Law Commons^™

Lehman 10 Years Later: The Dodd-Frank Rollback, Thomas W. Joo

Loyola University Chicago Law Journal

In response to the financial crisis of 2007–08, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010. The Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018 has repealed or altered many Dodd-Frank’s reforms. This Article analyzes the EGRRCPA’s deregulation of large banks, community banks, mortgage lending standards, and consumer protection in the industry. While Dodd-Frank may have taken only small steps to address the causes of the financial crisis, the EGRRCPA completely ignores those risk factors. Congress and the Administration have justified the counter-reforms on the ground that they have hampered economic growth, but …

Prosecuting Securities Fraud Under Section 17(A)(2), Wendy Gerwick Couture

Loyola University Chicago Law Journal

No abstract provided.

The Stakes Of Smart Contracts, Mark Verstraete

Loyola University Chicago Law Journal

By consensus, smart contracts are a revolution in private ordering: They offer guaranteed enforcement, independent of the whims of territorial governments; efficient formation and interpretation; immunity from external interference; and complete deference to the parties’ wishes. Each of these claims is a myth. While smart contracts present themselves as natural and neutral, they are in fact deeply politicized. The Legal Realists tore down the foundations of smart contracts almost a century ago. Advocates for them have not solved the problems of the past—they have forgotten them.

This Article offers a new critique of the optimism about smart contracts and desirability …

Regulating Prosecutors’ Courtroom Misconduct, Bruce A. Green

Loyola University Chicago Law Journal

Trial prosecutors’ visible misbehavior, such as improper questioning of witnesses and improper jury arguments, may not seem momentous. Sometimes, the improprieties are simply the product of poor training or overenthusiasm. In many cases, they pass unremarked. As the Chicago Eight trial illustrated, trial prosecutors’ improprieties may also be overshadowed by the excesses of other trial participants—the witnesses, the defendants, the defense lawyers, or even the trial judge. And when noticed, prosecutors’ trial misbehavior can ordinarily be remedied, and then restrained, by a capable trial judge. It is little wonder that disciplinary authorities, having bigger fish to fry, are virtually indifferent …

The Role Of Judging 50 Years After The “Chicago Seven” Trial: A Remembrance Of Charles R. Garry, Tucker Carrington

Loyola University Chicago Law Journal

No abstract provided.

Reviving Escobedo, Janet Moore

Loyola University Chicago Law Journal

This Symposium Essay reflects on the fifty years that have passed since the Chicago Eight trial by highlighting a new development in criminal procedure that has drawn little scholarly attention: Judges are reviving the right of stationhouse access to defense counsel along lines previously envisaged in Escobedo v. Illinois. The Essay also offers fresh historical and theoretical perspective on the need for stationhouse counsel. First, the Essay draws on a series of events occurring during and after the Chicago Eight trial to illustrate the interrelationship of violence and silence in criminal legal systems, the distinctive coerciveness of custodial interrogation …

The Old New (Or Is It The New Old) Antitrust: “I’M Not Dead Yet!!”, Diane P. Wood

Loyola University Chicago Law Journal

No abstract provided.

Lessons From The Lead-K Campaign For Language Equality For Deaf And Hard Of Hearing Children, Christina Payne-Tsoupros

Loyola University Chicago Law Journal

This Article asserts that early intervention under the Individuals with Disabilities Education Improvement Act of 2004 (IDEIA) should be amended to recognize the needs of the young child with the disability as primary over the needs of the child’s family. This Article contends that certain requirements of the IDEIA cause early intervention professionals to view and treat the child’s family, rather than the child herself, as the ultimate recipient of support. In many situations, the needs of the family and the needs of the child may wholly align, but that is an assumption that bears questioning. This Article analyzes groundbreaking …

Civic Ignorance And Democratic Accountability, Sheila Kennedy

Loyola University Chicago Law Journal

There is growing recognition that Americans’ diminished civic participation and the erosion of democratic norms are linked to low levels of civic literacy, defined as a basic understanding of the structures and values of American Constitutional government. This Essay considers the evidence for that link and the importance of civic education in a diverse society.

What We Did Last Summer Crisis, Barney Frank

Loyola University Chicago Law Journal

No abstract provided.

Accountability Lost And The Problem(S) Of Asymmetry, Gregory M. Gilchrist

Loyola University Chicago Law Journal

Professor Gilchrist argues that calls for more individual prosecutions in cases of corporate malfeasance are ultimately misguided. In this Essay, Gilchrist discusses the asymmetries of information and power within corporations that make criminal prosecutions of high-level executives particularly difficult and often inappropriate.

