Digital Commons Network^™

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

Public Law and Legal Theory Working Papers

In Cedar Point Nursery v. Hassid, the Supreme Court ruled 6-3 that a California regulation that gave union organizers limited access to agricultural worksites amounted to a per se taking. The Court went on to opine that any governmental grant of physical access, no matter how time-limited or functionally constrained, similarly works a per se taking, unless one of the Court’s exceptions applies. This essay argues that Cedar Point is best understood as part of an implicit takings apparatus designed to selectively apply scrutiny to property-facing governmental acts in ways that broadly entrench status quo patterns of property wealth. The …

Global Impunity: How Police Laws & Policies In The World's Wealthiest Countries Fail International Human Rights Standards, Claudia Flores, Brian Citro, Nino Guruli, Mariana Olaizola Rosenblat, Chelsea Kehrer, Hannah S. Abrahams

Public Law and Legal Theory Working Papers

No abstract provided.

The Institutional Context Of The International Court Of Justice, Tom Ginsburg

Public Law and Legal Theory Working Papers

Institutional analysis is an approach drawn from the social sciences that examines the ways in which an organization’s internal structures and external environment shape outcomes. There are many different kinds of institutionalism, but all have in common an emphasis on examining structures, as opposed to, say, the particular individuals who inhabit institutions, or the role of ideology at a macro level.¹ Institutional analysis has been productively applied to courts and invites two related inquiries: what is the court’s institutional design, and what is its institutional environment?

Applying this approach to the International Court of Justice (“ICJ” or “Court”) requires …

Equalizing The Tax Treatment Of Stock Buybacks And Dividends, Daniel J. Hemel, Gregg D. Polsky

Public Law and Legal Theory Working Papers

This policy brief highlights flaws in the current federal tax treatment of stock buybacks and proposes to address those flaws by equalizing the tax treatment of buybacks and dividends. (We explore the proposal in greater detail in Hemel & Polsky, Taxing Buybacks, 38 Yale J. on Reg. 246 (2021), https://ssrn.com/abstract=3764112.) Stock buybacks allow foreign shareholders to avoid U.S. withholding tax on corporate cash distributions. Stock buybacks also allow U.S. taxable investors to reduce or eliminate shareholder-level tax on corporate cash distributions through a combination of deferral, loss harvesting, and stepped-up basis at death. Our proposal—based on an idea first suggested …

Property Law For The Ages, Michael C. Pollack, Lior Jacob Strahilevitz

Public Law and Legal Theory Working Papers

Within the next forty years, the number of Americans over age sixty-five is projected to nearly double. This seismic demographic shift will necessitate a reckoning in several areas of law and policy, but property law is especially unprepared. Built primarily for young and middle-aged white men, the common law of property has been critiqued for decades for the ways in which it oppresses or simply leaves behind people based on their race, sex, Native heritage, and more. This Article contributes a new focus on property law’s treatment of people based on their advanced age. Burdened by higher relocation costs, more …

The Limits Of International Law Fifteen Years Later, Eric A. Posner, Jack L. Goldsmith

Public Law and Legal Theory Working Papers

The Limits of International Law received a great deal of criticism when it was published in 2005 but it has aged well. The skeptical, social-scientific methodology that it recommended has become a normal mode of international law scholarship. And the dominant idealistic view of international law that the book criticized is today in shambles, unable to explain the turmoil in international politics. This essay reflects on the book’s reception and corrects common misperceptions of its arguments.

Regulation And Redistribution With Lives In The Balance, Daniel J. Hemel

Public Law and Legal Theory Working Papers

A central question in law and economics is whether non-tax legal rules should be designed solely to maximize efficiency or whether they also should account for concerns about the distribution of income. This question takes on particular importance in the context of cost-benefit analysis. Federal agencies apply cost-benefit analysis when writing regulations that generate multibillion dollar impacts on the US economy and profound effects on millions of Americans’ lives. In the past, agency cost-benefit analyses typically have ignored the income-distributive consequences of those regulations. That may soon change: On his first day in office, President Biden instructed his Office of …

Artificial Intelligence And The Rule Of Law, Aziz Z. Huq

Public Law and Legal Theory Working Papers

This chapter examines an interaction between technological shocks and the “rule of law.” It does so by analyzing the implications of a class of loosely related computational technologies termed “machine learning” (ML) or, rather less precisely “artificial intelligence” (AI). These tools are presently employed in the pre-adjudicative phase of enforcing of the laws, for example facilitating the selection of targets for tax and regulatory investigations (Coglianese and Lehr, 2016). They are also increasingly used during adjudication, for example, to facilitate and guide determinations of individual violence risk during pretrial bail determinations (Huq, 2019). Predictions of a general displacement of human …

The Public Trust In Data, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Personal data is no longer just personal. Social networks and pervasive environmental surveillance via cellphones and the ‘internet of things’ extract minute-by-minute details of our behavior and cognition. This information accumulates into a valuable asset. It then circulates among data brokers, targeted advertisers, political campaigns, and even foreign states as fuel for predictive interventions. Rich gains flow to firms well positioned to leverage these new information aggregates. The privacy losses, economic exploitation, structural inequalities, and democratic backsliding produced by personal data economies, however, fall upon society at large.

