Black Metropolis Research Consortium

University of Chicago Law School: Chicago Unbound
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    International Administrative Tribunals and Cross-Fertilization: Evidence of a Nascent Common Jurisprudence?

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    The present work concerns International Administrative Tribunals (IATs), the dispute-resolution bodies between staff members and the administration of international organizations, existing at the cross-roads of international law, institutional law, and administrative law. It argues that, contrary to popular belief, the some twenty-five different IATs currently in existence are no longer functioning individually but rather citing to each other with increasing frequency and, in so doing, developing a common jurisprudence of international administrative law. Over fifty years ago, when only a handful of IATs existed, M.B. Akehurst, a commentator in the field, made the observation that “[i]nternational administrative tribunals behave as if the internal laws of different organizations formed part of a single system of law” and that it was “clear that the internal laws of different organizations bear a remarkable resemblance to each other, and can therefore establish strong precedents for each other” (Akehurst, The Law Governing Employment in International Organizations 263 (1967)). The present work aims to take stock of whether Akehurst’s statement remains true today, or if the proliferation of tribunals has instead led to divergences in jurisprudence. Much like the debate in international law writ large, the question to be answered is one between fragmentation and universalization. Engaging in a thorough review of all IAT jurisprudence the first comprehensive study of its kind the present work argues that indeed Akehurst’s statement has proven correct, perhaps beyond what he could have ever imagined. Far from the divergence and fractures that some have warned against as the number of IATs has grown, there has been a convergence, as IATs have increasingly cited each other in an exercise of reciprocal growth, sharing the task of creating and developing an ever more universal international administrative law

    Deploying Trustworthy AI in the Courtroom: Lessons from Examining Algorithm Bias in Redistricting AI

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    Deploying trustworthy AI is an increasingly pressing and common concern. In a court of law, the challenges are exacerbated by the confluence of a general lack of expertise in the judiciary and the rapid speed of technological advancement. We discuss the obstacles to trustworthy AI in the courtroom through a discussion that focuses on the legal landscape surrounding electoral redistricting. We focus on two particular issues, data bias and a lack of domain knowledge, and discuss how they may lead to problematic legal decisions. We conclude with a discussion of the separate but complementary roles of technology and human deliberation. We emphasize that political fairness is a philosophical and political concept that must be conceived of through human consensus building, a process that is distinct from algorithm development

    Domestic Terror Across State Lines: A Failed Federal Framework

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    As white supremacist violence has substantially increased over the last two decades, calls to combat associated attacks have intensified. This Comment outlines the impact of the events of September 11, 2001 on domestic and international terrorism policy, contextualizing the subsequent invocation of international terrorism charges at significantly higher rates than those of domestic terrorism. It introduces the lack of a general criminal statute prohibiting acts of terrorism and discusses the issues associated with the varying definitions of domestic terrorism employed by the federal government. Due to the lack of common terminology in referencing domestic terrorism, a number of white supremacists who have crossed state borders to commit violent acts are prosecuted under federal hate crime and firearm laws. This lack of a consistent definition offers a corrigible reason why white supremacist organizations and supporters have largely circumvented prosecution under domestic terrorism charges. To properly address and regulate the interstate travel of individuals to commit white nationalist violence, the existing domestic terrorism statutory framework must be applied vigorously. This Comment argues that a consistent definition of “domestic terrorism” should be employed at the federal level in order to ensure that the statutory framework is enforced against perpetrators of such violent crimes. It ultimately concludes that a strengthened framework could lead to the regulation and subsequent prosecution of white supremacists who cross state lines to commit violent acts

    Defunding Cities: Reconsidering the Fiscal Sanctioning Measures of State Punitive Preemption Statutes

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    In an effort to deter and punish cities for passing ordinances that conflict with state priorities, states are utilizing a new form of legislative power: punitive preemption. It is generally considered a legitimate use of state power to utilize statutes to preempt local measures and ordinances deemed inconsistent with state policy. State legislatures, however, are attaching punitive mechanisms to preemption legislation that, in the event of local noncompliance, create criminal and civil liability for local officials, provide removal mechanisms for elected officials, and allow for the fiscal sanctioning of local governments. This Comment considers whether local governments are legally protected from state-sanctioned punitive financial penalties. In doing so, it distinguishes financial penalties from permissible forms of state preemption and analyzes existing judicial decisions that consider financial penalty arguments. After discussing the existing doctrine, this Comment develops a conceptual framework to suggest that certain punitive preemption tools are not legal. Ultimately, this Comment maintains that coercive financial mechanisms attached to preempting legislation are unconstitutionally coercive as they functionally force local governments to relinquish core elements of their sovereignty

    Corporate Governance and Risk-taking: A Statistical Approach

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    Because 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

    Can Machines Commit Crimes Under U.S. Antitrust Laws?

