cssi/SciSciGPT-SciSciNet huggingface dataset:
Toward a Prudential and Credibility-Centered Parol Evidence Rule

The most influential judicial voices on the parol evidence rule are Roger Traynor and Richard Posner. Traynor pieced together aspects of positions championed by the antipodal titans of contracts, Arthur Corbin and Samuel Williston. Posner cuts through tangled doctrinal webs to show how the unifying talisman of the doctrine is credibility. Everything in parol evidence rule doctrine, in this formulation, can be understood in terms of two categories of evidence: subjective and objective. While the Traynor composite blended aspects of the titans of contracts into an incoherent stew, the Posner composite unites the central theme of the titans' positions, holding some promise of at last bringing clarity to a seemingly intractable body of contract law. Costs associated with various formulations of the parol evidence rule and tradeoffs they entail include costs of perfect drafting compared to costs of judicial error from imperfect drafting. While such a comparative cost approach to thinking about the parol evidence rule may be sound in theory, it is impractical and paradoxical in operation. It requires a judge to evaluate simultaneously costs of perfect drafting and the risk that she or he will commit an error in applying the parol evidence rule. A credibility-centered parol evidence rule can enhance judicial understanding of both sides of this calculus while sidestepping the paradox.
The Availability and Viability of Socioeconomic Integration Post- Parents Involved

In the wake of the Supreme Court’s decision in Parents Involved in Community Schools v. Seattle District No. 1, many scholars and commentators have tried to answer the question: “Where do we go from here?” Although varying answers have been proposed ranging from more magnet schools to increased funding of underperforming schools, many school administrators who are committed to achieving and maintaining racially diverse student bodies have decided to expand their definition of diversity to include consideration of students’ socioeconomic status. This Essay will address the constitutionality of using class as a measure of diversity under the Roberts Court’s interpretation of equal protection, as well as the viability of such initiatives to achieve diversity goals.
A Portfolio Approach To Economic Development

In this paper we introduce and empirically demonstrate a new model of economic development that we call Portfolio Economic Development. Our approach borrows from portfolio theory in finance and focuses on the risk-return nature of development projects. The paper examines how the loss of a dominant industry group from an island economy causes significant economic problems and how those problems might be mitigated by developing the economy in a portfolio context. The approach can help planners select optimal mixes of projects for development of any economy experiencing a transitional period.
How Do Interest Groups Seek Access to Committees

Concerns that interest groups use their financial resources to distort the democratic process are long-standing. Surprisingly, though, firms spend little money on political campaigns, and roughly 95% of publicly traded firms in the United States have never contributed to a political campaign. Do interest groups seek political access through their modest contributions, or are these contributions only a minor and forgettable part of the political process? In this article, we present comprehensive evidence that interest groups are extremely sophisticated in the way they make campaign contributions. We collect a new data set on U.S. state legislative committee assignments and legislator procedural powers from 1988 to 2014, merged with campaign finance data, in order to analyze over 440,000 candidate–committee observations across 99 legislatures. Using a series of difference-in-differences designs based on changes in individual legislators' positions in the legislature, we not only show that interest groups seek out committee members, but we also show that they value what we call indirect access. When a legislator gains procedural powers, interest groups reallocate considerable amounts of money to her. The results reveal how interest groups in a wide range of democratic settings seek to influence the policy process not only by seeking direct access to policy makers but by seeking indirect access to legislative procedure as well.
Recent estimates of time-variation in the conditional variance and in the exchange risk premium

Abstract The optimal-diversification model of investors' portfolio behavior can give a linear relationship between the exchange risk premium and the conditional exchange rate variance. This note surveys recent empirical work that allows the conditional variance itself, and therefore the risk premium, to vary over time. In particular, it examines the implications of recent empirical estimates for earlier arguments, based on the assumption that the conditional variance was constant over time, that the exchange risk premium had to be small in magnitude and variability.
Rational Design Rights Ignorance

This paper looks at organizational failures that appear rational to explain why firms do not coordinate intellectual property rights comprised of: utility patents, design rights, trade dress and trademarks.
External debt, planning horizon, and distorted credit markets

The purpose of this paper is to study the behavior of the credit market and the role of policies in the presence of country risk with underdiscounting by the policy maker. The underdiscounting may reflect political uncertainty, where the effective planning horizon of the centralized government is shorter than that of the private sector. The consequence of underdiscounting is to shift the supply curve facing the economy leftwards. The role of optimal borrowing policies in the presence of country risk is to discourage borrowing for consumption purposes, encourage investment in openness, and discourage investment in activities that reduce openness. The effect of underdiscounting by the policy maker is to increase the values of the optimal policy instruments (i.e., to increase the magnitude of the borrowing taxes and subsidies). Increasing the relative importance of open activities can be viewed as a way to reduce the harmful consequences of underdiscounting. Underdiscounting may rationalize various conditionality clauses that will induce the economy to follow the desired credit market policies.
When Does Familiarity Breed Content? A Study of the Role of Different Forms of ADR Education and Experience in Attorneys' ADR Recommendations

