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Volume 114 - Issue 5


On Beauty and Policing

I. India Thusi | March 16, 2020

“To protect and serve” is the motto of police departments from Los Angeles to Cape Town. When police officers deviate from the twin goals of protection and service, for example by using excessive force or by maintaining hostile relations with the community, scholars recommend more training, more oversight, or more resources in policing. However, police appear to be motivated by a superseding goal in the area of sex work policing. In some places, the policing of sex workers is connected to police officers’ perceptions of beauty, producing a hierarchy of desirable bodies as enforced by those sworn to protect and serve us all.

This Article examines how police preserve racial and gender subordination in South Africa, an instructive analog for the United States because of both nations’ shared histories of racial apartheid and valorization of whiteness. Drawing from extensive original data from a multiyear study, this Article exposes how police officers’ perceptions about sex workers’ beauty influenced their policing of different classes of sex workers in Johannesburg, South Africa. Police valuations about sex workers’ beauty resulted in benevolent surveillance of sex workers who were higher on the social hierarchy and decreased police protection for sex workers whom they viewed as less beautiful in more dangerous areas of the community. If community protection and service were the primary motivators for police conduct, police officers should have focused on the spaces that were more dangerous, which were those with sex workers police deemed less professionalized and less beautiful.

This act of assigning value to different bodies, through the subjective language of aesthetics and beauty, reinforced existing racial and sexual hierarchies. Beauty was a proxy for race. Police assigned higher values to whiter and more European bodies, and discounted blacker bodies as foreign and less beautiful. So blacker bodies, which were less valuable than whiter bodies in their eyes, were simultaneously neglected yet susceptible to more brutal forms of policing during their limited interactions with police. Whiter feminine bodies were both well-protected and subject to the constant gaze of the police. These whiter bodies were ignored when they challenged white masculinity, but prioritized over blacker bodies. Reinforcing the higher value of whiter bodies over blacker bodies took precedence over reducing crime, suggesting that police serve and protect racial hierarchies in countries that have a history of white supremacy before they serve and protect the people.

Testing Transparency

Brigham Daniels, Mark Buntaine & Tanner Bangerter | March 16, 2020

In modern democracies, governmental transparency is thought to have great value. When it comes to addressing administrative corruption and mismanagement, many would agree with Justice Brandeis’s observation that sunlight is the best disinfectant. Beyond this, many credit transparency with enabling meaningful citizen participation.

But even though transparency appears highly correlated with successful governance in developed democracies, assumptions about administrative transparency have remained empirically untested. Testing effects of transparency would prove particularly helpful in developing democracies where transparency norms have not taken hold or only have done so slowly. In these contexts, does administrative transparency really create the sorts of benefits attributed to it? Transparency might grease the gears of developed democracies, but what good is grease when many of the gears seem to be broken or missing entirely?

This Article presents empirical results from a first-of-its-kind field study that tested two major promises of administrative transparency in a developing democracy: that transparency increases public participation in government affairs and that it increases government accountability. To test these hypotheses, we used two randomized controlled trials.

Surprisingly, we found transparency had no significant effect in almost any of our quantitative measurements, although our qualitative results suggested that when transparency interventions exposed corruption, some limited oversight could result. Our findings are particularly significant for developing democracies and show, at least in this context, that Justice Brandeis may have oversold the cleansing effects of transparency. A few rays of transparency shining light on government action do not disinfect the system and cure government corruption and mismanagement. Once corruption and mismanagement are identified, it takes effective government institutions and action from civil society to successfully act as a disinfectant.

Horizontal Directors

Yaron Nili | March 16, 2020

Directors wield increasing influence in corporate America, making pivotal decisions regarding corporate affairs and management. A robust literature recognizes directors’ important role and examines their incentives and performance. In particular, scholars have worried that “busy directors”—those who serve on multiple corporate boards—may face time constraints that affect their performance. Little attention, however, has been paid to directors who sit on the boards of multiple companies within the same industry. This Article terms them “horizontal directors” and spotlights, for the first time, the legal and policy issues they raise. The “horizontal” feature of directorships, a term often used in the antitrust context, could stifle competition and effectively consolidate industries, yet risks being overlooked by scholars, practitioners, and regulators alike.

This Article makes two contributions to the literature. First, it is the first to empirically identify the phenomenon of horizontal directors. It does so through an original dataset that reveals the staggering number of directors who serve on the boards of two or more companies operating within the same industry. Second, the Article uses the context of horizontal directors to illuminate the push and pull between the priorities of corporate governance and antitrust law. Horizontal directorships simultaneously raise antitrust concerns regarding collusion and coordination, which could stifle competition, while also serving the goals of corporate governance by maximizing shareholder value. This Article bridges the corporate governance and antitrust literatures, offering a set of potential reforms to address horizontal directorships.

Qualified Immunity’s Selection Effects

Joanna C. Schwartz | March 16, 2020

The Supreme Court has described the “driving force” behind qualified immunity to be its power to dismiss “insubstantial” cases before discovery and trial. Yet in a prior study of 1,183 Section 1983 cases filed against law enforcement in five federal court districts around the country, I found that just seven (0.6%) were dismissed at the motion to dismiss stage and just thirty-one (2.6%) were dismissed at summary judgment on qualified immunity grounds. These findings undermine assumptions about the role qualified immunity plays in filed cases, but leave open the possibility that qualified immunity serves its intended role by screening out insubstantial cases before they are ever filed. Indeed, some have raised this possibility as reason to maintain the status quo.

This Article tests this alternative “screening” justification for qualified immunity. Drawing on my prior study of 1,183 Section 1983 cases, as well as qualitative data from ninety-four surveys and thirty-five interviews of attorneys who entered appearances on behalf of plaintiffs in those cases, I find that qualified immunity almost certainly increases the cost, risk, and complexity of constitutional litigation, but has a more equivocal effect on attorneys’ case-selection decisions. Attorneys do not reliably decline cases vulnerable to attack or dismissal on qualified immunity grounds. And when lawyers do decline cases because of qualified immunity, they do not appear to be screening out “insubstantial” cases under any plausible definition of the term. These empirical findings enrich our understanding of the role qualified immunity plays in civil rights cases, contribute to mounting evidence that qualified immunity doctrine fails to achieve its intended policy goals, and support growing calls to better align the doctrine with the realities of constitutional litigation.