Digital Commons Network^™

When The Taker Goes Broke: Takings Claims In Municipal Bankruptcy, Joshua Kayne Kaufman

University of Chicago Law Review

When a municipality takes property, the former owners can allege a violation of the Takings Clause and try to recover just compensation. But what should happen when the municipality goes broke and enters municipal bankruptcy? Can the municipal Bankruptcy Code empower judges to release municipalities from their obligation to pay just compensation through a discharge? Or does the Takings Clause provide special constitutional protection to claims for just compensation from a municipality that immunizes the claims from discharge? This issue has played out in municipal bankruptcies in Detroit, Michigan; Stockton, California; and Puerto Rico—and courts are deeply divided on the …

Solving The Housing Puzzle, George J. Vojta

University of Chicago Law Review

This Comment analyzes the entrance of institutional investors into the single- family rental market after the Great Recession of 2008. The collapse of the housing market during the Great Recession fundamentally changed the ownership structure of U.S. single-family homes in two distinct ways. First, the number of families renting single-family homes soared. And second, institutional investors entered the single-family home market, buying many homes and converting them into rental properties. This postrecession reality has introduced a housing puzzle: the pricing trends of single-family rentals in the decade after the Great Recession suggest that institutional investors have captured monopolistic power over …

Intervention And Universal Remedies, Monica Haymond

University of Chicago Law Review

Civil procedure plays a pivotal role in shaping litigation, including some of the most divisive and politically consequential cases heard in federal court—those seeking nationwide injunctions to block federal policies. But we know very little about how such cases are actually litigated. It is often assumed that procedural rules, crafted to apply to many types of cases, work equally well in the nationwide-injunction context. This Article challenges that view. In fact, procedural rules are having a critical substantive effect on the outcomes of these cases. And they are undermining the very values they were designed to serve.

This Article examines …

Guns And The Right To Exclude: Saving Gunsat-Work Laws From Cedar Point’S Per Se Takings Rule, Tom Malaga Kadie

University of Chicago Law Review

The Supreme Court’s decision in Cedar Point Nursery v. Hassid has left considerable uncertainty in the realm of takings law. In Cedar Point, the Court announced a new rule that government-authorized physical occupations of property, even temporary ones, constitute per se takings. But the Cedar Point decision left significant questions unresolved regarding the scope of its per se takings rule and its various exceptions.

To resolve these questions, this Comment looks to the example of guns-at-work laws. Enacted by about half of the states, guns-at-work laws protect the right of a business’s employees, customers, and invitees to store firearms in …

Judicial Dark Matter, Nina Varsava, Michael A. Livermore, Keith Carlson Carlson, Daniel N. Rockmore

University of Chicago Law Review

Judicial reform efforts aimed at rectifying historical gender and racial inequalities understandably focus on increasing the number of women and people of color on the bench. While this is an important program, this Article sheds light on another aspect of the representation problem, which will not necessarily be resolved through greater diversity in judicial appointments. This problem has to do with the understudied and often opaque practices of judicial administration. Through a large-scale empirical study of federal appellate decisions, we examine the distribution of judges along the lines of gender and race across decision panels and find systematic gender and …

Network Harms, Andy Z. Wang

University of Chicago Law Review

When it comes to data, the whole is greater than the sum of its parts. There may be millions of people with the same birthday. But how many also have a dog, drive a red car, and have two kids? The more that data is aggregated, the more identifying, and thus sensitive, it becomes. In recognition of this principle, the law has developed safe harbors for firms that take steps to prevent aggregation of the data they sell. A firm might, for instance, anonymize its data by removing identifying information. But as the science academy has shown, a wide array …

Law School Announcements 2024-2025, Law School Announcements Editors

Announcements

• Officers and Faculty
• The Law School - History
• Programs of Instruction
• Curriculum
• Student Activities and Organizations
• Funds and Endowments

Law School Record, Vol. 71, No. 1 (Fall 2024), Law School Record Editors

Law School Record

• Message from the Dean
• The Law School celebrates its annual Hooding and Diploma Ceremony
• Coase-Sandor Institute celebrates a milestone
• Judith Wright Fellowship marks an anniversary
• Jenner & Block Supreme and Appellate Clinic Scores a victory
• Exoneration Project secures three key wins
• AI and the Law
• In the Sports Arena
• Theory in Practice
• Professor Alison LaCroix discusses her new book
• The Law School welcomes three new faculty members
• Professor Farah Peterson wins a prestigious award
• Students discuss their summer experiences
• Development News
• Reunion highlights
• In Memoriam
• Giving Back: Vanessa Countryman,'05

