Digital Commons Network^™

Penalty Default Rules For Digital Searches: Why Courts Should Spur Legislative Action Via Second-Order Regulation, Meghan Holloway

University of Chicago Law Review

We live in a data-rich age. But Fourth Amendment doctrines have failed to adapt to our current reality. Legal principles that evolved to cabin the scope of physical searches seldom constrain searches of digital devices. As a result, a warrant to search a digital device gives police officers unfettered access to all of our information. While many scholars have argued that courts should address this problem by adopting rules that directly limit the scope of digital searches, this Comment argues that some courts have already eschewed this approach in favor of rules that encourage legislatures to regulate digital searches. Legislative …

The Spectrum Of Procedural Flexibility, Ronen Avraham, William H.J. Hubbard

University of Chicago Law Review

Sometimes the rules let you change the rules. In civil procedure, many rules are famously rigid—for example, neither the parties nor the judge can stipulate to subject matter jurisdiction—but closer inspection yields many ways that judges or parties (individually or by agreement) can change procedural defaults, such as the number of depositions, trial by judge or jury, or sometimes even jurisdiction. Whether the judge or parties have “flexibility” to change the rules of the game is an important, but understudied, aspect of procedure.

This Article is the first to document the full spectrum of procedural flexibility—the varied and sometimes surprising …

The Executive Judgment Rule: A New Standard Of Dismissal For Qui Tam Suits Under The False Claims Act, Nathan T. Tschepik

University of Chicago Law Review

Under the 1986 amendments to the False Claims Act, whistleblowing has be-come big business. The Act’s qui tam provision empowers private parties, called relators, to bring suit on behalf of the government for frauds committed against it—and to receive substantial portions of that recovery. Relying on the award-sharing provision to draw out relators with inside knowledge of complex and well-hidden frauds, the government uses these qui tam suits as a critical part of its regulatory policy. The recent history of the Act shows that it has done this to great effect: the government recovers billions of dollars annually from fraudulent …

The Golden Share: Attaching Fiduciary Duties To Bankruptcy Veto Rights, Yiming Sun

University of Chicago Law Review

Under bankruptcy law, a debtor cannot enter into a binding agreement with a creditor to not file for bankruptcy in the future. However, creditors can in effect prevent a corporate debtor from filing for bankruptcy by obtaining a special “golden share” in the debtor and exercising the right to veto its bankruptcy concomitant with such a share. Currently, courts decide whether to invalidate a golden share veto right based on whether the right is equivalent to a bankruptcy waiver. However, the current rule may lead to either underdeterrence of bad faith vetoes or discouragement of good faith corporate decision-making.

This …

The Identification Of Customary International Law: Institutional And Methodological Pluralism In U.S. Courts, Noah A. Bialos

Chicago Journal of International Law

It is well established that there is a consensus, two-element approach to the identification of customary international law. Among international courts and organizations, a customary rule is identified based on evidence of a general practice by states, which is accepted as law. Customary international law, however, is also subject to identification at the national level. For centuries, questions regarding the existence and content of customary international rules have arisen in national courts. Given their own institutionalized methods of resolving legal ambiguity, national courts are thus routinely faced with a normative conflict: is the appropriate method for identifying rules of customary …

The Impact Of Trade And Investment Treaties On Fiscal Resources And Taxation In Developing Countries, Sonia E. Rolland

Chicago Journal of International Law

Developing countries need fiscal revenue to build their infrastructure, achieve energy security and environmental sustainability, and provide social services necessary for human development. While trade and investment treaties have typically been assumed to be tax revenue-neutral, economic studies demonstrate that such is not, in fact, the case. The legal literature has not given much consideration to this issue, assuming instead that the tax effects of economic globalization have been addressed by bilateral tax treaties. However, constraints on developing countries’ fiscal resources resulting from trade and investment treaties are complex and nuanced, and they go much beyond the jurisdictional overlaps addressed …

The Children Of Isis: Statelessness And Eligibility For Asylum Under International Law, Ana Luquerna

