The insights from the absent-law situations have implication for several modern criminal justice issues, including the appropriate distributive principle for criminal liability and punishment, restorative justice programs, the movement to promote non-incarcerative sanctions, transitional justice and truth commissions, the use-of-force rules under international law, the procedures for fairness in criminal adjudication, and crime-control policies in fighting organized crime and terrorism.

This essay attempts to take up Williams' challenge, and to show that there are indeed significant practical benefits that flow from a variety of distinctions, some that Williams knew about and others that he did not. Its general claim is that there can be great practical value in investigating the interrelation among doctrines – both the similarities and the differences among different doctrines. This is not true of all distinctions; some may be of interest only to moral philosophers. But those that do have practical value ought to be incorporated into the framework of criminal law that governs how judges, lawyers, and lawmakers think about that body of law.

After first comparing Hauerwas’s understanding of Jesus’s Sermon on the Mount with that of his two twentieth century predecessors, Walter Rauschenbusch and Reinhold Neibuhr, the Essay turns to Hauerwasian public engagement and the prophetic temptation. The Essay then considers the implications of Hauerwas’s theology for three very different social issues, the Civil Rights Movement, abortion, and debt and bankruptcy.

After some background on AFCs and automatic stays, we provide our joint analysis of the costs and benefits of stays on the QFCs, with a focus on systemtically important financial institutions, including the special case of central market utilities. Following this, we state our respective policy conclusions. Briefly speaking, we both believe that repos (and certain closely related QFCs) that are backed by liquid securities should be exempt from automatic stays, or receive an effectively similiar treatment. Repos backed by illiquid assets, on the other hand, should not be given this safe harbor. We both believe that derivatives that have not been centrally cleared should be subject to automatic stays. One of us believes that stays should also apply to cleared derivatives. The other author favors an exemption of cleared derivatives from stays, except in the case of a failure of a regulated central clearing party.

The book also compares the social welfare function to other, more familiar policy-evaluation methodologies—traditional cost-benefit analysis, inequality metrics, poverty metrics, and cost-effectiveness analysis. Only the “social welfare function” provides a unified, implementable, and normatively plausible methodology that respects the most basic welfarist principles (such as the Pareto principle) and is sensitive to distributive considerations.

Using the inside-out model as our lens, and drawing on comparisons to Italian and E.U. governance, we explore three areas of corporate governance that have been pervasively restructured by the Dodd-Frank Act and subsequent regulation: proxy access, credit rating agencies, and derivatives. We begin, in Part I, with proxy access, arguing that the new scheme for minority shareholder access excludes the very outsiders it ostensibly integrates into corporate governance. In Part II, which focuses on auditing and credit rating agencies, we argue that the inside-out relationship—in which the corporation itself chooses its gatekeeper—is deeply problematic but cannot be “cured.” The most realistic strategy is to create more flexibility in the audit relationship, and diminish the importance of credit ratings. Part III analyzes the new derivatives regulation. Here, we argue that Congress’s effort to sharply separate the inside and outside uses of derivatives is incoherent from a corporate governance perspective. We conclude by briefly speculating about the future implications of inside-out governance.

This article argues that the debate over a floating NAV is misguided. First, under current law, money market funds can maintain a $1 share price only under limited conditions. Second, a floating NAV would not achieve the goals claimed by its proponents. Third, and most important, a stable share price is critical to the existence of the money market funds industry. A required floating NAV would eliminate the fundamental attraction of money market funds for investors and, as a result, jeopardize the availability of short term capital.

The more important regulatory question, on which existing commentary has not focused, is what happens if an MMF breaks the buck. This article takes the position that this event should neither require the fund to be liquidated nor permit the board unfettered discretion in suspending redemptions. Instead the article proposes two procedural reforms designed to provide flexibility and predictability in these circumstances by allowing a money market fund to convert to a floating NAV and allowing investors to redeem most of their shares without awaiting completion of a fund’s liquidation. In conjunction with a modest amendment requiring improved fund disclosure about the circumstances under which a fund may be unable to maintain a stable share price, these changes will increase liquidity, address the pressures that may lead to a “run,” preserve the economic viability of money market funds, and allow them to respond to the preferences of investors.

