Breaking Cultural and Financial Barriers in Olympic Sports

Nelson Mandela has said that “[s]port has the power to change the world. It has the power to inspire. It has the power to unite people in a way that little else does . . . . It is more powerful than governments in breaking down barriers.” Sports can have tremendous value, not only to the individual participants in promoting physical and mental health, skills, and teamwork, but also to society in fostering community, civic pride, and a sense of belonging, even among the fans. Sports have significant economic, political and cultural impacts at the local, national, and international spheres. This Article considers a new addition to the Olympic Programme, “breaking,” as a potential means to expand Olympian demographics and “break” cultural, racial, and economic barriers. It examines the governing structure and fundamental principles of the Olympic Movement, analyzing whether breaking is itself a sport; it explores issues of defining what is a sport, who decides whether a sport fits that definition, and the process for recognizing an Olympic sport employed within the United States and at the international sport level. Finally, the Article considers whether breaking can achieve and sustain expanded opportunities and access for diverse athletes worldwide

Navigating the Tension Between Preservation and Development Pressure: Cities’ Imperative to Save Independent Music Landmarks While Simultaneously Providing for Growth

While cities can use their power to enact zoning ordinances and create historic preservation districts, these preservation ordinances vary widely across the United States, from allowing almost any type of development to strictly limiting any new development that does not match existing height, density, and use patterns. Within this framework, state legislatures have often limited the types of regulatory actions cities may take, as cities are merely political subdivisions of the state. Some states—known as “Dillon’s Rule” states—restrict cities from taking novel legislative approaches to existing policy issues, such as affordable housing, unless those powers are expressly provided to the municipalities by the state legislature. “Home rule” states, on the other hand, grant broad legislative authority to cities to act on any local issues not preempted or foreclosed by the state legislature. The current affordable housing and homelessness crises in cities across the United States cause some scholars to argue against traditional historic preservation broadly, as it often results in overinclusive or unnecessary preservation that hinders efforts to develop more densely. In fast-growing places like Nashville, Tennessee, with strong music and entertainment scenes, there is a tension between preserving notable music landmarks and the pressure to develop housing in higher densities. These cities need the power and means to generate innovative methods of determining which sites to preserve while upzoning surrounding areas. Cities tend to over-prioritize either preservation or new development without creating a logical method for preserving only those sites with continued relevance and use while facilitating new development on other sites. Where applicable, states should legislate to make it easier for Dillon’s Rule and partial or limited home rule cities to create innovative preservation schemes prioritizing sites of importance without preserving entire swaths of neighborhoods or districts unnecessarily and for aesthetic reasons alone. Cities should use existing means to develop zoning schemes with a more individual site analysis approach, allowing for the preservation of individual buildings while increasing density around them with incentives for housing development

