Law Commons^™

Escape Room: Implicit Takings After Cedar Point Nursery, Lee Anne Fennell

Public Law and Legal Theory Working Papers

In Cedar Point Nursery v. Hassid, the Supreme Court ruled 6-3 that a California regulation that gave union organizers limited access to agricultural worksites amounted to a per se taking. The Court went on to opine that any governmental grant of physical access, no matter how time-limited or functionally constrained, similarly works a per se taking, unless one of the Court’s exceptions applies. This essay argues that Cedar Point is best understood as part of an implicit takings apparatus designed to selectively apply scrutiny to property-facing governmental acts in ways that broadly entrench status quo patterns of property wealth. The …

The Future Of Liberal Democracy In The International Legal Order, Tom Ginsburg

Public Law and Legal Theory Working Papers

Liberal democracy is a feature of national political order that can be promoted, defended, or undermined by international legal institutions. It is not a feature of international legal order itself, nor can it be, given the inherent pluralism about ways of organizing government that is constitutive of the international legal system. But neither is it the case that any particular liberal democracy is an island; liberalism is itself a transnational ideology, and both the expansion and recession of democracy around the world have been the result of interdependent decisions made by states and other transnational actors.

Of particular importance has …

Visibility And Indivisibility In Resource Arrangements, Lee Anne Fennell

Public Law and Legal Theory Working Papers

Projects like highways, bridges, pipelines, and wildlife corridors exhibit indivisibilities — we need the whole thing to have anything of value. Many environmental and social goals have a similar all-or-nothing character: staying above or below a certain critical threshold can make all the difference. This essay focuses on the role of visibility in addressing resource dilemmas that have this structure. I examine how two kinds of visibility can help avoid catastrophic consequences and advance desirable ones. The first involves recognizing when an indivisibility is present — that is, appreciating the vulnerability of resources to thresholds and cliff effects before it …

Promoting Regulatory Prediction, Johnathan S. Masur, Jonathan Remy Nash

Public Law and Legal Theory Working Papers

It is essential for environmental protection that private actors be able to anticipate government regulation. If, for instance, the Biden Administration is planning to tighten regulations of greenhouse gas emissions, it is imperative that private companies anticipate this regulatory change now, not a few years from now after they have constructed even more coal- and gas-fired power plants. Those additional power plants will mean more irreversible greenhouse gases, and these plants can be politically challenging to shutter once built. The point is general to private actors making decisions in the shadow of potential government regulation. Better information about future government …

The Institutional Context Of The International Court Of Justice, Tom Ginsburg

Public Law and Legal Theory Working Papers

Institutional analysis is an approach drawn from the social sciences that examines the ways in which an organization’s internal structures and external environment shape outcomes. There are many different kinds of institutionalism, but all have in common an emphasis on examining structures, as opposed to, say, the particular individuals who inhabit institutions, or the role of ideology at a macro level.¹ Institutional analysis has been productively applied to courts and invites two related inquiries: what is the court’s institutional design, and what is its institutional environment?

Applying this approach to the International Court of Justice (“ICJ” or “Court”) requires …

Equalizing The Tax Treatment Of Stock Buybacks And Dividends, Daniel J. Hemel, Gregg D. Polsky

Public Law and Legal Theory Working Papers

This policy brief highlights flaws in the current federal tax treatment of stock buybacks and proposes to address those flaws by equalizing the tax treatment of buybacks and dividends. (We explore the proposal in greater detail in Hemel & Polsky, Taxing Buybacks, 38 Yale J. on Reg. 246 (2021), https://ssrn.com/abstract=3764112.) Stock buybacks allow foreign shareholders to avoid U.S. withholding tax on corporate cash distributions. Stock buybacks also allow U.S. taxable investors to reduce or eliminate shareholder-level tax on corporate cash distributions through a combination of deferral, loss harvesting, and stepped-up basis at death. Our proposal—based on an idea first suggested …

Property Law For The Ages, Michael C. Pollack, Lior Jacob Strahilevitz

Public Law and Legal Theory Working Papers

Within the next forty years, the number of Americans over age sixty-five is projected to nearly double. This seismic demographic shift will necessitate a reckoning in several areas of law and policy, but property law is especially unprepared. Built primarily for young and middle-aged white men, the common law of property has been critiqued for decades for the ways in which it oppresses or simply leaves behind people based on their race, sex, Native heritage, and more. This Article contributes a new focus on property law’s treatment of people based on their advanced age. Burdened by higher relocation costs, more …

The Limits Of International Law Fifteen Years Later, Eric A. Posner, Jack L. Goldsmith

Public Law and Legal Theory Working Papers

The Limits of International Law received a great deal of criticism when it was published in 2005 but it has aged well. The skeptical, social-scientific methodology that it recommended has become a normal mode of international law scholarship. And the dominant idealistic view of international law that the book criticized is today in shambles, unable to explain the turmoil in international politics. This essay reflects on the book’s reception and corrects common misperceptions of its arguments.

