inflation, Index–linked bonds, and asset allocation

The recent introduction of CPI-linked bonds by several financial institutions is a milestone in the history of the U.S. financial system. It has potentially far-reaching effects on individual and institutional asset allocation decisions because these securities represent the only true long-run hedge against inflation risk. CPI-linked bonds make possible the creation of additional financial innovations that would use them as the asset base. One such innovation that seems likely is inflation-protected retirement annuities. The introduction of index-linked bonds eliminates one of the main obstacles to the indexation of benefits in private pension plans. A firm could hedge the risk associated with a long-term indexed liability by investing in index-linked bonds with the same duration as the indexed liabilities.
Foreign Official Immunity After Samantar

In Samantar v. Yousuf, the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSIA) does not govern the immunity of foreign officials from legal proceedings in U.S. courts. Part I of this symposium contribution seeks to put in sharper focus exactly what is, and what is not, in dispute following Samantar. Part II presents three challenges to common assumptions about conduct-based immunity, which I consider under the headings of personal responsibility, penalties, and presence. Under the heading of personal responsibility, I emphasize that state responsibility and individual responsibility are not mutually exclusive. Under penalties, I argue that civil immunity and criminal immunity are not fundamentally distinct. Under presence, I emphasize that a defendant who enters the forum state’s territory might justifiably have a weaker claim to conduct-based immunity than one who does not. Part III suggests some factors that should guide lower courts in determining an individual defendant’s entitlement to immunity going forward.
Perils of Using OLS to Estimate Multimedia Communications Effects

ABSTRACT Companies invest millions of dollars in various forms of marketing communications to impact customers9 awareness, attitudes, purchases, and, ultimately, profitability. An important question for marketers and shareholders alike is: what effects do marketing investments have on market performance? To assess these effects, marketers estimate marketing-mix models by using regression analysis. However, we show that the estimation of marketing-mix models via regression analysis (i.e., ordinary least squares, OLS) yields severely biased estimates of marketing effects. To mitigate such severe biases, we present an alternative approach, called the Wiener-Kalman filter, that provides reasonable estimates that are much closer to the true parameters than the corresponding OLS estimates. In addition, we analyze Corolla brand9s multimedia campaign and furnish results based on marketplace data that corroborate the simulation findings. Finally, we discuss both the implications of these results for brand managers and the opportunities that lie ahead for advertising researchers.
Property’s Constitution

Long-standing disagreements over the meaning of property as a matter of legal theory present a special problem in constitutional la. The Due Process and Takings Clauses set forth individual rights that can only be asserted if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property and in some instances reach opposite conclusions about its meaning. Most notably, government benefits are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do not attempt to explain. This Article offers a way to bring order to the confused treatment of property in constitutional law. It shows how a single definition of property can be adopted for all of the major constitutional property doctrines without the calamitous results that many seem to fear. It begins by arguing that property is best understood as the right to have some measure of legal control over the way a particular item is used, control that comes at the expense of all other people. It then argues that legal rights are a kind of private property and that, while courts and commentators are correct that legal entitlements to government benefits — so-called “new property” — should receive constitutional protection, they mistakenly believe the property at issue is the good that a recipient has a right to receive, rather than the legal right to receive it. The Article proceeds to show that legal rights are the only kind of things whose existence government can altogether extinguish and therefore that ownership of legal rights is the only kind of property right government can terminate without conferring equivalent property rights on others. The Article further argues that while due process protection should be read to apply whenever a person is denied an asserted property right (a deprivation), takings protection should only come into play when property rights are transferred from one party to another (a taking). Combining these observations, the Article concludes that termination not only of “new property” rights but also of old-fashioned in personam legal rights should trigger due process but not takings protection. This analysis provides theoretical coherence to constitutional doctrine that has thus far been lacking and it sheds light on the essential characteristics of property rights as a general matter, helping theoreticians understand more clearly the core structures of property law.
Fast-Fish, Loose-Fish: How Whalemen, Lawyers, and Judges Created the British Property Law of Whaling

Anglo-American whalemen in the eighteenth and nineteenth centuries used customs largely of their own creation to resolve disputes at sea over contested whales. These customs were remarkably effective as litigation was rare and violence even rarer. Legal scholars such as Robert Ellickson have correctly pointed to these customs as an example of how close knit communities settle disputes without recourse to formal legal institutions or even knowledge of the applicable law. Ellickson’s belief, however, that these whaling customs were universally followed at sea and were – in turn – adopted by courts, is not entirely accurate. While courts often deferred, in part, to whaling practices, judges and lawyers were also active participants in creating the property law of whaling. British courts at the turn of the nineteenth century did much to advance one whaling custom over a competing practice. In the 1820s, British lawyers and judges applied the emerging action of interference with trade to whaling disputes and thereby reintroduced aspects of the custom their predecessors had previously rejected.
Bringing Manufactured Housing into the Real Estate Finance System

