Black Metropolis Research Consortium
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State International Agreements: The United States, Canada, and Constitutional Evolution
Get PDFThe text of the US Constitution appears to require that individual states, to the extent that they are ever allowed to conclude agreements with foreign governments, must obtain congressional approval. In practice, however, states conclude many agreements with foreign governments, including with Canada and its provinces, and they almost never seek congressional approval. This practice is an illustration of both the importance of federalism in US foreign relations and the significant role played by historical practice in informing US constitutional interpretation. The phenomenon of state international agreements assumed new prominence in 2019 when the Trump administration sued to challenge a climate change agreement that the state of California had made with Québec. Despite this challenge, for the most part, neither Congress nor the executive branch has resisted the growth in state international agreements. This acquiescence could change as countries like China target US states in an effort to work around strained relations with the US national government and as states become more assertive in resisting the national government’s foreign policies. In any event, the practice of state international agreements unapproved by Congress rests in part on a distinction between binding and non-binding agreements that deserves greater scrutiny under both domestic and international law
The Limits of Antitrust
No full textIn 1984, Frank Easterbrook published his well-known article The Limits of Antitrust. The paper was written as part of the rise of what is often referred to as the Chicago School and its embrace of the consumer welfare standard. Today, Chicago School ideas are being pushed to the side in Washington. In this talk, we will revisit the original article before turning to some broad questions. What should be the limits of antitrust? What should we try to accomplish with antitrust and what problems are best addressed elsewhere
When Bill Rolls Off: Continuity and Change on Corporate Boards
Get PDFThe number of women on public company boards has increased dramatically in recent years. We study where these women directors came from and how they were absorbed. In the past five years, women with board experience obtain significantly more board seats than their male colleagues. Women directors are also more likely to have no previous board experience than men, indicating movement on both the intensive and extensive margin. Adding a woman director is associated with a transitory increase in board size about a third of the time. This increase reverts the following year when an existing director rolls off
Coercive Rideshare Practices: At the Intersection of Antitrust and Consumer Protection Law in the Gig Economy
Get PDFThis Essay considers antitrust and consumer protection liability for coercive practices vis-à-vis drivers that are prevalent in the rideshare industry. Resale price maintenance, nonlinear pay practices, withholding data, and conditioning data access on maintaining a minimum acceptance rate all curtail platform competition, sustaining a high-price, tacitly collusive equilibrium among the few incumbents. Moreover, concealing relevant trip data from drivers is both deceptive and unfair when the platforms are in full possession of the relevant facts. In the absence of these coercive practices, customers too would be better off due to platform competition, which would lower average prices by sharpening competition between incumbents, enable entry by rivals charging lower take rates, and unravel pervasive price discrimination. Coercive practices in the rideshare industry and elsewhere, and the business models they enable, result from the preference for hierarchy and domination inherent in the contraction of liability for vertical restraints since the 1970s
Residents against Housing: A Response to Professor Infranca’s ‘Differentiating Exclusionary Tendencies’
Get PDFIncumbent residents routinely oppose residential development.1 Interestingly, this is true of both homeowners and renters, if for opposite reasons. Homeowners typically worry that new housing will cause the market value of their own homes to fall, resulting in a hit to what is usually a house-heavy personal wealth portfolio.2 Tenants typically worry that new housing will cause the market value of their own homes to rise, generating pressure toward higher rents and displacement.3 Both homeowners and tenants also express concern that new housing development will change the character of their neighborhoods in unwanted ways.4
Resident opposition to housing plays out in community after community across the country, with pernicious effects on productivity and equity.5 These efforts choke off the supply of homes—essential ingredients in every human being’s life plan—in the very places where people most wish to live. The consensus view among housing scholars is that all of this opposition to residential development is wrongheaded. While homeowner opposition is often cast as normatively illegitimate NIMBYism, tenant opposition is criticized for just plain getting the facts wrong. Citing the law of supply and demand, academics point out that adding more housing will tend to decrease, not increase, the price of housing, which should help rather than harm the pocketbooks of tenants.6
