Digital Commons Network^™

Regionalism And The Federal Reserve Banks, Kathryn Judge, Lev Menand

University of Chicago Law Review

Regionalism is central to our country’s central banking system. Rather than rely on a single organization to set monetary policy and oversee banks, Congress created a multiplicity of bodies including twelve Federal Reserve Banks (FRBs), each designed to operate in a different part of the country. These FRBs are an early and undertheorized example of how the federal government uses regional bodies to formulate and administer federal policy. When they were first authorized in 1913, their regional character assuaged concerns about centralizing power over the economy. Today, the FRBs continue to play a number of important roles, helping to shape …

Financial Stability And Bank Agency Discretion, Christina Parajon Skinner

University of Chicago Law Review

Following the 2008 global financial crisis, new mandates to address “financial stability” and “systemic risk” expanded financial regulators’ discretion considerably. By predicating action upon these terms, the banking agencies took up issues beyond the express terms of their statutory mandates. Given the vagueness of the terms, actions taken on the basis of financial stability could easily evade congressional scrutiny and accompanying accountability. As a result, the pursuit of financial stability goals over the past fifteen years has fueled the perception that a regulatory “expertocracy” governs the field of banking, rather than market forces.

This Essay discusses four areas where financial …

Securities Regulation And Administrative Law In The Roberts Court, David Zaring

University of Chicago Law Review

This Essay compares a judicial revolution that is happening to one that is not. Both the change and the status quo are being managed by the current Supreme Court. That Court has, when it comes to administrative law, shown a capacity to revisit everything. But when it comes to securities regulation, it has resisted change. What is the explanation for this divergent approach between general regulation, which the Court has sought to police, and securities regulation, which the Court has left alone? Some scholars have argued that the Supreme Court is simply uninterested in securities regulation, but the Court now …

How Civil Aiding And Abetting Liability For Terrorist Activities Applies To Social Media Companies—And How It Does Not, Nathaniel Parr

University of Chicago Legal Forum

The 2023 Supreme Court case Twitter v. Taamneh found that defendant social media companies were not liable for aiding and abetting a terrorist attack overseas. The Court alluded to the existence of an alternative set of facts that might alter their analysis or produce a different outcome. This Comment explores those “other contexts” and seeks to identify what factors could produce a successful Justice Against Sponsors of Terrorism Act (JASTA) aiding and abetting claim against a social media company for an act of terrorism overseas. This is difficult, in part, because the framework for aiding and abetting liability provided in …

Taketok: Does A Tiktok Ban Violate The Takings Clause?, Kevin Marien

University of Chicago Legal Forum

No abstract provided.

Seeking The Divine: A Proposed Methodology Of Religion To Resolve Adjudications Over The Nexus Inquiry In Religious Asylum Claims, Saloni S. Jaiswal

University of Chicago Legal Forum

What is religion, and should immigration courts seek to define religion in the context of asylum claims? Under the Immigration and Nationality Act (INA), individuals who have experienced past persecution or fear future persecution because of their religious beliefs can apply for asylum in the United States. Although individuals are afforded these protections under the statutory provisions of the INA, there is a fundamental problem in the way courts have treated religious asylum claims. Rather than holistically considering religion, courts have instead focused on religion’s fragmentary aspects. This fragmentary understanding of religion has contributed to another legal problem among the …

Scrutinizing National Security: A Call For Clear And Convincing Evidence In § 1226(A) Prolonged Detention Cases, Rosie Gruen

University of Chicago Legal Forum

A noncitizen detained under 8 U.S.C. § 1226(a) may be detained indefinitely until her removal order is finalized. Detainees have challenged prolonged detention following a detainee’s bond hearing on Fourteenth Amendment Due Process grounds, leading to a circuit split. Courts generally apply the Mathews test when hearing these challenges, which requires balancing the individual’s liberty at stake against the government’s interest in limiting that liberty. The government’s asserted interests in these cases are frequently grounded in national security arguments, which courts rarely scrutinize. Instead, courts generally give great deference to the way the executive branch characterizes national security concerns, often …

