Black Metropolis Research Consortium
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Property Law for the Ages
Get PDFWithin the next forty years, the number of Americans over age sixty-five is projected to nearly double. This seismic demographic shift will necessitate a reckoning in several areas of law and policy, but property law is especially unprepared. Built primarily for young and middle-aged white men, the common law of property has been critiqued for decades for the ways in which it oppresses or simply leaves behind people based on their race, sex, Native heritage, and more. This Article contributes a new focus on property law’s treatment of people based on their advanced age. Burdened by higher relocation costs, more inelastic incomes, and shorter time horizons than those faced by younger people, elderly people encounter a doctrine that often fails to protect their interests. This Article explores five areas of property law and evaluates how each fits—or, more frequently, fails to fit—the characteristics of many older subjects. From the law of takings to the law of waste, and from tenant protections to homeowners’ associations, not only is the law a poor fit, but the consequences for the health, safety, finances, and well-being of elderly people are often dramatic. At the same time, one of the rare significant efforts made thus far to protect older people from some of these consequences—the Fair Housing Act’s protection for age-restricted communities—has generated new inequities of its own that raise important questions about competing civil rights priorities. Accordingly, mindful of the dangers of overcorrection, this Article offers institutional reforms aimed to better protect the interests of older people in each area without unduly infringing upon those of others
The Law of Democratic Disqualification
Get PDFAlmost all constitutions, including our own, include one or several ways to disqualify specific individuals from political office. The U.S. Constitution, indeed, incorporates no less than four overlapping pathways toward disqualification. This power of retail disqualification stands at the heartland of the complex project of democratic rule. In practice, it works both an instrument for preserving democratic rule, and also a knife against it. This Article is the first to analyze systematically the complex positive and normative questions raised by disqualification. It offers both a positive account of the function that disqualification plays in constitutional ordering, and a normative account of the role that it should play. Drawing on domestic and comparative evidence, it then develops the blueprint of an ‘optimal’ disqualification regime. This would aim at disqualifying officials who pose a clear threat to a relatively minimalist, electorally-focused conception of democracy, while avoiding overuse for less pressing ends or, worse, abuse for antidemocratic purposes. It would contain plural pathways, calibrated to avoid the possibility of partisan arbitrage. These would lean toward the regulation of individuals rather than groups. They would not usually run directly through elected bodies. The prerequisite for disqualification would more often be stated as a rule than as a standard. And the ensuing prohibitions would more often be temporary rather than permanent. This optimal approach leads to specific reform recommendations for the U.S. context. First, we demonstrate that Section 3 of the Fourteenth Amendment should be given greater specificity and shape via statute, as Congress indeed did after the Civil War, and as it is empowered to do now via its authority to “enforce” the terms of the Reconstruction amendments. Second, we develop a case for a framework statute setting forth a judicial mechanism for enforcing the two-term limit on chief executives under the Twenty-Second Amendment. Finally, we propose decoupling impeachment and disqualification, creating two distinct institutional pathways for disqualification
Congress’s Commissioners: Former Hill Staffers at the S.E.C. and Other Independent Regulatory Commissions
Get PDFThe expression “personnel is policy” has become a truism in Washington. Yet our understanding of how the political branches use appointments to project influence into the administrative state is incomplete. This Article leverages data on almost one-thousand commissioners serving on eleven major independent regulatory commissions to chart, for the first time, Congress’s growing practice of placing former legislative-branch personnel onto these entities. We then theorize that this phenomenon is rooted in fundamental changes in American politics in recent decades— and, in turn, that it has deeply affected administrative law and separation-of-powers dynamics.
Over the past several decades, the number of commissioners with prior service as a lawmaker or congressional staffer increased almost fourfold. Paradoxically, this sea change occurred during a period in which, according to conventional wisdom, Congress’s influence over administration declined. We contend that, faced with a set of worsening pathologies in Congress, lawmakers turned to appointments to influence policymaking. At the same time, congressional atrophy and an increasingly rocky confirmation process combined to make executive posts more attractive to Hill staffers than to others.
This influx of staffers-turned-commissioners has, we argue, substantially altered the functioning of these commissions and their place in the separation-of-powers system. Congress’s ability to “embed” loyal former staffers on commissions can benefit both institutions. From their new positions, former staffers can both enhance congressional influence over administration and provide commissions with valuable insights into the views and priorities of the branch that writes their statutes, sets their budgets, and oversees their activities.
Staffers-turned-commissioners also bring with them political savvy, familiarity with the legislative process, and other skills developed on Capitol Hill. Further, as former staffers—steeped in the norms of an increasingly dysfunctional Congress—fill more seats on commissions, these bodies may undergo a degree of acculturation, encouraging more overtly political behavior among commissioners.
