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.     

Factors in successful program implementation in Russia during the transition: pilot programs as a guide

While much of the implementation literature over the past several decades has recognised the importance of context (e.g. in issues of institutional culture, degree of hierarchy), little of the literature comparing the results of numerous program implementation experiences examines the experience of non‐Western contexts. This study seeks to partially fill this gap by applying the ‘conventional wisdom’ of implementation theory to program implementation experience in Russia. We analyse the implementation of 18 demonstration projects in Russia against 9 success factors identified in the implementation literature. Most of the pilots involved multiple cities; so there are a total of 48 city‐case observations to study. Overall, the findings are that the factors associated with successful program implementation among OECD countries are also those at work in Russia's transitional economy. The weights associated with the various factors may differ, however. One could imagine, for example, that political support counts for more in Russia than in the western local governments. One might also believe that opportunities for learning from other implementers could be more important in the West, where professional associations are more highly developed. The core finding of consistency should be valuable to administrators across transitional economies who can now refer to the rich findings of implementation research with greater confidence of its applicability to their programs. Perhaps equally important is the finding that some of the same factors predominantly associated with successful or troubled implementation in Russia have similar effects in implementation examples drawn from transition and developing nations; there are, however, some important differences. Copyright © 2006 John Wiley & Sons, Ltd.     

Were Bosnian policy research organisations more effective in 2006 than in 2003? Did technical assistance play a role?

In 2003 the policy development process in Bosnia and Herzegovina was characterised by international community (IC) dominance. The IC provided the vast majority of the analysis of problems facing the country and drafted many of the laws. This article documents developments from fall 2003 to fall 2006 in the use of evidence and analysis in the policy development process and the role of local policy research organisations (PROs—often called think tanks) in it. The likely relation between these changes and the activities of a PRO mentoring project that operated over the same period is also assessed. Evidence comes as a series of interviews in both years with government officials and members of parliament, on the one hand, and leaders of PROs and advocacy NGOs on the other. The broad picture that emerges from the above review is of a substantial positive development in the policy development process in Bosnia and Herzegovina over the period. Factual evidence and analysis are playing a much greater role, and PROs have been a major provider of this information. The evidence indicates that PROs have been successful in convincing the policy community that they are purveyors of objective, disinterested advice and analysis. The improvements occurred in a conducive environment that steadily placed greater responsibility for policy formation on Bosnian officials. Copyright © 2007 John Wiley & Sons, Ltd.     

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.     

Holzer,Harry J., and Neumark,David (2006). Affirmative action: What do we know? The Journal of Policy Analysis and Management, 26(2), 463‐490.

The original article to which this Erratum refers was published in the Journal of Policy Analysis and Management 25(2), 463–490.