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A Constitutional Perspective on Institutional Neutrality
Get PDFWe live in an era of the academic corporate statement, in which university leaders issue pronouncements on various issues as if they were political figures. Like their counterparts in large corporations, they apparently feel the need to state institutional values publicly and often. Commentary on the issues of the day is seen as projecting pastoral empathy and solidarity; silence is viewed as complicity. We want leaders who can craft the perfect statement satisfying all, and in the right font size.
Such trends cut directly against the intuition behind the Kalven report, which is that academic institutions should remain spaces of intense internal debate, even or perhaps especially on issues on which the outside world seems to agree. While the Kalven report has assumed iconic status in the national conversation on free expression in universities, it is sometimes contested even at its home institution. Some believe that if it were submitted to a faculty vote today, it might be withdrawn. Is it outmoded?
In this essay, I provide what I call a constitutional justification for institutional neutrality. Just as constitutions, to underpin and facilitate democratic conversation, provide norms that are not themselves up for regular reconsideration by ordinary majorities, so certain foundational principles may be built into the fabric of a university, and not be left open for question. Academic freedom is one such norm (and one that is under grave threat in our current environment); institutional neutrality is another.
Universities, of course, are not democracies, and not every policy is subjected to faculty vote in any case. But academic freedom demands a good deal of self-governance by faculty. Some might argue that academic freedom in its corporate sense actually allows collective speech on issues of the day, if the faculty wants to do so. Why shouldn’t the faculty be able to speak collectively by majority vote?
The constitutional perspective provides an answer. I explain the logic of constitutionalization as a form of institutional pre-commitment, and argue for its particular importance in the context of the university. Neutrality on issues of the day concentrates the energies of the community into questions that can be best resolved through the academic enterprise, and away from those which will waste or dissipate those energies. I then go on to describe the history of this principle at the University of Chicago, where institutional neutrality is constitutional in a more descriptive sense: it is drawn, not from the mid-1960s, but from the very earliest years of the University of Chicago in the 1890s. The committee chaired by Harry Kalven was merely restating a constitutional norm, not setting out any new principle in the crucible of the 1960s. The idea of institutional neutrality embodies a set of progressive and pragmatic commitments from the late 19th century, which are worth sustaining and reviving in our anxious and repressive era.
This perspective helps to contextualize the enduring value of institutional neutrality as a core norm, constitutive of at least one great research university. Whether others adopt similar commitments, of course, is up to them. Not every polity has an enduring constitution; but those which do are richer, more peaceful, and better able to protect the rights of their citizens. Perhaps the same general principle applies to universities trying to generate deep insights into the myriad problems facing society
Do Private Prisons Affect Criminal Sentencing?
No full textUsing a newly constructed complete monthly panel of private and public state prisons, we ask whether the presence of private prisons impacts state judges’ sentencing decisions. We employ two identification strategies: a difference-in-differences strategy that compares only court pairs that straddle state borders and an event study using the full data. We find that the opening of a private prison has a small but statistically significant and robust effect on sentence length, while the opening of a public prison does not. The effect is entirely driven by changes in sentencing in the first 2 months after prison openings. The combined evidence appears inconsistent with the hypothesis that private prisons may directly influence judges; instead, a simple salience explanation may be the most plausible
No-Poach Antitrust Litigation in the United States
Get PDFIn recent years, U.S. courts have heard numerous antitrust lawsuits challenging agreements among employers not to poach one another’s employees. The major issues so far involve labor market definition, the doctrine of ancillary restraints, the role of cross-market balancing, and the scope of the per se rule in the labor market context. The recent Seventh Circuit case of Deslandes v. McDonald’s has clarified some of these issues and will likely boost this form of litigation. But many questions remain unanswered
Depowering Risk: Vehicle Power Restrictions and Teens’ Driving Accidents in Italy
No full textThis paper investigates the road safety impact of a restriction in engine power on novice drivers. The restriction, introduced in Italy in 2011, prevents drivers from using high-performance vehicles during the first year they have their license. To estimate the effect on teens’ traffic accidents, we leverage the between-cohorts difference in exposure to the reform. When prevented from using high-powered cars, teens are 13 percent less likely to cause an accident and 28 percent less likely to cause a fatal accident, mainly because of fewer speeding violations. This effect persists even after the 1-year restriction ends. These findings highlight the importance of targeted policies—directed at those generating the greatest harm—that limit exposure to specific high-risk settings. These policies stand out as an effective yet feasible alternative to deterrence-based strategies and screening mechanisms, which are often difficult to enforce and sustain
Legal Outcomes and Home-Court Advantage: Evidence from the Securities and Exchange Commission’s Shift to Administrative Courts
