Black Metropolis Research Consortium
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Identifying and Measuring Excessive and Discriminatory Policing
Get PDFWe describe and apply three empirical approaches to identify superfluous police activity, unjustified racially disparate impacts, and limits to regulatory interventions. First, using cost-benefit analysis, we show that traffic and pedestrian stops in Nashville and New York City disproportionately impacted communities of color without achieving their stated public-safety goals. Second, we address a long-standing problem in discrimination research by presenting an empirical approach for identifying “similarly situated” individuals and, in so doing, quantify potentially unjustified disparities in stop policies in New York City and Chicago. Finally, taking a holistic view of police contact in Chicago and Philadelphia, we show that settlement agreements curbed pedestrian stops but that a concomitant rise in traffic stops maintained aggregate racial disparities, illustrating the challenges facing regulatory efforts. These case studies highlight the promise and value of viewing legal principles and policy goals through the lens of modern data analysis—both in police reform and in reform efforts more broadly
Article 2(4) and Authoritarian International Law
Get PDFIn 1970, Thomas Franck asked a rhetorical question of enduring significance: Who Killed Article 2(4)?1 The reference is to the provision of the United Nations Charter that requires all member states to refrain “from the threat or use of force against the territorial integrity or political independence of any state.”2 Vladimir Putin’s gambit in Ukraine, conducted with the rhetorical purpose of eliminating the country as an independent state, is the latest in a series of events that periodically cause analysts to bemoan the end of the post-World War II international order. Will this time be different? Will it mark a definitive change in international law? This short essay will argue that, bloody as the Ukraine conflict has been, the immediate response has been to reinforce rather than reject traditional norms about sovereignty and territorial integrity. At the same time, the invasion and other states’ reaction to it illustrate both the character of, and limits to, authoritarian use of international law
Is Quasi-Judicial Immunity Qualified Immunity?
Get PDFHas qualified immunity finally found its roots? Scott Keller’s Qualified and Absolute Immunity at Common Law shows the breadth and complexity of nineteenth century case law dealing with official immunities. 1 But its most important claim, for today’s purposes, is the claim to find a historical basis for a doctrine of qualified immunity: an immunity from suit given to all government officials (including, but not only, the police) whenever they are sued for violating the Constitution. According to Keller, “the common law definitively accorded at least qualified immunity to all executive officers’ discretionary duties” in 1871, when Congress passed the civil rights statute now codified as 42 U.S.C. §1983. 2 This would be very important if it were true. But it is not.
Let us assume that this body of nineteenth-century common law should be translated to the scope of remedies under a statutory action for violations of the Constitution. 3 Even so, the common law did not recognize the doctrine of qualified immunity. It recognized a doctrine of quasi-judicial immunity, which shielded certain acts from liability for good faith mistakes. Keller does acknowledge that this nineteenth century doctrine has important differences from today’s doctrine. 4 But the differences run deeper than you would know from Keller’s account.
A closer examination of the doctrine of quasi-judicial immunity shows just how distant it was from the modern doctrine of qualified immunity. It protected quasi-judicial acts like election administration and tax assessment, not ordinary law enforcement decisions. 5 It allowed for harsh liability for officers who exceeded their authority. 6 And the defense was not an immunity from suit. 7 Thus, today’s doctrine of qualified immunity owes more to modern judicial invention than it does to the common law
Antitrust and Inequality
Get PDFIn its current form, antitrust law is sometimes said to advance consumer welfare and to disregard economic inequality. In fact, because monopoly and monopsony benefit shareholders at the expense of workers and consumers antitrust law redistributes resources from (generally wealthier) shareholders to (generally less wealthy) workers and consumers. Antitrust enforcement agencies seeking to reduce inequality might adjust their priorities and target markets that are disproportionately important for low-income people. Agriculture and health care would be good places to start; food and medicine compose a larger share of the budget of low-income people than of others, and these goods are essential to basic well-being. Regulators should also give priority to labor markets, especially labor markets in which lower-income people participate, and especially where pay gaps based on race or gender are large. In some cases, it is also appropriate to consider sacrificing economic efficiency for distributional goals by introducing distributional weights into antitrust analysis; doing so can increase social welfare. At the same time, antitrust law’s contribution to reducing inequality is subject to substantial diminishing returns