This article first reviews proposed explanations for and solutions to the low rate of voluntary ADR use, as well as related empirical research. The article then reports the findings of a study that involved a survey of attorneys regarding their ADR education, experience with ADR as counsel or as a third-party neutral, and advice to clients about ADR. This study found that attorneys' direct experience with ADR, especially in their role as counsel but also as a neutral, was strongly related to whether they recommended ADR to clients. In contrast, ADR education had little or no relationship with attorneys' ADR recommendations, except for attorneys who had not used ADR as counsel. The implications of the findings for increasing voluntary ADR use are discussed.
Health Insurance Reform and Intimations of Citizenship

INTRODUCTION 1956 I. SOCIAL INSURANCE AND THE EPISTEMOLOGY OF CITIZENSHIP .... 1960 A. The Obligations of Citizenship 1962 B. Participation Rights and Citizen Consumers 1966 C. Social Security 1970 II. THE INDIVIDUAL MANDATE AS LINCHPIN AND SIGNIFIER 1973 A. Economic Necessity 1973 B. A Signification Contest Between Economic Liberty and the Social Compact 1977 III. CITIZENSHIP PRACTICES AND THE AFFORDABLE CARE ACT 1982 A. The Concept of “Citizenship Practices” 1982 B. The Design of Exchanges Under PPACA 1983 1. Regulation 1986 2. Public or Private Forms 1988 3. Information Requirements and Consumer Participation 1990 a. Providing Consumer Information 1991 b. Seeking Consumer Input 1993 4. Summary 1995 C. Social Meanings of PPACA 1995 CONCLUSION 1997
Incentives in a Stage-Gate Process

Many large organizations use a stage-gate process to manage new product development projects. In a typical stage-gate process project managers learn about potential ideas from research and exert effort in development while senior executives make intervening go/no-go decisions. This decentralized decision making results in an agency problem because the idea quality in early stages is unknown to the executive and the project manager must exert unobservable development effort in later stages. In light of these challenges, how should the firm structure incentives to ensure that project managers reveal relevant information and invest the appropriate effort to create value? In this study, we develop a model of adverse selection in research and moral hazard in development with a go/no-go decision at the intervening gate. Our results show that the principal's uncertainty regarding early-stage idea quality�a term we refer to as idea risk�alters the effect of late-stage development risk. The presence of idea risk can alter the incentives offered to the agent and may lead the principal to reject projects that otherwise seem favorable in terms of positive net present value. A simulation of early-stage ideas, found through search on a complex landscape, shows that the firm can mitigate the negative effects of idea risk by encouraging breadth of search and high tolerance for failure.
The Limits of WTO Adjudication: Is Compliance the Problem?

Mainstream international trade law scholars have commented positively on the work of World Trade Organization (WTO) adjudicators. This favorable view is both echoed and challenged by empirical scholarship that shows a high disparity between Complainant and Respondent success rates (Complainants win between 80 and 90 percent of the disputes). Regardless of how one interprets these results, mainstream theorists, especially legalists, believe more is to be done to strengthen the system, and they point to instances of member recalcitrance to implement rulings as a serious problem. This article posits that such attempts to strengthen compliance are ill-advised. After discussing prior empirical analyses of WTO adjudication involving primary rights and obligations under the WTO agreements (i.e. substantive adjudication), this article expands the empirical study into compliance disputes. It finds that 'enforcement' proceedings do protect the pro-free trade interests so overwhelmingly supported in substantive adjudication. Since that is the case, this article investigates the extent to which current levels of non-compliance might constitute a threat to this regime, and theorizes that the observed level is not only acceptable but a necessary feature of the system. I conclude by arguing that compliance-related issues must be viewed in a broader perspective that transcends narrow legalistic views and accounts for the multifaceted interests of, and differences among, WTO members. Oxford University Press 2011, all rights reserved, Oxford University Press.
Combining creativity and control: Understanding individual motivation in large-scale collaborative creativity

