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Abstract:
This Note documents the evolution of the "mosaic theory" in Freedom of Information Act (FOIA) national security law and highlights its centrality in the post-9/11 landscape of information control. After years of doctrinal stasis and practical anonymity, federal agencies began asserting the theory more aggressively after 9/11, thereby testing the limits of executive secrecy and of judicial deference. Though essentially valid, the mosaic theory has been applied in ways that are unfalsifiable, in tension with the text and purpose of FOIA, and susceptible to abuse and overbreadth. This Note therefore argues, against precedent, for greater judicial scrutiny of mosaic theory claims.

Mosaic Theory, National Security, Freedom of Information Act (FOIA), Government Secrecy, Judicial Review

Abstract:
If charity begins at home, scholarship on the charitable deduction has stayed at home. In the vast legal literature, few authors have engaged the distinction between charitable contributions that are meant to be used within the United States and charitable contributions that are meant to be used abroad. Yet these two types of contributions are treated very differently in the Code and raise very different policy issues. As Americans' giving patterns and the U.S. nonprofit sector grow increasingly international, the distinction will only become more salient.

This Article offers the first exploration of how theories of the charitable deduction apply to internationally targeted donations. In so doing, the Article aims to contribute not only to a methodological shift in nonprofit tax scholarship (a strategic remapping), but also to a reappraisal of the deduction literature (an analytic remapping): just as existing theories of the deduction can inform our understanding of foreign charity, considerations of foreign charity can shed light back on the existing theories. I argue that the standard rationales are underdetermined and undertheorized, and propose a new, integrated approach to the charitable deduction. Internationally targeted donations emerge from the analysis holding a strong claim to deductibility - often a stronger claim than domestically targeted donations hold - on almost every relevant dimension, which calls into question current regulations that privilege domestic giving. Oversight and foreign policy concerns, however, complicate the ideal of geographic neutrality and illuminate the charitable deduction's role as an instrument of statecraft. Admitting foreign charity into the debate over the deduction thus changes the debate's terms; it gives deduction theory new urgency as well as new complexity.

Charitable Deduction, Charitable Contributions Deduction, Charity, Altruism, Nonprofit (Not-for-Profit) Organizations, Nonprofit Tax Policy, Tax Theory, International Tax, Global Associational Revolution, Cosmopolitan Ethics

Abstract:
This paper uses data on juvenile offenders released from correctional facilities in Florida to explore the effects of facility management type (private for-profit, private nonprofit, public state-operated, and public county-operated) on recidivism outcomes and costs. The data provide detailed information on individual characteristics, criminal and correctional histories, judge-assigned restrictiveness levels, and home zip codes - allowing us to control for the non-random assignment of individuals to facilities far better than any previous study. Relative to all other management types, for-profit management leads to a statistically significant increase in recidivism, but relative to nonprofit and state-operated facilities, for-profit facilities operate at a lower cost to the government per comparable individual released. Cost-benefit analysis implies that the short-run savings offered by for-profit over nonprofit management are negated in the long run due to increased recidivism rates, even if one measures the benefits of reducing criminal activity as only the avoided costs of additional confinement.

Juvenile Crime, Juvenile Correctional Facilities, Recidivism, Prison Privatization, Provision of Public Goods: Nonprofit, For-profit, Public

Abstract:
This paper traces the recent history and development of privately operated prisons in the United States and the United Kingdom, and it compares their current role in the countries' correctional systems. The privatization movements of the U.S. and the U.K. were driven by similar factors, but the relative weight of these factors varied between the two. In the U.S., legal pressures to alleviate prison overcrowding and fiscal incentives to contract out prison construction were stronger, while in the U.K. the ideological and political aims of the governing party exerted more influence in stimulating privatization. America's experience with private prisons in the 1980s set an important precedent for Britain, but the U.K. ultimately adopted a different model of privatization. Although results are not conclusive to date, it appears the British model of regulating private prisons - with highly prescriptive contracts, multiple levels of monitoring, and output-based evaluations - has yielded superior performance from the private sector. Better designed regulatory frameworks would allow both countries to realize more of the potential benefits of private prisons while minimizing the possibilities for abuse.

Correctional regulation, prison privatization, provision of public goods

Abstract:
Judicial elections in the United States have undergone a dramatic transformation. For more than a century, these state and local elections were relatively dignified, low-key affairs. Campaigning was minimal; incumbents almost always won; few people voted or cared. Over the past quarter century and especially the past decade, however, a rise in campaign spending, interest group involvement, and political speech has disturbed the traditional paradigm. In the "new era," as commentators have dubbed it, judicial races routinely feature intense competition, broad public participation, and high salience.

