Law Commons^™

Jurisdictional Realism: Where Modern Theories Of Choice Of Law Went Wrong, And What Can Be Done To Fix Them, Lea Brilmayer, Charles Seidell

University of Chicago Law Review

An American Law Institute project on the conflict of laws is preparing to bring forth a new Restatement on the subject. The issues most hotly debated behind the scenes are those involving choice of law, a somewhat technical legal specialty with a well-earned reputation for impenetrability. Despite the theoretical difficulty of the topic, the drafting of the new Restatement (Third) has been the cause of intense interest on the part of the bench and bar. Selection of the applicable law—while deeply influenced by theoretical considerations—has immense practical consequences because of the recurrence of the issue in contemporary litigation.

The leading …

Legal Fictions And Foreign Frictions: An Argument For A Functional Interpretation Of Jesner V Arab Bank For Transnational Corporations

University of Chicago Law Review

The Alien Tort Statute (ATS) allows noncitizens to bring civil actions in US federal courts for a select class of particularly egregious violations of international law. Human rights activists have pushed the boundaries of the ATS in recent decades, and the Supreme Court has responded by establishing several limiting rules for ATS jurisdiction. Most recently, in April 2018, the Supreme Court ruled in Jesner v Arab Bank that foreign corporations cannot be defendants in ATS suits. Following Jesner, plaintiffs in ongoing ATS suits have dropped key corporate defendants from their complaints. This Comment argues that courts and litigants should pause …

Federal Expansion And The Decay Of State Courts, Diego Zambrano

University of Chicago Law Review

At the turn of the twenty-first century, the country entered its third era of judicial federalism. That era is defined by federal judicial expansion into areas of statecourt power and federal monopolization of large and complex litigation. These changes, in turn, have coincided with the decay of state courts. Whether measured by funding, delays, or docket loads, state courts—the true workhorses of the American legal system—have declined relative to federal courts. Indeed, over the last decade, state chief justices have complained that state courts are “financially bankrupt,” “at ‘the tipping point of dysfunction,’” and “on the edge of an abyss.” …

Front Matter / Editorial Information

University of Chicago Law Review

No abstract provided.

Exculpatory Evidence Pre-Plea Without Extending Brady, Brian Sanders

University of Chicago Law Review

Innocent defendants sometimes plead guilty. This is a problem. Some suggest fixing this problem with a constitutional requirement that prosecutors disclose exculpatory evidence before a defendant pleads guilty. A circuit split has thus developed concerning whether Brady, which requires disclosure of exculpatory evidence, extends to the pre-plea context. The Supreme Court’s jurisprudence, however, likely bars a constitutional requirement for pre-plea disclosure of exculpatory evidence. Faced with this exigency, this Comment argues that contract law should form the legal basis for pre-plea disclosure. Specifically, the contract doctrine of constructive fraud provides a suitable remedy. While big boy clauses, which defeat constructive …

Clarifying Vagueness: Rethinking The Supreme Court’S Vagueness Doctrine, Emily M. Snoddon

University of Chicago Law Review

For over a hundred years, the Supreme Court has struggled to articulate a coherent test for analyzing constitutional challenges based on vagueness. The current formulation of the vagueness test is rooted in due process principles and calls for invalidation of laws when they either (1) fail to “give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden” by the law, or (2) encourage “arbitrary arrests and convictions.” Certain aspects of this test suggest that the separation of powers is relevant to the analysis. Nevertheless, it is currently unclear what role this constitutional protection plays.

Recent Supreme …

Front Matter / Editorial Information

University of Chicago Law Review

No abstract provided.

