Law Commons^™

Exporting American Discovery, Yanbai Andrea Wang

University of Chicago Law Review

This Article presents the first comprehensive study of an intriguing and increasingly pervasive practice that is transforming civil litigation worldwide: US judges now routinely compel discovery in this country and make it available for disputes and parties not before US courts. In the past decade and a half, federal courts have received and granted thousands of such discovery requests for use in foreign civil proceedings governed by different procedural rules. I call this global role played by US courts the “export” of American discovery.

This Article compiles and analyzes a data set of over three thousand foreign discovery requests filed …

A (Very) Unlikely Hero: How United States V Armstrong Can Save Retaliatory Arrest Claims After Nieves V Bartlett, Brenna Darling

University of Chicago Law Review

In Nieves v Bartlett, the Supreme Court holds that plaintiffs alleging retaliatory arrests are generally required to prove a lack of probable cause to arrest; there is one small exception for plaintiffs who can demonstrate by “objective evidence” that similarly situated individuals would not have been arrested but for the protected speech at issue. Unfortunately, neither the general rule nor the exception in this re-cent ruling will help many victims of retaliation. The expansion of the criminal code to cover petty indiscretions means police officers will not have any difficulty identifying probable cause to arrest for something. As to the …

“What Shall I Give My Children?”: Installment Land Contracts, Homeownership, And The Unexamined Costs Of The American Dream, Caelin Moriarity Miltko

University of Chicago Law Review

Gwendolyn Brooks’s “The Children of the Poor" is a meditation on parenthood in times of hardship, with a particular focus on the impact of poverty and social injustice. The title of this Comment comes from the second sonnet of Brooks’s tripartite poem: “What shall I give my children? who are poor,/ Who are adjudged the leastwise of the land.” In the poem, Brooks asks an immediate question: How will she respond to her children’s requests right now for material goods and acceptance that she cannot give them? Unable to fulfill those needs, the mother in the poem instructs her children …

Exhaustion Of Local Remedies And The Fsia Takings Exception: The Case For Deferring To The Executive’S Recommendation, Ikenna Ugboaja

University of Chicago Law Review

The Takings Exception to the Foreign Sovereign Immunities Act (FSIA) abrogates the defense of sovereign immunity when a foreign government takes property in violation of international law. But the exception does not specify whether plaintiffs must first exhaust local remedies in the relevant foreign country before filing suit in the United States. In the absence of clear statutory guidance, the circuit courts have reached divergent conclusions: the Seventh Circuit has held that the exhaustion rule is required under customary international law, the Ninth Circuit has suggested that courts could impose it at their discretion for reasons of comity, and the …

Frankfurter, Abstention Doctrine, And The Development Of Modern Federalism: A History And Three Futures, Lael Weinberger

University of Chicago Law Review

In its first century and a half, the Supreme Court never used the term “federalism” in its opinions. The Court had talked about federal-state relations before, but the concept had gone unlabeled. That changed in 1939. Something new was hap-pening, thanks in large part to Justice Felix Frankfurter. Just a month after joining the Court, Frankfurter authored the Court’s first opinion using the term “federalism.” Frankfurter introduced federalism as a key concept for analyzing the relationship between state courts and federal courts. Before long, Frankfurter would rely on federalism to fashion an original and enduring doctrine of judicial federalism: abstention, …

Litigating The Line Drawers: Why Courts Should Apply Anderson-Burdick To Redistricting Commissions, Andrew C. Maxfield

University of Chicago Law Review

In the wake of the Supreme Court’s recent decision in Rucho v Common Cause, ruling partisan gerrymandering claims nonjusticiable, redistricting commissions have never been more important. These commissions remain one of the few methods to remove the redistricting process from the hands of self-interested state legislatures. To accomplish this goal, many commissions limit the number of Republicans and Democrats who can serve on the commission and bar certain political actors— such as legislators and party leaders—from serving as commissioners. Although likely necessary to ensure redistricting commissions’ independence, these provisions burden the First Amendment associational rights of the excluded individuals and …

California’S Proposition 47 And Effectuating State Laws In Federal Sentencing, Brenna Ledvora

University of Chicago Law Review

Proposition 47 is a California voter initiative that reduced possessory drug offenses and minor thefts from felonies to misdemeanors. The law allows individuals to retroactively reclassify their convictions and mandates that these convictions shall be considered misdemeanors “for all purposes.” Under California law, reclassified convictions cannot be predicate felonies for future state sentencing enhancements. However, federal courts have held that reclassified convictions still constitute prior convictions for federal sentencing enhancements. Thus, these convictions still trigger felony-based enhancements. This Comment argues that this result is not mandated by Supreme Court precedent and that it conflicts with California’s intent to ameliorate the …

Simplifying Patent Venue, Micah Quigley

University of Chicago Law Review

In 2017, the Supreme Court overruled the Federal Circuit’s then-longstanding interpretation of 28 USC § 1400(b)—the statute that governs venue in patent infringement lawsuits. This ruling significantly narrowed patent venue. It also brought § 1400(b)’s neglected “regular and established place of business” test back into the light of day. Under this revived test, venue is proper if a defendant has a regular and established place of business in the judicial district where suit is brought. Despite initial guidance from the Federal Circuit, the resurrected test caused confusion and disagreement at the district court level.