Administrative Subordination, Bijal Shah

University of Chicago Law Review

Much of the scholarship on immigration enforcement and environmental justice assumes that agencies negatively impact vulnerable and marginalized people as a result of individualized bias or arbitrariness in administration. This Article argues that, beyond idiosyncrasies or flaws in administrators themselves, the poor impact of administration on minorities emanates from institutional systems. In doing so, this Article introduces a framework of institutional oppression into the study of administration that illustrates how agencies subordinate minority interests to the ends of administrative competence and self-preservation.

A healthy federal bureaucracy is sustained by administrative efforts to reduce institutional burdens, improve efficiency, conserve resources, and …

Against Associational Standing, Michael T. Morley, F. Andrew Hessick

University of Chicago Law Review

Associational standing is a widely used doctrine that has never been subject to serious academic scrutiny. It allows an organization that has not suffered any injury in fact to sue in its own name to assert its members’ causes of action. Though the doctrine is often associated with public interest groups, major corporations have usurped it to be able to sue, through trade groups or entities created solely to pursue a particular lawsuit, without becoming party litigants to the case.

The Supreme Court first recognized associational standing as an offshoot of third-party standing to allow an organization that had suffered …

Vacancy Taxes: A Possible Taking?, Christine Dong

University of Chicago Law Review

Vacancy taxes are an increasingly popular solution to the paradoxical problem of high housing demand coupled with high vacancy. Cities across the country facing housing shortages have either implemented or are considering adopting vacancy taxes to encourage property owners to rent or sell their property. Soon after San Francisco adopted a vacancy tax with one of the broadest definitions of vacancy, property owners lobbed a constitutional challenge under the Takings Clause, taking advantage of a moment of doctrinal instability.

This Comment seeks to make sense of how this and similar potential challenges would fare, given an expanding, property-protective takings doctrine, …

Tiktok The Tortfeasor: A Framework To Discuss Social-Platform Externalities And Arguments Favoring Ex Ante Mitigations, Karan Lala

University of Chicago Law Review

In recent years, social media platforms have grown increasingly complex in how they invite, intersect with, and influence third-party speech. This complexity lies in stark contrast to the simplicity of the statute that governs those very platforms: Section 230 of the Communications Decency Act. Although Section 230 has cabined liability for platforms in the past, some have advocated for activist judges to deploy tools available to them to hold platforms accountable and mitigate harm to users as research documenting the negative impact of social products on user well-being has matured

This Comment reviews Section 230 jurisprudence to develop a novel …

Twin Inadequacies In The Ftc’S Recent Biometrics Policy Statement, John Burroughs

The University of Chicago Business Law Review

In the spring of 2023, the FTC released a policy statement addressing biometric information and technologies using or purporting to use such information. The policy statement contains a remarkably broad definition of “biometric information” and describes a variety of business practices that could violate § 5 of the Federal Trade Commission Act by being either “deceptive” or “unfair.” In spite of the policy statement’s comprehensiveness, however, it has two substantial inadequacies. First, the policy statement’s definition of “biometric information” is overly broad and will introduce unnecessary legal uncertainty for businesses by encompassing items not commonly thought of as “biometric information …

State Telemedicine Abortion Restrictions And The Dormant Commerce Clause, Laura Hu

University of Chicago Law Review

Telemedicine abortions allow women to meet virtually with abortion providers and receive abortion medication through the mail, all without ever leaving their homes. This development could be instrumental in facilitating access to abortion care for women living in abortion-restrictive states after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. However, many abortion-restrictive states have moved to restrict remote abortion care and impose legal liability on out-of-state telemedicine abortion providers.

This Comment outlines a novel argument that these state restrictions on telemedicine abortions violate the Dormant Commerce Clause, which prohibits state regulation that discriminates against or unduly burdens …

Mutually Assured Democracy: Cooperating Under The Compact Clause To Combat Partisan Gerrymandering, Samuel P. Leroy

University of Chicago Law Review

No abstract provided.

