Black Metropolis Research Consortium
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The Institutional Legacy of the Mexican Rancho System in California
No full textWe analyze the effect of the inherited Mexican property institutions in California on the state’s early agricultural development, focusing on land demarcation and the implied water rights. In California large tracts of land, called ranchos, granted during Spanish and Mexican rule of California persisted once the region became part of the United States and became intertwined with the American system of rectangular demarcation. We exploit this natural experiment in property institutions and use farm- and county-level data to examine the effects of the rancho system on farms’ shapes and values. We document large losses in land values from the rancho system and provide evidence that the mechanism driving these differences in farms’ values is the development of irrigation within the American rectangular survey system
Theorizing Constitutional Change in East Asia
Full text linkHow do constitutions change in response to social problems? This Article explores why constitutions in three East Asian countries, namely Japan, Indonesia, and China, changed rapidly during times of social crisis and then incrementally evolved during periods of stability. It looks for explanations in historical institutionalism, a novel theory developed to understand the factors that give rise to the creation, persistence, and change of political institutions, such as constitutions. Constitutional change in these East Asian countries is explored by examining constitutionally defined eminent domain powers that enable governments to compulsorily acquire land in the public interest. The Article aims to understand whether fundamental constitutional change only occurs through crisis or whether it can also take place gradually by layering new ideational components onto old programmatic ideas, repurposing them to new uses. Drawing on case studies about eminent domain in Japan, Indonesia and China, the Article concludes that although crisis can trigger fundamental change in any political system, incremental reforms are more likely to promote fundamental change where governments are accountable to the public through constitutional courts and/or democratic elections
Re-Placing Property
Full text linkThis Article analyzes the complex relationship between property and placemaking. Our most basic property and land tenure choices—including the design of the fee simple itself—shape people-place relations in powerful ways. By unearthing this important relationship between property and placemaking, this Article also reveals how pervasive—but unorganized—claims about place and place attachment already are across a range of modern land conflicts. Because property theory has not been fully transparent about many of these placemaking effects, our property choices often result in outcomes that are unequal, inconsistent, and opaque, prioritizing some existing place relations while ignoring or rejecting others. By building a more comprehensive placemaking account—with examples from Indigenous pipeline protestors to the absent and now-urban heirs of family farms and the emergence of new build-to-rent suburban housing divisions—this Article introduces a new taxonomy for evaluating the relative protection we afford to various place and place-attachment claims. This new framework separates the individual, collective, and ecological benefits of positive place relations from the risks of either overprotected place attachments (as in the case of hereditary land dynasties and exclusionary wealth) or land ownership without any attachment at all (as in the transformation of land and housing into asset classes for commodification and financialized capture).
This clearer focus on placemaking also puts property law—and land tenure— at the center of core social, economic, and climate challenges, including growing institutional and foreign investment in U.S. farmland (as rural landscapes depopulate and agriculture becomes even more industrialized) and private equity’s increasing appetite for single-family housing (as the United States’ glaring wealth gap continues to expand). It also forces us to confront property’s ongoing role in the dispossession of groups, cultures, and communities that are not (or are no longer) recognized as legal owners and our repeated failure to accommodate the access needs of individuals not born into hereditary land or wealth. Weaving together both rural and urban case studies, this Article ultimately offers novel entry points to some of property’s perennial problems, including pervasive distributional inequities, while providing new language and a fresh lens for reimagining more just and sustainable property relations for our rapidly changing world. In a final series of property-based personal stories, the article centers new forms of access rights—including some public rights over private properties—as instrumental to reconnecting and collectively reimagining the kinds of places we want to make together
The Power to Shape the “Political”
Full text linkThe role of corporations in American life has become the focus of intense public and scholarly debate. How do corporations influence political outcomes? What norms or laws should structure corporate political participation? And who should decide what political interventions corporations make? These are vitally important questions that bear on how to deal with the pressing challenges of social media, money in politics, polarization, autocratic threats, and the influence of consolidated capital on governmental and democratic decision-making.