Climate Damages, Globalism, and Federal Regulation

The U.S. Environmental Protection Agency recently proposed for public comment new higher estimates of damages from greenhouse gas (GHG) emissions. The estimates, called the social cost of carbon (SCC), are the monetary value of the net harm to society of emitting a metric ton of carbon dioxide to the atmosphere in a given year. Ranging from $120 to$340 per metric ton of carbon dioxide (C02) emitted for 2020, these estimates represent harm to everyone on earth from a metric ton of C02 emissions, and therein lies a key issue. Recent administrations have split on whether the U.S. government should assess damages from GHGs using effects on the entire globe or just on the United States. This question matters because the SCC plays a key role in implementing the Biden administration\u27s ambitious plans to address climate change. The EPA and other agencies use the SCC to estimate benefits of climate and energy regulations, such as limits to power plant emissions or standards for vehicle fuel efficiency. Higher benefits estimates generally justify more costly regulations. We believe that developing and reporting estimates of climate damages for both the United States and the entire globe would better inform the public than the global estimate alone, as the EPA has proposed. Both estimates should be used separately in calculations of benefits and costs of climate-related regulations and related policies. We agree with the EPA that the domestic SCC should not be the only measure of the SCC. As the EPA mentioned, an exclusive domestic focus would undermine U.S. policies that encourage global cooperation and would not capture the effects of climate change on supply chain disruptions that affect U.S. welfare or on U.S. business and military infrastructure abroad. Using the domestic SCC in addition to the global SCC would increase transparency about who receives the benefits, foster policy discussions about fairness and equity, furnish agencies with the flexibility to prepare analyses consistent with their statutory mandates, and provide important distributional information to help in international negotiations. The EPA\u27s proposal presents estimates for climate effects occurring physically within the United States for a limited set of damage categories but also claims these estimates cover only a subset of total damages, do not capture spillovers or indirect effects, and do not reflect benefits for U.S. citizens and residents. The EPA gives these shortcomings as major reasons for presenting only global damage estimates. We disagree. In fact, a rich set of economic and environmental data is available to support relatively complete estimates of damages to the United States. Presenting climate-control benefits to the United States is consistent with the Biden administration\u27s commitments to consider the equity effects of environmental policies. An exclusive focus on the global SCC is at odds with President Biden\u27s memorandum calling for more distributional analysis regarding dis- advantaged, vulnerable or marginalized communities in the United States. The development of a domestic SCC estimate is a prerequisite for a distributional analysis of the effects on such communities. The EPA\u27s proposal asserts that the U.S. use of a global estimate of damages will encourage other nations to reduce future emissions. But this seems like wishful thinking. Most countries are already failing to meet their pledged non-binding commitments under the 2015 Paris Agreement. It is longstanding practice in U.S. regulatory analysis to incorporate only those changes in behavior required by current law or binding agreements, not goals or pledges. In addition, focusing strictly on global SCC presumes that U.S. policy- makers are indifferent about whether climate-control benefits occur in the United States or elsewhere in the world. Such indifference would be surprising news to members of Congress and to U.S. taxpayers and voters, who have a right to know the benefits of GHG emissions cuts to the United States and the rest of the world. The choice to develop domestic as well as global SCC estimates affects incentives to both the EPA and the outside academy to improve such estimates. The EPA has chosen to develop a global SCC estimate, a summary measure of a dauntingly complex reality. The agency\u27s failure to provide a domestic SCC estimate might effectively chill efforts to improve the technical quality of such estimates. The EPA should consider and report estimates of the benefits to the United States from GHG emissions reductions. Focusing solely on global benefits of such reductions without considering the corresponding benefits to the United States provides inadequate transparency to Americans who will bear the costs of emissions restrictions adopted by U.S. regulators

The Problematic Forgotten Buyback

Totaling in excess of $100 billion dollars in transactions annually, debt buybacks allow a company to repurchase bonds from investors, rewriting bargains and stripping away creditor control rights in the process. This Article shows that regulation systematically underprotects bondholders in the context of debt buybacks. It makes three points. First, bondholders confront information asymmetries that enable issuers to buy back creditor claims cheaply. Regulation imposes near negligible requirements on issuers to disclose information about the transaction. Lacking fiduciary protection, bondholder interests are vulnerable to being extinguished by issuers in the interests of promoting those of shareholders and managers. Second, buybacks diminish the power of creditor control rights. Alongside information asymmetries, bondholders confront coordination costs and tight deadlines within which to evaluate the terms of a buyback and changes to bondholder control rights. Owing to these costs, issuers can systematically underprice control rights. Bondholders will not act where the gains of agitation will be less than the cost of information gathering, coordination, and action. By strategically underpricing a buyback by an amount approximating these transaction costs, an issuer can pocket the difference between the price paid for the claim and that which should have been paid to bondholders for their bargain. Third, debt buybacks can allow one set of creditors-—notably, banks-—to extract value from bondholders. By pushing an issuer to buy back bond claims cheaply, banks-—usually with greater individual exposure through loans-—can increase their chances of being repaid. They can also acquire a more powerful voice in the issuer’s internal governance by muting that of bondholders. In highlighting regulation’s forgotten but problematic buyback, this Article offers two proposals to bolster bondholder protection, advocating for greater disclosure and contractual fixes to safeguard the value of claims. These proposals help to preserve the welfare of investors and protect their longer-term confidence in debt capital allocation

