Black Metropolis Research Consortium
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Majority Nationalism Laws and the Equal Citizenship of Minorities: Experimental, Panel, and Cross-Sectional Evidence from Israel
No full textWestern societies are increasingly enacting majority nationalism laws to strengthen majority culture. We propose that these laws may alter attitudes about minorities’ equal citizenship with varied impact on majorities and minorities. To explore this issue, we examine the impact of Israel’s recently enacted Nation Law on the Jewish majority and the Arab minority. Experimental evidence from before the law’s enactment reveals that both minority and majority respondents perceive the passage of the law as permitting discrimination against the minority in housing, employment, and voting, but the effect on minority respondents’ perceptions is larger. Panel and cross-sectional data from before and after the law’s enactment reveal that the effect on majority respondents was fleeting, whereas the negative impact on minority respondents was stronger and more durable. These findings expose the troubling effects of majority nationalism laws and suggest that law may operate as a prism, expressing different messages to different groups
Corporate Ownership and Antitrust Violations
No full textWe study the relationship between corporate ownership and anticompetitive actions. Using data from Italy, we find that family firms are less likely than other firms to be involved in antitrust indictments. This result holds after controlling for several factors that are different across family and nonfamily firms and may correlate with anticompetitive behavior. Family control reduces the likelihood of antitrust indictments, especially among larger companies, which are generally more likely to be prosecuted. However, conditional on being prosecuted, family firms face the same likelihood of monetary sanctions as nonfamily firms. Collectively, our results provide new insights into the role of corporate ownership in firms’ anticompetitive behavior
The Class Appeal
Get PDFFor a wide variety of claims against the government, the federal courthouse doors are closed to all but those brought by powerful, organized interests. This is because hundreds of laws—colloquially known as “channeling statutes”—require disaffected groups to contest government bodies directly in appellate courts that hear cases individually. In theory, these laws promise quick, consistent, and authoritative legal decisions in appellate courts. In fact, without class actions, government bodies avoid judicial review by selectively avoiding claims brought by some of the most vulnerable people in the administrative state—from veterans and immigrants to coal miners, laborers, and the disabled.
This Article proposes a novel solution: courts of appeals should hear class actions themselves. In so doing, courts high in the judicial hierarchy would continue to authoritatively decide important legal questions involving government institutions while ensuring groups of similar, unrepresented parties finally get their day in court. While appellate class actions might sound like a strange procedural innovation, appellate courts already have the power to do this. Relying on the All Writs Act, appellate courts long ago created ad hoc procedures modeled after class actions to respond to systemic government harm.
This Article is the first to examine nascent experiments with appellate class actions. It shows that, contrary to popular belief, appellate courts can hear class actions, and it explains why they should do so. In cases challenging systemic abuse, this power has become vital not only to level the playing field between the government and the governed but also to protect courts’ core functions in our separation of powers—to hear claims, interpret law, and grant meaningful relief. Without class-wide judgments in such cases, courts risk ceding power to the executive branch to decide for itself when judicial decisions limit its own unlawful policies
Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis
Get PDFThis Report reveals a fractured and freewheeling federal pretrial detention system that has strayed far from the norm of pretrial liberty. This Report is the first broad national investigation of federal pretrial detention, an often overlooked, yet highly consequential, stage of the federal criminal process. Our Clinic undertook an in-depth study of federal bond practices, in which courtwatchers gathered data from hundreds of pretrial hearings. Based on our empirical courtwatching data and interviews with nearly 50 stake-holders, we conclude that a “culture of detention” pervades the federal courts, with habit and courtroom custom overriding the written law...” Our Report aims to identify why the federal system has abandoned the norm of liberty, to illuminate the resulting federal jailing crisis, and to address how the federal judiciary can rectify that crisis. This Report also fills a gaping hole in the available public data about the federal pretrial detention process and identifies troubling racial disparities in both pretrial detention practices and outcomes
Checks, Not Balances
Get PDFCritics of the administrative state who would revive the nondelegation doctrine and embrace the unitary theory of executive power often assume that each branch’s powers are capable of precise definition, functionally distinct from the others, and that the formal boundaries between each branch are sacrosanct. This Article situates these critiques in Founding Era and nineteenth century debates about the structure of the Constitution. In the 1780s, the AntiFederalists objected to the Constitution for failing to enumerate a precise taxonomy of each branch’s powers, for failing to specify that each branch’s powers were exclusive, and for failing to make government officials sufficiently accountable to the voting public. The drafters responded that the Anti-Federalist approach would neither support effective government nor prevent the branches from acting tyrannically. Rather than develop a scheme of discrete and precisely divided powers, as the Anti-Federalists proposed, the drafters preferred precise rules of inter-branch coordination to ensure that no one branch dominates the others. This debate continued throughout the nineteenth and early twentieth centuries, with influential legal minds such as Daniel Webster and Joseph Story rejecting the Anti-Federalist theory of separation of powers.
