Law Of Restitution Research Articles

Modeling and Simulation of Rocking Block Dynamics subjected to Base Motion using an Energetic Restitution Law

ABSTRACT This work uses a nonsmooth dynamic model to study the motion of rocking-block structures with base excitation. In this study, the rocking blocks are modeled with respect to two contact points that represent the bottom face of the block. Each of these contact points can assume a state of either (a) free-flight, (b) contact, or (c) impact. Two of the key differences of this work from other studies of the rocking-block problem with base motion are (a) the collision model used here strictly enforces a rigidity property on the block, and (b) impacts are characterized using global energetic coefficients of restitution, which ensure energy consistency of the system. The proposed method also yields information on the history of impulses induced on the block due to the collisions, which has not been explored previously. This work can potentially lead to further insights into the rocking-block problem, which can be applied in earthquake and structural engineering.

Who Owns What in Macondo? The Flexibilization of the Rules of Evidence in Land Restitution in Colombia

Abstract Land restitution programmes, as part of transitional justice systems, make victims face obstacles to prove their material and legal relationship with their dispossessed land. The literature suggests that these obstacles can be overcome by changing the rules of evidence, such as reversing the burden of proof, introducing different legal presumptions and adopting alternative forms of evidence. In Colombia, the Land Restitution Law introduced changes to the rules of evidence for processing land restitution claims. In this article, we claim that this flexibilization of the rules of evidence is essential to guarantee the restitution of property rights to victims, based on a comparison of the evidentiary rules that must be fulfilled by the victims of land dispossession under two transitional justice systems, both of which have been implemented in Colombia in recent years.

Filtered violence: Human rights law, forced displacement and land politics in Colombia

How does human rights law arbitrate the spatial dimensions of violence? This paper broaches this question from a “critical geographies of human rights” standpoint to grapple with how human rights law defines the spatial dimensions of the very violence it sets out to confront. Through a focus on Colombia’s 2011 “Victims’ and Land Restitution Law” (the Victims’ Law), I demonstrate how human rights law does not just attempt to ameliorate legacies of violence, but that it circumscribes the spatial valences of violence in particular ways. Colombia has one of the world’s largest displaced populations and since 2011 has managed an extensive restitution program designed to restore land title to conflict victims who lost or sold property due to armed conflict. In this case, human rights law is productive of a “juridical gaze” that illuminates the spatial dynamics of forced displacement in a manner that obscures or only indirectly addresses the relationship between forced displacement and inequality in land ownership. Drawing on contemporary debates concerning the relationship between human rights and neoliberal inequality, I argue that that human rights law produces spatial renderings of violence that reflect the underlying degree to which human rights projects recognize or eschew material inequality and its relationship to violence.

Lenguaje Jurídico Y Hermenéutica En El Marco Jurídico Para La Paz En Colombia

Las experiencias arrojadas de la resolución de conflictos en el ámbito internacional 
 por vía de la denominada justicia restaurativa y el afán de encontrar un mecanismo de restauración social a los centenares de víctimas, llevaron al gobierno a promover una disposición legal que diera cuenta del creciente número de personas afectadas de una u otra forma por el conflicto. Es en este escenario que aparece la Ley 975 del 2005, (también conocida como la Ley de Justicia y Paz), la Ley 1448 de 2011 (también conocida como la Ley de Víctimas y restitución de tierras), y recientemente el proyecto de Ley conocido como marco jurídico para la paz. Esta ponencia tiene por objeto caracterizar desde una perspectiva filosófica cada una de estas disposiciones para poner en evidencia el verdadero papel de una política de la memoria como restablecimiento de una justicia de las víctimas en Colombia. Sin desatender que la construcción de una axiología jurídica, tiene como punto de equilibrio el establecimiento de lo que es, en si la justicia.

An Economic Analysis of Restitution for Mistaken Payments

The law of restitution and unjust enrichment has emerged as an important and independent branch of private law. However, it has attracted relatively little economic analysis. The aim of this paper is to develop a general conceptual framework for the economic analysis of the core example of restitution - mistaken payments. Our framework distinguishes between scenarios with unilateral and bilateral harms from mistakes, and unilateral and bilateral precaution by payers and recipients. Using this taxonomy, we develop a formal model in a parsimonious setting with two buyer-seller pairs. This model generates several novel insights, based on the idea that mistaken payments impose a “transaction tax” on contracting parties. It implies that full restitution is socially optimal when harm is unilateral (i.e., when a mistaken payment harms only the payer). When harm is bilateral (i.e., the recipient would suffer net harm from receiving the payment and making full restitution), partial restitution is generally optimal. However, we propose a hypothetical decoupled regime that would (if it were feasible) lead to more efficient outcomes than would partial restitution. The decoupling regime is intended as a thought experiment that can arguably shed light on some of the foundational debates surrounding the law of restitution.

