Black Metropolis Research Consortium
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Nonprofit Corporations & Politics: The Entity/Coordination Tension
Full text linkFederal tax law treats separate nonprofit corporations as distinct legal entities for almost all purposes, in common with most other areas of law. With respect to political activity, this means that one nonprofit corporation’s lobbying or election-related actions are generally not attributed to another nonprofit corporation. This is the case even if the two entities have overlapping or even identical boards of directors. It is also the case even if the two entities collaborate regarding their respective activities and share employees, facilities, outside vendors, and other resources, as long as the entities reasonably allocate the costs for those shared resources. In addition, longstanding Supreme Court precedents strongly indicate that the First Amendment requires Congress and the IRS to permit this overlapping, collaboration, and sharing.
That lack of attribution is important because different types of nonprofit corporations receive different tax benefits and face different restrictions on their political activity under federal tax law. For example, a charitable nonprofit corporation that is tax-exempt under Internal Revenue Code section 501(c)(3) and eligible to receive tax deductible charitable contributions is limited with respect to lobbying and is prohibited from supporting or opposing candidates for elected public office. In contrast, a social welfare nonprofit corporation that is tax-exempt under Internal Revenue Code section 501(c)(4) but not eligible to receive tax deductible charitable contributions can engage in unlimited lobbying related to its social welfare purpose and can also support or oppose candidates as long as doing so is not its primary activity. And a political organization that is tax-exempt under Internal Revenue Code section 527, although only with respect to contributions received for political purposes, can engage entirely in supporting or opposing candidates. Yet a section 501(c)(3) organization, a section 501(c)(4) organization, and a section 527 organization can have overlapping boards, collaborate about their respective activities, and share resources, as long as they reasonably allocate their expenses and avoid spending directly on political activity that is limited or prohibited given their specific exemption category. There are therefore many groups of nonprofit organizations that consist of affiliated organizations with different federal tax categorizations but a common political purpose.
This lack of attribution is in tension with an aspect of federal election law and the election laws of many states. Under these election laws, if an individual or entity coordinates its activities with a candidate committee or political party, that activity is considered a contribution to the benefitted candidate or party. This result means that any spending on that activity is subject to existing source and amount limits on such contributions. In effect, the activity is attributed to the candidate or party because of the coordination even though the candidate or party does not legally control that activity. This is a common sense approach because if it did not exist it would be easy for individuals and other entities to evade contribution limits by engaging in activities not only designed to benefit a candidate or party but done at the specific request of that candidate or party. This reasoning also provides the basis for Supreme Court decisions concluding that this approach is constitutional under the First Amendment.
This essay explores the tension created by federal tax law’s respect for separate entity status on one hand and the coordination rules of federal and state election law on the other hand. It also revisits whether, given this tension, the Supreme Court was correct to constitutionalize the former approach when it comes to tax-exempt nonprofits. I conclude that whether this difference is appropriate as a policy matter depends on the policy justification for the political activity limits on section 501(c)(3) charities. If the only such justification is to support the broader federal tax policy prohibiting the deduction of expenditures for political activities, then the lack of attribution is appropriate. If instead the justification is that political activity is inconsistent with status as a section 501(c)(3) charity for broader reasons, then there is a policy argument for attributing the political activity of noncharitable nonprofit corporations to closely affiliated charitable nonprofit corporations and so subjecting that activity to the section 501(c)(3) limits. I also conclude that this latter justification could provide a basis for revisiting the Supreme Court precedents that bar this attribution as a constitutional matter
International Terror Attacks and Local Out-Group Hate Crimes
