Black Metropolis Research Consortium
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The (informal) Law and Economics of Slums
No full textNearly 1 billion people live in urban slums, communities of squatters that have no formal rights to land and live in poor housing. Professor Malani discussed why people live in slums and why cities cannot accommodate them. The talk explored how people locate and build their homes, why cities do not provide them basic services—from water and electricity to police and legal services, and how communities cooperate to fill the gap left by the state. Malani also discussed different solutions to slums—including giving residents alternative public housing or land rights to the plots they occupy—and explained why each involves difficult trade-offs
Involuntary Reproductive Servitude: Forced Pregnancy, Abortion, and the Thirteenth Amendment
Full text linkJudicial Misreading of RLUIPA’s “Substantial Burden” and Extinguishment of Inmates’ Bodily Free Exercise
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Donorsexuality After Dobbs
Full text linkFor the better part of a century, the United States Supreme Court has issued a series of decisions, “the underlying premise of [which is] that the Constitution protects ‘the right of the individual . . . to be free from unwarranted governmental intrusion into . . . the decision whether to bear or beget a child.’”1 The most controversial line of such decisions, protecting from “unwarranted governmental intrusion” an individual’s right to choose to terminate a pregnancy through abortion, 2 has been decisively overruled.3 The same conservative justices who have eliminated abortion rights have for the entirety of their legal careers expressed skepticism of or downright hostility to the entire line of cases in which their predecessors on the Court have protected sexual and reproductive rights. 4
Now might therefore be a particularly opportune time to examine with lawyerly precision exactly what this line of cases can be read to actually protect, as well as to begin to consider how much of these protections may be vulnerable in the aftermath of the successful attack on abortion rights. This article will undertake such an examination from an unusual angle. It will focus on the motivations and behaviors, the resulting legal problems, and possible rights claims of men who make an unusual set of decisions to beget children; they offer their own fresh sperm on a non-commercial basis directly to significant numbers of women, often not personally well known to them, for purposes of DIY artificial insemination. Among the legal risks these high volume non-anonymous sperm donors run is the prospect that the Food and Drug Administration, as well as state regulatory authorities, can threaten them with fines and imprisonment if they continue to provide their sperm without either complying with the restrictive and expensive rules for commercial sperm banks or demonstrating that they are exempt from these rules because, notably, the person to whom they will transfer their fresh sperm for insemination purposes is “a sexually intimate partner” of the donor. 5
The FDA regulations leave the term “sexually intimate partner” undefined, which itself raises interesting questions in light of the variety of sexual practices and attitudes manifested in connection with sperm donation. But even more remarkable from the perspective of doctrinal constitutional law is that the regulations, which have not successfully been challenged in court, explicitly privilege sexual intimacy. This, as will be discussed below, seems a poor fit with the regulations’ goal of protecting health and safety, but is a much better fit with the actual holdings in the line of modern substantive due process cases covering sexual and reproductive rights, which, if carefully analyzed, can be seen to more clearly, frequently, and unequivocally protect a right to sexual intimacy in the absence of procreative intent (or even procreative possibility) than they protect a right to procreate.
As I delve into the doctrine, I will also provide a more concrete sense of what is at stake by describing in some detail the situations of three actual high-volume providers of fresh sperm, each broadly representative of a type of donor that raises distinct legal issues with broader implications. The first is Trent Arsenault, the original, self-described Donorsexual, whose reproductive activities are tightly connected to sexual practices he himself sees as amounting to a sexual orientation.6 The second is Ari Nagel, best known by the sobriquet the Sperminator bestowed on him by the New York Post,7 but who calls himself, as I will call him here, Super Dad,8 because of a commitment to be as much as possible an involved father in the lives of his more than 100 donor offspring.9 The third, who calls himself Joe Donor to conceal his identity, I shall use in passing as an example of those men whose announced goal is to maximize the number of their donor offspring in explicit quest of a world record, and who prefer to provide their sperm donation in the form, not of transfer in a sterile receptacle for artificial insemination (A.I.) by the recipient, but of so-called natural insemination (N.I.)—i.e. unprotected vaginal intercourse for the purpose of impregnation.10 I have selected these three for the purposes of illustrating the landscape of the law, not because I see them as in any way representative of the by now quite large and varied pool of free sperm donors who offer their services on a variety of internet sites and other venues.11 Although free sperm donation is not only a worldwide but also a cross-border phenomenon, and although two of the men I discuss, Ari Nagel and Joe Donor, travel the world over to provide their sperm to persons of many nationalities in many foreign venues, my focus is on American law and the activities of the donors within the United States.