Condiciones sociales para el proceso de implementación de medidas de indemnización desde la política pública de víctimas y restitución de tierras en el barrio villa alegría del municipio de Carmen de Bolívar

En Colombia ha existido desde hace varios años el conflicto armado, lo que originó innumerables enfrentamientos, en los que resultaron personas y familias víctimas de dicho flagelo. Todo esto ha sido permeado por disposiciones como la Ley de Víctimas y Restitución de Tierras, con la cual se han buscado medidas de indemnización administrativa hacia las personas que fueron afectadas. Dentro de ello se ha generado una política pública basada en distintos componentes, entre los cuales se encuentra la prevención, atención, reparación integral, satisfacción, garantías de no repetición y justicia. El objetivo de este artículo consiste en identificar las condiciones sociales para el proceso de implementación de la medida de Indemnización Administrativa de la Política Pública de Víctimas y Restitución de Tierras en el barrio Villa Alegría del municipio de Carmen de Bolívar. Esta investigación se basó en un diseño descriptivo mediante un enfoque mixto, donde se especifican las condiciones en las cuales se encuentran las familias del barrio Villa Alegría.

The Lockean Law of Restitution

This article argues—in contrast to the claims of right-libertarians—that the Lockean thesis of justice in property seems to entail much egalitarian property redistribution. It starts by outlining what the Lockean thesis of justice in property is. It then argues that a Lockean version of the law of restitution is a reasonable way to approach the problem of holdings which were not gained in line with Lockean justice. Furthermore, according to this law, property which has unknown rightful owners should ideally be redistributed in an egalitarian manner among everybody in the world. In addition, due to the history of Lockean injustice throughout the world (e.g., feudalism and colonialism), it appears that much property in the world should be redistributed in an egalitarian manner.

Smart contracts: a remedial analysis

ABSTRACT The perpetual script of a smart contract, that executes an agreement machine-to-machine without prejudice, guarantees performance of ‘contractual terms’ enabling the exchange or transaction of cryptoassets and other forms of property. Yet, smart contracts as recognisable or valid legal instruments within the boundaries of contract or property law remain uncertain and contentious. Contrary to perceptions of contractual streamlining and efficiency, understanding the uncertainty smart contracts produce lies in the technology's failure to meet many of the fundamental principles of contract law and theory concerning, for example, breach of promise and remedy for breach. Smart contracts appear to reduce contracting to a form and standard well below that developed by contract law and theory over many centuries in both civil and common law jurisdictions. Including elements of the law of restitution, this article's remedial analysis will examine smart contracts considering ‘traditional’ contract law to understand and, where possible, test the legal legitimacy of this post-human technology, and explore the potential of smart contracts to supplement or, in time, supersede traditional contract law.

Peace, Land, and Bureaucracy in Colombia: An Analysis of the Implementation of the Victims and Land Restitution Law from a Multiscale Perspective of State Bureaucracies

This article presents an analysis of the complexities implied by the implementation of the Colombian land restitution policy, as an example of the way in which the state works in its day-to-day practice. The document highlights the role played by the bureaucracy of “land” in the management of the so-called post-conflict setting. It is constructive in showing the multiscale nature of the state, whose operation cannot be understood outside the various levels and scales that compose it. This conception is very well exemplified by the typology of the bureaucracies to which it resorts in order to explain the different meanings of notions, such as “conflict,” “land” or “victim,” for the public officials according to the position they fill in the institutional architecture of restitution. By analyzing the research findings, the author reveals that it is emotional, rather than material, benefits that condense the state’s role in the Colombian post-conflict period.

