Black Metropolis Research Consortium
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Authoritarian Privacy
Full text linkPrivacy laws are traditionally associated with democracy. Yet autocracies increasingly have them. Why do governments that repress their citizens also protect their privacy? This Article answers this question through a study of China. China is a leading autocracy and the architect of a massive surveillance state. But China is also a major player in data protection, having enacted and enforced a number of laws on information privacy. To explain how this came to be, the Article first discusses several top-down objectives often said to motivate China’s privacy laws: advancing its digital economy, expanding its global influence, and protecting its national security. Although each has been a factor in China’s turn to privacy law, even together, they tell only a partial story.
Central to China’s privacy turn is the party-state’s use of privacy law to shore up its legitimacy amid rampant digital abuse. China’s whiplashed transition into the digital age has given rise to significant vulnerabilities and dependencies for ordinary citizens. Through privacy law, China’s leaders have sought to interpose themselves as benevolent guardians of privacy rights against other intrusive actors—individuals, firms, and even state agencies and local governments. So framed, privacy law can enhance perceptions of state performance and potentially soften criticism of the center’s own intrusions. The party-state did not enact privacy law despite its surveillance state; it embraced privacy law to maintain it. This Article adds to our understanding of privacy law, complicates the relationship between privacy and democracy, and points toward a general theory of authoritarian privacy
The Uncertain Judge
Full text linkThe intellectually honest judge faces a very serious problem about which little has been said. It is this: What should a judge do when she knows all the relevant facts, laws, and theories of adjudication, but still remains uncertain about what she ought to do? Such occasions will arise, for whatever her preferred theory about how she ought to decide a given case—what I will call her preferred “jurisprudence”— she may harbor lingering doubts that a competing jurisprudence is correct instead. And sometimes, these competing jurisprudences provide conflicting guidance. When that happens, what should she do?
Drawing on emerging debates in moral theory, I call this problem the problem of “normative uncertainty.” It is often overlooked because the common answer is that the judge should just swallow her doubts and do what she thinks is right. But that obvious solution turns out to be wrong. Sometimes, she should not follow her preferred jurisprudence, but do what a different jurisprudence suggests instead.
Developing a full solution will be difficult, and I do not attempt one here. Instead, I sketch a solution based on the familiar example of expected utility and use it to illustrate why developing a solution to normative uncertainty is considerably more difficult than developing solutions to other kinds of uncertainty. By the end, I hope to have convinced you only that there is a problem and that it is hard. But even without a solution, just seeing the problem will change how you think about judging
The Fourth Amendment Without Police
Full text linkWhat role will the Fourth Amendment play in a world without police? As academics, activists, and lawmakers explore alternatives to traditional law enforcement, it bears asking whether the amendment primarily tasked with regulating police investigations would also regulate postpolice public safety agencies. Surprisingly, the answer is often no. Courts are reluctant to recognize protections from government searches or seizures outside criminal investigations, and they are even more reluctant to require probable cause or a warrant for such conduct. Thus, by removing most public safety functions outside the criminal sphere, abolitionists also move intrusive government conduct outside these traditional strictures and guardrails.
This Article provides the first sustained evaluation of the Fourth Amendment’s limited role in a postpolice world and examines the implications of this reality. In doing so, it makes three contributions to existing scholarship. First, Part I catalogues comprehensive abolitionist proposals to replace traditional police while situating these proposals within the various semipermanent and permanent abolitionist perspectives animating them. Second, Part II applies current Fourth Amendment “special needs” doctrine to these burgeoning postpolice agencies and explores the troubling implications of nonpolice public safety entities operating largely free of the amendment’s search and seizure restrictions. Third, Part III suggests three novel lenses through which to view a postpolice Fourth Amendment—abolition subconstitutionalism, abolition endogeneity, and objective intrusion theory—that accord with the core purpose of the amendment and respond to potential privacy and liberty concerns in a world without police
Covenant Control: The Case for Treating Uptier Transactions as a Form of Corporate Control
Full text linkIn recent years, uptier transactions have emerged as a novel way for distressed companies to restructure their debt obligations, resulting in unforeseen and inequitable outcomes for investors in corporate debt. Uptier transactions depend on provisions in credit agreements that permit debtholders with a majority stake in a class of debt to make decisions on behalf of all debtholders. Distressed companies take advantage of these provisions by colluding with a majority of debtholders to shift economic value from the remaining debtholders to themselves. As this Comment demonstrates, these transactions are likely to be value destructive and present an issue for capital markets. Unfortunately, the contractual solutions available to debtholders to prevent uptier transactions either are insufficient or impose substantial costs on parties.
