Yale Law School最新文献

{"title":"A 'Barbarous Relic': The French, Gold, and the Demise of Bretton Woods","authors":"M. Graetz, Olivia Briffault","doi":"10.2139/SSRN.2827738","DOIUrl":"https://doi.org/10.2139/SSRN.2827738","url":null,"abstract":"Since the time of the French Revolution, when a gold standard saved the nation from hyperinflation, France has wanted gold to be the linchpin of international monetary arrangements. And, indeed, from the earliest use of bills and coins as money until August 1971, money was, in principle at least, a claim on gold. At Bretton Woods, New Hampshire, where in July 1944 730 delegates from 44 countries met to create the post-war international financial order, the French argued that gold -- which John Maynard Keynes had described two decades earlier as a “barbarous relic” -- was the key to international monetary stability. The French attachment to gold was rooted at least as much in politics as in economics, in particular in France’s efforts to take international economic power away from the United States and lodge it in a stronger and more powerful France. On Sunday, August 15, 1971, Richard Nixon announced that the United Sates was no longer willing to exchange dollars for gold. In a few short sentences, the president had dismantled the existing international monetary system and abrogated the agreements of Bretton Woods, which had required each country to maintain its currency’s exchange rate within a specified value of gold. No one knew exactly what this would mean for the international monetary system, but the French were especially unhappy. France soon became the principal antagonist to the United States in the transformation of the international monetary system from fixed to floating exchange rates. This paper, to be published as a chapter in Naomi Lamoreaux and Ian Shapiro, eds., The Bretton Woods Agreement together with Scholarly Commentaries and Essential Historical Documents (forthcoming, Yale University Press), traces France’s efforts to maintain a central role for gold in international monetary arrangements until 1976 when the IMF Articles were amended to reflect the new reality of floating exchange rates.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123553375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Using the False Claims Act to Remedy Tax Expenditure Fraud","authors":"I. Ayres, R. McGuire","doi":"10.2139/SSRN.2821606","DOIUrl":"https://doi.org/10.2139/SSRN.2821606","url":null,"abstract":"The federal False Claims Act (FCA) might be used to combat fraudulent claims regarding tax expenditures. The FCA has been used to protect the public fisc by imposing liability upon anyone who makes a false or fraudulent claim relating to an expenditure of federal funds. A substantial share of government spending is implemented through tax credits and deductions granted to individuals and entities for taking particular actions promoted through the Tax Code. Government funds dedicated to such tax incentives – so-called “tax expenditures” – are themselves potentially subject to false claims – for example, when a borrower makes a false representation that a mortgage relates to a principle or second residence in order to claim a home mortgage interest deduction. This article explores how the FCA as currently enacted might be invoked to combat fraud that targets tax expenditures, as well as doctrinal counter-arguments to such application. We touch on the potential breadth of the FCA’s reach if it is deemed to encompass such claims, as well as the prospect of using other whistleblower mechanisms to achieve similar results.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130692390","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Voluntary Taxation and Beyond - The Promise of Social-Contracting Voting Mechanisms","authors":"Ian Ayres","doi":"10.2139/ssrn.2820299","DOIUrl":"https://doi.org/10.2139/ssrn.2820299","url":null,"abstract":"Would you volunteer to pay a carbon tax if 99% of other Americans also volunteered to pay such a tax? Instead of traditional referenda, it is possible to structure plebiscites which would only bind a subset of the population (e.g., to be subject to a carbon tax) if that subset’s individually chosen conditions for participation are met. While provision-point mechanisms with exogenously set provision points have garnered billions of dollars in private contributions, a broader class of “social contracting” mechanisms exist that allow individuals to bid on their preferred provision points. This article shows how both partial and probabilistic bidding schemes might foster voluntary subpopulation participation in a range of public good applications (including sexual assault reporting and civil disobedience), and reports results from a series of randomized surveys of Internet respondents assessing the potential support for such subgroup “social contracting.” The respondent bids would, for example, support an equilibrium in which approximately 25% of the public would voluntarily commit to pay an additional 10% tax on electricity.