Black Metropolis Research Consortium
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On Firms
Get PDFThis Essay is about firms as a type of economic coordination and about how we think about them in relation to other forms of coordination as well as in relation to competition and markets. A prominent stream of thought about firms—which has both strongly influenced contemporary competition law and, more indirectly, served as a support to the fundamental ideas of neoclassical price theory that guide many areas of law and policy—ultimately explains and justifies the centralization of both decision-making rights and flows of income from economic activity on productive efficiency grounds. The Essay makes two simple points, drawing upon and synthesizing prior contributions where relevant. First, we have very good reasons to doubt this approach as explanation because power perpetuation by incumbent control groups is often a better explanation for such centralization (of coordination rights and income flows) than productive efficiency. Second, we should also be skeptical of the approach as justification because it often either takes as given (or assumes away) contested legal rules that also affect productive efficiency outcomes; because the approach’s conception of productive efficiency is impoverished; and because the nature of competition and markets itself gives us no good reasons to limit the normative bases for our legal choices about economic coordination to productive efficiency alone. Together, these points ought to ultimately change our starting points for evaluating policy across a range of areas of antitrust, corporate, and labor law
Quasi Tripartism: Limits of Co-Regulation and Sectoral Bargaining in the United States
Get PDFDisproportionate employer power is at least partly responsible for the sharp increase in economic inequality in the United States, which threatens the fabric of the Republic. Workplace law reform could provide workers with an institutional source of power that countervails employer power and compresses inequality. Ideas for workplace law reform include modest ones, such as instituting “co-enforcement,” and more ambitious ones, such as “sectoral bargaining.” According to their adherents, both require tripartite arrangements where capital, labor, and government provide inputs on how to regulate work.
But can the United States, with its liberal market economy typically devoid of meaningful tripartism, shift? This Essay describes two recent co-enforcement experiments that have generated some excitement from labor advocates: the Los Angeles County Public Health Councils and the Chicago Office of Labor Standards. It also discusses two purported sectoral bargaining experiments, New York State’s convening of a minimum wage board (New York Board) for fast food and the Seattle Domestic Workers Standards Board (Seattle Board). The cases are offered to evaluate the extent to which tripartism is developing in the United States. The Essay shows that both co-enforcement experiments lack employer participation. While the New York Board had nominal employer, worker, and government participation, it did not provide bargaining authority to the directly affected parties. Only the Seattle Board is tripartite in fact and provides a space for directly affected parties to bargain. Its limitation might be that the tripartite parties are appointed and therefore not necessarily representative of domestic workers and employers generally. The Essay concludes with an evaluation of what these findings suggest for U.S. tripartism
Measuring the Countermajoritarian Nature of Supreme Court Decisions
No full textThe countermajoritarian difficulty is central to constitutional theory. With that in mind, scholars have tested implications of the countermajoritarian difficulty by analyzing whether public opinion influences the Supreme Court, whether the Court is attentive to elected institutions, and whether the Court enacts policy change. The conclusion is that the Court is less countermajoritarian than the theoretical perspective assumes. We move beyond testing implications of the countermajoritarian difficulty by estimating countermajoritarian scores for cases the Court decided between 1946 and 2018. Our results suggests that the Court rarely engages in substantial countermajoritarianism, but a plurality of cases do display it to some degree. We explore this variation and find that the Court is more countermajoritarian when it is more institutionalized and has less ideological diversity. We probe the implications of countermajoritarianism and find that cases that are more countermajoritarian receive more media attention
Book Review: The “Common-Good” Manifesto
Get PDFIn Common Good Constitutionalism, Professor Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally toward the common good.” The book must be taken seriously as an intellectual challenge, particularly to leading theories of originalism.