We call this a theory of separation of powers based on a principle of antidomination. On this view, the separation of powers is breached only if one branch deprives another of its procedural capacity to check the others. We further argue that this theory (a) provides a plausible account of the Framers’ understanding; (b) has had significant purchase in the development of interbranch relations since the Founding and thus can serve as a kind of rational reconstruction of historical practice; and (c) is consistent with the relevant constitutional text and the overall constitutional structure
The Gun and the Paperweight: Risk Control Services and Disservices
Get PDFSuppose a legal rule makes it negligent to have a loaded gun out in the open in a place of business. Should a defendant who violated this rule by using a loaded gun as a paperweight be liable for his client’s broken toes when the gun falls onto her foot? Problems manifesting this basic structure have occupied scholars and Restatement reporters for decades. In this essay, I reframe untaken precautions as a bundle of risk control services, each of which counteracts a particular risky element, like “shooting capacity” or “heaviness” in the case of the gun. Tort law ought to induce actors to produce all, and only, the risk control services that are worth the cost of providing. Cashing out that prescription is tricky because precautions often jointly provide multiple risk mitigation services, and more than one precaution may meet the legal standard. Nonetheless, the task becomes tractable if we examine the cost structure of precautions — and, analogizing to break-even analysis for products, identify which risk control services contribute to rather than detract from a precaution’s bottom line. The risk services framework partially redeems but also revises harm-within-the-risk and negligence per se doctrines that limit negligence liability based on the type of danger or category of victim involved in a given accident. By enabling us to assess which ostensible risk control services are really societal disservices, this approach provides a firmer basis for calibrating the scope of liability
Data Federalism
Get PDFPrivate markets for individual data have received significant and sustained attention in recent years. But data markets are not for the private sector alone. In the public sector, the federal government, states, and cities gather data no less intimate and on a scale no less profound. And our governments have realized what corporations have: It is often easier to obtain data about their constituents from one another than to collect it directly. As in the private sector, these exchanges have multiplied the data available to every level of government for a wide range of purposes, complicated data governance, and created a new source of power, leverage, and currency between governments.
This Article provides an account of this vast and rapidly expanding intergovernmental marketplace in individual data. In areas ranging from policing and national security to immigration and public benefits to election management and public health, our governments exchange data both by engaging in individual transactions and by establishing “data pools” to aggregate the information they each have and diffuse access across governments. Understanding the breadth of this distinctly modern practice of data federalism has descriptive, doctrinal, and normative implications.
This Article provides an account of this vast and rapidly expanding intergovernmental marketplace in individual data. In areas ranging from policing and national security to immigration and public benefits to election management and public health, our governments exchange data both by engaging in individual transactions and by establishing “data pools” to aggregate the information they each have and diffuse access across governments. Understanding the breadth of this distinctly modern practice of data federalism has descriptive, doctrinal, and normative implications.
Data exchanges can also go wrong, and courts are not prepared to navigate the ways that data is both at risk of being commandeered and ripe for use as coercive leverage. I argue that these constitutional doctrines can and should be adapted to police the exchange of data. I finally place data federalism in normative frame and argue that data is a form of governmental power so unlike the paradigmatic ones our federalism is believed to distribute that it has the potential to unsettle federalism in both function and theory
Public Opinion about Regulation
Get PDFThe paper describes how ordinary citizens view economic regulation and summarizes answers to questions about regulation and regulators since the 1970s from the General Social Survey. The pattern is clear: ordinary citizens are skeptical and wary. They want less regulation and do not trust regulators to do what is right. The mistrust has become stronger over time. However, the public supports environmental and electricity rate regulation. These sentiments are shared across age, sex, race, education, and income groups and the left/right ideological spectrum. The public tends to oppose less traditional regulation, such as wage and price controls, government ownership of some industries, and regulation of steel prices. But there is less consensus across demographic groups: blacks, the less educated, and low-income groups are less hostile, or marginally friendly, to less conventional modes of regulation. The paper concludes by contrasting public opinion with the path of regulation since the 1970s
In Defense of Chapter 11 for Mass Torts
Get PDFThis Essay argues that bankruptcy proceedings are well-suited to resolving mass tort claims. Mass tort cases create a collective action problem that encourages claimants who are worried about available recoveries to race to the courthouse to collect ahead of others. This race can destroy going concern value and lead to the dismemberment of valuable firms. Coordination among them is difficult as each claimant seeks to maximize its own recoveries. These are the very collective action and hold-out problems that bankruptcy proceedings are designed to solve. As such, bankruptcy proceedings are appropriate means of resolving mass torts as long as they leave tort victims no worse off than they would have otherwise been. We further argue that legal innovations such as third-party releases and divisional mergers, which facilitate efficient bankruptcy proceedings and reduce holdout problems, should be welcomed as long as courts are attentive to the potential for abuse.
Of course, the bankruptcy process is not fully immune to abuse. For example, incumbent managers may have outsized bargaining leverage in bankruptcy or may take advantage of information asymmetries to push for reorganizations that divert value away from tort claimants. To control for such abuse, this Essay explores potential reforms aimed at ensuring that bankruptcy proceedings effectively mitigate collective action problems without disadvantaging tort victims as a class. Some of these reforms, such as giving tort claimants a priority claim, will sound familiar to bankruptcy scholars. Others, such as giving tort claimants a right to propose a plan of reorganization are more extreme. Because all these proposals have costs and benefits, our aim is not to endorse any one set of reforms; rather we emphasize that it is possible to address potential abuses through internal reforms that facilitate mass tort resolutions within the bankruptcy system without resorting to measures that prohibit or make such proceedings unnecessarily expensive