Adjusting Immunity For Unconstitutional Torts, Liam Grah

University of Chicago Legal Forum

Sovereign immunity protects the government from liability arising in suits brought against it by citizens. Though lacking a firm constitutional basis, sovereign immunity has been justified as protecting the public fisc and maintaining the sense of sovereign dignity. The Federal Tort Claims Act (FTCA) broadly waives sovereign immunity for tort claims against the United States. The discretionary function exception maintains immunity for tortious acts committed by employees acting within the valid bounds of their discretion. There is a circuit split about whether the discretionary function exception immunizes tortious conduct that is also unconstitutional. Circuits in the majority side of the …

Water Security In The Wake Of Arizona V. Navajo Nation: How The President’S Emergency Powers Can Provide A Path Forward For The Navajo Nation, Kelly Bridges

University of Chicago Legal Forum

In 2023, the Supreme Court decided Arizona v. Navajo Nation, finding that the United States government does not have an affirmative duty to ensure the Navajo Nation’s water security. The decision offers the Navajo two paths forward for relief: the tribe can either litigate specific water rights claims in the Colorado River Basin or lobby the President and Congress to amend an 1868 treaty, the language of which served as the basis for the holding in Navajo Nation. These paths forward are not without problems. Litigating water rights claims is costly and time-intensive, sometimes taking decades to be decided. As …

“Sportswashing” As A National Security Concern: The Role Of The Committee On Foreign Investment In The United States (Cfius), Luke Bianco

University of Chicago Legal Forum

Throughout United States history, foreign investment has played a key role in stimulating the national economy and supporting domestic businesses. But foreign investment can also imperil national security, such as by enabling an adversary to enhance its own ‘hard power’ capabilities at the expense of our own. The Committee on Foreign Investment in the United States (CFIUS) was created to combat such threats, flagging and preventing deleterious investment when it might pose a national security threat. Today, CFIUS operates pursuant to a flexible statutory scheme. And increasingly, in response to an evolving threat landscape, CFIUS has utilized that broad authority …

Extraction, Retention, And Use: Applying Use-Restrictions To Fourth Amendment Forensic Electronic Device Search Doctrine At The Border, Daniel Vicente Alayo-Matos

University of Chicago Legal Forum

Forensic electronic device searches are a formidable weapon in a border protection agents’ arsenal. Agents download the data from an electronic device and may store it for up to fifteen years, where it can be accessed by thousands Department of Homeland Security (DHS) agents with minimal controls. Annually, agents collect the forensic digital data of over 40,000 international travelers. The border constitutes an exception to typical Fourth Amendment protections against unreasonable searches and seizures, as officials may search individuals crossing the border without a warrant or reasonable suspicion. At least one circuit has held that the Fourth Amendment’s protections pose …

Big Data As A National Security Issue, Paul B. Stephan Iii

University of Chicago Legal Forum

Modern enhancements of data mining have unfolded in a legal near-vacuum. No extant legal system adequately specifies the property rights in the information elements that make up big data. The miners rely on their technical ability to gather and exploit, without waiting to confirm their entitlement to do so. Innovators have tolerated the legal vacuum because, as a practical matter, most potentially valuable information is accessible. Information by its nature implies a sender and a recipient. This sharing relationship necessarily complicates ownership, in particular the power to exclude. At the same time, the capacities that the mining of big data …

Terrorism, Not Treason: The Rise And Fall Of Criminal Charges, Shirin Sinnar

University of Chicago Legal Forum

Two decades into the global war on terror, the United States has a vast legal and institutional architecture for prosecuting "international" terrorism. A sprawling global intelligence network, thousands of informants in U.S. communities, and a highly permissive legal regime feed the prosecution of hundreds of Muslim defendants. Despite this intense state response and the panoply of charges brought, the U. S. government has charged treason in these cases on only one occasion, over fifteen years ago. Given the prominence of treason charges as a response to political violence in earlier eras, commentators have periodically asked why the treason charge has …

