Black Metropolis Research Consortium
University of Chicago Law School: Chicago UnboundNot a member yet
22435 research outputs found
Sort by
The Law of Restitution for Mistaken Payments: An Economic Analysis
No full textThe law of restitution and unjust enrichment has emerged as an important and independent branch of private law globally but has attracted relatively little economic analysis. This article develops a model of the core example of restitution—mistaken payments—in a parsimonious setting with two pairs of buyers and sellers and low (high) transaction costs within (across) pairs. The framework is based on the idea that mistaken payments to strangers impose a transaction tax on contracting parties. We show that full (partial) restitution is socially optimal when harm is unilateral (bilateral). The model generates several novel insights, shedding new light on the rationale for partial restitution, distortions generated by the change-of-position defense, and the discharge-for-value doctrine (implicated in the recent widely discussed case involving a large mistaken payment by Citibank). Taking account of moral obligations complicates the economic analysis but does not undermine the main results
The New Gender Perspective: The Dawn of Intersectional Autonomy in Women’s Rights
Full text linkInternational human rights jurisprudence has increasingly mandated state action which integrates a gender perspective, taking into consideration the discriminatory norms, harmful social practices, stereotypes, and violence that women have and still suffer. A range of supranational bodies have issued case decisions promoting the adoption of gender-sensitive legislation, policies, programs, and the establishment of administration of justice systems well-trained and equipped to address women’s rights violations.
This article discusses how the conception of this gender perspective has evolved over time and is now centered on the pursuit of autonomy for women. Autonomy is presented as a key ingredient to ensure due respect for women’s self-direction, agency, and dignity. This evolving approach is a move towards intersectional autonomy, which advances the notion that women should be the sole architects of their life plans, based on their identities and different experiences, and meaningfully participate in their societies. Creating the conditions for free and informed choices underpins current women’s rights jurisprudence. This is a break from historical notions of human rights protection solely focused on women as victims, as members of a homogenous group, and a limited binary perspective to their rights. This article discusses illustrative decisions of this tendency from the European Court of Human Rights, the Inter-American Commission and Court of Human Rights, the United Nations Committee on the Elimination of Discrimination against Women, and the United Nations Human Rights Committee, among other bodies.
This article further proposes that intersectional autonomy is treated and interpreted in the future in international jurisprudence as a right, with independent content, offering guidance to states on needed laws, policies, programs, and services at the local and national levels. This human rights development is presented as essential for international law standards concerning women to be impactful and truly transformative at the national level. This article analyzes the main elements of the right of women to intersectional autonomy, and states’ negative and positive obligations in its fulfillment.
The author is currently pursuing a line of research exploring contemporary understandings of the international human rights of women, and how existing legal standards should evolve based on modern scenarios and realities. This article represents a contribution to this line of scholarship. It aims to increase understanding of the connection of the concepts of intersectional discrimination and autonomy, how they can be analyzed by global and regional human rights jurisprudence, and their promise to enhance effectiveness in international law concerning women
The Neglected Value of Effective Government
Full text linkDemocratic systems inevitably seek to reflect and realize a range of values. But democratic and legal theory in recent decades have given too little attention and weight to the value and importance of delivering effective government. Much of democratic theory and legal scholarship on democracy focuses on values such as political equality, fair representation, democratic deliberation, political participation, and individual rights, among other values. But less weight is given to the capacity of government to deliver effectively on the issues citizens care about most urgently.
Yet a defining feature of—and threat to—democracy in recent years is the perceived failure of democratic governments, in the United States and throughout the West, to deliver effectively on the issues their members care most about. This Article aims to bring greater attention to the importance of effective government by illuminating tensions that arise between effective government and other important democratic values.
The Article focuses on tensions (1) between political accountability and effective government; (2) between political equality and effective government; (3) between open government and effective government; (4) between “fair” representation and effective government (including a critique of current proposals for proportional representation); and (5) between process and participation and effective government.