One disagreement concerned whether § 1400(b) …

This Land Is Not Our Land, K-Sue Park

University of Chicago Law Review

“The story of our relationship to the earth is written more truthfully on the land than on the page. It lasts there. The land remembers what we said and what we did.” –Robin Wall Kimmerer, Braiding Sweetgrass 341 (Milk-weed 2013)

“The land and the wealth that began in it still carry the shape of history. . . . The land remembers. But what do we remember of it? Every political contest over claims on the land is, in part, a contest over what will be remembered and what will be forgotten.” –Jedediah Purdy, This Land Is Our Land: The Struggle …

The Adjudicative Model Of Precedent, Charles W. Tyler

University of Chicago Law Review

In most courts, a statement in an opinion is a holding only if it was necessary for the outcome of the case. Several state courts and one federal court of appeals, however, have a much broader definition of a holding, which this Article calls the “adjudicative model.” The adjudicative model defines a holding as any ruling expressly resolving an issue that was part of the case.

This Article offers the first empirical and normative assessment of the adjudicative model. It describes an empirical case study of the Ninth Circuit and finds that, after adopting the adjudicative model, that court was …

Political Questions And The Ultra Vires Conundrum, Richard H. Fallon Jr.

University of Chicago Law Review

This Article advances a novel theory of the political question doctrine by locating its foundations in a conundrum about ultra vires action, exemplified by the ancient question: Who will guard the guardians? The political question doctrine marks some questions as ultra vires the judicial power, or beyond the jurisdiction of courts to resolve. Correspondingly, designation of a question as political typically identifies it as lying within the jurisdiction of a nonjudicial institution to settle. Even after denominating a question as political, however, courts retain a responsibility to check actions by other institutions that overreach those institutions’ authority and thus are …

An Institution “At Arm’S Length”: Reconsidering Supervisory Power Over The Federal Grand Jury, Rebecca Gonzalez-Rivas

University of Chicago Law Review

Grand jury proceedings are shrouded in secrecy. No judge presides over them, no reporter annotates them, and when they have concluded, no juror may speak about them. While secrecy serves many important functions for the grand jury, its veil may be lifted under certain circumstances. Grand jury records may be released if they fall under a disclosure exception laid out in Federal Rule of Criminal Procedure 6(e). While some courts limit release to the exceptions laid out in the Rule, others look to an alternative source of authority.

Several courts of appeals have held that district court judges may exercise …

The Scope Of Tribal Immunity In Real Property Disputes, Sean Frazzette

University of Chicago Law Review

Native American tribes are sovereign nations with some degree of sovereign immunity. The exact contours of that immunity are often in flux. While the Supreme Court has established the confines of tribal immunity in cases involving torts, taxation, and contracts, it has avoided determining the doctrine’s application to cases involving real property. Recently, in Upper Skagit Indian Tribe v Lundgren, the Court dismissed the common notion that prior precedent mandates an in rem versus in personam distinction but refused to answer whether tribes can claim sovereign immunity in in rem actions against tribal land. By analyzing the history of tribal …

Statutes And Spokeo: The Case Of The Fdcpa, Jason R. Smith

University of Chicago Law Review

The Supreme Court’s decision in Spokeo, Incv Robins clarified the “concreteness” element of the injury-in-fact requirement for standing. The Court explained that while some statutory violations are concrete injuries, others are merely procedural and insufficient for standing without additional allegations of concrete harms. Federal courts have divided on the decision’s application to many statutory causes of action, including the mandatory disclosure requirements of the Fair Debt Collection Practices Act (FDCPA). While some courts view FDCPA mandatory disclosure violations as concrete injuries if they threaten the plaintiff’s concrete interests, others view the violations as merely procedural and never sufficient for standing. …

Penalty Default Rules For Digital Searches: Why Courts Should Spur Legislative Action Via Second-Order Regulation, Meghan Holloway

University of Chicago Law Review

We live in a data-rich age. But Fourth Amendment doctrines have failed to adapt to our current reality. Legal principles that evolved to cabin the scope of physical searches seldom constrain searches of digital devices. As a result, a warrant to search a digital device gives police officers unfettered access to all of our information. While many scholars have argued that courts should address this problem by adopting rules that directly limit the scope of digital searches, this Comment argues that some courts have already eschewed this approach in favor of rules that encourage legislatures to regulate digital searches. Legislative …

