Black Metropolis Research Consortium
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Kalven For Corporations: Should For-Profit Corporations Adopt Public Statement Policies?
Full text linkIn the last few years, corporations have been called upon to take public positions on myriad issues unconnected to core business concerns. Demands for public statements may arise from various stakeholders, as well as from the general public and the media. Sometimes such statements are uncontroversial, but other times, firms find themselves in a no-win position, in which both silence and voice will offend some core constituency. Crafting meaningful public-facing statements becomes a major challenge.
In this article, we ask whether these corporations should adopt some form of express upfront policy on when they will and when they will not speak out. One place to start is to consider the approach of some universities, which have come to resemble large corporations in some ways. In particular, should for-profit corporations adopt something akin to the University of Chicago’s 1967 Kalven Report on the University’s Role in Political and Social Action? This report adopts the position that as a general matter the University will not speak on social and political issues of the day, with exceptions for those that directly affect the University’s operations. In answering this question, we discuss the similarities and differences between publicly held for-profit corporations and universities and outline the factors that can guide these corporations in deciding whether to adopt such a policy, what such a policy would look like, and how it might differ from the Kalven Report
Private Equity Investment in Health Care and Ineffective Antitrust Regulations
Full text linkThe corporatization of health care in the United States has forced us to confront society’s moral expectations of the industry, which serves uniquely vulnerable consumers. Health care has become increasingly more lucrative, attracting private equity (“PE”) investment, specifically in private physicians’ practices. Physicians find PE transactions appealing because physicians have difficulty competing with large hospital systems and complying with expansive regulatory requirements. The attention given by PE to health care has raised concerns regarding the tension between the expected priorities of PE firms and health care. Additionally, the nature of PE investments through roll-ups of smaller companies has regulators worried that they cannot control PE’s involvement in the industry. The Federal Trade Commission (“FTC”) is one regulatory agency that has explicitly addressed PE investments through revisions to its Merger Guidelines to ensure PE does not slip through its grasp.
As PE roll-ups are a type of health care consolidation, this Comment will compare the FTC’s past efforts to regulate hospital mergers with its potential future efforts to regulate PE investment in health care under the 2023 Merger Guidelines. The Comment also states how the 2023 Merger Guidelines still fall short of effectively regulating PE investment in health care and how healthcare-specific guidelines could improve their effectiveness. It additionally argues that it may be best to let PE investment continue until the market self-corrects. The Comment provides supplementary methods to undermine the attractiveness of PE investment for physicians, which would decrease the frequency of these transactions and speed up the economic self-correcting process. The various paths forward further support the Comments overarching argument that, as it currently stands, the FTC’s antitrust laws are not effective in regulating PE investment in health care
How the Legal Rights of Brazilian Indigenous People are Inextricable from the Preservation of Brazil’s Environment
No full textThe rights of Brazil’s Indigenous peoples have changed over time. Indigenous tribes went from original landowners, to enslaved people, to people protected by Brazil’s constitution but persistently marginalized. Through it all, Indigenous groups have protected Brazil’s Amazon Rainforest and Atlantic Forest, leading to healthy vegetation, biodiversity, and benefits to the global climate. This paper tracks how the rights of Indigenous groups correlate to the preservation of Brazil’s environment. Specifically, when Indigenous groups have more legally recognized land rights—as is deserved by their history, occupation of the land, and Brazil’s 1988 constitution—not only does the surrounding environment thrive, but also the entire Earth
A Guide for United States Firms on Maintaining the Protection and Enforcement of Trademarks and Copyrights in Mexico
No full textIntellectual property (IP) is a critical asset for many businesses. Understanding the laws governing IP is especially important in international markets, where US based businesses may face additional challenges in enforcing their rights. Targeted at business professionals, this paper details how U.S. firms can achieve strong IP protection and reduce risks associated with infringement and unauthorized use in Mexico. First, it will offer a basic overview of Intellectual Property and what may be protected under U.S. law. Then, offer an outline of the legal frameworks involved and best practices essential for safeguarding trademarks and copyrights in the Mexican market, as well as potential challenges
Vacancy Taxes: A Possible Taking?
No full textVacancy taxes are an increasingly popular solution to the paradoxical problem of high housing demand coupled with high vacancy. Cities across the country facing housing shortages have either implemented or are considering adopting vacancy taxes to encourage property owners to rent or sell their property. Soon after San Francisco adopted a vacancy tax with one of the broadest definitions of vacancy, property owners lobbed a constitutional challenge under the Takings Clause, taking advantage of a moment of doctrinal instability.