Regulation And Redistribution With Lives In The Balance, Daniel J. Hemel

Public Law and Legal Theory Working Papers

A central question in law and economics is whether non-tax legal rules should be designed solely to maximize efficiency or whether they also should account for concerns about the distribution of income. This question takes on particular importance in the context of cost-benefit analysis. Federal agencies apply cost-benefit analysis when writing regulations that generate multibillion dollar impacts on the US economy and profound effects on millions of Americans’ lives. In the past, agency cost-benefit analyses typically have ignored the income-distributive consequences of those regulations. That may soon change: On his first day in office, President Biden instructed his Office of …

Artificial Intelligence And The Rule Of Law, Aziz Z. Huq

Public Law and Legal Theory Working Papers

This chapter examines an interaction between technological shocks and the “rule of law.” It does so by analyzing the implications of a class of loosely related computational technologies termed “machine learning” (ML) or, rather less precisely “artificial intelligence” (AI). These tools are presently employed in the pre-adjudicative phase of enforcing of the laws, for example facilitating the selection of targets for tax and regulatory investigations (Coglianese and Lehr, 2016). They are also increasingly used during adjudication, for example, to facilitate and guide determinations of individual violence risk during pretrial bail determinations (Huq, 2019). Predictions of a general displacement of human …

The Public Trust In Data, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Personal data is no longer just personal. Social networks and pervasive environmental surveillance via cellphones and the ‘internet of things’ extract minute-by-minute details of our behavior and cognition. This information accumulates into a valuable asset. It then circulates among data brokers, targeted advertisers, political campaigns, and even foreign states as fuel for predictive interventions. Rich gains flow to firms well positioned to leverage these new information aggregates. The privacy losses, economic exploitation, structural inequalities, and democratic backsliding produced by personal data economies, however, fall upon society at large.

This Article proposes a novel regulatory intervention to mitigate the harms from …

Designing Supreme Court Term Limits, Adam Chilton, Daniel Epps, Kyle Rozema, Maya Sen

Public Law and Legal Theory Working Papers

Since the Founding, Supreme Court Justices have enjoyed life tenure. This helps insulate the Justices from political pressures, but it also results in unpredictable deaths and strategic retirements determining the timing of Court vacancies. In order to regularize the appointments process, a number of academics and policymakers have put forward detailed term-limits proposals. However, many of these proposals have been silent on several key design decisions, and there has been almost no empirical work assessing the impact that term limits would have on the composition of the Supreme Court.

This Article provides a framework for designing a complete term-limits proposal …

Shining A Light On Dark Patterns, Jamie Luguri, Lior Jacob Strahilevitz

Public Law and Legal Theory Working Papers

Dark patterns are user interfaces whose designers knowingly confuse users, make it difficult for users to express their actual preferences, or manipulate users into taking certain actions. They typically exploit cognitive biases and prompt online consumers to purchase goods and services that they do not want or to reveal personal information they would prefer not to disclose. This article provides the first public evidence of the power of dark patterns. It discusses the results of the authors’ two large-scale experiments in which representative samples of American consumers were exposed to dark patterns. In the first study, users exposed to mild …

Stickiness And Incomplete Contracts, Julian Nyarko

University of Chicago Law Review

Both economic theory and legal theory assume that sophisticated parties routinely aim to write contracts that are optimal, in the sense of maximizing the parties’ joint surplus. But more recent studies analyzing corporate and government bond agreements have suggested that some contract provisions are highly path dependent, or “sticky,” with future agreements only rarely improving upon previous ones.

Analyzing half a million contracts using automated text analysis, this Article demonstrates that the stickiness hypothesis explains the striking lack of dispute resolution clauses that can be found in agreements between even the most sophisticated commercial parties. When drafting these contracts, external …

Proximate Cause Explained: An Essay In Experimental Jurisprudence, Joshua Knobe, Scott J. Shapiro

University of Chicago Law Review

One of the oldest debates in American jurisprudence concerns the concept of “proximate cause.” According to so-called formalists, the legal concept of proximate cause is the same as the ordinary concept of “cause.” The legal question of whether a cause is proximate for the purposes of establishing tort liability, therefore, is an objective matter about the external world determinable by familiar descriptive inquiry. By contrast, legal realists think that issues of proximate causation are disguised normative questions about responsibility. As the realists William Prosser and W. Page Keeton put it, proximate cause is better called “responsible cause.”