Abstract Recent research has shown that management control systems (MCS) can improve performance in contexts characterized by high levels of task uncertainty. This seems to conflict with a second stream of research, which argues that MCSs risk undermining the intrinsic motivation needed for effective performance in such settings. To solve this puzzle, we build on theories of perceived locus of causality and self-construal and develop an integrative model summarized in 15 propositions. To explicate our proposed solution and to show its robustness, we focus on the class of activities we call large-scale collaborative creativity (LSCC) – contexts where individuals face a dual challenge of demonstrating creativity and embracing the formal controls that coordinate their creative activities with others’. We argue that LSCC requires the simultaneous activation of intrinsic and identified forms of motivation, and simultaneously independent and interdependent self-construals. Against some scholarship that argues or assumes that such simultaneous combinations are infeasible, we argue that they can be fostered through appropriate attraction–selection–attrition policies and management control systems design. We also show how our propositions can enrich our understanding of motivation in other settings, where creativity and/or coordination demands are less pressing.
Labor income, housing prices, and homeownership

Abstract This paper tests the intuition that households whose incomes covary relatively strongly with housing prices should own relatively little housing. Among US households, a one standard deviation in covariance between income and home prices is associated with a decrease of approximately $7500 in the value of owner occupied housing. This result arises in the presence of controls for the level and distribution of home prices. The generally positive correlations between income and home prices suggests that households enter financial markets with a greater exposure to risk than is typically modeled.
Does giving to charity lead to better health? Evidence from tax subsidies for charitable giving

Abstract In the United States, charitable contributions can be deducted from taxable income making the price of giving inversely related to the marginal tax rate. The existing literature documents that charitable giving is very responsive to tax subsidies, but often ignores the spillover effects of such policies. On the other hand, a growing body of literature documents that giving to others reduces stress and strengthens the immune system, which results in better health and longer life expectancy. These findings imply that tax subsidies for charitable giving may have positive spillover effects on health. This paper investigates this hypothesis using data from Center on Philanthropy Panel Study (COPPS), the philanthropy module of the Panel Study Income Dynamics (PSID). Understanding the spillover effects of charitable subsidies on health is quite important given the existing literature that links health status to several important economic outcomes. The results show that charitable subsidies have positive spillover effects on health. In particular, the implied cross-price elasticity of health index with respect to giving is - 0.13 . These results are robust to potential endogeneity of income and highlight the positive externalities created by tax subsidies for charitable giving.
The Image of God: Rights, Reason, and Order

The idea that humans are created in the image of God is often cited as a foundation for human rights theory. In this paper, this use of imago dei is surveyed, and while the paper is basically favorable to this foundation, it draws attention to some difficulties (both theological and practical) that using imago dei as a foundation for human rights may involve. Also it explores the suggestion that the image of God idea may be more apt as a foundation for some rights rather than others. Its use in relation to political rights is specifically explored. The moral of the discussion is that foundations do make a difference. We should not expect that, if we simply nail this idea onto the underside of a body of human rights theory as a foundation, everything in the theory will remain as it is.
Lindsay's Legacy: The Tragedy That Triggered Law Reform to Prevent Teen Dating Violence

Intimate partner violence is common not only among adults but among teenagers as well. A recent large-scale study reveals the startling fact that dating violence begins as early as age eleven. In 2005, an innovative state law reform movement was launched that confers a proactive role on the schools to prevent teen dating violence (TDV). Currently, twenty states have laws that address TDV in the schools and additional states have pending legislation. This article explores the impetus for this law reform movement, provides an analysis of state laws on TDV prevention, and examines pending federal legislation that overcomes a fundamental obstacle to the enactment of these state laws.
Authority, Community and the Civil Law Commentary: An Example From German Competition Law

People usually read books about law in order to find out what is in them. Most books, in fact, can only be read on this level, because their only role is as a source of information. Occasionally, however, a book plays a significant enough role within a legal system that it can also be read at a second level. The commentary on German competition law edited by Ulrich Immenga and Ernst-Joachim Mestmacker (the ImmengalMestmacker commentary) is such a book. It is an exceptionally valuable source of information about German and, to a lesser extent, European Community competition law, but it has also been a powerful source of authority within the German competition law system since the first edition was published in 1981.1 To "read" it at a second level thus provides insights into the dynamics of that system. This essay explores the potential value of "reading" the work both as a source of information and as part of the competition law system.
Where Is Internet Policy Really Headed

A new academic consensus is emerging that innovation is the key to consumer welfare, and rules governing Internet policy need to be updated to reflect this reality, according to Robert Hahn.
Specializing in Interdisciplinarity: The Committee on Social Thought as the University of Chicago's Antidote to Compartmentalization in the Social Sciences

