Black Metropolis Research Consortium
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The Lion’s Share: Evidence from Federal Contracts on the Value of Political Connections
No full textWe examine the role of political connections in receiving federal funds during an unexpected surge in government defense spending. While the data do not allow identification of a causal link, the analysis shows that politically connected firms were awarded larger amounts in federal contracts when available funds increased. Defense contracts awarded to firms that lobbied were around one third higher than contracts awarded to firms that did not lobby. Similar evidence holds for campaign contributions and board connections. The increase in the contract amount is observed primarily for firms with limited ability to efficiently support the Pentagon’s efforts and when contracts received less scrutiny. Between political connections and merit as potential channels to affect government contracting, the results mainly, but not exclusively, support the first channel
Achieving Appropriate Relief for Religious Freedom Violations in Prisons After Tanzin
Get PDFIn the 1990s, Congress passed the Prisoner Litigation Reform Act (PLRA) to decrease frivolous prisoner litigation. One PLRA provision that was aimed at accomplishing that goal is § 1997e(e), which states that no prisoner can bring a federal civil action for mental or emotional injury without a showing of an accompanying physical injury. This provision has created a circuit split over whether prisoners who suffer a violation of their Free Exercise rights under the First Amendment can re- cover compensatory damages. If the split is left unresolved, it will lead to a troubling lack of uniformity in the law for federal prisoners, who are a group of uniquely vulnerable litigants given their lack of access to resources.
This Comment argues that to achieve uniformity and avoid the complications of the First Amendment circuit split, federal prisoners should bring their claims under the Religious Freedom Restoration Act (RFRA) instead. In Tanzin v. Tanvir, the Supreme Court explicitly ruled that monetary damages are available as a form of “appropriate relief” under RFRA. This Comment asserts that “appropriate relief” should include compensatory damages for prisoners for a number of reasons. These reasons include RFRA’s “super statute” status, the imperfect fit of other noncompensatory remedies such as injunctive relief and nominal damages when religious freedom rights are violated, the failure to serve PLRA’s stated purpose of decreasing frivolous prisoner litigation by barring recovery of compensatory damages, and consistency with the Supreme Court’s separation of powers doctrine. Therefore, federal prisoners should be able to recover compensatory damages under RFRA when their religious freedom rights are violated
The Long Hand of Anti-Corruption: Israeli Judicial Reform in Comparative Perspective
Get PDFThere are many ways in which to examine the current Israeli constitutional crisis. This article uses the lens of anti-corruption, a global movement which has changed politics in many countries. The long empowerment of the legal system in Israel arguably has its origins in policing corruption, which may be a particularly powerful motivator for the current governing coalition’s efforts to assert more control over the Supreme Court. The dynamics of anti-corruption in Israel are somewhat distinct from those of other countries in ways that may bode well for the Court in its confrontation with the government
Horizontal Collusion and Parallel Wage Setting in Labor Markets
Get PDFHorizontal collusion among employers to suppress wages has received almost no attention in the academic literature, in contrast with its more familiar cousin, product-market collusion. The similar economic analysis of labor and product markets might suggest that antitrust should regulate labor and product markets in the same way. But product markets and labor markets do not operate identically: people behave differently as employees and as consumers. Unlike consumers who can switch products relatively easily, employees face significant frictions in changing jobs. Other labor market frictions are created by the pay equity norm and downward nominal wage rigidity. These and related factors stabilize collusive arrangements and facilitate tacit coordination in labor markets. The implications for antitrust law are explored
Reconstructing Klein
Get PDFThis Article interrogates the conventional understanding of United States v. Klein, a Reconstruction Era decision that concerned Congress’s effort to remove appellate jurisdiction from the Supreme Court in a lawsuit seeking compensation for abandoned property confiscated by the United States during the Civil War. Scholars often celebrate the decision for protecting judicial independence; so, too, they applaud the decision for shielding property rights against arbitrary legislative action and for preserving executive clemency from legislative encroachment. Absent from all contemporary accounts of Klein is its racialized context: The decision allowed an unelected judiciary to disable Congress from blocking the president’s promiscuous use of the pardon power to obstruct policies aimed at racial equality. These policies included land distribution to emancipated slaves—the proverbial “forty acres and a mule.” Klein, we show, was one of a number of Supreme Court decisions that helped to restore a white supremacist, aristocratic power base in the South. In particular, the decision is a coda to a tragic story in which property, central to the political reconstruction of the South on a multiracial basis, was returned to former enslavers and those who did commerce with them.