Taken as a whole, the point of these examples is to bring attention to the value and importance of state capacity to deliver effectively. Viewing current arrangements and proposed reforms through the lens of effective government opens up new directions for scholarship on democracy. But the first step is to recognize that the failure to deliver effective government is roiling most democracies today, and that if democracies cannot overcome that challenge, popular frustration, anger, distrust, or worse, will continue to grow
One Click from Conflict: Some Legal Considerations Related to Technology Companies Providing Digital Services in Situations of Armed Conflict
Full text linkPrivate technology companies (tech companies) are increasingly providing their digital goods and services to clients living and working in situations of armed conflict. Tech companies may own, operate, or maintain significant portions of the digital infrastructure that allow day-to-day essentials—such as water, medical care, and electricity—to reach civilians living in places affected by armed conflict. They may own communications platforms that people use to call emergency services. They may own social media outlets that organizations rely on to inform communities in need about access to humanitarian services or that families use to maintain contact with each other. Those fighting today’s armed conflicts, including well-resourced militaries, and less-developed non-state armed groups, also undoubtedly rely on hardware, software, and networks manufactured, serviced, and secured by tech companies. They use them to coordinate and carry out a wide array of military operations, including the management of troop movements, military fuel and spare parts, and medical supplies. This paper’s premise is that as tech companies increase their involvement in armed conflict, the legal implications they face under international humanitarian law (IHL)—a body of law that regulates who and what is protected from the hostilities of armed conflict—also rise. Recognizing that cyberspace spans the globe with little concern for geography and borders, Section II discusses how this reality effects the applicability of IHL’s principles and rules relating to tech company employees and properties. From there, Section II explains the protections IHL affords the employees and properties of tech companies operating in situations of armed conflict and when, in exceptional circumstance, those protections might be lost. Section III moves on to discuss how IHL addresses situations where civilians and civilian objects get caught in the “digital crossfire” when they are reliant on, or located in proximity to, tech companies involved in armed conflict. Section IV concludes with practical recommendations for companies to take to minimize risks to their employees, property, civilian customers and surrounding civilians and civilian objects, including civilian infrastructure
Corporate Governance and Risk-taking: A Statistical Approach
Full text linkBecause prudent corporate governance often requires managers to take risks based on statistically expected outcomes, corporate failures that have a small but finite chance of occurring cannot always be prevented. This Article makes three related claims about risk-taking in corporate governance.
This Article’s first claim is that managers should not automatically be presumed to be at fault for corporate failures that result from risk-taking decisions based on statistical methodologies that reasonably justify the decisions ex ante. Conceptually, the business judgment rule should protect corporate managers for engaging in a reasonable decision-making process, including one that is statistically based. Jurisdictionally, however, the scope of the business judgment rule is narrowly limited (primarily, to state-law shareholder derivative lawsuits), leaving a large protection gap.
To fill this gap, this Article’s second claim is that corporate managers should also be protected by a “statistics-based governance” rule that exempts them from liability, under both federal and state law, for making risk-taking decisions based on statistical methodologies that reasonably justify their decision-making (assuming good faith, and no managerial conflicts of interest or fraud). Part of the rationale for this claim is that a statistics-based governance rule would be more objective, and thus less subject to criticism, than the business judgment rule.
The Article’s third claim concerns expected-value analysis, which is the statistical methodology most generally accepted and widely used for making risk-taking decisions. When determining an expected value, corporate managers should ask, “Expected value to whom?” For most risk-taking decisions, this determination should only take into account the firm and its investors. However, for decisions that could cause significant economic, environmental, or other social harm, this determination should also endeavor to take into account the public
The Ascertainable Standards that Define the Boundaries of the SEC’s Rulemaking Authority
Full text linkOn 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
Installment Loans
No full textInstallment loans have increasingly replaced traditional payday loans in the short-term, small-dollar credit market. Installment loans, often offered by the same lenders who provide payday loans, have larger principal amounts, longer repayment periods, and lower interest rates relative to payday loans. Installment loan advocates and some regulators contend that these differences make the loans a more sustainable alternative. We use a data set from a lender providing installment loans in Tennessee to better understand, using a regression discontinuity design, the effect that taking out these larger loans has on consumers. Our results suggest that an exogenous increase in loan size of about 600 increase in total subsequent indebtedness. The welfare effects of our results are ambiguous. Because we do not observe increased defaults or late payments, greater indebtedness could occur because borrowers find installment loans to be a sustainable source of credit that allows them to effectively smooth consumption
