Digital Commons Network^™

Black Masculinity And The Government, Paul Butler

University of Chicago Legal Forum

No abstract provided.

Abortion Experts, Aziza Ahmed

University of Chicago Legal Forum

No abstract provided.

Antitrust Worker Protections: The Rule Of Reason Does Not Allow Counting Of Out-Of-Market Benefits, Laura Alexander, Steven C. Salop

University of Chicago Law Review

Anticompetitive conduct toward upstream trading partners may have the effect of benefiting downstream consumers even as the conduct harms the firms’ workers or suppliers. Defendants may attempt to justify their upstream conduct—and may rely on the ancillary restraints doctrine in doing so—on the grounds that the restraints create efficiencies benefitting downstream purchasers, rather than focusing solely on the impact of the restraints on the workers or suppliers in the upstream market. Such balancing of harms against out-of-market benefits achieved by a different group should be rejected by antitrust doctrine generally, and specifically in the case of harms to workers. This …

Restructuring American Antitrust Law: Institutionalist Economics And The Antitrust Labor Immunity, 1890–1940s, Laura Phillips-Sawyer

University of Chicago Law Review

Labor unions and their leaders were cast as the perennial antitrust defendants for the first fifty years of federal antitrust law, and this historic imbalance fostered a movement in economic scholarship and labor activism to restructure American antitrust law. The progressive liberal-institutionalist movement in economics played an important role in legitimizing trade unions by recasting them, not as anticompetitive cartels, but rather as a necessary corollary to the growing market power of industrial firms. Louis Brandeis, the litigator and future jurist, drew from institutionalists’ work to support antitrust reform. He argued that antitrust law was not necessarily anathema to the …

Losing Leverage: Employee Replaceability And Labor Market Power, Cynthia Estlund

University of Chicago Law Review

Workers’ labor market power matters enormously to their lives at work and beyond. And most workers have too little of it. This Essay highlights one underappreciated set of factors in the decline of workers’ labor market power and explores policy levers that might help to rebalance the bargaining field. This Essay begins with the fairly self-evident observation that workers’ labor market power is a product in part of the ease with which employers can replace employees. That points to the importance of several trends in the organization and technology of work—including both fissuring and automation—that make it easier for private …

Coercive Rideshare Practices: At The Intersection Of Antitrust And Consumer Protection Law In The Gig Economy, Christopher L. Peterson, Marshall Steinbaum

University of Chicago Law Review

This Essay considers antitrust and consumer protection liability for coercive practices vis-à-vis drivers that are prevalent in the rideshare industry. Resale price maintenance, nonlinear pay practices, withholding data, and conditioning data access on maintaining a minimum acceptance rate all curtail platform competition, sustaining a high-price, tacitly collusive equilibrium among the few incumbents. Moreover, concealing relevant trip data from drivers is both deceptive and unfair when the platforms are in full possession of the relevant facts. In the absence of these coercive practices, customers too would be better off due to platform competition, which would lower average prices by sharpening competition …

Quasi Tripartism: Limits Of Co-Regulation And Sectoral Bargaining In The United States, César F. Rosado Marzán

University of Chicago Law Review

Disproportionate employer power is at least partly responsible for the sharp increase in economic inequality in the United States, which threatens the fabric of the Republic. Workplace law reform could provide workers with an institutional source of power that countervails employer power and compresses inequality. Ideas for workplace law reform include modest ones, such as instituting “co-enforcement,” and more ambitious ones, such as “sectoral bargaining.” According to their adherents, both require tripartite arrangements where capital, labor, and government provide inputs on how to regulate work.

But can the United States, with its liberal market economy typically devoid of meaningful tripartism, …

On Firms, Sanjukta Paul

University of Chicago Law Review

This Essay is about firms as a type of economic coordination and about how we think about them in relation to other forms of coordination as well as in relation to competition and markets. A prominent stream of thought about firms—which has both strongly influenced contemporary competition law and, more indirectly, served as a support to the fundamental ideas of neoclassical price theory that guide many areas of law and policy—ultimately explains and justifies the centralization of both decision-making rights and flows of income from economic activity on productive efficiency grounds. The Essay makes two simple points, drawing upon and …

Annual Report: 2022-2023, Center On Law And Finance

Academic Center Annual Reports

No abstract provided.