Recent work in …

Open Access, Interoperability, And The Dtcc's Unexpected Path To Monopoly, Dan Awrey, Joshua Macey

Coase-Sandor Working Paper Series in Law and Economics

In markets with significant scale economies and network effects, scholars and policymakers often tout open access and interoperability requirements as superior to both regulated monopoly and the break-up of dominant firms. In theory, by compelling firms to coordinate to develop common infrastructure, regulators can use these requirements to replicate scale and network economies without leaving markets vulnerable to monopoly power. Examples of successful coordination include the provision of electricity, intermodal transportation, and credit card networks.

This Article analyzes the history of U.S. securities clearinghouses and depositories in order to offer a significant qualification to this received wisdom. This history demonstrates …

Utility Mergers And The Modern (And Future) Power Grid, Joshua Macey

Coase-Sandor Working Paper Series in Law and Economics

Scott Hempling’s Regulating Mergers and Acquisitions of U.S. Electric Utilities provides a comprehensive history of electric utility mergers in the United States since the 1980s. Hempling documents the dramatic consolidation the industry has seen in the past fifty years, and he convincingly argues that electric utility mergers present unique problems for regulators. This Review considers how utility acquisitions (a) allow holding companies to leverage the utilities’ creditworthiness to cross-subsidize non-utility affiliates, and (b) exacerbate informational asymmetries between regulators and utilities. It argues that utility mergers generate negative spillovers outside of the utility’s service territory that have potentially significant environmental consequences, …

Congress’S Commissioners: Former Hill Staffers At The S.E.C. And Other Independent Regulatory Commissions, Brian D. Feinstein, M. Todd Henderson

Coase-Sandor Working Paper Series in Law and Economics

The expression “personnel is policy” has become a truism in Washington. Yet our understanding of how the political branches use appointments to project influence into the administrative state is incomplete. This Article leverages data on almost one-thousand commissioners serving on eleven major independent regulatory commissions to chart, for the first time, Congress’s growing practice of placing former legislative-branch personnel onto these entities. We then theorize that this phenomenon is rooted in fundamental changes in American politics in recent decades— and, in turn, that it has deeply affected administrative law and separation-of- powers dynamics.

Over the past several decades, the number …

Revitalizing The Generation-Skipping Transfer Tax, Daniel J. Hemel, Robert Lord

Public Law and Legal Theory Working Papers

Congress first enacted the generation-skipping transfer (GST) tax in 1976 to protect the estate and gift tax base and to ensure that extraordinary fortunes would bear their fair share of the transfer tax burden. Nearly a half-century into the life of the GST tax, those goals remain unrealized. In recent decades, high-net-worth individuals have succeeded in shifting hundreds of billions of dollars to “dynasty trusts” that—under current law—are poised to escape federal wealth transfer taxation indefinitely. The rise of dynasty trusts reduces the revenue-raising potential of the estate and gift taxes and allows a privileged class to exert vast economic …

Assessing Affirmative Action's Diversity Rationale, Adam Chilton, Justin Driver, Jonathan S. Masur, Kyle Rozema

Public Law and Legal Theory Working Papers

Ever since Justice Lewis Powell’s opinion in Regents of the University of California v. Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs, the diversity rationale has received vehement criticism from across the ideological spectrum. Critics on the right argue that diversity efforts lead to “less meritorious” applicants being selected. Critics on the left charge that diversity is mere “subterfuge.” On the diversity rationale’s legitimacy, then, there is precious little diversity of thought. In particular, prominent scholars and jurists have cast doubt on the diversity rationale’s empirical foundations, claiming that it rests on an implausible …

The Law Of Democratic Disqualification, Tom Ginsburg, Aziz Z. Huq, David Landau

Public Law and Legal Theory Working Papers

Almost all constitutions, including our own, include one or several ways to disqualify specific individuals from political office. The U.S. Constitution, indeed, incorporates no less than four overlapping pathways toward disqualification. This power of retail disqualification stands at the heartland of the complex project of democratic rule. In practice, it works both an instrument for preserving democratic rule, and also a knife against it. This Article is the first to analyze systematically the complex positive and normative questions raised by disqualification. It offers both a positive account of the function that disqualification plays in constitutional ordering, and a normative account …

Remediation In Foreign Bribery Settlements: The Foundations Of A New Approach, Samuel J. Hickey

