Black Metropolis Research Consortium
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Streaming Property
Get PDFPeople acquire property rights in objects and real estate in order to capture the stream of services that these assets can provide over time. The thing or parcel itself is merely a delivery mechanism, a way of packaging and protecting rights to that value stream. And, significantly, these assets cannot stream services to anyone without a set of facilitating conditions and complementary goods, such as public infrastructure, that do not lie within the asset owner’s individual control. This Essay argues that we can gain fresh traction on inequality by recasting property as service streams rather than as owned things. Doing so emphasizes the costs of structuring property entitlements in ways that monopolize or squander streams of services. It also reveals new opportunities to repackage valuable service streams into asset-like formats to create durable and flexible claims on resources. Finally, a focus on services directs fresh attention to what people actually want and need from resources over time—a dynamic inquiry whose answer encompasses the spatial and ecological services that are now of overwhelming importance
Common Law Constitutionalism
No full textOne of Chicago’s Best Ideas, developed by Professor David Strauss, is that our constitutional law develops primarily in a common law fashion rather than through application of the constitutional text. Strauss has further argued that this common law approach is superior to an “originalist” approach to the Constitution because it allows for needed innovation while still imposing meaningful constraints on judges. Professor Bradley will describe the case for common law constitutionalism as well as some of the leading critiques of this theory. He will also consider the implications for this theory of the recent upsurge in support on the Supreme Court for originalism and textualism, and, relatedly, the Court’s possible willingness to overturn precedents like Roe v. Wade
Submerged Independent Agencies
Get PDFIndependent agencies are in the judicial crosshairs. Scholars criticize their efficacy—while still puzzling over how to define the form. By and large, this attention focuses on the top of the agency hierarchy, the extent to which agency heads are insulated from presidential control. What this perspective misses, however, is that power is also exercised by tenure-protected civil servants below. This phenomenon exists not because Congress has delegated them authority, but because executive branch actors have. Consequently, there exists another species of independent agency that requires a reckoning: call them “submerged independent agencies.” These entities are “agencies” because they wield discretionary governmental authority. They are “independent” because they are headed by career staff removable only for cause. And they are “submerged” in that they are relatively unknown to scholars, judges, and sometimes even agency heads themselves.
This Article introduces the concept of submerged independent agencies, sheds light on their scope, and reflects upon the resulting normative implications. Using over forty years of data drawn from the Federal Register, the analysis reveals that when political appointees delegate their statutory authority, the majority of these powers go to civil servants rather than fellow appointees. This behavior appears to be driven by strategic political considerations. Most notably, subdelegations to civil servants in executive agencies occur more frequently during the midnight period before a presidential transition — perhaps indicating an effort to entrench preferences. In addition, subdelegation may be less common during periods of divided party control between the presidency and House. This behavior may reflect an attempt to avoid provoking congressional ire by reassigning powers that Congress had bestowed on others.
These findings raise several legal and normative concerns. Many submerged independent agencies are vulnerable to constitutional challenge and raise difficult statutory questions. Whether the phenomenon is ultimately desirable for the administrative state is an open, empirical question. On the one hand, subdelegations raise the prospect of agency burrowing and entrenchment, and thus diminish political accountability. On the other hand, they can foster expertise and reduce ossification by dispersing decision-making authority within an agency. Accordingly, we consider various institutional mechanisms to help political actors navigate these tradeoffs, such as processes for reviewing actions taken pursuant to delegated authority; regular sunsets of such authority; and a more robust process of revisiting subdelegations during presidential transitions
The Persistent Objector Doctrine: Identifying Contradictions
Get PDFThe persistent objector doctrine (POD) in international law provides that a rule of customary international law (CIL) will not oblige a state that has persistently objected to the development of the rule. The doctrine requires that the objection be “persistent” and “consistent” and that it not be contradictory. Yet, while in this context the meaning of persistency and consistency, in this context, has been discussed in the legal literature, the term “contradiction” has not. Therefore, it is not clear what type of behavior would represent a contradiction that would disqualify a state from persistent objector (PO) status. In practice, this indeterminacy leads to a too wide understanding of the term, undermining the possibility of PO status altogether.
This Article offers a novel understanding of “contradiction”: it suggests that while substantive contradictions should negate a state’s PO status, not all contradicting behaviors should count as such. As this Article argues, the current understanding of contradiction is flawed because it does not always require a logical correlation between objection and contradiction. This encourages states to radicalize their positions in order to achieve PO status, while making it virtually impossible to successfully achieve such status.
Therefore, this Article suggests guidelines to differentiate valid, objection-maintaining behavior within the POD framework from actual contradictions. The proper understanding of POD contradictions should require logical relations of contradiction between the behavior and the previous objection. The contradiction must include an acknowledgment that the statement reflects the state’s position. The assessment of the contradiction must be done in a genuine manner and not invoked merely as a means of enforcing CIL rules on an objecting state
The Specialness of Zero
No full textA model is provided whereby a monopolist firm chooses to price its product at 0. This outcome is shown to be driven by the assumption of free disposal alongside selection markets (where prices impact a firm’s costs). Free disposal creates a mass point of consumers whose utility from the product is 0. When costs are negative, the paper shows that a zero-price equilibrium can emerge. The paper shows that this outcome can be socially optimal and that, while a move from monopoly to competition can result in a negative price equilibrium, this can be welfare reducing. The conclusion is that 0 can be a special zone with respect to policy analysis such as in antitrust
Modeling Comparative Cost-Effectiveness of SARS-CoV-2 Vaccine Dose Fractionation in India
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Democracies and International Law: An Update
Get PDFDemocracies have traditionally played a very important role in the construction and operation of international law, but this role has come under some pressure with the wave of democratic erosion that began around 2006. In a book published last year, the author laid out an argument that in some cases, international law could help to bolster democracy around the world, but that role was under threat from rising authoritarianism. This Essay considers relevant developments, finding cause for optimism in Latin America, some cause for pessimism in Africa, and real risks in Europe. Cyber governance is going to be a critical terrain. Democracy’s road ahead is likely to be fraught, but the basic stance of cautious optimism is still appropriate
Violating International Law Is Contagious
Get PDFDemocracies have a stronger incentive to comply with international law than autocracies, but they will not comply when faced with violations by other states. International law is a mechanism of cooperation between states: it can make states vulnerable to betrayal, but also increase their chances for successful collaboration. In other words, complying with international law is like playing cooperate in a stag hunt game. Cooperating is an efficient strategy but not a strategy that is evolutionarily stable. If an autocracy emerges and starts to violate international law, democracies will violate international law in response. This makes violating international law contagious. However, because democracies fare better than autocracies even when they break international law, a democratic regime type can also be contagious in some settings