The social sciences at the University of Chicago are renowned for their leadership in the development of empirical investigation in their respective disciplines. The postwar Chicago school of economics is only the best known of the efforts at that university to entrench specialized competencies in the faculty and students practicing a social scientific discipline. During the same period, the Committee on Social Thought emerged as an academic interdisciplinary unit in the humanities and social sciences. Ironically, the committee became the place in which one honed the competencies required for a particular type of interdisciplinarity.
A Model-Based Evaluation of the Debate on the Size of the Tax Multiplier

reduced-form transmission mechanism. This paper uses a DSGE model to evaluate the hypothesis that the difference in multipliers is due to differences in transmission mechanisms. The main finding of the paper is that this hypothesis is rejected. Instead, the observed differences in estimated multipliers are due either to the models fail ing to identify the same tax shock, or to small-sample uncertainty. (.JEL E13, E23, E32, E62, H20)
Ultimately thin metasurface wave plates

Optical properties of a metasurface which can be considered a monolayer of uniaxial metamaterials - parallel-plate and nanorod arrays – are investigated. It is shown that such metasurface acts as an ultimately thin sub-100 nm wave plate. This is achieved via an interplay of epsilon-near-zero and epsilon-near-pole behavior along different axes in the plane of the metasurface allowing for extremely rapid phase difference accumulation in very thin metasurface layers. These effects are shown to not be disrupted by non-locality and can be applied to the design of ultrathin wave plates, Pancharatnam-Berry phase optical elements and plasmon-carrying optical torque wrench devices.
When Nudges Fail: Slippery Defaults

Inspired by the success of “automatic enrollment” in increasing participation in defined contribution retirement savings plans, policymakers have put similar policy defaults in place in a variety of other contexts, from checking account overdraft coverage to home-mortgage escrows. Internet privacy appears poised to be the next arena. But how broadly applicable are the results obtained in the retirementsavings context? Evidence from other contexts indicates two problems with this approach: the defaults put in place by the law are not always sticky, and the people who opt out may be those who would benefit the most from the default. Examining the new default for consumer checking account overdraft coverage reveals that firms can systematically undermine each of the mechanisms that might otherwise operate to make defaults sticky. Comparing the retirement-savings default to the overdraft default, four boundary conditions on the use of defaults as a policy tool are apparent: policy defaults will not be sticky when (1) motivated firms oppose them, (2) these firms have access to the consumer, (3) consumers find the decision environment confusing, and (4) consumer preferences are uncertain. Due to constitutional and institutional constraints, government regulation of the libertarian-paternalism variety is unlikely to be capable of overcoming these bounds. Therefore, policy defaults intended to protect individuals when firms have the motivation and means to move consumers out of the default are unlikely to be effective unless accompanied by substantive regulation. Moreover, the same is likely to be true of “nudges” more generally, when motivated firms oppose them.
Diasporas and Domestic Entrepreneurs: Evidence from the Indian Software Industry

This study explores the importance of cross-border social networks for entrepreneurs in developing countries by examining ties between the Indian expatriate community and local entrepreneurs in India’s software industry. We find that local entrepreneurs who have previously lived outside India rely significantly more on diaspora networks for business leads and financing. This is especially true for entrepreneurs who are based outside software hubs—where getting leads to new businesses and accessing finance is more difficult. Our results provide micro-evidence consistent with a view that cross-border social networks play an important role in helping entrepreneurs to circumvent the barriers arising from imperfect domestic institutions in developing countries.
The U.S.-China Rule of Law Initiative

Yale Law School. This is a slightly expanded version of remarks delivered at a Conference on the “Rule of Law in China” at the College of William and Mary School of Law on February 22, 2002. From 1997–98, the author was Special Representative for the Presidential Rule of Law Initiative at the United States Department of State. The views expressed here are those of the author and do not represent official positions of the U.S. government. I am grateful to the participants in Yale Law School’s Workshop on Chinese Legal Reform for their comments on an earlier draft.
Who Finances Durable Goods and Why It Matters: Captive Finance and the Coase Conjecture

We propose that, by financing their own product sales through captive finance subsidiaries, durable goods manufacturers commit to higher resale values for their products in future periods. Using data on captive financing by the manufacturers of heavy equipment, we find that captive‐backed models have lower price depreciation. The evidence is consistent with captive finance helping manufacturers commit to ex‐post actions that support used machine prices. This, in turn, conveys higher pledgeability for captive‐backed products, even for individual machines financed by banks. Although motivated as a rent‐seeking device, captive financing generates positive spillovers by relaxing credit constraints.
Regulation Fair Disclosure and Earnings Information: Market, Analyst, and Corporate Responses

With the adoption of Regulation Fair Disclosure (Reg FD), market behavior around earnings releases displays no significant change in return volatility (after controlling for decimalization of stock trading) but significant increases in trading volume due to difference in opinion. Analyst forecast dispersion increases, and increases in other measures of disagreement and difference of opinion suggest greater difficulty in forming forecasts beyond the current quarter. Corporations increase the quantity of voluntary disclosures, but only for current quarter earnings. Thus, Reg FD seems to increase the quantity of information available to the public while imposing greater demands on investment professionals
What if DRM Fails?: Seeking Patronage in the iWasteland and the Virtual O

