Black Metropolis Research Consortium
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The Effect of Constitutional Gender Equality Clauses
No full textIn the past decades, clauses guaranteeing gender equality have become a common feature of national constitutions. During that time, de facto gender equality also noticeably improved globally. But it is not clear whether the two trends are related. We explore the relationship between constitutional gender equality clauses and de facto gender equality using three research methods: cross-country regressions exploring the relationship between constitutional gender protections and de facto gender equality, a natural experiment exploring the forced inclusion of gender equality provisions in Japan’s constitution, and a survey experiment conducted in Japan that tests the effect of information about legal commitments to gender equality on support for reforms. Across the three methods, we find no evidence that constitutional gender equality clauses improve de facto gender equality. However, we find some preliminary evidence that constitutional clauses guaranteeing maternity leave and protecting motherhood may be associated with improved gender equality
Migrant-Family Separation and Higher-Order Laws’ Diverging Normative Force
No full textA growing experimental literature suggests that international law has a larger impact on public opinion than constitutional law. Because the former US policy of separating migrant families at the border arguably runs afoul of both the Constitution and international law, it provides an unusual opportunity to simultaneously explore the normative pull of these norms experimentally. We fielded national surveys in 2018 and 2020, asking respondents how much they supported the policy. We find that telling people that the policy is unconstitutional increases support for the policy, but only when the issue is receiving heavy media coverage, and that international law has no comparable effect on public opinion. We attempt to explain these seemingly counterintuitive results in two ways. First, in studies that explore the impact of constitutional law, respondents may be unsuccessfully treated. Second, constitutional law treatments can trigger a backlash effect through defensive processing of information about constitutionality
Regulatory Diffusion
Get PDFRegulatory diffusion occurs when an agency adopts a substantially similar rule to that of another agency. Indeed, regulatory texts proliferate just like other forms of law like constitutions, statutes, and contracts do. While this insight has been explored across countries, this dynamic also occurs closer to home: American administrative agencies regularly borrow language from one another. By our measure, in recent years, agencies reused one out of every ten paragraphs of the Code of Federal Regulations from another rulemaking. These insights are timely given a recent Supreme Court decision calling for judges to engage in less deferential regulatory interpretation. As a result, there is newfound significance as to questions of how legislative rules are written and why.
This Article explores the descriptive and normative implications of regulatory diffusion. The empirical analysis reveals a fairly steady rate of text reuse, with a notable increase during the Trump Administration – perhaps the result of well-documented staffing problems and vacancies. More generally, both the number of borrowing and lending agencies has increased, with a relatively small number of agencies borrowing text from an increasingly larger group. In other words, regulatory text has diffused from more agencies. This behavior appears to vary by whether the agency is executive or independent in nature.
These findings raise important questions about whether such diffusion is desirable, as well as how to interpret the regulations that result. To assess the tradeoffs, we propose that rulewriters should be required to explain why they are emulating other regulatory texts to allow executive branch oversight over the practice. We also argue in favor of the in pari materia canon—the idea that similar regulations should be interpreted similarly by judges—and propose ways for judges to decide when and how to apply it
Hidden History of Securities Damages
Get PDFApproaches to calculating fraud on the market 10b-5 damages have evolved substantially from the 1970s to the present. In this Essay I discuss the various approaches used over this span of time, including the rise of the event study approach
Pills in a World of Activism and ESG
Get PDFEasterbrook and Fischel’s The Economic Structure of Corporate Law advances their now famous passivity thesis, which posits that managers should remain passive in the face of an unsolicited tender offer for the company’s shares. Consistent with the broader Chicago-school economic belief, Easterbrook and Fischel argue that markets are generally efficient, and therefore restrictions on the market (like poison pills) are bad. In doing so, Easterbrook and Fischel also consider and reject externalities that might cause the market for corporate control to not function well. Thirty years have passed since Easterbrook and Fischel’s seminal work and the world has changed in meaningful ways, with the rise of stakeholder governance, ESG, and stockholder activism. We therefore propose some ground rules that would govern pills in today’s corporate world. These rules, we believe, would effectively balance the board’s interest in considering a broad set of constituencies and the challenges of facing increasingly sophisticated and coordinated shareholder activists against the rights of all shareholders, including activists, to solicit support for their ideas or attempt to gain control of the company
Untangling the Prison Mailbox Rules
Get PDFUnlike typical litigants, pro se prisoners are unable to deliver filings to court or to have an attorney do so on their behalf. Such prisoners are forced to rely on their prisons’ mailing systems to file documents, which often results in those documents reaching the court after the applicable deadlines. Accordingly, the Supreme Court created a “prison mailbox rule” in Houston v. Lack, under which some filings by prisoners are considered filed when they are given to prison officials for mailing, rather than when they reach the court.