No full textAdministrative law judges’ (ALJs’) relative lack of formal independence has engendered worries that they give agencies a home-court advantage. We examine the 2010 Dodd-Frank Act, which allowed the Securities and Exchange Commission (SEC) to move cases into its administrative court. The problem with this policy experiment is that the SEC retains the discretion to bring cases in federal court, so it is impossible to identify which cases the policy treats. We propose a difference-in-differences design, using natural-language-processing methods to create control and treatment groups. We construct propensity scores using random-forest methods. After binning cases into likely or not likely to be affected by the courts’ expansion, the difference-in-differences estimation indicates that the expansion made defendants 30 percentage points more likely to settle and 36 percentage points more likely to receive a nonmonetary penalty. There is a 24-percentage-point reduction in the likelihood of a monetary penalty
The Digital Services Act and the EU as the Global Regulator of the Internet
Get PDFThis Essay discusses the Digital Services Act (DSA), the new regulation enacted by the EU to combat hate speech and misinformation online, focusing on the major challenges its application will entail. However sophisticated the DSA might be, major technological challenges to detecting hate speech and misinformation online necessitate further research in implementing the DSA. This Essay also discusses potential conflicts with U.S. law that may arise in the application of the DSA. The gap in regulating the platforms in the U.S. has meant that the platforms adapt to the most stringent standards of regulation existing elsewhere. In 2016, the EU agreed with Facebook, Microsoft, Twitter, and YouTube on a code of conduct countering hate speech online. As part of this code, the platforms agreed to rules or Community Guidelines and to practice content moderation in conformity with them. The DSA builds on the content moderation system by enhancing the internal complaint-handling systems the platforms maintain. In the meantime, some states in the U.S., namely Texas and Florida, enacted legislation prohibiting the platforms from engaging in viewpoint discrimination. Two federal courts of appeals that have examined the constitutionality of these statutes under the First Amendment are split in their rulings. This Essay discusses the implications for the platforms’ content moderation practices depending on which ruling will be upheld
Cracks in the Sandbox: Mobilizing Existing International Legal Tools to Fill Gaps in Sand Mining Regulations
Get PDFSand sustains the foundations of modern economies, but almost nothing exists in the way of global sand regulation and governance. Despite the documented risks posed by rampant, unregulated extraction, a global governance regime is unlikely to emerge any time soon. This Comment argues that possible governance solutions will need to come from what we currently have in the legal toolbox. In other words, existing frameworks, principles, and lessons from case law must be drawn upon and refitted to tackle some of the most salient issues caused by sand mining. This Comment aims to illustrate that even a highly fractured legal landscape can still offer invaluable guidance moving forward. To that end, this Comment also explores the first possible steps toward a global governance framework. Specifically, countries should take advantage of lowhanging fruit—easy opportunities to integrate sand into existing frameworks and concepts—in order to patch critical regulatory gaps and establish a foundation for future cooperative efforts
Does Paying with Cards Reduce Crime at Stores? Evidence from a Targeted Cash Ban in Uruguay
Get PDFWe estimate the effect of cash usage on crime by exploiting a change in law in the Uruguayan capital that banned cash payments in gas stations at night. We use georeferenced crime data that allow for precise measurement of crime rates in radii around gas stations and radii around shops and other areas that were not included in the cash ban. The cash ban caused a decline of 25 percent or more in robberies in the treated areas. The effect is not observed for robberies near gas stations during daytime hours when the ban was not in effect or for crimes not motivated by cash, such as domestic violence. We find no evidence that robberies were displaced to other times or areas. Repeating our study aggregating to the neighborhood attenuates the causal effect, which may explain the lower estimates from less precise data in previous literature
Price-Parity Clauses for Hotel Room Booking: Empirical Evidence from Regulatory Change
Get PDFThis paper examines the impact of most-favored-nation (MFN) clauses on retail prices, taking advantage of two natural experiments that changed vertical contracting between hotels and major digital platforms. First, a broad EU intervention narrowed the breadth of obligations under price-parity clauses between hotels and major online travel agencies (OTAs). Second, France and Germany went further and eliminated all price-parity agreements for top OTAs. Using transaction data from hotel chains, we find that direct sales by hotels to customers became relatively cheaper than OTA sales for midlevel and luxury hotels. Comparisons with hotel pricing outside the European Union confirm the relative reduction in prices for midlevel and luxury hotels and an opposite pattern for budget hotels. Overall, regulating MFN clauses resulted in significantly cheaper direct-channel sales in two of three hotel types. Primary effects come from the narrow price-parity intervention and not from complete elimination of MFN clauses
Are Lawyers’ Case Selection Decisions Biased? A Field Experiment on Access to Justice
No full textThe attorney-client relationship is pivotal in providing access to courts. This paper presents results from a large-scale field experiment exploring how demographic information (encoded in potential clients’ names) affects how attorneys respond to initial inquiries in private injury cases. On the basis of prior literature, we hypothesize that race is a significant factor, but we also explore race and gender interactions. We find that ostensibly Black or Hispanic inquirers receive fewer responses than ostensibly White inquirers, a result largely driven by preferential treatment of White female inquirers. The racial disparities are larger than those previously documented in contexts such as public services but smaller than in contexts such as employment. We also find suggestive evidence that White attorneys are more likely than others to treat White inquirers preferentially, which implies that the differences in response rates are not merely a reaction to jurisdiction-level factors affecting lawsuits’ expected payoffs