This Article proposes a novel regulatory intervention to mitigate the harms from …

Designing Supreme Court Term Limits, Adam Chilton, Daniel Epps, Kyle Rozema, Maya Sen

Public Law and Legal Theory Working Papers

Since the Founding, Supreme Court Justices have enjoyed life tenure. This helps insulate the Justices from political pressures, but it also results in unpredictable deaths and strategic retirements determining the timing of Court vacancies. In order to regularize the appointments process, a number of academics and policymakers have put forward detailed term-limits proposals. However, many of these proposals have been silent on several key design decisions, and there has been almost no empirical work assessing the impact that term limits would have on the composition of the Supreme Court.

This Article provides a framework for designing a complete term-limits proposal …

Shining A Light On Dark Patterns, Jamie Luguri, Lior Jacob Strahilevitz

Public Law and Legal Theory Working Papers

Dark patterns are user interfaces whose designers knowingly confuse users, make it difficult for users to express their actual preferences, or manipulate users into taking certain actions. They typically exploit cognitive biases and prompt online consumers to purchase goods and services that they do not want or to reveal personal information they would prefer not to disclose. This article provides the first public evidence of the power of dark patterns. It discusses the results of the authors’ two large-scale experiments in which representative samples of American consumers were exposed to dark patterns. In the first study, users exposed to mild …

Congress’S Commissioners: Former Hill Staffers At The S.E.C. And Other Independent Regulatory Commissions, Brian D. Feinstein, M. Todd Henderson

Public Law and Legal Theory Working Papers

The expression “personnel is policy” has become a truism in Washington. Yet our understanding of how the political branches use appointments to project influence into the administrative state is incomplete. This Article leverages data on almost one-thousand commissioners serving on eleven major independent regulatory commissions to chart, for the first time, Congress’s growing practice of placing former legislative-branch personnel onto these entities. We then theorize that this phenomenon is rooted in fundamental changes in American politics in recent decades— and, in turn, that it has deeply affected administrative law and separation-of-powers dynamics.

Over the past several decades, the number of …

Immigration, Retaliation, And Jurisdiction, Daniel E. Simon

University of Chicago Legal Forum

No abstract provided.

When Free Speech Isn’T Free: The Rising Costs Of Hosting Controversial Speakers At Public Universities, Rebecca Roman

University of Chicago Legal Forum

No abstract provided.

“Segs And The City” And Cutting-Edge Aesthetic Experiences: Resolving The Circuit Split On Tour Guides’ Licensing Requirements And The First Amendment, Marie J. Plecha

University of Chicago Legal Forum

No abstract provided.

Preserving A Democratic Shield: First Amendment Challenges To Michigan’S Independent Redistricting Commission, Michael Ortega

University of Chicago Legal Forum

No abstract provided.

The Practice Of Prayer At School Board Meetings: The Coercion Test As A Framework To Determine The Constitutionality Of School Board Prayer, Claire Lee

University of Chicago Legal Forum

No abstract provided.

Climate Change Disclosures After Nifla, Daniel Abrams

University of Chicago Legal Forum

No abstract provided.

The Majoritarian Press Clause, Sonja R. West

University of Chicago Legal Forum

No abstract provided.

Lapidation And Apology, Cass R. Sunstein

University of Chicago Legal Forum

Groups of people, outraged by some real or imagined transgression, often respond in a way that is wildly disproportionate to the occasion, thus ruining the transgressor’s day, month, year, or life. To capture that phenomenon, we might repurpose an old word: lapidation. Technically, the word is a synonym for stoning, but it sounds much less violent. It is also obscure, which makes it easier to enlist for contemporary purposes. Lapidation plays a role in affirming, and helping to constitute, tribal identity. It typically occurs when a transgressor is taken to have violated a taboo, which helps account for the different …

Free Speech And The “Unique Evils” Of Public Accommodations Discrimination, Elizabeth Sepper

University of Chicago Legal Forum

No abstract provided.

Free Speech Overrides, Frederick Schauer

University of Chicago Legal Forum

No abstract provided.

Discrimination, The Speech That Enables It, And The First Amendment, Helen Norton

University of Chicago Legal Forum

No abstract provided.

Defending Speech Crimes, Judith P. Miller

University of Chicago Legal Forum

No abstract provided.

The First Amendment As A Procrustean Bed?: On How And Why Bright Line First Amendment Tests Can Stifle The Scope And Vibrancy Of Democratic Deliberation, Ronald J. Krotoszynski Jr.

University of Chicago Legal Forum

No abstract provided.

Uncommon Law: The Past, Present And Future Of Libel Law In A Time Of “Fake News” And “Enemies Of The American People”, Jane E. Kirtley

University of Chicago Legal Forum

No abstract provided.

Must Free Speech Be Harmful?, Leslie Kendrick

University of Chicago Legal Forum

No abstract provided.

Is There An Anti-Democracy Principle In The Post- Janus V. Afscme First Amendment?, Charlotte Garden

University of Chicago Legal Forum

No abstract provided.

The Internet As A Speech Machine And Other Myths Confounding Section 230 Reform, Danielle Keats Citron, Mary Anne Franks

University of Chicago Legal Forum

No abstract provided.

The Shifting Law Of Sexual Speech: Rethinking Robert Mapplethorpe, Amy Adler

University of Chicago Legal Forum

No abstract provided.