This Article takes the new era as an opportunity to advance our understanding of elective versus nonelective judiciaries. In revisiting this classic debate, the Article aims to make three main contributions. First, it offers an analytic taxonomy of the arguments for and against electing judges that seeks to distinguish the central normative concerns from the more contingent, empirical ones. Second, applying this taxonomy, the Article shows how both the costs and the benefits of elective judiciaries have been enhanced by recent developments, leaving the two sides of the debate further apart than ever.

Finally, the Article explores several deep ironies that emerge from this cleavage. Underlying these ironies is a common insight: As judicial elections achieve greater legitimacy as elections, they will increasingly undermine the judiciary's distinctive role and our broader democratic processes. There is an underappreciated tradeoff between the health of judicial elections and the health of the judiciary, the Article posits, that can help recast the controversy over the new era.

judicial elections, judicial selection, judicial review, judicial activism, campaign conduct canons, state courts, majoritarian difficulty, popular constitutionalism, Republican Party of Minnesota v. White

Abstract:
A funny thing happened to the entrepreneur in legal, business, and social science scholarship. She strayed from her capitalist roots, took on more and more functions that have little to do with starting or running a business, and became wildly popular in the process. Nowadays, "social entrepreneurs" tackle civic problems through innovative methods, "policy entrepreneurs" promote new forms of government action, "norm entrepreneurs" seek to change the way society thinks or behaves, and "moral entrepreneurs" try to alter the boundaries of duty or compassion. "Ethnification entrepreneurs," "polarization entrepreneurs," and other newfangled spinoffs pursue more discrete objectives. Entrepreneurial rhetoric has never been so trendy or so plastic. This Article documents the proliferation of entrepreneurs in the American academic idiom, and it offers some reflections on the causes and consequences of this trend.

entrepreneurship, social entrepreneur, moral entrepreneur, norm entrepreneur, policy entrepreneur, entrepreneurial rhetoric, entrepreneur meme, capitalism, Cantillon, Say, Schumpeter, Marx, Weber, Knight, Baumol, Kirzner, Ashoka

Abstract:
This book review examines Martin Wolf's Why Globalization Works (Yale Univ. Press, 2004). It finds persuasive Wolf's central argument in favor of economic globalization, but highlights a variety of weaknesses in his approach - most notably in what gets left out. Wolf never addresses the complications inherent in expanding supranational authority, for example, or Russia's disastrous experience implementing the Washington Consensus. Why Globalization Works reminds us that globalization, however flawed, is worth fighting for; its poverty of further guidance reminds us how difficult it will be to remedy the flaws.

Wolf, Globalization, Global Governance

Abstract:
This paper analyzes the influence that juvenile offenders serving time in the same correctional facility have on each others subsequent criminal behavior. The analysis is based on data on over 8,000 individuals serving time in 169 juvenile correctional facilities during a two-year period in Florida. These data provide a complete record of past crimes, facility assignments, and arrests and adjudications in the year following release for each individual. To control for the non-random assignment to facilities, we include facility and facility-by-prior offense fixed effects, thereby estimating peer effects using only within-facility variation over time. We find strong evidence of peer effects for burglary, petty larceny, felony and misdemeanor drug offenses, aggravated assault, and felony sex offenses; the influence of peers primarily affects individuals who already have some experience in a particular crime category. We also find evidence that the predominant types of peer effects differ in residential versus non-residential facilities; effects in the latter are consistent with network formation among youth serving time close to home.

Abstract:
This paper analyzes the influence that juvenile offenders serving time in the same correctional facility have on each other's subsequent criminal behavior. The analysis is based on data on over 8,000 individuals serving time in 169 juvenile correctional facilities during a two-year period in Florida. These data provide a complete record of past crimes, facility assignments, and arrests and adjudications in the year following release for each individual. To control for the non-random assignment to facilities, we include facility fixed effects, thereby estimating peer effects using only within-facility variation over time. We find strong evidence of peer effects for various categories of theft, burglary, and felony drug and weapon crimes; the influence of peers primarily affects individuals who already have some experience in a particular crime category. We also find evidence that peer effects are stronger in smaller facilities and that the predominant types of peer effects differ in residential versus non-residential facilities. Effects in the latter are consistent with network formation among youth serving time close to home.

social learning, peer effects, social interactions, recidivism, juvenile crime, human capital accumulation

Abstract:
This paper critiques The Regulation of Labor, an empirical study recently published by Juan C. Botero, Simeon Djankov, Rafael La Porta, Florencio Lopez-de-Silanes, and Andrei Shleifer in the Quarterly Journal of Economics. The Regulation of Labor extends these authors' comparative research to the realm of employment, collective-relations, and social-security laws, and finds that legal origin is a stronger predictor of all of these than political or economic variables, with common law associated with the lowest levels of regulation. While these findings are suggestive and help deepen the case for regulatory complementarity, the methodological weaknesses are severe. This paper explores the limits of The Regulation of Labor's dataset and econometric approach, and suggests some implications for the authors' larger project.

