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Loyola University Chicago, School of Law

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Full-Text Articles in Law

Covid-19 And American Democracy, Barry Sullivan Jun 2020

Covid-19 And American Democracy, Barry Sullivan

Faculty Publications & Other Works

This article discusses the response of the United States Government to the COVID-19 Pandemic from January through June 19, 2020.In particular, the article focuses on the constitutional and legal background of that response. The article was prepared for a symposium in the Italian journal Il diritti dell'economia on responses to the COVID-19 pandemic by governments around the world.


The Emergence Of Law And Macroeconomics: From Stability To Growth To Human Development, Steven A. Ramirez Jan 2020

The Emergence Of Law And Macroeconomics: From Stability To Growth To Human Development, Steven A. Ramirez

Faculty Publications & Other Works

No abstract provided.


State Attorneys General As Agents Of Police Reform, Stephen Rushin, Jason Mazzone Jan 2020

State Attorneys General As Agents Of Police Reform, Stephen Rushin, Jason Mazzone

Faculty Publications & Other Works

State attorneys general can and should play an important role in remedying police violations of constitutional rights. In 1994, Congress enacted 42 U.S.C. § 14141 to authorize the U.S. Attorney General to seek equitable relief against state and local police departments engaged in patterns or practices of misconduct. The Department of Justice (DOJ) has used this statute to reform some of the nation’s most troubled police departments. However, the DOJ has lacked the resources to pursue more than a few cases each year and the Trump Administration has recently announced it would no longer enforce § 14141.

In ...


Are Presidential Electors Free To Vote As They Wish, Despite A State’S Popular Vote?, Alan Raphael, Elliott Mondry Jan 2020

Are Presidential Electors Free To Vote As They Wish, Despite A State’S Popular Vote?, Alan Raphael, Elliott Mondry

Faculty Publications & Other Works

No abstract provided.


The Science Of Administrative Change, Barry Sullivan, Christine Chabot Jan 2020

The Science Of Administrative Change, Barry Sullivan, Christine Chabot

Faculty Publications & Other Works

Donald Trump repeatedly vowed to reduce regulation during the 2016 presidential campaign. Indeed, one of his key advisors promised to "deconstruct" the administrative state. Since taking office, President Trump has attempted to make good on his promises, spurring federal agencies to brush aside countless regulations that previous administrations had promulgated based on scientific, technological, or economic evidence. Those efforts, which have been dubbed a "war on science," implicate a long-contested question in administrative law: to what extent should a change in presidential administrations excuse agencies from an obligation to justify changes in policy with expert, reasoned analysis of relevant data ...


Supreme Court Journalism: From Law To Spectacle?, Barry Sullivan, Cristina Tilley Jan 2020

Supreme Court Journalism: From Law To Spectacle?, Barry Sullivan, Cristina Tilley

Faculty Publications & Other Works

Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretations of the Constitution and laws. Most of what the public knows about the Supreme Court necessarily comes from the press. That fact raises questions of considerable importance to the functioning of our constitutional democracy: How, for example, does the press describe the work of the Supreme Court? And has the way in which the press describes the work of the Court changed over the past several ...


A Dangerous Concoction: Pharmaceutical Marketing, Cognitive Biases, And First Amendment Overprotection, Cynthia M. Ho Jan 2019

A Dangerous Concoction: Pharmaceutical Marketing, Cognitive Biases, And First Amendment Overprotection, Cynthia M. Ho

Faculty Publications & Other Works

This Article argues that pharmaceutical marketing to doctors should be more critically evaluated and entitled to less First Amendment protection, contrary to a trend dating back to the Supreme Court's 2011 decision in Sorrell. In particular, the Article argues that more information to doctors in the form of pharmaceutical marketing does not necessarily result in better patient outcomes. The Article adds a significant critique based on the existence and impact of cognitive bias literature that has thus far not been recognized in this area. If courts fully embrace this understanding, they should recognize that the government, through the Food ...


Beyond Samuel Moyn's Countermajoritatian Difficulty As A Model Of Global Judicial Review, James T. Gathii Jan 2019

Beyond Samuel Moyn's Countermajoritatian Difficulty As A Model Of Global Judicial Review, James T. Gathii

Faculty Publications & Other Works

This Article responds to Samuel Moyn's critique of judicial review and his endorsement of judicial modesty as an alternative. By invoking the countermajoritarian difficulty, Moyn argues that judicial overreach has become an unwelcome global phenomenon that should be reexamined and curbed. I reject Moyn's claim that this kind of judicial modesty should define the role of courts for all time. By applying the countermajoritarian difficulty beyond its United States origins, Moyn assumes it is an unproblematic baseline against which to measure the role of courts globally. Moyn's vision says nothing about when it would be appropriate for ...


