Digital Commons Network^™

Preparing For The Next Pandemic: Covid-19’S Lessons For Courts, Rebecca R. Pallmeyer

University of Chicago Legal Forum

No abstract provided.

Captive Labor: Exploitation Of Incarcerated Workers, University Of Chicago Law School - Global Human Rights Clinic, Jennifer Turner, Mariana Olaizola Rosenblat, Nino Guruli, Claudia Flores, Sophie Desch, Katya El Tayeb, Leena Elsadek, Eric Singerman, Joseph Nunn, Monica Weisman, Genevieve Auld, Aaron Tucek, Nico Thompson-Lleras, Johnny Walker, Jennifer Turner

Global Human Rights Clinic

Our nation incarcerates over 1.2 million people in state and federal prisons, and two out of three of these incarcerated people are also workers. In most instances, the jobs these people in prison have look similar to those of millions of people working on the outside: They work as cooks, dishwashers, janitors, groundskeepers, barbers, painters, or plumbers; in laundries, kitchens, factories, and hospitals. They provide vital public services such as repairing roads, fighting wildfires, or clearing debris after hurricanes. They washed hospital laundry and worked in mortuary services at the height of the pandemic. They manufacture products like office furniture, …

The Global Rise Of International Commercial Courts: Typology And Power Dynamics, Weixia Gu, Jacky Tam

Chicago Journal of International Law

Over the past decade, there has been a proliferation of International Commercial Courts (ICCs) across the globe. ICCs are specialized tribunals within the domestic court hierarchy tailored for the adjudication of complicated cross-border commercial disputes. Most ICCs share similar features, such as a set of flexible procedural rules comparable to those in international arbitration, multilingual court proceedings, and the recruitment of overseas judges or foreign legal experts.

The global phenomenon calls for a systematic comparative study of the different generations of ICCs and their power dynamics. This Article will offer a unique typological framework to study the evolution of ICCs. …

“All I Want Is To Be Free”, University Of Chicago Law School - Global Human Rights Clinic

Global Human Rights Clinic

Statelessness — the condition of lacking citizenship or nationality in any country of the world — affects more than 10 million people globally. In the United States, conservative estimates put the number of stateless persons at over 200,000. Given that the U.S. provides citizenship to people born on the territory, nearly all stateless persons within the U.S. were born elsewhere. However, the U.S. immigration framework is silent with respect to statelessness, in effect leaving stateless people unrecognized, unprotected and invisible before the law.

As persons relegated to a life without legal status, stateless people in the United States are subject …

Annual Report: 2020-2022, Center On Law And Finance

Academic Center Annual Reports

No abstract provided.

Assessing Affirmative Action's Diversity Rationale, Adam Chilton, Justin Driver, Jonathan Masur, Kyle Rozema

Articles

No abstract provided.

The Application Of Antitrust Law To Labor Markets -Then And Now, Richard A. Epstein

Articles

As of late, there has been a concerted push in the Biden administration, backed by prominent academics, to expand the application of antitrust law against major employers who are said to exercise monopsony power that reduces aggregate demand and thus leaves too many workers on the sidelines. The effort takes place chiefly in two major areas: stricter attacks on covenants not-to-compete, and more intense review of mergers under the Clayton Act.

This paper begins with an historical account of the law in both areas, from which it concludes that there is no good reason to alter the status quo ante. …

Freedom Denied: How The Culture Of Detention Created A Federal Jailing Crisis, University Of Chicago Law School. Federal Criminal Justice Clinic

Federal Criminal Justice Clinic

This Report reveals a fractured and freewheeling federal pretrial detention system that has strayed far from the norm of pretrial liberty. This Report is the first broad national investigation of federal pretrial detention, an often overlooked, yet highly consequential, stage of the federal criminal process. Our Clinic undertook an in-depth study of federal bond practices, in which courtwatchers gathered data from hundreds of pretrial hearings. Based on our empirical courtwatching data and interviews with nearly 50 stake-holders, we conclude that a “culture of detention” pervades the federal courts, with habit and courtroom custom overriding the written law...” Our Report aims …

The Legal Envelope Theorem, David A. Weisbach, Daniel J. Hemel

Articles

Nontax legal rules regulating the workplace, the financial sector, real property, and many other areas affect the ability of governments to collect revenues and provide public goods. Yet tax-collection considerations rarely enter into economic analyses of nontax legal rules. Usually, tax-collection concerns are shunted aside to separate studies (and separate law school courses) rather than integrated into debates in nontax spheres. This separation between nontax legal rules and tax-collection considerations bears significant negative consequences for the ability of law and economics to generate descriptively accurate and normatively attractive accounts of important nontax legal questions.

