Black Metropolis Research Consortium
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Multidimensionality of Landownership among Men and Women in Sub-Saharan Africa
No full textA lack of representative insights into the different dimensions of land rights, alongside ownership, can hamper effective targeting of land reforms, particularly in low-income countries where customary tenure systems and low levels of documented ownership persist. Using machine learning and nationally representative intrahousehold survey data on various types of land rights and control, we examine landowner profiles and the bundle of rights emerging in Ethiopia, Malawi, and Tanzania. Our algorithm reveals that profiles in those countries are distinguished by two key features: whether landowners hold transfer rights and whether they hold those rights jointly with other household members. Our newly constructed profiles allow us to explore ownership issues that are less understood in the literature, such as how bundles are distributed across gender and lineage traditions (a contentious issue between statutory and customary law), the rights of individuals who use land but do not claim ownership, and the rigidity of rights in a bundle
Sharing where Bargains are Impossible
Full text linkCooperation sometimes breaks down, and former teammates will disagree about what happens next. for example, when can an employee quit to join a competitor? Courts often resolve disputes by looking at the parties actual or hypothetical bargain. Thus, a court may ask whether there was a non-competition agreement (and whether it was reasonable), or whether the employee is taking a “corporate opportunity” as she departs. These are all-or-nothing determinations by courts; either the bargain, or law, fully allows or fully prohibits the disputed conduct.
This is a suitable approach when fair and efficient bargains are possible. But, this article argues that fair and efficient bargains are often impossible, and explains a better way of resolving disputes in such cases. We consider impossible bargains in numerous areas of law (admiralty, family law, patent law, and more). When assessing disputes in these areas of law, courts often look beyond the bargain, and frequently shy away from all-or-nothing decisions. Instead, courts should review the parties’ collective success (or failure) and split up the gains (or losses) in a way that is intended to credit each person’s contribution and give the right incentives to both parties in multiple time periods – before, during and after their interactions. We argue that this approach deserves serious consideration in employment law, corporate law, and beyond
Strategic Subdelegation
Full text linkAppointed leaders of administrative agencies routinely record subdelegations of governmental authority to civil servants. That appointees willingly cede authority in this way presents a puzzle, at least at first glance: Why do these appointees assign their power to civil servants insulated by merit protection laws, that is, to employees over whom they have limited control? This article develops and tests a theory to explain this behavior. Using original data on appointee-to-civil servant delegations and a measure of the ideological distance between these two groups of actors, we show that appointees are more willing to vest power in civil servants when the two groups are more closely aligned. They are particularly likely to do so in the last months of a presidential administration, prior to a transition to a new set of appointees from a different party. Essentially, appointees strategically devolve authority to ideologically similar civil servants to entrench their views in the face of oppositional future presidential administrations. Further, judicial doctrine and interest-group politics can make existing subdelegations difficult to reverse. This stickiness adds to the strategic value of subdelegations as a means of projecting preferences into future administrations. These findings raise important implications for administrative law and governance. One conventional wisdom on intra-agency dynamics considers appointees and civil servants as rivals. Relatedly, studies of personnel practices focus on strategies to empower appointees and sideline civil servants. This article, by contrast, shows how appointees and civil servants can act as strategic partners under certain conditions. At a time when leading political figures propose fundamental changes to the civil service, our findings call for a more nuanced understanding of the dynamics between political appointees and civil servants
Timing the Regulatory Tightrope
Full text linkRegulators face a hard problem. Novel products are developed and launched all the time. At first, regulators have very little information about the product, including its risks and benefits. Moving too quickly to impose regulations is therefore risky. And since the market for a nascent product is generally small, the benefits of regulation may also be small. It therefore makes sense to let the market develop a bit before taking action.
But waiting too long to intervene can also be perilous. Once enough time has passed, and the product becomes established, it can become extremely difficult to intervene. Now there is an entrenched constituency supporting the product; this constituency can be very difficult to overcome, even if regulation—including regulating the product out of existence—is socially valuable.
In short, regulators face a timing problem: Waiting allows regulators to learn, thereby reducing the risk of mistakes. But it can also limit the regulator’s choice set. While this is a generic problem, this chapter explores this issue in the context of new products in the securities market. It does so by considering the introduction of three distinct products: cryptoassets, money market mutual funds, and exchange traded funds
Hiding in Plain Sight: An ILO Convention on Labor Standards in Global Supply Chains
Full text linkThis Article proposes a solution to the primary challenge currently confronting governments, employers, and workers under international labor law: how to promote and protect decent labor conditions in global supply chains (GSCs).
