Black Metropolis Research Consortium
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Toward a “Tender Offer” Market for Labor Representation
Get PDFAmerican workers are not sharing in the robust growth of the economy. Traditionally, large numbers of workers sought to improve their lot by bargaining collectively through unions. But this strategy does not seem to be working for enough workers. Despite some recent renewed activity, private-sector unionization rates remain below ten percent and the unions that are in place have struggled to perform well, either in avoiding scandals or in delivering significant returns to workers in the form of job security or wage growth. This Article pro-poses a radical fix to the problem of declining unions. Drawing inspiration from corporate governance and its success in delivering financial returns to shareholders, the Article proposes allowing pro-worker investors to offer workers cash up-front for the right to represent them. If an investor succeeds in persuading a majority of workers in a workplace, the investor would be certified as the exclusive bargaining representative for the workers, and would be entitled to a percentage of any wage gains it obtained for the workers through collective bargaining. The resulting market for union representation would deliver cash to workers upfront, allow investors to demonstrate their capacity for delivering concrete results to workers, and attract resources to the cause of improving workers’ conditions of employment. This new methodological approach also provides a lens for a constructive reevaluation of the objectives and tactics of American labor law
What Can We Learn From the Federal Approach to The Prosecution of Juvenile Crime?
Get PDFIn a context of widespread concern over our bloated criminal justice system and growing awareness of the harm done to individuals and society by our excessive incarceration policies, any piece of the system that has remained infinitesimally small deserves some attention. In her article, The Federal Juvenile System, 1 Esther Hong highlights the success of the largely overlooked federal juvenile delinquency system in staying extremely small and suggests this system offers lessons for its bloated state and federal counterparts. Although I agree that the federal government’s prosecution of minors under the Federal Juvenile Delinquency Act (“FJDA”) offers some valuable lessons in how to design a system that is intended to be extremely small,2 I am not convinced that those lessons translate readily into the broader systems-wide transformation of the carceral state that Hong suggests. Hong nicely demonstrates the usefulness of including internal and external checks on prosecutorial action for imposing constraints. She does not, however, account for the important differences in systems that motivate (or fail to motivate) the imposition of those constraints. Moreover, whether small numbers can be celebrated depends on where the unnumbered offenders go and how they are treated there. A process designed to defer, as the federal process for handling juvenile delinquency offenses is, is only as good at reducing the state’s carceral reach as the system to which it defers.
Hong sets out what we can think of as a two-by-two grid of criminal systems sorted into state and federal rows and adult and juvenile columns. She powerfully notes that where three out of the four quadrants of the grid—federal adult, state adult, and state juvenile systems—have all manifested deep problems associated with excessive exercises of prosecutorial power and punitiveness (I’ll call this the excessive punitiveness problem),3 the fourth quadrant—the federal juvenile quadrant—has avoided these problems to a striking extent. Moreover, she notes that, unlike the federal adult system that has been sharply criticized for its disruptive impact on its state adult counterparts (I’ll call this the federalism problem), the federal juvenile system has avoided this disruptive effect on the state juvenile systems.4 These distinctions are true and important. But a fuller account of how and why the federal prosecution of minors has avoided these problems is necessary to properly consider the lessons that can be drawn from this success. After setting out the history and implementation of the state and federal approaches to minor offending with an emphasis on aspects most relevant to my analysis, I will turn to a consideration of the lessons Hong derives from the federal government’s approach to juvenile delinquency. In closing, I will suggest, briefly, that the real lessons that can teach us how to reform our criminal legal system as a whole come not from the federal juvenile quadrant, but from the state juvenile quadrant, to which the federal system is designed to defer
Police agencies on Facebook overreport on Black suspects
Get PDFA large and growing share of the American public turns to Facebook for news. On this platform, reports about crime increasingly come directly from law enforcement agencies, raising questions about content curation. We gathered all posts from almost 14,000 Facebook pages maintained by US law enforcement agencies, focusing on reporting about crime and race. We found that Facebook users are exposed to posts that overrepresent Black suspects by 25 percentage points relative to local arrest rates. This overexposure occurs across crime types and geographic regions and increases with the proportion of both Republican voters and non-Black residents. Widespread exposure to overreporting risks reinforcing racial stereotypes about crime and exacerbating punitive preferences among the polity more generally
Regulatory Oscillation
Get PDFIn the wake of the Reagan deregulation, America experienced twenty- eight years of regulatory progression, with precious little retrogression. That trend came to a crashing halt during the four years of Donald Trump\u27s presidency. As a candidate, Trump campaigned on a series of pledges to reverse and undo as much of the work done by Barack Obama as possible. The Trump EPA was particularly active in this effort. In addition to reversing the Clean Power Plan, under Trump the EPA repealed or substantially weakened a number of other important Obama-era regulations, including a substantial increase in fuel economy standards and strict curbs on mercury and other emissions from coal-fired power plants. These regulations would have affected air quality and pollution more generally, but they also would have had a substantial effect on greenhouse gas emissions and thus on climate change.