Political Freedom And Economic Constraints: The Political Setting For The Problem Of Twelve, John C. Coates

The University of Chicago Business Law Review

This essay outlines foundations of the current moment facing corporations and politics, which I have characterized as a new “problem of twelve”—that is, the concentration of power in the hands of a small number of index and private equity fund sponsors.1 Through the middle of the twentieth century, public companies dominated the U.S. economy and government. They owed their dominance to having been socially legitimated coming out of the Great Depression, a legitimation built on their affirmative war efforts and on the negative constraints of securities law, progressive taxation, labor unions, and operational regulation. From 1970 on, however, they changed …

The Power To Shape The “Political”, Amanda Shanor

The University of Chicago Business Law Review

The role of corporations in American life has become the focus of intense public and scholarly debate. How do corporations influence political outcomes? What norms or laws should structure corporate political participation? And who should decide what political interventions corporations make? These are vitally important questions that bear on how to deal with the pressing challenges of social media, money in politics, polarization, autocratic threats, and the influence of consolidated capital on governmental and democratic decision-making.

Most conversations about the role of corporations in politics, however, assume a definition of “political.” This key term is commonly taken for granted or …

Kalven For Corporations: Should For-Profit Corporations Adopt Public Statement Policies?, Anthony J. Casey, Tom Ginsburg

The University of Chicago Business Law Review

In the last few years, corporations have been called upon to take public positions on myriad issues unconnected to core business concerns. Demands for public statements may arise from various stakeholders, as well as from the general public and the media. Sometimes such statements are uncontroversial, but other times, firms find themselves in a no-win position, in which both silence and voice will offend some core constituency. Crafting meaningful public-facing statements becomes a major challenge.

In this article, we ask whether these corporations should adopt some form of express upfront policy on when they will and when they will not …

How Did Corporations Get Stuck In Politics And Can They Escape?, Jill E. Fisch, Jeff Schwartz

The University of Chicago Business Law Review

Corporations have always been involved in politics, but today is different. They are taking public positions, either directly or indirectly, on contested political and social issues unrelated to their businesses. In contrast to the conventional wisdom, we argue that this practice, which we term “corporate political posturing,” is problematic. First, it is of dubious value to the corporation and its stakeholders. Corporate political posturing often backfires, it does so unpredictably and potentially catastrophically, and it is particularly susceptible to agency costs. Second, it is harmful to society. The fundamental problem is that corporations are institutionally ill-equipped to take center stage …

Corporate Participation In Social Debates, Anna Toniolo

The University of Chicago Business Law Review

Corporations are increasingly wading into social and political matters that are unrelated to their business operations. This Paper empirically investigates corporate participation in social debates through the corporate response to Dobbs, the Supreme Court’s decision overturning the constitutional right to abortion.

First, the Paper identifies and examines the public companies that reacted to the reversal of Roe v. Wade (“Reacting Companies”). Only a few corporations reacted. On the one side, they tend to be large, with sizeable workforces, concentrated in consumer-facing and tech industries, and headquartered in states with no restrictions on abortion rights. On the other side, they tend …

The Surprising Survival—So Far—Of The Corporate Contribution Ban, Richard Briffault

The University of Chicago Business Law Review

No abstract provided.

Lawbreaking As Lawmaking, Michael S. Kang

The University of Chicago Business Law Review

No abstract provided.

Nonprofit Corporations & Politics: The Entity/Coordination Tension, Lloyd Hitoshi Mayer

The University of Chicago Business Law Review

Federal tax law treats separate nonprofit corporations as distinct legal entities for almost all purposes, in common with most other areas of law. With respect to political activity, this means that one nonprofit corporation’s lobbying or election-related actions are generally not attributed to another nonprofit corporation. This is the case even if the two entities have overlapping or even identical boards of directors. It is also the case even if the two entities collaborate regarding their respective activities and share employees, facilities, outside vendors, and other resources, as long as the entities reasonably allocate the costs for those shared resources. …

Free Markets And Free Speech: Understanding The Limits Of The Noerr-Pennington Doctrine, Mitsoo K. Patel