Labor Regulation, Labor Law, LLSV, Shleifer, Legal Origins, Legal Institutional Theory, Regulatory Complementarity, Comparative Law and Economics

Abstract:
[Note: For a revised and expanded version of this paper, please see Hidden Foreign Aid, http://papers.ssrn.com/abstract=1044041]

Whether the U.S. government should be allowed to claim credit for the private philanthropy of its citizens is a hot topic in today's foreign aid debate. Overlooked in this debate, however, is a form of aid that straddles the traditional public/private divide: charitable tax expenditures. Through the many tax privileges that the United States grants to its nonprofit organizations, the government implicitly foots some portion of the bill anytime these organizations send money abroad for development purposes. Unlike official development assistance (ODA), these tax expenditure funds are privately organized and distributed, yet unlike voluntary transfers they are paid for by the public fisc. This is not private aid; it is privatized aid. At the same time that direct expenditures on aid were falling in recent decades, these tax expenditures were rising.

The basic, descriptive goal of this Comment is to show how nonprofit tax policies have shaped the content of American aid. The broader goal is to connect this insight with the literatures on tax expenditures and international development. If one accepts the Comment's theoretical premise, then U.S. government spending on aid is somewhat larger, and substantially different in character, than most commentators have assumed. Although tax expenditures on foreign aid raise a number of concerns, they also, I contend, possess unique virtues that can make them a valuable complement to ODA.

Tax Expenditures, Foreign Aid, Official Development Assistance, OECD, Philanthropy, Charity, Nonprofit (Not-for-Profit) Organizations, Charitable Contributions Deduction

Abstract:
This Article offers a new way of thinking and talking about government secrecy. In the vast literature on the topic, little attention has been paid to the structure of government secrets, as distinct from their substance or function. Yet these secrets differ systematically depending on how many people know of their existence, what sorts of people know, how much they know, and how soon they know. When a small group of similarly situated officials conceals from outsiders the fact that it is concealing something, the result is a deep secret. When members of the general public understand they are being denied particular items of information, the result is a shallow secret. Every act of state secrecy can be located on a continuum ranging between these two poles.

Attending to the depth of state secrets, the Article shows, can make a variety of conceptual and practical contributions to the debate on their usage. The deep/shallow distinction provides a vocabulary and an analytic framework with which to describe, assess, and compare secrets, without having to judge what they conceal. It sheds light on how secrecy is employed and experienced, which types are likely to do the most damage, and where to focus reform efforts. And it gives more rigorous content to criticisms of Bush administration practices. Elaborating these claims, the Article also mines new constitutional territory - providing an original account of the role of state secrecy generally, as well as deep secrecy specifically, in our constitutional order.

State Secrets, Executive Power, Constitutional Theory, Separation of Powers, Democratic Deliberation, Bureaucratic Culture, National Security, Mosaic Theory, Black Holes, Church Committee, Bush Administration, Rumsfeld, CIA, FISA, FOIA

Abstract:
Whether the U.S. government should be allowed to claim credit for the private philanthropy of its citizens is a hot topic in today's foreign aid debate. Overlooked in this debate, however, is a form of aid that straddles the traditional public/private divide: charitable tax expenditures. Through the many tax privileges that the United States grants to its nonprofit organizations, the government implicitly foots some portion of the bill anytime these organizations send money into foreign countries for development purposes. Other tax privileges subsidize the income-earning activities of American individuals and corporations living or operating abroad. Unlike official development assistance (ODA), these tax expenditure funds are privately organized and distributed, yet unlike voluntary transfers they are paid for by the public fisc. This is not private aid; it is privatized aid. At the same time that explicit expenditures on aid were falling in recent decades, these hidden tax expenditures were rising.

The basic goal of this Article is descriptive: to show how domestic tax policies have covertly shaped the content of American aid. The broader goal is to connect this insight with the literatures on tax expenditures and international development. If one accepts the Article's theoretical premise, then U.S. government spending on aid is somewhat larger, and substantially different in character, than most commentators have assumed. Although tax expenditures on foreign aid raise a number of concerns, they also, I contend, possess unique virtues that can make them a valuable complement to ODA.

tax expenditures, foreign aid, official development assistance (ODA), OECD, philanthropy, charity, nonprofit (not-for-profit) organizations, nonprofit tax exemptions, charitable contributions deduction

Abstract:
The right to an impartial arbiter is the bedrock of due process. Yet litigants in most state courts face judges subject to election and reelection - and therefore to majoritarian political pressures that would appear to undermine the judges' impartiality. This tension has existed for as long as judges have been elected (and, to some extent, for as long as they have been appointed, in which case campaigns often take a less public but equally politicized form).