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"79 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123662660","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Corruption in State Administration","authors":"Tina Søreide, S. Rose-Ackerman","doi":"10.4337/9781783474479.00015","DOIUrl":"https://doi.org/10.4337/9781783474479.00015","url":null,"abstract":"Corruption can arise in any bureaucracy with the authority to allocate benefits and impose costs. This paper articulates general economic principles that can help identify corrupt incentives and guide reform. It draws from models of bureaucratic behavior, especially the economic literature on asymmetric information and sanctions. In this literature, individuals are expected to make rational choices given their preferences and the limited information at their disposal. The paper applies basic economic ideas of scarcity, competition, sanctions, and incentives to the control of corruption in bureaucracies. It presents the intuitions behind the economic theories and discusses their practical value in anti-corruption policy design. The paper contrasts policies directed against civil servants found guilty of corruption with compliance regimes that target state institutions as a whole.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125284488","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Regulatory Inertia and Interest Groups: How the Structure of the Rulemaking Process Affects the Substance of Regulations","authors":"Asaf Eckstein","doi":"10.2139/ssrn.2285593","DOIUrl":"https://doi.org/10.2139/ssrn.2285593","url":null,"abstract":"Various forces may undermine efficient regulation. This essay concentrates on two such forces: regulatory inertia and regulatory vulnerability to undue external influences. Regulatory inertia is best described as the tendency of regulators to adhere to their original proposed rules and to resist change, even when that change may make rules more effective. Undue external influences consist of the power and leverage that narrow interest groups often exert on regulators in order to ensure favorable regulation, often at the expense of the public welfare. This essay examines the effects of these two forces on the Israel Securities Authority (ISA) rulemaking process during the years 2003-2010, and explores whether this process was flexible and open to changes and whether it was significantly influenced by small interest groups. The ISA process provides us with a unique opportunity to examine both forces. Since the ISA has limited rulemaking power, its rules must pass through three stages that together last almost two years. At stage 1, a rule is valid for one year but can be extended for an additional year if the ISA considers its extension essential and with the consent of Minister of Finance (stage II). Within two years of passage, the ISA can request that the Minister of Finance and the Knesset (Israeli parliament) Finance Committee anchor the rule into secondary legislation (stage III). If the rule is not anchored into secondary legislation it expires. At each of these stages the rules are published for public review. Next, the article examines the rulemaking process of the American Securities and Exchange Commission (SEC), focusing on rules enacted between the years of 2006-2009. Unlike the ISA, the SEC has very broad rulemaking authority. Unlike the ISA, rules promulgated by the SEC may last indefinitely, and do not need the specific support of secondary legislation. Rather, all SEC rulemaking is authorized by the SEC’s enacting legislation, as long as the agency can demonstrate that its rules are within the scope of its legislative mandate. The SEC, like all American administrative rulemaking entities, engages in “notice and comment rulemaking.” The SEC publishes a notice of its proposed rules, and solicits comments from the general public. The SEC must then consider all of the comments it receives before promulgating the final version of its proposed rules (although the rules need not actually incorporate all, or even any, of the public comments that the SEC receives).The Article shows that the structure of the ISA rulemaking process causes its final rules to exhibit a high level of regulatory inertia and immunity from external influence. A substantial majority of ISA rules passed through all three stages without material changes, suggesting that regulators resist change throughout the rulemaking process. This conclusion is sustained by a review of (1) ISA plenum (board) protocols, which reflect stages 1-3 plenum discussions; (2) Knesset Financ","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133876606","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies","authors":"Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, J. Resnik, J. Spiegel, Haran Tae, Alyssa Roxanne Work, B. Holbrook","doi":"10.2139/SSRN.2286861","DOIUrl":"https://doi.org/10.2139/SSRN.2286861","url":null,"abstract":"This report provides an overview of state and federal policies related to long-term isolation of inmates, a practice common in the United States and one that has drawn attention in recent years from many sectors. All jurisdictions in the United States provide for some form of separation of inmates from the general population. Prison administrators see the ability to separate inmates as central to protecting the safety of both inmates and