The University of Chicago Business Law Review

Based in First Amendment principles, the Noerr-Pennington doctrine immunizes parties petitioning the government from antitrust liability, even when such petitioning may be considered anticompetitive. Within the doctrine exists a narrower “sham exception” which eliminates Noerr-Pennington antitrust immunity when petitions are merely shams meant to interfere with a competitor’s business. The Supreme Court has examined the sham exception in two cases which have produced differing standards for when and how to apply it. As a result, circuit courts have had to grapple with this uncertainty and a circuit split has developed as they have disagreed on the proper approach to applying …

Balancing Interests In The Separation Of Powers, Shalev Gad Roisman

University of Chicago Law Review

There are two conventional methods for resolving separation of powers disputes: formalism and functionalism. Although both approaches have been around for decades, neither has proven capable of resolving the difficult separation of powers disputes that actually arise today. Such disputes—including over statutory removal restrictions, recognition, conduct of diplomacy, and executive privilege—do not involve instances where one branch is trying to exercise the other’s exclusive power, as formalism posits. Nor is it clear how one could measure, or evaluate the effect of any one dispute on, the general balance of powers between the branches that functionalism seeks to maintain. Instead, difficult …

Weak-Willed Legislatures And Statutory Interpretation, Helen Zhao

University of Chicago Law Review

Not all statutes are created equal. Contributing to the literature on “super statutes,” I suggest that an analogy to the philosophical concept of weakness of will can illuminate circumstances under which some statutes ought to stand above others. Analogizing to philosopher Richard Holton’s account of weak will, I develop an account in which some statutes express long-term commitments, are intended to foreclose future deliberation, and enact reasons into the law. Such statutes have the status of what Holton calls “resolutions.” Like an individual resolving to stop eating meat, yet finding themself unable to resist, Congress can be weak willed when …

Subsidiarity And The Best Interests Of The Child, Lindsay Saligman

Chicago Journal of International Law

In the context of adoption, subsidiarity is the principle that children should remain with their birth families whenever possible, and whenever not possible, that in-country placements should take precedence over intercountry adoption. This Comment looks at the specific meaning of subsidiarity in the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. It highlights that the convention does not require intercountry adoption be a last resort, but rather that “due consideration” be given to placements “within the State of origin.” Then, the Comment looks at the domestic law of India, Colombia, and South Korea, three of …

Navigating State Interventions: The Pivotal Role Of Ptas In Modern Trade Conflicts, Andrew D. Mitchell

Chicago Journal of International Law

In international trade, State interventions often challenge the efficacy of traditional antidumping and countervailing measures under the World Trade Organization (WTO) framework. This article examines the limitations of the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing Measures (SCM Agreement) in addressing State interventions, such as export taxes, export bans on raw materials, and non-commercial activities by State-owned enterprises. These interventions pose significant legal and economic challenges in global trade. The article advocates for the potential of preferential trade agreements (PTAs) as practical tools to address these challenges, surpassing traditional legal pathways under the Anti-Dumping Agreement. An analysis of …

Theorizing Constitutional Change In East Asia, John Gillespie

Chicago Journal of International Law

How do constitutions change in response to social problems? This Article explores why constitutions in three East Asian countries, namely Japan, Indonesia, and China, changed rapidly during times of social crisis and then incrementally evolved during periods of stability. It looks for explanations in historical institutionalism, a novel theory developed to understand the factors that give rise to the creation, persistence, and change of political institutions, such as constitutions. Constitutional change in these East Asian countries is explored by examining constitutionally defined eminent domain powers that enable governments to compulsorily acquire land in the public interest. The Article aims to …

Kids, No Phones At The Dinner Table: Analyzing The People’S Republic Of China’S Proposed “Minor Mode” Regulation And An International Right To The Internet, Tucker Craven

Chicago Journal of International Law

Around the world, governments are contemplating taking steps to reverse or mitigate the negative health and developmental effects that come from the increasing amount of time children are spending online and using screens. In 2023, the People’s Republic of China (PRC) released a draft regulation restricting minors’ screen time and internet use, which imposes a significant burden not only on children, but also on technology and internet companies that wish to continue operating in the country. However, the PRC’s proposed minor mode regulation is neither an extreme departure from the types of restrictions neighboring countries in East Asia have imposed …