In recent years, however, this tension has become more acute. Today, state courts around the country increasingly resemble - and are increasingly perceived to resemble - interest group battlegrounds in which judges represent particular constituencies in addition to, or even instead of, the rule of law. Two key developments are driving this transformation: the role of money in judicial elections is growing while the canons of conduct are shrinking. These trends are creating dramatic new threats to judicial impartiality and due process. Taking our cue from Justice Anthony Kennedy's concurrence in Republican Party of Minnesota v. White, we explore in this article a possible solution: making judicial recusal rules more rigorous.

recusal, disqualification, due process, judicial elections, state courts, Republican Party of Minnesota v. White

Abstract:
In recent years, we have seen an escalation of attacks on the independence of the judiciary. Government officials and citizens who have been upset by the substance of judicial decisions are increasingly seeking to rein in the courts by limiting their jurisdiction over controversial matters, soliciting pre-election commitments from judicial candidates, and drafting ballot initiatives with sanctions for judges who make unpopular rulings. Many of these efforts betray ignorance at best, or defiance at worst, of traditional principles of separation of powers and constitutional protections against tyranny of the majority.

The attacks are fueled in part by the growing influence of money in judicial elections and the dismantling of codes of judicial ethics that once helped to preserve the distinctive character of the judiciary, even during the course of campaigns for the bench. The unabated acceleration of those trends erodes public confidence in the ability of courts to serve as fair arbiters of disputes. Moreover, the undifferentiated cynicism bred by those trends tars all courts - elective and appointive, state and federal - with the same brush, undermining resistance even to extreme anti-judicial rhetoric and activism. The threat is sufficiently serious to command attention at the highest levels of the judiciary.

The time has come for elected courts, which are at the eye of the storm, to replace anxiety about declining public trust with active measures to restore it. Without a meaningful response to legitimate concerns induced by their own campaign-related behavior, judges cannot expect the public to rise to their defense when their authority is questioned on illegitimate grounds. To protect judicial independence, generally, elected courts must embrace the public demand for accountability - not by yielding to pressure on hot-button issues, but by recognizing that with independence comes a duty to preserve both the reality and appearance of justice. Elected courts must demonstrate their accountability for the decisions they make by more aggressively distancing themselves from situations in which their fairness and impartiality might reasonably be questioned.

Readers familiar with the American Bar Association's Model Code of Judicial Conduct will recognize in this exhortation a call for stiffer disqualification or recusal policies. Canon 3E(1) of that Code, which has been adopted in some form by nearly every state and by Congress, provides: "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." This article suggests that current disqualification doctrines and procedures are inadequate to preserve public trust and that, to safeguard their own independence, courts should consider a variety of reforms.

Part I describes trends undermining public confidence and explains how, in two recent decisions, the United States Supreme Court has both exacerbated the impact of those trends and absolved itself of responsibility for providing a solution. In Parts II and III, respectively, we offer a brief history of disqualification law and an explanation why, as it is currently interpreted, it cannot solve the urgent problems of today. Finally, Part IV outlines ten proposals for strengthening recusal that acknowledge the public's legitimate demand for accountability while protecting the judiciary's institutional need for independence.

recusal, disqualification, due process, judicial independence, model Code of Judicial Conduct, Judicial Elections, State Courts, Avery, Republican Party of Minnesota v. White

Abstract:
For all the apocalyptic talk of globalization's corrosive effects on social provision, European welfare regimes have survived to date and, this essay argues, will continue to survive in the future. Welfare regimes, generally operating within a national framework, involve states' actions for the funding, provision, distribution, and coordination of a wide range of benefits and services. Globalization has changed the economic and political context in which Europe's welfare regimes are administered, but its direct causal link to welfare reform is tenuous at best. Instead of global forces, a set of profound internal pressures - de-industrialization, post-industrialization, and demographics - will drive welfare reform across Europe. We can expect a degree of retrenchment, as well as movement towards more market- and employment-friendly policies. Instead of seeing globalization as a force to be resisted, European social policy-makers should see globalization as an agent and agenda for reform, a tool in the fight against the internal pressures that pose the greatest threat to their welfare regimes.

Globalization, Welfare State, European Social Policy