Black Metropolis Research Consortium

University of Chicago Law School: Chicago Unbound
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    22232 research outputs found

    Non-Retrogression Without Law

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    For five straight cycles (the 1970s through the 2010s), Section 5 of the Voting Rights Act dominated redistricting in states covered by the provision. In these states, district plans had to be precleared with federal authorities before they could be implemented. Preclearance was granted only if plans wouldn’t retrogress, that is, reduce minority representation. Thanks to the Supreme Court’s 2013 decision in Shelby County v. Holder, Section 5 is no longer operative. So what happened to minority representation in formerly covered states after Section 5’s protections were withdrawn? This Article is the first to tackle this important question. We examine all states’ district plans before and after the 2020 round of redistricting at the congressional, state senate, and state house levels. Our primary finding is that there was little retrogression in formerly covered states. In sum, the number of minority ability districts in these states actually rose slightly. We also show that formerly covered states were largely indistinguishable from formerly uncovered states in terms of retrogression. If anything, states unaffected by Shelby County retrogressed marginally more than did states impacted by the ruling. Lastly, we begin to probe some of the factors that might explain this surprising pattern. One possible explanation is the status quo bias of many mapmakers, which is reflected in their tendency to keep minority representation constant. Another potential driver is many line-drawers’ reluctance to use retrogression as a partisan weapon. This reluctance is evident in the similar records of all redistricting authorities with respect to retrogression, as well as in the absence of any relationship between retrogression and change in plans’ partisan performance

    Insider Abstention and Rule 10b5-1 Plans

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    Company insiders will typically be in possession of material non-public information (MNPI) about their companies. In order to allow insiders the opportunity to trade, the SEC adopted Rule 10b5-1, which provides an affirmative defense to insider trading liability if the trades are made pursuant to a written plan or trading instruction entered into when the trader was not aware of MNPI. Over the years, there has been considerable concern that insiders were abusing Rule 10b5-1 plans by adopting plans just prior to trading, adopting multiple plans, or even terminating plans when they turned out to be unprofitable. The SEC recently adopted new rules designed to curb some of the more abusive practices, but one significant problem remains: while Rule 10b5-1 plans are supposed to be irrevocable, insiders who back out of plans have so far escaped liability under the central anti-fraud provision of the federal securities laws, principally because a violation of that provision requires an actual trade. The issue of “insider abstention”—insiders who decide not to trade based on MNPI—has long bedeviled insider trading law and policy. Insider abstention is typically undetectable and unknowable, raising insurmountable issues of proof, while the general requirement that fraud be “in connection with the purchase or sale of a security” imposes a rigid legal barrier. But Rule 10b5-1 plans stand on a different evidentiary footing: they are written plans, communicated to third parties, creating a clear record of intent. The only real question is whether legal liability can attach in the absence of an actual purchase or sale of a security. Traditionally, the answer to this question has been no. The SEC staff has stated on a few occasions that cancellation of a Rule 10b5-1 plan would not in itself lead to liability under Rule 10b-5 because terminating a plan would not meet the “in connection with” requirement. However, Rule 10b5 is not the only statutory provision that has been used to prosecute insider trading. The SEC has frequently prosecuted insider trading under Section 17(a) of the Securities Act, a provision that applies not only to the “sale” of securities but extends more broadly to “offers” to sell securities. And criminal authorities have increasingly been prosecuting insider trading under mail and wire fraud statutes that do not have an “in connection with” requirement at all. These other statutory provisions could provide a basis for insider trading liability in the context of a cancelled or terminated Rule 10b5-1 plan

    Lost Time: Paying for Delays Associated with Labor Strikes and Traffic Jams (chapter in a coming book: Research Handbook on Law and Time)