Chicago Journal of International Law

This Comment focuses on the thousands of foreign children who are indefinitely detained at al-Hol camp in Northern Syria due to their perceived affiliation with ISIS. Specifically, this Comment explores whether stateless children who lived under the ISIS regime and cannot repatriate are eligible for asylum under international law, including the 1951 Convention on the Status of Refugees and its accompanying 1967 Protocol. After examining the relevant international law protecting children and the stateless, this Comment finds that the detention of children at al-Hol camp violates the laws of war and international human rights law. Specifically, the squalid conditions of …

Treaty Interpretation Under A Covenant Paradigm, Jared I. Mayer

Chicago Journal of International Law

Treaty interpretation has long drawn from the practice of contract interpretation. This is because, structurally speaking, treaties and contracts share many features. While the contract paradigm of treaty interpretation may work well for “ordinary” treaties—that is, treaties that have relatively low transaction costs for negotiating and renegotiating, whose fallout would not produce possibly disastrous consequences, and whose contents reify other, previously instantiated commitments between the parties—there is reason to doubt its efficacy with respect to “momentous” treaties. Momentous treaties are those whose transaction costs are tremendously high, fallout from which would jeopardize critical international security and prosperity goals, and that …

You’Re On Native Land: The Genocide Convention, Cultural Genocide, And Prevention Of Indigenous Land Takings, Bonnie St. Charles

Chicago Journal of International Law

Genocide is a sensitive topic. While the Genocide Convention is traditionally understood, especially in the popular imagination, to prohibit mass killings, its provisions prohibit a far broader array of conduct. While killings of Indigenous peoples have thus frequently been considered to fall within the bounds of the Genocide Convention, crimes against culture—like the taking of ancestral or sacred Indigenous lands—have been considered outside of its bounds. While many of these takings continue to occur today, Indigenous loss of land has been consistent throughout history. This Comment argues that cultural genocide, both as a means and as an end, are properly …

Domestic Restrictions On Non-Governmental Organizations And Potential Protections Through Legal Personality: Time For A Change?, Casey Jedele

Chicago Journal of International Law

Non-governmental organizations (NGOs) play a vital role in international law and governance by influencing the formation of international law and serving as watchdogs in the execution of international agreements. However, countries around the world are increasingly wielding overly cumbersome and targeted domestic restrictions against NGOs in the form of both formal legislation and executive policy. These restrictions hinder the ability of NGOs to provide services, raise resources, and fulfill their watchdog role. As such, the restrictions threaten the effectiveness and very existence of NGOs, especially in nations where they are most needed. Evidence suggests that these ramifications are the design …

How Social Media Companies Could Be Complicit In Incitement To Genocide, Neema Hakim

Chicago Journal of International Law

This Comment examines whether social media companies risk international criminal liability when they provide a platform for direct and public incitement to commit genocide. To answer this question, this Comment makes three findings of law. First, pursuant to the Rome Statute, the Genocide Convention, and caselaw from the International Military Tribunal at Nuremberg and the International Criminal Tribunal for Rwanda, incitement to genocide is a crime, not a mode of liability. Second, the mens rea for complicity, according to the Rome Statute, is knowledge, if the crime in question is coordinated by a group (for example, a social media campaign …

Law School Record, Vol. 66, No. 2 (Spring 2020), Law School Record Editors

Law School Record

• Message from the Dean
• A Dream Deferred, Advanced, and Remembered
• The Boldness of the Bigelow Fellowship
• Listening across Differences
• 'Ultimate Flexibility'
• Promise and Possibility
• The Cartoonists' Guide to Law
• Faculty News: Book published by Todd Henderson and Salen Churi - The Trust Revolution: How the Digitization of Trust Will Revolutionize Business and Government
• Alumni News: Books Published by Alumni in 2019
• Development News: Message from the Associate Dean of External Affairs
• Development News: Kraus-Weigle Fund Stems from an Entire Family's Commitment to Public Service
• Alumni in Memoriam

The Chicago School’S Limited Influence On International Antitrust, Anu Bradford, Adam Chilton, Filippo Maria Lancieri