No full textThis paper studies the effects of international terror attacks on out-group hate crimes committed against Muslims in a local setting. Event studies based on rich administrative data from the Greater Manchester Police on 10 terror attacks reveal an immediate big spike in Islamophobic hate crimes and hate-based incidents when an attack occurs. In subsequent days, the hate crime incidence is magnified by real-time media reports. The attacks create an attitudinal shock that leads residents to perceive local minority groups that share the religion of the attack’s perpetrators as an out-group threat. The overall conclusion is that, even when they reside in places far from where jihadi terror attacks take place, local Muslim populations face a media-magnified likelihood of hate-based victimization. But only those incidents salient to resident populations, because of where they happen or because of the media’s magnification of them, impact the incidence of local hate crimes
Regulatory Similarity
No full textUsing the full text of the Federal Register, the official publication of the US government, we develop a similarity score that compares the regulatory exposure of pairs of companies. A higher score means that the two firms comply with similar regulations by the same regulatory agencies. Existing similarity measures such as industry boundaries, geographic proximity, and product markets account for only one-quarter of the variation in regulatory similarity. Nevertheless, firms with high regulatory similarity comove along key dimensions such as overhead costs, profitability, and investment. Using a supervised machine-learning algorithm, we decompose the similarity into 12 topics and find that it is driven by regulatory issues related to fiscal policy and labor. Each firm has a unique set of peers for each topic, and they all lobby the government on similar topics. Combined, our results uncover economically important links between companies centered around regulatory issues
The Industrial Organization of the Mafia
No full textThis paper uses economic reasoning to analyze the organization of one of the most successful criminal groups in modern US history: La Cosa Nostra (LCN). Drawing on recently declassified Federal Bureau of Investigation reports and a hand-collected data set, I argue that the costs of violent disputes are key for an economic understanding of La Cosa Nostra’s core institutions. Violent disputes were costly as they consumed resources, were destructive, and raised the group’s profile. As a member did not bear the full costs of a profile-raising police investigation, each had a perverse incentive to resolve a dispute with violence. Hierarchical firms and a sophisticated court system were the LCN’s solution. They gave bosses the authority and incentive to limit violent disputes and to use violence judiciously. La Cosa Nostra’s longevity and success are, in part, a testament to these institutions’ efficacy. Why can’t we solve our problems peacefully among ourselves? (Bonanno 2013, p. 256
TikTok the Tortfeasor: A Framework to Discuss Social-Platform Externalities and Arguments Favoring Ex Ante Mitigations
No full textIn recent years, social media platforms have grown increasingly complex in how they invite, intersect with, and influence third-party speech. This complexity lies in stark contrast to the simplicity of the statute that governs those very platforms: Section 230 of the Communications Decency Act. Although Section 230 has cabined liability for platforms in the past, some have advocated for activist judges to deploy tools available to them to hold platforms accountable and mitigate harm to users as research documenting the negative impact of social products on user well-being has matured
This Comment reviews Section 230 jurisprudence to develop a novel taxonomy that explicates the statute’s boundaries and provides both an opening for ex post liability and a rough metric for its limits. It divides claims against platforms into three categories—content specific, content dependent, and content agnostic—based on the proximity of the alleged injury to user-generated content and the degree of the platform’s participation. Noting the incentive for plaintiffs to frame claims as content agnostic to evade premature dismissal under Section 230, this Comment also formalizes a remedies test that courts can use to distinguish legitimate contentagnostic claims from those in name only. Armed with this vocabulary, this Comment turns its attention to a number of cases pending against social platforms. Applying the remedies test, it determines that a handful of pending allegations give rise to legitimate content-agnostic claims.
Noting that content-agnostic injuries are material but not yet fully understood, this Comment ultimately argues that an ex ante regulatory regime operationalized by an expert agency is better suited to address social-platform externalities than an ex post liability regime. It discusses several reasons to disfavor an ex post regime or favor an ex ante regime before outlining what an adequate ex ante regulatory regime could look like with respect to its mandate, powers, structure, and staffing
Intervention and Universal Remedies
No full textCivil procedure plays a pivotal role in shaping litigation, including some of the most divisive and politically consequential cases heard in federal court—those seeking nationwide injunctions to block federal policies. But we know very little about how such cases are actually litigated. It is often assumed that procedural rules, crafted to apply to many types of cases, work equally well in the nationwide-injunction context. This Article challenges that view. In fact, procedural rules are having a critical substantive effect on the outcomes of these cases. And they are undermining the very values they were designed to serve.