This Article takes a step toward …

The Epistemology Of The Internet And The Regulation Of Speech In America, Brian Leiter

Articles

The Internet is the epistemological crisis of the 21st century: it has fundamentally altered the social epistemology of societies with relative freedom to access it. Most of what we think we know about the world is due to reliance on epistemic authorities, individuals, or institutions that tell us what we ought to believe about Newtonian mechanics, evolution by natural selection, climate change, resurrection from the dead, or the Holocaust. The most practically fruitful epistemic norm of modernity, empiricism, demands that knowledge be grounded in sensory experience, but almost no one who believes in evolution by natural selection or the reality …

Duplicative Taxation Among The States: A Problem Not Worth Solving?, Julie Roin

Articles

Recent legal and economic changes not to mention the rise in telecommuting caused by COVID have raised the salience of a lon-simmering fact about the operation of state and local income tax systems: some multistate employers and employees pay a combined income tax liability that is higher than the tax they would have borne had they operated in just one jurisdiction. Seemingly beyond the reach of the courts to correct, there have been persistent calls for congressional action to eliminate or reduce this "duplicative" taxation. This Article suggests that the alleged problem may be both less of a problem, and …

Civil Procedure As The Regulation Of Externalities: Toward A New Theory Of Civil Litigation, Ronen Avraham, William Hubbard

Articles

No abstract provided.

Escape Room: Implicit Takings After Cedar Point Nursery, Lee Fennell

Articles

No abstract provided.

Article 2(4) And Authoritarian International Law, Tom Ginsburg

Articles

In 1970, Thomas Franck asked a rhetorical question of enduring significance: Who Killed Article 2(4)?¹ The reference is to the provision of the United Nations Charter that requires all member states to refrain “from the threat or use of force against the territorial integrity or political independence of any state.”² Vladimir Putin’s gambit in Ukraine, conducted with the rhetorical purpose of eliminating the country as an independent state, is the latest in a series of events that periodically cause analysts to bemoan the end of the post-World War II international order. Will this time be different? Will it …

Toward A “Tender Offer” Market For Labor Representation, Aneil Kovval, Jonathan R. Macey

Articles

American workers are not sharing in the robust growth of the economy. Traditionally, large numbers of workers sought to improve their lot by bargaining collectively through unions. But this strategy does not seem to be working for enough workers. Despite some recent renewed activity, private-sector unionization rates remain below ten percent and the unions that are in place have struggled to perform well, either in avoiding scandals or in delivering significant returns to workers in the form of job security or wage growth. This Article pro-poses a radical fix to the problem of declining unions. Drawing inspiration from corporate governance …

Constitutional Challenges To Public Health Orders In Federal Courts During The Covid-19 Pandemic, Kenny Mok, Eric A. Posner

Articles

We examine federal judicial cases involving nonreligious civil-liberties challenges to COVID-19-related public health orders from the start of the pandemic in early 2020 to January 27, 2022. Consistent with the tradition of judicial deference toward states during emergencies, we find a high level of success for governments. However, governments did lose in 14.2% of the cases, and in those losses, there is evidence of partisan or ideological influence. Republican-appointed judges were more likely to rule in favor of challengers who brought claims based on gun rights and property rights, while Democratic- appointed judges were more likely to rule in favor …

Democratic Backsliding And Multiracial Democracy. A Response To The 2021 Jorde Symposium Lecture By Steven Levitsky, Tom Ginsburg

Articles

We live in an anxious era, particularly about the possibility of multiethnic democracy. The polarization of American democracy in general, accelerated by Trumpism in particular, has challenged narratives of race as gradually declining in significance. Instead, conventional wisdom suggests that Trumpism results directly from rising racial resentment of a White population that fears losing its relative power.² “Dog Whistle Politics” have been discarded in favor of openly nativist appeals, including by media figures such as Tucker Carlson.³

We are not alone. In France, the theory of the Grand Remplacement (Great Replacement) has spread from the fringes to the …

Police Agencies On Facebook Overreport On Black Suspects, Ben Grunwald, Julian Nyarko, John Rappaport

Articles

A large and growing share of the American public turns to Facebook for news. On this platform, reports about crime increasingly come directly from law enforcement agencies, raising questions about content curation. We gathered all posts from almost 14,000 Facebook pages maintained by US law enforcement agencies, focusing on reporting about crime and race. We found that Facebook users are exposed to posts that overrepresent Black suspects by 25 percentage points relative to local arrest rates. This overexposure occurs across crime types and geographic regions and increases with the proportion of both Republican voters and non-Black residents. Widespread exposure to …

In Tribute: Justice Stephen G. Breyer, Jennifer Nou

Articles

No abstract provided.

Promoting Regulatory Prediction, Jonathan Masur, Jonathan Remy Nash

Articles

It is essential for environmental protection that private actors be able to anticipate government regulation. If for instance, the Biden Administration is planning to tighten regulations of greenhouse gas emissions, it is imperative that private companies anticipate this regulatory change now, not a few years from now after they have constructed even more coal- and gas-fired power plants. Those additional power plants will mean more irreversible greenhouse gases, and these plants can be politically challenging to shutter once built. The point is general to private actors making decisions in the shadow of potential government regulation. Better information about future government …

Ideation And Innovation In Constitutional Rights, Tom Ginsburg

Articles

This article explores the development of ideas in constitutional design. The point of departure is a perspective of constitutions-as-products, and thus, an examination of the invention, innovation, and an uptake of these products. The article conceptualizes constitutional innovation and distinguishes its manifestations with respect to constitutional products, the process of constitution-making, and in supporting institutions. The last two elements, in line with Schumpeter’s approach to innovation, would seem especially important to constitutional development. The article provides several examples from the area of human rights and argues that innovations tend to be found in situations in which there is strong aversion …

Reflections Of A Supreme Court Commissioner, William Baude

Articles

In 2021, President Joseph Biden convened a presidential commission to consider proposals to reform the Supreme Court. Dozens of witnesses dressed up to provide live testimony to the commission, thousands of people wrote in with additional testimony, and the commission ultimately sent the President a 294-page report.1 I served on that commission and agreed to submit our report to the President. But much is lost in committee. What follows are my own views on the subjects we considered.

