Black Metropolis Research Consortium
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Does Uber Benefit Travelers by Price Discrimination?
Get PDFWe use Uber fare data for passenger trips from Los Angeles, New York, and San Francisco airports to hotels in those metropolitan areas to test whether Uber engages in third-degree price discrimination by charging higher fares to travelers who originate from the same airports as other travelers but who stay at more expensive hotels. We find that fares are positively and statistically significantly related to the price of hotel rooms. Importantly, we also find that allowing ride-sharing companies to price discriminate improves travelers’ welfare, on average, by increasing their travel options
Democratic Backsliding and Multiracial Democracy. A Response to the 2021 Jorde Symposium Lecture by Steven Levitsky
Get PDFWe live in an anxious era, particularly about the possibility of multiethnic democracy. The polarization of American democracy in general, accelerated by Trumpism in particular, has challenged narratives of race as gradually declining in significance. Instead, conventional wisdom suggests that Trumpism results directly from rising racial resentment of a White population that fears losing its relative power.2 “Dog Whistle Politics” have been discarded in favor of openly nativist appeals, including by media figures such as Tucker Carlson.3
We are not alone. In France, the theory of the Grand Remplacement (Great Replacement) has spread from the fringes to the open world of presidential politics through candidate Eric Zeymour who placed fourth in first-round voting in 2022.4 And other European countries have seen an uptick in racial anxiety. All this lends a sense of urgency to the project of establishing a multiracial coalition committed to democracy as an ongoing concern. Otherwise, we risk succumbing to the “authoritarian backlash” identified in Professor Levitsky’s Jorde Symposium Lecture. Racialized politics tend toward the winner-take-all variety, and they do not allow for the fluid coalition shifting that has been celebrated by analysts from James Madison to Robert Dahl.5
In this Response, I make three points, drawing on the scholarship about constitutional mechanisms for mitigating ethnic conflict. First, multiethnic democracy is not as rare as has been suggested. Indeed, it is increasingly the normal state of affairs in rich countries, fueled by patterns of global migration.
But I will argue there are some multiethnic countries whose particular histories lend themselves to authoritarian backlash and democratic backsliding. These are countries with a history of mass slavery, of which the United States and Brazil are the most prominent examples. Slave-legacy societies are especially prone to existential racial appeals as an instrument of political mobilization, and the perception of high stakes can lead to attacks on institutions.
Second, the traditional mechanisms of “managing” ethnic conflict are in some flux and do not suggest an easy way out of the current crisis, even if we could redesign constitutional arrangements from scratch. The large literature coalesces around two main constitutional approaches: consociationalism and centripetalism.6 Consociationalism involves peak-level bargains among leaders who represent relatively homogenous ethnic groups; centripetalism emphasizes institutions that encourage cross-ethnic cooperation. Whatever the merits of these approaches in theory, the debate has not operated at a fine enough level of detail to suggest many plausible solutions for the United States. Centripetalism would operate here mainly through the design of multiracial electoral districts and perhaps the adoption of ranked-choice voting, which is emerging in mainstream discourse as a lynchpin institutional reform. But because elections management is constitutionally decentralized in the United States, this is unlikely to be a magic bullet for the country as a whole. I predict increasing divergence in democratic practices, as well as the resulting policies, across the United States.
Third, society—rather than law or politics—may provide the best pathway to address the challenges of multiracial democracy in the United States. We are feeling our way to a multiracial culture, which I designate using the term mestizaje, and in which fluidity and mixing also extend to demographic understandings. But the success of that project will hinge on whether our institutions can withstand the assault on democracy President Trump and his allies have unleashed. The future of our multiracial democracy hinges on whether the Republican Party returns to democratic competition, and there are signs this could occur. Nothing, of course, is guaranteed. Subnational autocracy remains a very real option for parts of the United States, even as others end up being bellwethers of multiracial democracy.