Section 1201 of the 1998 Digital Millennium Copyright Act provided sweeping protection for technological measures or virtual locks on digital content to protect the entertainment industries-including music, films, games, and consumer electronics. Manufacturers use digital rights management (DRM) authorized under the law to lock down all software embedded in products, movies on DVDs, and audio files sold on iTunes and other Internet sites. DRM unfairly extends copyright and that legal protection is unnecessary to the robust development of new creative works Critics of the DMCA have charged that the law has extended well past its anti-piracy role to undermine fair use, threaten free speech, and thwart product interoperability. Embedded in the debate are philosophical assumptions about the role of copyright to incentivize authors, musicians, artists, and other creators, as well as the role of law, technology, and social norms to enforce the customs of copyright protection. The article explains the arenas where the DMCA has benefited and hindered the broader cause of copyright and reviews the implications of copyright in the absence of technological measures for enforcement to see if there is any incentive left in the copyright regime.
The Nature of the Environmental Right to Know

Numerous laws and policies claim to further the environmental right to know, and demands for disclosure of environmental information are made on the basis of this putative right. But although the right is often asserted, it is rarely scrutinized. In this article, I draw on the interest theory of rights to identify the interests underlying various manifestations of the environmental right to know in law and policy. I argue that the importance of the right can only be explained by its connection to more fundamental values and interests, such as interests in intellectual freedom, personal liberty, self-government, and human health. By investigating the interests that justify the right, we can better understand its implications in two respects. First, an interest analysis clarifies the various disclosure obligations of both government and industry. It can also lead to some surprising conclusions. For example, in some cases, interests in personal liberty and self-government may provide stronger support for disclosure of environmental information than health and environmental interests. Second, the assessment of right-to-know interests in particular contexts helps resolve conflicts created by competing claims to nondisclosure of environmental information. In the final section of the article, I analyze two such conflicts: free-speech objections to state labeling laws requiring disclosure of environmental information and trade secret objections to public disclosure of information concerning chemical substances.
Examining the perceptions and effects of survey consequentiality across population subgroups

Recent research examining voting behavior in contingent valuation referenda informs on how consequential survey respondents behave and its impact on willingness-to-pay (WTP) values. This research attempts to examine whether this behavior holds across population subgroups. We consider resident and nonresident users of artificial reefs and find improved construct validity for our resident models over nonresident models. Specifically, resident behavior is in line with a priori expectations with consequential residents more likely to vote in favor of a policy for additional reef funding – a result that is consistent with the “protest no” literature. Consequently, consequential resident voters exhibit a greater WTP than inconsequential voters. Nonresident behavior differs, however. For this subgroup, consequentiality does not influence voting behavior and WTP values do not differ by consequentiality. Overall, more work is required to appropriately identify WTP values for nonresident populations, particularly from a benefit-cost perspective, where appropriately identifying subgroup WTP values are a critical component of measuring the net present value of a given policy.
Wealth dynamics and a bias toward momentum trading

Abstract Evolutionary metaphors have been prominent in both economics and finance. They are often used as basic foundations for rational behavior and efficient markets. Theoretically, a mechanism which selects for rational investors requires many caveats, and is far from generic. This paper tests wealth based evolution in a simple, stylized agent-based financial market. The setup borrows extensively from current research in finance that considers optimal behavior with some amount of return predictability. In the case of utility functions which differ from log, wealth selection alone converges to parameters which are economically far from the optimal forecast parameters. This serves as a strong reminder that wealth selection and utility maximization are not the same thing. Therefore, suboptimal financial forecasting strategies may be difficult to drive out of a market, and may even do quite well for some time.
Purity Lost: The Paradoxical Face of the New Transnational Legal Body

INTRODUCTION 3 I. PURITY: THE WESTPHALIAN NARRATIVE 5 II. PARADOXES AND INCONSISTENCIES IN THE CURRENT INVOCATIONS OF THE WESTPHALIAN NARRATIVE 7 A. Detour: Paradoxes and Inconsistencies in the Law 7 1. Paradoxes: A General Exposition 7 2. Paradoxes in Law: Incoherence and Paralysis 10 B. Paradoxes in the Westphalian Order: The Cases of the WTO and the ICC 17 1. The Case of the WTO 17 2. The International Criminal Court 19 III. ALTERNATIVE FORMS OF NORMATIVE GROUNDING 21 A. Global Democracy? 22 B. Deference to Non-Legal Rationality 25 C. Individual Consent 27 D. The Bundling of Law and Technology 32 IV. TAKING A STEP BACK: HAVE WE EVER BEEN PURE? 34 A. Purity Revisited 34 B. The Problem of Grounding in Law and the Truth-Teller
Understanding and Comparing Factor-Based Forecasts

