Black Metropolis Research Consortium
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The (Mis)uses of the S&P 500
Get PDFThe S&P 500 is widely used to (i) direct capital through “passive” investing, (ii) benchmark investment portfolios, and (iii) evaluate firm performance. The securities regulatory regime’s approach to each of these uses is fundamentally flawed. I show that the index is neither neutral nor constant: it represents substantial amounts of discretionary decision-making and is simply one particular large-cap portfolio. I then argue that an “S&P 500 fund” is not meaningfully passive, the mutual fund prospectus benchmark requirement is flawed, and the requirement that index constituents compare their performance to that of the index is nonsensical. I propose regulatory changes to correct these misuses
A Gricean Theory of Expressive Conduct
Get PDFIn Spence v. Washington, the Supreme Court devised a two-part test for determining whether a nonverbal action is expressive conduct protected by the First Amendment. According to the Spence test, a nonverbal action is expressive if and only if: (1) it is intended to communicate a particularized message; and (2) in the circumstances in which the action is performed, the likelihood is great that the message will be understood by observers.
In subsequent cases, however, the Court has made clear that the category of “expressive conduct” embraces a much wider variety of nonverbal behaviors than a literal reading of the Spence test would suggest. It includes, for example, such behaviors as composing instrumental music, creating nonrepresentational visual artworks, penning nonsense verse, and dancing in the nude for the entertainment of others.
Drawing on the work of Paul Grice, one of the twentieth century’s most influential philosophers of language, this Comment develops a two-part expressive conduct test that captures the expressive character of this wider variety of behaviors. It shows that the Gricean test displays striking consistency with the Supreme Court’s particularized judgments about which sorts of nonverbal conduct are expressive and which sorts are not
International Law, Constitutions, and Electoral Content Moderation: Overcoming Supranational Failures Through Domestic Solutions
Get PDFThis Essay presents a normative structure for advocating for international soft law standards that can help domestic jurisdictions provide content moderation for election misinformation. Relying on a comparison between the cases of Brazil and the U.S. (both facing recent democratic erosion), this Essay shows how Brazilian courts responded to challenges to democracy and how, in the U.S., content moderation generally depends on private actors. The theoretical analysis presented indicates that transnational and constitutional approaches are required both in the face of the de-territorial characteristics of social media disinformation and also as a prerequisite to conceiving a legitimate approach to private content moderation. This Essay argues that: jurisdictional contextual features cannot be ignored; basic regulations are desirable; content moderation cannot be solely left to private actors, especially considering the need for the protection of democracy; and, finally, that private moderation must also be democratized
Is Direct Democracy Good or Bad for Corporations and Unions?
Get PDFThe initiative and referendum were intended to curtail the power of organized interest groups, yet business groups account for more spending on ballot measures than any other group by far. Does this mean that direct democracy has become a tool for corporations to buy favorable legislation? This paper reports four types of evidence suggesting that the answer is no: analysis of the content of the universe of state-level initiatives in the United States from 1904 to 2021 shows that antibusiness initiatives were more common than probusiness initiatives, analysis of contribution patterns for California ballot measures from 2000 to 2020 shows that business groups more often opposed than supported initiatives, abnormal stock returns on election days show that corporate contributors earned positive abnormal returns when initiatives failed and negative abnormal returns when they passed, and for all three types of evidence business groups fared better with ballot measures proposed by legislatures. I find similar results for unions
Does Government Play Favorites? Evidence from Opportunity Zones
Get PDFThe Opportunity Zone (OZ) program is one of the most comprehensive to promote development in distressed communities. A criticized feature is that state governors designate zones as OZs from many eligible tracts without scrutiny. We find that governors are more likely to select tracts with higher distress levels and tracts on an upward economic trajectory, which indicates that they select OZs in a systematic way on the basis of objective criteria. However, we also provide evidence that favoritism plays a role in governors’ decisions. The OZ designation is more likely for tracts in counties that supported the governor in an election and when executives or firms with an economic interest in the tract donated to the governor’s campaign. We further explore whether transparency and accountability measures affected states’ decisions. Our analysis suggests that while most measures had no discernible impact, publishing draft selections may mitigate favoritism and promote systematic decision-making
Toward Principled Background Principles in Takings Law
Get PDFBlunders made by lawyers, judges, and scholars have caused the Supreme Court’s recent opinion in Cedar Point Nursery v. Hassid to be deeply misunderstood. In Cedar Point, the Court re-wrote takings law by treating temporary and part-time entries onto private property as per se takings. Prior to Cedar Point these sorts of government-authorized physical entries would have been evaluated under a balancing framework that almost invariably enabled the government to prevail. As it happens, there were two well-established rules of black letter law that California’s lawyers and amici mistakenly failed to invoke in defending the Cedar Point union organizer access regulation. First, a physical takings claim accrues when a regulation authorizing third parties to enter private property is promulgated, not when the third party actually enters the land. Second, only the party that owned the land at the time the physical taking cause of action accrued can prevail. Under these doctrines, Cedar Point Nursery’s lawsuit was filed decades too late. By the wrong plaintiff. California’s oversights were probably outcome determinative.
