Weekly Top 5 Papers – June 4, 2018


1. It Has Been Very Easy to Beat the S&P500 in 2000-2018. Several Examples by Pablo Fernandez (University of Navarra – IESE Business School) and Pablo Fernandez Acin (Independent)

2. Pulling the Goalie: Hockey and Investment Implications by Clifford S. Asness (AQR Capital Management) and Aaron Brown (LLC New York University (NYU) – Courant Institute of Mathematical Sciences)

3. Digital Tulips? Returns to Investors in Initial Coin Offerings by Leonard Kostovetsky (Carroll School of Management, Boston College) and Hugo Benedetti (Boston College – Carroll School of Management)

4. Opinion on the Constitutionality of Robert Mueller’s Appointment by Steven G. Calabresi (Northwestern University – Pritzker School of Law)

I became interested in the constitutionality of appointments of special counsels as a result of former Supreme Court Justice Antonin Scalia’s dissent in Morrison v. Olsen in 1988.  Ironically, the Robert Mueller appointment is unconstitutional under the tests of both the majority and the dissenting opinion.  Mueller is exercising an enormous amount of power, and he is more powerful and more famous than are any of the ten Assistant Attorneys General or 93 U.S. Attorneys all of whom are principal officers nominated by the President and confirmed by the Senate.   If you doubt this, try to come up by recall with names of the ten Assistant Attorneys General or the 93 U.S. Attorneys.  The Constitution makes it clear that officers this powerful have to be principal officers.

Mueller is only one rung down from President Trump, since he has only Deputy Attorney General Rod Rosenstein who is the Acting Attorney General here who “supervises and directs” Mueller’s actions.  In general, the officers two tiers down from the President, like Assistant Cabinet Secretaries, or one tier down from the President like Deputy Cabinet Secretaries and Ambassadors must ALL be principle officers nominated by the President and confirmed by the Senate.  Moreover, Rosenstein cannot meaningfully “supervise and direct” Mueller because he is a potential target of Mueller’s investigation. since it was Rosenstein who actually carried out President Trump’s order to fire Jim Comey as FBI Director.  Recognizing this, Rosenstein has offered to recuse himself from this matter at any point, if Mueller were so to request.  It is Mueller who has the power to fire Rosenstein and not the other way around.  The correct way to appoint a Special Counsel is for the Attorney General to ask a U.S. Attorney, who has been nominated by the President and confirmed by the Senate, to take on an additional prosecutorial investigation.  This is what happened when Patrick Fitzgeral investigat the Valery Plame matter, and it is happening now as the U.S. Attorney for Utah is acting as a Special Counsel to determine whether the FBI was inappropriately politicized during the Obama Administration.

5. Going to Pieces: Valuing Users, Subscribers and Customers by Aswath Damodaran (New York University – Stern School of Business)

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Source: SSRN Blog

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