Black Metropolis Research Consortium
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Duplicative Taxation among the States: A Problem Not Worth Solving?
Get PDFRecent legal and economic changes not to mention the rise in telecommuting caused by COVID have raised the salience of a lon-simmering fact about the operation of state and local income tax systems: some multistate employers and employees pay a combined income tax liability that is higher than the tax they would have borne had they operated in just one jurisdiction. Seemingly beyond the reach of the courts to correct, there have been persistent calls for congressional action to eliminate or reduce this duplicative taxation. This Article suggests that the alleged problem may be both less of a problem, and more resistant to a solution, than is commonly understood
The Epistemology of the Internet and the Regulation of Speech in America
Get PDFThe Internet is the epistemological crisis of the 21st century: it has fundamentally altered the social epistemology of societies with relative freedom to access it. Most of what we think we know about the world is due to reliance on epistemic authorities, individuals, or institutions that tell us what we ought to believe about Newtonian mechanics, evolution by natural selection, climate change, resurrection from the dead, or the Holocaust. The most practically fruitful epistemic norm of modernity, empiricism, demands that knowledge be grounded in sensory experience, but almost no one who believes in evolution by natural selection or the reality of the Holocaust has any sensory evidence in support of those beliefs. Instead, we rely on epistemic authorities—biologists and historians, for example. Epistemic authority cannot be sustained by empiricist criteria, for obvious reasons: salient anecdotal evidence, the favorite tool of propagandists, appeals to ordinary faith in the senses, but is easily exploited given that most people understand neither the perils of induction nor the finer points of sampling and Bayesian inference. Sustaining epistemic authority depends, crucially, on social institutions that inculcate reliable second-order norms about whom to believe about what. The traditional media were crucial, in the age of mass democracy, with promulgating and sustaining such norms. The Internet has obliterated the intermediaries who made that possible (and in the process, undermined the epistemic standing of experts), while even the traditional media in the U.S., thanks to the demise of the “Fairness Doctrine,” has contributed to the same phenomenon. I argue that this crisis cries out for changes in the regulation of speech in cyberspace–including liability for certain kinds of false speech, incitement, and hate speech—but also a restoration of a version of the Fairness Doctrine for the traditional media
Reflections of a Supreme Court Commissioner
Get PDFIn 2021, President Joseph Biden convened a presidential commission to consider proposals to reform the Supreme Court. Dozens of witnesses dressed up to provide live testimony to the commission, thousands of people wrote in with additional testimony, and the commission ultimately sent the President a 294-page report.1 I served on that commission and agreed to submit our report to the President. But much is lost in committee. What follows are my own views on the subjects we considered.
In keeping with the structure of the commission’s report, Part I addresses background, Part II addresses court packing, Part III addresses term limits, Part IV addresses jurisdiction stripping and related reforms, and Part V addresses the shadow docket. Part VI addresses the commission itself
The Limits of Prodemocratic International Law in Europe
Get PDFTom Ginsburg’s Democracies and International Law explores the ways in which regional human rights regimes have been designed to promote and protect democracy and the degree of their success in an age of democratic backsliding. In this symposium contribution, I examine the impact of the relationship between the European Union (E.U.) and Turkey on that country’s record of democratic backsliding. I argue that European countries’ difficulties in managing multi-racial democracy have limited the depth and effectiveness of the E.U.’s pro-democratic commitments in its dealings with Turkey
The Exclusionary Rule Revisited
No full textWe revisit the economic theory of exclusionary rules. First, we show that more exclusion may induce enforcers to conduct more searches, contrary to the standard notion that more exclusion leads to fewer searches. Second, we identify and investigate the complexities that arise when enforcers may harass suspects (imposing significant costs without legal proceedings) instead of conducting legal searches. If one attempts to choose the optimal exclusionary rule naively (for example, by ignoring the possibility of harassment by enforcers), the chosen rule will exclude evidence more often than is optimal. We explore social welfare considerations and discuss policy implications based on our formal results
Certificates of Public Advantage and Hospital Mergers
No full textCertificates of public advantage (COPAs) grant antitrust immunity to merging hospitals conditional on active state regulation. We investigate the long-run effects of the four horizontal hospital mergers shielded with COPAs prior to 2015. We find that COPA regulation, if properly designed, can effectively constrain prices in the absence of competition among providers. However, two of the four evaluated COPAs were poorly designed and allowed the merging hospitals to evade regulation and increase price during the period of COPA regulation. Furthermore, all but one of the COPAs expired or were repealed in response to lobbying by the regulated hospitals, which led to large, statistically significant price increases and, for the merger for which quality data are available, a reduction in quality of care. In the long run, hospital mergers shielded with COPAs often lead to higher prices and reduced quality from unconstrained provider market power
Domestic Corporations and the Alien Tort Statute
Get PDFThis Comment analyzes the history, jurisprudence, and contemporary status of the Alien Tort Statute, which allows foreign citizens to bring suit in US courts for violations of international law. It attempts to answer two unresolved questions relating to the Alien Tort Statute. First, can domestic corporations be sued under the statue? Based on an analysis of the statute’s text, its history, and lower court decisions, this Comment argues that they rightly should be. This Comment will also define what sort of conduct suffices for an Alien Tort Statute lawsuit to be brought against a domestic corporation and concludes that a domestic corporation must have violated international law either within the United States or in territory unclaimed by any nation
Our Constitutionalism of Force
Get PDFThe Founders’ constitution—the one they had before the Revolution and the one they fought the Revolution to preserve—was one in which violence played a lawmaking role. An embrace of violence to assert constitutional claims is worked deeply into our intellectual history and culture. It was entailed upon us by the Founding generation, who sincerely believed that people “are only as free as they deserve to be” and that one could tell how much freedom people deserved by how much blood they were willing to shed to obtain it. This constitutionalism of force survived ratification. Its legacy is a constitutional order that legitimizes the violent assertion of rights, especially by groups of armed white men— a legacy that showed itself in the Republican National Committee’s statement that the January 6 Insurrection amounted to “legitimate political discourse.” We must acknowledge this heritage and the pressure it imposes on the rule of law if we are to survive today’s authoritarian challenges to our democracy
Why Did Firms Practice Segregation? Evidence from Movie Theaters during Jim Crow
Get PDFRacial segregation by businesses during Jim Crow was often voluntary and practiced without a legal mandate. Voluntary segregation can be driven by profit-motivated business owners catering to racist white customers or discrimination by business owners. We assess the relative importance of customers’ and firms’ discrimination by examining the 1953 desegregation of Washington, DC, movie theaters, which occurred rapidly because of a Supreme Court ruling affecting only businesses in Washington. Using weekly data for a nationwide sample of theaters, we find that revenues of Washington theaters fell relative to other theaters, consistent with reduced demand from biased white customers. We use a test for firms’ discrimination based on a model of the screening decision for films with black actors cast in prominent roles. We cannot reject that the run length of these films was profit motivated. Together, our results point toward customer discrimination as a primary cause of public accommodation segregation