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    Waiting is often costly. In many settings, one party delays to impose costs on another. In other settings, delay yields a small gain while imposing significant costs on others who cannot easily bargain. Where the parties can bargain, at least one expects the other to relent and to bring about a settlement that is mutually beneficial. Inasmuch as time offers the opportunity to gather information, compare alternatives, and reach yet better bargains, law does not and should not simply discourage all delays. On the other hand, it is often the case that when parties delay before reaching a bargain, they not only suffer costs, but they also impose costs on third parties who had little opportunity to shorten the delay. It is these costs that are examined in this Chapter, along with an idea for lowering these third-party costs. When this can be done, the costs of delay to the bargaining parties are also likely to be decreased. They might be happy to have a legal rule that appears to tax them but that often encourages quicker agreement and lower delay costs

    Brexit Backslide: How the United Kingdom’s Break from the European Union Could Erode Female Labor Rights

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    Britain’s retreat from the E.U. has demonstrated the deep connection between its domestic law and E.U. law and the dangers that can arise when a country attempts to disentangle the two. With the recent passage of the Retained E.U. Law (Revocation and Reform) Act, the resulting absence of E.U. law in British domestic law may create legal holes that leave women in the workforce without protection from discrimination. International organizations and treaties, such as the Convention on the Elimination of All Forms of Discrimination Against Women and the International Labor Organization, may be used to patch these holes. Moreover, Britain may find inspiration from other Organization for Economic Cooperation and Development countries which have successfully protected women. This Comment serves as a cautionary tale for other European countries which may someday seek to exit the E.U., and provides a path forward for British activists looking to protect the rights of women in the workforce

    Predictability and Adaptation in Law and other Markets (chapter in a coming book: Research Handbook on Law and Time)

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    People and enterprises that are subject to the law find it useful to know what the law is at present, but then also to anticipate future rules. If laws are stable this is easily done. Stability is more common where the judicial branch is concerned, because precedents are often valued, and for good reason. They are more often followed by judges than by those involved in other methods of lawmaking. But in all of lawmaking, and even in the private sphere, there is value to consistency and certainty. And yet, surprises can be attractive if they are not confronted on a regular basis. In extreme cases, expectations can be usefully upended, as is intentionally the case with much retroactive lawmaking. As times change, and new circumstances and information become known, there is often reason for law, and certainly for private decisions and apparent preferences, to change and presumably to improve. This Chapter considers the optimal level of certainty over time. One conclusion is trivial: people would prefer a world in which law changes only when the value of change is greater than the value of certainty. Efficiency and utility are features of an endgame, and these goals are more important than is the process of decision-making, where predictability is often a means to the end, and simply a short-term instruction. At the other end of the spectrum from predictability, or reversals in the case of new information, is the possibility of introducing a random element in law, so that neither the lawmaker, the governed parties, not interest groups eager to get friendly laws enacted, know what to expect. Randomization is rare and would often suggest that lawmakers have no idea what they are doing. At the same time, both certainty and change can be costly in many ways. If predictability is treated as a goal or as a firm rule, new information and circumstances are ignored. And yet, a subtle objection to mistaking the goal of utility with the process of achieving it, or background rule of certainty, is that if people know that a rule will change, there is nearly inevitable discrimination between parties who entered a system of lawmaking at different times. This discrimination is normally objectionable on both moral and public-choice grounds. The tradeoff between predictability and a willingness to change, or simply to surprise people, is complicated, but some examination of this tradeoff in different settings is illuminating. This Chapter begins with the tradeoff between predictability and change over time. It then turns to the connection between change and uneven treatment, and competition among organizations that can serve and exploit this inequality, or simply different preferences

    The Border’s Migration

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    The border has never played a larger role in the American psyche than it does today, and yet it has never been less legally significant. Today, a noncitizen’s place of residence tells you less about what rights and privileges they enjoy than it ever has in the past. The border has migrated inward, affecting many aspects of non-citizens’ lives in the United States. The divergence between the physical and legal border is no accident. Instead, it is a policy response to the perceived loss of control over the physical border. But the physical border remains porous despite these legal changes. People keep migrating even as we continue to draw boundaries within communities, homes, and workplaces far away from the border. This paper explores how U.S. law has evolved to render the border superfluous, even as its symbolic importance has grown, and how it might further evolve in the future