In keeping with the structure of the commission’s report, Part I addresses background, Part II addresses court packing, Part III addresses term …

Streaming Property, Lee Anne Fennell

Articles

People acquire property rights in objects and real estate in order to capture the stream of services that these assets can provide over time. The thing or parcel itself is merely a delivery mechanism, a way of packaging and protecting rights to that value stream. And, significantly, these assets cannot stream services to anyone without a set of facilitating conditions and complementary goods, such as public infrastructure, that do not lie within the asset owner’s individual control. This Essay argues that we can gain fresh traction on inequality by recasting property as service streams rather than as owned things. Doing …

Regulatory Diffusion, Jennifer Nou, Julian Nyarko

Articles

Regulatory diffusion occurs when an agency adopts a substantially similar rule to that of another agency. Indeed, regulatory texts proliferate just like other forms of law do. While this insight has been explored across countries, this dynamic also occurs closer to home: American administrative agencies regularly borrow language from one another. Our research shows that, in recent years, agencies reused one out of every ten paragraphs of the Code of Federal Regulations. These findings are timely given the Supreme Court’s call for judges to be less deferential to agency regulatory interpretation. There is thus newfound significance to understanding how legislative …

Checks, Not Balances, Joshua C. Macey, Brian M. Richardson

Articles

Critics of the administrative state who would revive the nondelegation doctrine and embrace the unitary theory of executive power often assume that each branch’s powers are capable of precise definition, functionally distinct from the others, and that the formal boundaries between each branch are sacrosanct. This Article situates these critiques in Founding Era and nineteenth century debates about the structure of the Constitution. In the 1780s, the AntiFederalists objected to the Constitution for failing to enumerate a precise taxonomy of each branch’s powers, for failing to specify that each branch’s powers were exclusive, and for failing to make government officials …

Kids Are Not So Different: The Path From Juvenile Exceptionalism To Prison Abolition, Emily Buss

Articles

Inspired by the Supreme Court’s embrace of developmental science in a series of Eighth Amendment cases, “kids are different” has become the rallying cry, leading to dramatic reforms in our response to juvenile crime designed to eliminate the incarceration of children and support their successful transition to adulthood. The success of these reforms represents a promising start, but the “kids are different” approach is built upon two flaws in the Court’s developmental analysis that constrain the reach of its decisions and hide the true implications of a developmental approach. Both the text of the Court’s opinions and the developmental and …

Nonparty Interests In Contract Law, Omri Ben-Shahar, David A. 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 primary norm with surprising …

Procedural Losses And The Pyrrhic Victory Of Abolishing Qualified Immunity, Adam A. Davidson

Articles

Who decides? Failing to consider this simple question could turn attempts to abolish qualified immunity into a Pyrrhic victory. That is because removing qualified immunity does not change the answer to this question; the federal courts will always decide. For an outcome-neutral critic of qualified immunity who cares only about its doctrinal failures, this does not matter. But for the vast majority of critics who are outcome- sensitive, meaning they care about qualified immunity because of its role in police accountability, this is a troubling realization. Building on earlier work on the equilibration thesis, as well as on qualitative and …

The Power Of Attorneys: Addressing The Equal Protection Challenge To Merit-Based Judicial Selection, Zachary Reger

University of Chicago Law Review

Many states use merit-based judicial selection to limit political influence on state courts. Under merit selection, an independent, nonpartisan commission screens candidates for any open judgeship, sending a slate of finalists to the governor. Because the governor may appoint only from these approved finalists, merit selection constrains the ability of political officials to stack the courts with partisan judges.

Yet not all are convinced of merit selection’s merit. Critics of merit selection have assailed the role attorneys play in selecting some of the commission’s members. Though the details vary by state, ordinarily a minority of commissioners must be attorneys, and …

Appellate Panels Of One, Saul Levmore

Public Law and Legal Theory Working Papers

Appellate review can be understood as an opportunity to correct errors made by lower courts and, by virtue of their multi-member panels, as a way to benefit from the wisdom of crowds. Appellate panels of three judges, and then a larger Supreme Court of nine, are likely to interpret, apply, or advance law more correctly, or simply better, than a single lower-court judge whose effort is under review.¹ Appellate review can also be understood as relying on more experienced or otherwise superior decision-makers or as designed to make law more uniform, inasmuch as lower court decisions on many matters …