Our analysis uses a difference-in-difference framework to estimate the impact of the Canadian law change on small inventors. Using data on all patents granted by the Canadian Intellectual Property Office and the US Patent and Trademark Office, we find a significant drop in the fraction of patents granted to small inventors in Canada coincident with the implementation of first-to-file. We also find no measurable changes in patent quality. The results are robust to several different specification checks. While the net welfare impact that can be expected from a shift to first-to-file is unclear, our results do reveal that, contrary to the conventional wisdom, the rule change is not free — it is likely to result in reduced patenting behavior by individual inventors.

In the United States, the jury determines negligence for accidental harm by asking whether the defendant met the objective reasonable person standard. However, what determines the content of the reasonable person standard is enigmatic. Some tort theorists say that the content is filled out by juries using cost benefit analysis while others say that juries apply community norms and conventions. I demonstrate that what is missing from this exchange is a theory that adequately justifies using a particular way of filling out the content of the objective reasonable person standard. Rights-based theories are particularly guilty of ignoring what I call the central normative concern. That concern is what criterion should determine the amount of precaution an individual must use to avoid being justifiably assigned others’ accident costs.

To identify this problem I focus on rights-based theories of accident law. After showing how several rights-based theories of accident law inadequately address the central normative concern, I briefly outline a theory of assigning accident costs that has the potential for offering the best answer to the central normative concern. The most important aspect of this theory, called democratic community standard theory, is that it provides a justification for using community standards to adjudicate tort claims. This justification employs Kantian political theory based on how free and equal individuals would choose to assign accident costs.

We further adduce evidence on how ISS recommendations affect fund voting. Funds that account for less than 10% of the assets in our sample exhibit a strong tendency to follow ISS recommendations, a much smaller percentage than funds that virtually always follow management recommendations (approximately 25% of assets). A much larger percentage (36% of the assets) votes in accordance with ISS withhold recommendations in approximately 50% of the cases. We conclude that the influence of ISS is due more to funds’ measured evaluation of the ISS recommendations rather than to funds blindly following these recommendations.

We find no evidence that funds in families that are affiliated with commercial banks, investment banks, or insurance companies have a stronger proclivity than independent funds to vote in accordance with management recommendations or to shield their votes from criticism in order to maintain good business relations or generate new business for their affiliates.

The largest fund families – Vanguard, Fidelity, and American Funds, each of which individually accounts for roughly 11% of total mutual fund assets – vote substantially differently both from each other and from ISS recommendations. This is strong evidence of heterogeneity in the voting behavior of mutual funds in director elections.

Finally, we examine the factors associated with high (in excess of 30%) withhold votes in director elections. An ISS withhold recommendation, in conjunction with at least one of four factors – a withhold vote by Fidelity, the director missing 25% of board meetings, the company having ignored a shareholder resolution that received majority support, and a Vanguard withhold vote on outside directors with business ties to the company – is associated with a 49% probability of receiving a high withhold vote. Directors in these groups account for 48% of all directors who received high withhold votes. By contrast, an ISS withhold recommendation that is not combined with one of these factors is associated with only a 21% probability of a high withhold vote, and the general probability of a high withhold vote is a mere 2%. These findings suggest steps that companies and directors should take to try to avoid high withhold votes. They are also evidence that not all ISS recommendations have the same impact on voting outcomes.

The Article proceeds as follows. Part I briefly develops the theoretical basis for state bankruptcy. In Part II, I explore each of six key benefits of a state bankruptcy regime. I then turn in Part III to six principal objections, considering each in detail. After analyzing the response to New York City’s 1975 crisis and a number of states’ enactment of municipal oversight boards, Part IV focuses on the possibility of an analogous, federal oversight alternative to a more general bankruptcy statute. Although bankruptcy seems superior overall, the oversight strategy would offer some of the same benefits if Congress failed to enact a bankruptcy law before a state crisis materialized.

John Harsanyi, in his work on so-called “extended preferences,” advanced a fruitful idea. While an ordinary preference is a ranking of outcomes, an “extended preference” is a ranking of individual histories. To say that individual k has an extended preference for history (x; i) over (y; j) means something like the following: k prefers to have the attributes of individual i in outcome x, as opposed to having the attributes of individual j in outcome y. Harsanyi’s proposal was to endow individuals with “extended preferences”; to represent such preferences using “extended” utility functions; and to employ such functions, in turn, as the basis for interpersonal comparisons of well-being levels and differences.

Harsanyi’s analysis, however, had various gaps and flaws. In this Article, I both diagnose these difficulties, and show how they can be remedied—yielding a viable account of interpersonal comparisons, one sufficient for the needs of the SWF approach.