This Article makes three contributions. First, it augments the traditional narrative about Klein by highlighting the land dreams of Black freedom seekers and the Union’s broken commitments to Blacks about land acquisition and the promise of full citizenship, rather than exclusively focusing on the compensation claims of Confederate rebels and their allies. Second, it explores the erasure of racial politics from scholarly discussion of Klein, and the ways in which a purportedly neutral jurisdictional rule achieved extreme racialized effects. We argue that the Court’s assertion of interpretive supremacy was partner to partisan efforts to defeat Reconstruction that worked to maintain Black people in a subordinate class subject to legalized violence and economic exploitation. In particular, we bring the decision into dialogue with Reconstruction Era constitutional decisions, and examine how the Court’s reasoning and its implicit valorization of a “Lost Cause” ideology set the foundation for a hollowed-out construction of the Fourteenth Amendment that equates Black citizenship with emancipation only, without regard to the material conditions that make freedom and equality possible. Finally, we raise questions whether acknowledging Klein’s racialized context might motivate reassessing as well as reorienting the notion of jurisdictional neutrality and jurisdictional doctrines involving federalism, separation of powers, and federal judicial power
Seizure or Due Process? Section 1983 Enforcement Against Pretrial Detention Caused by Fabricated Evidence
Get PDFCan an individual who was held in pretrial detention but not criminally convicted as a result of fabricated evidence raise a due process claim under 42 U.S.C. § 1983? The answer is unclear. In 2017, the Supreme Court in Manuel v. City of Joliet held that claims for unlawful pretrial detention are governed by the Fourth Amendment. Since then, the Seventh Circuit has asserted that the Fourth Amendment is the only source of redress under § 1983 for wrongful pretrial detention caused by fabricated evidence. By contrast, several circuits have opined that Manuel does not foreclose the possibility that individuals held in pretrial detention due to fabricated evidence may raise § 1983 Fourteenth Amendment claims for due process injuries caused by fabricated evidence. These claims would be in addition to § 1983 Fourth Amendment claims for wrongful pretrial detention. A circuit split has thus emerged regarding what § 1983 claims may be brought by plaintiffs who were placed in pretrial detention because of fabricated evidence. This Comment argues that pretrial detention that is caused by fabricated evidence implicates both the Fourth Amendment and Fourteenth Amendment. Accordingly, injured parties should be entitled to raise claims under § 1983 based on violations of either (or both) of these amendments
Sharing where Bargains are Impossible
Get PDFCooperation sometimes breaks down, and former teammates will disagree about what happens next. For example, when can an employee quit to join a competitor? Courts often resolve disputes by looking at the parties actual or hypothetical bargain. Thus, a court may ask whether there was a non-competition agreement (and whether it was reasonable), or whether the employee is taking a “corporate opportunity” as she departs. These are all-or-nothing determinations by courts; either the bargain, or law, fully allows or fully prohibits the disputed conduct.
This is a suitable approach when fair and efficient bargains are possible. But, this article argues that fair and efficient bargains are often impossible, and explains a better way of resolving disputes in such cases. We consider impossible bargains in numerous areas of law (admiralty, family law, patent law, and more). When assessing disputes in these areas of law, courts often look beyond the bargain, and frequently shy away from all-or-nothing decisions. Instead, courts should review the parties’ collective success (or failure) and split up the gains (or losses) in a way that is intended to credit each person’s contribution and give the right incentives to both parties in multiple time periods – before , during and after their interactions. We argue that this approach deserves serious consideration in employment law, corporate law, and beyond
The Corporate Governance of Public Utilities
Get PDFRate regulated public utilities own and operate one-third of U.S generators and nearly all the transmission and distribution system. These firms receive special regulatory treatment because they are protected from competition and subject to rate caps. In the past decade, they also have been at the center of high-profile corporate scandals. They have bribed regulators to secure subsidies for coal-fired generators and nuclear reactors. They have caused wildfires and coal ash spills that resulted in hundreds of deaths and billions of dollars in liability. Their failure to maintain reliable electric service has contributed to catastrophic blackouts. Perhaps most consequentially, they have emerged as powerful opponents of state and federal climate action.