Privacy Losses as Wrongful Gains

Perhaps, nowhere has the pace of technology placed more pressure on the law than in the area of data privacy. Huge data breaches fill our headlines. Companies often violate their own privacy policies by selling customer data, or by using the information in ways that fall outside their policy. Yet, even when there is indisputable misconduct, the law generally does not hold these companies accountable. That is because traditional legal claims are poorly suited for handling privacy losses. Contract claims fail when privacy policies are not considered contractual obligations. Misrepresentation claims cannot succeed when customers never read and rely on those policies. The economic loss rule thwarts many negligence claims. But undoubtedly the thorniest obstacle is that privacy harms are often not considered cognizable injuries under many common legal theories. Tort, contract, and constitutional standing doctrine all demand some form of concrete injury, but privacy injuries are often too intangible or risk-based to qualify. Thus, no matter how blatantly a company violates its privacy obligations or how porous a company’s data security is, the victims’ lawsuit is often perfunctorily dismissed. While many commentators have persuasively argued that we should modify these doctrines to better accommodate privacy harms, this article takes a different tack and revives an old, neglected common law approach to address these modern ills. Privacy victims should use the oft-misunderstood law of restitution and unjust enrichment to disgorge the wrongful gains companies earn when they break their privacy policies. This theory also will allow victims to recover any wrongful savings companies retain when they fail to take reasonable data security precautions and instead use deficient cybersecurity. Because unjust enrichment focuses on the defendant’s wrongful gain and not the plaintiff’s injury, this theory can avoid many of the pitfalls associated with the more conventional causes of actions privacy plaintiffs typically raise.

Post-communism structural changes of the Romanian forestry sector

Forests cover 28 % of the land area of Romania and, they are important from the ecological, economic and social perspectives. Political initiatives to restore property to its pre-nationalization (1948) forest owners became a reality, after the fall of communism. Compared to the other former communist countries from Central and Eastern Europe, the forest restitution process in Romania took a longer time and has been legally implemented via three successive restitution laws in a period of 15 years: Law 18/1991, Law 1/2000 and Law 457/2005. By the successive implementation of these forest restitution laws, the total forest area restituted to the non-state forest owners reached 3.15 million ha at the beginning of 2017, representing about half of the total forest area in Romania. The institutional changes in the forestry sector have been politically influenced (both by the Government and European Union) and not always responsive to the sector needs, realities and evolution. Whilst during the communist period, all typical sectoral functions such as regulatory, supervisory, management and ownership were under the responsibility of the same entity – the Ministry of Forests, in early 1990 s the regulatory and supervisory functions of the state were separated from the management function as the National Forest Administration (NFA)-Romsilva was established as the management entity of state forests, mainly with a commercial mandate. The move of the Department of Forests (the public authority responsible for forests in Romania) under different ministries in the last three decades was accompanied by many changes of the subordinated units and disruptions in the normal activity of its staff. Regarding the forest control and supervisory functions at regional level, 7 regional Forest Inspectorates were established in 1999, their number being increased to 16 in 2001. After 2003 they have had a tumultuous evolution, with several changes of mission and subordination and in 2015, the Forest Inspectorates were transformed into Forest Guards. A significant institutional milestone in the post-communist development of the forestry sector in Romania was the establishment of the first "private" forest districts (administrative/management legal entities for non-state forests, similar to those of NFA-Romsilva) in 2002: their number reached 145 in 2017, managing more than 1.7 million ha of forests. The radical change in forest ownership continues to pose a high pressure on the restructuring of the forest institutions, administration and management structures. It is expected that the decentralisation and reduction of state role in forest administration and management will continue in the next decade.

Bread or justice - Land restitution and investments in Montes de Maria, Colombia

In 2011, Colombia started a legal land restitution process whereby government institutions help internally displaced people (IDPs) reclaim land dispossessed after 1991 through the violent conflict involving the communist guerilla, paramilitaries and the army. The designated land courts normally covers voluntary sales at the going market price at the time of dispossession, presuming buyers took advantage of the IDPs’ need for money and their low expectations of returning from their current sites of refuge. We study the rise and fall of a commercial cassava operation that started to buy land from IDPs openly in the Montes de María region on Colombia’s Caribbean coast after peace returned in 2007. After losing several land restitution court cases, the company shifted from dairy cattle that required high investments to the less demanding, but also less productive, buffalo to minimize losses in case of future successful restitution claims. The land restitution law will probably be extended beyond the initial 2021 limit due to slow progress, thereby perpetuating the insecure property rights situation that hinders investments in agriculture.

Implementation of three-dimensional physical reflective boundary conditions in mesh-free particle methods for continuum fluid dynamics: Validation tests and case studies