    Dividing the Body Politic

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    It has long been assumed in large, modern, democratic states that the successful practice of democratic politics requires some kind of internal division of the polity into subunits. In the United States, the appropriate methods and justifications for doing so have long been deeply and inconclusively contested. One reason for the intractability of these disputes is that American practices of political self-division are rooted in, and have been largely carried forward from, premodern practices that rested originally on overtly illiberal assumptions and justifications that are difficult or impossible to square with contemporary commitments to philosophical liberalism. The possibility of sorting things out in a rational way—long the object of legal and political science scholarship in the field—has recently been greatly complicated by an unexpected resurgence of various forms of illiberalism, especially populist authoritarianism, a conception of popular self-governance that rejects liberal understandings of democratic processes and politics. This new political alignment is especially complicating because liberals and illiberals disagree profoundly about the nature of the body politic, its susceptibility to division, and the significance and proper goals of such division. This Article traces the evolution of American practices of political selfdivision from premodernity through the present, explores how present political trends affect longstanding disputes over practices of legislative districting, and concludes with a brief examination of some possible ways of establishing a workable modus vivendi

    Labor Market Traps

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    Some products, notably but not only platforms, increase in value for users as the number of other users increases. These interaction or network effects can result in “product market traps” (Bursztyn et al., 2023) where people who use the product would be better off if they all stopped using it and switched to another product, but cannot because of coordination problems. A parallel but overlooked phenomenon is the labor market trap, where employees would be better off if they collectively left an employer, job, or profession, but cannot because of the difficulty of coordination. Product market and labor market traps pose a challenge to public policy because of the complexity of people’s behavior in networks, but can be mitigated in some cases with relatively simple taxes and regulatory interventions

    Cross-Border Influencers: Democracy and Externalities

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    This Article explores the fact that United States law permits domestic crossborder political influences while restricting foreign interference in elections. It tries to show that the law is inconsistent in trying to balance its faith in democracy (in a given jurisdiction) with its concern for externalities. Laws forbidding all cross-border attempts to influence politics would seem to reflect the view that decision-making processes across a border should be respected rather than subject to interference, assuming that the other jurisdiction is reasonably democratic. The analysis explores, and offers examples of, the interaction between a faith in democracy and the consideration of externalities, such as cross-border pollution

    The Ascertainable Standards that Define the Boundaries of the SEC’s Rulemaking Authority

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    On the heels of the U.S. Supreme Court’s decision in West Virginia v. Environmental Protection Agency, the “major questions” doctrine quickly came to be perceived as a significant impediment to the finalization of the Securities and Exchange Commission’s proposed rule on climate-related disclosures. This Article presents a new argument against finalization, an argument that does not require the application of the major questions doctrine. This argument finds its authority in the policy objectives and the one policy constraint found in the statutes that underlie the proposed rule. These policy standards, referred to as ascertainable standards in the Article, not only provide guidance to the SEC in its rulemaking, including the promulgating of rules on climate-related disclosures, but also identify the boundaries of authority that the SEC must not cross. The SEC has exceeded its delegated authority in promulgating its proposed rule on climate-related disclosures by not adhering to the ascertainable standards found in the 33 and 34 Acts: “for the protection of investors,” promoting “efficiency, competition, and capital formation,” and “materiality.” These ascertainable standards are identified through the application of the “intelligible principle” test of the nondelegation doctrine and apply to all SEC rulemaking promulgated under these Acts, not just the proposed climate-related disclosures. Moreover, it would not be surprising to find that if a review of all SEC rules and interpretations were to occur, many of them would be found to violate the boundaries of the SEC’s discretionary authority


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