The Article begins by summarizing why existing public law and private law approaches have failed to meet this challenge over several decades. It describes the shortcomings of law and practice in developing countries as well as the weakness of corporate social responsibility (CSR), including the most ambitious version of CSR, the U.N. Guiding Principles on Business and Human Rights. It then analyzes the problems with recent national laws in developed countries that impose mandates on multinational enterprises (MNEs) at the top of global supply chains— laws requiring disclosure and transparency in labor-protection efforts and laws requiring a due diligence process to identify and monitor against human rights risks.
The centerpiece of the Article is its argument for an international convention, promulgated by the International Labor Organization (ILO), that includes three essential features missing from existing voluntary and mandatory approaches. First, business obligations must include substantive responsibility to avoid involvement in supply chain human rights violations, not just procedural responsibility to adhere to a set of due diligence processes. In this context, the Article explores different approaches to establishing tort liability for violations under both U.S. and European law. Second, workers and their representatives must directly participate in the design, implementation, and enforcement of a due diligence system. Third, all workers engaged in supply chain activities must be protected, regardless of their formal employment or contractual status under relevant national law. The Article additionally considers issues of jurisdiction, enforcement, and remedies likely to arise under the convention.
Finally, the Article addresses the appropriateness and feasibility of such a convention. It identifies several factors that support a leadership role for the ILO and discusses the impact of existing ILO conventions on national laws in ways that extend beyond formal ratification. The Article closes with a suggestion to invite newer voices from the worker and employer communities to participate in discussions about labor conditions in GSCs alongside the recognized trade union and employer organizations
Accounting for the Selfish State: Human Rights, Reproductive Equality, and Global Regulation of Gestational Surrogacy
Full text linkGestational surrogacy is a relatively new method of procreation made possible by advances in assisted reproductive technology (ART). In gestational surrogacy, a woman (gestational carrier) gestates a fetus that is often biologically unrelated to her on behalf of a third party. While this form of procreation has often been celebrated for allowing infertile and fertility-challenged persons to parent biological offspring, it has also prompted a series of complex human rights-related debates. Inconsistent and extreme state responses to gestational surrogacy have led to myriad tragedies: states have arrested gestational carriers, forced carriers to raise children born through the process, denied individuals access to their biological offspring, refused to allow individuals to participate in the practice because of their sexual orientation, denied citizenship to children born through surrogacy arrangements, and in some cases, placed children in orphanages.
This Article argues that state responses to surrogacy raise serious questions about the state’s discretion to cabin and eliminate reproductive choice and autonomy. In responding to surrogacy, states have primarily acted with self-interest and with little consideration for the rights of parties to surrogacy practices, both within their jurisdictions and especially outside their borders. Through bans and restrictions on surrogacy, states have undermined their treaty This Article argues that state responses to surrogacy raise serious questions about the state’s discretion to cabin and eliminate reproductive choice and autonomy. In responding to surrogacy, states have primarily acted with self-interest and with little consideration for the rights of parties to surrogacy practices, both within their jurisdictions and especially outside their borders. Through bans and restrictions on surrogacy, states have undermined their treaty commitments to protect rights of reproduction, autonomy, choice, and non-discrimination, among others. A review of state reactions to surrogacy reveals that state interests (1) can be addressed without a deprivation of rights through proper internal regulation and inter-state cooperation, (2) are inappropriate in that they are based in impermissible discrimination and harmful stereotypes, or (3) are unjustified when placed in balance with the important rights at issue.
