Black Metropolis Research Consortium
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Conflict of Laws? Tensions Between Antitrust and Labor Law
Get PDFNot long ago, economists denied the existence of monopsony in labor markets. Today, scholars are talking about using antitrust law to counter employer wagesetting power. While concerns about inequality, stagnant wages, and excessive firm power are certainly to be welcomed, this sudden about-face in theory, evidence, and policy runs the risk of overlooking some important concerns. The purpose of this Essay is to address these concerns and, more critically, to discuss some tensions between antitrust and labor law, a more traditional method for regulating labor markets. Part I addresses a question raised in the very recent literature, about why antitrust has not been a traditional tool of labor market regulation. Part II addresses some drawbacks in the social objectives of antitrust regulation, namely, the so-called consumer welfare standard or, as proposed for the labor market, the “worker welfare” standard, and suggests an alternative standard. Finally, Part III asks whether antitrust is an appropriate response to labor market monopsony. That Part shows that there are some significant tensions between antitrust and labor law and, given those tensions, explains why more traditional methods of wage regulation, collective bargaining, and even minimum wage legislation offer some distinct advantages
Torts, Taxes, and Trading
No full textCap and trade systems are a prominent tool for controlling pollution, most importantly the CO2 pollution that causes climate change. Why would a nation or region choose to use a cap and trade system instead of other tools? And if cap and trade systems are appropriate for addressing climate change, where else might they be used? This talk examined these questions, looking the similarities and differences between trading systems, taxes, and torts for controlling harm-causing behavior. It then turned to how trading can be used as a regulatory tool in a wide variety of contexts, as well as examining the many problems with using trading systems
A New Theory of Impossibility, Impracticability, and Frustration
No full textContract law offers three closely related excuse doctrines: impossibility, commercial impracticability, and frustration of purpose. These doctrines, which allow courts to release parties from their contractual obligations under extreme and unforeseeable circumstances, were central to contract disputes in the aftermath of the COVID-19 pandemic. Yet despite their importance, and despite decades of scholarly attention, these doctrines remain a puzzle, widely considered difficult to explain and justify. Existing economic theory sees contractual excuse doctrines as a risk-allocation mechanism; although highly influential, this standard theory leaves many questions unanswered. We offer a simple economic model explaining contractual excuse doctrines by focusing on avoidance investments, that is, investments by contractual parties designed to escape their obligations and wriggle their way out of their contracts. We show that the proposed model offers a straightforward explanation for contractual excuse doctrines, illustrating their underlying logic and accounting for the key patterns observed in courts’ decisions
Applying Derivative United Nations Immunity to Humanitarian NGOs
Get PDFUnited Nations (U.N.) privileges and immunities, enshrined in the Convention on Privileges and Immunities, protect U.N. personnel from legal proceedings and facilitate U.N. missions in volatile contexts. Today, non-governmental organizations (NGOs) are essential providers of emergency humanitarian assistance in some of the most dangerous states. Even though some NGOs work under U.N. funding agreements, they lack the protective immunities of the U.N. This Comment assesses the bases for U.N. immunity and the similar concept of derivative sovereign immunity, whereby sovereign governments extend their immunity to quasigovernment entities and private contractors. It argues that derivative immunity from states is based on a principal-agent relationship and that this relationship may be found in some U.N.- NGO partnerships. This provides a legal basis for states that recognize derivative immunity to grant NGOs immunity for actions taken on projects under U.N. funding. Legal precedent for extending U.N. immunity to U.S. contractors also exists in the United States. A second route to NGO immunity is through the U.N. This Comment shows that the U.N. contemplates derivative immunity by extending it to specific types of U.N. employees through the Convention on Privileges and Immunities and to U.N. contractors broadly through host country agreements, again based on a principal-agent relationship. This bolsters the legal argument for states to grant a limited form of derivative U.N. immunity to humanitarian NGOs to protect them from political bias while preserving their accountability to vulnerable populations
Permitting Prohibitions
No full textWe propose a model in which the probability that courts will enforce a statute is endogenous to the statute. We find, first, that the enactment of legislation prohibiting something might increase the probability that courts will allow related acts that are not expressly forbidden. We call that a permitting prohibition and discuss examples that are consistent with the model. Second, we find that dispersion of courts’ decisions might be greater with legislation that commands little deference from courts than with legislation that commands none. Thus, within a certain range, improvement of legislation might trade off with courts’ predictability
