Black Metropolis Research Consortium
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Rule Breaking, Honesty, and Migration
Full text linkUsing census data, we study false birth-date registrations in Italy, a phenomenon well known to demographers, in a setting that allows us to separate honesty from the benefits of cheating and deterrence. By comparing migrants leaving a locality with those who remain in it, we illustrate the tendency of Italians to sort themselves across geographic areas according to their honesty levels. Over time, this tendency has modified the average honesty level in each locality, with relevant consequences for the distribution across geographic areas of outcomes like human capital, productivity, earnings growth, and the quality of local politicians and government
Stating the Obvious: Departmental Policies as Clearly Established Law
Full text linkQualified immunity is a judge-made doctrine originally created to shield officers from liability only when they could not have been on notice that their actions were wrongful. In the four decades since the Supreme Court first articulated this justification for qualified immunity, the doctrine has become unmoored from its roots and has expanded to protect officers even in the face of clear evidence that the officers should have known better.
The test for qualified immunity states that officers are immune from liability in the absence of clearly established law that previously condemned their conduct, but the Supreme Court has not defined exactly what “clearly established law” means. In a set of conflicting cases, the Court has both repudiated the consideration of departmental policies as clearly established law and, subsequently, cited departmental policies as evidence of clearly established law. As a result of this ambiguity, lower courts have been inconsistent—even within circuits—about whether departmental policies count as clearly established law.
This Comment addresses this gap in the doctrine by proposing a solution that ameliorates the legal fiction at the heart of the clearly-established-law inquiry. Using Hope v. Pelzer’s obviousness exception to the clearly-established-law requirement, this Comment proposes incorporating departmental policies into the qualified immunity doctrine as an objective measure for determining when an officer’s rights violation was obvious. This solution shifts the application of qualified immunity to align with the original justification for the doctrine without requiring a change in precedent from the Supreme Court. Ultimately, it closes a loophole in the doctrine by offering a method through which officers can be held accountable for their conduct when they clearly should have known that their actions were wrong
Insurance Coverage and Induced Infringement: A Threat to Hatch-Waxman’s Skinny Labeling Pathway?
Full text linkIn the fall of 2020, Amarin Corporation—a brand-name drug company— brought an unprecedented claim in federal court. Instead of just suing a generic manufacturer for inducing infringement of its method patent, as is typical in litigation over skinny label generic drugs, Amarin also added a health insurance company as a defendant. In its complaint, Amarin alleged that Health Net induced infringement under 35 U.S.C. § 271(b) of the Patent Act by charging a lower co-pay for the generic, skinny label version of its brand-name drug. Industry commentators agreed that a finding of liability for Health Net would be a blow to the generic industry, as the precedent would dissuade insurers from covering skinny label generics in the future. Amarin’s case withstood a motion to dismiss before the parties settled.
Using Amarin Pharma, Inc. v. Hikma Pharmaceuticals USA Inc. as a jumping off point, this Comment is the first piece of legal scholarship to examine whether, and under what circumstances, health insurers can induce infringement of a method patent by providing preferential coverage of a skinny label generic when it is distributed for a patented drug indication. An evaluation of this question requires examining the standard of causation in induced infringement cases, a subject that has received startlingly little judicial or scholarly inquiry. This Comment argues that the Delaware district court’s decision in Amarin was based on an improper theory of causation that assumed insurance companies have a duty to prevent infringement. It then establishes that the proper counterfactual baseline for evaluating inducement claims against insurers reveals that insurance companies are rarely the but-for cause of infringement in the skinny label context. In proposing an application of the loss of chance doctrine to determine liability in future cases, this Comment also identifies and addresses a key legal error from the majority opinion in GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc.: a misapplication of causation principles in damages calculations for induced infringement. Ultimately, the Comment demonstrates that adopting a loss of chance theory of the injury in future cases would force courts to conduct often-ignored causation analysis and ensure that a finding of inducement corresponds with a proportionate damages award
Vagueness and Federal-State Relations
Full text linkThis Article aims to clarify the content of the void-for-vagueness doctrine and defend its historical pedigree by drawing attention to a fundamental aspect of the Supreme Court’s vagueness decisions—that vagueness analysis significantly depends on whether the law at issue is a federal or state law. That simple distinction has considerable explanatory power. It reveals that the doctrine emerged in the late nineteenth century in response to two simultaneous changes in the legal landscape— first, the availability of Supreme Court due process review of state penal statutes under the Fourteenth Amendment, and second, a significant shift in how state courts construed those statutes. The federal-state distinction also divides the Court’s decisions into two groups with mostly separate concerns. It reveals that separation-ofpowers concerns primarily motivate the Court’s vagueness decisions involving federal laws, while federalism concerns are the driving force in its vagueness decisions involving state laws. In the vast majority of cases involving a federal law, the Court will narrowly construe the law to avoid vagueness concerns. In cases involving a state law, by contrast, the Court will follow any preexisting state-court construction of the law, however indefinite it may be, with the result that vagueness analysis amounts to a due process limitation on judicial construction. Proper recognition of the federal-state distinction would result in fewer vagueness cases that reach the Supreme Court and more penal laws that are narrowly construed. That would promote the rule of law by increasing the precision of criminal laws and reducing the risk of arbitrary enforcement—the very goals the vagueness doctrine seeks to achieve
Droughts of Compassion: The Enduring Problem with Compassionate Release and How the Sentencing Commission Can Address It
Full text linkCompassionate release, guided by 18 U.S.C. § 3582(c)(1)(A), allows a district court to reduce a previously imposed criminal sentence if “extraordinary and compelling reasons” warrant a reduction. Congress delegated the task of describing what constitutes an extraordinary and compelling reason to the U.S. Sentencing Commission. Following the passage of the First Step Act of 2018, most circuit courts held the Commission’s policy statement describing extraordinary and compelling reasons inapplicable, and that until the Commission updated its policy statement, courts enjoyed the discretion to determine what circumstances justify compassionate release.