Judicial Democracy, Robert C. Hughes

Loyola University Chicago Law Journal

Many scholars believe that it is procedurally undemocratic for the judiciary to have an active role in shaping the law. These scholars believe either that such practices as judicial review and creative statutory interpretation are unjustified, or that they are justified only because they improve the law substantively. This Article argues instead that the judiciary can play an important procedurally democratic role in the development of the law.

Majority rule by legislatures is not the only defining feature of democracy; rather, a government is democratic to the extent to which it provides egalitarian forms of political participation. One such form …

Predictive Analytics, Daryl Lim

Loyola University Chicago Law Journal

“Predictive Analytics” blends the latest research in behavioral economics with artificial intelligence to address one of the most important legal questions at the heart of intellectual property law and antitrust law – how do courts and agencies make judgments about innovation and competition policies? How can they better predict the consequences of intervention or non-intervention?

The premise of this Article is that we should not continue to build doctrine at the IP-antitrust on theoretical neoclassical assumptions alone but also on the reality of markets using all that AI has to offer us. Behavioral economics and AI do not replace traditional …

Pragmatic Formalism, Separation Of Powers, And The Need To Revisit The Nondelegation Doctrine, Martin H. Redish

Loyola University Chicago Law Journal

In a time where the executive branch continues to grow in size and strength, reviving the nondelegation doctrine has become more important than ever. Judicial enforcement of this abandoned rule that Congress cannot delegate its legislative power serves three vital functions. It preserves the separation of powers, prevents tyranny, and promotes democratic accountability. But even if we acknowledge that enforcement of the doctrine is necessary to preserve the American form of government, a more difficult question is how the doctrine ought to be enforced. This Article rejects the formulations of the nondelegation doctrine proposed by both functionalists and formalists and …

Preparing For A Disputed Presidential Election: An Exercise In Election Risk Assessment And Management, Edward B. Foley

Loyola University Chicago Law Journal

This Article considers the possibility that a major dispute over the outcome of the 2020 presidential election could arise, even without foreign interference or some other extraordinary event, but rather just from the ordinary process of counting ballots. Building upon previous research on the “blue shift” phenomenon, whereby adjustments in vote tallies during the canvassing of returns tends to advantage Democratic candidates, it is easy to imagine a dispute arising if this kind of “blue shift” were consequential in the presidential race. Using examples from both Pennsylvania and Arizona, two states susceptible to significant “blue shifts” in previous elections, the …

Movements In The Discretionary Authority Of Federal District Court Judges Over The Last 50 Years, Susan R. Klein

Loyola University Chicago Law Journal

No abstract provided.

Immigration Unilateralism And American Ethnonationalism, Robert L. Tsai

Loyola University Chicago Law Journal

This essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the 1960s. These efforts at demographic control are being pursued unilaterally, however, without sufficient evidence there is a broad and lasting desire on the part of the people …

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

Loyola University Chicago Law Journal

No abstract provided.

Perspectives On Dodd-Frank Act, Risk Management, And The Financial Crisis Of 2008 From A Former Chief Risk Officer, Jeff Cohodes

Loyola University Chicago Law Journal

No abstract provided.

The Federalization Of Corporate Governance—An Evolving Process, Marc I. Steinberg

Loyola University Chicago Law Journal

This Article focuses on the timely subject of the federalization of corporate governance in the United States from both contemporary and historical perspectives. Although the states traditionally have overseen the sphere of corporate governance, federal law today affects the governance of publicly held corporations to a greater extent than ever before in our nation’s history. This Article, drawn from the author’s recently published Oxford University Press book (The Federalization of Corporate Governance), addresses this timely subject from the commencement of the 20th century to the present. Through the decades, the federalization of corporate governance has gone through periods …

Regulating Through Financial Engineering: The Office Of Financial Research And Pull Of Models, James Hackney

Loyola University Chicago Law Journal

No abstract provided.