This Comment seeks to make sense of how this and similar potential challenges would fare, given an expanding, property-protective takings doctrine, but a high constitutional tolerance for taxes. Using the San Francisco vacancy tax as a concrete example, this Comment evaluates possible arguments that the tax effects a regulatory or physical taking. It contends that even this stringent vacancy tax would not be a taking under either framework, and highlights elements of a different vacancy tax or regulation that may tip the scales of this analysis. It explores original understandings of land use (and nonuse) regulations to argue that fines levied on the nonproductive use of property are a background principle of property law that generally precludes the conclusion that vacancy taxes are takings
Administrative Subordination
No full textMuch of the scholarship on immigration enforcement and environmental justice assumes that agencies negatively impact vulnerable and marginalized people as a result of individualized bias or arbitrariness in administration. This Article argues that, beyond idiosyncrasies or flaws in administrators themselves, the poor impact of administration on minorities emanates from institutional systems. In doing so, this Article introduces a framework of institutional oppression into the study of administration that illustrates how agencies subordinate minority interests to the ends of administrative competence and self-preservation.
A healthy federal bureaucracy is sustained by administrative efforts to reduce institutional burdens, improve efficiency, conserve resources, and preserve the structures underlying the agency’s power to regulate. In addition, a conventional justification for the existence of agencies is that they act on behalf of the public interest, and public interest theories of regulation prize criteria such as efficiency. Administrative actors, therefore, are motivated to pursue these values in order to maintain the administrative state.
However, as this Article shows, agencies harm marginalized communities in pursuit of these institutional virtues. Put simply, agencies mistreat vulnerable people by acting as intended. Essentially, agencies that are operating as expected perpetuate systematic bias. Ironically, by prioritizing public interest values (such as efficiency), agencies may, in fact, cause harm. Arguably, this renders agencies less efficient to the extent efficiency requires not only speed and cost savings, but also good results.
For example, immigration officials at the Department of Homeland Security (DHS) use arrest records to decide whom to deport, even if the targeted noncitizens were never convicted of a crime, because arrest records are inexpensive and accessible proxies for immigration data. The Federal Emergency Management Agency (FEMA) failed to evacuate tens of thousands of poor people of color in the wake of Hurricane Katrina both as a result of the systematic management of an institutional history of limited resources and due to FEMA’s post 9/11 placement as a subcomponent of DHS, whose focus on national security has overwhelmed FEMA’s core mandate. The Bureau of Land Management approves gas and oil leases in rural towns quickly, even though the resulting rapid labor expansion reduces the safety of Native women, because focusing on rural communities for energy project expansion allows the agency to streamline its environmental review process.
This Article’s prescription is for institutional redesign. First, from the top down, filtered through legislation, Congress could utilize small-scale, targeted appropriations and pointed procedural interventions to influence how agencies exercise discretion. Second, from the bottom up, the President or agencies themselves could instigate efforts to use more accurate information and more meaningful process. Third, a focus on reviving a government of small, discrete agencies could shape and constrain administrative discretion in ways that encourage agencies to rebalance their priorities in the implementation of law
Knock and Talks: Faithfully Applying Social Norms to Prevent Unconstitutional Police Intrusion upon the Home
Full text linkA “knock and talk” is a common police practice involving an officer approaching a home and knocking on the front door to speak with a resident. The knock and talk is a long-recognized exception to the Fourth Amendment’s warrant requirement, making it a powerful police tool to access constitutionally protected areas of the home. But courts have struggled to define the limits of a knock and talk. For example, when police officers knock and receive no answer, can they remain standing at the door, or even roam to other parts of the home?
The Supreme Court grounds the practice in a recognized social license for any person to knock on someone else’s door. But the circuits have developed a chaotic body of rulings that are unmoored from this guiding principle, allowing police to impermissibly expand the scope and duration of knock and talks. This Comment argues that the circuits have expanded or restricted knock and talks in ways inconsistent with Supreme Court precedent, resulting in numerous splits. These splits can be harmonized with a renewed focus on the social license underlying the knock and talk. This would result in common-sense rules that allow police to conduct knock and talks without undermining the Fourth Amendment’s robust protection of the home
Can Machines Commit Crimes Under U.S. Antitrust Laws?
Full text linkGenerative artificial intelligence is being rapidly deployed for corporate tasks including pricing. Suppose one of these machines communicates with the pricing manager of a competing firm, proposes to collude, receives assent, and raises price. Is this a crime under U.S. antitrust laws, and, if so, who is liable? Based on the observed behavior of the most widely adopted large language model, we argue that this conduct is imminent, satisfies the requirements for agreement and intent under Section 1 of the Sherman Act, and could confer criminal liability to both firms as well as the pricing manager of the competing firm
Gun Dealer Density and Its Effect on Homicide
No full textWe explore the relationship between gun prevalence and homicides in the United States in 2003–19. We create a novel measure of gun density in a narrow geographic area using an underutilized metric: gun dealers. We find that an increase in gun dealer density is significantly and positively associated with increased homicides in subsequent years. We compare estimates from our preferred measure to those found using other gun prevalence measures. We show that the effect of gun dealer density is limited mostly to counties with a high percentage of Black residents and metropolitan areas. We propose that the so-called Ferguson effect—a sharp increase in violent crime in urban and Black communities after 2014—might be largely explained by an influx of gun dealers in and near Black communities rather than a change in the propensity of Black residents to call the police or changes in policing