Climatizing National Security, Mark Nevitt

University of Chicago Legal Forum

Is climate change a national security issue? Human security? Ecological security? This Article addresses the growing nexus between climate change and various conceptions of security with a particular emphasis on climate change's national security impacts. This Article argues that there is a growing connection between national security and climate change and a corresponding need to address the normative implications of "climatizing national security." This connection can be observed through three lenses: mitigation (reducing greenhouse gas emissions from military and national security sources); adaptation (investing in climate resilient infrastructure in an effort to prepare for climate impacts), and response (addressing climate-exacerbated …

A Transformational Agenda For National Security, Maryam Jamshidi

University of Chicago Legal Forum

Past efforts to "reimagine" national security in legal scholarship have largely avoided systematic engagement with the foundational assumptions and presumptions of the field. Challenging and critiquing those assumptions is, however, necessary to producing scholarly work that reimagines, rather than reproduces, status quo approaches to U.S. national security. This Article presents an agenda for reimagining national security through legal scholarship, which is premised on the view that challenging the national security status quo should be part of those efforts. In doing so, this agenda explores seven premises central to how U.S. national security is currently conceived of, practiced, and implemented. Moving …

Deepfakes In Court: How Judges Can Proactively Manage Alleged Ai-Generated Material In National Security Cases, Abhishek Dalal, Chongyang Gao, Hon. Paul W. Grimm, Maura R. Grossman, Daniel W. Linna Jr., Chiara Pulice, V.S. Subrahmanian, Hon. John Tunheim

University of Chicago Legal Forum

Dall-E. ChatGPT GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI-generated and not real and, second, that other evidence is genuine but alleged to be fabricated. Technologies designed to detect AI-generated content have proven to be unreliable, …

War Powers And The Return Of Major Power Conflict, Scott R. Anderson

University of Chicago Legal Forum

The United States is, by many accounts, facing a renewed risk of major power conflict. This Article considers what the reemergence of this risk may mean for the executive branch's operational understanding of constitutional war powers, specifically as they relate to the use of military force. After outlining the relationship between U.S. strategic concerns and executive branch legal interpretations and reviewing the most recent historical parallel the Truman administration's reconsideration of war powers in the early Cold War it examines three aspects of the executive branch's current understanding for tensions with the strategic demands of major power conflict: the anticipated …

Sweeping Section Three Under The Rug: A Comment On Trump V. Anderson, William Baude, Michael Paulsen

Articles

No abstract provided.

Captured Innovation: Technology Monopoly Response To Transformational Development, Reed Showalter, Laura Edelson

The University of Chicago Business Law Review

This Article examines how monopoly power warps incentives to innovate within the largest tech companies across history. Technology monopolies face competing incentives: to innovate and to maintain the status quo. As the center of their market, monopolists have resources and capacity to generate tremendous disruptive innovation. However, disruptive innovation serves only to threaten to destabilize the profitable market structure that a monopolist sits atop. We find that technology monopolists do not fail to innovate, but that they instead restrict that innovation from being released to the market or release the innovation in a diminished way, yoked to the existing technology …

Dispatches From Amendment Valley, Alison Lacroix

Articles

No abstract provided.

Musical Chairs: Vertical Antitrust Should Prevail Over Congressional Payola Prohibitions To Protect Musicians, Maria Stevenson

The University of Chicago Business Law Review

The music industry is highly concentrated at multiple stages along the production chain between the Big Three music group conglomerates (Universal, Sony, and Warner) and the three largest streaming services (Spotify, Apple, and YouTube). The Big Three and the streaming services have extensive vertical arrangements, from the Big Three having ownership stakes in the largest streaming services to their contracts for the streaming services’ algorithms to prioritize Big Three artists. This resembles historical radio era payola arrangements. This double layer of market concentration and the arrangements between music production and distribution primarily harm musicians, who lack the bargaining power to …

