The Illinois Institute of Technology Board of Trustees has approved the appointment of Richard W. Wright as a Distinguished Professor of Law at Chicago-Kent College of Law. Distinguished professor is the highest faculty rank at the university, and is reserved for a small number of senior faculty members, nominated by their own faculties and deans and approved by a university-wide committee of existing distinguished professors and chairs.
A member of the Chicago-Kent faculty since 1985, Professor Wright’s teaching and research focus on domestic and comparative tort law, jurisprudence, law and economics, and law and artificial intelligence. Prior to joining the Chicago-Kent faculty, he was a member of the faculty of the Benjamin N. Cardozo School of Law at Yeshiva University, where he received the Monrad G. Paulsen Award for outstanding contributions to legal education.
Professor Bernadette Atuahene has just posted three exciting papers on property law and justice to ssrn. Click on the titles to download the papers.
Property Rights and the Demands of Transformation
The conception of property that a transitional state adopts is critically important because it affects the state’s ability to transform society. The classic conception of property gives property rights a certain sanctity that allows owners to have near absolute control of their property. But, the sanctity given to property rights has made land reform difficult and can serve as a sanctuary for enduring inequality. This is particularly true in countries where ownership is contested and land reform is essential due to pervasive past property theft. Oddly, the classical conception is flourishing in transitional states, like South Africa and Namibia, where transformation of the property status quo is essential. The specific question this Article addresses is: for states where past property dispossession threatens to destabilize the current state, is the classical conception appropriate or do these states require an alternative conception of real property? In this Article, I develop the transformative conception of real property to explore how the exigent need for societal transformation should inspire us to rethink property rights.
Property and Transitional Justice
Transitional justice is the study of those mechanisms employed by communities, states and the international community to deal with a legacy of systematic human rights abuses and authoritarianism in order to promote social reconstruction. There is a well developed transitional justice literature on how states can deal with past violations of civil and political rights, which discusses the value of truth commissions, and international and domestic prosecutions. The transitional justice literature on how to deal with past violations of property rights, however, is significantly less developed. The goal of this essay is to begin an important conversation about how transitional states can deal with multiple layers of past land dispossession in order to promote social reconstruction. I discuss the strengths and weakness of a state’s three main options: Maintaining the present property status quo, fully or partially returning to a prior status quo, or creating a new property status quo altogether. I argue that a state should decide which option it will choose in the context of a well-informed, inclusive public dialogue rather than through a less time consuming process involving only elites.
Things Fall Apart: The Illegitimacy of Property Rights In the Context of Past Property Theft
Past property theft is a volatile political issue that has threatened to destabilize many nascent democracies. How does a state avoid present-day property-related disobedience when past property theft causes a significant number of people to believe that the current property distribution is illegitimate? To explore this question, I first define legitimacy and past property theft relying on empirical understandings of the concepts. Second, I establish the relationship between a highly unequal property distribution that the general population views as illegitimate, and property-related disobedience. Third, I describe the three ways a state can achieve stability when faced with an illegitimate property distribution: by using its coercive powers, by attempting to change people's beliefs about the legitimacy of the property distribution, or by enacting a Legitimacy Enhancing Compensation Program (LECP), which strengthens the average citizen's belief that she ought to comply with the law. Fourth, I develop the legitimacy deficit model, which is a rational choice model that suggests when a state should enact a LECP to avoid property-related disobedience, which can devolve into broader instability. To best promote long-term stability, I argue that states should, at the very least, enact a LECP as the cost of illegitimacy begins to outweigh the cost of compensation. Lastly, since many of the model's relevant costs are subjective, I suggest a process states should use to determine and weigh the costs. In sum, the Article is intended to spark a debate about how compensation for past property theft can keep things from falling apart.
Distinguished Professor David Gerber has recently published a new book with Oxford University Press. The book is titled Global Competition: Law, Markets, and Globalization. Here’s the description from OUP:
Global competition now shapes economies and societies in ways unimaginable only a few years ago, and competition (or ‘antitrust’) law is a key component of the legal framework for global competition. These laws are intended to protect competition from distortion and restraint, and on the national level they reflect the relationships between markets, their participants, and those affected by them. The current legal framework for the global economy is provided, however, by national laws and institutions. This means that those few governments that have sufficient ‘power’ to apply their laws to conduct outside their own territory provide the norms of global competition. This has long meant that the US (and, more recently, the EU) structure global competition, but China and other countries are increasingly using their economic and political leverage to apply their own competition laws to global markets. The result is increasing uncertainty, costs, and conflicts that burden global economic development.
