Digital Commons Network^™

Regulatory Diffusion, Jennifer Nou, Julian Nyarko

Public Law and Legal Theory Working Papers

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 like constitutions, statutes, and contracts 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. By our measure, in recent years, agencies reused one out of every ten paragraphs of the Code of Federal Regulations from another rulemaking. These insights are timely given a recent Supreme Court decision calling for judges to engage in less deferential regulatory interpretation. As …

Our Constitutionalism Of Force, Farah Peterson

Public Law and Legal Theory Working Papers

The Founders’ constitution—the one they had before the Revolution and the one they fought the Revolution to preserve—was one in which violence played a lawmaking role. An embrace of violence to assert constitutional claims is worked deeply into our intellectual history and culture. It was entailed upon us by the Founding generation, who sincerely believed that people “are only as free as they deserve to be” and that one could tell how much freedom people deserved by how much blood they were willing to shed to obtain it. This constitutionalism of force survived ratification. Its legacy is a constitutional order …

Streaming Property, Lee Anne Fennell

Public Law and Legal Theory Working Papers

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 …

Strategic Rulemaking Disclosure, Jennifer Nou, Edward H. Stiglitz

Public Law and Legal Theory Working Papers

Congressional enactments and executive orders instruct agencies to publish their anticipated rules in what is known as the Unified Agenda. The Agenda’s stated purpose is to ensure that political actors can monitor regulatory development. Agencies have come under fire in recent years, however, for conspicuous omissions and irregularities. Critics allege that agencies hide their regulations from the public strategically, that is, to thwart potential political opposition. Others contend that such behavior is benign, perhaps the inevitable result of changing internal priorities or unforeseen events.

To examine these competing hypotheses, this Article uses a new dataset spanning over thirty years of …

The Gun And The Paperweight: Risk Control Services And Disservices, Lee Anne Fennell

Public Law and Legal Theory Working Papers

Suppose a legal rule makes it negligent to have a loaded gun out in the open in a place of business. Should a defendant who violated this rule by using a loaded gun as a paperweight be liable for his client’s broken toes when the gun falls onto her foot? Problems manifesting this basic structure have occupied scholars and Restatement reporters for decades. In this essay, I reframe untaken precautions as a bundle of risk control services, each of which counteracts a particular risky element, like “shooting capacity” or “heaviness” in the case of the gun. Tort law ought to …

Checks, Not Balances, Joshua Macey, Brian Richardson

Public Law and Legal Theory Working Papers

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 …

Digital Privacy For Reproductive Choice In The Post-Roe Era, Aziz Z. Huq, Rebecca Wexler

Public Law and Legal Theory Working Papers

The overruling of Roe v. Wade has unleashed a torrent of regulatory and punitive activity restricting previously lawful reproductive options. But the turn to the expansive criminal law and new schemes of civil liability creates novel concerns, quite distinct from the pre-Roe landscape a half-century ago. Reproductive choice, and its nemesis, turn upon information. For pregnant people, deciding on a choice of medical care entails a search for advice and services. Information is at a premium for them. Meanwhile, efforts to regulate abortion began with clinic closings. But they will quickly extend to civil actions and criminal indictments of patients, …

Data Federalism, Bridget Fahey

Public Law and Legal Theory Working Papers

Private markets for individual data have received significant and sustained attention in recent years. But data markets are not for the private sector alone. In the public sector, the federal government, states, and cities gather data no less intimate and on a scale no less profound. And our governments have realized what corporations have: It is often easier to obtain data about their constituents from one another than to collect it directly. As in the private sector, these exchanges have multiplied the data available to every level of government for a wide range of purposes, complicated data governance, and created …

Militant Democracy Comes To The Metaverse, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Social media platforms such as Facebook, Twitter, Instagram, and Parlor are an increasingly central part of the democratic public sphere in the United States. But the prevailing view of this platform-based public sphere has of late become increasingly dour and pessimistic. What were once seen as technologies of liberation have come to be viewed with skepticism as channels and amplifiers of “antisystemic” forces, damaging the quality and feasibility of democracies. If correct, this skepticism yields an interesting tension: How can the state protect its democratic character against unravelling pressure from actors who are necessary components of democratic practice in the …

Managing The Police Emergency, Adam Davidson

Public Law and Legal Theory Working Papers

There is a policing emergency in the United States. Police across the country cause massive, widespread, and unpredictable physical harm—killings, beatings; psychological harm—negative stress-related birth and educational outcomes, general worsened mental health; and sociological harm—advancing the racial, gender, and economic hierarchies that undermine our work towards an equal society. Even after the largest protest movement in U.S. history in summer 2020, the traditional political process has failed to make significant inroads against this emergency.

This Article begins to explore in depth the legal ramifications of recognizing the policing emergency. It suggests that among the most important ramifications is unlocking a …

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

Public Law and Legal Theory Working Papers

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 quantitative …

The Counter-Democratic Difficulty, Aziz Z. Huq

Public Law and Legal Theory Working Papers

No abstract provided.