Professor John Infranca’s thoughtful and well-reasoned piece accepts this premise, but asks whether we should nonetheless view anti-development opposition by incumbent residents of some communities differently, not just as a matter of political expediency, but as a normative matter.7 Specifically, should people residing in lower-income communities that have been historically disadvantaged by redlining and other forms of racism and disinvestment have a greater say in what happens next, development-wise? For Infranca, such differential treatment “should be designed primarily to address unwanted changes to neighborhood character and the claims of long-term residents to a distinct stake in the neighborhood,” while “[o]ther local concerns, most notably concerns regarding displacement and rent increases, do not justify special treatment in the form of greater local control.”8
Infranca’s “modest case for distinct treatment”9 thus rests on two hard-to-dispute claims: (1) that housing supply is the solution to, and not the cause of, housing unaffordability; and (2) that people living in lower-income communities long ravaged by racism and economic exclusion have a stronger normative basis for resisting neighborhood change than do affluent NIMBYs.10 Yet taking the first proposition seriously means that the people who are in the strongest normative position in opposing housing also tend to be on the shakiest ground empirically.11 Infranca addresses this tension by shifting attention away from incumbents’ arguments about rent levels and displacement risks—the subjects of quantitative empirical work—and toward incumbents’ efforts to protect interests like community character.12 This move cannot fully escape the empirical shakiness at the heart of opposition in lower-income communities, however, as many of the qualitative changes that incumbents oppose may not be substantially caused by (and indeed, should be mitigated by) the addition of new housing.13
In this response, I suggest repurposing this causal weakness in the case against housing into a fulcrum for policy. The fact that adding housing supply reduces rather than increases home prices makes it workable—and incentive-compatible—to pair new housing development with protection against rising local housing costs.14 Notably, this approach distinguishes between two sets of fears voiced by housing opponents: those that relate to increasing home values (more commonly expressed in prototypical gentrification scenarios) and those that relate to decreasing home values (more commonly raised in traditional exclusionary zoning scenarios). Concerns about housing price increases stand on different empirical and normative footing than those relating to home value declines, which makes them both especially important and unusually feasible to address.15 Protecting incumbents against rising housing costs in neighborhoods experiencing growth in housing supply aligns both with current empirical understandings and with the normative distinctions that Infranca draws.
This essay proceeds in two steps. Part I reviews reasons for opposition to housing development and discusses how incumbents’ arguments interact with the empirics of housing supply. Part II makes a case for addressing incumbent concerns about housing price increases while expanding housing supply. Such a policy response would not be premised (counterfactually) on new supply causing price increases, but rather on the potential for exogenous changes in demand to drive up prices. Residents would be insured against catastrophic losses caused by these external forces if (and only if) their neighborhoods undertook loss mitigation by adding significant new housing supply.1
Strategic subdelegation
Get PDFAppointed leaders of administrative agencies routinely record subdelegations of governmental authority to civil servants. That appointees willingly cede authority in this way presents a puzzle, at least at first glance: Why do these appointees assign their power to civil servants insulated by merit protection laws, that is, to employees over whom they have limited control? This article develops and tests a theory to explain this behavior. Using original data on appointee-to-civil servant delegations and a measure of the ideological distance between these two groups of actors, we show that appointees are more willing to vest power in civil servants when the two groups are more closely aligned. They are particularly likely to do so in the last months of a presidential administration, prior to a transition to a new set of appointees from a different party. Essentially, appointees strategically devolve authority to ideologically similar civil servants to entrench their views in the face of oppositional future presidential administrations. Further, judicial doctrine and interest-group politics can make existing subdelegations difficult to reverse. This stickiness adds to the strategic value of subdelegations as a means of projecting preferences into future administrations. These findings raise important implications for administrative law and governance. One conventional wisdom on intra-agency dynamics considers appointees and civil servants as rivals. Relatedly, studies of personnel practices focus on strategies to empower appointees and sideline civil servants. This article, by contrast, shows how appointees and civil servants can act as strategic partners under certain conditions. At a time when leading political figures propose fundamental changes to the civil service, our findings call for a more nuanced understanding of the dynamics between political appointees and civil servants
Dynamic Decision-Making under Rolling Admissions: Evidence from US Law School Applications