Mesh-free particle methods applied to continuum fluid dynamics still use fictitious, ghost or virtual particles, and/or molecular dynamics concepts in the treatment of the boundaries. The aim of this paper is to present the implementation of the physical reflective boundary conditions (RBC), based on Newton’s restitution law and the foundations of analytical geometry, in the treatment of contours in a three-dimensional (3D) domain. In a previous paper [C. A. D. Fraga Filho, “An algorithmic implementation of physical reflective boundary conditions in particle methods: Collision detection and response,” Phys. Fluids 29, 113602 (2017)], RBC validation tests and simulation results were presented for a two-dimensional (2D) domain. The current work presents the validation of the collision detection and response algorithm employed for the RBC and its application in two cases (hydrostatics and hydrodynamics) in a 3D domain. Following an analysis of the simulation results, the applicability of the RBC to 3D continuum fluid dynamic problems is verified. In the hydrostatics case, a still liquid (Newtonian, incompressible, uniform, and isothermal) inside an immobile reservoir is studied. The fluid flow is modeled using an improved Smoothed Particle Hydrodynamics (SPH) formulation utilizing a modified concept of pressure. The simulation results are excellent, showing complete agreement with the analytical solution and the nonmotion of the particles throughout the simulation time. In the hydrodynamics case, 3D dam break flow modeling is carried out using the standard SPH formulation. Results provided by the RBC and standard SPH modeling are compared with the literature data demonstrating good agreement with the experimental findings.

The Construction of the Status of “Victim” through the Victims and Land Restitution Law in Colombia – (re)encounters and confrontations with a legal category

Estudar a vítima como objeto de análise nas ciências sociais e políticas produziu muitos debates epistemológicos. No presente trabalho, procuramos estudar a construção do status da vítima por meio de um dispositivo legal específico: a Lei das Vítimas e a Restituição de Terras na Colômbia (VRLV, Lei 1448 de 2011). Perguntaremos a nós mesmos: como o dispositivo legal produz “a vítima”? Nesse sentido, analisaremos como a construção do status da vítima passa não só pela auto identificação do indivíduo como vítima, e pelo reconhecimento da vítima pelo governo, mas também está incluída em um processo de vitimização coletiva e contestada. Esse processo de vitimização engloba uma série de encontros e confrontos entre o dispositivo e os atores do universo da “vítima”. No referido processo de vitimização, existe uma luta de conhecimento (de quê) e de poderes, que põe em causa a definição de violência nas sociedades pós-conflito.

Loser Takes All: Multiple Claimants & Probabilistic Restitution

Consider these two seemingly unrelated recent scandals: The publicized fall from grace of cyclist Lance Armstrong, and the truly ruinous Madoff pyramid scheme. These cases (as well as a plethora of more mundane scenarios discussed throughout this article) share a common feature, hitherto scantly discussed by courts and legal scholars: causal ambiguity in restitution claims involving multiple claimants. In such cases, a wrongdoer was enriched at the expense of others – sometimes a great many others – and it is therefore difficult to determine exactly which possible victim is indeed the source of the wrongdoer’s enrichment. In such cases, it can be near impossible to preponderantly prove the identity of the claimant at whose expense the wrongdoer was enriched. This article is the first to identify this problem as a reoccurring pattern in restitutionary claims. By making this novel contribution, the article fills an important gap in the literature and identifies a new paradigm within the law of restitution, that of causal ambiguity in multiple-claimant cases. This vacuum in the literature on restitutionary claims is especially striking, considering the vast scholarship on a closely related topic, namely causal ambiguity in multiple-defendant tort cases. The article argues and demonstrates that the existing rules of the law of restitution do not provide appropriate solutions in multiple-claimant cases. Under existing law, many deserving claimants – sometimes all of them – can be left with no remedy, thereby denied of their rights and not compensated for harms they suffered at the hands of a wrongdoer. Drawing on the more developed literature on causal ambiguity in tort law, we propose a solution for this injustice by presenting, for the first time, a new concept of probabilistic restitution. The article shows that the proposed regime can lead to just and efficient outcomes, serving the goals of both interpersonal justice and deterrence.

Rights in the Time of Populism: Land and Institutional Change Amid the Reemergence of Right-Wing Authoritarianism in Colombia

In Colombia, right-wing leadership returned to power after winning the presidential elections in 2018 in a campaign in which they opposed the previous government, primarily because of the negotiations and peacemaking with the FARC-EP (Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo ‘Armed Revolutionary Forces of Colombia—People’s Army’), Colombia’s largest guerrilla organization. Globally, there is a vibrant academic debate about how to characterize the current rise of right-wing populism or authoritarianism, but more profound insights from each country’s situation and its political economy implications are needed. The victory in Colombia was due to numerous factors, including the support from some rural elites who have historically obstructed the enforcement of redistributive land policies. However, the populist aspirations of the right-wing government have been persistently frustrated not only by social unrest and political mobilization but also because of the enforcement of institutions previously incorporated into the country’s political scenario. Specifically, in terms of agrarian political economy, two sets of human rights-oriented institutional changes are relevant regarding this matter: (a) the Land Restitution Law enacted in 2011 and (b) the Comprehensive Rural Reform contained in the Agrarian Chapter of the Peace Agreement between the national government and the FARC-EP in 2016. The purpose of this paper is to ground the ongoing theoretical and political debate about the rise of different forms of populism and right-wing authoritarianism in the current Colombian political context, and its implications on the countryside. The analytical contribution of this paper is twofold: On the one hand, I propose an alternative for explaining the nature of the current political regime in Colombia as right-wing authoritarianism; on the other hand, I analyze some features of such regimes in terms of its disputes with the enforcement of human rights-oriented institutions, that are in force as the result of political processes triggered by peasants’ mobilization.