This book examines competition law on the global level and reveals its often complex and little-understood dynamics. It focuses on the interactions between national and international legal regimes that are central to these dynamics and a key to understanding them.
Part I examines the evolution of the current global system, the factors that have shaped it, how it operates today, and recent efforts to alter that system-e.g., by including competition law in the WTO. Part II focuses on national competition law systems, revealing how national laws and experiences shape global competition law dynamics and how global factors, in turn, shape national laws and experiences. It examines the central roles of US and European law and experience, and it also pays close attention to countries such as China that are playing increasingly important roles in the global competition law arena. Part III analyzes current strategies for improving the legal framework for global competition and identifies the factors that may contribute to a system that more effectively supports global economic and political development. This analysis also suggests a pathway for moving toward that goal.
Click here to download a flyer to purchase the book at a 20% discount.
By Carolyn Shapiro
I argued in a prior post that it would be refreshing and valuable for a Supreme Court nominee to speak frankly about the role that ideology, or political judgments, must inevitably play in some judicial decision making, especially on the Supreme Court. In a recent review essay, The Law Clerk Proxy Wars: Secrecy, Accountability, and Ideology in the Supreme Court, appearing in the Florida State University Law Review, I argue that public anxiety over whether the justices are allowing ideology to inappropriately affect their judgments is reflected in frequently-expressed concerns about whether law clerks have undue influence on their justices. The abstract for the piece is below:
This piece provides an in-depth review and analysis of two recent books about Supreme Court law clerks, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, by Todd C. Peppers, and Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court, by Artemus Ward and David L. Weiden. In addition, however, the essay addresses a question so obvious that it is rarely asked – why is there so much curiosity about Supreme Court law clerks in the first place? In the essay, I analyze a widespread concern – and one discussed in both books – that law clerks have “too much” influence or even that they are the real decisionmakers on the Court. I argue that in fact this concern is a proxy for two important questions: how does the Court decide what cases to take and what role does (and should) ideology play in the work of the Supreme Court.
With respect to the process of selecting cases to review on the merits – the certiorari (cert) process – I argue that a careful analysis of the process reveals that the likelihood is quite low that the Court denies cert petitions the justices would grant if they reviewed the petitions themselves instead of relying largely on their law clerks. I also argue that with respect to the cert process, the Court’s extreme secrecy does not serve it well. More information about how the process works and why the Court denies or grants cert in particular cases or types of cases would benefit the not only the bar and the public, but also the Court itself.
Second, I argue that concern about undue ideological influence by law clerks is really a displaced anxiety about the much thornier question of the appropriate role of ideology in Supreme Court judging. This anxiety arises in part from mixed messages about whether the Court is a political entity making important decisions about subjects on which there may not be social consensus or whether it is, as Chief Justice Roberts put it at his confirmation hearings, a neutral umpire calling balls and strikes. People seek to alleviate their anxiety by trying to figure out how the justices do their work – leading to the intense curiosity about what law clerks do. More candor about the inherently political nature of at least some of the Court’s work might not entirely eliminate the anxiety, but it would refocus it from the largely tangential question of law clerk influence onto difficult but crucial questions about the relationship between Supreme Court jurisprudence and ideology and about the proper role of the Court in our democracy.
Professor Richard Warner has posted a new paper on ssrn. The paper is called Undermined Norms: The Corrosive Effect of Information Processing Technology on Informational Privacy. Here is the abstract:
Informational privacy is a matter of control; it consists in the ability to control when one’s personal information is collected, how it is used, and to whom it is distributed. The degree of control we once enjoyed has vanished. Advances in information processing technology now give others considerable power to determine when personal information is collected, how it is used, and to it is whom distributed. Privacy advocates sound the alarm in regard to both the governmental and private sectors. I focus exclusively on the later. Relying on the extensive privacy advocate literature, I assume we should try to regain control over private sector information process. The question is how. I reject the claim that we can do so by requiring businesses to obtain consent – or more accurately to go through the motions of obtaining consent – prior to collecting personal information. I contend that adequate informational privacy requires a rich background of informational norms.
Informational norms are social norms that constrain the collection, use, and distribution of personal information. Under ideal conditions, norm-governed exchanges not only implement acceptable tradeoffs between informational privacy and competing goals, they also ensure consumers give free and informed consent to those tradeoffs. The restriction to ideal conditions does not deprive the point of interest; rather, it shows that the interest is normative, not empirical. The ideal conditions are a goal we should strive to approximate in practice. Unfortunately current practice fails to adequately approximate this ideal in significant cases. Lack of norms is one important reason. The rapid advance in information processing technology has outstripped the relatively slow evolution of social norms in a wide range of important cases.
Download the paper here.