Black Metropolis Research Consortium
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Write Like You’re Running Out of Time: Prepublication Review, Retroactive Classification, and Intermediate Scrutiny
Get PDFThe Constitution’s promises of freedom of speech and common defense can, at times, be at odds. One acute example of that tension is the prepublication review process, by which the government reviews written works by certain current and former employees to ensure that they do not contain classified or other sensitive information. While this process surely has its merits in preserving national security, it also presents authors with a bureaucratic thicket that is often difficult to navigate. This process is further complicated by the fact that the government can retroactively classify documents, meaning that information that authors might have thought was fair game is instead withdrawn from the public domain. The Supreme Court has addressed prepublication review only once, in Snepp v. United States. There, the Court validated the constitutionality of prepublication review but failed to articulate its reasoning in terms of established First Amendment doctrine. This Comment clarifies the standard of review applicable to prepublication review as an articulation of intermediate scrutiny.
Once that standard of review is established, this Comment applies it to the prepublication review process. With regard to substance, this Comment argues that, under intermediate scrutiny, the government does not have a sufficient national security justification to censor unclassified information during the prepublication review process. With regard to procedure, this Comment recommends that retroactive classification decisions during the prepublication review process should be subject to document-by-document review, that the burden-shifting framework to determine whether information is sufficiently public should begin by placing the onus on the government, and that authors’ legal claims arising from the process should not be mooted by completion of the review. Taken together, these clarifications and adjustments would subtly alter incentives to ensure that the prepublication review process equitably balances the interests of both the government and authors
Global Impunity: How Police Laws & Policies In The World\u27s Wealthiest Countries Fail International Human Rights Standards
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Utility Mergers and the Modern (and Future) Power Grid
Get PDFScott Hempling’s Regulating Mergers and Acquisitions of U.S. Electric Utilities provides a comprehensive history of electric utility mergers in the United States since the 1980s. Hempling documents the dramatic consolidation the industry has seen in the past fifty years, and he convincingly argues that electric utility mergers present unique problems for regulators. This Review considers how utility acquisitions (a) allow holding companies to leverage the utilities’ creditworthiness to cross-subsidize non-utility affiliates, and (b) exacerbate informational asymmetries between regulators and utilities. It argues that utility mergers generate negative spillovers outside of the utility’s service territory that have potentially significant environmental consequences, and argues that FERC and state energy regulators have been overly reluctant to respond to these challenges even compared to regulators that oversee other heavily regulated industries
Religious Exemptions Increase Discrimination toward Same-Sex Couples: Evidence from Masterpiece Cakeshop
No full textIn 2018, the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission in favor of a baker who refused service to a same-sex couple because of his religious beliefs. This article examines the behavioral effect of this decision in an experiment that measured discrimination toward same-sex couples from 1,155 wedding businesses shortly before and after Masterpiece. I find that Masterpiece significantly reduced the willingness to serve same-sex couples as compared with opposite-sex couples, even among previously willing vendors. Considering the variety of vendors involved in a typical wedding, I estimate the odds that same-sex couples would experience discrimination after Masterpiece to be between 61 percent and 85 percent. These results show that even a narrowly construed exemption can have a significant and robust, even if inadvertent, impact on a market and its customers. I discuss the implications of these results for research on Supreme Court effects on the public
Discovery and Disclosure in a Signaling Model of Final-Offer Arbitration
No full textWe develop a signaling model of final-offer arbitration (FOA) in which the informed party makes the final settlement demand to the uninformed party. In FOA, each party submits a proposal to an arbitrator, and if no agreement is reached the arbitrator must select one of the two submitted proposals. In the context of this model, we analyze costly voluntary disclosure and costly discovery. In standard litigation models, costly disclosure may occur in the signaling game, but costly discovery never takes place. By contrast, under FOA if information transmission takes place prior to the submission of proposals to the arbitrator, costly discovery may take place. However, the incentive to engage in a voluntary disclosure is weakened relative to a standard litigation model. If information transmission takes place after the submission of proposals to the arbitrator, then the results are analogous to those found in a standard litigation model
Noncompete Agreements in the US Labor Force
No full textUsing nationally representative survey data on 11,505 labor force participants, we examine the use and implementation of noncompete agreements and the employee outcomes associated with these provisions. Approximately 18 percent of labor force participants are bound by noncompetes, with 38 percent having agreed to at least one in the past. Noncompetes are more likely to be found in high-skill, high-paying jobs, but they are also common in low-skill, low-paying jobs and in states where noncompetes are unenforceable. Only 10 percent of employees negotiate over their noncompetes, and about one-third of employees are presented with noncompetes after having already accepted job offers. Early-notice noncompetes are associated with better employee outcomes, while employees who agree to late-notice noncompetes are comparatively worse off. Regardless of noncompete timing, however, wages are relatively lower where noncompetes are easier to enforce. We discuss these findings in light of competing theories of the economic value of noncompetes