Summary Of Impact: 2022-2023, Coase-Sandor Institute For Law And Economics

Academic Center Annual Reports

No abstract provided.

Annual Report: 2020-2023, Constitutional Law Institute

Academic Center Annual Reports

No abstract provided.

The 2023 Scalia Lecture: Beyond Textualism?, William Baude

Articles

No abstract provided.

The Law Of The Sea And Democracy, Tom Ginsburg

Articles

The law of the sea is not an area of international law generally associated with democracy. The United Nations Convention on the Law of the Sea (UNCLOS) is one of the world’s most broadly accepted and effective treaties, incorporating all kinds of States. The central cleavages among these states— coastal vs. maritime powers, developing countries vs. industrialized nations, landlocked vs. those with access to the seas—have only coincidental links to the global division of democracy and dictatorship. Yet, the law of the sea has surprising connections with democracy in that democratic states are enthusiastic users of the UNCLOS system. Furthermore, …

A Modern Defense Of Simple Rules For A Complex World, Richard Epstein

Articles

My 1995 book Simple Rules for a Complex World articulated a general proposition that, in most situations, simple legal rules perform better in two key dimensions: (1) they are simpler to interpret and enforce, and (2) they generate efficient incentives on the parties to whom they apply. I then applied that view to matters of general legal theory, to matters of environmental law, and to disputes over labor. These principles apply to all forms of legal regulation, but in this Article, I shall limit my analysis to the five articles in this Collection. These are by Richard Revesz on global …

Universities As Knowledge Institutions: A Reply To Professor Jackson, Tom Ginsburg

Articles

No abstract provided.

The Political Question Doctrine And International Law, Curtis Bradley

Articles

Under the political question doctrine, some issues are deemed to be inappropriate for judicial resolution. The modern version of the doctrine is typically traced to the Supreme Court’s 1962 decision in Baker v. Carr, in which the Court listed six reasons why an issue might be treated as political. Although the doctrine has received significant scholarly attention, most modern commentary has overlooked the historic relationship between the doctrine and international law. As this Essay documents, the political question doctrine emerged in part to allow the political branches, rather than the courts, to make determinations about this country’s—and other countries’—rights and …

Interring The Nondelegation Doctrine; Sepultando A Doutrina Da Não Delegação, Eric Posner, Adrian Vermeule

Articles

A large academic literature discusses the nondelegation doctrine, which is said to bar Congress from enacting excessively broad or excessively discretionary grants of statutory authority to the executive branch or other agents. The bulk of this literature accepts the existence of the doctrine, and argues only about the terms of its application or the competence of the courts to enforce it. In this essay, we argue that there is no such nondelegation doctrine: A statutory grant of authority to the executive branch or other agents never effects a delegation of legislative power Agents acting within the terms of such a …

Common Good Gun Rights, Darrell Miller

Articles

No abstract provided.

The Comparative Constitutional Of Democratic Backsliding: A Report On The State Of The Field, Aziz Huq, Tom Ginsburg

Articles

No abstract provided.

Our Federalism And Our Democracy: Complements Or Foes?, Aziz Huq

Articles

This Essay reflects on the relationship between “federalism” and “national democracy.” More specifically, it considers the way in which the operation of formal state institutions can change the quality of national bodies necessary to democratic politics. State-level action can reduce the quality of national democracy even if it is motivated by national partisan forces. For example, state-level instruments can influence the possibility that national institutions either do or do not experience capture by minority factions, and are instead capable of roughly tracking the ebb and flow of majoritarian preferences over time. Without state institutions, national actors would lack instruments to …

Legal Origins And Human Rights Law, Adam Chilton, Mila Versteeg

Articles

A widely studied topic in comparative law is the extent to which countries’ legal origins—and especially whether they are a civil or common law system—are associated with the substance of their contemporary laws. We contribute to this line of research by using data from a range of sources to explore whether common law and civil law countries have different substantive legal commitments in an area where the enduring influence of legal origins remains unclear: human rights law. We specifically explore differences between common law and civil law countries along five dimensions. We find that, compared to countries with common law …

Private Enforcement In The States, Austin Peters, Diego Zambrano, Neel Guha, Jeffrey Xia