Defining the exact reach of that prison mailbox rule has created considerable discord among lower courts, especially in light of the Court’s subsequent holding in Fex v. Michigan and its adoption of formal procedural rules governing the timing of prisoners’ court filings. This Comment tackles three different issues left unresolved by the Supreme Court. Focusing particularly on the Court’s instructions about when courts should apply a prison mailbox rule, this Comment provides a solution to each of those three issues and then combines those answers into a simple, easy-to-apply framework. The proposed framework provides a step-by-step process for determining whether a prison mailbox rule applies to a particular type of filing by a particular litigant, bringing some much-needed clarity and uniformity to the debate surrounding Houston
The Public Right to Education
Get PDFPublic education is “the most important function of state and local government” and yet not a “fundamental right or liberty.” This Article engages one of constitutional law’s most intractable problems by introducing “the public right to education” as a doctrinal pathway to a constitutional right to education process in three steps. First, it identifies that the otherwise right-to-education foreclosing case, San Antonio Independent School District v. Rodriguez, only contemplated education as a fundamental right or liberty interest. Second, by identifying public education as a due process–protected property interest, this Article presents a viable pathway for circumventing Rodriguez. Third, mindful of myriad judicial competency concerns and consistent with the Court’s recent call to reimagine a “twenty-first-century” due process, it reintroduces the “public right” to understand how schoolchildren might appeal to substantive due process to protect their rights to state-created interests. This ambitious yet modest approach covers securing schoolchildren’s rights to both discrete education tangibles and the integral educational opportunity that the states have assumed the affirmative duty to provide. This approach also has promise for improving individual rights to quality public schooling
Civil Procedure as the Regulation of Externalities: Toward a New Theory of Civil Litigation
Get PDFCivil procedure serves a multitude of goals, from regulating the cost of fact gathering, to dictating the rules of advocacy in court, to promoting public participation in trials. To what extent can procedural design serve them all, or must rules sacrifice some interests to serve others? In this paper, we are the first to introduce a theory of procedure design that answers this question. We build upon the fundamental insight that the goals of civil procedure, as varied as they are, all occupy a common conceptual space—each addresses an externality, positive or negative, that litigation creates. This insight allows us to tie together distinct strands of scholarship on procedural design, develop a taxonomy of externalities that civil procedure addresses, and propose (sometimes radical) reforms that would allow procedure to serve more of its goals at once.
First, we show that the literature on procedural design has unraveled into three distinct strands. The first strand centers on the interest in reducing cost and delay in litigation. The second strand centers on the interests in limiting gamesmanship between the parties and improving court accuracy in decisionmaking. The third strand centers on the many related interests in the positive effects of procedure on society such as the development of legal precedent, deterring unwanted (primary) behavior and so on.
Second, we tie together these strands of the literature by observing that each strand is focused on how procedure can address one type of externality. The first strand of the literature addresses what we call system externalities—the effects of actions on other cases in the same court or court system. The second strand addresses what we call strategic externalities—the effects of a party’s actions on opposing parties in the same case. The third strand implicate external effects on society as a whole, which we call public goods externalities.
Third and most ambitiously, we show that these three types of externalities give us a three-dimensional framework for procedural design. In this framework, we see how different aspects of procedure implicate one externality, or another, or two or three externalities at once. This in turn points the way toward opportunities to introduce procedural reforms tailored to types of externalities at issue. Our solutions range from surprising forms of judicial command-and-control (for example, the Supreme Court prohibiting parties from settling), to fees and subsidies (for example, a fund for judicially appointed neutral experts in important cases), to radical market-based reforms (for example, a cap-and-trade market in word limits for amicus briefs in the Supreme Court)
Aspirational Rules
No full textA long-standing puzzle in comparative constitutional law revolves around the negative correlation between the number of constitutional rights incorporated in constitutions and a country’s human rights situation. Is it only a correlation, driven by other sociological or historical factors? Is it that committing to more de jure rights hurts the protection of de facto human rights? Or is it that countries with worse human rights records are more likely to amend their constitutions to include more rights? This article discusses an experiment that examines the existence and direction of a causal effect between setting overly ambitious goals and achieving outcomes and the potential mechanisms underlying it. The main finding is that setting overly ambitious goals may not only be counterproductive in the domains in which such goals are set but may also have a negative spillover effect to other domains
Nonparty Interests in Contract Law
Get PDFContract law has one overarching goal: to advance the legitimate interests of the contracting parties. For the most part, scholars, judges, and parties embrace this party primacy norm, recognizing only a few exceptions, such as mandatory rules that bar enforcement of agreements that harm others. This Article describes a distinct species of previously unnoticed contract law rules that advance nonparty interests, which it calls “nonparty defaults.
In doing so, this Article makes three contributions to the contract law literature. First, it identifies nonparty defaults as a judicial technique. It shows how courts deviate from the party primary norm with surprising frequency through a variety of default rules, interpretation practices, and remedies. These defaults are meant to protect nonparties’ interests and benefit society at large. Second, it develops a normative account as to when common law courts adjudicating contract disputes are a suitable forum to identify and advance nonparty interests. Finally, it documents and explains the surprising durability of nonparty defaults, which the parties could, but rarely do, disclaim