Each of these points intersects with Professor Levitsky’s lecture. The first point, that multiracial democracy is rather common, undercuts the claim that this would be an “unparalleled achievement.”7 While this is true for the United States, it is not unknown elsewhere, and so directs us to ask why the United States is somewhat exceptional in its democratic trajectory. The second point, that conventional approaches to constitutional design do not provide off-the shelf solutions, is consistent with Levitsky’s argument that we may be in real trouble. The third point about the growing complexity of racial categories suggests that more optimism may be warranted, at least for the middle term and beyond. There are surely signs of difficulties for the next election cycles, but the future of the United States is likely to be both multiracial and democratic
English Common Law and the Ius Commune: The Contributions of an English Civilian
Get PDFAny student of legal history who believes that the European ius commune played a meaningful part in the origins and development of English law will profit from reading Reinhard Zimmermann’s masterpiece, The Law of Obligations. Indeed, that student will read it with joy. I am one of that number, and I remember my own reaction well when his book first appeared—equal parts of admiration and encouragement. Not only was the book a sparkling and learned treatment of many important aspects of the civil law, subjects about which I needed to learn more, it also proved to be the source of specific examples of connections between the two relevant legal systems in England. That subject was one of my special interests then. It still is. Significant differences between the two legal systems did exist. No doubt about that. However, more than occasional coincidence also connected them, linking the European ius commune and the English common law, and not only in minor or accidental matters. Where most English historians had seen large differences and even enmity between them, Professor Zimmermann concluded that the “European ius commune and the English common law had not been so radically distinct as is often suggested.”1 It would be, he added, “a fruitful exercise” to attempt a comparison of legal rules and achievements “against the background of a common Western civilization.”2
That comparison is what I have attempted to do in this essay, albeit on a small scale. I thought it would be sensible to take up and examine the works of an English civilian, one of those lawyers whose career was centered in the ecclesiastical courts and whose principal sources of authority were drawn from the Roman and canon laws. Many of these men wrote legal treatises. They thus left written accounts of the use of laws drawn from the ius commune that others might consult. A little digging would therefore make it possible to investigate whether what a civilian had written had been treated as a legitimate source of law in cases that had come before one or another of the English royal courts, courts in which the English common law was in force.
Capitalizing on Crisis: Chicago Policy Responses to Homicide Waves, 1920–2016
Get PDFThis Essay investigates Chicago city-government policy responses to the four largest homicide waves in its history: 1920–1925, 1966–1970, 1987–1992, and 2016. Through spatial and historical methods, we discover that Chicago police and the mayor’s office misused data to advance agendas conceived prior to the start of the homicide waves. Specifically, in collaboration with mayors, the Chicago Police Department leveraged its monopoly over crime data to influence public narratives over homicide in ways that repeatedly (1) delegitimized Black social movements, (2) expanded policing, (3) framed homicide as an individual rather than systemic problem, and (4) exclusively credited police for homicide rate decreases. These findings suggest that efforts to improve violence-prevention policy in Chicago require not only a science of prevention and community flourishing but also efforts to democratize how the city uses data to define and explain homicide
Regulation and Redistribution with Lives in the Balance
Get PDFA central question in law and economics is whether nontax legal rules should be designed solely to maximize efficiency or whether they also should account for concerns about the distribution of income. This question takes on particular importance in the context of cost-benefit analysis. Federal agencies apply cost-benefit analysis when writing regulations that generate multibillion-dollar impacts on the U.S. economy and profound effects on millions of Americans’ lives. In the past, agencies’ cost-benefit analyses typically have ignored the income-distributive consequences of those regulations. That may soon change: on his first day in office, President Joe Biden instructed his Office of Management and Budget to propose procedures for incorporating distributive considerations into agencies’ cost-benefit analyses, thus bringing renewed relevance to a long-running law-and-economics debate.
This Article explores what it might mean in practice for agencies to incorporate distributive considerations into cost-benefit analysis. It uses, as a case study, a 2014 rule promulgated by the National Highway Traffic Safety Administration (NHTSA) requiring new motor vehicles to have rearview cameras that reduce the risk of backover crashes. As with most major federal regulations that impose large dollar costs, the principal benefit of the rear-visibility rule is a reduction in premature mortality. Quantitative cost-benefit analysis typically translates mortality reductions into dollar terms based on the “value of a statistical life,” or VSL. Any distributive evaluation of the rule will depend critically on a parameter known as the “income elasticity of the VSL,” which reflects the relationship between an individual’s income and her willingness to pay for mortality risk reductions. Although agencies’ cost-benefit analyses use the same VSL for all individuals regardless of income, the Department of Transportation—of which NHTSA is a part—has issued guidance on the income elasticity of the VSL for other purposes. When this Article applies the Department of Transportation’s income-elasticity guidance in its distributive analysis, the rearvisibility rule appears to be regressive: it generates net costs for lower-income groups and net benefits for higher-income groups. Rerunning the distributive analysis with equal-dollar VSLs at all income levels, the rule appears to be progressive: lower-income individuals are the primary beneficiaries and higher-income individuals are the losers. This Article goes on to explain why assumptions about the relationship between income and the VSL will have important implications for distributive analyses of other lifesaving regulations.
