Black Metropolis Research Consortium
University of Chicago Law School: Chicago UnboundNot a member yet
22435 research outputs found
Sort by
Anti-Patents
Full text linkConventional wisdom has long perceived the patent and tort systems as separate legal entities, each tasked with a starkly different mission. Patent law rewards novel ideas; tort law deters harmful conduct. Against this backdrop, this Essay uncovers the opposing effects of patent and tort law on innovation, introducing the “injurer-innovator problem.” Patent law incentivizes injurers—often uniquely positioned to make technological breakthroughs—by allowing them to profit from licensing their inventions to competitors. Yet tort law, by imposing liability for failures to invest in care, forces injurers to incur the cost of implementing their own inventions. When the cost of self-implementation exceeds the revenues that may be reaped from patenting new technologies, injurers are better off refraining from developing socially desirable inventions. The injurer-innovator problem remarkably persists under both negligence and strict liability regimes, and in the face of different victim types. Multiple real-world examples demonstrate the extent and pervasiveness of this phenomenon.
To realign the incentives provided by the patent and tort systems, this Essay proposes a new legal construct: anti-patents. While a standard patent grants an inventor the exclusive right to use its invention, an anti-patent creates the converse exclusivity regime: the inventor, and only the inventor, is not required to use the invention. Importantly, anti-patents retain the existing patent protection, allowing injurer-innovators to charge monopolistic prices from competitors but simultaneously eliminating the obstacle created by tort law. An injurer-innovator who owns an anti-patent will enjoy immunity from the heightened standard of care to which the rest of the industry would now be subject. The Essay further shows that the antipatent mechanism not only succeeds at harmonizing patent and tort law toward the advancement of technological progress but also outperforms alternative schemes employed to stimulate innovation (i.e., prizes, grants, and tax benefits). Finally, it ties the logic that underlies anti-patents to existing doctrines designed to elicit the disclosure of private information
Predictability and Adaptation in Law and other Markets (chapter in a coming book: Research Handbook on Law and Time)
Full text linkPeople 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
Deploying Trustworthy AI in the Courtroom: Lessons from Examining Algorithm Bias in Redistricting AI
Full text linkDeploying trustworthy AI is an increasingly pressing and common concern. In a court of law, the challenges are exacerbated by the confluence of a general lack of expertise in the judiciary and the rapid speed of technological advancement. We discuss the obstacles to trustworthy AI in the courtroom through a discussion that focuses on the legal landscape surrounding electoral redistricting. We focus on two particular issues, data bias and a lack of domain knowledge, and discuss how they may lead to problematic legal decisions. We conclude with a discussion of the separate but complementary roles of technology and human deliberation. We emphasize that political fairness is a philosophical and political concept that must be conceived of through human consensus building, a process that is distinct from algorithm development
Non-Retrogression Without Law
Full text linkFor 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
International Administrative Tribunals and Cross-Fertilization: Evidence of a Nascent Common Jurisprudence?
Full text linkThe present work concerns International Administrative Tribunals (IATs), the dispute-resolution bodies between staff members and the administration of international organizations, existing at the cross-roads of international law, institutional law, and administrative law. It argues that, contrary to popular belief, the some twenty-five different IATs currently in existence are no longer functioning individually but rather citing to each other with increasing frequency and, in so doing, developing a common jurisprudence of international administrative law.
Over fifty years ago, when only a handful of IATs existed, M.B. Akehurst, a commentator in the field, made the observation that “[i]nternational administrative tribunals behave as if the internal laws of different organizations formed part of a single system of law” and that it was “clear that the internal laws of different organizations bear a remarkable resemblance to each other, and can therefore establish strong precedents for each other” (Akehurst, The Law Governing Employment in International Organizations 263 (1967)).
The present work aims to take stock of whether Akehurst’s statement remains true today, or if the proliferation of tribunals has instead led to divergences in jurisprudence. Much like the debate in international law writ large, the question to be answered is one between fragmentation and universalization. Engaging in a thorough review of all IAT jurisprudence the first comprehensive study of its kind the present work argues that indeed Akehurst’s statement has proven correct, perhaps beyond what he could have ever imagined. Far from the divergence and fractures that some have warned against as the number of IATs has grown, there has been a convergence, as IATs have increasingly cited each other in an exercise of reciprocal growth, sharing the task of creating and developing an ever more universal international administrative law
Cocoa Crisis: Cartelizing West African Cocoa in Response to the Persistent Use of Child Labor
Full text linkThe lack of resources that afflicts Ghanian and Ivorian enforcement of child labor prohibitions has allowed for the continued use of child labor in the cocoa industry. The current enforcement bodies not only suffer from serious coordination problems, but also fall victim to the harsh reality of cocoa farming, which pays pitiful daily wages to farmers. Child labor serves as a cheap, and perhaps even cost-free, option that allows farmers to maximize their profits. Many cocoa plantations are family-run, and thus the inclusion of children in the workforce is often a natural step, even where educational opportunities are available. To sacrifice productivity is to sacrifice one’s livelihood. This Comment first analyzes Ghana’s and Côte d’Ivoire’s child labor statutory regimes along with their enforcement apparatuses. This entails a deep dive into the efforts being taken by government and non-government actors along with a discussion of contributing factors relating to the use of child labor. Finally, the Comment proposes a novel solution to establish an intergovernmental organization, or commodity cartel, between Ghana and Côte d’Ivoire to better regulate and coordinate cocoa export and growth, modeled after existing commodity cartels. This Comment focuses on the organizational feasibility of such an organization and the potential ramifications, both advantageous and detrimental, such consolidation would cause
Predictability and Adaptation in Law and other Markets (chapter in a coming book: Research Handbook on Law and Time)
Full text linkPeople 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
De Facto Parents, Legal Parents, and Inchoate Rights
Full text linkProfessor Douglas NeJaime’s Essay Parents in Fact1 com- mends the Restatement of Children and the Law’s2 embrace of the de facto parent doctrine.3 He is somewhat critical, however, of the Restatement’s reference to individuals seeking recognition as de facto parents as “third parties” and its reluctance to recognize de facto parents as legal parents.4 He is also skeptical of the Restatement’s requirement that an individual seeking recognition as a de facto parent first show that a legal parent consented to and fostered the individual’s creation of a parent-child relationship with the child.5 NeJaime’s observations provide an opportunity to clarify the scope and constraints of a restatement—which requires “clear formulations of common law” rules and must “reflect the law as it presently stands”6 but also provides space, albeit limited, for expression of “the relative desirability of competing rules.”7 NeJaime’s reflections also allow us to illustrate how silence—not taking a position—on issues that courts have yet to decide furthers the Restatement’s legitimacy while minimizing the risk that it will be “a roadblock to change”8 as the law evolves
Employers’ Neighborhoods and Racial Discrimination
No full textUsing a field experiment, we show that the racial composition of employers’ neighborhoods predicts discrimination patterns in a direction suggesting in-group bias. Second, building on prior work on ban-the-box laws, we show that employers in less-Black neighborhoods appear much likelier to stereotype Black applicants as potentially criminal when information about criminal records is restricted. Third, our data also show racial disparities in geographic proximity to job postings; simulations illustrate how these job-availability and discrimination patterns together shape disparities. When jobs are far from Black neighborhoods, Black applicants are doubly disadvantaged: discrimination patterns disfavor them, and they have fewer nearby opportunities