staff. Yet many correctional systems are reviewing their use of segregated confinement; as controversy surrounds this form of control, its duration, and its effects. The debates about these practices are reflected in the terms used, with different audiences taking exceptions to each. Much of the recent public discussion calls the practice “solitary confinement” or “isolation.” In contrast, correctional facility policies use terms such as “segregation,” “restricted housing,” or “special management,” and some corrections leaders prefer the term “separation.” All agree that the practice entails separating inmates from the general population and restricting their participation in everyday activities; such as recreation, shared meals, and religious, educational, and other programs. The degree of contact permitted — with staff, other inmates, or volunteers — varies. Some jurisdictions provide single cells and others double; in some settings, inmates find ways to communicate with each other. The length of time spent in isolation can vary from a few days to many years. This report provides a window into these practices. This overview describes rules promulgated by prison officials to structure decisions on the placement of persons in “administrative segregation,” which is one form of separation of inmates from the general population. Working with the Association of State Correctional Administrators (ASCA), the Arthur Liman Program at Yale Law School launched an effort to review the written policies related to administrative segregation promulgated by correctional systems in the United States. With ASCA’s assistance, we obtained policies from 47 jurisdictions, including 46 states and the Federal Bureau of Prisons. This overview provides a national portrait of policies governing administrative segregation for individuals in prisons, outlines the commonalities and variations among jurisdictions, facilitates comparisons across jurisdictions, and enables consideration of how and when administrative segregation is and should be used. Because this review is of written policies, it raises many questions for research — about whether the policies are implemented as written, achieve the goals for which they are crafted, and at what costs. Information is needed on the demographic data on the populations held in various forms of segregated custody, the reasons for placement of individuals in and the duration of such confinement, the views of inmates, of staff on site, and of central office personnel; and the long-term effects of admi","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131028863","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Stone-Age Property in Domestic Animals","authors":"Robert C. Ellickson","doi":"10.2139/SSRN.2241675","DOIUrl":"https://doi.org/10.2139/SSRN.2241675","url":null,"abstract":"Only yesterday, all animals were wild. Zoological archaeologists assert that about 15,000 years ago, our hunter-gatherer forebears achieved the first domestication — the dog. Over the course of ensuing millennia, they proceeded to domesticate sheep, cattle, and other livestock. By the advent of the Bronze Age, domestic animals had come to constitute a major component of human wealth. Domestications required Stone Age people to create various informal property rules to resolve conflicting claims to the ownership of a domestic beast. A brand on an animal, for example, might have been considered adequate notice to a hunter that another person’s tamed animal was no longer up for grabs. This article marshals indirect sources of evidence, such as the practices of modern-day hunter-gatherers and the historical materials left by the earliest civilizations, to ground hypotheses about the substance of primeval property rights in domestic animals. These sources suggest, for example, that during the Neolithic Period (the late Stone Age) both dogs and livestock conventionally would have been owned privately by either an individual or a family, and not, as Friedrich Engels speculated, communally by a band or a tribe.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127975242","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"For Diversity in the International Regulation of Financial Institutions: Critiquing and Recalibrating the Basel Architecture","authors":"R. Romano","doi":"10.2139/SSRN.2127749","DOIUrl":"https://doi.org/10.2139/SSRN.2127749","url":null,"abstract":"This paper challenges the prevailing view of the efficacy of harmonization of international financial regulation and provides a mechanism for facilitating regulatory diversity and experimentation within the existing global regulatory framework. the Basel accords. Recent experience suggests that regulatory harmonization can increase, rather than decrease, systemic risk. By incentivizing financial institutions worldwide to follow broadly similar business strategies, regulatory error contributed to a global financial crisis. Furthermore, the fast-moving, dynamic nature of financial markets renders it improbable that regulators will be able to predict with confidence what optimal capital requirements or other regulatory policies are to reduce systemic risk, the objective of global harmonization efforts, nor