Chicago Journal of International Law

A handful of nations spearhead the global anti-corruption regime through the transnational enforcement of foreign bribery laws. These laws prohibit corporations with a connection to the enforcing nation from paying or offering bribes to the officials of a foreign nation. Enforcement agencies construe the extraterritorial application of these laws broadly, establishing their global prominence. The most notable example is the United States Department of Justice’s enforcement of the Foreign Corrupt Practices Act of 1977 (FCPA). Enforcement agencies typically resolve investigations against corporations through deferred prosecution agreements and other consensual settlement mechanisms known generally as non-trial resolutions. Fines and penalties paid …

Whole Issue (Winter 2021 / 21.2)

Chicago Journal of International Law

No abstract provided.

Environment, Mobility, And International Law: A New Approach In The Americas, David J. Cantor

Chicago Journal of International Law

The role of international law in regulating international movement in the context of global environment change and hazards remains a topic of intense debate among both legal scholars and practitioners. Yet, as this Article shows, we have largely reached the limits of what existing international law methods and approaches can tell us about the future of the law in this area. By contrast, this Article draws on a detailed regional case study to offer a distinct perspective to that ongoing debate about the role and future of international law. Against the backdrop of emerging patterns of mobility linked to devastating …

Table Of Contents

Chicago Journal of International Law

Table of Contents (Winter 2021 / 21.2)

The Legal Man In The Moon: Exploring Environmental Personhood For Celestial Bodies, William B. Altabef

Chicago Journal of International Law

The rise of the commercial space industry endangers the preservation of environments, such as the lunar surface and other celestial bodies, with the threat of contamination and resource exploitation. In the coming decades, flights to space will become commonplace—but at present, there is no way to hold outer space polluters accountable. The existing international legal regime is weak, with the United Nations’ space treaties offering limited enforcement mechanisms against offenders. The increasingly popular concept of environmental personhood offers a solution by rethinking the meaning of a juridical person within the text of the United Nations Outer Space, Space Liability, and …

The Application Of International Tax Treaties To Digital Services Taxes, Katherine E. Karnosh

Chicago Journal of International Law

As digital services and electronic commerce have become more prevalent aspects of the global economy, there have been concerns over how tax systems will adapt to this change. International tax treaties in particular seem to be outdated and unprepared for the digital economy. Many international tax treaties provide that businesses are to be taxed on their income only in jurisdictions where they have a sufficient physical presence. By establishing their European headquarters and digital servers in countries with low corporate income tax rates (such as Ireland) and then using those headquarters to provide digital services to the rest of Europe, …

Human Rights Disclosure And Due Diligence Laws: The Role Of Regulatory Oversight In Ensuring Corporate Accountability, Rachel Chambers, Anil Yilmaz Vastardis

Chicago Journal of International Law

The proliferation of human rights disclosure and due diligence laws around the globe is a welcome development in the area of business and human rights. Corresponding improvement in conditions for workers and communities in global supply chains whose human rights are impacted by businesses has not materialized, however. In this Article, we focus on the oversight and enforcement features of human rights disclosure and due diligence laws as one of the missing links to achieving the accountability objectives envisaged by such legislation. Drawing on our analysis of key legislative developments, we observe and critique that the state has almost completely …

A Transnational Law Of The Sea, Josh Martin

Chicago Journal of International Law

It is widely accepted that we are presently struggling to govern the vast expanse of the ocean effectively. This Article finally gets to the real cause of much of the failures of the law of the sea: Westphalian sovereignty. In particular, it evidences that certain features of our obstinate model of public international law—such as sovereign exclusivity, equality, and territoriality—can be linked with a large majority of the governance “gaps” in the global ocean context. It thereby exonerates the falsely accused Grotius’s mare liberum doctrine and flag state regulation, which both still continue to receive an unmerited level of condemnation. …

A Class Of One: Multiracial Individuals Under Equal Protection, Desirée D. Mitchell

University of Chicago Law Review

When it comes to recognizing multiracial individuals under the Equal Protection Clause, courts have fallen short. Only rarely do courts explicitly identify multiracial plaintiffs as just that—multiracial. Instead, the majority of courts revert to a “one-drop” rule in which they view plaintiffs as only one part of their self-identified racial composition. In doing so, the unique identities and experiences of multiracial individuals remain unaddressed. This Comment builds off previous scholarship by arguing that courts can and should do better at recognizing multiracial plaintiffs in equal protection cases by using a “class-of-one” framework. Under that doctrine, the Supreme Court has held …