Black Metropolis Research Consortium
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Computational Complexity and Tort Deterrence
No full textStandard formulations of the economic model of tort deterrence constitute the injurer as the unboundedly rational bad man. Unbounded rationality implies that the injurer can always compute the solution to his caretaking problem. This in turn implies that optimal liability rules can provide robust deterrence, for they can always induce the injurer to take socially optimal care. In this paper I examine the computational complexity of the injurer’s caretaking problem. I show that the injurer’s problem is computationally tractable when the precaution set is unidimensional or convex but that it is computationally intractable when the precaution set is multidimensional and discrete. One implication is that the standard assumptions of unidimensional and convex care, though seemingly innocuous, are pivotal to ensuring that tort law can provide robust deterrence. It is therefore important to recognize situations with multidimensional discrete care, where robust tort deterrence may not be possible
The Joint Venture Exception in the International Silver Platter Doctrine: Variability and Devaluation of Cooperation
Get PDFThis Comment examines the joint venture exception in the international silver platter doctrine in the context of the use of wiretaps in federal narcotics cases. Under the international silver platter doctrine, evidence obtained through searches (like wiretaps) by foreign law enforcement on foreign soil and under foreign law is admissible in U.S. courts. The joint venture exception qualifies the international silver platter doctrine: if participation by U.S. law enforcement in a wiretap by foreign law enforcement on foreign soil constitutes a joint venture, then evidence obtained from the search is admissible only if the wiretap was reasonable under the Fourth Amendment. Federal appellate courts lack uniform guidance on which factors to evaluate and weigh in considering whether a joint venture between U.S. and foreign law enforcement existed. This leads to rare findings of joint ventures. If courts do not find that a joint venture existed, courts admit evidence obtained from joint ventures regardless of whether the wiretap complied with foreign law, which provides defendants with no constitutional protections. Based on an empirical and qualitative analysis, this Comment proposes adopting a uniform balancing test for the joint venture exception that considers: (1) who controlled the wiretap, (2) whether U.S. law enforcement provided substantial resources to foreign law enforcement, and (3) how U.S. and foreign law enforcement describe their relationship. This proposal would lead to increased findings of joint ventures in cases involving cooperation in conducting wiretaps between U.S. and foreign law enforcement abroad. Specifically, the proposal would require that more wiretaps comply with the law of the country where they were intercepted. Because courts would find joint ventures more often with my proposed balancing test, my proposal could also increase judicial legitimacy, since courts would less often be deciding cases based on illegally obtained evidence from abroad
Against Bankruptcy Exceptionalism
Get PDFBankruptcy courts conceive of their mission differently than other courts do. For the Supreme Court, bankruptcy cases are ordinary statutory cases to be resolved “clearly and predictably using well established principles of statutory interpretation.” Many bankruptcy judges, though, believe that bankruptcy courts serve a distinctive mission for which ordinary adjudicative methods do not suffice. Often, that mission is characterized using the language of equity. Judges and commentators alike have observed that among the most spoken words in the bankruptcy courts are: “the bankruptcy court is a court of equity.” Others have contended that bankruptcy necessitates “creativity and flexibility,” pursuant to which bankruptcy courts have broad authority to formulate orders that promote the ends of bankruptcy. Within the world of bankruptcy, in other words, it is commonly understood that bankruptcy is a special field that requires an exceptional approach—one rooted in the norms, commitments, and assumptions that underlie the values of the bankruptcy community.
I examine this disjunction and consider whether there is any principled justification for bankruptcy exceptionalism. I explain the sources of the disjunction and show how the bankruptcy courts’ exceptional approach has driven outcomes in the ongoing Purdue Pharma opioid crisis bankruptcy saga and other hotly contested and socially consequential cases. I conclude that there are many singular aspects of bankruptcy but none that justify treating it specially. Bankruptcy is distinctive, but it is not exceptional
Here’s Your Number, Now Please Wait in Line: The Asylum Backlog, Federal Court Litigation, and Artificial Intelligence in Agency Adjudication
Get PDFAsylum seekers are individuals who flee to other countries to find sanctuary from the persecution suffered within the borders of their home countries. The U.N. High Commissioner for Refugees estimated that by mid-2021 there were nearly 4.4 million individuals actively seeking asylum worldwide, and the most recent data available surprisingly suggest that the United States granted asylum to only 31,429 persons in 2020.
The asylum system that is with us today was created when Congress enacted the Refugee Act with the goal of “respond[ing] to the urgent needs of persons subject to persecution in their homelands” and “provid[ing] a permanent and systematic procedure for the admission to this country” for refugees and asylum seekers. Despite what may have been the best of intentions, courts and scholars today recognize that the U.S. asylum process “is in tatters.”