Be Careful What You Wish For
Get PDF[A]ny change in sentencing practices is likely to be an improvement. Judge Marvin Frankel in 1973 1
Fifty years ago, Marvin E. Frankel published an elegant, timely, and extraordinarily influential book, Criminal Sentences: Law Without Order. Four years after this book called for the appellate review of sentences and for greatly limiting the discretion of both sentencing judges and parole boards, California became the first state to limit sharply judicial sentencing discretion and abolish parole.2
Twenty other states joined the reform movement before Congress embraced the move from individualized to wholesale sentencing in 1984.3 The Sentencing Reform Act of that year4 abolished parole, created the United States Sentencing Commission, and directed this body to create mandatory sentencing guidelines5 in which “the maximum of the range established for [every term of imprisonment] shall not exceed the minimum . . . by more than the greater of 25 percent or six months.”6 Judge Frankel wasn’t alone in urging a major restructuring of American sentencing,7 but he merited the title Senator Ted Kennedy bestowed on him: the “father of sentencing reform.”8
Frankel was as wise and generous a friend as I’ve had9 —a superb role model for me and many others.10 But I was skeptical of his proposals 50 years ago, and I haven’t changed my mind
The Capital Market Effects of Introducing Private Rights of Action in Securities Regulation: Evidence from the United Kingdom
Get PDFSecurities class actions are among the most controversial topics in the corporate and securities law literature, but despite these actions’ significance, little is known about the impact of their introduction into the legal system. This paper contributes to filling this gap by examining the capital market effects of the adoption of private rights of action (PRAs) in the United Kingdom—a jurisdiction that provides a unique empirical setting for the analysis. The results indicate that the introduction of the rights was associated with enhanced market liquidity and value. Although this finding is most directly relevant to the cost-benefit analysis of private litigation in the United Kingdom, it also suggests that eliminating PRAs in jurisdictions that have adopted them (a reform that has been proposed in the United States) may lead to lower liquidity and market value
How to Fix DOJ Privilege Teams
Get PDFThe federal government frequently executes searches and seizures in the course of criminal investigations. Many of the premises searched contain materials protected by privileges, placing them outside the reach of the Department of Justice. However, again and again those materials are swept up, potentially landing in the hands of government attorneys who are not permitted to review them—placing defendants’ Sixth Amendment right to effective assistance of counsel at risk of being violated. To rectify this risk, the DOJ employs “privilege teams” to filter through seized materials, removing those that are protected by privilege, before handing off the remaining materials to the prosecution team. This process is great in theory, but heavily flawed in practice. The Justice Manual fails to require an adequate number of safeguards, resulting in recurrent mistakes and rampant inconsistencies across jurisdictions. The failure of privilege teams to provide accurate, trustworthy determinations has undermined trust in DOJ prosecutions and places the entire practice in jeopardy. This Comment will analyze the shortcomings of privilege teams and propose reforms to DOJ procedures that have the potential to save the practice and restore confidence in the DOJ’s ability to protect privilege
Losing Leverage: Employee Replaceability and Labor Market Power
Get PDFWorkers’ labor market power matters enormously to their lives at work and beyond. And most workers have too little of it. This Essay highlights one underappreciated set of factors in the decline of workers’ labor market power and explores policy levers that might help to rebalance the bargaining field. This Essay begins with the fairly self-evident observation that workers’ labor market power is a product in part of the ease with which employers can replace employees. That points to the importance of several trends in the organization and technology of work—including both fissuring and automation—that make it easier for private sector employers to replace employees either with other workers or with machines. The central argument here is that the proliferation of employee-replacement techniques helps to explain workers’ shrinking labor market power. That leads to the question of what, if anything, to do about it. The idea of rebalancing bargaining power through regulation (as opposed to redistributing income through tax-and-transfer schemes) is controversial among economists; but it has long been central to the law of work. This Essay proceeds to describe how current U.S labor and employment law does and doesn’t constrain firms’ employee-replacement options. Finally, it considers some alternative policy options for rebalancing bargaining power by constraining employee replacement—chiefly, job security protections and institutions of codetermination, including works councils—along with some empirical evidence of their likely economic effects