This Article examines over five hundred nationwide-injunction cases and shows that a surprising participant is influencing the results: an outsider who has joined as an intervenor. Intervenors can stand on equal footing with the original parties, so a decision to grant or deny intervention has real-world stakes for the entire life cycle of a case. Judges also have an immense amount of discretion to allow an intervenor to join. That discretion has led to intervention in nationwide-injunction cases being common, contested, unpredictable—and enormously consequential.
Judicial discretion over intervention functionally gives courts control over how nationwide-injunction cases proceed, or whether they proceed at all. With few principles guiding that discretion, procedural rulings can appear to be influenced by the court’s own political leanings, undermining public confidence in the court’s decision on the merits. What’s more, intervenors can keep cases alive even after government officials have withdrawn, thereby increasing the odds that high-stakes, politically salient questions will be resolved by the courts rather than the democratic process.
This Article represents the first scholarly examination of the significant role that intervention plays in nationwide-injunction suits. More broadly, this Article uses intervention to explore the function of procedural rules and the federal courts in a democratic system. And it analyzes how procedural rules influence notions of judicial neutrality and judicial minimalism. Finally, this Article offers two reforms that would promote procedural values and cabin the role of the federal courts in ideological litigation
State Telemedicine Abortion Restrictions and the Dormant Commerce Clause
Full text linkTelemedicine abortions allow women to meet virtually with abortion providers and receive abortion medication through the mail, all without ever leaving their homes. This development could be instrumental in facilitating access to abortion care for women living in abortion-restrictive states after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. However, many abortion-restrictive states have moved to restrict remote abortion care and impose legal liability on out-of-state telemedicine abortion providers.
This Comment outlines a novel argument that these state restrictions on telemedicine abortions violate the Dormant Commerce Clause, which prohibits state regulation that discriminates against or unduly burdens interstate commerce.
Although the Court’s decision in National Pork Producers Council v. Ross significantly narrowed the scope of the Dormant Commerce Clause, the fractured opinions highlighted important areas of the doctrine that remain unsettled. This Comment argues that this ambiguity presents an opportunity for courts to adopt an expansive model of the Dormant Commerce Clause’s undue burden standard, consistent with Chief Justice John Roberts’s opinion. Under this model, telemedicine abortion restrictions impose a substantial burden on the interstate market for abortion care that clearly outweighs their benefits. Although a Dormant Commerce Clause approach will not guarantee unfettered access to telemedicine abortions nationwide, it represents one of many tools that abortion rights advocates can leverage to protect reproductive rights in a post-Dobbs world
Mutually Assured Democracy: Cooperating Under the Compact Clause to Combat Partisan Gerrymandering
Full text linkFree Markets and Free Speech: Understanding the Limits of the Noerr-Pennington Doctrine
Full text linkBased in First Amendment principles, the Noerr-Pennington doctrine immunizes parties petitioning the government from antitrust liability, even when such petitioning may be considered anticompetitive. Within the doctrine exists a narrower “sham exception” which eliminates Noerr-Pennington antitrust immunity when petitions are merely shams meant to interfere with a competitor’s business. The Supreme Court has examined the sham exception in two cases which have produced differing standards for when and how to apply it. As a result, circuit courts have had to grapple with this uncertainty and a circuit split has developed as they have disagreed on the proper approach to applying the sham exception.
This Comment proposes that the Supreme Court revisit its Noerr-Pennington jurisprudence and clarify the scope under which immunity shall attach. Furthermore, this Comment advocates for the adoption of a new “holistic evaluation” rule akin to the rule of reason in which patterns of lawsuits are evaluated, not on their individual chance of success, but collectively based on intent. As part of this inquiry, this Comment argues that courts should analyze whether the legitimate gains a party stands to win from such lawsuits (i.e. damages) is less than the anticompetitive effects of bringing those lawsuits (i.e. litigation costs and attorney fees) such that the lawsuits, collectively, should not enjoy Noerr-Pennington antitrust immunity