The Future Of Insider Trading After Salman: Perpetuation Of A Flawed Analysis Or A Return To Basics, Charles W. Murdock Jan 2019

The Future Of Insider Trading After Salman: Perpetuation Of A Flawed Analysis Or A Return To Basics, Charles W. Murdock

Faculty Publications & Other Works

In large part due to two poorly reasoned decisions by Justice Powell in the early 1980s, Chiarella v. U. S. and Dirks v. SEC, the development of insider trading law has been constrained, enforcement has been hampered, and insider-trading has grown to the point where hundreds of millions of dollars are at stake. Moreover, Chiarella and Dirks were inconsistent with the Congressional policy that the purpose of the securities laws is to ensure a level playing field where one participant does not have an undue advantage over another participant. A Second Circuit decision, U.S. v. Newman unnecessarily extended Dirks ...


Antitrust And Democracy, Spencer Weber Waller Jan 2019

Antitrust And Democracy, Spencer Weber Waller

Faculty Publications & Other Works

Our solution of the anti-monopoly problems must be in terms of our ideals-- the ideals of political and economic democracy. We want no economic or political dictatorship imposed upon us either by the government or by big business. We want no system of detailed regulation of prices by the government nor price fixing by private interests. We do not want bureaucracy or regimentation of any kind, but we will prefer governmental to private bureaucracy and regimentation, if we have to make such a choice. We cannot permit private corporations to be private governments. We must keep our economic system under ...


Data Subjects' Privacy Rights: Regulation Of Personal Data Retention And Erasure, Alexander Tsesis Jan 2019

Data Subjects' Privacy Rights: Regulation Of Personal Data Retention And Erasure, Alexander Tsesis

Faculty Publications & Other Works

The European Union's right to erasure came into effect May 25, 2018, as Article 17 of the General Data Protection Regulation ("GDPR"). Unlike the U.S. "marketplace of ideas" model of free speech, the GDPR gives greater weight to data subjects' privacy interests than to audiences' curiosity about others' intimate lives. The U.S. and EU models advance human thirst for knowledge through open and uninhibited debates, whereas the internet marketplace tends to favor social media companies' commercial interests: put more specifically, free speech is not entirely harmonious with the interests of social media intermediaries whose algorithms tend to ...


Deliberate Democracy, Truth, And Holmesian Social Darwinism, Alexander Tsesis Jan 2019

Deliberate Democracy, Truth, And Holmesian Social Darwinism, Alexander Tsesis

Faculty Publications & Other Works

JUSTICE Oliver Wendell Holmes Jr.'s “marketplace of ideas” analogy continues to deeply influence First Amendment doctrine. It provides a rational substratum upon which the political or self-realization characterizations of free speech are built. However, typically overlooked is the Social Darwinistic root of the Justice's thought. He championed the spread of ideas and the political sway of majority opinions. That analytical insight is key to many of the Supreme Court's free speech precedents. On the one hand, the concept is invaluable for defending free discussions about philosophy, political science, the arts, humanities, pedagogy, and social sciences. In ...


Interrogating Police Officers, Stephen Rushin, Atticus Deprospo Jan 2019

Interrogating Police Officers, Stephen Rushin, Atticus Deprospo

Faculty Publications & Other Works

This Article empirically evaluates the procedural protections given to police officers facing disciplinary interrogations about alleged misconduct. It demonstrates that state laws and collective bargaining agreements have insulated many police officers from the most successful interrogation techniques.
The first part of this Article builds on previous studies by analyzing a dataset of police union contracts and state laws that govern the working conditions in a substantial cross section of large and midsized American police departments. Many of these police departments provide officers with hours or even days of advanced notice before a disciplinary interrogation. An even larger percentage of these ...


Arlington Heights Won In The Supreme Court But The Fair Housing Act's Goal Of Promoting Racial Integration Saved The Low-Income Housing, Henry Rose Jan 2019

Arlington Heights Won In The Supreme Court But The Fair Housing Act's Goal Of Promoting Racial Integration Saved The Low-Income Housing, Henry Rose

Faculty Publications & Other Works

In the early 1970’s, a developer sought a zoning change to a parcel of land in Arlington Heights, Illinois that would allow for the construction of government-subsidized low income housing. Arlington Heights denied the zoning change and the developer and several potential residents of the housing sued Arlington Heights arguing that this denial violated both equal protection under the Fourteenth Amendment of the United States Constitution and the federal Fair Housing Act (FHA). In Vil. Of Arlington Heights v. Metro. Housing Dev., 429 U.S. 252 (1977), the case reached the United States Supreme Court on the equal protection ...


The Criminal Law Docket: A Term Of Modest Changes, Alan Raphael Jan 2019

The Criminal Law Docket: A Term Of Modest Changes, Alan Raphael

Faculty Publications & Other Works

No abstract provided.