Moving beyond Monday-morning quarterbacking, we argue that the statute of limitations arguments available to governments in future cases help provide the essential limiting principles that went unmentioned in Cedar Point. In the aftermath of Cedar Point prominent scholars denounced the opinion as a vehicle for gutting antidiscrimination law, labor law, environmental law, rent control, and other parts of the regulatory state. Our analysis reveals that these concerns are likely exaggerated because defenders of those long-standing limits on the right to exclude can invoke the statute of limitations arguments that California’s lawyers failed to raise. On the other hand, new restrictions on owners’ rights to exclude are vulnerable to legal challenge. Properly understood, contemporary takings law grandfathers in many longstanding limits on the right to exclude while constraining governments that wish to tackle collective action problems by restricting property rights in new ways. Moreover, statutes of limitations and related doctrines can provide courts with something that has been elusive since the Supreme Court’s 1992 takings decision in Lucas v. South Carolina Coastal Council: a principled and coherent account of what restrictions on owners’ rights are impervious to takings claims because they qualify as background principles of state property law
Regulatory Trading
Get PDFRegulatory trading systems, such as the SO2 cap and trade system, are ubiquitous in environmental and natural resources law. In addition to cap and trade systems for pollutants such as SO2, NOx and CO2 , environmental and natural resources law uses trading in areas such as endangered species, water quality, wetlands, vehicle mileage, and forestry and farming practices. Trading, however, is rarely used as a regulatory approach in other areas of law. This paper seeks to identify the reasons for this dichotomy. To understand the dichotomy, the paper examines the uses of trading in environmental and natural resources law, where it has been successful, and where problems have arisen, including problems such as hotspots, environmental justice, measurement problems, and moral problems with the use of markets. It then considers the possibility of trading in six non-environmental areas of law to see whether trading can be helpful and if not, why not. The analysis suggests a number of reasons for the dichotomy including that (1) environmental problems tend to have larger costs and benefits, making it worthwhile to incur the costs of a trading regime in environmental contexts than elsewhere; (2) trading may not work well because of hotspots, measurement, or other problems, (3) trading may be inconsistent with the underlying premises of a regulatory system, and finally (4) in some cases, there is no good reason for the dichotomy other than institutional inertia and should be considered as a supplement or replacement for existing regulatory approaches in those cases
Writing America’s Constitutions
No full textIt seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice (Alexander Hamilton, The Federalist).
How well-understood were American constitutional conventions and legislative processes by the public? How did the tradition of formal debate come to be embedded in American political life and in the operation of broader society? For what reasons and with what consequence has this tradition of constitution-writing and legislative debate decayed and fallen into disuse and technical obscurity? Returning our attention to the processes underlying the creation of America’s state and Federal constitutional texts, this lecture re-examined the mechanics of the constitutional conventions placing them back within a broader tradition and social history of formal debate—something that is today foundational to many aspects of American life
Overview of the Characteristics of Tax Havens
Get PDFTax havens have become a subject of great interest among policymakers, scholars and the general public, and are central to many important current policy debates. This chapter provides an overview of the scholarly literature on the characteristics and origins of tax havens. The earlier literature, used cross-country analysis and found evidence that tax havens tend to have stronger governance institutions than comparable nonhaven countries. The more recent literature analyzes the historical origins of tax havens and undertakes longitudinal analysis of their adoption of haven-like laws. This chapter also presents a descriptive analysis of the relationship between tax haven status and quantitative measures of countries’ historical characteristics. This descriptive analysis suggests that tax haven jurisdictions are not appreciably different from nonhavens in their historical experience of foreign rule and in other historical characteristics. This suggests some caution in attributing tax havens’ status to their colonial history or to other historical variables
Expecting Corporate Prosociality
Get PDFTeaching people that corporations must exclusively maximize profits can reduce “win-wins”—what is both profitable and good for society. If everyone believes that corporations must maximize profits only, nobody will protest when corporate pursuits of profits harm society—the firms were fulfilling their duty and meeting investor and consumer expectations. But what if people instead believed that corporations should consider their social impacts, even sometimes at the expense of profits? Consumers, employees, and investors might be more willing to object to corporate harms by changing their purchasing, job choice, and investing behaviors or by petitioning corporate leaders for redress. Those objections would change firm incentives. And in response to those tangible incentives, even purely profit-maximizing firms would try to do more good and less harm because doing so would be more profitable
This paper develops and empirically tests this theory of stakeholder expectations and corporate prosociality. Two preregistered studies with nearly 1300 participants provide initial empirical support for the idea that stakeholder expectations (of exclusive profit maximization or of the possibility of corporate prosociality) affect their protest decisions. Amazon Mechanical Turk workers had the opportunity to sign a real Greenpeace petition against Amazon, the platform that runs Mechanical Turk. Those randomly assigned to learn an exclusive profit maximization norm were less likely to sign the petition than those randomly assigned to learn that firms can and should care about society. Exclusive profit maximization led participants to believe it less appropriate and effective for employees to push for social change, and that fewer firms would care and fewer others would protest. Expecting corporate prosociality instead could thus plausibly make it easier for firms to do well by doing good