Most conversations about the role of corporations in politics, however, assume a definition of “political.” This key term is commonly taken for granted or simply ignored—often standing in for a vaguely defined concept of politicians, regulatory agencies, lobbyists, and the money and information flows between them. The idea of the “political” is under significant dispute, and its meanings have shifted dramatically, particularly over the last four decades.
This essay lays out an abbreviated genealogy of the “political” and the role of corporations in its development. Corporations have played an outsized role in shaping the boundaries and content of what is understood to be “political” both within multiple areas of law and in American culture more broadly, largely in ways that have limited market-regulating or redistributional governmental action.
This essay also explains that competing definitions of the “political” have led to fundamental contradictions in constitutional law. The term serves as a, if not the, dispositive concept in a range of doctrines. In takings law, for example, the “political” designates the sphere of appropriate governmental action. But the major questions doctrine operates on a near opposite definition: the “political” is the space of impermissible regulatory action. And, surprisingly, First Amendment law employs both concepts.
Recent political and ideological reconfigurations are putting new and different pressures on the “political.” The influence of the business community and libertarianism have begun to wane as polarization has become more intense. The growing clash between identitarian populism—by which I mean the view that law should protect and advance a single cultural identity to the exclusion of other identities, other values, or pluralism—and previously-dominant libertarianism within the Republican coalition is likewise transforming cultural ideas of the political and its normative valance. The essay concludes by asking what that transformation may mean for the role of corporations in politics—and in shaping the boundaries of the “political” itself
The Gravity of Legal Diffusion
Full text linkA persistent empirical finding is that bilateral trade between two countries is proportional to the size of their economies and inversely proportional to their geographic distance. We hypothesize that a similar pattern is likely to hold for the diffusion of laws. We specifically argue that countries’ propensity to update their laws to converge with the leading regulator in a given policy area is likely to be proportional to the size of their economies and inversely proportional to their geographic distance. We then empirically test this theory in the area of antitrust and assess countries’ convergence to the world’s leading antitrust regulator: the European Union. Using a modified gravity equation, we find that a country’s economic size is consistently positively correlated with continued legal convergence and that a county’s distance from the European Union is consistently negatively correlated with continued convergence. These results suggest that a modified gravity model may offer a simple model of legal diffusion that does not requiring strong epistemic and empirical assumptions
Enforceability of Choice of Court Clauses in Transnational Agreements: the 2005 Hague Convention, Its Implementation in Contracting States, and the U.S. Approach
Full text linkParties involved in transnational business naturally expose themselves to peculiar international risks, including the possibility of having a foreign court resolve their future disputes. To reduce uncertainty, transnational contracts often contain a so-called “choice of court” (or “choice of forum”) clause to dictate where future disputes should be resolved.
Chosen courts, however, do not always enforce such clauses. Indeed, absent a convention or a treaty, the enforcement of a choice of court clause is purely a matter of national law and, in the case of federal systems like the United States, even of sub-national domestic law. To guarantee predictability, several countries have ratified the Hague Convention of 30 June 2005 on Choice of Court Agreements (the “Convention”), which aims at ensuring that the parties’ choice will be respected. The United States, however, was not among them, and U.S. courts continue to apply a variety of tests to determine whether they will follow the parties’ selection of forum.