Although there are two methods by which an individual can gain asylum in the United States, this Comment principally concerns itself with affirmative asylum—the process by which a foreign national affirmatively applies to the U.S. Citizenship and Immigration Services (USCIS) for asylum. At the beginning of 2022, there were 196,714 affirmative asylum claims pending, and many applicants have waited in a state of legal limbo for over five years to receive a decision on their claim. To escape the indefinite queue, some have started bringing claims of unreasonable delay under the Administrative Procedure Act (APA) to federal courts.
Because there are groups of asylum seekers who may be especially harmed by multiyear delays in adjudication, this Comment undertakes two separate but related tasks. First, it assesses whether the avenue for relief available to advocates and asylum seekers—federal court litigation—is actually viable for its purported ends. This Comment concludes that it is not. Second, it proposes a novel agency-side adjudicative mechanism, implemented through artificial intelligence technology, to more adequately provide reliable relief to especially vulnerable asylum seekers. The proposal offers a sketch of the new mechanism, wrestles with how artificial intelligence may be incorporated into it, and finally explores how the transparency and accountability of the agency’s automated decision-making may still be attained through current administrative law doctrines
Purpose Proposals
Get PDFRepurposing the corporation is the hot issue in corporate governance. Commentators, investors, and increasingly issuers, maintain that corporations should shift their focus from maximizing profits for shareholders to generating value for a more expansive group of stakeholders. Corporations are also being called upon to address societal concerns—from climate change and voting rights to racial justice and wealth inequality.
The shareholder proposal rule, Rule 14a–8, offers one potential tool for repurposing the corporation. This Article describes the introduction of innovative proposals seeking to formalize corporate commitments to stakeholder governance. These “purpose proposals” reflect a new dynamic in the debate over stakeholder governance by enabling shareholders to communicate their views about corporate purpose to their fellow shareholders and management. At the same time, purpose proposals highlight the potential problems with a shareholder voting process dominated by a handful of institutional intermediaries whose interests, particularly with respect to corporate purpose, may not be aligned with those of their beneficiaries.
This Article provides the first analysis of purpose proposals. It presents data on the introduction of these proposals and the extent to which they have commanded shareholder support. It interrogates the justifications for the proposals offered by their proponents. Finally, it considers the role of the shareholder proposal rule in offering a mechanism for shareholder debate over corporate purpose
Streaming Property
Get PDFPeople acquire property rights in objects and real estate in order to capture the stream of services that these assets can provide over time. The thing or parcel itself is merely a delivery mechanism, a way of packaging and protecting rights to that value stream. And, significantly, these assets cannot stream services to anyone without a set of facilitating conditions and complementary goods, such as public infrastructure, that do not lie within the asset owner’s individual control. This Essay argues that we can gain fresh traction on inequality by recasting property as service streams rather than as owned things. Doing so emphasizes the costs of structuring property entitlements in ways that monopolize or squander streams of services. It also reveals new opportunities to repackage valuable service streams into asset-like formats to create durable and flexible claims on resources. Finally, a focus on services directs fresh attention to what people actually want and need from resources over time—a dynamic inquiry whose answer encompasses the spatial and ecological services that are now of overwhelming importance
“Law AND”
No full textChicago’s original best idea was the one on which it was founded: That law should be studied alongside other disciplines that together make up, in the words of our founders, “the whole field of man as social being.” The value of studying law through the lens of other disciplines is well celebrated, here, most famously through our prowess in law and economics, but also through our superb scholarship and teaching in legal history, jurisprudence and other interdisciplinary work. Professor Buss will focus on the “law and” that is most important to her work: Law and Psychology. Developmental psychology has proved highly influential in recent decades in the field of Juvenile Law and cognitive psychology is beginning to make modest inroads in the law of Evidence. Professor Buss will consider these examples both to demonstrate the value of interdisciplinary collaboration in law and to highlight some dangers that might be relevant to other “law and” approaches as well
Toward a Tender Offer Market for Labor Representation
Get PDFAmerican workers are not sharing in the robust growth of the economy. Traditionally, large numbers of workers sought to improve their lot by bargaining collectively through unions. But the strategy does not seem to be working for enough workers. Despite some renewed recent activity, private sector unionization rates remain below 10%, and the unions that are in place have struggled to perform well, either in avoiding scandals or in delivering significant returns to workers in the form of job security or wage growth. This Article proposes a radical fix to the problem of declining unions. Drawing inspiration from corporate governance and its success in delivering financial returns to shareholders, the Article proposes allowing pro-worker investors to offer workers cash upfront for the right to represent them. If an investor succeeds in persuading a majority of workers in a workplace, the investor would be certified as the exclusive bargaining representative for the workers, and would be entitled to a percentage of any wage gains it obtained for the workers through collective bargaining. The resulting market for union representation would deliver cash to workers upfront, allow investors to demonstrate their capacity for delivering concrete results to workers, and attract resources to the cause of improving workers’ conditions of employment. The proposal’s new methodological approach also provides a lens for a constructive reevaluation of the objectives and tactics of American labor law