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    Generative artificial intelligence is being rapidly deployed for corporate tasks including pricing. Suppose one of these machines communicates with the pricing manager of a competing firm, proposes to collude, receives assent, and raises price. Is this a crime under U.S. antitrust laws, and, if so, who is liable? Based on the observed behavior of the most widely adopted large language model, we argue that this conduct is imminent, satisfies the requirements for agreement and intent under Section 1 of the Sherman Act, and could confer criminal liability to both firms as well as the pricing manager of the competing firm

    International Borders: Yours, Mine, and Ours

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    International borders have become divisive issues in international and domestic politics. They have also become sites where the human rights of vulnerable persons have increasingly been documented as at risk. Policies of border hardening in the face of growing human mobility and other external threats—real and imagined—have made international borders focal sites of conflict at many levels. This Article argues that international law can reframe our understanding of bordering, leading to a more constructive approach to border management and greater respect for human rights. Borders are essentially institutions with the potential to settle coordination problems over territory. But of growing importance, they are also relational institutions that often have drastic effects on social and economic interactions. Their relational aspects require governance, for which international law has developed the law of neighborliness. In turn, the law of neighborliness requires, among other things, respect for mutually agreed covenants between sovereign states. Borders should not be presumed to pose inherent national security risks. Indeed, the presumption should be reversed: borders create zones where the need and obligation for friendly cooperation, including policies aimed at human rights protections, is at its highest

    Borders and Boundaries in Markets: A Sociocognitive Approach for Market Definition and Implications for Antitrust

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    Categorical distinctions are foundational to firm competition and regulation. Yet, market categories are notoriously difficult to define. The question of how to delineate markets is well-worn in the antitrust literature but is now the focus of a growing sociocognitive literature in strategy and organizational sociology.1 Historically, there has been little cross-pollination between these research areas. More integration, however, may be increasingly important in modern markets, where change is rapid, new technologies are key differentiators in many traditional industries, and platform competition is on the rise. In this paper, I introduce recent theoretical and empirical advances in sociocognitive research on categories in markets. I describe a theoretical model that incorporates the probabilistic nature of how people categorize, ambiguity in category boundaries, and that multiple audiences are relevant in most markets. Empirically, researchers employ a range of approaches to represent these aspects of market definition, from qualitative studies, to surveys, to computational approaches that leverage recent advances in machine learning applied to large corpora of text. I discuss key implications from this theoretical model and how they might inform market definition in antitrust

    Borders that Bend

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    Borders do not exist. They are made and remade. At every step, the law creates, moves, reforms, reproduces, and reinforces the border. Focusing on the boundary that México and the United States share, this essay critiques the U.S. Supreme Court’s privileging of the sovereign prerogative to control access to the nation’s territory. In their efforts to control movement across and near the border, legal doctrine permits Executive officials to deviate from ordinary legal constraints on the use of violence. This creates a modern version of the sovereign that Carl Schmitt described a century ago: extra-constitutional in origin and subject to law only on its own terms. Urging an end to the law of border exceptionalism, the essay argues that the Schmittian sovereignty that exists in the borderlands is neither justified by the facts on the ground nor required by the very legal principles that the Supreme Court points to

    The Neoclassical View of Corporate Fiduciary Duty Law

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    Traditionally, corporate fiduciary duties are said to run to the corporation itself. But what does this mean? Something, this Article argues, that is quite different from what both shareholder and stakeholder value maximization proponents think. Specifically, the argument is that corporate fiduciary duties are owed not to any flesh-and-blood stakeholder, including current shareholders, but rather to a hypothetical permanent investor whose holding period is forever. Like any statement of corporate purpose, this “permanent equity maximization norm” is rooted in an underlying model of the corporation. In this case, the underlying model must be one that sees the corporation as a vehicle uniquely designed for long-term capital allocation and therefore emphasizes the corporation’s perpetual existence as the most important attribute for understanding its nature. This interpretation of corporate fiduciary duties—what this Article calls the “neoclassical view”—does a better job than alternatives in explaining various puzzling features of corporate law, including the apparently conflicting focus on shareholder value maximization on the one hand and the reluctance, on the other, to hold corporate fiduciaries who engage in insider trading liable for common law fraud. It also explains the allocation of decision rights in the corporation, including why decision-making power is located in the board but also why shareholders have the right to bring derivative lawsuits and vote on certain matters. Under this view, the shareholder franchise is less about giving voice to shareholders and more about providing a tool the board can use at its choosing to generate information to help it in the difficult task of long-term capital allocation. Perhaps the most important implication stemming from this neoclassical view of corporate fiduciary duty law is that, although a corporation deals in contracts, the corporation itself is not a creature of contract, and corporate law is not necessarily contractarian as a fundamental matter. Rather, the corporation represents a policy decision to create an entity designed for extreme long-term capital allocation without sacrificing a liquid securities market. More generally, this analysis demonstrates that the concern over “short-termism” in the corporation is not simply a passing fancy but rather is deeply embedded in fiduciary duty law and lies at the core of what a corporation is

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    University of Chicago Law School: Chicago Unbound is based in United States
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