Black Metropolis Research Consortium
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Can Shareholder Proposals Hurt Shareholders? Evidence from Securities and Exchange Commission No-Action-Letter Decisions
No full textThis paper studies Securities and Exchange Commission (SEC) no-action-letter decisions that determine whether companies can exclude shareholder proposals from their proxy statements. During 2007–19, the market reacted positively when the SEC permitted exclusion, which suggests that investors viewed those proposals as value reducing on average. We also find that a company’s stock price decreased over time while waiting for an SEC decision, which suggests that challenged proposals imposed distraction costs on companies. The SEC’s decisions can be predicted by regulatory rules but are also related to a proposal’s predicted votes—more popular types of proposals were less likely to be removed. We find no robust evidence that no-action-letter decisions differed when the SEC was controlled by Democrats versus Republicans. Taken together, the evidence suggests that managers may be serving shareholder interests in opposing some proposals and that the no-action-letter process may be helping shareholders by weeding out value-reducing proposals
The Effect of Own-Gender Jurors on Conviction Rates
No full textDespite concerns about gender bias in general and jurors’ gender in particular, little is known about the effect of jurors’ gender on conviction rates. We identify the effect of own-gender jurors by exploiting random variation in the assignment to and ordering of jury pools in two large Florida counties. Results indicate that own-gender jurors are significantly less likely to convict on drug charges, though we find no evidence of effects for other charges. Estimates indicate that adding one own-gender juror (∼1.6 standard deviations) results in a 30-percentage-point reduction in conviction rates on drug charges, which is highly significant even after adjusting for multiple comparisons. These findings highlight how drawing an opposite-gender jury can impose significant costs on defendants and demonstrate that own-gender bias can occur even in settings where the importance of being impartial is actively pressed on participants
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
Safety, Health, and Union Access in Cedar Point Nursery
No full textFrom the late 1960s until the mid-1970s the United Farm Workers (UFW ) union was embroiled in a war, and not merely a figurative one, with a corrupt coalition of agricultural employers and the International Brotherhood of Teamsters (IBT). During this era, union organizing of California farmworkers was plagued by open, violent conflict. After years of such bloody confrontations, the California legislature enacted a labor law designed to allow the UFW to engage in peaceful unionization efforts and win representation rights through secret ballot elections. Winning union elections, in turn, would position the UFW to secure its substantive goals: collective bargaining agreements that protect farmworkers from pesticide poisoning and raise their wages. The Agricultural Labor Relations Act (ALRA) of 1975 was thus California’s attempt to replace open warfare with a union elections process that would enable farmworkers to peacefully bargain for safety and health and livable wages.1 The access provision challenged in Cedar Point Nursery v. Hassid 2 —which gives union organizers the right to talk to farmworkers on grower property as part of the election process—is an integral piece of that labor law.3
California needed to enact a special labor law for farmworkers because agricultural workers are excluded from the coverage of federal labor law and have been since the beginning; the National Labor Relations Act’s (NLRA) definition of employee does “not include any individual employed as an agricultural laborer.”4 The ALRA however provides farmworkers with a process for organizing and electing union representatives similar to the one contained in the NLRA.5 The process involves union organizers speaking with farmworkers, asking them to sign cards authorizing union representation, and then petitioning for a secret ballot election in which the workers vote yes or no on unionization.6 If the workers vote to unionize, the grower-employer then has a legal obligation to bargain collectively with the workers’ union over terms and conditions of employment, including safety and health.7
Given the difficulties inherent in building electoral support among a highly mobile workforce,8 the Agricultural Labor Relations Board (ALRB)—the state agency charged with administering the Act— promulgated a rule establishing that the right to unionization includes “the right of access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support.”9 Under this access provision, a maximum of two union organizers may enter an employer’s property in order to speak to workers for a maximum of three hours in a day— one hour before work begins, one hour during the workers’ lunch break, and one hour after work ends—during a maximum of four thirty-day periods in a year.10 Because the right to access is tied to the union electoral process, it terminates after an election is held.11 A stated purpose of both the statute and the regulation is “bringing certainty and a sense of fair play to presently unstable and potentially volatile conditions in the agricultural fields of California.”12
