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The Effects Of Tax Evasion On Inequality, David A. Weisbach, Thomas Coleman

Coase-Sandor Institute for Law & Economics Research Paper Series

To estimate inequality from tax data, researchers must allocate misreported income (e.g., evasion) to individuals. Misreported income, however, is not directly observed. Recovering true income therefore requires identifying assumptions about the joint distribution of true income and reporting, and these assumptions can substantially change estimated top income shares. A central reason is that membership in the reported top group is selected on compliance, an unobservable, so the composition of the reported top depends on assumptions the data alone cannot settle. We develop a computational framework that makes these assumptions explicit and clarifies how they shape estimates of inequality.We show that …

The Effects Of Tax Evasion On Inequality, Thomas S. Coleman, David Weisbach

Public Law and Legal Theory Working Papers

To estimate inequality from tax data, researchers must allocate misreported income (e.g., evasion) to individuals. Misreported income, however, is not di- rectly observed. Recovering true income therefore requires identifying assump- tions about the joint distribution of true income and reporting, and these assump- tions can substantially change estimated top income shares. A central reason is that membership in the reported top group is selected on compliance, an un- observable, so the composition of the reported top depends on assumptions the data alone cannot settle. We develop a computational framework that makes these assumptions explicit and clarifies how they shape estimates …

Designing Contract Modification, Albert H. Choi, George Triantis

University of Chicago Law Review

No abstract provided.

The Structural Law Of Data, Bridget A. Fahey, Raul Castro Fernandez

University of Chicago Law Review

The central concern of structural constitutional law is the organization of governmental power, but power comes in many forms. This Article is about how the law of structure regulates decision-making about, and popular control over, an increasingly potent form of power: the power government obtains from data. The government has always relied on information to meet its objectives, but the digitization of information over the last half century has yielded a distinctive form of governmental power—one that is liquid, transferable, minable, dynamic, and vital to virtually all governmental activity today.

But despite the significant literature on private-sector “data governance,” public …

Settlements Of Adhesion, Nicole Summers

University of Chicago Law Review

Eviction cases make up over a quarter of all cases filed in the federal and state civil courts and have enormous consequences for tenants, who are nearly always unrepresented by counsel. These cases overwhelmingly settle, yet settlement scholars have entirely overlooked eviction both empirically and theoretically. One of the core questions animating settlement scholarship—how do the parties negotiate settlement?— has never been asked or answered in the eviction context. This Article does so.

The Article presents results from the first empirical study of eviction settlement negotiations. The study involved rigorous analysis of an original dataset of over one thousand hand-coded …

Youngstown, William Baude

Public Law and Legal Theory Working Papers

No abstract provided.

The Seeds Of Peace And Justice, Shai Dothan

Chicago Journal of International Law

Some positive developments in international law had humble beginnings. They started from a small group of idealists who wanted to change the world for the better. Once their ideas gathered momentum, they got the support of people with power and transformed the world. State after state followed each other in a cascade toward improving international law. The purpose of this paper is to investigate the conditions that are beneficial for the initial germination of ideas with the potential to positively revolutionize international law. By using a series of case studies focused on the initiation of major transformations that improved international …

Climate Change As A Security Interest: A Novel Defense In Fossil Fuel Investment Arbitration, Nabil Kapasi

Chicago Journal of International Law

Thousands of international investment and trade agreements contain provisions protecting investments made by parties from the signatory states. One such provision is Investor-State Dispute Settlement (ISDS), a mechanism allowing foreign investors to sue host states in arbitration for treaty violations. Fossil fuel investors are increasingly utilizing ISDS successfully to hold states liable for climate action; arbitral tribunals are awarding large compensations to these investors when states deny them permits for upstream activities or enact phase-out policies attempting to ban fossil fuel consumption. These awards impose heavy burdens on states while simultaneously deterring climate action by creating fears of liability. This …

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

Coase-Sandor Institute for Law & Economics Research Paper Series

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 …

Slices And Lumps: Division And Aggregation In Law And Life, Lee Anne Fennell

Books

No abstract provided.

The Territorial Independence Of Intellectual Property Rights, Aaron X. Fellmeth

Chicago Journal of International Law

No abstract provided.

Balancing Nationalities In International Investment Law, Peter J. Spiro

Chicago Journal of International Law

How can you tell where someone is “from”?  Historically, an individual’s national identity was singular, starting with formal nationality. One’s national center of gravity was readily determinable. Not so today. Determining one’s primary national identification is no longer an easy thing in many cases. This is consequentially enabled by the growing acceptance of dual citizenship. One can openly identify as a formal member of more than one country in a way that was disfavored in the past.