President Biden has promised to reinstate or even strengthen most if not all of the Obama-era regulatory initiatives that Trump eliminated. The EPA and other agencies are already at work on these new regulations. But Biden does not represent the end of history. Barring some seismic shift in political tectonics, some day in the future a Republican will again be elected president on a platform of ignoring climate change, protecting the fossil fuel industries, and reversing the regulatory progress of his or her Democratic predecessors. That president will likely undertake a program of deregulation, much as Trump did. Subsequently, a Democrat will again someday be elected president. That president will likely undertake a program of re-regulation, much has Biden has promised to do. From administration to administration, across terms, regulations will blink into and out of existence. They will become more and less stringent on four, eight, or twelve-year cycles. We are now living in an era of regulatory oscillation.
At its core, the possibility of regulatory oscillation is driven by deference to agencies under the framework established in Chevron v. NRDC. Chevron deference, as it is known, is canonically viewed as pro-regulatory, in that it provides agencies with interpretive freedom to implement policy as they see fit. Under Trump, however, agencies learned to use Chevron to create deregulatory flexibility. Conversely, the strongest bulwark against regulatory flexibility may well be cost-benefit analysis, a decision procedure most frequently castigated as anti-regulatory. In an era of regulatory oscillation, these roles are reversed: Chevron and its model of deference open the door for regulatory oscillation; cost-benefit analysis and its model of constraint could shut it
Statistical Discrimination and the Law
No full textIn some legal contexts, decision-making is guided by algorithms that rely on statistical generalizations about groups to tell us what to believe about individuals. Sometimes, these algorithms incorporate characteristics like race, gender, and socioeconomic status, raising particularly acute equity concerns. The NFL’s “race norming” scandal (in which race-based assumptions about intelligence made it harder for Black players to obtain settlement payouts for cognitive injuries) is a recent prominent example, and the NFL abandoned these algorithms under pressure. But similar practices pervade other important legal settings, including criminal sentencing and calculati
In some legal contexts, decision-making is guided by algorithms that rely on statistical generalizations about groups to tell us what to believe about individuals. Sometimes, these algorithms incorporate characteristics like race, gender, and socioeconomic status, raising particularly acute equity concerns. The NFL’s “race norming” scandal (in which race-based assumptions about intelligence made it harder for Black players to obtain settlement payouts for cognitive injuries) is a recent prominent example, and the NFL abandoned these algorithms under pressure. But similar practices pervade other important legal settings, including criminal sentencing and calculation of civil damages—not to mention many non-legal settings that the law has something to say about, such as medical diagnosis. So what should we think about such practices? This lecture will explore and critique the deep inconsistencies in the law’s treatment of them, and place this discussion in the context of influential economic thinking about the differences between “statistical discrimination,” “taste-based discrimination,” and “stereotyping.”
on of civil damages—not to mention many non-legal settings that the law has something to say about, such as medical diagnosis. So what should we think about such practices? This lecture will explore and critique the deep inconsistencies in the law’s treatment of them, and place this discussion in the context of influential economic thinking about the differences between “statistical discrimination,” “taste-based discrimination,” and “stereotyping.
Stark Choices for Corporate Reform
Get PDFFor decades, corporate law scholars insisted on a simple division of responsibilities. Corporations were told to focus exclusively on maximizing financial returns to shareholders while the government tended to all other concerns by adopting new regulations. As reformers challenged this orthodoxy by urging corporations to take action on pressing social problems, defenders of the status quo have responded by suggesting that these efforts could be dangerous. In their view, internal corporate governance reforms could interfere with the adoption of external governmental regulations that would be more effective. The hypothesis that reformers face a stark choice between pursuing internal corporate changes and pursuing new external regulations is playing an increasingly important role in the corporate law literature, but it has not been subjected to meaningful analysis.
This Article seeks to fill that gap. After isolating the stark choice hypothesis, the Article unpacks and challenges the assumptions that drive it. There is no clear constraint that forces a choice between internal and external reforms, and there are good reasons to believe that an internal strategy is more likely to generate valuable change. Internal reforms can also lay the groundwork for external reforms, as corporations cease to resist or even actively support new regulations. Analyzing these dynamics can yield new insights into efforts to improve corporate outcomes on issues like racial justice and climate change
Scrambling the New Sanitationist Synthesis: Civil Liberties and Public Health in the Age of COVID-19
Get PDFGetting Down to Brass Tax: Why Courts Should Use Equitable Tolling to Help Taxpayer-Petitioners Impacted by COVID-19
Get PDFProtecting Mixed-Status Families: Equal Protection Analysis of the Dual Social Security Number Requirement
Get PDFNeighborhood Inequality and Violence in Chicago, 1965–2020
Get PDFThis Essay analyzes trends in violence from a spatial perspective, focusing on how changes in the murder rate are experienced by communities and groups of residents within the city of Chicago. The Essay argues that a spatial perspective is essential to understanding the causes and consequences of violence in the United States and begins by describing the social policies and theoretical mechanisms that explain the connection between concentrated disadvantage and violent crime.
The analysis expands on a long tradition of research in Chicago, and it studies the distribution of violence in the city’s neighborhoods from 1965 to 2020. It additionally analyzes how the concentration of violence is overlaid with police violence and incarceration, creating areas of compounded disadvantage. Finally, it com-pares the recent trends of violence in Chicago with trends across the hundred largest cities in the United States.
This Essay concludes that addressing the challenge of extreme, persistent segregation by race, ethnicity, and income across Chicago’s neighborhoods is necessary for producing a sustained reduction both in the city’s overall level of violence and in the disparities in the levels of violence faced by different neighborhoods