This Article will proceed as follows: Part I introduces the underlying problem and argument. Part II tells the story of A, C, and K, gestational carriers who were arrested in Cambodia in 2018, charged with human trafficking, and forced by the Cambodian government to raise the babies they birthed through the surrogacy process. Part III summarizes state bans and restrictions on surrogacy practices. Part IV considers the human rights at stake in surrogacy arrangements and the various perspectives and interests that have been advanced to justify curtailing those rights. It concludes that no justification withstands scrutiny when weighed against the benefits of this rights-enabling practice. Part V considers regulatory proposals, as well as whether a mandate exists within the human rights system for state cooperation on surrogacy arrangements. This final Part concludes that, while a clear mandate is not currently evident, one should exist as regulation is the only viable response to protecting and ensuring equal enjoyment of critical reproductive and related rights. True global enjoyment of human rights depends now, and will depend more and more, on how states respond to transnational human rights challenges like that of surrogacy; state cooperation across borders is and will become increasingly necessary to satisfy treaty commitments involving equal and full realization of fundamental rights
It’s Raining Rockets: Heightening State Liability for Space Pollution
Full text linkThe uptick in outer space exploration activity by spacefaring nations has resulted in the increased proliferation of space debris orbiting Earth and reentering its atmosphere. The current liability regime, which was enacted as a result of the U.S.–Soviet Union space race in the 1960s and ’70s, is ill-equipped to mitigate and deter such proliferation. Without proactive measures, the space debris buildup could escalate into the Kessler Syndrome, a proposed scenario in which space exploration, and its corresponding benefits, may be rendered infeasible due to the extreme risk of high-impact space object collisions. This Comment first analyzes existing proposals for amending the outer space treaty liability regime. Next, to argue that spacefaring states have an affirmative responsibility to remove space debris that originates from their satellites and space objects, this Comment applies three landmark principles of customary international law: the polluter pays principle, the precautionary principle, and the prohibition against transboundary harm. Finally, this Comment proposes a novel solution to establish a security deposit program that participating spacefaring nations must pay into in order to launch objects and satellites into outer space, modeled after existing international environmental law efforts to solve the issue of marine debris. Focusing on preventative measures to reduce the amount of space debris produced in outer space is the most effective solution to ensure the continued use of space as a shared resource for spacefaring nations
SPACs, PIPEs, and Common Investors
Full text linkSpecial Purpose Acquisition Companies, or SPACs, have come to play a large role in bringing together small and large investors in the acquisition and expansion of private companies. A pessimistic version of this relatively recent alternative to conventional initial public offerings (IPOs), and other methods of investing in companies ready to expand, is that clever sharks take advantage of overly optimistic and ill-informed small investors. This Article offers a very different view. It shows that common investors need someone to locate good investment opportunities, and then they often benefit if another well-informed party can credibly vouch for the entity that claims to have found a good target. It also suggests the development of other means of vouching for parties that claim to have found worthy targets for investment.
The analysis focuses first on SPACs that have recently arisen to play the important role of finding targets, and then on PIPEs (Private Investor(s)in Public Equity) that serve the role of evaluating and certifying those SPACs. Each of these is rewarded for what it does along the “financing chain.” SPACs and PIPEs are to be welcomed rather than feared, and they are not unlike parties that discover and vouch for good products and ideas in other sectors. Small investors would benefit from knowing when and at what prices potential PIPEs turned down deals, and they might benefit if SPAC founders earned lower rewards as the period during which they have use of investors’ funds comes towards an end. The discussion shows how these problems are related to those found in other markets, such as the information consumers can (and cannot) derive from knowledge about a large purchase that preceded them. Hertz’s purchase of a Toyota, and Warren Buffett’s purchase of stock, are not terribly different from a PIPE’s purchase of a SPAC.
Recent literature has strongly criticized SPAC founders, and the absence of much legal oversite, for aggressively seeking compensation at the expense of common investors. For most SPACs, founders must close a deal within two years in order to receive compensation. It is plausible that founders will rush to find a target as the deadline approaches. Although investors have the right to exit the SPAC at the price that they paid (known as a “redemption right”), they may believe that the SPAC has finally found a good investment—even in the final hour. To assess investor redemptions and deadlines, we construct a sample of eighty-seven SPACs that completed an IPO between June 2015 and December 2018, and then merged with a target before June 2022. The data suggest that investors do not regularly exit as the two-year deadline approaches, but instead often give the founder a single extension before growing impatient. We find that each additional day toward a three-year deadline impacts redemptions. Given the founders’ urge to close, we might expect the contractual rules governing investor exit, as well as stock exchange listing rules governing deadlines, to change so that SPACs are no longer rushed. This might be done in several ways, including a sliding scale reduction in the ownership retained by the SPAC as the search period proceeds. In the interim, a partial solution to this end-period problem seems to have emerged, though SPAC critics do not seem to have noticed the end-period problem or the evolving solution to it. In sum, investors rely on SPACs to discover targets; they will grant extensions, but grow impatient and eventually exit, as should be expected. Moreover, they rely on—and pay—sophisticated investors, in the form of PIPEs, to evaluate SPACs.
Finally, this Article suggests alternatives to SPACs that might arise with a little help from changes in law. Prediction markets could aggregate information possessed by many small parties. SPACs themselves, or yet other providers, might offer insurance against the possibility of a target whose bad quality can be detected only with fact finding that is difficult for dispersed, small investors to obtain