Digital Commons Network^™

When Disaster Strikes: Assessing The Takings Clause In The Context Of Government-Caused Property Destruction, Abby Berman

University of Chicago Legal Forum

In rare but dire emergencies, the government must destroy the property of innocent homeowners to prevent further harm to a community. Although the law often forgives such destruction to protect the public good, courts have inadequately resolved how to compensate innocent property owners for their losses. This Comment unpacks how doctrine has split among circuit courts regarding whether the Takings Clause requires just compensation for innocent property owners whose property has been destroyed by government action in response to an emergency. As a resolution to this circuit split, this Comment proposes that courts should adopt a multi-factor test, utilizing the …

False Claims, Real Threats: Cybersecurity Noncompliance And The False Claims Act’S Materiality Standard, Charlotte Bairey

University of Chicago Legal Forum

This Comment examines the challenges of applying the False Claims Act’s (FCA) materiality standard to cybersecurity noncompliance by federal contractors. Although the Department of Justice’s Civil Cyber-Fraud Initiative seeks to hold government contractors accountable for misrepresenting their adherence to federal cybersecurity standards, courts have inconsistently applied the “holistic” framework for determining materiality established by the Supreme Court in Universal Health Services v. Escobar. Cybersecurity-related FCA claims face unique obstacles when it comes to showing materiality because noncompliance is widespread, national security interests complicate the government’s payment decisions, and government agencies may continue contracting with noncompliant entities out of necessity. This …

Killer Heat: The Disaster Fema Refuses To Own, Robert R.M. Verchick

University of Chicago Legal Forum

Extreme heat, also known as a “heatwave,” is by far the leading weather-related cause of death in the United States.1 In 2023, extreme heat took 2,300 lives—more than all the deaths attributed to hurricanes, earthquakes, tornadoes, droughts, wildfires, winter storms, and floods combined. Harms from extreme heat, which are especially severe in disadvantaged communities, will only increase as the climate continues to break down. Despite these facts, in more than 70 years of comprehensive disaster response, no president has ever declared a “major disaster” based on extreme heat, nor has the Federal Emergency Management Agency (FEMA) ever recommended he do …

Majority Rule And Bankruptcy Resolution Of Mass-Harm Events, Sarah Paterson, Adrian Walters

University of Chicago Legal Forum

Mass-harm events invariably precipitate mass tort liabilities. Since the enactment of the Bankruptcy Code in 1978, firms have resorted to Chapter 11 to address mass tort claims in cases involving asbestos-related disease, defective products, the opioid crisis, and historic sexual abuse. Of late, the use of bankruptcy to resolve mass tort claims has been the subject of sustained criticism from inside and outside bankruptcy law’s professional and academic communities. Much of this has been provoked by the Purdue Pharma filing and the bankruptcy court’s approval of a plan of reorganization that created a liability shield for the Sackler family in …

Elections, Courts, And Democratic Crisis: Constitutional Structure And The 2020 Election, Manoj Mate

University of Chicago Legal Forum

This Article analyzes how the U.S. constitutional order responds to democratic crisis by examining Supreme Court cases dealing with the effort to overturn the 2020 election, and the response to the January 6th Capitol attack. It analyzes the Court’s approaches to constitutional structure in key cases and how these approaches impact constitutional capacity to address democratic crises. The Article discusses how the effort to overturn the 2020 election sought to exploit key weaknesses in the U.S. constitutional framework. It then examines how the Supreme Court adjudicated cases related to the effort to overturn the 2020 election, including Moore v. Harper, …

Emergencies, Alien And Domestic, Samuel Issacharoff

University of Chicago Legal Forum

Democracies survive some emergencies, even emerging stronger after some crises despite temporary suspensions of liberty. Democracies die when faced with other emergencies. This Article explores why. It addresses the claimed need to limit rights of electoral participation in response to the rise of antidemocratic forces through the lens of militant democracy in Europe and the Insurrection Clause of Section Three of the Fourteenth Amendment in the United States. When examined through the context of claimed exigency, the ability of democracies to survive or even thrive after emergencies turns heavily on whether the source of the perceived threat is foreign or …

Realizing The World Health Organization’S Constitutional Mission: Equitably And Everywhere, Sam Halabi, Lawrence Gostin