I. TODAY’S MANUFACTURED HOMES II. MANUFACTURED HOUSING FINANCE MARKET III. INCREASING CREDIT AVAILABILITY FOR MANUFACTURED HOUSING A. Current State Laws B. Manufactured Home Financing IV. OTHER CONSEQUENCES OF CHARACTERIZING MANUFACTURED HOUSING AS REAL ESTATE A. Creating and Perfecting Security Interests B. Enforcing Security Interests C. Taxation D. Marital Property Rights V. IS IT FEASIBLE TO CLASSIFY ALL MANUFACTURED HOMES AS REAL ESTATE? VI. CONCLUSION
Clinical Legal Education in the Law University: Goals and Challenges

Calls for reform of legal education in India have focused on preparation and relevance. The route to achieving both has consistently been linked to clinical legal education. In 1999, I heard one of the leaders of legal education in India, Dr. Madhava Menon, discuss his goals for clinical legal education in at the first Global Alliance for Justice Education Conference in Trivandrum. I learned at the time that he had been invited to lead a new law school in the country, and he made it clear that clinical legal education would be central to the new law school model that he intended to pursue, a model based on recommendations that grew out of prior assessments of legal education in India. Under this model, law students would be trained to be productive members of a community of lawyers that had refined the skills needed to develop and implement creative strategies for addressing the pressing demand for social justice in the country. The approach reflected a connection between responsibility for the underserved and goals for clinical legal education in India that dates back to collaboration with academics from the United States in the late 1960’s.
Behavior in a simplified stock market: the status quo bias, the disposition effect and the ostrich effect

Previous literature suggests specific behavioral tendencies cause investors to deviate from optimal investing. We investigate three such tendencies in a simplified stock market. Subjects do trade for better stocks, but do not reach their maximum potential earnings, most commonly because they choose to ignore information and continue to hold on to a stock regardless of its performance. The results support the predictions of the status quo bias, but not the ostrich effect or the disposition effect.
The hidden cost of direct democracy: How ballot initiatives affect politicians’ selection and incentives:

Citizen initiatives and referendums play an important role in modern democracies, from treaty ratifications in the European Union to gay marriage in California, to the control of foreign workers in...
AN EXAMINATION OF THE ASYMMETRIC EFFECTS OF MONEY SUPPLY SHOCKS IN THE PRE-WORLD WAR I AND INTERWAR PERIODS

We test whether monetary shocks had asymmetric output effects before World War II. Ball and Mankiw (1994) show that expectations of persistent inflation under fiat money can explain why negative monetary shocks had larger effects than positive shocks after World War II. Consistent with this explanation, we find such asymmetry in the interwar period following the abandonment of the gold standard and before it, when agents arguably anticipated this development. We find no monetary asymmetry before World War I, which is consistent with Ball and Mankiw (1994), because under a credible gold standard, agents do not expect persistent inflation. (JEL E31, ES2)
Respect and Contempt in Constitutional Law, Or, Is Jack Balkin Heartbreaking?

How many constitutions have we? Part of what we hope for from constitutional law is that we be united, despite our political differences, by a unifying political charter. John Rawls speaks for many when he writes that a well-ordered society “is a society all of whose members accept, and know that the others accept, the same principles (the same conception) of justice.” Jack Balkin argues that we have to give up on the Rawlsian aspiration, and learn to live in a world where, at a fundamental level, our fellow citizens are strange to us. They believe in different principles than we do. This is bound to try our faith in the regime. Perhaps America is not what I thought it was. Perhaps our marriage has always been a lie. We must learn to live with heartbreak.A reflection on the frustration of the Rawlsian ideal sheds light on the real existential basis of the legitimacy of American law. Each of us has a different Constitution in our heads. The basis of social unity is not a set of principles upon which we converge, but faith and hope that someday our ideals will prevail.
Do Gamblers Correctly Price Momentum in NBA Betting Markets

There is little research on whether new information is correctly synthesized in prediction markets. Previous studies have found evidence consistent with, but have not proved, gambler misperceptions on the existence of momentum effects in the NBA. I use novel momentum measures that, unlike prior studies, incorporate the strengths of the opponent and the wins (or losses). With these measures, I test whether gamblers correctly synthesize information on momentum in the NBA. Contrary to previous studies, I find strong evidence for the existence of a momentum effect. Furthermore, gamblers incorporate momentum into their beliefs on the game outcomes. Gamblers, however, significantly overstate the importance of momentum. But, there is little evidence that the extent of this gambler misperception is large enough to generate market inefficiencies, or profit opportunity. Still, the gambler mis-pricing of the information has implications for how well new information is synthesized in other types of prediction markets.
The Absolute Prohibition of Torture and Necessary and Appropriate Sanctions

Torture is a form of treatment of human beings that is absolutely prohibited under various forms of customary and treaty-based international law in all social contexts.1 Other forms of treatment that are absolutely prohibited and often proscribed in the same international instruments that outlaw torture include prohibitions of cruel, inhumane, and degrading treatment.2 Additionally, each form of ill-treatment constitutes a violation of peremptory rights and prohibitions jus cogens3 that trumps any inconsistent portion of an international agreement and more ordinary forms of customary international law.4 These forms of illtreatment can never constitute lawful public acts by any state or public