From Fire Hose To Garden Hose: Section 13(3) Of The Federal Reserve Act, Christian A. Johnson

Loyola University Chicago Law Journal

At the height of the Great Financial Crisis, the Federal Reserve employed a previously unused section of the Federal Reserve Act, Section 13(3), to engage in a level of lending unparalleled in global financial history. Section 13(3) provided a firehose of liquidity for the US financial system, and The Federal Reserve used it to successfully fight the Great Financial Crisis. However, once the worst of the crisis had passed, Congress quickly acted to limit the Federal Reserve’s powers under Section 13(3) by passing Dodd-Frank and introducing the orderly liquidation authority. These limitations have reduced the Federal Reserve’s Section 13(3) power …

Whistling Past The Graveyard: Dodd-Frank Whistleblower Programs Dodge Bullets Fighting Financial Crime, Mary Kreiner Ramirez

Loyola University Chicago Law Journal

The United States’ reaction to the 2008 Financial Crisis, which caused global ramifications, included the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act to address a lack of oversight and accountability in the financial industry. Among its provisions, Dodd-Frank provided incentives for whistleblowers to report misconduct and protections for those who do. Despite its success, Dodd-Frank’s whistleblower programs face internal and external challenges that threaten their success. This Article discusses the current climate surrounding corporate accountability and suggests additional protections for whistleblowers and whistleblower actions: allowing private lawsuits against the government under Dodd-Frank’s whistleblower provisions, similar to …

The Litigation Rollercoaster Of Bipa: A Comment On The Protection Of Individuals From Violations Of Biometric Information Privacy, Anna L. Metzger

Loyola University Chicago Law Journal

As technology progresses, businesses are enacting new programs that utilize emerging technology. Biometric data is an example of a tech capability that is becoming more popular for businesses. Companies can use an individual’s unique body data to monitor their employees, collect data, and enhance security and convenience for their customers. While this technology is impressive, it comes with privacy and security concerns. In 2008, Illinois enacted the Biometric Information Privacy Act (BIPA) to address these concerns. BIPA aims to protect individuals by setting strict guidelines for data collection by private entities. Individuals can file suit for violations of this statute, …

The Value Of Deviance: Understanding Contextual Privacy, Timothy Casey

Loyola University Chicago Law Journal

The value of deviance lies in highlighting the infirmity in our present concept of privacy. Deviance helps explain privacy in two ways. First, deviance helps define what might be protected by “privacy concerns.” Second, a sociological definition of deviance provides a helpful model to rebut the popular “Nothing to Hide” argument and to understand a non-binary concept of contextual privacy. This article uses a sociological definition of deviance to explain a contextual idea of privacy, where the critical inquiry is not a dualistic response to whether sensitive information deserves protection as private or not, but rather a contextual analysis of …

Up Against The Wall: Congressional Retention Of The Spending Power In Times Of “Emergency”, Linda Sheryl Greene

Loyola University Chicago Law Journal

President Trump’s border wall has evolved from an ambitious campaign promise into a real opportunity to explore presidential versus Congressional authority to determine how the president spends Congressionally appropriated funds. The president’s arguments that he has the power to build the wall under either the National Emergencies Act or the funding provisions of 10 U.S.C. § 9705 or 10 U.S.C. § 284 lack merit—the cited non-emergency-tied statutes do not provide funding for the wall. The former authorizes the utilization of Treasury Forfeiture funds tied to specific law enforcement activities but excludes the ambitious and broad construction project the president proposed; …

War Is More Than A Political Question: Reestablishing Original Constitutional Norms, John C. Dehn

Loyola University Chicago Law Journal

No abstract provided.

South Dakota V. Wayfair: Erasing A Dull Bright-Line, Aidan V. Nuttall

Loyola University Chicago Law Journal

For over half a century, states were unjustly deprived access to a significant portion of their tax bases due to Supreme Court precedent that was dated since its very inception. South Dakota v. Wayfair, Inc. righted this wrong by granting states the power to lay taxes on out-of-state businesses that actively solicit sales from in-state customers. For decades the judicially-created physical presence rule prevented states from collecting sales taxes on these transactions, moving tens of billions of tax dollars out of reach. The rule lead to exploitation by businesses at states’ expense.

Aside from its detrimental effect, this rule has …

Democratic Conditions, Barry Sullivan

Loyola University Chicago Law Journal

No abstract provided.

A Small Slice Of The Chicago Eight Trial, Ellen S. Podgor

Loyola University Chicago Law Journal

The Chicago Eight trial was not the typical criminal trial, in part because it occurred at a time of society’s polarization, student demonstrations, and the rise of the House Un-American Activities Committee. Charges were levied against eight defendants, who were individuals that represented leaders in a variety of movements and groups during this time. This Essay examines the opening stages of this trial from the lens of a then relatively new criminal defense attorney, Gerald Lefcourt. It looks at his experiences before Judge Julius Hoffman and highlights how strong, steadfast criminal defense attorneys can make a difference in protecting key …