Our descriptive and theoretical accounts generate two prescriptions. First, in evaluating potential appointees, presidents and senators should be attuned not only to those individuals’ preferences and expertise, but also to their institutional allegiances and potential impact on organizational culture. Second, increased congressional influence over independent commissions justifies a degree of presidential oversight. If commissioners are political actors—grounded in the politics of their congressional principal and carriers of Congress’s culture—they should be subject to controls from both political branches
Shining a Light on Dark Patterns
Get PDFDark patterns are user interfaces whose designers knowingly confuse users, make it difficult for users to express their actual preferences, or manipulate users into taking certain actions. They typically exploit cognitive biases and prompt online consumers to purchase goods and services that they do not want or to reveal personal information they would prefer not to disclose. This article provides the first public evidence of the power of dark patterns. It discusses the results of the authors’ two large-scale experiments in which representative samples of American consumers were exposed to dark patterns. In the first study, users exposed to mild dark patterns were more than twice as likely to sign up for a dubious service as those assigned to the control group, and users in the aggressive dark pattern condition were almost four times as likely to subscribe. Moreover, whereas aggressive dark patterns generated a powerful backlash among consumers, mild dark patterns did not. Less educated subjects were significantly more susceptible to mild dark patterns than their well-educated counterparts. The second study identified the dark patterns that seem most likely to nudge consumers into making decisions that they are likely to regret or misunderstand. Hidden information, trick question, and obstruction strategies were particularly likely to manipulate consumers successfully. Other strategies employing loaded language or generating bandwagon effects worked moderately well, while still others such as “must act now” messages did not make consumers more likely to purchase a costly service. Our second study also replicated a striking result in the first experiment, which is that where dark patterns were employed the cost of the service offered to consumers became immaterial. Decision architecture, not price, drove consumer purchasing decisions. The article concludes by examining legal frameworks for addressing dark patterns. Many dark patterns appear to violate federal and state laws restricting the use of unfair and deceptive practices in trade. Moreover, in those instances where consumers enter into contracts after being exposed to dark patterns, their consent could be deemed voidable under contract law principles. The article also proposes that dark pattern audits become part of the Federal Trade Commission (FTC)’s consent decree process. Dark patterns are presumably proliferating because firms’ proprietary A-B testing has revealed them to be profit maximizing. We show how similar A-B testing can be used to identify those dark patterns that are so manipulative that they ought to be deemed unlawful
Optimal Unilateral Carbon Policy
Get PDFWe derive the optimal unilateral policy in a general equilibrium model of trade and climate change where one region of the world imposes a climate policy and the rest of the world does not. A climate policy in one region shifts activities—extraction, production, and consumption—in the other region. The optimal policy trades off the costs of these distortions. The optimal policy can be implemented through: (i) a nominal tax on extraction at a rate equal to the global marginal harm from emissions, (ii) a tax on imports of energy and goods, and a rebate of taxes on exports of energy but not goods, both at a lower rate than the extraction tax rate, and (iii) a goods-specific export subsidy. The policy controls leakage by combining supply-side and demand-side taxes to control the price of energy in the non-taxing region. It exploits international trade to expand the reach of the climate policy. We calibrate and simulate the model to illustrate how the optimal policy compares to more traditional policies such as extraction, production, and consumption taxes and combinations of those taxes. The simulations show that combinations of supply-side and demand-side taxes are much better than simpler policies and can perform nearly as well as the optimal policy
Framing Vaccine Mandates: Messenger and Message Effects
Get PDFIn September 2021, President Biden announced that the Occupational Safety and Health Administration (OSHA) would require all employers with 100 or more employees to ensure that their workers are fully vaccinated against Covid-19 or show a negative test for the virus at least once a week. The policy has been widely characterized in the media as “President Biden’s vaccine mandate,” though it could be described with equal accuracy as “OSHA’s testing mandate” (since OSHA, rather than Biden, officially promulgated the policy, and once-a-week testing and vaccination are both valid compliance options). Some commentators have speculated that reframing the policy as a testing mandate (with a vaccination option) rather than a vaccine mandate (with a testing option) would boost public support. This study seeks to gain empirical insight into how framing effects shape attitudes toward vaccination and testing policies.
In October 2021, we presented a nationally representative sample of 1500 U.S. adults with different descriptions of the same vaccinate-or-test requirement. We find that recharacterizing “President Biden’s vaccine mandate” as “OSHA’s testing mandate” yields a substantively and statistically positive effect on support, boosting the policy’s net approval margin by approximately 13 percentage points. The effect of reframing is particularly strong among self-identified Republicans, who overwhelmingly oppose the policy when it is framed as President Biden’s vaccine mandate but are more evenly split when the policy is framed as OSHA’s testing mandate. Further analysis reveals that the positive effect is driven by the change in the messenger frame (i.e., switching the promulgator of the policy from President Biden to OSHA). By contrast, changing the message frame from a vaccination requirement (with a testing exception) to a testing requirement (with a vaccination exception) has little independent effect on respondents’ attitudes.
Our results suggest that messenger framing can have meaningful effects on public opinion toward a policy even after the policy is widely known. Beyond the Covid-19 context, our study points to a potential cost of presidential administration when partisan divisions are deep. Our results suggest that framing a regulatory policy as an extension of the president can elicit strong—and in this case, negative—reactions that may be avoidable if the same policy is framed as the work of a bureaucratic agency
The Legal Man in the Moon: Exploring Environmental Personhood for Celestial Bodies
Get PDFThe rise of the commercial space industry endangers the preservation of environments, such as the lunar surface and other celestial bodies, with the threat of contamination and resource exploitation. In the coming decades, flights to space will become commonplace—but at present, there is no way to hold outer space polluters accountable. The existing international legal regime is weak, with the United Nations’ space treaties offering limited enforcement mechanisms against offenders. The increasingly popular concept of environmental personhood offers a solution by rethinking the meaning of a juridical person within the text of the United Nations Outer Space, Space Liability, and Moon treaties. Utilizing the International Court of Justice, outer space environmentalists can seek to recognize celestial bodies as juridical persons and gain third-party standing to protect the rights of the Moon and seek damages for environmental degradation. Through the exploration of contentious and advisory avenues within the International Court of Justice, this Comment advances a new way of thinking to save extraterrestrial environments
Stuart Hall: Construction Sequence
No full textStuart Hall: Construction Sequence 1. Stuart Hall under construction, c. 1903-1904.
University of Chicago Photographic Archive, [apf2-07843], Hanna Holborn Gray Special Collections Research Center, University of Chicago Library.
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