A Mission Statement For Mutual Funds In Shareholder Litigation, Sean J. Griffith, Dorothy S. Lund

University of Chicago Law Review

This Article analyzes the conduct of mutual funds in shareholder litigation. We begin by reviewing the basic forms of shareholder litigation and the benefits such claims might offer mutual fund investors. We then investigate, through an in-depth docket review, whether and how the ten largest mutual funds participate in share-holder litigation. We find that although shareholder suits offer potential benefits, the largest mutual funds have essentially forfeited their use of litigation. This finding is particularly striking given that index funds and other long-term oriented mutual funds generally cannot sell their shares when they are dissatisfied with company performance, leaving them …

Does The Tax Code Believe Women?: Reexamining 26 Usc §104(A)(2) In The #Metoo Era, Simon De Carvalho

University of Chicago Law Review

Since 1918, the tax code has included26 USC §104(a)(2),an exclusion from gross in come for civil lawsuit damages for “personal injuries or sickness.” In 1996, by adding one word—“physical”—to the provision (twice), Congress narrowed the exclusion’s scope dramatically. Now, damages compensating for a broken arm (a “personal physical injury”) are tax-free, but those arising out of claims for, say, sexual harassment or race discrimination are fully taxable. Such injuries, the statute says, are insufficiently “physical” to merit exclusion from income.

Using the recent #MeToo movement as a jumping-off point and borrowing the language and methodologies of feminist legal theory, this …

The First Amendment’S Real Lochner Problem, Genevieve Lakier

University of Chicago Law Review

One of the most common criticisms of contemporary free speech law is that it is too Lochnerian. What critics usually mean by this is that First Amendment doctrine, by extending significant constitutional protection to advertising and other kinds of commercially oriented speech, makes the same mistake as the Supreme Court made in Lochnerv New Yorkand other late nineteenth-and early twentieth-century Due Process Clause cases: namely, it grants judges too much power to second-guess the economic policy decisions of democratically elected legislatures.

This Article challenges that argument—not to reject the idea that contemporary free speech law resurrects Lochner, but instead to …

Available, Granted, Revoked: A New Framework For Assessing Unauthorized Access Under The Computer Fraud And Abuse Act, Samuel Kane

University of Chicago Law Review

The Computer Fraud and Abuse Act (CFAA) criminalizes a broad range of conduct related to the compromise of computer systems. Specifically, the CFAA prohibits unauthorized access to computer systems, defining such access as that which occurs “without authorization” or in a manner that “exceeds authorized access.” Courts interpreting the meaning of unauthorized access under the CFAA have diverged into two camps. On one side, proponents of the broad approach argue that the CFAA unauthorized access inquiry should focus on access purpose, assessing whether a given access was conducted for a purpose authorized by the computer owner. On the other side, …

The Case For Noncompetes, Jonathan M. Barnett, Ted Sichelman

University of Chicago Law Review

Scholars and other commentators widely assert that enforcement of contractual and other limitations on labor mobility deters innovation. Based on this view, federal and state legislators have taken, and continue to consider, actions to limit the enforcement of covenants not to compete in employment agreements. These actions would discard the centuries-old reasonableness standard that governs the enforcement of these provisions, often termed “noncompetes,” in all but four states (notably, California). We argue that this zero-enforcement position lacks a sound basis in theory or empirics. As a matter of theory, it overlooks the complex effects of contractual limitations on labor mobility …

The Spectrum Of Procedural Flexibility, Ronen Avraham, William H.J. Hubbard

University of Chicago Law Review

Sometimes the rules let you change the rules. In civil procedure, many rules are famously rigid—for example, neither the parties nor the judge can stipulate to subject matter jurisdiction—but closer inspection yields many ways that judges or parties (individually or by agreement) can change procedural defaults, such as the number of depositions, trial by judge or jury, or sometimes even jurisdiction. Whether the judge or parties have “flexibility” to change the rules of the game is an important, but understudied, aspect of procedure.