Articles

Scholarship on U.S. litigation and civil procedure has scarcely studied the role of private enforcement in the states. Over the past two decades, scholars have established that, almost uniquely in the world, the U.S. often relies on private parties rather than administrative agencies to enforce important statutory provisions. Take your pick of any area in American governance, and you will find private rights of action: environmental law, civil rights, employment discrimination, antitrust, consumer protection, business competition, securities fraud, and so on. In each of these areas, Congress has deliberately empowered private plaintiffs instead of, or in addition to, government agencies. …

Nonparty Interests In Contract Law, Omri Ben-Shahar, David Hoffman, Cathy Hwang

Articles

Contract law has one overarching goal: to advance the legitimate interests of the contracting parties. For the most part, scholars, judges, and parties embrace this party primacy norm, recognizing only a few exceptions, such as mandatory rules that bar enforcement of agreements that harm others. This Article describes a distinct species of previously unnoticed contract law rules that advance nonparty interests, which it calls “nonparty defaults.”

In doing so, this Article makes three contributions to the contract law literature. First, it identifies nonparty defaults as a judicial technique. It shows how courts deviate from the party primacy norm with surprising …

The January 6 Insurrection And The Problem Of Constitutional Guardianship, Aziz Huq

Articles

No abstract provided.

International Constitution-Making As A Technique Of Gender Ordering: Considering The Role Of The Family In Global Economic Relations, Michele Krech

Articles

No abstract provided.

The Corporate Governance Of Public Utilities, Aneil Kovvali, Joshua A. Macey

Articles

Rate-regulated public utilities own and operate one-third of U.S generators and nearly all the transmission and distribution system. These firms receive special regulatory treatment because they are protected from competition and subject to rate caps. In the past decade, they also have been at the center of high- profile corporate scandals. They have bribed regulators to secure subsidies for coal-fired generators and nuclear reactors. They have caused wildfires and coal- ash spills that resulted in hundreds of deaths and billions of dollars in liability. Their failure to maintain reliable electric service has contributed to catastrophic blackouts. Perhaps most consequentially, they …

Book Review: The “Common-Good” Manifesto, William Baude, Stephen E. Sachs

Articles

In Common Good Constitutionalism, Professor Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally toward the common good.” The book must be taken seriously as an intellectual challenge, particularly to leading theories of originalism.

That said, the challenge fails. The book fails to support its hostility toward originalism, to motivate its surprising claims about outcomes, or even to offer an account of constitutionalism at all. Its chief objections to originalism are unpersuasive and already answered in the literature it cites. The book does highlight important points of history and jurisprudence, of which originalists and others …

State International Agreements: The United States, Canada, And Constitutional Evolution, Curtis A. Bradley

Articles

The text of the US Constitution appears to require that individual states, to the extent that they are ever allowed to conclude agreements with foreign governments, must obtain congressional approval. In practice, however, states conclude many agreements with foreign governments, including with Canada and its provinces, and they almost never seek congressional approval. This practice is an illustration of both the importance of federalism in US foreign relations and the significant role played by historical practice in informing US constitutional interpretation. The phenomenon of state international agreements assumed new prominence in 2019 when the Trump administration sued to challenge a …

The Long Hand Of Anti-Corruption: Israeli Judicial Reform In Comparative Perspective, Tom Ginsburg

Articles

There are many ways in which to examine the current Israeli constitutional crisis. This article uses the lens of anti-corruption, a global movement which has changed politics in many countries. The long empowerment of the legal system in Israel arguably has its origins in policing corruption, which may be a particularly powerful motivator for the current governing coalition’s efforts to assert more control over the Supreme Court. The dynamics of anti-corruption in Israel are somewhat distinct from those of other countries in ways that may bode well for the Court in its confrontation with the government.

Fractured Majorities And Their Reasons, Saul Levmore

Articles

The wisdom of crowds correctly exalts majority decision-making on appellate courts as well as on many other settings, including hospitals and committees with multiple doctors or board members. But the same confidence in majorities should be applied to the reasons that are attached to a vote, or opinion, and then to a majority’s rejection of a member’s reasoning. This Article introduces the problems confronted when examining the reasons for opinions, and then the reasons beneath those reasons. It shows that majority decision-making is not as reliable as it first seems and, indeed, that a single decision-maker may at times be …