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The Enforceability of Private Property and Contract Rights against a Successor State in International Law
Get PDFWhen one state replaces another in sovereignty over territory, several legal issues arise. One pressing issue that has fallen into neglect in scholarship concerns the enforceability of certain private rights, specifically property and contract rights, against the successor state. These include, for example, state contracts, concessions, or land grants by the government. This article examines the conceptual bases that have been invoked to explain the survival of such rights against a successor state. Even if such rights survive as a matter of customary international law, none of these theories acquired rights, subrogation, the continuity of the predecessor state\u27s legal system and/or its institutions, the territorialization of rights, equitable interests, or unjust enrichment is individually capable of accounting in full for the enforceability of property or contract rights against a successor state. The successor state is, however, under an obligation to negotiate in good faith with the beneficiaries of certain preexisting rights. This might be the most clear- cut duty that remains, underscoring the significance of negotiated solutions in state succession matters
How Transnationally Effective are the UK Migration Policies in Relation to Missing Migrants? A Transnational Law Perspective
Get PDFAll over the world, several thousands of migrants go missing when they attempt to flee from war, violence, persecution, repressive regimes, systematic human rights violations, etc. Thousands die each year in deadly shipwrecks in a desperate attempt to enter Europe and the United Kingdom. In these instances of deaths and loss, international human rights law imposes duties on states to account for people missing in transnational migration and to respect the rights of members of their families. Despite such provisions, states sometimes deny that they have obligations to deal with cases of migrants reported missing in transnational migration until migrants reach their territories. Such conflicting claims raise serious questions about migration policies and governance and how the subject of missing migrants should be dealt with at the international level. The newly adopted UN Global Compact for Safe, Orderly and Regular Migration (Objective 8(a-f)) answers a part of the question by recognising that migration generally, and missing migrants specifically, is a transnational social problem which requires greater cooperation amongst states as well as policies with transnational effects. The United Kingdom was one of the earliest countries to endorse the new migration compact, hinting that it respects the sovereign rights of states to determine and implement their own migration policies and protect national interest. The Article asks if, from a transnational law perspective, the UK migration policy in relation to missing migrants is transnationally effective such as to facilitate enforcement of the new Global Compact and other related international instruments nationally. Existing evidence in the literature shows limited knowledge about the transnational effects of UK policies in relation to missing migrants. Therefore, the Article highlights the imperatives of strengthening, in order to avoid a future policy vacuum, the transnational effectiveness of UK policies in addressing the increasing cases of people who go missing while attempting to reach international destinations
Taking Stock of Startup Stock Options: Addressing Disclosure and Liquidity Concerns of Startup Employees
Get PDFU.S. capital markets are becoming increasingly private. Initial public offerings have steadily declined since the 1990s, and private companies are remaining private over twice as long as they have in the past. Furthermore, private company financing has reached unprecedented levels. Private securities offerings now greatly outpace the value of publicly traded securities. Additionally, recent regulatory changes seem to be accelerating this shift from the public to the private markets. One result of this shift is that private company valuations have grown immensely, so much so that private companies with valuations of over $1 billion exist and are known as “unicorns.” While the term “unicorn” connotes rarity, these companies are no longer rare—-there are now over 1,200 worldwide. Although this investment and growth in private companies benefits the entrepreneurship industry, it raises serious concerns in the U.S. securities law regime, which inherently assumes that private companies need to go public for access to public investors’ money, and are willing to provide information to these public investors to receive said money. As it appears, however, private companies are progressively less reliant on money from public investors.
One stakeholder group caught in the middle of this dilemma is large, private company employees. Employees of private companies commonly receive stock ownership in the company as compensation, and many companies base a large portion of an employee’s payment in stock. As a result, employees are substantially invested in their employer. But these large private companies are now staying private much longer than in the past, so employees cannot convert their shares to cash by selling them nor can they rely on others to value their shares by relying on mandatory public disclosures. Furthermore, scholarship has demonstrated that the prevailing private-company valuation method leads to substantial overvaluation. Additionally, the founders of these companies can misrepresent to employees the value of their compensation. If one of these large companies fails or underperforms, its employees leave the firm undercompensated for their work. This Note proposes that implementing modifications to the existing securities laws will provide employees with information that will help them accurately value their stock options and convert these options to cash. Through this solution, employees and employers will have closer bargaining positions without overburdening employers
Evaluating Antitrust Remedies for Platform Monopolies: The Case of Facebook
Get PDFThis Article advances a framework to assess antitrust remedies and policy interventions for platform monopolies. As prosecutors and regulators barrel forward against digital platforms, soon it will fall upon courts and administrative agencies to devise remedies. We argue that any sensible solution must include quantification of the welfare effects on a platform’s various constituents. The Benzell-Collis model predicts the effects of proposed solutions on a platform’s profits and the welfare of its users. The model also considers additional aspects of welfare unique to the social media setting, such as digital platforms’ nonmonetary goals, platform addiction, and externalities from platform use.