Uptier transactions may be a recent innovation in restructuring, but they are an instance of investor opportunism that is present whenever there is common ownership in property—those with control over common property can exercise that control in a way that benefits themselves to the detriment of other owners. Corporate law has resolved this issue in the equity context by imposing a fiduciary duty of loyalty on controlling shareholders. This Comment proposes treating debtholder control over debt covenants as akin to the control that large shareholders wield over corporations by imposing a waivable fiduciary duty of loyalty on controlling debtholders. The controlling shareholder doctrine in Delaware corporate law provides a useful starting point to consider how courts could enforce a controlling debtholder fiduciary duty in a way that would provide adequate judicial oversight over the most concerning transactions while limiting disruption to productive transactions
Litigation with Inalienable Judgments
No full textWe study strategic behavior by private litigants when courts’ judgments are inalienable in the sense that it is unlawful to contract around them ex post. Inalienable judgments arise in many contexts, including antitrust, labor law, intellectual property law, unfair competition, and various types of public interest litigation. We show that inalienability systematically creates incentives for problematic rent-seeking behaviors: strategic investments intended to influence the outcome of litigation and collusive ex ante settlements that enrich the parties at the public’s expense. These problems arise because the parties generally have asymmetric stakes, and asymmetric stakes affect strategic behavior differently when judgments are inalienable. Our analysis offers new insights into the normative evaluation of private settlements and establishes a underlying economic connection between problematic settlements spanning a wide range of legal contexts. It also sheds new light on the selection of disputes for litigation
Circumvention of Law and the Hidden Logic behind It
No full textThe law is full of circumvention maneuvers that lawyers try to exploit and authorities try to suppress. We prove formal results showing that all reasonable legal systems are necessarily extremely manipulable by open schemes that require no type of misrepresentation and no violation of the law. In addition, antievasion rules designed to reduce such manipulation can have only limited success and cannot be easily justified as constituting an improvement
Propaganda for War & International Human Rights Standards
Full text linkShortly after Russia’s illegal invasion of Ukraine in February 2022, the European Union (EU) began suspending Russian state-sponsored media outlets from broadcasting within the EU because they were spreading propaganda for war. The EU also required social media companies to remove user speech containing the banned broadcasts and prohibited search engines from displaying content from those outlets in search results. The EU’s General Court upheld the outlets’ suspension as consistent with both European human rights norms and the United Nations International Covenant on Civil and Political Rights (ICCPR), which contains a mandatory prohibition on propaganda for war in Article 20(1). The EU’s outright ban and the General Court’s decision have generated questions among governments, companies, and civil society about the meaning of ICCPR Article 20(1), a provision the international community has generally overlooked. This Essay unpacks the scope of Article 20(1)’s prohibition on war propaganda, providing an overview of existing interpretations and then proposing a way to reconcile the ICCPR’s ban on propaganda for war with the treaty’s otherwise broad protections for freedom of expression
Property as Service Streams
Full text linkProperty’s job is to help people derive benefits from resources.1 But often it cannot do this work well. A core problem is an outmoded model of benefit production that treats the individually owned parcel or “thing” as the relevant unit of analysis.2 Property theorists often use the example of a farm to illustrate how ownership induces people to invest (in sowing) by granting them exclusive rights (to reap the crops).3 On this account, property holdings operate in a largely self-contained fashion, collecting inputs from owners and delivering the associated returns to them. The primary role of property law, in this telling, is to protect the owned domain from outside interference so that the owner can pursue her choice of projects unimpeded.4
This vision of property is appealingly parsimonious: its basic building block consists of the thing, the thing’s owner, and the legally enforced boundary around the thing.5 And it is infinitely scalable and expandable as new things (and their owners and boundaries) are added to the system.6 But it fails to adequately account for the interdependencies and nonlinearities that characterize patterns of resource use within cities and ecosystems. Consider, for example, the agglomeration effects that come from putting together people and ideas in cities, the ecological services that come from assembling habitats at a sustainable scale, or the gains that come from subdividing access to resources in new ways through platform-based business models. What matters most in such contexts is the capacity to combine—and recombine—resources and cooperation into patterns that optimize the benefits that flow to people.
In this chapter, I argue for a conceptual shift from a property-as-thing-ownership (PATO) paradigm7 to a property-as-service-streams (PASS) model. I start with a simple observation: resources are only valuable for the streams of beneficial services that they can provide.8 Water rights offer an especially literal illustration of this point,9 but it is true of real and personal property more generally, from books and blenders to laptops and land. People seek residential services from their homes, computing and entertainment services from their devices, and transportation services from their cars. Things are merely delivery mechanisms, akin to a platter or a firehose, not the true object of interest. Moreover, owned items can only stream services to their users when combined with other resources and entitlements, many of which are controlled by other parties.10 For example, an urban lot’s capacity to stream housing services at a given density depends on regulatory permissions, infrastructure, and surrounding uses.
The relationship between individual asset ownership and benefit production, then, is not a straightforward one like the standard farm example suggests, but is instead highly contingent. It depends on the availability of substitutes (alternative ways to generate benefits) and complements (the additional elements, conditions, or goods necessary to make benefits flow). This revised understanding of benefit production carries implications for property—how it works, what it needs to do, and what strategies it should employ. Keeping discrete owned assets at center stage misdirects energy towards allocating and protecting things, when we should be examining how to nurture and sustain streams.
This chapter proceeds in three steps. I start with what the PATO to PASS move entails as a conceptual matter. I then examine the role of complements and substitutes in the PASS reformulation. Finally, I consider what PASS enables us to see and perceive about property, with implications for future innovation
A Disclosure Gap in the Market for Order
Full text linkWholesalers in U.S. equity markets are once again a focus of the SEC and scholarly debate. In this Comment, building on the empirical work of Schwarz, et. al. (2022), I present a model of the broker-wholesaler relationship based on the duty of best execution under FINRA Rule 5310 and the antifraud provisions of the federal securities laws as well as public disclosures by brokers and wholesalers. I suggest that the arrangement between a broker and a wholesaler on any given day is determined by the technology of the wholesaler, the likelihood of adverse selection, and the overall strategy of the broker. As a broker negotiates arrangements with different wholesalers, it inevitably makes tradeoffs between average price improvement, likelihood of price improvement, likelihood of price disimprovement, speed, and other measures of execution quality. Unfortunately, under current SEC regulations, brokers are not required to articulate order-routing strategies in meaningful detail. Unlike in other parts of financial markets where there are strong incentives for self-induced disclosure, there is an inefficient disclosure gap in the market for order flow, because no broker knows whether the benefits of wholesaler-specific disclosure will accrue to them or their competitors. Ultimately, I conclude that the disclosure gap limits competition and prevents customers from effectively monitoring brokers, and I propose a regulatory solution. I also discuss the SEC’s recently proposed Order Competition Rule and amendments to Rule 605