Black Metropolis Research Consortium
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Bankruptcy & Bailouts, Subsidies & Stimulus: The Government Toolset for Responding to Market Distress
Get PDFEnjoined and Incarcerated: Complications for Incarcerated People Seeking Economic Relief under the CARES Act
Get PDFCOVID-19: Isolating the Problems in Privacy Protection for Individuals with Substance Use Disorder
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Contractual Evolution
Get PDFConventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each of these factors contributes to the underlying evolutionary process, and their relative prominence bears directly on the speed, direction, and desirability of how contractual innovations diffuse. Using a formal model of bargaining in a sequence of similar transactions, we demonstrate how different evolutionary patterns can manifest over time, in both desirable and undesirable directions. We then take these insights to a real-world data set of over two thousand merger agreements negotiated over the last two decades, tracking the adoption of several contractual clauses, including pandemic-related terms, #MeToo provisions, Committee on Foreign Investment in the United States (CFIUS) conditions, and reverse termination fees. Our analysis suggests that there is not a one-size-fits all paradigm for contractual evolution. Rather, the constituent forces affecting term evolution manifest in varying strengths across differing circumstances. We highlight several constructive applications of our framework, including how the study of contract negotiation unfolds when price cannot easily be adjusted and how to incorporate other forms of cognitive and behavioral biases into our general framework
In Need of Better Material: A New Approach to Implementation Challenges Under the IDEA
Get PDFThe Individuals with Disabilities Education Act (IDEA) provides a substantive guarantee to a “free appropriate public education” (FAPE) to students with disabilities. The education is to be provided “in conformity with” an “individualized education program” (IEP): an educational plan for the student that is created through a statutorily defined process. Scholars and courts have focused tremendous attention on the level of educational quality that an IEP must offer to meet the IDEA’s requirements. But the creation of an adequate plan is, of course, not the end of the story; the school district then has to implement the plan. This leaves an important question: How far may a school district deviate from the services specified in an IEP and remain in compliance with the IDEA? In other words, how much of the adequate written plan is the student in fact entitled to receive? There are two existing approaches to failure-to-implement cases: the materiality approach and the per se test.
This Comment argues that both approaches are flawed. The materiality standard circumvents the procedural protections of the IDEA, provides little predictability to parents and schools, offers little guidance to courts, forces judges away from areas of institutional competence, and incentivizes school districts to overpromise and underdeliver. The per se rule, on the other hand, is insufficiently flexible given its practical and statutory constraints, would disincentivize ambition and innovation in IEPs, and is unlikely to be adopted by courts.
This Comment proposes a new approach—a burden-shifting test that accounts for both (1) unforeseen or unavoidable circumstances and (2) the proportionality of the school’s response to those circumstances. This approach integrates the benefits of both the materiality inquiry and the per se rule. It better honors several important aspects of the statutory scheme, better aligns with the statutory text, and accords with Supreme Court precedent. It also encourages IEP drafters to craft realistic plans that nonetheless aspire to deliver the best results for students
Managing the Police Emergency
Get PDFThere is a policing emergency in the United States. Police across the country cause massive, widespread, and unpredictable physical harm—killings, beatings; psychological harm—negative stress-related birth and educational outcomes, general worsened mental health; and sociological harm—advancing the racial, gender, and economic hierarchies that undermine our work towards an equal society. Even after the largest protest movement in U.S. history in summer 2020, the traditional political process has failed to make significant inroads against this emergency.
This Article begins to explore in depth the legal ramifications of recognizing the policing emergency. It suggests that among the most important ramifications is unlocking a previously unappreciated tool for reform: emergency managers.
As defined here, emergency managers are individuals or small groups empowered by state or local governments to exercise the powers of the government in response to an emergency when traditional political systems cannot or will not respond adequately or quickly enough. The current state of policing constitutes just such an emergency demanding immediate action.
Emergency managers—thus far limited to the fiscal and educational realms— can be a powerful tool for addressing this policing emergency. To achieve their goals, emergency managers have been imbued with a range of powers—from providing oversight to usurping all of the powers of local elected officials. The broad emergency powers and unitary nature of this position subvert the piecemeal nature of both local politics generally and of the police reform project specifically and can allow the emergency manager to break through procedural and political barriers that have previously served to uphold the status quo
The Returns to Medical Inventions
Get PDFMedical innovation is perhaps the most important driver of health care spending and quality. Economists have studied pharmaceutical innovation for decades, and their findings have contributed to the debate about optimal Food and Drug Administration policy. Despite their importance to health care spending and value, there is no similar literature to inform an optimal regulation system for novel and valuable medical procedures. In this paper, we begin to fill this gap by documenting the incentives for developing medical procedures and the process through which they are approved for use. Drawing on the work of Sam Peltzman and George Stigler, we argue that the largely ad hoc system of rewards and review for medical procedures may explain the slow pace of innovation, particularly when compared with drug innovation
Advertising Costs and Product Prices
Get PDFHow does a change in the cost of advertising affect product prices? On the one hand, advertising increases costs, but on the other hand, advertising is expected to generate more sales, so the impact on product prices and profits depends on the magnitude of these two effects. In this article I describe some recent trends in online and offline advertising and build a simple model of an online merchant. In this model when advertising becomes more costly, the merchant cuts back on ad spending, but it does not necessarily change product prices
“All I Want Is To Be Free”
Get PDFStatelessness — the condition of lacking citizenship or nationality in any country of the world — affects more than 10 million people globally. In the United States, conservative estimates put the number of stateless persons at over 200,000. Given that the U.S. provides citizenship to people born on the territory, nearly all stateless persons within the U.S. were born elsewhere. However, the U.S. immigration framework is silent with respect to statelessness, in effect leaving stateless people unrecognized, unprotected and invisible before the law.
As persons relegated to a life without legal status, stateless people in the United States are subject to being detained by immigration officials. Because they do not have a country of nationality where they can be deported to, stateless detainees have remained in immigration detention for months or years without any prospect of release, in violation of the U.S. Constitution and international human rights law. In some cases, after undergoing prolonged detention, stateless detainees have been forcibly deported to “third countries” (countries where they are not citizens), thereby perpetuating their condition of legal limbo and further depriving them of protection as required by international law.
This report by the Global Human Rights Clinic (GHRC) of the University of Chicago Law School, in partnership with the non-profit organization United Stateless (USL), documents how the U.S. government violates international law by subjecting stateless persons to prolonged, repeated and arbitrary detention. Drawing from interviews with impacted stateless individuals and experts on statelessness, the report sets out specific recommendations for the U.S. government to bring its laws and policies in compliance with international human rights law