Applied to Meta’s Facebook, the model captures the nuances of demand for the social network to predict the consequences of reforms such as taxes, divestitures, and user rebates. We estimate the magnitude of effects by calibrating a version of the model through surveys of U.S. internet users regarding their demand for Facebook. This approach is based on the theoretical and empirical literature on multisided platforms from economists, including, most prominently, the Nobel laureate Jean Tirole. We find that breakups which undercut Facebook’s network effects are the most damaging solutions. By contrast, properly designed taxes and user unionization might raise the total surplus of the platform, even without creating more competition. We also canvass other interventions, gauging their abilities to maximize the benefits to consumers of engaging with Facebook.
This Article’s primary contribution is to ground debates over platform monopolies in tangible, quantifiable terms rather than grand, open-ended aspirations. Each of the estimates in our formulation of welfare is subject to pushback, but by embracing quantification, we aim to elevate the theoretical discourse in antitrust. Ultimately, we hope that the model forces remedy designers to confront-—and publicize-—how they quantify welfare effects upon consumers and, more broadly, society
Regulation Priorities for Artificial Intelligence Foundation Models
Get PDFThis Article responds to the call in technology law literature for high-level frameworks to guide regulation of the development and use of Artificial Intelligence (AI) technologies. Accordingly, it adapts a generalized form of the fintech Innovation Trilemma framework to argue that a regulatory scheme can prioritize only two of three aims when considering AI oversight: (1) promoting innovation, (2) mitigating systemic risk, and (3) providing clear regulatory requirements. Specifically, this Article expressly connects legal scholarship to research in other fields focusing on foundation model AI systems and explores this kind of system’s implications for regulation priorities from the geopolitical and commercial competitive contexts. These models are so named because they have a novel ability to easily apply their resources across a broad variety of use cases, unlike prior AI technologies. These systems, such as OpenAI’s ChatGPT or Alphabet’s LaMDA, have recently rocketed to popularity and have the potential to fundamentally change many areas of life. Yet, legal scholarship examining AI has insufficiently recognized the role of international and corporate competition in such a transformational field. Considering that competitive context and the Trilemma, this Article argues from a descriptive perspective that solely one policy prioritization choice is needed: whether to emphasize systemic risk mitigation or clear requirements, given that prioritizing innovation is effectively a given for many governmental and private actors. Next, regulation should prioritize systemic risk over clarity because foundation models present a substantive change in the potential for, and nature of, systemic disruption. Finally, the Article considers ways to mitigate regulators’ lack of legal clarity. It argues instead, in light of the Trilemma’s application, for use of a sliding scale of harm-based liability for AI providers when reasonably implementable, known technological advances could have prevented injury. This tradeoff thus promotes innovation and mitigates systemic risk from foundation AI models
Risk-Seeking Governance
Get PDFVenture capitalists (“VCs”) are increasingly abandoning their traditional role as monitors of their portfolio companies. They are giving startup founders more equity and control and promising not to replace them with outside executives. At the same time, startups are taking unprecedented risks—defying regulators, scaling in unsustainable ways, and racking up billion-dollar losses. These trends raise doubts about the dominant model of VC behavior, which claims that VCs actively monitor startups to reduce the risk of moral hazard and adverse selection. We propose a new theory in which VCs use their role in corporate governance to persuade risk-averse founders to pursue high-risk strategies. VCs are motivated to take risks because most of the gains in venture funds come from the exponential growth of one or two outlier companies. By contrast, founders are reluctant to gamble because they bear firm-specific risk that cannot be diversified. To compensate founders for their risk exposure, VCs offer an implicit bargain in which the founders agree to pursue high-risk strategies and, in exchange, the VCs provide them private benefits. VCs can promise to give founders early liquidity when their startup grows, job security when it struggles, and a soft landing if it fails. In our model, VCs who develop a founder-friendly reputation have a competitive advantage in ex ante pricing but are more exposed to poor performance ex post due to suboptimal monitoring. Stakeholders who are not party to the VC-founder bargain—and society at large—are forced to bear uncompensated risk
How Far Does Natural Law Protect Private Property
Get PDFThis Article first explores the ambiguous relationship between natural law and the rights of property owners in American history. It points out that invocation of natural law principles was frequently conflated with English common law guarantees of property rights in the Revolutionary Era. Reliance on natural law as a source of protection for private property faded during the nineteenth century and was largely rejected in the early twentieth century. The Article then considers the extent to which natural law principles are useful in addressing contemporary issues relating to eminent domain and police power regulation of private property. Taking a skeptical review, it concludes that natural law, standing alone, is largely theoretical and does not appear to offer meaningful guidance to current problems
How Are You Holding Up? The State of Judges\u27 Well-Being: A Report on the 2019 National Judicial
Get PDFJudges have always faced significant stressors, including the burden of consequential decision-making, exposure to disturbing evidence, and isolation. While every judicial assignment has its own mix of concerns, challenge is a constant. Recurrent experiences of serious stressors place judges at risk of burn-out, secondary trauma, poor mental and physical health, and substance use disorders.