Forecasting using "diffusion indices" has received a good deal of attention in recent years. The idea is to use the common factors estimated from a large panel of data to help forecast the series of interest. This paper assesses the extent to which the forecasts are influenced by (i) how the factors are estimated and/or (ii) how the forecasts are formulated. We find that for simple data-generating processes and when the dynamic structure of the data is known, no one method stands out to be systematically good or bad. All five methods considered have rather similar properties, though some methods are better in long-horizon forecasts, especially when the number of time series observations is small. However, when the dynamic structure is unknown and for more complex dynamics and error structures such as the ones encountered in practice, one method stands out to have smaller forecast errors. This method forecasts the series of interest directly, rather than the common and idiosyncratic components separately, and it leaves the dynamics of the factors unspecified. By imposing fewer constraints, and having to estimate a smaller number of auxiliary parameters, the method appears to be less vulnerable to misspecification, leading to improved forecasts.
Young People, Skills and Cities

Young highly educated workers developed in the 70’s and 80’s a preference for working in larger cities, that are also large agglomeration of highly educated workers. Highly educated young workers in 1990 were over-represented in cities, in spite of the lower wage premium they earned for working in crowded metropolitan areas if compared to their older colleagues. There must be some extra-benefit that young workers acquire in cities and are willing to pay for. In the model we develop to explain these stylized facts this extra-benefit is given by a dynamic externality of human capital. Agglomerations of educated workers arise endogenously, as workers are attracted to dense areas, which improve their learning from others. If the skills accumulated in cities are easily transferrable, it is efficient for educated people to work in dense areas as young and move to less dense areas as mature workers. Once the ”learning period” is over workers are attracted to smaller and less dense locations where there is less competition from other skilled workers and housing price is lower. Our model explains why young workers were attrected into large cities in the 70’s and 80’s and why, once they have accumulated their human capital, some of them moved to smaller towns.
Statutory Interpretation and Direct Democracy: Lessons from the Drug Treatment Initiatives

In recent years, ballot initiatives have become an increasingly important method of lawmaking on the state level. A key debate among scholars is whether the courts’ interpretation of initiatives should differ in any fundamental way from their interpretation of conventional statutes. Two notable commentators — Professors Frickey and Schacter — have offered competing proposals, both of which employ interpretive rules that construe voter-made law narrowly to minimize displacement of preexisting law. This Article examines these proposals through the lens of a little-noticed but increasingly important body of cases interpreting two similar initiatives in Arizona and California. Both initiatives radically change sentencing for non-violent drug offenders, mandating treatment and probation in lieu of incarceration for qualifying defendants. After examining these cases, this Article concludes that the Frickey and Schacter proposals suffer from an overly rigid and unwarranted emphasis on continuity at the expense of substantive coherence in the law. The approach taken by the courts — a flexible, pragmatic one in line with their interpretation of conventional statutes — is better-suited in the direct democracy context.
Were Japanese stock prices too high

Abstract This paper asks whether market fundamentals can explain the recent run-up and decline of Japanese equity values and price-earnings ratios. Accounting differences explain about half of the long-run disparity between U.S. and Japanese P/E s. For example, if Japanese firms used U.S. accounting rules, the Japanese P/E ratio would have been 32.6, not 53.7, in 1989. Accounting differences cannot, however, explain the doubling of this ratio in 1986, nor its decline in 1990. Similarly, we are unable to isolate changes in required stock returns or growth expectations that are large enough to explain recent Japanese stock price movements.
The PDA's Causation Effect: Observations of an Unreasonable Woman

While many scholars have rightfully critiqued the Pregnancy Discrimination Act (PDA) as falling short of achieving the ultimate goal of equal employment opportunities for women, this Article reveals one of the PDA's most important successes. By recognizing pregnant women as a "given" in the workplace, the PDA launched a quiet revolution in the way that judges make causal attributions for adverse employment outcomes. Specifically, the PDA provided judges with the conceptual tools that were needed to help shift causal attributions to an employer, rather than attributing a pregnant woman's struggles in the workplace to her own decision to become a mother. Because our notions of responsibility follow our notions of causation, this shift in causal attribution enabled judges to more easily identify employers as legally responsible for the misfit between the conventional workplace and working women's lives. While this causal attribution shift has been incomplete, it at least laid the foundation for ongoing conversations about how the law might achieve even deeper structural and organizational transformations in the workplace looking forward. By revealing the PDA's causation transformation story, this Article seeks to shore up that foundation for future efforts at designing workplaces more fully around a caregiving worker norm. INTRODUCTION 52 I. CAUSAL ATTRIBUTION THEORY AND THE PDA 53 A. Disparate Treatment Claims: Partial Success 64 B. Disparate Impact Claims: Untapped Potential 70 II. LIMITATIONS: UNREASONABLE WOMEN'S UNFINISHED WORK 76 C ON CLUSION 78 t Professor, University of San Francisco School of Law. B.A., 1991, Cornell University; i.D., 1994, Stanford Law School. I thank the participants in the Yale Journal of Law and Feminism's symposium, "Respecting Expecting: The 30th Anniversary of the PDA," for providing valuable insights for this project. Thanks are also due to Megha Rajput for her research assistance and to Richard Dickson for his
CREAC in the Real World