Reviewing Presidential Orders, Lisa Manheim, Kathryn A. Watts

University of Chicago Law Review

Beginning with President Ronald Reagan, presidents of both political parties increasingly have relied on executive orders and other unilateral written directives as a means of exerting significant control over agencies’ policymaking activities. Nevertheless, no coherent or well-theorized legal framework exists to guide courts as they review presidential orders. In contrast, a robust body of administrative law principles—rooted largely in the Administrative Procedure Act (APA)—exists to guide courts in their review of agency action, including agency action that is heavily influenced by the president. Until recently, this gap in the legal framework did not prove particularly problematic because litigants generally waited …

“Unfair Or Unconscionable”: A New Approach To Time-Barred Debt Collection Under The Fdcpa, Jon D. Fish

University of Chicago Law Review

Since the 1990s, the trade in second-hand debt has exploded. Debt collectors now relentlessly pursue decades-old debts, purchased for pennies on the dollar from primary creditors. To avoid the bar that statutes of limitations place on judicial enforcement of these debts, third-party debt collectors seek “acknowledgment” from unwitting consumers, which resets the limitations periods under state law. Under the Fair Debt Collection Practices Act (FDCPA), federal courts have struggled to deal with these attempts at resetting the statutes of limitations—a practice that often feels inherently unfair. So far, courts have focused on whether collection attempts have violated the FDCPA’s ban …

Liability For Data Scraping Prohibitions Under The Refusal To Deal Doctrine: An Incremental Step Toward More Robust Sherman Act Enforcement, Ioannis Drivas

University of Chicago Law Review

The digital economy has become increasingly consolidated in recent years as a handful of companies (namely Google, Facebook, Microsoft, and Amazon) have come to dominate every corner of the internet. Several of these companies have attained such size and influence that labelling them monopolists seems unavoidable. These companies have reinvigorated the debate regarding how antitrust law should treat monopolists. Many scholars, typically associated with the Chicago School of antitrust, believe that courts should hesitate before taking action against internet monopolists because judicial intervention may discourage investment in the digital economy without benefiting consumers. Critics of the Chicago School meanwhile argue …

Settlement Malpractice, Michael Moffitt

University of Chicago Law Review

Lawyers routinely settle lawsuits or advise their clients about settlement. One might expect, therefore, that clients routinely complain about some aspect of their lawyers’ settlement services. Ten years of data from eleven jurisdictions paint a vivid, different picture: although the vast majority of civil lawsuits are resolved through negotiated settlements and although complaints against lawyers are common, fewer than 1 percent of reported legal malpractice cases and only about 1.5 percent of bar complaints relate in any way to lawyers’ settlement-related conduct or advice. Even in those instances when clients do raise such complaints, clients rarely prevail. In short, even …

High-Value, Low-Value, And No-Value Guns: Applying Free Speech Law To The Second Amendment, Joseph E. Sitzmann

University of Chicago Law Review

Like the First, Fourth, Fifth, and Fourteenth Amendments, the Second Amendment stirs fervent debate among legal academics and the American public. Unlike these Amendments, however, the Second Amendment has received very little treatment from the Supreme Court until recently. In District of Columbia v Heller, the Court established that the “right of the people to keep and bear Arms” includes the right to bear arms for self-defense. Without further guidance from the Court, lower courts have struggled to consistently and uniformly determine when the Constitution permits gun regulations in spite of the Second Amendment.

To provide clarity, this Comment offers …

In Defense Of The Hare: Primary Jurisdiction Doctrine And Scientific Uncertainty In State-Court Opioid Litigation, Anna Stapleton

University of Chicago Law Review

When state and local governments sue prescription opioid manufacturers in state courts, the defendants often move for courts to stay or dismiss proceedings under the doctrine of primary jurisdiction. This common-law doctrine instructs courts to issue stays when waiting for a federal agency to address specific issues within the case would promote uniformity or allow the court to benefit from the agency’s expertise. In the prescription opioid cases, defendant manufacturers have argued that courts should stay proceedings until the completion of a new set of studies ordered by the Food and Drug Administration (FDA). State courts have divided on whether …

Contents / Editorial Information

University of Chicago Law Review

No abstract provided.

