This Article identifies a number of problems, both in practice and in theory, in what is denoted here as the “information disclosure model of sentencing regulation.” While the disclosure model places a lack of information at the heart of the problem of inefficient sentencing policy, the present article explains how the problem is better understood, not as informational, but incentives-based. A statutory appropriation requirement is described that seeks to correct an explained incentive to engage in myopic legislative decision-making; specifically, a one-year appropriation is required from a general budget fund into a statutorily-created special reserve fund for any proposed change in sentencing policy projected to increase the correctional population. A survey of existing statutory appropriation requirements is provided and certain best practices are identified; in addition, a novel statutory provision is proposed: monies should be appropriated from the special reserve fund to the general fund if a bill is projected to decrease the correctional population. Such withdrawals from the special reserve fund made in the current fiscal period serve as concrete, immediate evidence of the fiscal benefits of less punitive criminal sentences, where such benefits are often realized only in the long-run, and supply a novel incentive for legislators to engage in forward-looking, fiscally-responsible sentencing policy. The present article further contends that proposed changes in sentencing policy should not be subjected to cost-benefit analysis (as opposed to fiscal impact analysis as required under the statutory appropriation requirement), because the retributive value of a criminal sentence is extremely difficult to measure given the current state of estimation technology.

This article introduces a static, within-country, game-theoretic model of litigated conflict over fundamental rights. The static model suggests that increased judicial interference in the determination of fundamental rights through democratic elections is never social welfare-increasing, even if judicial and political biases run in opposite directions (i.e., if the judicial process is biased in favor of one interest group and the political process is biased in favor of an ideologically-opposed interest group). In addition, the analysis identifies a set of parameters where social welfare increases if the extent to which the litigated conflict over fundamental rights in the society is constitutionalized is decreased (i.e., if litigation effort becomes more expensive and/or less effective). A few real-world examples of the implications of this static analysis are examined, including gun control and the possible future reconstitution of the judiciary in Syria.

We assume that the set of marketable financial instruments can be divided into two distinct categories: (1) easy-to-price and (2) difficult-to-price, and then isolate two behavioral effects as most important with respect to securities trading in difficult-to-price securities; specifically, the house-money-effect and the earned-money-effect. It is shown that these behavioral effects discourage profitable investment in research effort.

We then argue that the Private Securities Litigation Reform Act (“PSLRA”) safe harbor should not apply to investment banks that issue/underwrite difficult-to-price securities. We also advocate for the return of the private investment banking partnership as the most sensible way in which to get the relevant behavioral incentives right vis-à-vis the bank and its investor-clients and propose two regulatory measures designed to induce such banks to structure themselves as private partnerships where they are otherwise free to publicly incorporate.

Finally, we suggest that fiduciary responsibilities owed to investors by investment advisers/broker-dealers transacting in these kinds of securities must be strengthened/weakened, respectively. Current reform proposals blur the distinction between these two financial actors. We argue that the line must be drawn as bright as possible in order to make as salient as possible to investors in whom they can repose their trust and confidence. Moreover, instead of passing legislation designed to eliminate or reduce proprietary transactions, this Article argues for just the opposite – that legislation be passed to make the incentives facing broker-dealers and registered investment advisers (and investment banks as well) look more like those of the typical hedge fund – not less.

The present paper urges the reader to overcome these barriers to scholarly appreciation, to cast to the side any preliminary skepticism toward election-by-lot as a reasonable allocation mechanism, and to take seriously for the moment, the claim that election-by-lot might be usefully employed in allocating certain judicial functions among a pool of potential candidates, the precise contours of which will be more fully defined shortly.