This Article describes the unique corporate governance challenges public utilities face and argues that these governance challenges contribute to the pervasive inefficiencies and the frequency of corporate misconduct that characterize utility industries. American corporate law provides special protections to shareholders such as the right to elect corporate boards and the requirement that directors and managers owe fiduciary duties to shareholders. The economic justification for these protections is that shareholders are the residual claimants of corporations: because they receive any value a corporation generates beyond what it owes to its fixed claimants, they have the appropriate incentives to pursue value-enhancing investments.
But the theoretical premise that underlies the American system of corporate governance does not apply to public utilities. Rate regulation limits the value shareholders receive when a firm innovates or reduces costs. It therefore converts shareholders into fixed claimants with the same incentives creditors have in non-utility industries. Because ratepayers, not shareholders, receive the residual value the firm generates beyond what it owes to its fixed claimants, standard corporate law theory suggests that public utilities should be run to advance ratepayer and not shareholder interests. The implication is that managers and directors of public utilities should owe fiduciary duties to their ratepayers, that ratepayers should be represented on the corporate boards of public utilities, and that managers of public utilities should receive less deference on business decisions than they do in other industries. As we discuss, however, these reforms are difficult, and perhaps impossible, to implement effectively. That, in turn, highlights the need for strong regulatory oversight and offers additional reasons to be skeptical of the utility model
Antitrust Worker Protections: The Rule of Reason Does Not Allow Counting of Out-of-Market Benefits
Get PDFAnticompetitive conduct toward upstream trading partners may have the effect of benefiting downstream consumers even as the conduct harms the firms’ workers or suppliers. Defendants may attempt to justify their upstream conduct—and may rely on the ancillary restraints doctrine in doing so—on the grounds that the restraints create efficiencies benefitting downstream purchasers, rather than focusing solely on the impact of the restraints on the workers or suppliers in the upstream market. Such balancing of harms against out-of-market benefits achieved by a different group should be rejected by antitrust doctrine generally, and specifically in the case of harms to workers. This type of out-of-market balancing is not supported by either economic analysis or the basic goals of the antitrust laws. Antitrust’s consumer-welfare prescription properly protects the trading partner participants (e.g., workers) in any relevant market who are harmed by anticompetitive restraints. Doctrinal and practical considerations weigh against allowing that protection to be traded against out-of-market benefits flowing to other groups. This proposition flows both ways; putting aside antitrust exemptions, it is similarly inconsistent with antitrust doctrine to permit firms to coordinate in ways that harm downstream purchasers, based on a purported justification that this purchaser harm is offset by the outof-market benefits to the workers. We conclude that in all cases, multimarket balancing that treats out-of-market benefits as cognizable justifications for the restraints on workers or other input suppliers should be rejected. However, since courts may not agree in some limited circumstances such as two-sided platforms, we also briefly discuss how and in what circumstances such balancing might be undertaken. We apply this analysis to a series of real and hypothetical scenarios that raise paradigmatic issues involving these potential conflicting effects as they relate to workers. We also apply our analysis to a likely post-Alston case attacking the NCAA restraints on noneducation payments to student-athletes, in light of the points made in Justice Brett Kavanaugh’s concurrence in Alston
Horizontal Collusion and Parallel Wage Setting in Labor Markets
Get PDFHorizontal collusion among employers to suppress wages has received almost no attention in the academic literature, in contrast with its more familiar cousin, product-market collusion. The similar economic analysis of labor and product markets might suggest that antitrust should regulate labor and product markets in the same way. But product markets and labor markets do not operate identically: people behave differently as employees and as consumers. Unlike consumers who can switch products relatively easily, employees face significant frictions in changing jobs. Other labor market frictions are created by the pay equity norm and downward nominal wage rigidity. These and related factors stabilize collusive arrangements and facilitate tacit coordination in labor markets. The implications for antitrust law are explored