e. Many have celebrated this newfound discretion and its potential to expand individuals’ ability to receive compassionate release. However, judicial discretion, though valuable in many ways, inevitably leads to disagreement and disparity. Perhaps unsurprisingly, circuit courts have disagreed on whether certain circumstances could, as a matter of law, justify a grant of compassionate release, causing geographic disparity in individuals’ ability to receive compassion. In April 2023, the Commission updated its policy statement and included a catchall provision codifying judicial discretion and, unless the Commission acts, the disparity that discretion invites.
This Comment argues that for judicial discretion to improve compassionate release, the Commission must take an active role in overseeing judicial discretion so that compassionate release can enjoy the benefits of that discretion without accepting the disparity discretion often creates. Specifically, it argues the Commission, through its statutory authority to describe what should be considered an extraordinary and compelling reason, can resolve current and future circuit splits over what constitutes an extraordinary and compelling reason by promulgating amended policy statements expressly including, or excluding, the disputed circumstance in its description of extraordinary and compelling reasons. In doing so, the Commission would effectively erase circuit courts’ contrary interpretations of extraordinary and compelling reasons and thereby end the regional “droughts of compassion” the current approach to judicial discretion allows
Labor Market Regulation and Worker Power
Full text linkDue to a lack of competition among employers in the labor market, employers have monopsony power, or power to pay workers less than what the workers contribute to the employers’ bottom line. “Worker power” is workers’ ability to obtain higher wages and better working conditions. While the antitrust agencies have just begun developing policy and enforcement strategies to regulate employer monopsony, broader government policies that impact market forces, the formation of labor market institutions, and workers’ voices and exit options also play a defining role in shaping worker power relative to employers. For example, in addition to antitrust enforcement, worker power can be enhanced by labor agencies’ regulation of employer/employee status, wage and working condition floors, and workers’ collective action. Worker power can also be enhanced by agencies administering social safety net protections and influencing labor market tightness through monetary policy.
Scholars have yet to assess how federal agencies, whose statutory authority and regulatory purview impact worker power, could best direct their authority, regulatory tools, and expertise towards labor market regulation in the presence of employer monopsony power. This Essay outlines the comparative advantages of federal agencies’ regulations impacting worker power. It then develops a checklist of worker power indicators for agencies to track and operationalize in high-priority policy and enforcement areas and offers a broader worker power agenda through a whole-of government approach involving interagency coordination to protect and strengthen workers’ voice and exit options
Climate Change Policy in the International Context: Solving the Carbon Leakage Problem
Full text linkUnder the Paris Agreement, nations set their own emissions goals and policies. As a result, climate policies vary widely across countries, with some countries imposing stringent emissions policies and others doing very little. A key problem when carbon policies vary across countries is that energy-intensive industries can relocate to places with few or no emissions restriction. Relocated industries would continue to pollute but would be operating in a less desirable location. Moreover, the countries that imposed strict emissions reductions lose the benefit of having those industries located domestically. This problem, known as leakage, is one of the key reasons the United States has failed to enact substantial climate change policies. Without a solution to leakage, it may be much more difficult to prevent catastrophic climate change.
The most commonly proposed response to leakage is to impose border adjustments—tariffs on imports based on the emissions from the production of the imported good, and rebates for exports of prior taxes or other prices imposed on emissions. Border adjustments ensure that the same price is paid regardless of the location of production. Border adjustments, however, are complex to impose and potentially incompatible with the WTO. Moreover, numerous studies show that border adjustments do not significantly improve the effectiveness of regional carbon policies.
We propose a better solution to the leakage problem. Our solution, the extraction/production tax or the EPT, combines a tax on domestic extraction with a conventional tax on emissions from domestic production. The core intuition behind this hybrid tax is that shifts in location due to carbon prices arise because of their effects on the price of energy seen by foreign actors. By reducing demand for fossil fuels, taxes on emissions from domestic production lower the global price of energy. In response, foreign actors increase their energy use, generating leakage. Border adjustments do not change this effect: carbon taxes on production with border adjustments also reduce the price of energy and increase energy use abroad. A tax on domestic extraction, however, raises the global price of energy because it reduces supply. A higher price of energy causes foreign users of energy to reduce their energy use, reducing leakage. Foreign extractors of energy, however, increase their supply. By combining a tax on the supply of energy and a tax on the demand for energy, the EPT sets these two forces against each other. A tax on the supply side of the market allows a lower tax on the demand side, with the two taxes set to minimize distortions in non-taxing regions.
The EPT not only better solves the economic problem of leakage than conventional approaches; it is also much simpler to implement. The EPT can be implemented by imposing a nominal tax on domestic extraction and border adjustments only on energy (but not goods in general) at a lower rate than the nominal extraction tax. Both an extraction tax and border adjustments on energy are easy to impose, which means that the EPT can greatly simplify the administration of carbon taxes. Finally, the EPT reduces concerns with WTO legality raised by traditional approaches. The EPT is a practical solution to the leakage problem and, therefore, can be a key piece to solving the global climate change problem