International investment law, however, has not caught up to this reality. In an increasing number of international arbitrations, tribunals are shutting the doors …

Thwartings, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

When Are Foot Pursuits Really Necessary?: How Improved Policies Might Reduce Community Harm, Sharon R. Fairley

Public Law and Legal Theory Working Papers

Despite the widely accepted view that foot pursuits are inherently dangerous for both police officers and citizens, a minority of municipal police agencies have adopted policies that have the potential to minimize the risk of harm by limiting the circumstances in which police officers are permitted to pursue a subject on foot. This paper presents data related to foot pursuit incidents and existing foot pursuit policies. The paper documents that most existing foot pursuit policies are limited in their potential to reduce unwarranted deadly encounters because the guidance they provide requires officers to consider and weigh vague concepts in tense, …

Regulatory Design Choices For Ai: The What, The Who And The How, Aziz Z. Huq

Public Law and Legal Theory Working Papers

This chapter identifies three common design choices that must be made in the course of an effort to regulate artificial intelligence “AI”). By isolating the way in which those different sovereign regulators approach these choices in respect to AI, it is possible to evaluate more clearly the likely effects of regulation, and to better understand aspects of regulatory design that to date have been overlooked. First, the “what” of AI regulation is not just a matter of how “AI” is defined, but also which element of the technology stack is targeted by law: compute, data, or models. Second, the “who” …

From Quid Post Quo To Quid Pro Quo: Toward An Evidentiary Standard For 18 U.S.C. § 666 After Snyder, Luke Henkel

University of Chicago Law Review

This Comment addresses a question left unanswered by the Supreme Court’s recent decision in Snyder v. United States. Snyder held that the federal funds bribery statute, 18 U.S.C. § 666, covers only bribes, not gratuities. That is, an agreement to exchange payment for an official act by a state or local government official is criminally prohibited (if the official’s agency receives a certain amount of federal funding). But § 666 does not prohibit payments made after official acts so long as there was no agreement to conduct a quid pro quo exchange beforehand. Thus, the key issue in cases with …

Pardoning Corporations, Brandon Stras

University of Chicago Law Review

In 1977, a company convicted of conspiring with the mob asked President Jimmy Carter for a pardon. Government officials speculated that the President could grant the request, but ultimately the President decided that the company did not deserve clemency. Nearly fifty years later, President Donald Trump pardoned a company and commuted the sentence of another. People are again wondering whether the pardon power covers companies, but no one can offer evidence either way.

History shows that the pardon power covers companies. Before the Founding, the King would often pardon corporations. Both the City of London and the Massachusetts Bay Company …

Sincerity Or Substantial Burden? Investigating The Proper Threshold Test For Prisoner Free Exercise Claims, David Wang

University of Chicago Law Review

When prison officials violate the free exercise rights of prisoners, prisoners can seek recourse under 42 U.S.C. § 1983. However, due to the specialized and restrictive nature of prisons, courts adjudicate these claims under a reasonableness test set out in the case Turner v. Safley instead of under a strict scrutiny standard. While circuits agree on using the Turner test for prisoner free exercise claims, there is a deep circuit split on the proper threshold test for these types of claims.

While some circuits hold that inmates need to show that their religious practice was substantially burdened, other circuits hold …

No Exceptions: The New Movement To Abolish Slavery And Involuntary Servitude, Adam A. Davidson

University of Chicago Law Review

In the twenty-first century, slavery is still alive in the United States, but thankfully, it is increasingly unwell. States across the country, in places both expected and unexpected, have begun to pass amendments to their state constitutions that seek to finish the job started over 150 years ago by the Thirteenth Amendment. Whereas that amendment included an exception, providing for slavery and involuntary servitude as punishment for a crime, these new state amendments contain total prohibitions. But these prohibitions have thus far proven unable to end the blight of prison slavery merely through their text. This Article asks why and …

Defending Home: Toward A Theory Of Community Equity, Deborah N. Archer, Joseph R. Schottenfeld

University of Chicago Law Review

Predominantly Black communities have long been systematically segregated and sequestered, then intentionally sacrificed, to feed the United States’ growth and expansion. The burdens of development—including roads and highways, sewage, communications, and power infrastructure—and efforts to respond to the challenges of climate change, all fall disproportionately on Black communities that rarely receive the benefits of these investments. For neighbors who have built a sense of community, often across generations and in defiance of racist oppression, sacrificing their homes, and the sense of safety and belonging they offer, is a bitter pill.

A central contention of this Essay is that, across a …

Real Laws From Imagined Facts: The Formative Role Of Assumption In Prison Litigation Reform Act Exhaustion Doctrine, Katrina T. Goto

University of Chicago Law Review

In Woodford v. Ngo, the Supreme Court made explicit the judicial assumption that most prisons have effective internal grievance procedures, firmly cementing that assumption within Prison Litigation Reform Act (PLRA) exhaustion doctrine. Reliance on this assumption has contributed to doctrinal rules that map poorly onto the factual realities of prisons and require constant clarification by the Supreme Court. Indeed, the Supreme Court has been called upon twice in the past decade to sort out the mess of doctrinal rules governing PLRA exhaustion, first in Ross v. Blake and again this year in Perttu v. Richards. Examining the Court’s path to …