When law students are asked to describe how legal arguments are organized, they are likely to say something like “IRAC” or “CREAC” or “CRuPAC” or “TREAT.” Indeed, the organizational paradigm is a feature of many legal writing textbooks and is likely to be one of the first ideas a new law student will encounter in the legal writing classroom. While many legal writing professors find the use of such paradigms to be helpful to students, others find the paradigms simplistic and limiting.This article will examine the extent to which common legal writing paradigms such as CREAC are used by attorneys in the “real world” of practice when writing on the kinds of issues law students may encounter in the first-year legal writing classroom. To that end, it will focus on the analysis of two factor-based criminal law issues: whether a defendant was in custody and whether a defendant had a reasonable expectation of privacy. In focusing on “first-year” issues, the article seeks not to examine whether organizational paradigms are used at all in legal analysis, but to discover whether and how they are used when analyzing the same kinds of issues first-year law students analyze. If experienced attorneys writing on these issues do indeed use organizational paradigms in the same way many legal writing professors teach first-year law students, it is strong support for the continued use of organizational paradigms in the classroom. If not, it is perhaps time to reexamine their use.In section I, the article will briefly review the rhetorical basis for the paradigms. Section II will review the central place organizational paradigms hold in legal writing pedagogy, as well as the resistance to those paradigms. Section III will examine how the organizational paradigms are used in appellate briefs filed in actual cases involving issues that first-year law students at the University of Kentucky College of Law have written about in their spring appellate brief assignments involving two hypothetical cases. Specifically, the article will show that while practicing attorneys writing on these issues do follow the general pattern of organizational paradigms like CREAC, they deviate from the paradigms in ways that suggest an increased emphasis on narrative as an essential part of persuasion above and beyond the story told in the Statement of the Case section of a brief. In section IV, the article will suggest ways that the findings of section III might be incorporated into legal writing pedagogy.
What's News in Business Cycles

In the context of a dynamic, stochastic, general equilibrium model, we perform classical maximum likelihood and Bayesian estimations of the contribution of anticipated shocks to business cycles in the postwar United States. Our identification approach relies on the fact that forward-looking agents react to anticipated changes in exogenous fundamentals before such changes materialize. It further allows us to distinguish changes in fundamentals by their anticipation horizon. We find that anticipated shocks account for about half of predicted aggregate fluctuations in output, consumption, investment, and employment.
Empathy, Narrative and Victim Impact Statements

This chapter suggests that the scholarship tends to treat emotions as monolithic, unambiguous entities; it has yet to contend with—much less incorporate in any meaningful way—the complex, unruly field of emotion theory. The term "narrative" is employed by legal scholars to describe a good deal more than simply stories appearing in law journals. The chapter argues that the notion of outsider narrative is significant, first, because it provides a crucial normative grounding for narrative scholarship, and second, because in doing so it reveals the limiting principle that explains why more narrative is not always better. The chapter also argues that the emotions they evoke—hatred, bigotry, and unreflective empathy—demean the dignity of both victim and defendant. Empathy is a tool of the police officer interrogating a suspect. Empathy is an instrumental concept, and, in the legal arena, it is also a political concept.
Tort Liability Litigation Costs for Commercial Claims

This article analyzes tort liability litigation costs using the Texas Department of Insurance Commercial Liability Insurance Closed Claim database for the years 1988?2004. Insurer costs to defend claims in which a suit was filed average $35,000 per claim in 2004$, which corresponds to a share of 0.18 of total expenditures. Claims with higher stakes and complexity lead to greater reliance on outside counsel and less reliance on in-house counsel. Total transactions costs for each dollar received by claimants average $0.75 for all claims and $0.83 for claims in which the claimant retained an attorney and a suit was filed.
Judging Judges: Empathy as the Litmus Test for Impartiality