University of Chicago Legal Forum

COVID-19 revealed deeply embedded inequalities in countries’ capacity to respond to public health disasters. From 2020 to 2024, the content and scope of international health law expanded to address these deep inequities, including a new pandemic agreement and significant changes to the International Health Regulations (IHR). Recent moves by the Trump Administration leveled significant losses on this new global health law infrastructure. At the heart of this infrastructure is the World Health Organization (WHO)—the UN’s specialized agency, which for 77 years has led the world toward realizing the human right to the highest attainable standard of mental and physical health. …

Crisis And The Constitution: The Role Of Civil Liberties In Times Of National Security Threat, Michele Goodwin, Allison M. Whelan

University of Chicago Legal Forum

In this Article, we contribute to the unfolding debate around civil liberties and civil rights in times of political, cultural, and health crises. As this Article was drafted, the National Guard was deployed in Los Angeles, California and Washington, D.C. by the President of the United States. In Oregon, a federal judge issued a final order barring the Trump administration from deploying troops to Portland. These events renew questions related to federalism, states’ rights, individual civil rights, and civil liberties. As chaos unfolds, what is the rule of law and role of civil liberties in times of real or purported …

Liability For Disaster Risks, Daniel A. Farber

University of Chicago Legal Forum

A growing body of law addresses liability for harms caused by disasters. The bases for liability are diverse: common law torts, statutes covering specific risks, and takings doctrine. Litigation can involve government or private defendants, while the disaster could be anything from an oil spill to a flood. This Article maps this complex legal terrain and discusses three cross-cutting themes in disaster liability. One theme is the action/inaction distinction, which can create a perverse incentive to postpone or forego mitigation efforts. The second theme involves the interplay between legislatures and courts in designing and implementing liability rules. The final theme …

A Continuum Of Responsibility: An Examination Of The Human Right To A Healthy Environment Of Present And Future Generations, Sarah Dávila A.

University of Chicago Legal Forum

Youth-led advocacy has been at the forefront of the protection of the right to a healthy environment in the face of a triple planetary crisis: loss of biodiversity, environmental degradation, and climate change. Globally, youth have called upon international bodies to provide guidance as to how States and private actors can be held accountable for human right violations. They have demanded that States protect not merely the human rights of present generations, but those of future generations. This Article explores recent developments in international human rights law, including the recent Committee on the Rights of the Child General Comment No. …

Emergency Lending By The Federal Reserve, Richard Clarida, Kathryn Judge

University of Chicago Legal Forum

The Federal Reserve established an array of innovative emergency lending facilities during the Great Financial Crisis and expanded the scope of its emergency lending yet further in response to the Covid-19 pandemic. This Article provides a retrospective of how the Federal Reserve used its emergency lending authority across these two episodes, identifying patterns and revealing some differences. It sheds light on the conditions that enabled the Federal Reserve to establish the facilities that it did, including the roles played by Congress and Treasury in providing the equity funding that made certain facilities possible. It shows how in each episode, the …

How Equity Changes, Samuel L. Bray

Public Law and Legal Theory Working Papers

In Trump v. CASA, the Supreme Court decisively rejected universal injunctions and offered a major decision about the law of equity. This Article grapples with a central question raised by CASA: if equity is not static, then what counts as legitimate innovation? This Article argues (1) that equity, in order to perform its functions, must have the capacity to innovate; (2) that any innovation should be in keeping with those functions and with equity’s own principles; and (3) that the primary stewards of the law of equity are the courts, not Congress. The vulnerabilities of Grupo Mexicano on these points …

Valuing Future Lives, Daniel J. Hemel, Jonathan S. Masur

Public Law and Legal Theory Working Papers

Federal regulation often involves a tradeoff between monetary costs in the present and life-saving benefits in the future. A central question in regulatory cost-benefit analysis is how to assign a present dollar value to future lives so that future lives and present dollars can be compared. For regulations that are projected to prevent deaths years or decades down the road, agencies make two key analytical moves. First, they adjust the value of a statistical life upward to reflect the fact that society’s willingness to pay to save lives will rise as people become wealthier in the future. Second, they discount …

Lockstepping Structure, Darrell A.H. Miller

Public Law and Legal Theory Working Papers

The new judicial federalism is now entering its early middle age. As it has matured—moving from rights to structure—it has become more complicated in its application. For if one were to take arguments about state experimentation and interpretive flexibility to their logical conclusion, there is no reason state legislative, executive, and judicial powers should stay in lanes demarcated by federal constitutional law. Easily amended state constitutions and elected judges support theories of judicial function more akin to statewide legislative policymakers than passive judicial magistrates. Positive rights in state constitutions would seem to demand recalibration of the rules of standing and …

Lethality And The Historical Principles Of Arms Regulation, Darrell A. H. Miller, Jennifer Tucker, Peter Rutland, Stephen Hargarten

Public Law and Legal Theory Working Papers

Second Amendment “arms” jurisprudence is a muddle. Lower courts have been obliged to craft various approaches from Supreme Court decisions that appear to point in different directions.