Historically, such issues have been addressed primarily in the context of judicial fitness - that is, only when individual judges were suffering to the degree that they could no longer competently perform their duties would the system respond, and then usually for the purpose of discipline or removal.
In recent years, though, the focus has shifted. Judicial leaders, health professionals, judge and lawyer assistance programs, and social scientists have called for broader, nonpunitive attention to the stressors faced by all judges, not only those who have become impaired
Polysemy and the Law
Get PDFPolysemy-the existence of multiple related meanings for the same word or phrase-is a frequent phenomenon in legal and lay language. Although polysemy sometimes arises by accident, it also can be strategic: framers of legal rules can advance private and public interests by assigning meanings to terms that are different from-though connected to-the meanings that those terms carry outside the law. Understanding the functions of polysemy can help us design more effective legal rules and can shed light on ways in which legal actors translate language into power.
This Article undertakes a comprehensive analysis of polysemy\u27s origins, uses, and consequences across legal fields. It compares polysemy to monosemy, which arises when a word or phrase has the same meaning in legal and nonlegal language, and homonymy, which arises when a word or phrase has entirely different meanings in and outside law. It also identifies and examines a fourth category: legalogisms, or legal terms (like res ipsa loquitur and Roth IRA ) that have no colloquial correspondent. The Article goes on to identify circumstances in which polysemy is and isn\u27t likely to be an effective rhetorical strategy for the law. Polysemy can increase communicative efficiency, reduce decision costs, and enhance law\u27s expressive effects. But polysemy also can confuse laypeople, mislead legal decisionmakers, and undermine law\u27s perceived legitimacy. And even when deployed effectively, polysemy can raise entry barriers to legal interpretation, impose negative externalities on adjacent legal systems, and redistribute wealth and status in ways that disproportionately benefit members of the legal profession
The Locus of Dread for Mass Shooting Risks: Distinguishing Alarmist Risk Beliefs from Risk Preferences
Get PDFData from three surveys before and after the 2022 mass shootings in Buffalo and Uvalde provide a natural experiment to assess perceptions and valuations of mass shootings. The degree of overestimation of mass shooting risks surged following these tragedies. The odds of believing that mass shooting risks exceeded other firearm homicide risks more than doubled after these shootings. More than one-third of respondents viewed mass shootings as a greater threat to themselves than other firearm homicide risks, and a similar number viewed them as a greater threat to the public. A risk–risk choice experiment examined the tradeoff rate between deaths from mass shootings and from other firearm homicides. People generally viewed prevention of deaths from mass shootings as being equivalent to preventing other firearm homicides. However, respondents who believed that mass shooting risks were a greater threat both to themselves and to the public than other firearm homicide risks treated mass shooting deaths prevented as if they were 37.5% greater than the stated amounts. Risk–risk tradeoff studies and stated preference studies more generally should account for whether respondents’ perceived risk levels differ from the risk values stated in the survey. The principal manifestation of dread for mass shootings is through risk beliefs. Irrational fears may intrude on elicitation of risk preferences, making it essential to account for perceptional biases in stated preference studies of risks