Black Metropolis Research Consortium
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Ideation and Innovation in Constitutional Rights
Get PDFThis article explores the development of ideas in constitutional design. The point of departure is a perspective of constitutions-as-products, and thus, an examination of the invention, innovation, and an uptake of these products. The article conceptualizes constitutional innovation and distinguishes its manifestations with respect to constitutional products, the process of constitution-making, and in supporting institutions. The last two elements, in line with Schumpeter’s approach to innovation, would seem especially important to constitutional development. The article provides several examples from the area of human rights and argues that innovations tend to be found in situations in which there is strong aversion to a prior order. It also shows that innovations tend to come from the periphery rather than the global core of the field. One of the sources of “mixed” constitutions is precisely such innovations, which then form raw material for further mixing
The Application of Antitrust Law to Labor Markets -Then and Now
Get PDFAs of late, there has been a concerted push in the Biden administration, backed by prominent academics, to expand the application of antitrust law against major employers who are said to exercise monopsony power that reduces aggregate demand and thus leaves too many workers on the sidelines. The effort takes place chiefly in two major areas: stricter attacks on covenants not-to-compete, and more intense review of mergers under the Clayton Act.
This paper begins with an historical account of the law in both areas, from which it concludes that there is no good reason to alter the status quo ante. The modern claims of antitrust violations are said to rest on the traditional consumer welfare standard. But the theoretical and empirical evidence behind these claims is thin. Turnover rates in labor markets are high; labor shortages are now common; wage growth varies by presidential administration that changes, and not antitrust law, which has long been constant. Other labor policies like antidiscrimination laws, paid leave policies, and minimum wage and overtime laws exert a more direct power.
At present, no systematic evidence suggests the current(cautious) acceptance of non-compete clauses allows large numbers of major employers to extract monopsony profits. The only employers with market power work in markets (like hospitals subject to certificates of need), where these formal barriers to entry make these mergers suspect for excessive concentration in product markets, leaving it utterly unwise to pore over concentration ratios in thousands of discrete labor markets. Any concern with monopoly influence in labor markets should seek to weaken the hold of public and private unions, consistent with the consumer welfare standard
Law School Announcements 2022-2023
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Faculty Collage October 2022.1
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Compromising Accuracy to Encourage Regulatory Participation
No full textThis paper examines the value of accuracy in voluntary or opt-in regulatory regimes. We show that if welfare depends primarily on the ability to identify noncompliant firms, tolerating mistakes in concluding that firms meet regulatory standards (false positives) can improve welfare. Consumers or investors anticipate the regulatory error rate and discount the positive message of a compliance finding. Welfare is nonetheless improved because the mistaken exoneration acts as an incentive for noncompliant firms to submit to regulatory scrutiny, and as a result some noncompliant firms are unmasked
What’s the Use?: Interpreting the Term “Uses” in the Aggravated Identity Theft Provision
Get PDFThe Identity Theft Penalty Enhancement Act (ITPEA) increases penalties for crimes that involve the unlawful use of another person’s identifying information. A subsection of the ITPEA—the aggravated identity theft provision—imposes a mandatory two-year sentencing enhancement on a defendant who “uses” a means of identification of another person during and in relation to a predicate felony. Currently, federal circuit courts disagree about whether the term “uses” in the statute is ambiguous and whether the rule of lenity should consequently apply to narrow its reach. On the one hand, courts that have held the statute to be ambiguous apply the rule of lenity to hold that a defendant qualifies for the enhancement only if the defendant has directly impersonated another person. On the other hand, courts that have held the statute to be unambiguous reason that the plain text of the statute demands that the defendant need only generally misuse another’s information in the facilitation of fraud.
This Comment argues that the rule of lenity is improper in the context of the aggravated identity theft provision because a variety of interpretive tools are available and operative. For that reason, courts should apply the statute in accordance with its broad plain meaning by construing “uses” as requiring only general misuse of another person’s identifying information. This reading draws support from an analogous case in a comparable criminal context, interactions between interpretive canons, and legislative history found in the amendment notes to the ITPEA. This reading also provides practical benefits for courts assessing these issues in a contemporary technological landscape rife with digital political dissent and vigilante hacktivism
SPACs, PIPEs, and Common Investors
Get PDFSpecial Purpose Acquisition Companies, or SPACs, have come to play a large role in bringing together small and large investors in the acquisition and expansion of private companies. A pessimistic version of this relatively recent alternative to conventional initial public offerings (IPOs), and other methods of investing in companies ready to expand, is that clever sharks take advantage of overly optimistic and ill-informed small investors. This Article offers a very different view. It shows that small investors need someone to locate good investment opportunities, and then often also benefit if another well-informed party can credibly vouch for the entity that claims to have found a good target. It also suggests the development of other means of vouching for parties that claim to have found worthy targets for investment.
The analysis focuses first on SPACs that have recently arisen to play the important role of finding targets and then on PIPEs (Private Investor(s) in Public Equity) that serve the role of evaluating and certifying those SPACs. Each of these is rewarded for what it does along the “financing chain.” SPACs and PIPEs are to be welcomed rather than feared. Small investors would benefit from knowing when and at what prices potential PIPEs turned down deals, and they might benefit if SPAC founders earned lower rewards as the period during which they have use of investors’ funds comes towards an end. The discussion shows how these problems are related to those found in other markets, such as the information consumers can (and cannot) derive from knowledge about a large purchase that preceded them. Hertz’s purchase of a Toyota, and Warren Buffett’s purchase of stock, is not terribly different from a PIPE’s purchase of a SPAC.
This Article also suggests alternatives to SPACs that might arise with a little help from changes in law. Prediction markets could aggregate information possessed by many small parties. SPACs themselves, or yet other providers, might offer insurance against the possibility of a target whose bad quality can be detected only with factfinding that is difficult for dispersed, small investors to obtain. Finally, the analysis suggests that SPACs represent a new way of dealing with strategic investors who hold-out for more than their fair share of a discovery
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