The access provision was challenged by two large California agricultural employers (“growers”) as effecting an unconstitutional taking of property under the Fifth and Fourteenth Amendments.13 In its opinion, the Supreme Court is clear about its normative orientation to the challenge: it writes that judicial protection of property rights “is necessary to preserve freedom” and “empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them.”14 Wary of California interfering with large agricultural employers’ ability to shape their own destinies, the Court holds that the union access provision “appropriates for the enjoyment of third parties the owners’ right to exclude.” And because the “right to exclude 15 is one of the most treasured rights of property ownership,” the state regulation granting limited access to the growers’ property constitutes a per se physical taking.16 California, if it wishes to provide union organizers access to grower property, must pay the growers for that access
The practical implications of the Cedar Point holding for labor law, outside the California farmworker context, are—for better or worse— most likely limited.17 This is true because union access rights in the rest of the private sector have already been decimated by the Supreme Court through its cramped reading of the NLRA. In Lechmere, Inc. v. NLRB, decided in 1992, the Court held that union organizers have no right to access employees on company property except in the very rare cases where employees are “by virtue of their employment, . . . isolated from the ordinary flow of information that characterizes our society.”18 Describing the union’s burden of establishing the requisite isolation as a “heavy one,” the Lechmere rule allows access only in contexts like logging and mining camps—contexts that hardly exist today.19
To be sure, Cedar Point meaningfully limits the prospects for legislative amendments to the NLRA that would expand organizer access rights. Recognizing, as California did, the critical importance of such access rights—recognizing, as the access regulation itself states, that the effectiveness of unionization rights “depends in some measure on the ability of employees to learn the advantages [] of organization from others”20—numerous scholars and policy makers have argued that the NLRA ought to be amended in just this way.21 Those attempts now face a constitutional barrier. And Cedar Point may also threaten, or at least raise questions about, other important NLRB doctrines, including those regarding access rights for off-duty employees and off-site employees,22 and potentially those regarding employee use of employer email systems23 and employee rights to discuss unionization at work.24
The focus of this essay is not, however, on what Cedar Point may or may not imply about future doctrinal development. Nor is it about the very important ways in which the case exemplifies this Supreme Court’s privileging of business interests over workers’ rights,25 its elevation of property values over democratic ones,26 and its denigration of unions across multiple areas of law.27 Instead, this essay makes a different argument: that Cedar Point is internally inconsistent and that it is wrong on its own terms. The fact that such internal inconsistency— with its predictable political slant—is all too common for this Court neither excuses the practice nor renders a critique of it moot
In Defense of 5G: National Security and Patent Rights Under the Public Interest Factors
Get PDFSection 337 of the Tariff Act of 1930 authorizes the International Trade Commission (ITC) to stop—or “exclude”—patent-infringing imports. Exclusion orders protect the country against unfair trade practices and help enforce U.S. patent rights. But before issuing an order, the ITC is required by Section 337 to consider the order’s harm to the public health and welfare, its effect on competitive conditions, the availability of substitutes, and the harm to consumers. Because it rarely finds that these “public interest factors” outweigh the benefits of patent enforcement, the ITC has mostly granted exclusion orders despite growing concerns related to the public’s reliance on imported mobile technology.
5G—the next generation of mobile technology—promises to connect our homes, cars, and hospitals to digital networks across the country. With great promise comes great risk. The growing threat of hacking from foreign adversaries like China and Russia, coupled with the concentrated nature of 5G innovation, raises urgent cybersecurity concerns. From 2017 to 2019, two ITC administrative law judges in Apple- Qualcomm investigations disagreed over whether 5G concerns justified the denial of an exclusion order. This Comment argues that the ITC may lawfully interpret Section 337 to consider 5G–national security risks under the public interest factors and proposes a cybersecurity framework to assess the policy weight of these risks. These analyses will guide businesses and ITC officials through the next generation of patent dispute