No full textAdmission processes in many higher-education markets are inherently dynamic. We study the timing of students’ applications and schools’ admissions under rolling admissions using unique data on US law schools. Our results show that law schools employ nonstationary admission standards within application cycles: applications submitted earlier enjoy a considerable advantage relative to later applications
Simplicity and Complexity in Law and in Markets
Get PDFRichard Epstein’s Simple Rules for a Complex World1 is true to its title and to the author’s demonstrated genius over a long career. It is a libertarian-oriented enterprise in that it requires the reader to share in the belief that government programs are often wasteful and subject to unattractive interest group pressures and corrupt bureaucracies. More generally, Simple Rules is framed against a background in which the reader must share the libertarian view that individuals can and should be trusted to look after themselves and to make their own choices. Epstein likes “simple” rules; these include strict liability, a flat tax, fee simple, and so forth. He argues that more complexity invites errors and corruption, and arguments for complexity undervalue individuals’ ability to bargain and otherwise fend for themselves. People know what is good for them far more than lawmakers. Anyone who does not share these fundamental views might be frustrated when reading this important book, unless perhaps the belief in redistribution and market failures is so great that one is willing to set aside the enormous costs of government failure. In any event, an insightful and friendly (and terrific) critique of the book has already been written by John Harrison, who thinks of Epstein’s book as a myth: What role should law play if the world were as Epstein (and perhaps Harrison and others among us) wishes it to be?2 As such, this Essay is neither a review nor a reaction, but instead offers the following two ideas that are stimulated by the book. First, “simple rules” is something of a misnomer; simplicity is in the eye of the beholder. Second, and more significant, the book offers an opportunity to think about the division of labor between private markets and government activity. Thus, Part I of this Essay raises doubts about the idea of simplicity in rulemaking. It is important to take enforcement costs into account when making rules and to see that there is often a trade-off between these costs and the goal of encouraging social efficiency on the part of those subject to these rules. Complexity does often raise administrative costs, but it can also encourage efficient behavior. Part II then takes us in a new direction as it compares the complexity of markets to that of law. It asks why we should yearn for simple rules where law is concerned if the private market often chooses and demonstrates the advantages of complexity. Various answers to this question cast some light on the choice between simple and complex rules
Searching for Standing: Are Improper Acquisition or Threatened Misappropriation of Trade Secrets Cognizable Injuries Sufficient for Article III Standing?
Get PDFTrade secret litigation is on the rise. Meanwhile, modern standing cases have forced courts and commentators to reevaluate what sorts of legal injuries bring factual injuries with them, such that federal courts can adjudicate them as a “case” or “controversy” under Article III of the Constitution.
his Comment studies the intersection of Article III standing and federal trade secret law. It is the first piece to provide a taxonomy of trade secret violations and factual injuries in the shadow of standing doctrine’s demand for an injury-in-fact. This Comment submits a bold yet plausible claim: Article III standing should be in question for certain violations of the Defend Trade Secrets Act (DTSA)—improper acquisition and threatened misappropriation. Challenging standing in these cases will ensure that federal courts remain within their constitutional mandate. Moreover, challenging standing in certain trade secret cases will help encourage employee mobility in the marketplace.
While this Comment urges courts to assure themselves of Article III standing in these cases, it acknowledges that plaintiffs will have forceful responses to standing arguments made against them. A back-and-forth rally between plaintiffs and defendants will help courts reach the correct results, as the adversarial process intends. At bottom, this piece challenges what some seem to take as a given: that trade secret plaintiffs who plausibly allege a violation of the DTSA have necessarily suffered an injury-in-fact
Investments in The Magnificent Ambersons: Business, Marriage, and Law-Making
Get PDFSuccessful investments often reflect insight, implementation, and good fortune. In Booth Tarkington’s Pulitzer Prize-winning novel, The Magnificent Ambersons1 (written in 1918, adapted by Orson Welles in a celebrated 1942 film, and recently rediscovered and scheduled for release with material that had been removed over Welles’ objection), horses give way to the automobile and the characters’ fortunes rise and fall as the world changes with the advent of this new technology. Meanwhile, the decision to marry, like one to enter other partnerships, also depends on insight, effort, and good fortune. I aim to show these parallel themes in the novel. The argument developed here is that lawmakers have the same difficulties, or ambitions, as do investors in business and marriage. They must try to predict the future. Judges and legislators, like investors, need insight and skill but there is also some luck involved in making good law. Lawmaking is itself an investment process. A good example is found lurking in the novel; the growth of the suburbs—and the decline of the Ambersons’ magnificence—depended in some part on the liability rules attached to automobiles