We propose that the scope and protection of Second Amendment “arms” could be calibrated to a single, shared metric across all weapon types–lethality. Lethality captures the issue that everyone cares about: whether one advocates for gun rights or for gun violence prevention.

Lethality helps make legible the changes in weapons technology over time and explains the principle that underlies traditional regulation of “dangerous and unusual” weapons. The more lethal a weapon is, the …

General Law Revivalism And The Problem Of 1938, Jack Landman Goldsmith, Curtis Bradley

Public Law and Legal Theory Working Papers

From the constitutional Founding until Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts routinely applied a body of “general law” to resolve a wide range of legal issues, including issues relating to commercial law, tort law, international law, conflict of laws, equity, and procedure. This general law regime became politically fraught and difficult to administer, and the Supreme Court repudiated it in Erie, declaring that “there is no federal general common law” and requiring the federal courts to ground all rules in either federal or state law. Erie and its progeny created what this Article terms the …

Cheap Violence: Weapons And The Law, Joseph Blocher, Darrell A. H. Miller

Public Law and Legal Theory Working Papers

A primary task of law is to control violence. Nearly every imaginable rule-of-law value depends on the success of that endeavor, and some of the most foundational works in legal and political theory begin with an effort to understand the relationship between law and violence. Many of those works were written during periods where the lines between law and violence were blurred, and current threats to the rule of law have sparked renewed interest in the structural interactions between law, violence, and the state.

Missing from this discussion has been a comparably deep analysis of the relationship between law and …

What Is Oral Argument In The Supreme Court For?, Lee Epstein, Eric A. Posner

Public Law and Legal Theory Working Papers

No abstract provided.

Administrative Self-Constitutionalism, Brian Lipshutz

Public Law and Legal Theory Working Papers

Since the days of the Interstate Commerce Commission, federal agencies have generally refused to address the constitutionality of statutory provisions. They have offered little reasoning to justify that refusal, yet scholars have generally accepted it. This Article explains why agencies can—and should—address constitutional challenges to statutory provisions.

Agencies have the power to assess the constitutionality of statutory provisions. They already exercise a similar authority when they apply the canon of constitutional avoidance and consider the constitutionality of individual actions. There is no basis for stopping short of addressing challenges to statutes. And many scholars have recognized that, as a formal …

Patrimonial Constitutionalism, Aziz Z. Huq

Public Law and Legal Theory Working Papers

The means and the ends of federal power are experiencing a sea-charge. Pardons are freely granted—but only to political allies or political foes who might be coaxed into switching sides. Baseless federal criminal investigations are opened against other political foes. Probes into allies’ corruption are abandoned. Independent federal agencies responsible for defending the public sphere use their regulatory authority to openly advance politically allied voices, while stifling criticism of those in power. Federal money is explicitly wielded as cudgel and bribe to induce partisan loyalty. These and similar ways of flexing federal power add up to more than the sum …

Prescribing Religion: The Ten Commandments On Classroom Walls, Samuel L. Bray, Nathan S. Chapman, Brent A. Strawn

Public Law and Legal Theory Working Papers

Several states have recently enacted laws requiring the display of the Ten Commandments in public schools. This Article considers the application of the Establishment Clause to these statutes. First, it examines the history of England and its North American colonies to show that a central feature of an established religion was the government’s prescription of particular religious beliefs and practices. Second, it demonstrates that choosing one version of the Ten Commandments to display in public school classrooms necessarily specifies particular religious beliefs. This is in contrast to expressions of generic providentialism that the founders understood the Establishment Clause to permit. …

Slicing Spontaneity, Lee Anne Fennell

Public Law and Legal Theory Working Papers

No abstract provided.