That said, the challenge fails. The book fails to support its hostility toward originalism, to motivate its surprising claims about outcomes, or even to offer an account of constitutionalism at all. Its chief objections to originalism are unpersuasive and already answered in the literature it cites. The book does highlight important points of history and jurisprudence, of which originalists and others might need to take account; yet those points remain underdeveloped. In the end, the book might be best understood as what Vermeule once called a “constitutional manifesto”: a work of “movement jurisprudence” whose political aims come into conflict with theoretical rigor
Against Political Theory in Constitutional Interpretation
Get PDFJudges and academics have long relied on the work of a small number of Enlightenment political theorists—particularly Locke, Montesquieu, and Blackstone—to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the Framers did not write the Constitution in the image of the philosophy of Montesquieu, Locke, or Blackstone. Instead, they developed a new form of government to meet what they perceived to be the needs of a nascent republic. And third, the Constitution itself departs from the dominant strands of Enlightenment political theory in crucial respects. For example, while some Enlightenment theorists advocated for precisely divided federal powers, the Framers favored a system of procedural checks, not formal separation. Thus, while Enlightenment works can be normatively persuasive or act as a guide to historical meaning, they should be treated as presumptively irrelevant in constitutional interpretation. Unless the party who would invoke an Enlightenment political theorist can produce evidence of consensus or common ground about that theory from an episode of American constitutional debate, the theorist’s prescriptions are no more probative than any other work of normative political theory
Reconstructing Embryos: The Legal Ramifications of iPSC Technology and the Dickey-Wicker Amendment
Get PDFDiscursive Constitutionalism
Get PDF“Constitutionalism” has been contentiously debated at national and international levels. This Article develops the concept of discursive constitutionalism, defined as the construction of constitutionalism through public discourse. It theorizes about four elements (ideas, actors, actions, and spaces) and the constructive logic of discursive constitutionalism. Public constitutionalist discourse can be shaped by the existing relations of political power. At the same time, it can constrain the political monopoly of constitutional thinking, shape the design of institutions to limit political power, and prevent the arbitrary use of political power in practice. This study provides an explanatory account of three models of discursive constitutionalism in East Asia. The protectionist model in Japan refers to the discursive defense of national constitutional commitments to international peace and renouncing war. The reformist model in China denotes the discursive promotion of institutional reforms in line with normative values of constitutionalism. The diffusionist model in Vietnam features the discursive spread of constitutionalist ideas from external international and comparative sources into internal intellectual communities. Discursive constitutionalism can be a useful conceptual tool to understand the quest for constitutionalism through public discourse
Closing a Loophole in Exchange Act Enforcement: A Framework for Assessing the Enforceability of Delaware Forum Selection Bylaws in the Context of Derivative § 14(a) Claims
Get PDFOver the past decade, a growing number of Delaware corporations have adopted forum selection bylaws. These bylaws often require that all derivative claims against a company’s officers or directors be resolved in Delaware state courts. But what happens when a shareholder brings a derivative claim that Delaware courts do not have jurisdiction to adjudicate?
This issue arises when Delaware forum selection bylaws are applied to derivative claims arising under § 14(a) of the Securities and Exchange Act of 1934, because the Exchange Act instructs that only federal courts may resolve such claims. In this context, Delaware corporations may seek to exploit forum selection bylaws as a jurisdictional loophole to bar shareholders from pursuing derivative Exchange Act claims in any court. In effect, the bylaws enable defendant corporations to designate a substitute referee—Delaware courts—that they already know is disqualified from adjudicating Exchange Act claims, which inevitably forfeits the game in their favor.
Circuits have split on whether to enforce Delaware forum selection bylaws when they are applied to derivative § 14(a) claims. This Comment proposes an alternative approach to resolve the circuit split. The proposed approach revives the historically underutilized “unreasonableness exception” to enforceability, which the Supreme Court established in M/S Bremen v. Zapata Off-Shore Co. This Comment contends that Bremen’s unreasonableness exception must be understood as a context-specific inquiry. It should be applied liberally to forum selection clauses contained in corporate bylaws, and as applied to derivative Exchange Act claims. Under this proposed approach, Delaware forum selection bylaws are unenforceable as applied to derivative § 14(a) claims
Cross-Border Influencers: Democracy and Externalities
Get PDFThe United States1does not allow foreigners to influence U.S. elections by giving money to political parties or candidates, but many other countries do allow cross-border influencing. Indeed, the variety of policies among countries is remarkable.2 Some countries, like the United States, that forbid financial contributions from outside the country, do permit cross-border contributions across domestic borders, such as those of states and cities. Meanwhile, Canadians cannot contribute to the campaigns of U.S. political candidates, and cannot even (lawfully) influence the American political process by purchasing campaign t-shirts or bumper stickers. This prohibition is in place even though, like constituents of neighboring jurisdictions within the U.S., Canadians are greatly affected by U.S. policies