Law Commons^™

Multidistrict Litigation & Choice Of Federal Law, Andrew Eller

University of Chicago Legal Forum

Multidistrict litigation (MDL) is a procedural mechanism that consolidates federal civil cases from around the country into one federal district for pre-trial proceedings. Congress enacted MDL by statute in 1968 in response to a substantial influx of cases, and MDL represents a large portion of the federal civil docket today. MDL creates tricky choice of law questions, however, because cases are often filed in one district and then transferred to another through consolidation. Should a judge handling an MDL apply the state and federal law that the original court would apply or should he apply the law of his own …

The Past, Present, And Future Of Humanitarian Parole, Farooq Chaudhry

University of Chicago Legal Forum

The humanitarian parole provision of the Immigration and Nationality Act grants the Attorney General discretion to allow people to enter the United States without an immigrant or non-immigrant visa. Despite the sparse language of the provision establishing parole, it has been used in a wide variety of contexts, ranging from one-time grants of entry into the United States for medical care to the establishment of large-scale programs for entire groups of people. The creation and administration of large-scale parole programs have been the focus of recent lawsuits, placing critical questions on the meaning and scope of the provision before judges. …

Non-Retrogression Without Law, Nicholas O. Stephanopoulos, Eric Mcghee, Christopher Warshaw

University of Chicago Legal Forum

For five straight cycles (the 1970s through the 2010s), Section 5 of the Voting Rights Act dominated redistricting in states covered by the provision. In these states, district plans had to be precleared with federal authorities before they could be implemented. Preclearance was granted only if plans wouldn’t retrogress, that is, reduce minority representation. Thanks to the Supreme Court’s 2013 decision in Shelby County v. Holder, Section 5 is no longer operative. So what happened to minority representation in formerly covered states after Section 5’s protections were withdrawn? This Article is the first to tackle this important question. We examine …

International Borders: Yours, Mine, And Ours, Beth Simmons

University of Chicago Legal Forum

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 …

Borders And Boundaries In Markets: A Sociocognitive Approach For Market Definition And Implications For Antitrust, Elizabeth G. Pontikes

University of Chicago Legal Forum

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 …

The Neglected Value Of Effective Government, Richard H. Pildes

University of Chicago Legal Forum

Democratic systems inevitably seek to reflect and realize a range of values. But democratic and legal theory in recent decades have given too little attention and weight to the value and importance of delivering effective government. Much of democratic theory and legal scholarship on democracy focuses on values such as political equality, fair representation, democratic deliberation, political participation, and individual rights, among other values. But less weight is given to the capacity of government to deliver effectively on the issues citizens care about most urgently.

Yet a defining feature of—and threat to—democracy in recent years is the perceived failure of …

Cross-Border Influencers: Democracy And Externalities, Saul Levmore

University of Chicago Legal Forum

This Article explores the fact that United States law permits domestic crossborder political influences while restricting foreign interference in elections. It tries to show that the law is inconsistent in trying to balance its faith in democracy (in a given jurisdiction) with its concern for externalities. Laws forbidding all cross-border attempts to influence politics would seem to reflect the view that decision-making processes across a border should be respected rather than subject to interference, assuming that the other jurisdiction is reasonably democratic. The analysis explores, and offers examples of, the interaction between a faith in democracy and the consideration of …

The Border’S Migration, Nicole Hallett

University of Chicago Legal Forum

The border has never played a larger role in the American psyche than it does today, and yet it has never been less legally significant. Today, a noncitizen’s place of residence tells you less about what rights and privileges they enjoy than it ever has in the past. The border has migrated inward, affecting many aspects of non-citizens’ lives in the United States. The divergence between the physical and legal border is no accident. Instead, it is a policy response to the perceived loss of control over the physical border. But the physical border remains porous despite these legal changes. …

Borders That Bend, César Cuauhtémoc García Hernández

University of Chicago Legal Forum

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 …

Deploying Trustworthy Ai In The Courtroom: Lessons From Examining Algorithm Bias In Redistricting Ai, Wendy K. Tam Cho, Bruce E. Cain

University of Chicago Legal Forum

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. …

A New Global Corporate Regulatory Power?: Market Entry As The Basis For Prescriptive Jurisdiction, Rachel Brewster

University of Chicago Legal Forum

The rules of international economic law are changing. In a range of areas, governments are asserting that if a multinational firm touches the state’s market, the state can claim the authority to regulate the firm everywhere. This departure from multilateral economic coordination and towards more unilateral regulatory power over firms’ global operations represents an important shift in international economic policy. We have entered an era where governments are embracing more unilateral tools to resist foreign economic influence and reinvigorating national industrial policies. This Article examines the political dynamics that lead states to use access to their national markets as the …

The Gravity Of Legal Diffusion, Anu Bradford, Adam Chilton, Katerina Linos

University of Chicago Legal Forum

A 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 …

Dividing The Body Politic, James A. Gardner

University of Chicago Legal Forum

It has long been assumed in large, modern, democratic states that the successful practice of democratic politics requires some kind of internal division of the polity into subunits. In the United States, the appropriate methods and justifications for doing so have long been deeply and inconclusively contested. One reason for the intractability of these disputes is that American practices of political self-division are rooted in, and have been largely carried forward from, premodern practices that rested originally on overtly illiberal assumptions and justifications that are difficult or impossible to square with contemporary commitments to philosophical liberalism.