The First Amendment, Federal Employees, And The War On The “Deep State”, Sonja Starr

Public Law and Legal Theory Working Papers

This essay analyzes, from a First Amendment perspective, the second Trump administration’s efforts to align the federal workforce with its ideological preferences. The administration has broad powers to reshape the executive branch’s policy priorities and its messaging. But as I show with examples across the civil, military, and foreign services, it has gone beyond exercising those powers, retaliating against and restricting employees’ protected private speech and incorporating viewpoint- based conditions into hiring. These actions reflect a constitutional vision that stretches existing limits on public employee rights and, for many employees, subordinates those rights entirely when they conflict with purported Article …

Why General Law?, Samuel L. Bray, Christian R. Burset

Public Law and Legal Theory Working Papers

It has been almost a century since the Supreme Court said in Erie, “There is no general federal common law.” But the general law is in the middle of a controversial revival. Instead of siding with the adherents or detractors of general law, this Essay explores why general law emerges, and why it disappears. Three episodes of the emergence of general law are considered: the rise of general law in the late-eighteenth century British Empire, the rise of general law in the early American Republic, and the rise of general law in twenty-first century originalist and textualist scholarship. In each …

The Prehistory Of The Interim Docket, Aditya Bamzai, Samuel L. Bray

Public Law and Legal Theory Working Papers

Did the Supreme Court issue stays of lower court judgments before the modern era? This Essay explores the underappreciated history of the Supreme Court’s issuance of interim relief. As we show, the Supreme Court has relied on a wide variety of statutory and common law authorities to issue stays long before the recent controversies attending the “shadow” or “interim” docket. This history demonstrates that the Court has always had authority to fashion interim relief of some kind. More- over, it supports the conclusion that the Supreme Court’s authority under the All Writs Act exists even when a more specific statutory …

Inter-Agency Coordination, Jennifer Nou

Public Law and Legal Theory Working Papers

Conventional accounts portray agency design as the outcome of congressional and presidential quests for political control. This perspective aligns with administrative law’s preoccupation with agencies’ external constraints. The main unit of analysis from this point of view is the agency, and the central question is how political principals outside of the agency restrain it. In reality, however, agency actors must also abide by controls internal to the agency: how do these mechanisms arise and what explains their design? For their part, legislative and executive specifications invariably leave organizational slack. Agency heads thus possess substantial discretion to impose internal structures and …

Redundant Public-Private Enforcement, Zachary D. Clopton

Public Law and Legal Theory Working Papers

Redundancy is a four-letter word. According to courts and scholars, redundant litigation is costly, unfair, and confounding. Modern civil procedure has a (nearly) maximalist preference for centralization, and various rules seek to limit duplicative suits within and across court systems. This seemingly dominant view stands in marked contrast to the reality of the modern regulatory state. Redundant public-private enforcement, in which public and private actors have overlapping authority to enforce the law, is ubiquitous. Redundant enforcement also is noticeably underrepresented in the substantial literature on private and public enforcement, which typically treats government agencies and private attorneys general as substitutes …

Expanding Sources Of Knowledge In Legal Scholarship, Adam Davidson, Jocelyn Simonson

Public Law and Legal Theory Working Papers

No abstract provided.

Value Maximization In Financial Contracts, Vincent S.J. Buccola

Coase-Sandor Institute for Law & Economics Research Paper Series

This essay, adapted from the 2026 Coase Lecture, at the University of Chicago, considers the extent to which financial contracts are calibrated to maximize parties' expected joint surplus. Because capital market transactions link typically well-counseled parties who put substantial value at risk, and produce only muted externalities, it is tempting to conclude that the associated contracts will ameliorate the inevitable problems of imperfect information more or less as well as possible. This essay describes conventional grounds for thinking so and offers several criticisms. Taken together, the criticisms imply that justificatory inference from a term's use--even widespread and longstanding use--to its …

Dammed If You Do: Should The Government Be Liable For Hurricane Flooding And Other Natural Disasters?, Lior Jacob Strahilevitz

Coase-Sandor Institute for Law & Economics Research Paper Series

When hurricanes, wildfires, and other natural disasters strike, government officials must make difficult decisions under time pressure and amidst uncertainty over how best to save lives and mitigate the resulting damage to private property. Sometimes landowners who do not second-guess the appropriateness of those decisions made in exigent circumstances nonetheless insist that the government should foot the bill for the resulting destruction. In a 2025 opinion (Ablan) and a 2022 decision (Milton), both involving flooding damage resulting from Hurricane Harvey, the Federal Circuit articulated an expansive vision of government liability under the Takings Clause that can be squared with neither …