The doctrinal conclusion of my reflections on where the law with respect to these donors may stand after Dobbs will not be any of the now familiar modern substantive due process cases, but instead an older equal protection case, Skinner v. Oklahoma.12 In 1942, Skinner vindicated more directly than any other case before or since the right to procreate. The Court held it to be a violation of convicted chicken thief Jack Skinner’s fundamental right to procreate for the state of Oklahoma to order him to be sterilized when those convicted of equally serious crimes like embezzlement were not eligible for state-imposed sterilization.13 Although its age and the legal basis on which it rests shelter Skinner’s holding from the full force of the destructive tornado unleashed by the Dobbs majority on other Supreme Court sexual and reproductive rights decisions, new questions inevitably will arise in a post-Dobbs world when applying strict scrutiny, as Skinner requires, to laws restricting for some and not for others what the opening sentences of the Skinner majority opinion called “a sensitive and important area of human rights . . . the right to have offspring.” 1
Trade, Leakage, and the Design of a Carbon Tax
Full text linkClimate policies vary widely across countries, with some countries imposing stringent emissions policies and others doing very little. When climate policies vary across countries, energy-intensive industries have an incentive to relocate to places with few or no emissions restrictions, an effect known as leakage. Relocated industries would continue to pollute but would be operating in a less desirable location. We consider solutions to the leakage problem in a simple setting where one region of the world imposes a climate policy and the rest of the world is passive. We solve the model analytically and also calibrate and simulate the model. Our model and analysis imply: (1) optimal climate policies tax both the supply of fossil fuels and the demand for fossil fuels; (2) on the demand side, absent administrative costs, optimal policies would tax both the use of fossil fuels in domestic production and the domestic consumption of goods created with fossil fuels, but with the tax rate on production lower due to leakage; (3) taxing only production (on the demand side), however, would be substantially simpler, and almost as effective as taxing both production and consumption, because it would avoid the need for border adjustments on imports of goods; (4) the effectiveness of the latter strategy depends on a low foreign elasticity of energy supply, which means that forming a taxing coalition to ensure a low foreign elasticity of energy supply can act as a substitute for border adjustments on goods
In Defense of Chapter 11 for Mass Torts
Full text linkThis Essay argues that bankruptcy proceedings are well-suited to resolving mass tort claims. Mass tort cases create a collective action problem that encourages claimants who are worried about available recoveries to race to the courthouse to collect ahead of others. This race can destroy going concern value and lead to the dismemberment of valuable firms. Coordination among claimants is difficult as each one seeks to maximize its own recoveries. These are the very collective action and holdout problems that bankruptcy proceedings are designed to solve. As such, bankruptcy proceedings are appropriate means of resolving mass torts as long as they leave tort victims no worse off than they would have otherwise been. We further argue that legal innovations such as third-party releases and divisional mergers, which facilitate efficient bankruptcy proceedings and reduce holdout problems, should be welcomed as long as courts are attentive to the potential for abuse.