The possibility of sorting …

The Ascertainable Standards That Define The Boundaries Of The Sec’S Rulemaking Authority, Bernard S. Sharfman

The University of Chicago Business Law Review

On the heels of the U.S. Supreme Court’s decision in West Virginia v. Environmental Protection Agency, the “major questions” doctrine quickly came to be perceived as a significant impediment to the finalization of the Securities and Exchange Commission’s proposed rule on climate-related disclosures.

This Article presents a new argument against finalization, an argument that does not require the application of the major questions doctrine. This argument finds its authority in the policy objectives and the one policy constraint found in the statutes that underlie the proposed rule. These policy standards, referred to as ascertainable standards in the Article, not only …

Can Machines Commit Crimes Under U.S. Antitrust Laws?, Aslihan Asil, Thomas G. Wollmann

The University of Chicago Business Law Review

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.

“Killer Acquisitions” Reexamined: Economic Hyperbole In The Age Of Populist Antitrust, Jonathan M. Barnett

The University of Chicago Business Law Review

Major competition regulators, and substantial portions of the scholarly community, have rapidly adopted the view that “killer acquisitions” and “kill zones” constitute significant sources of competitive risk arising from incumbent acquisitions of emerging firms in digital markets. Based on this view, policymakers in the United States, European Union, and other jurisdictions have advocated for, and in some cases have taken, substantial changes to merger review policies that would erect significant obstacles to incumbent/startup acquisitions. A review of the relevant body of evidence finds that these widely-held views concerning incumbent/startup acquisitions rest on meager support, confined to ambiguous evidence drawn from …

Insider Abstention And Rule 10b5-1 Plans, David Rosenfeld

The University of Chicago Business Law Review

Company insiders will typically be in possession of material non-public information (MNPI) about their companies. In order to allow insiders the opportunity to trade, the SEC adopted Rule 10b5-1, which provides an affirmative defense to insider trading liability if the trades are made pursuant to a written plan or trading instruction entered into when the trader was not aware of MNPI. Over the years, there has been considerable concern that insiders were abusing Rule 10b5-1 plans by adopting plans just prior to trading, adopting multiple plans, or even terminating plans when they turned out to be unprofitable. The SEC recently …

Corporate Governance And Risk-Taking: A Statistical Approach, Steven L. Schwarcz

The University of Chicago Business Law Review

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, …

Measuring Clarity In Legal Text, Jonathan H. Choi

University of Chicago Law Review

Legal cases often turn on judgments of textual clarity: when the text is unclear, judges allow extrinsic evidence in contract disputes, consult legislative history in statutory interpretation, and more. Despite this, almost no empirical work considers the nature or prevalence of legal clarity. Scholars and judges who study real-world documents to inform the interpretation of legal text primarily treat unclear text as a research problem to be solved with more data rather than a fundamental feature of language.

This Article makes both theoretical and empirical contributions to the legal concept of textual clarity. It first advances a theory of clarity …

Power And Politics In Original Jurisdiction, Zachary D. Clopton

University of Chicago Law Review

The original jurisdiction of the U.S. Supreme Court is a topic of scholarly interest but little practical significance. The original jurisdiction of state supreme courts is exactly the opposite—it is virtually absent from the scholarly literature but of significant practical importance. For example, dozens of cases related to elections, COVID-19 responses, and abortion were filed in the original jurisdiction of state supreme courts in the last few years. Legislatures also recognize the importance of original jurisdiction, as state legislators have proposed dozens of recent bills to change the scope of original jurisdiction.