Growth ≠ Density: Zoning Deregulation and the Enduring Problem of Sprawl

According to its many critics, zoning bears significant responsi- bility for the housing crisis in America andfor promoting unsustain- able development patterns. Reformers argue that zoning reduces the supply of new housing and therefore drives up prices in thriving communities. Zoning also increases carbon emissions by restricting density in the urban core and promoting carbon-intensive, land- consuming, automobile-dependent sprawl in single-family suburbs. A growing chorus calls for relaxing zoning limits in order to pro- mote growth in the urban core as a response to the twin crises of housing costs and climate change. Relaxing zoning limits will al- most certainly promote growth but may not promote density. Some of the most loosely zoned cities in America are also the least dense. This symposium contribution examines the relationship between density and zoning intensity and finds that density is loosely corre- lated with more intensive zoning, not less. This is not a causal claim but nevertheless raises questions whether zoning deregulation will necessarily produce both growth and density

Notes on Continental Constitutional Identities

Geo-constitutional analysis examines the reciprocal effect of geography on constitutions. Within this analysis, a continental constitutional identity focuses on the intersection between institutional geographies and institutional identities, where constitutions are understood as meta-institutions. In some constitutions, belonging to a continent is part of the national identity, while other constitutions only signal a non-geographic, usually an ethnic, identity. The US Constitution is an example of the former. The quintessential example of a non-geographic constitution is the Constitution of the Russian Federation. A similar disregard of continental identities can be found in Israel and the Arab League countries east of the Sinai Peninsula, in contrast to North African constitutions west of this peninsula. The potential for armed conflict due to the presence or absence of these identities can be mitigated by continental nesting (i.e., by aligning the geographic and socio-political characterization of a continent). The Article illustrates this approach in the context of Africa, arguably the least geopolitically misaligned among Old World continents, by explaining why a post-colonial Africa includes Israel and all Arab League countries. Similar analysis of other continents can explain how to mitigate intra- and intercontinental conflict by explicitly nesting constitutional identities within continents based on evolving geopolitical exigencies

The National Security Consequences of the Major Questions Doctrine

The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms. In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare are generally based on extremely broad delegations of authority from Congress. The major questions doctrine (MQD) threatens the ability to fight modern conflicts for two reasons. First, classic national--security-related conflicts-—wars of territorial conquest, terrorism, or nuclear proliferation—- increasingly are met with economic measures. But the statutes that authorize economic warfare actions are incredibly broad and recent administrations have interpreted these statutes in ways that risk running afoul of an expansive and free-form MQD. Second, “foreign affairs exceptionalism,” in which the Court decides not to apply the MQD to statutes involving foreign affairs, is not likely to work well as a response because what is “foreign” and “domestic” cannot be easily distinguished and attempts to do so will have perverse consequences. The MQD raises serious problems for foreign affairs and national security. If the MQD is applied to domestic, but not foreign, delegations, then the executive branch will have an incentive to use broad foreign affairs delegations to accomplish domestic policy objectives in order to evade the safeguards and limits that attend domestic administrative action. At the same time, judges will have to police the porous boundary between “foreign” and “domestic,” with especially high error costs because wrong decisions will affect national security. If the MQD is applied to economic delegations that touch foreign commerce, the most likely consequence is that judges—-particularly lower court judges-—will be put in the position of second-guessing executive branch decisionmaking on precisely those questions-— economic foreign policy questions of deep economic and political significance—-on which the political branches enjoy both constitutional primacy and institutional expertise. This result is troubling; judges lack the knowledge and training to make effective decisions bearing on foreign policy, and putting them in the position to do so contravenes the norms of our legal system