The Proportional Internalization Principle in Private Law

AbstractAccording to common conception, laws should make actors internalize all the costs and benefits of their actions to make them behave efficiently. This article shows that even when only partial internalization is possible, private law can create efficient incentives by ensuring that each actor internalizes an identical proportion of the costs and benefits.This proportional internalization principle has profound implications. In tort law, it offers a new mechanism for dividing liability between multiple parties. In contract law, it suggests a new default rule for joint ventures. And, in restitution law, it presents an alternative doctrinal formulation for restitution for unrequested benefit.

Transitional Justice and the Victims and Land Restitution Law in Colombia

AbstractThe Victims and Land Restitution Law constitutes the restoration and reparation component to the passive actors of the Colombian internal armed conflict. This article is the result of an investigation that attempts to analyze the crudeness of the war for territorial control that has caused incalculable damage to the country. This law recognizes human dignity and the rights of the individual and the family. However, it is important to stress that without a proper approach, it can fall into oblivion like so many laws in Colombia.

La restitución de tierras en Colombia y la reparación transformadora en la construcción de paz: la experiencia en Santander desde la aplicación y efectividad de los fallos judiciales

La restitución de tierras abandonadas o despojadas en el contexto de un conflicto armado, es una medida de reparación prevista en la Ley de Víctimas y Restitución de Tierras de 1448/2011. En Santander, los jueces de tierras han dictado 55 sentencias hasta diciembre de 2016. Este artículo tiene como objeto analizar el estado de la cuestión de la restitución en el departamento, concretamente la aplicación y efectividad de la ley, a través de un análisis descriptivo e interpretativo de los fallos judiciales y la etapa post-fallo. Para ello, dada la complejidad del problema a investigar se han consultado diversidad de fuentes: normativa y jurisprudencia nacional e internacional, informes y estadísticas oficiales, bases de datos e investigaciones de organizaciones de derechos humanos, prensa y bibliografía de contexto. Asimismo, se han realizado entrevistas a diversos actores del proceso de restitución de tierras y visitas a predios restituidos. Si bien los jueces y magistrados de tierras aplican mayoritariamente lo establecido en la ley, hay algunas dificultades en la implementación de las órdenes dictadas que limitan una reparación efectiva y transformadora de las víctimas. La flexibilidad de la política pública de restitución de tierras, permite que este proceso en construcción pueda superar los escollos señalados en el texto, por el mantenimiento de la competencia de los jueces en la etapa posterior al fallo hasta que se garantice la reparación efectiva o la tendencia a aplicar la medida subsidiaria de compensar con un bien equivalente, en lugar de ordenar la entrega material del bien reclamado.

On the boundary conditions in Lagrangian particle methods and the physical foundations of continuum mechanics

This paper aims to discuss the boundary conditions techniques employed in the solution of physical and engineering problems using the Lagrangian particle approach in continuum mechanics. Simulations using different boundary treatment techniques have been performed, and in addition, a review of the literature on the techniques commonly employed in SPH simulations was also performed. The fictitious (virtual/ghost), the dynamic particles and the artificial repulsive forces are widely employed in problem-solving, mixing concepts of molecular and continuum scales, being inadequate for the use in continuum scale (considering the disrespect of the classical physics laws). On the other hand, the reflective boundary conditions, based on fundamentals of Physics (Newton’s restitution law) and analytic geometry, are in accordance with the continuum hypothesis and their use is recommended in continuum mechanics problems, out of the molecular scale. In many boundary conditions employed in particle methods, models of repulsive molecular forces in conjunction with virtual particles are being used without theoretical foundation in continuum mechanics and classical Physics. Purely computational solutions employing fictitious particles and artificial molecular forces should be avoided, and methods that respect the continuum theory, such as the reflective boundary conditions, should be employed on the macroscopic scale. Both hydrostatic and hydrodynamics analysis have been performed. An excellent agreement with the analytical solution or experimental results have been achieved. From the results found, the applicability of the reflexive boundary technique in the continuum domain, discretized by particles, was verified.