This Article examines the role of empathy in judging, which has been directly raised and questioned in recent years, in light of the discussion surrounding judicial nominations and appointments to the Supreme Court. President Barack Obama was right to emphasize that empathy is an important quality to be found in a judicial nominee, but his public support for empathetic judging was unfortunately cut short due to the political controversy and misunderstanding surrounding what empathy means. The opportunity remains, however, for a renewed discussion regarding judicial empathy by expressly connecting it to our vision of judicial impartiality. This Article makes an affirmative case for empathetic decisionmaking and argues that empathetic judging is necessary for objective adjudication. Consequently, when evaluating judicial candidates and judges, their exercise of empathy should be used as a litmus test to determine whether they will or do engage in impartial decisionmaking. Such a test would recognize that judges have their own tendencies in how they view various types of cases and with which party they tend to identify. This tendency particularly matters in cases that raise questions of inequality and perspective, and also involve a highly factual inquiry in applying the law, such as employment discrimination cases. These cases importantly depend upon how the judge hears the litigants’ stories. Further, since many workplace discrimination suits do not make it to a jury and instead are decided solely by the judge on summary judgment, it is imperative that judges fully consider each party’s side with empathic effort. To illustrate, this Article examines case examples in the employment discrimination context and concludes with proposals to require and enhance the use of empathy in adjudication.
A Return to Descartes: Property, Profit , and the Corporate Ownership of Animals

The conditions for farm animals in the United States are exceedingly bad. Most of the 9.5 billion farm animals we slaughter each year1 are not owned and raised by family farmers, as in times past, but by agribusiness corporations. Likewise, most of these animals are no longer raised on the outdoor pastures of family farms, but in large sheds known as "factory farms."2 Within these four walls, animals are subjected to overcrowding, disease, darkness, mutilation, and little-to-no human contact. Egg-laying hens are forced to live four or five to a cage the size of a folded newspaper, while pregnant sows and veal calves live in
Implementing carbon tariffs : a fool's errand ?

Some governments are considering taxes on imports based on carbon content from countries that have not introduced climate change policies. Such carbon border taxes appeal to domestic industries facing higher charges for their own carbon emissions. This research demonstrates that there are enormous practical difficulties surrounding such plans. Various policies are evaluated according to World Trade Organization compliance, administrative plausibility, help in meeting environmental goals, and ability to deal with domestic pressures. The steel industry is used as a case study in this analysis. All considered policies arguably fail to meet at least one of these constraints, bringing into question the plausibility that a carbon border tax can be practical policy.
Regulation and Internet Use in Developing Countries

Abstract Concerns about a worsening “digital divide” between rich and poor countries parallel the hope that information technology (IT) could increase economic growth in developing countries. Little research, however, has explored the role of public policies, and of regulation in particular, in IT growth. I use data from a unique new survey of telecommunications regulators and other sources to measure the effects of regulation on Internet development. Controlling for income and other factors that affect demand, I find that countries requiring formal regulatory approval for Internet service providers (ISPs) to operate have fewer Internet users and hosts than countries that do not require such approval. Moreover, countries that regulate ISP prices have higher Internet access prices than countries without such regulations. These results suggest that developing countries’ own regulatory policies can have large impacts on IT penetration.
Taboo Trade-Offs, Relational Framing, and the Acceptability of Exchanges

This article reports 4 experiments demonstrating the power of social-relational framing to complicate superficially straightforward economic exchanges of goods and services. Drawing from Alan Fiske's theoretical framework as well as Tetlock's sacred value protection model, the experiments demonstrate (a) pricing distortions and refusals to answer certain questions when people contemplate buying or selling objects endowed with special relational significance; (b) moral outrage and cognitive confusion when people are asked whether they would allow market-pricing norms to influence decisions that fall under the normative purview of communal-sharing, authority-ranking, and equality-matching relationships; and (c) elements of tactical flexibility in how people respond to breaches of relational boundaries (a willingness to turn a blind eye to taboo trade-offs when it is in their interest to do so). An agenda for future work is offered that explores how pragmatic, economic interests are balanced against the desire to be (or appear to be) the type of person who honors social–relational constraints on what should be considered fungible.
Why State Prisons

There is plenty of conversation about how to reduce state prison populations, but what almost no one talks about is this: states are under no obligation to provide prisons, nor are they obliged to pay for the costs associated with prison sentences. Perhaps this silence comes from an assumption that state governments have always paid for prison, but, as this Article reveals, this conventional wisdom is wrong. In fact, states neither built prisons nor paid for incarceration until the middle of the 19th century. The decisions of local officials drive prison admissions — via arresting, charging, and sentencing — but given the political economy of local decision-making, local preferences are unlikely to result in optimally-sized state prison populations. This Article suggests that since state prison subsidies may not be desirable and are certainly not inevitable, it may be time for states to reconsider paying for prisons.