Clarity Doctrines, Richard Re

University of Chicago Law Review

Clarity doctrines are a pervasive feature of legal practice. But there is a fundamental lack of clarity regarding the meaning of legal clarity itself, as critics have pointed out. This Article explores the nature of legal clarity as well as its proper form. In short, the meaning of legal clarity in any given doctrinal context should turn on the purposes of the relevant doctrine. And the reasons for caring about clarity generally have to do with either (i) the deciding court’s certainty about the right answer or (ii) the predictability that other interpreters (apart from the deciding court) would converge …

Tangled Arms: Modernizing And Unifying The Arm-Of-The-State Doctrine, Kelsey Joyce Dayton

University of Chicago Law Review

The arm-of-the-state doctrine, which entitles certain governmental entities to the states’ sovereign immunity, is an embodiment of American federalism. In theory, this doctrine ensures that federal courts appreciate the concerns for state sovereignty and solvency that motivated the passage of the Eleventh Amendment. However, a combination of factors—the Supreme Court’s sparse guidance, the growth and diffusion of power across local, state, and federal governments, and the availability of other immunity doctrines—has rendered the arm-of-the-state doctrine an incomprehensible anachronism. Most courts determine whether an entity defendant receives arm-of-the-state immunity by examining the entity’s legal status and structure. But many courts applying …

Whether 8 Usc § 1252(G) Precludes The Exercise Of Federal Jurisdiction Over Claims Brought By Wrongfully Removed Noncitizens, Matthew Miyamoto

University of Chicago Law Review

Section 1252(g) of the Immigration and Nationality Act provides that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.” The Eighth and Ninth Circuits disagree about whether this provision precludes judicial review over claims brought by noncitizens who are wrongfully removed from the United States. This Comment advances four arguments for why § 1252(g) should be interpreted narrowly to allow federal jurisdiction over such claims by looking to Supreme …

Standing For Statues, But Not For Statutes? An Argument For Purely Stigmatic Harm Standing Under The Establishment Clause, Merav Bennett

University of Chicago Law Review

In the wake of Obergefell v Hodges, a number of state legislatures passed laws exempting individuals with religious objections to same-sex marriage from state antidiscrimination laws. By granting special privileges to religious adherents, these laws may violate the Establishment Clause. This Comment concerns the threshold issue of which plaintiffs have standing to bring such an Establishment Clause challenge. Specifically, can the emotional harm caused by a law’s stigmatizing message—for example, the message that individuals in same-sex relationships are lessvalued members of the community—constitute a judicially cognizable “injury in fact” in the Establishment Clause context? This question has split the lower …

Remedies For Robots, Mark A. Lemley, Bryan Casey

University of Chicago Law Review

What happens when artificially intelligent robots misbehave? The question is not just hypothetical. As robotics and artificial intelligence systems increasingly integrate into our society, they will do bad things. We seek to explore what remedies the law can and should provide once a robot has caused harm.

Remedies are sometimes designed to make plaintiffs whole by restoring them to the condition they would have been in “but for” the wrong. But they can also contain elements of moral judgment, punishment, and deterrence. In other instances, the law may order defendants to do (or stop doing) something unlawful or harmful.

Each …

Contents / Editorial Information

University of Chicago Law Review

No abstract provided.

Criminal Law In A Civil Guise: The Evolution Of Family Courts And Support Laws, Elizabeth D. Katz

University of Chicago Law Review

Each year family courts incarcerate thousands of Americans for nonpayment of child support. The vast majority of these parents are not accorded criminal procedure protections because courts have characterized routine child support enforcement as a “civil” matter. The United States Supreme Court has endorsed this approach. In Turner v Rogers, the Court began from a premise it regarded as both legally significant and unquestionably true: that child support proceedings are civil On that basis, the Court determined that an indigent father facing a year in jail was not entitled to a public defender. The Court’s analysis reflects a broader and …