Of course, the bankruptcy process is not fully immune to abuse. For example, incumbent managers may have outsized bargaining leverage in bankruptcy or may take advantage of information asymmetries to push for reorganizations that divert value away from tort claimants. To control for such abuse, this Essay explores potential reforms aimed at ensuring that bankruptcy proceedings effectively mitigate collective action problems without disadvantaging tort victims as a class. Some of these reforms, such as giving tort claimants a priority claim, will sound familiar to bankruptcy scholars. Others, such as giving tort claimants a right to propose a plan of reorganization are more extreme. Because all these proposals have costs and benefits, our aim is not to endorse any one set of reforms; rather, we emphasize that it is possible to address potential abuses through internal reforms that facilitate mass tort resolutions within the bankruptcy system without resorting to measures that prohibit or make such proceedings unnecessarily expensive
The Digital Services Act and the Brussels Effect on Platform Content Moderation
Full text linkThe EU’s latest regulation of social media platforms—the Digital Services Act (DSA)—will create tension and conflict with the U.S. speech regime applicable to social media platforms. The DSA, like prior EU regulations of social media platforms, will further instantiate the Brussels Effect, whereby EU regulators wield powerful influence on how social media platforms moderate content on the global scale. This is because the DSA’s regulatory regime (with its huge penalties for noncompliance) will incentivize the platforms to skew their global content moderation policies toward the EU’s instead of the U.S.’s balance of speech harms versus benefits. The Act’s incentives for platforms to moderate harmful content, if implemented globally as is likely, will also create tension with recently enacted U.S. state laws like those adopted in Texas and Florida, and those proposed at the federal level, which prohibit platforms from moderating content in a viewpoint-discriminatory manner
Labor Mobility and the Problems of Modern Policing
Full text linkWe document and discuss the implications of a striking feature of modern American policing: the stasis of police labor forces. Using an original employment dataset assembled through public records requests, we show that, after the first few years on a job, officers rarely change employers, and intermediate officer ranks are filled almost exclusively through promotion rather than lateral hiring. Policing is like a sports league, if you removed trades and free agency and left only the draft in place.
We identify both nonlegal and legal causes of this phenomenon—ranging from geographic monopolies to statutory and collectively bargained rules about pensions, rank, and seniority—and discuss its normative implications. On the one hand, job stability may encourage investment in training and expertise by agencies and officers alike; it may also attract some high-quality candidates, including candidates from underrepresented backgrounds, to the profession. On the other hand, low labor mobility can foster sclerosis in police departments, entrenching old ways of policing. Limited outside options may lead officers to stay in positions that suit them poorly, decreasing morale and productivity and potentially contributing to the scale of policing harms. In turn, the lack of labor mobility makes it all the more important to police officers to retain the jobs they have. This encourages them to insist on extensive labor protections and to enforce norms like the “blue wall of silence,” which exacerbate the problem of police misconduct. We suggest reforms designed to confer the advantages of labor mobility while ameliorating its costs
Hidden Value Transfers in Public Utilities
Full text linkMany electric utilities in the United States own rate regulated and non-rate regulated subsidiaries. The rate regulated subsidiaries enjoy legal monopolies and a right to a return on their capital investments but are only allowed to charge regulatorily authorized rates. The non-rate regulated subsidiaries participate in competitive markets and are generally free to earn whatever profits they can but are subject to the threat of displacement by other enterprises.
Many electric utilities in the United States own rate regulated and non-rate regulated subsidiaries. The rate regulated subsidiaries enjoy legal monopolies and a right to a return on their capital investments but are only allowed to charge regulatorily authorized rates. The non-rate regulated subsidiaries participate in competitive markets and are generally free to earn whatever profits they can but are subject to the threat of displacement by other enterprises.
This Essay describes some strategies vertically integrated electric utilities use to transfer value from rate regulated affiliates to non-rate regulated affiliates. First, regulated utilities directly subsidize non-regulated affiliates by entering into favorable contracts with affiliates that participate in competitive markets. These contractual value transfers include favorable purchase agreements such as long-term contracts to buy coal at above-market prices and cross-affiliate debt guarantees that allow non-rate regulated affiliates to borrow at a discount. Second, utilities receive regulatory authorization to pass costs incurred by their non-rate regulated affiliates onto captive ratepayers. Examples of regulatorily approved value transfers are fuel adjustment clauses that authorize recovery of fuel costs from captive ratepayers and self-insurance that forces ratepayers to bear wildfire risk and transmission outages (even when insurance requirements are supposed to protect them from those risks). Third, utilities make investment decisions in rate regulated markets that favor their non-rate regulated affiliates. For example, utilities may invest (or refuse to invest) in transmission capacity to protect the market power of their generation assets—not to reduce energy prices, improve grid reliability, or connect to low-carbon energy sources. Utility value transfers thus make the grid less efficient, less reliable, more difficult to supervise, and more resistant to policy instruments that should encourage decarbonization