Developments in the Law: Garcetti v. Ceballos and the Workplace Freedom of Speech Rights of Public Employees

On May 30, 2006 the Supreme Court handed down a 5–4 decision in the case of Garcetti v. Ceballos, announcing that "when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Previously, the Court had held in Pickering v. Board of Education (1968) that the First Amendment's protection of freedom of speech generally prohibited public employers from firing or disciplining employees for speaking out on matters of "public concern." The Pickering decision established a two-part test that first required federal courts to determine whether the employee had spoken out on a matter of public concern and then whether the disruptive impact of the employee's statement justified the disciplinary action. This article argues that the Garcetti decision may deter many public employees from disclosing governmental inefficiency and misconduct and presenting dissenting viewpoints on matters of clear public concern. Consequently, the decision may make it more difficult for the leadership of public agencies to uncover inefficiency and misconduct.     

On the value of formal assessment of uncertainty in regulatory analysis

The US Office of Management and Budget introduced in 2003 a new requirement for the treatment of uncertainty in Regulatory Impact Analyses (RIAs) of proposed regulations, requiring agencies to carry out a formal quantitative uncertainty assessment regarding a regulation’s benefits and costs if either is expected to reach $1 billion annually. Despite previous use in other contexts, such formal assessments of uncertainty have rarely been employed in RIAs or other regulatory analyses. We describe how formal quantitative assessments of uncertainty – in particular, Monte Carlo analyses – can be conducted, we examine the challenges and limitations of such analyses in the context of RIAs, and we assess how the resulting information can affect the evaluation of regulations. For illustrative purposes, we compare Monte Carlo analysis with methods typically used in RIAs to evaluate uncertainty in the context of economic analyses carried out for the US Environmental Protection Agency’s Nonroad Diesel Rule, which became effective in 2004.     

Globalization and legal change: The “Americanization” of European law?

Intensified global economic competition, economic liberalization, and the rise of EU governance have led some observers to argue that there has been a trend toward the “Americanization” of the European “way of law.” This article addresses that contention, focusing on legal change in European member states. It first describes ways in which the American legal tradition has differed most sharply from the national legal systems of Western Europe (including Great Britain) and the political and economic factors that account for this “American legal distinctiveness.” Similar political and economic factors currently are at work in Europe, the article acknowledges, creating incentives for legal convergence. But it also argues that European legal culture and the political organization of European national states generate path‐dependent forces that impede European movement toward American ways of law, and it discusses six important differences between European and American law that remain entrenched and are unlikely to disappear.     

The economic significance of “insignificant” rules

We know relatively little about the economic effects of “insignificant” rules because they are not typically analyzed. Yet, these rules could be cumulatively important. We provide an economic analysis of one proposed rule to control hazardous air pollutants, which is not considered to be economically significant. This rule is of particular interest because it is one of the first in a long series of rules that Environmental Protection Agency (EPA) will consider for limiting hazardous air pollutant emissions. Our analysis suggests that the proposed controls that EPA has considered are not likely to pass a benefit–cost test. We recommend that an agency base its decision to allocate additional resources to benefit–cost analysis on the expected value of the improved information. In addition, agencies should consider applying a rule of thumb that would specify a threshold level of risk reduction that needs to be achieved before some kinds of regulation are considered.     

School choice,racial segregation,and test‐score gaps: Evidence from North Carolina's charter school program*

Using panel data that track individual students from year to year, we examine the effects of charter schools in North Carolina on racial segregation and black‐white test score gaps. We find that North Carolina's system of charter schools has increased the racial isolation of both black and white students, and has widened the achievement gap. Moreover, the relatively large negative effects of charter schools on the achievement of black students is driven by students who transfer into charter schools that are more racially isolated than the schools they have left. Our analysis of charter school choices suggests that asymmetric preferences of black and white charter school students (and their families) for schools of different racial compositions help to explain why there are so few racially balanced charter schools. © 2006 by the Association for Public Policy Analysis and Management.     

The impact of child support enforcement policy on nonmarital childbearing

The interaction of welfare and child support regulations has created a situation in which child support policy's incentives that discourage unwed fatherhood tend to be stronger than its incentives that encourage unwed motherhood. This suggests that more stringent child support enforcement creates incentives that reduce the likelihood of nonmarital childbearing, particularly among women with a significant chance of needing public assistance in the event of a nonmarital birth and their male partners. We investigate this hypothesis with a sample of women from the Panel Study of Income Dynamics, to which we add information on state child support enforcement. We examine childbearing behavior between the ages of 15 and 44 before marriage and during periods of non‐marriage following divorce or widowhood. The estimates indicate that women living in states with more effective child support enforcement are less likely to bear children when unmarried, especially if they are young, never‐married, or black. The findings suggest that improved child support enforcement may be a potent intervention for reducing nonmarital childbearing. © 2006 by the Association for Public Policy Analysis and Management.     

Changes in Eastern Europe and the Soviet Union: The effects on China

The rapidly changing political, economic, and security policies in the Soviet Union and Eastern Europe in late 1989 and 1990 have added to the complications faced by Chinese leaders since they decided to suppress the unprecedented large-scale pro-democracy demonstrations in Chinese cities in spring 1989. These changes had an obvious “ripple effect” in China, encouraging prodemocracy forces and alarming Chinese leaders. They attracted strong positive attention from the developed countries of the West and Japan, and international financial institutions and businesses. This came at the indirect expense of China. And they accelerated changes in world politics (especially in U.S.-Soviet relations) and in the politics of government decision making in the West that promised to reduce China’s relative influence in world affairs in the 1990s. The prospect of reduced influence abroad and curbed economic contacts did not appear to be sufficient cause for Beijing leaders to markedly change existing policies. Chinese leaders in mid-1990 appeared focused on issues of internal political power at a time of leadership transition. Significant changes in policy appeared most likely to await leadership changes as Deng Xiaoping and other aged leaders die or are incapacitated.     

A Successful Transition? ACT Public Finances Under Self-government

Generous Commonwealth funding before self-government in 1989 meant that the ACT enjoyed high government expenditures and low taxation compared with the states. Self-government meant a transition to normal state funding, ultimately involving substantial reductions in Commonwealth grants. Successive governments aligned taxes with other jurisdictions, but failed to reduce expenditures, which remained well above Commonwealth Grants Commission (CGC) assessments of levels necessary to provide a standard level of services. The fiscal position — however measured — has worsened. The transition to normal funding has been unsuccessful and, without the necessary adjustments, a heavy burden will be placed on future Canberrans.