This Article then asks what agencies ought to do: Should they incorporate distributive objectives into cost-benefit analysis by assigning greater weight to dollars in lower-income individuals’ hands, and should they assign different-dollar VSLs to individuals with different incomes? The two questions are closely linked. Incorporating distributive objectives into cost-benefit analysis of lifesaving regulations while maintaining equal-dollar VSLs for the rich and the poor will potentially produce perverse outcomes that—according to standard economic thinking—actually redistribute from poor to rich. After canvassing options, this Article concludes that the status quo approach—equal weights for low-income and high-income individuals’ dollars, equal-dollar VSLs for low-income and high-income individuals— makes practical sense in light of expressive concerns, informational burdens, and institutional constraints. This Article ends by reflecting on the case study’s lessons for broader debates over legal system design, and it explains why the issues that arise in the rear-visibility case study are likely to affect other efforts to redistribute through nontax legal rules
The Global Rise of International Commercial Courts: Typology and Power Dynamics
Get PDFOver the past decade, there has been a proliferation of International Commercial Courts (ICCs) across the globe. ICCs are specialized tribunals within the domestic court hierarchy tailored for the adjudication of complicated cross-border commercial disputes. Most ICCs share similar features, such as a set of flexible procedural rules comparable to those in international arbitration, multilingual court proceedings, and the recruitment of overseas judges or foreign legal experts.
The global phenomenon calls for a systematic comparative study of the different generations of ICCs and their power dynamics. This Article will offer a unique typological framework to study the evolution of ICCs. In particular, emphasis will be placed on the power dynamics among the ICCs such as horizontal power dynamics among the ICCs inter se, and diagonal power dynamics between the ICCs and international arbitration. This Article argues that the most apt characterization of the two dimensions of power dynamics is “co-opetition,” a combination of “cooperation / collaboration / complementarity” and “competition.” While a race for cases and foreign litigants is inevitable, we argue that there is significant room for inter-regional cooperation and coordination to allow for and capitalize on different ICC niches and specialties
Horizontal Collusion and Parallel Wage-Setting in Labor Markets
Get PDFHorizontal collusion among employers to suppress wages has received almost no attention in the academic literature, in contrast with its more familiar cousin, product market collusion. The similar economic analysis of labor and product markets might suggest that antitrust should regulate labor and product markets in the same way. But product markets and labor markets do not operate identically: people behave differently as employees and as consumers. Unlike consumers who can switch products relatively easily, employees face significant frictions in changing jobs. Other labor market frictions are created by the pay equity norm and downward nominal wage rigidity. These factors and related factors stabilize collusive arrangements and facilitate tacit coordination in labor markets. Antitrust law should therefore more aggressively regulate labor market collusion, including tacit coordination, than product market collusion
Screening Meaning
Get PDFTrademark law exists to promote competition. If consumers know which companies are responsible for which products, they can more easily find the products they actually want to purchase, and companies will have incentives to cultivate reputations for high quality. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this paper, we establish that this equation of source significance and pro-competitiveness is misguided. Some marks use words and images that are so closely connected with the product being branded that giving just one firm a monopoly over those words and images provides that firm with a meaningful competitive advantage—an artificial advantage granted by the state. This problem becomes worse as the number of firms producing (and branding) a type of product increases.
The more words cordoned off by trademark law, the more trouble a new entrant will have in describing or attracting attention to its product. Trademark law is thus being hijacked by strategic firms for anti-competitive purposes. Traditional doctrinal tools are inadequate to address this problem because the goal is to limit the number of such trademarks rather than eliminate them completely. However, costly screens could be used to impose a form of congestion pricing on trademarks, eliminating them in all but the most worthwhile cases. In this paper, we develop a theory of the anti-competitive nature of certain trademark rules. We then propose a series of overlapping doctrinal rules and costly screens to address the problem of rampant anti-competitive trademarks