what future financial innovations, activities or institutions might generate systemic risk. The paper contends, accordingly, that there would be value added from increasing the flexibility of the international financial regulatory architecture, as a means of reducing systemic risk, It proposes making the Basel architecture more adaptable by creating a procedural mechanism by which departures along multiple dimensions from Basel would be permitted while providing safeguards, given the limited knowledge that we do possess, against the ratchetting up of systemic risk from such departures. The core of the proposal is peer review of proposed departures from Basel, and upon approval, ongoing monitoring for their impact on global systemic risk. If a departure were found to increase systemic risk, it would be disallowed. Such a mechanism would improve the quality of regulatory decisionmaking by generating information on what regulation works best under what circumstances, and by providing a safety valve against a harmonized regulatory error’s increasing systemic risk, by reducing the likelihood that international banks worldwide will follow broadly similar flawed strategies in response to regulatory incentives.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"157 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131509447","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Room for Maneuver: Julie Cohen's Theory of Freedom in the Information State","authors":"J. Balkin","doi":"10.1093/JRLS/JLS010","DOIUrl":"https://doi.org/10.1093/JRLS/JLS010","url":null,"abstract":"This essay is part of a symposium on Julie Cohen's book, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press 2012). It discusses a central idea in Cohen's theory: semantic discontinuity.\"Semantic discontinuity\" means gaps, flexibilities, and inconsistencies in systems of digital control. As we build digital systems to achieve our goals -- for example, social order, national security, or property protection -- we generate an increasingly complicated amalgam of practices, norms, and technologies of control. And as those practices, norms and technologies become increasingly powerful and pervasive, they may do more than protect our rights; they may actually decrease our practical freedom.An imperfect system of control, rather than being a hindrance to human liberty, may sometimes be necessary to it, even if this means that some violations of the law will go unpunished and some norms will be only imperfectly realized. As techniques of surveillance, governance, and control multiply and overlap in modern societies, gaps and imperfections in these systems -- some designed, and some accidental -- become increasingly important. That is because they allow room for maneuver and space for improvisation.Cohen’s concept of semantic discontinuity is not a complete account of human freedom. It is merely one aspect of what freedom might mean in a networked world, along with (for example) other values like access to knowledge and effective transparency. The essay discuses the strengths and weaknesses of semantic discontinuity as a theory of digital freedom. I conclude by applying Cohen's ideas to the problems of freedom of speech in the digital world. Cohen's account has important parallels to my own theory of democratic culture. Moreover, her idea of semantic discontinuity has interesting analogies in free speech doctrine; two examples are immunities for digital intermediaries and the rule against prior restraints.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129226316","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Making the Developmental State Work: How Does a Mandate Matter for the Brazilian Development Bank?","authors":"M. Schapiro","doi":"10.2139/ssrn.1986850","DOIUrl":"https://doi.org/10.2139/ssrn.1986850","url":null,"abstract":"State-owned banks are a fairly common financial alternative in most developing countries. They play important roles, but also have significant weaknesses. In the literature of the field, considerable attention has been paid to their economic performance, but there is a particular problem which deserves further consideration: the lack of public control over their actions. Based on the Brazilian experience, marked by the work of a large development bank – BNDES (Brazilian Development Bank), this article evaluates the limits and possibilities of mandates serving as accountability tools for state-owned banks. Similarly to the case of Central Banks, a mandate in this case does not refer to the positions of managers within the bank; instead, it means a public delegation of performance goals. This tool has been adopted by successful state-owned banks such as the Development Bank of Canada and the Development Bank of Southern Africa. In both cases, however, mandate is described only as a tool designed to ensure good economic performance. In this paper, in turn, mandate is discussed as an accountability tool capable of providing both information for financial choices (disclosure) and of allowing for greater developmental responsiveness for lending policy.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131065223","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}