Submerged Independent Agencies, Brian D. Feinstein, Jennifer Nou

Coase-Sandor Institute for Law & Economics Research Paper Series

Independent agencies are in the judicial crosshairs. Scholars criticize their efficacy—while still puzzling over how to define the form. By and large, this attention focuses on the top of the agency hierarchy, the extent to which agency heads are insulated from presidential control. What this perspective misses, however, is that power is also exercised by tenure-protected civil servants below. This phenomenon exists not because Congress has delegated them authority, but because executive branch actors have. Consequently, there exists another species of independent agency that requires a reckoning: call them “submerged independent agencies.” These entities are “agencies” because they wield discretionary …

Cash Substitution And Deferred Consumption As Data Breach Harms, Lior Strahilevitz, Lisa Yao Liu

Coase-Sandor Institute for Law & Economics Research Paper Series

In a series of federal court cases, judges have debated whether data breaches that expose consumer information satisfy Article III of the United States Constitution’s requirement that plaintiffs suffer an “injury in fact.” Judicial opinions find no constitutional standing in a narrow majority of such cases, and plaintiffs are likely to lose absent causal links to subsequent identity theft or the disclosure of embarrassing information. Consumers whose data are breached thus are left without a federal remedy, and firms’ incentives to invest in data security are diminished. Our paper identifies a novel injury that results from data breaches. Upon learning …

Cash Substitution And Deferred Consumption As Data Breach Harms, Lior Strahilevitz, Lisa Yao Liu

Public Law and Legal Theory Working Papers

In a series of federal court cases, judges have debated whether data breaches that expose consumer information satisfy Article III of the United States Constitution’s requirement that plaintiffs suffer an “injury in fact.” Judicial opinions find no constitutional standing in a narrow majority of such cases, and plaintiffs are likely to lose absent causal links to subsequent identity theft or the disclosure of embarrassing information. Consumers whose data are breached thus are left without a federal remedy, and firms’ incentives to invest in data security are diminished. Our paper identifies a novel injury that results from data breaches. Upon learning …

Stark Choices For Corporate Reform, Aneil Kovval

Public Law and Legal Theory Working Papers

For decades, corporate law scholars insisted on a simple division of responsibilities. Corporations were told to focus exclusively on maximizing financial returns to shareholders while the government tended to all other concerns by adopting new regulations. As reformers challenged this orthodoxy by urging corporations to take action on pressing social problems, defenders of the status quo have responded by suggesting that these efforts could be dangerous. In their view, internal corporate governance reforms could interfere with the adoption of external governmental regulations that would be more effective. The hypothesis that reformers face a stark choice between pursuing internal corporate changes …

The Unexpected Costs Of Moral Minimization As An Interrogation Tactic, Margareth Etienne, Richard H. Mcadams

Public Law and Legal Theory Working Papers

No abstract provided.

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

University of Chicago Law Review

Civil procedure serves a multitude of goals, from regulating the cost of fact gathering to dictating the rules of advocacy in court to promoting public participation in trials. To what extent can procedural design serve them all, or must rules sacrifice some interests to serve others? In this Article, we are the first to introduce a theory of procedural design that answers this question. We build upon the fundamental insight that the goals of civil procedure, as varied as they are, all occupy a common conceptual space—each addresses an externality, positive or negative, that litigation creates. This insight allows us …

Remembering: The Constitution And Federally Funded Apartheid, Joy Milligan

University of Chicago Law Review

For much of the twentieth century, the U.S. government authorized and invested heavily in segregation and racial inequality. Often it did so through federal programs authorized under Congress’s Spending Clause powers. Federal spending allowed powerful national investments in areas like health, education, and housing but frequently created segregated hospitals, schools, and communities. From the New Deal onward, Black leaders pressed constitutional arguments to hold the federal government responsible for its role in deepening racial inequality. Early on, federal lawyers and administrators recognized the strength of those arguments but explicitly decided against halting federal involvement in Jim Crow.

Decades later, the …

Foreign Dictators In U.S. Court, Diego A. Zambrano

University of Chicago Law Review

It’s almost impossible to sue a foreign government in U.S. courts. The Foreign Sovereign Immunities Act, the court-created “act of state” doctrine, and other common- law immunities shield foreign officials and governments from most lawsuits. For instance, courts have dismissed claims against China, Cuba, Venezuela, and Russia over allegations of torture, detentions, and election interference. Yet foreign governments have unfettered access to U.S. courts as plaintiffs. And foreign dictatorships— including Russia, China, Turkey, and Venezuela—have leveraged this access to harass political dissidents, critics, and even newspapers in the United States. These doctrines create an asymmetry at the heart of this …

Political Stare Decisis, Oren Tamir

Chicago Journal of International Law

The doctrine of stare decisis famously instructs judges to respect past decisions even if they believe these decisions are wrong. Many believe stare decisis serves venerable values and bemoan its apparent demise in various apex courts around the world. But can something like stare decisis appear in politics too? In other words, can we expect public officials, much like we expect judges, to also adhere to past decisions even if they think these decisions are wrong? Or when they face temptations to ignore the past?