This Article analyzes recent judicial decisions involving the enforceability of choice of court clauses in transnational agreements under the Convention (i.e., Ermgassen & Co Limited v. Sixcap Financials Pte Limited, and Motacus Constructions Ltd v. Paolo Castelli SpA), and under the internal laws of selected jurisdictions (France, United Kingdom, Florida, New York, and California). Such analysis aims to ascertain whether the Convention was successful in guaranteeing the enforcement of choice of court clause in transnational contexts, and whether the United States should finally ratify it
Navigating State Interventions: The Pivotal Role of PTAs in Modern Trade Conflicts
Full text linkIn international trade, State interventions often challenge the efficacy of traditional antidumping and countervailing measures under the World Trade Organization (WTO) framework. This article examines the limitations of the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing Measures (SCM Agreement) in addressing State interventions, such as export taxes, export bans on raw materials, and non-commercial activities by State-owned enterprises. These interventions pose significant legal and economic challenges in global trade. The article advocates for the potential of preferential trade agreements (PTAs) as practical tools to address these challenges, surpassing traditional legal pathways under the Anti-Dumping Agreement. An analysis of recent WTO disputes demonstrates how PTAs provide targeted disciplines against State interventions that cause market distortions and unfair trade practices. PTAs offer a more rational and equitable approach to managing trade conflicts, avoiding conventional trade remedies’ economic irrationalities and protectionist tendencies. The article proposes a strategic shift towards PTAs to fill gaps left by traditional WTO agreements. It highlights the need for a dynamic, adaptable legal framework in international trade that responds to sophisticated State interventions in the global economy
Product Liability and Reasonable Product Use
No full textA monopolist offers different variants of a possibly dangerous product to heterogeneous customers who choose among product variants that are distinguished by different safety levels. Customers’ choice of product use codetermines expected harm. We find that even when customers are perfectly informed about product variants’ safety, product liability can increase welfare by limiting the firm’s incentives to distort product safety in pursuance of profit-maximizing price discrimination. In this context, strict liability has to be accompanied by a defense of contributory negligence on the part of customers, who may have used the product in an unreasonable manner. However, reasonable use of the base product variant should be defined more leniently than prescribed by the Hand rule or instructions in user manuals. If a perfect negligence regime for product liability is feasible, a complete denial of the defense of customer negligence allows the achievement of the first-best allocation
Subjective Beliefs about Contract Enforceability
No full textThis article assesses the content, role, and adaptability of subjective beliefs about contract enforceability in the context of postemployment covenants not to compete (noncompetes). We demonstrate that employees tend to believe that even clearly unenforceable noncompetes are enforceable, including their own. We provide evidence for both supply- and demand-side stories that explain employees’ persistently inaccurate beliefs. Moreover, we show that believing that unenforceable noncompetes are enforceable likely causes employees to forgo better job opportunities and to perceive that their employer is more likely to sue them if they choose to compete. Finally, we use an information experiment to inform employees about the enforceability of their noncompete. While this information matters for employees’ beliefs and prospective behavior, it does not appear to eliminate an unenforceable noncompete as a factor in the decision to take a new job. We conclude with implications for the policy debate regarding the enforceability of noncompetes
Twin Inadequacies in the FTC’s Recent Biometrics Policy Statement
Full text linkIn the spring of 2023, the FTC released a policy statement addressing biometric information and technologies using or purporting to use such information. The policy statement contains a remarkably broad definition of “biometric information” and describes a variety of business practices that could violate § 5 of the Federal Trade Commission Act by being either “deceptive” or “unfair.” In spite of the policy statement’s comprehensiveness, however, it has two substantial inadequacies. First, the policy statement’s definition of “biometric information” is overly broad and will introduce unnecessary legal uncertainty for businesses by encompassing items not commonly thought of as “biometric information technologies” or not associated with the same risks. Second, the policy statement lacks any substantial analysis of when the potential risks to consumers associated with a business use of such technologies may be outweighed by benefits to consumers or competition, and the Federal Trade Commission Act requires such analysis before the FTC can declare any practice unlawful on account of being “unfair.” The absence of this sort of cost-benefit analysis in the policy statement indicates that the FTC will likely focus on bringing “deception” charges, as the FTC has similarly done in the past when regulating data privacy. In turn, this focus on “deception” will likely result in a relatively passive and reactive regulatory regime centered around increased disclosure by businesses. Additional disclosures will not significantly benefit consumers, however, as information asymmetries make it difficult for them to weigh the risks associated with the business use of biometric information. Moreover, potential mismanagement and misuse of biometric information technologies can put consumers at risk of experiencing irreparable harm, which necessitates a proactive regulatory regime that can prevent harms before they occur. To address these twin inadequacies, the FTC should first narrow the definition to avoid covering information that is not commonly considered biometric. Then, the FTC should explicitly perform the cost-benefit analysis required to determine when the listed considerations which suggest that a business practice is “unfair” may render that practice unlawful, which will allow the FTC to focus more on “unfairness” charges and thereby enable more proactive regulation of this field. Revising the policy statement in this manner will allow it to strike the right balance between the commercial and noncommercial interests of consumers and businesses alike