Passive Embezzlement Schemes As Continuing Offenses, William Admussen

University of Chicago Law Review

For most offenses, the statute of limitations begins to run when the elements of an offense are satisfied. For continuing offenses, however, the statute of limitations begins to run when the crime stops, extending the amount of time the government has to bring charges. This Comment considers the circuit split over whether passive embezzlement schemes are continuing offenses. Typically charged under the federal embezzlement statute, 18 USC § 641, passive embezzlement schemes continue automatically once set in motion. They are distinguished from active embezzlement schemes in that active schemes require some affirmative act by the embezzler for the scheme to …

Categorically Redeeming Graham V Florida And Miller V Alabama: Why The Eighth Amendment Guarantees All Juvenile Defendants A Constitutional Right To A Parole Hearing, Parag Dharmavarapu

University of Chicago Law Review

The Supreme Court has held that life without parole is an unconstitutional sentence for nearly all juvenile defendants—except for a select few that the criminal justice system deems irredeemable. Though this represents a positive development in the Court’s juvenile sentencing jurisprudence, it has left the case law deeply unsettled. For instance, the Court has held that redeemable juveniles are all entitled to a “meaningful opportunity to obtain release,” but it has failed to explicitly define what that constitutional mandate means in practice. On top of that, the Court has concluded that not even expert psychologists can determine at sentencing whether …

Entire Issue

University of Chicago Law Review

No abstract provided.

Testing For Trademark Dilution In Court And The Lab, Barton Beebe, Roy Germano, Christopher J. Sprigman, Joel H. Steckel

University of Chicago Law Review

Federal courts are currently split, even within particular districts, on the basic question of what a plaintiff must show to establish that a defendant’s conduct constitutes trademark dilution by blurring. Federal trademark law defines “dilution by blurring” as “association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark.” In construing this statutory language, a majority of courts have held that to establish blurring, a plaintiff need only show that consumers associate the defendant’s mark with the plaintiff’s famous mark. These courts appear to assume that to the …

Inversion Aversion, Lee Anne Fennell, Richard H. Mcadams

University of Chicago Law Review

No abstract provided.

The Failure Of Mixed-Motives Jurisprudence, Andrew Verstein

University of Chicago Law Review

Because legal determinations often turn on motive, and motives are often complex, courts must decide what to do about mixed motives. For example, a boss might fire someone both for lawful reasons relating to job performance and also because of illegal prejudice. Increasingly, courts evaluate such cases under a “ButFor standard,” which finds for the plaintiff only if the defendant would have acted differently but for the bad motive. Put another way, the defendant loses unless the bad motive made some kind of causal difference in outcomes. While this approach is intuitive, I argue that the But-For standard is problematic. …

Enacted Legislative Findings And Purposes, Jarrod Shobe

University of Chicago Law Review

Statutory interpretation scholarship generally imagines a sharp divide between statutory text and legislative history. This Article shows that scholars have failed to consider the implications of a hybrid type of text that is enacted by Congress and signed by the president, but which looks like legislative history. This text commonly appears at the beginning of a bill under headings such as “Findings” and “Purposes.” This enacted text often provides a detailed rationale for legislation and sets out Congress’s intent and purposes. Notably, it is drafted in plain language by political congressional staff rather than technical drafters, so it may be …

Contents / Editorial

University of Chicago Law Review

No abstract provided.

Privatizing Personalized Law, Andrew Verstein

University of Chicago Law Review

In recent years, scholars have devoted increasing attention to the prospect of personalized law. The bulk of the literature has so far concerned whether to personalize any law and, if so, what substantive changes should be instantiated through personalization. Comparatively little discussion has gone to the authorship of personalized laws. Who will make personalized laws? Who will enforce them? In this Essay, I propose we consider the who in the personalization debate. Specifically, I identify the policy considerations that bear on the optimal maker or enforcer of personalized law. To put it another way, my Essay begins where most of …