He New Oral Argument: Justices As Advocates, Matthew Sag, Tonja Jacobi Jan 2019

He New Oral Argument: Justices As Advocates, Matthew Sag, Tonja Jacobi

Faculty Publications & Other Works

This Article conducts a comprehensive empirical inquiry of fifty-five years of Supreme Court oral argument, showing that judicial activity has increased dramatically, in terms of words used, duration of speech, interruptions made, and comments proffered. The Court is asking no more questions of advocates; instead, the justices are providing conclusions and rebutting their colleagues. In addition, the justices direct more of their comments and questions to the side with whom they ultimately disagree. Furthermore, “losing” justices, be it ideological camps that are outnumbered on the Court or dissenters in specific cases, use oral arguments to push back against the dominant ...


Afterlife Of The Death Tax, Samuel D. Brunson Jan 2019

Afterlife Of The Death Tax, Samuel D. Brunson

Faculty Publications & Other Works

More than a century ago, Congress enacted the modern estate tax to help pay for World War I. Unlike previous iterations of the estate tax, though, this one outlived the war and accumulated additional goals beyond merely raising revenue. The estate tax helped ensure the progressivity of the tax system as a whole, and it limited the hereditary ability to accumulate wealth.


This modern estate tax almost instantly met with opposition, though. The opposition has never been sufficient to entirely eliminate the estate tax, but it has severely weakened its ability to raise revenue and to prevent the accumulation of ...


The Thinness Of Catholic Legal Education, A Review Of Robert J. Kaczorowski, Fordham University Law School: A History, John M. Breen, Lee J. Strang Jan 2019

The Thinness Of Catholic Legal Education, A Review Of Robert J. Kaczorowski, Fordham University Law School: A History, John M. Breen, Lee J. Strang

Faculty Publications & Other Works

In his recent book, Fordham University Law School: A History, Robert J. Kaczorowski has authored an informative and scholarly history of Fordham Law School.

In this Review of the book, we first briefly summarize the overall history that Kaczorowski conveys. It is the story of an urban law school founded in 1905 to serve the professional aspirations of the children of New York’s Catholic immigrants — a school that rose from modest beginnings to be among the nation’s finest, but then languished in mediocrity for decades due to the syphoning off of revenue by university administrators. This period of ...


Taking Laughter Seriously At The Supreme Court, Matthew Sag Jan 2019

Taking Laughter Seriously At The Supreme Court, Matthew Sag

Faculty Publications & Other Works

Laughter in Supreme Court oral arguments has been misunderstood, treated as either a lighthearted distraction from the Court's serious work, or interpreted as an equalizing force in an otherwise hierarchical environment. Examining the more than nine thousand instances of laughter witnessed at the Court since 1955, this Article shows that the Justices of the Supreme Court use courtroom humor as a tool of advocacy and a signal of their power and status. As the Justices have taken on a greater advocacy role in the modern era, they have also provoked more laughter. The performative nature of courtroom humor is ...


The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Josph Colquitt, Griffin Sims Edwards Jan 2019

The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Josph Colquitt, Griffin Sims Edwards

Faculty Publications & Other Works

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally ...


Mormon Profit: Brigham Young, Tithing, And The Bureau Of Internal Revenue, Samuel D. Brunson Jan 2019

Mormon Profit: Brigham Young, Tithing, And The Bureau Of Internal Revenue, Samuel D. Brunson

Faculty Publications & Other Works

Since the enactment of the modern federal income tax, churches have been exempt from taxation. But that exemption is neither necessary nor inevitable. In fact, at the end of the 1860s, the Bureau of Internal Revenue decided that tithing received by the Mormon church was taxable under the Civil War income tax. At the time, Mormons distrusted the federal government and the federal government, in turn, distrusted the Mormons. The question of taxation was a small part of a larger legal and existential battle between the Mormons and the government. This Article situates the question of the taxability of tithing ...


Deracialization And Democracy, Steven Ramirez, Neil G. Williams Jan 2019

Deracialization And Democracy, Steven Ramirez, Neil G. Williams

Faculty Publications & Other Works

The United States suffers the conthiued costs of mahitainhig a racial hierarchy. Enhanced diversity and growhig realization of the economic costs of that hierarchy could lead to democratic pressure for reform. Yet, in the U.S., elites on the radical right seek to entrench themselves in power through the constriction of voting power and the strategic use of the racial hierarchy as a political tool. This Article traces the anti-democratic efforts of the radical right to limit the political power of the nation's enhanced diversity, and to utilize archaic governance measures to entrench themselves politically, regardless of the costs ...


The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Griffin Sims Edwards, Josph Colquitt Jan 2019

The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Griffin Sims Edwards, Josph Colquitt

Faculty Publications & Other Works

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally ...