This Article offers a comprehensive review of the …

Anti-Patents, Roy Baharad, Stuart Minor Benjamin, Ehud Guttel

University of Chicago Law Review

Conventional wisdom has long perceived the patent and tort systems as separate legal entities, each tasked with a starkly different mission. Patent law rewards novel ideas; tort law deters harmful conduct. Against this backdrop, this Essay uncovers the opposing effects of patent and tort law on innovation, introducing the “injurer-innovator problem.” Patent law incentivizes injurers—often uniquely positioned to make technological breakthroughs—by allowing them to profit from licensing their inventions to competitors. Yet tort law, by imposing liability for failures to invest in care, forces injurers to incur the cost of implementing their own inventions. When the cost of self-implementation exceeds …

Predictability And Adaptation In Law And Other Markets (Chapter In A Coming Book: Research Handbook On Law And Time), Saul Levmore

Coase-Sandor Working Paper Series in Law and Economics

People and enterprises that are subject to the law find it useful to know what the law is at present, but then also to anticipate future rules. If laws are stable this is easily done. Stability is more common where the judicial branch is concerned, because precedents are often valued, and for good reason. They are more often followed by judges than by those involved in other methods of lawmaking. But in all of lawmaking, and even in the private sphere, there is value to consistency and certainty. And yet, surprises can be attractive if they are not confronted on …

Lost Time: Paying For Delays Associated With Labor Strikes And Traffic Jams (Chapter In A Coming Book: Research Handbook On Law And Time), Saul Levmore

Coase-Sandor Working Paper Series in Law and Economics

Waiting is often costly. In many settings, one party delays to impose costs on another. In other settings, delay yields a small gain while imposing significant costs on others who cannot easily bargain. Where the parties can bargain, at least one expects the other to relent and to bring about a settlement that is mutually beneficial. Inasmuch as time offers the opportunity to gather information, compare alternatives, and reach yet better bargains, law does not and should not simply discourage all delays. On the other hand, it is often the case that when parties delay before reaching a bargain, they …

Labor Market Traps, Eric A. Posner

Coase-Sandor Working Paper Series in Law and Economics

Some products, notably but not only platforms, increase in value for users as the number of other users increases. These interaction or network effects can result in “product market traps” (Bursztyn et al., 2023) where people who use the product would be better off if they all stopped using it and switched to another product, but cannot because of coordination problems. A parallel but overlooked phenomenon is the labor market trap, where employees would be better off if they collectively left an employer, job, or profession, but cannot because of the difficulty of coordination. Product market and labor market traps …

Uncovering The Role Of Hubs: A Network Science Perspective On Platform Competition, Raz Agranat

Coase-Sandor Working Paper Series in Law and Economics

This paper offers a novel legal framework to evaluate competition among digital platforms. Drawing on network science, it debunks two prominent approaches in antitrust law, that network effects either lead to a winner-takes-all situation or, conversely, that they safeguard against platform market power abuses. It coins the term “hub-plucking” to highlight a critical dynamic of platform competition that has surprisingly gone unnoticed: the competition between platforms over highly connected “hubs”. Hub-plucking enables rivaling platforms, including new entrants, to instantly acquire market share by seizing hubs. Since many platforms of interest exhibit hubs, hub-plucking is applicable to a multitude of industries …

Predictability And Adaptation In Law And Other Markets (Chapter In A Coming Book: Research Handbook On Law And Time), Saul Levmore

Public Law and Legal Theory Working Papers

People and enterprises that are subject to the law find it useful to know what the law is at present, but then also to anticipate future rules. If laws are stable this is easily done. Stability is more common where the judicial branch is concerned, because precedents are often valued, and for good reason. They are more often followed by judges than by those involved in other methods of lawmaking. But in all of lawmaking, and even in the private sphere, there is value to consistency and certainty. And yet, surprises can be attractive if they are not confronted on …

Lost Time: Paying For Delays Associated With Labor Strikes And Traffic Jams (Chapter In A Coming Book: Research Handbook On Law And Time), Saul Levmore

Public Law and Legal Theory Working Papers

Waiting is often costly. In many settings, one party delays to impose costs on another. In other settings, delay yields a small gain while imposing significant costs on others who cannot easily bargain. Where the parties can bargain, at least one expects the other to relent and to bring about a settlement that is mutually beneficial. Inasmuch as time offers the opportunity to gather information, compare alternatives, and reach yet better bargains, law does not and should not simply discourage all delays. On the other hand, it is often the case that when parties delay before reaching a bargain, they …

The Neoclassical View Of Corporate Fiduciary Duty Law, Zachary J. Gubler

University of Chicago Law Review

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 …

International Administrative Tribunals And Cross-Fertilization: Evidence Of A Nascent Common Jurisprudence?, Jason Morgan-Foster

Chicago Journal of International Law

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 …

Brexit Backslide: How The United Kingdom’S Break From The European Union Could Erode Female Labor Rights, Katherine Ryan

Chicago Journal of International Law

Britain’s retreat from the E.U. has demonstrated the deep connection between its domestic law and E.U. law and the dangers that can arise when a country attempts to disentangle the two. With the recent passage of the Retained E.U. Law (Revocation and Reform) Act, the resulting absence of E.U. law in British domestic law may create legal holes that leave women in the workforce without protection from discrimination. International organizations and treaties, such as the Convention on the Elimination of All Forms of Discrimination Against Women and the International Labor Organization, may be used to patch these holes. Moreover, Britain …