Decolonial Constitutionalism, Richard Albert

Chicago Journal of International Law

The American Declaration of Independence kindled the first successful decolonial movement in the modern world, culminating in the enactment of the United States Constitution. From colony to sovereign state to great power, the United States modeled for subordinated peoples abroad how to win their own battles for sovereignty. Since the end of the Second World War, however, America’s eighteenth-century precedent of revolutionary self-determination is no longer the prevailing path to decolonization. The traditional warmaking toolkit for winning independence—revolution, illegality, and violence—has been replaced by more orderly tactics consonant with the rule of law. Evolution, lawfulness, and continuity are the touchstones …

Premium Justice: An Egalitarian Defense Of Risk-Based Insurance Pricing, Travis Luis Pantin

The University of Chicago Business Law Review

Should insurance companies be allowed to charge different prices based on a policyholder’s likelihood of making claims? This Article challenges the common view that “risk-based pricing” in insurance presents a tradeoff between the twin goals of efficiency and fairness. It argues that the most compelling justification for charging policyholders prices that reflect their individual risk is grounded not in efficiency, but in egalitarian distributive justice. The Article begins by shifting the focus of distributive analysis from the burdens of insurance (i.e., premium costs) to the benefits of insurance, measured as the consumer surplus each participant gains from coverage. It then …

Let’S Nms With Texas: The Implications Of The Texas Stock Exchange For Self-Regulation, Onnig H. Dombalagian

The University of Chicago Business Law Review

The Texas Stock Exchange’s registration as a new national securities exchange is arguably the most formidable challenge to the NYSE and Nasdaq duopoly in recent memory. TXSE has raised expectations not only among those who champion the rise of Texas as a financial center and resist the imposition of progressive norms through securities law, but also among scholars who favor competition as a solution to structural problems in the national market system (NMS) for equity trading. This Article explores the extent to which a new exchange can manage these expectations. It further considers what it means to be a “fully …

Taxing Corporate Payouts, David A. Weisbach

Public Law and Legal Theory Working Papers

Corporate distributions total about $1.5 trillion per year, yet the system for taxing distributions is a mess. It favors buybacks over dividends, and therefore is a possible cause of the growth of buybacks in recent years. It is almost comically complex. And even with its fantastic level of complexity (or perhaps because of the complexity), it provides opportunities for egregious shelters.

Congress has repeatedly attempted reforms to fix these problems, with at best mixed success and often outright failure. Numerous commentators have proposed reforms but all either fail to eliminate the tax differential between buybacks and dividends or require significant …

The Genesis Of Constitutions: A Natural Language Processing Approach, Tejas Ramdas, Patrick Chung-Chia Huang, Nuno Garoupa, Martin T. Wells, Yun-Chien Chang, Tom Ginsburg

Public Law and Legal Theory Working Papers

The diffusion of constitutional ideas and models has been the subject of extensive scholarship. In this paper, we use natural language processing methods to examine the persistence of constitutional ideas and models, focusing on how 16 core and iconic constitutions influence 572 newer constitutions over a long period (1900–2020). Our findings indicate that “old” core constitutions (such as those of the U.S. of 1789, Spain of 1812, France of 1848, and to a lesser extent France of 1791) have maintained significant influence over those 121 years. Austria of 1920 and France of 1946 are the most influential among the 20th …

The Economics Of Healthcare Fraud, Jetson Leder-Luis, Anup Malani

Public Law and Legal Theory Working Papers

Healthcare fraud imposes a sizable cost on U.S. public healthcare budgets and distorts health care provision. We examine the economics of health care fraud and enforcement using theory and data and connect to a growing literature on the topic. We first offer a new economic definition of health care fraud that captures and connects the wide range of activities prosecuted as fraud. We define fraud as any divergence between the care an insurer says a patient qualifies for, the care a provider provides, and the care a provider bills for. Our definition clarifies the economic consequences of different categories of …

The Exactions Illusion: Sheetz's Missing Dissent, Lee Anne Fennell, Timothy M. Mulvaney

Public Law and Legal Theory Working Papers

No abstract provided.

The Society Cases, Adam A. Davidson

Public Law and Legal Theory Working Papers

No abstract provided.

On Disciplining States, Aziz Z. Huq

Public Law and Legal Theory Working Papers

No abstract provided.