If we rely on our normal intuitions about politics, or observe its current state around …

Criminogenic Risks Of Interrogation, Richard H. Mcadams, Margareth Etienne

Public Law and Legal Theory Working Papers

No abstract provided.

Siege Starvation: A War Crime Of Societal Torture, Tom Dannenbaum

Chicago Journal of International Law

A recent amendment to the Rome Statute of the International Criminal Court has drawn unprecedented attention to the war crime of starvation of civilians as a method of warfare. It comes at a time when mass starvation in war is resurgent, devastating populations in Yemen, Ethiopia, Syria, South Sudan, Nigeria, and elsewhere. The practice has also drawn the scrutiny of the United Nations Security Council. And yet, despite this heightened profile and sharpened urgency, what precisely is criminally wrongful about starvation methods remains underspecified.

A common way of thinking about the criminal wrong is as a form of killing or …

The Persistent Objector Doctrine: Identifying Contradictions, Shelly Aviv Yeini

Chicago Journal of International Law

The persistent objector doctrine (POD) in international law provides that a rule of customary international law (CIL) will not oblige a state that has persistently objected to the development of the rule. The doctrine requires that the objection be “persistent” and “consistent” and that it not be contradictory. Yet, while in this context the meaning of persistency and consistency, in this context, has been discussed in the legal literature, the term “contradiction” has not. Therefore, it is not clear what type of behavior would represent a contradiction that would disqualify a state from persistent objector (PO) status. In practice, this …

Searching For Justice For Australia’S Stolen Generations, Keila Mayberry

Chicago Journal of International Law

Until the early 1970s, Australian federal and state government agencies forcibly removed tens of thousands of Aboriginal and Torres Strait Islander children from their families and placed them up for adoption or in group homes and church missions. These children are known as the “Stolen Generations.” Domestic remedies have proven insufficient in securing justice for the Stolen Generations and international adjudication may be a viable alternative. This Comment examines whether Australia may be haled before the International Court of Justice (ICJ) for violations of the Genocide Convention for its Stolen Generations policies. Australia’s policies likely constituted a violation of Article …

Unhrc Resolution 26/9: Is A New International “Red Card” Enough To Keep Fifa And Others Accountable?, Griffin A. Clark

Chicago Journal of International Law

The lead-up to the 2022 FIFA World Cup in Qatar has generated significant controversy due to the host country’s exploitative labor system and sub-standard human rights record. While FIFA has not remained completely insulated from criticism for its involvement, the sport’s principal governing body has avoided all serious threats of liability for its connection to human rights violations associated with the 2022 World Cup. This immunity largely stems from limitations on domestic courts in adjudicating domestic corporations’ foreign business activities. Yet, the ongoing development of a new treaty under the U.N. offers a different approach to liability for transnational business …

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

Coase-Sandor Institute for Law & Economics Research Paper Series

Civil procedure serves a multitude of goals, from regulating the cost of fact gathering, to dictating the rules of advocacy in court, to promoting public participation in trials. To what extent can procedural design serve them all, or must rules sacrifice some interests to serve others? In this paper, we are the first to introduce a theory of procedure design that answers this question. We build upon the fundamental insight that the goals of civil procedure, as varied as they are, all occupy a common conceptual space—each addresses an externality, positive or negative, that litigation creates. This insight allows us …

Stark Choices For Corporate Reform, Aneil Kovvali

Coase-Sandor Institute for Law & Economics Research Paper Series

For decades, corporate law scholars insisted on a simple division of responsibilities. Corporations were told to focus exclusively on maximizing financial returns to shareholders while the government tended to all other concerns by adopting new regulations. As reformers challenged this orthodoxy by urging corporations to take action on pressing social problems, defenders of the status quo have responded by suggesting that these efforts could be dangerous. In their view, internal corporate governance reforms could interfere with the adoption of external governmental regulations that would be more effective. The hypothesis that reformers face a stark choice between pursuing internal corporate changes …

Regulatory Diffusion, Jennifer Nou, Julian Nyarko

Coase-Sandor Institute for Law & Economics Research Paper Series

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 like constitutions, statutes, and contracts 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. By our measure, in recent years, agencies reused one out of every ten paragraphs of the Code of Federal Regulations from another rulemaking. These insights are timely given a recent Supreme Court decision calling for judges to engage in less deferential regulatory interpretation. As …

Toward A "Tender Offer" Market For Labor Representation, Aneil Kovvali, Jonathan R. Macey

Coase-Sandor Institute for Law & Economics Research Paper Series

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 the strategy does not seem to be working for enough workers. Despite some renewed recent activity, private sector unionization rates remain below 10%, 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 proposes a radical fix to the problem of declining unions. Drawing inspiration from corporate governance …