Deplatforming

Deplatforming in the technology sector is hotly debated, and at times may even seem unprecedented. In recent years, scholars, commentators, jurists, and lawmakers have focused on the possibility of treating social-media platforms as common carriers or public utilities, implying that the imposition of a duty to serve the public would restrict them from deplatforming individuals and content. But, in American law, the duty to serve all comers was never absolute. In fact, the question of whether and how to deplatform-—to exclude content, individuals, or businesses from critical services—- has been commonly and regularly debated throughout American history. In the common law and the major infrastructural and utility sectors-—transportation, communications, energy, and banking-—American law has long provided rules and procedures for when and how to deplatform. This Article offers a history and theory of the law of deplatforming across networks, platforms, and utilities. Historically, the American tradition has not been one of either an absolute duty to serve or an absolute right to exclude. Rather, it has been one of reasonable deplatforming—- of balancing the duties to serve and the need to, in limited and justifiable cases, exclude. Theoretically, deplatforming raises common questions across sectors: Who deplatforms? What is deplatformed? When does deplatforming occur? What are permissible reasons for deplatforming? How should deplatforming take place? The Article uses the history of deplatforming to identify these and other questions, and to show how American law has answered them. The history and theory of deplatforming shows that the tension between service and exclusion is an endemic issue for common carriers, utilities, and other infrastructural services—-including contemporary technology platforms. This Article considers ways in which past deplatforming practices can inform current debates over the public and private governance of technology platforms

Against Political Theory in Constitutional Interpretation

Judges and academics have long relied on the work of a small number of Enlightenment political theorists-—particularly Locke, Montesquieu, and Blackstone—-to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the Framers did not write the Constitution in the image of the philosophy of Montesquieu, Locke, or Blackstone. Instead, they developed a new form of government to meet what they perceived to be the needs of a nascent republic. And third, the Constitution itself departs from the dominant strands of Enlightenment political theory in crucial respects. For example, while some Enlightenment theorists advocated for precisely divided federal powers, the Framers favored a system of procedural checks, not formal separation. Thus, while Enlightenment works can be normatively persuasive or act as a guide to historical meaning, they should be treated as presumptively irrelevant in constitutional interpretation. Unless the party who would invoke an Enlightenment political theorist can produce evidence of consensus or common ground about that theory from an episode of American constitutional debate, the theorist’s prescriptions are no more probative than any other work of normative political theory

Book Review: Grease or Grit?

Grease or Grit? International Case Studies of Occupational Licensing and Its Effects on Efficiency and Quality. Edited by Morris M. Kleiner and Maria Koumenta. Kalamazoo, MI: W.E. Upjohn Institute for Employment Research, 2022. 174 pp. ISBN 9780880996860, $20 (paperback); ISBN 9780880996877,$9.99 (e-book). Occupational licensing remains poorly understood. This is true even after decades of illuminating empirical work by Morris Kleiner, one of the authors of Grease or Grit? International Case Studies of Occupational Licensing and Its Effects on Efficiency and Quality, showing that licensing—a government-granted right to perform a particular service—raises prices to consumers, restricts entry into an occupation, reduces interstate mobility of the workforce, and contributes to income inequality. And it remains true after economists studying the phenomenon from other jurisdictions, including his British co-author Maria Koumenta, have shown the same outcomes. One important missing piece of the licensing puzzle is that we know little about licensing’s payoff. It is not enough to criticize occupational licensing as costly to consumers and workers if we do not know whether its purported benefits, such as safer, better, and more professional service, are worth it. This side of the cost-benefit analysis of professional licensing has been lacking because unlike wages, prices, and employment, service quality is almost impossible to measure objectively. How can researchers code for good legal advice? Which architects make more beautiful buildings? How can a physician’s bedside manner—or surgical competence, for that matter—be reduced to a numerical score and empirically evaluated? Without hard evidence about quality, critics of licensing have few concrete measures to point to when proponents of licensure (usually the professions themselves) seek regulation that in theory (and maybe only in theory) leads to better professional service