This Article is the first to document the full spectrum of procedural flexibility—the varied and sometimes surprising …

The Executive Judgment Rule: A New Standard Of Dismissal For Qui Tam Suits Under The False Claims Act, Nathan T. Tschepik

University of Chicago Law Review

Under the 1986 amendments to the False Claims Act, whistleblowing has be-come big business. The Act’s qui tam provision empowers private parties, called relators, to bring suit on behalf of the government for frauds committed against it—and to receive substantial portions of that recovery. Relying on the award-sharing provision to draw out relators with inside knowledge of complex and well-hidden frauds, the government uses these qui tam suits as a critical part of its regulatory policy. The recent history of the Act shows that it has done this to great effect: the government recovers billions of dollars annually from fraudulent …

The Golden Share: Attaching Fiduciary Duties To Bankruptcy Veto Rights, Yiming Sun

University of Chicago Law Review

Under bankruptcy law, a debtor cannot enter into a binding agreement with a creditor to not file for bankruptcy in the future. However, creditors can in effect prevent a corporate debtor from filing for bankruptcy by obtaining a special “golden share” in the debtor and exercising the right to veto its bankruptcy concomitant with such a share. Currently, courts decide whether to invalidate a golden share veto right based on whether the right is equivalent to a bankruptcy waiver. However, the current rule may lead to either underdeterrence of bad faith vetoes or discouragement of good faith corporate decision-making.

This …

Table Of Contents

Chicago Journal of International Law

No abstract provided.

Domestic Restrictions On Non-Governmental Organizations And Potential Protections Through Legal Personality: Time For A Change?, Casey Jedele

Chicago Journal of International Law

Non-governmental organizations (NGOs) play a vital role in international law and governance by influencing the formation of international law and serving as watchdogs in the execution of international agreements. However, countries around the world are increasingly wielding overly cumbersome and targeted domestic restrictions against NGOs in the form of both formal legislation and executive policy. These restrictions hinder the ability of NGOs to provide services, raise resources, and fulfill their watchdog role. As such, the restrictions threaten the effectiveness and very existence of NGOs, especially in nations where they are most needed. Evidence suggests that these ramifications are the design …

The Impact Of Trade And Investment Treaties On Fiscal Resources And Taxation In Developing Countries, Sonia E. Rolland

Chicago Journal of International Law

Developing countries need fiscal revenue to build their infrastructure, achieve energy security and environmental sustainability, and provide social services necessary for human development. While trade and investment treaties have typically been assumed to be tax revenue-neutral, economic studies demonstrate that such is not, in fact, the case. The legal literature has not given much consideration to this issue, assuming instead that the tax effects of economic globalization have been addressed by bilateral tax treaties. However, constraints on developing countries’ fiscal resources resulting from trade and investment treaties are complex and nuanced, and they go much beyond the jurisdictional overlaps addressed …

The Identification Of Customary International Law: Institutional And Methodological Pluralism In U.S. Courts, Noah A. Bialos

Chicago Journal of International Law

It is well established that there is a consensus, two-element approach to the identification of customary international law. Among international courts and organizations, a customary rule is identified based on evidence of a general practice by states, which is accepted as law. Customary international law, however, is also subject to identification at the national level. For centuries, questions regarding the existence and content of customary international rules have arisen in national courts. Given their own institutionalized methods of resolving legal ambiguity, national courts are thus routinely faced with a normative conflict: is the appropriate method for identifying rules of customary …

Treaty Interpretation Under A Covenant Paradigm, Jared I. Mayer

Chicago Journal of International Law

Treaty interpretation has long drawn from the practice of contract interpretation. This is because, structurally speaking, treaties and contracts share many features. While the contract paradigm of treaty interpretation may work well for “ordinary” treaties—that is, treaties that have relatively low transaction costs for negotiating and renegotiating, whose fallout would not produce possibly disastrous consequences, and whose contents reify other, previously instantiated commitments between the parties—there is reason to doubt its efficacy with respect to “momentous” treaties. Momentous treaties are those whose transaction costs are tremendously high, fallout from which would jeopardize critical international security and prosperity goals, and that …

The Children Of Isis: Statelessness And Eligibility For Asylum Under International Law, Ana Luquerna

Chicago Journal of International Law

This Comment focuses on the thousands of foreign children who are indefinitely detained at al-Hol camp in Northern Syria due to their perceived affiliation with ISIS. Specifically, this Comment explores whether stateless children who lived under the ISIS regime and cannot repatriate are eligible for asylum under international law, including the 1951 Convention on the Status of Refugees and its accompanying 1967 Protocol. After examining the relevant international law protecting children and the stateless, this Comment finds that the detention of children at al-Hol camp violates the laws of war and international human rights law. Specifically, the squalid conditions of …

You’Re On Native Land: The Genocide Convention, Cultural Genocide, And Prevention Of Indigenous Land Takings, Bonnie St. Charles

Chicago Journal of International Law

Genocide is a sensitive topic. While the Genocide Convention is traditionally understood, especially in the popular imagination, to prohibit mass killings, its provisions prohibit a far broader array of conduct. While killings of Indigenous peoples have thus frequently been considered to fall within the bounds of the Genocide Convention, crimes against culture—like the taking of ancestral or sacred Indigenous lands—have been considered outside of its bounds. While many of these takings continue to occur today, Indigenous loss of land has been consistent throughout history. This Comment argues that cultural genocide, both as a means and as an end, are properly …