Do Justices Time Their Retirements Politically: An Empirical Analysis Of The Timing And Outcomes Of Supreme Court Retirements In The Modern Era, Christine Chabot Jan 2019

Do Justices Time Their Retirements Politically: An Empirical Analysis Of The Timing And Outcomes Of Supreme Court Retirements In The Modern Era, Christine Chabot

Faculty Publications & Other Works

As the rampant speculation preceding Justice Kennedy's retirement made clear, it is difficult to predict when Justices will retire. Justices often defy the conventional wisdom that a Justice is more likely to retire when the president and Senate share the Justice's ideology. For example, Justice Ginsburg chose to remain on the Court rather than retire during President Obama's terms. Her choice is not unusual. Since 1954, a majority of similarly situated Justices refused to retire. In light of this behavior, it is no surprise that existing studies struggle to explain Justices' retirement decisions and disagree on whether ...


Paying For Gun Violence, Samuel D. Brunson Jan 2019

Paying For Gun Violence, Samuel D. Brunson

Faculty Publications & Other Works

Gun violence is an outsized problem in the United States. Between a culture that allows for relatively unconstrained firearm ownership and a constitutional provision that ensures that ownership will continue to be relatively unchecked, it has proven virtually impossible for politicians to address the problem of gun violence. And yet, gun violence costs the United States tens of billions of dollars or more annually. These tens of billions of dollars are negative externalities — costs that gun owners do not bear themselves, and thus that are imposed on the victims of violence and on taxpayers generally.

What can we do about ...


Lehman 10 Years Later: Lessons Learned?, Steven A. Ramirez Jan 2019

Lehman 10 Years Later: Lessons Learned?, Steven A. Ramirez

Faculty Publications & Other Works

No abstract provided.


Just Another School: The Need To Strengthen Legal Protections For Students Facing Disciplinary Transfers, Miranda Johnson, James Naughton Jan 2019

Just Another School: The Need To Strengthen Legal Protections For Students Facing Disciplinary Transfers, Miranda Johnson, James Naughton

Faculty Publications & Other Works

Over the past decade, there has been increasing national, state, and local attention focused on the negative impacts of school expulsion and suspension. As a result of the well-documented and long-standing research showing the harm to students of exclusionary school discipline practices, states and school districts have begun reforming their policies and practices to limit the use of suspensions and expulsions. Many of these new reforms, however, have not included changes to provisions in state law and district policies allowing for students to be transferred from their neighborhood schools to alternative schools for disciplinary reasons. In this article, we argue ...


Marketplace Of Ideas, Privacy, And The Digital Audience, Alexander Tsesis Jan 2019

Marketplace Of Ideas, Privacy, And The Digital Audience, Alexander Tsesis

Faculty Publications & Other Works

The availability of almost limitless sets of digital information has opened a vast marketplace of ideas. Information service providers like Facebook and Twitter provide users with an array of personal information about products, friends, acquaintances, and strangers. While this data enriches the lives of those who share content on the internet, it comes at the expense of privacy. Social media companies disseminate news, advertisements, and political messages, while also capitalizing on consumers' private shopping, surfing, and traveling habits. Companies like Cambridge Analytica, Amazon, and Apple rely on algorithmic programs to mash up and scrape enormous amounts of online and otherwise ...


Police Disciplinary Appeals, Stephen Rushin Jan 2019

Police Disciplinary Appeals, Stephen Rushin

Faculty Publications & Other Works

This Article empirically evaluates the procedural protections given to police officers facing disciplinary interrogations about alleged misconduct. It demonstrates that state laws and collective bargaining agreements have insulated many police officers from the most successful interrogation techniques.
The first part of this Article builds on previous studies by analyzing a dataset of police union contracts and state laws that govern the working conditions in a substantial cross section of large and midsized American police departments. Many of these police departments provide officers with hours or even days of advanced notice before a disciplinary interrogation. An even larger percentage of these ...


Utc's Duty To Inform And Report At 20 - How Mandatory Is Transparency, Anne-Marie E. Rhodes, Mel M. Justak Jan 2019

Utc's Duty To Inform And Report At 20 - How Mandatory Is Transparency, Anne-Marie E. Rhodes, Mel M. Justak

Faculty Publications & Other Works

In trust administration, there is often a tugging contest between a settlor's or trustee's desire to limit certain information being released to beneficiaries and beneficiaries' desire for total transparency. While the reasons for limiting information are varied, a common one is autonomy, sometimes emanating from the settlor's or trustee's concern that such information may be harmful to the beneficiary or the family dynamic. Nowhere is this tension more apparent than the interplay between Uniform Trust Code (UTC) Sections 105 (Default and Mandatory Rules) and 813 (Duty to Inform and Report).