Necessity In Free Exercise, Brady Earley

University of Chicago Law Review

The Free Exercise Clause is a broadly worded constitutional prohibition against government intrusion on religious exercise. To construct limits, courts have consistently required government officials to demonstrate the necessity of state action burdening religion. Yet government officials regularly fail to produce evidence of necessity, leaving judges to intuit or assume whether necessity exists. This Comment offers a better way. Using a method known as difference-in-differences (DiD), lawmakers can draw upon the experience of existing state laws to enact laws justified with evidence. This Comment demonstrates the value of DiD with a current free exercise controversy involving the Old Order Amish …

Sovereign Power Constitutionalism, Curtis A. Bradley

University of Chicago Law Review

The text of the U.S. Constitution seems to be missing a host of governmental powers that we take for granted, including powers relating to immigration, Indian affairs, acquisition of territory and resources, and the regulation and protection of U.S. citizens abroad. The Supreme Court suggested an explanation for these and other missing powers in its famous 1936 decision, United States v. Curtiss-Wright Export Corp. Upon becoming a nation, the Court contended, the United States automatically acquired powers “equal to the right and power of the other members of the international family”—powers that inhered in the government “as necessary concomitants of …

The Contractualization Of Disability Rights Law, Yaron Covo

University of Chicago Law Review

What body of law determines the content and scope of disability rights in the United States? The conventional wisdom is that the rights of disabled individuals are enshrined in and shaped by an array of civil rights statutes. While this answer is correct, it is incomplete. As this Article shows, U.S. disability rights are also built upon contract law concepts and doctrines. For example, in interpreting disability rights statutes, courts have turned to the parol evidence rule, the duty of good faith, and the doctrines of impossibility, materiality, duress, and mistake. Although not explicitly enumerated in disability rights statutes, these …

Legal Realignment, Richard Re

University of Chicago Law Review

The United States is undergoing a legal realignment, in that salient legal views recently associated with the right are now being espoused by the left, and vice versa. The clearest example involves Chevron deference: a doctrine once championed by conservatives like Justice Antonin Scalia has now been overruled in Loper Bright v. Raimondo—over dissenting votes by all three of the Court’s liberals. Similar points can be made about standing, stare decisis, textualism, positivism, and more. The basic reason for this transformation is straightforward: legal ideologies in power favor discretion, whereas those out of power favor constraint. Conservatives now firmly control …

Complete Preemption Via Historical Evolution, Ryan Jain-Liu

University of Chicago Law Review

Complete preemption is a jurisdictional doctrine that applies when a federal statute so wholly envelops certain state law claims that those claims effectively cease to exist. Aside from an explicit complete preemption hook, the Supreme Court has recognized just one way for a federal statute to completely preempt state law claims: it must provide an exclusive federal remedy and also have a special nature that makes it especially federal. Courts shirk this second prong to their own detriment. One example of complete preemption generating confusion is § 303(i) of the Bankruptcy Code, which provides remedies for involuntary debtors against bad …

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Compassionate Causation In The Domestic Violence Survivors Justice Act, Zoë Lewis Ewing

University of Chicago Law Review

This Comment evaluates the implementation of the Domestic Violence Survivors Justice Act (DVSJA), a New York law passed in 2019 to provide shortened sentencing ranges for domestic violence survivors convicted of crimes. It identifies an inconsistency in sentencing courts’ application of the law’s causation standard, which requires that a petitioner’s experience of domestic violence be a “significant contributing factor” to their criminal conduct. Some courts interpret the prong narrowly, while others apply a broad causation standard. This Comment argues that courts should opt for the latter approach and consider causation in the DVSJA satisfied if domestic violence was “sufficiently significant …

Necessary Developments: Calibrating The Fair Housing Act’S Reasonable Accommodation Provision, Ben Griswold

University of Chicago Law Review

The Fair Housing Act prohibits denying people with disabilities “reasonable accommodations.” But courts have long split over how to interpret this provision. At the center of the divide is the statutory requirement that an accommodation be “necessary to afford . . . equal opportunity to use and enjoy a dwelling.” Courts diverge over whether the statute imposes a strict-necessity standard, requiring that an accommodation be truly indispensable, or a lenient-necessity standard, requiring only that the requested accommodation ameliorate the plaintiff’s disability.

Rather than pick one interpretation, this Comment suggests that courts should tailor the necessity standard they employ to the …

The Splintering Of American Public Law, Marco Basile

University of Chicago Law Review

Constitutional tradition has never mattered more for arguing about what the Constitution means. Yet the very idea of a constitutional tradition presents a shape-shifting target. Rather than an entirely distinct body of law, early U.S. constitutional law mixed and blurred with the law of nations in a broader category of “public law” that, unlike other forms of law, sought to govern the sovereign state itself through not only legal institutions but also political structures and actors outside courts.

This Article argues that U.S. constitutional law and international law diverged after the Civil War when courts came to apply them differently …