University of Chicago Law Review

Beginning in the 1950s, a group of scholars primarily associated with the University of Chicago began to challenge many of the fundamental tenants of antitrust law. This movement, which became known as the Chicago School of Antitrust Analysis, profoundly altered the course of American antitrust scholarship, regulation, and enforcement. What is not known, however, is the degree to which Chicago School ideas influenced the antitrust regimes of other countries. By leveraging new datasets on antitrust laws and enforcement around the world, we empirically explore whether ideas embraced by the Chicago School diffused internationally. Our analysis illustrates that many ideas explicitly …

What’S In Your Wallet (And What Should The Law Do About It?), Natasha Sarin

University of Chicago Law Review

In traditional markets, firms can charge prices that are significantly elevated relative to their costs only if there is a market failure. However, this is not true in a two-sided market (like Amazon, Uber, and Mastercard), in which firms often subsidize one side of the market and generate revenue from the other. This means consideration of one side of the market in isolation is problematic. The Court embraced this view in Ohio v American Express, requiring that anticompetitive harm on one side of a two-sided market be weighed against benefits on the other side.

Legal scholars denounce this decision, which, …

The Chicago School And The Forgotten Political Dimension Of Antitrust Law, Ariel Katz

University of Chicago Law Review

An economically oriented and technocratic view of antitrust has dominated the discipline’s practice and scholarship for the last four decades. Under this view, attributed in large part to the rise of the Chicago School, questions of legality ought to be decided exclusively on the basis of supposedly objective economic analysis, which does not admit any consideration or insight other than those that economists and other experts trained in the field can analyze. Lately, prominent voices from both the political left and right have begun attacking this mainstream view and calling for an enhanced role for antitrust law in mediating a …

Startup Acquisitions, Error Costs, And Antitrust Policy, Kevin A. Bryan, Erik Hovenkamp

University of Chicago Law Review

Startup acquisitions by dominant incumbents, especially in high tech, have recently attracted significant attention. Many researchers and practitioners worry about harms to competition or innovation. However, there has been very little antitrust enforcement in this area. This is emblematic of a prominent feature of modern antitrust law: a strong preference for erring on the side of nonenforcement. A leading rationale for this preference is the claim that market power self-corrects by attracting new entrants who discipline incumbents.

As a result, plaintiffs generally face very demanding evidentiary requirements, which are particularly hard to satisfy in the case of startup acquisitions. A …

The Case For “Unfair Methods Of Competition” Rulemaking, Rohit Chopra, Lina M. Khan

University of Chicago Law Review

A key feature of antitrust today is that the law is developed entirely through adjudication. Evidence suggests that this exclusive reliance on adjudication has failed to deliver a predictable, efficient, or participatory antitrust regime. Antitrust litigation and enforcement are protracted and expensive, requiring extensive discovery and costly expert analysis. In theory, this approach facilitates nuanced and factspecific analysis of liability and well-tailored remedies. But in practice, the exclusive reliance on case-by-case adjudication has yielded a system of enforcement that generates ambiguity, drains resources, privileges incumbents, and deprives individuals and firms of any real opportunity to participate in the process of …

Labor Antitrust’S Paradox, Hiba Hafiz

University of Chicago Law Review

Growing inequality, the decline in labor’s share of national income, and increasing evidence of labor-market concentration and employer buyer power are all subjects of national attention, eliciting wide-ranging proposals for legal reform. Many proposals hinge on labor-market fixes and empowering workers within and beyond existing work law or through tax-and-transfer schemes. But a recent surge of interest focuses on applying antitrust law in labor markets, or “labor antitrust.” These proposals call for more aggressive enforcement by the Department of Justice (DOJ) and Federal Trade Commission (FTC) as well as stronger legal remedies for employer collusion and unlawful monopsony that suppresses …

Chicago And Its Discontents, Timothy J. Muris, Jonathan E. Nuechterlein

University of Chicago Law Review

This symposium began with a call for papers “reassessing the validity of the Chicago School’s assumptions about competition and considering whether a more aggressive approach to antitrust enforcement is now warranted.” That framing uncritically accepts the premises of antitrust’s new populist movement: first, that “the Chicago School” marked an abrupt break from prior academic analysis of antitrust law, and second, that its adherents shared a common positive agenda fundamentally at odds with robust antitrust enforcement. Both of those premises are false. The Chicago School represented a logical continuation of the antitrust analysis developed over the preceding decades, and its members …

The Origins Of Substantive Due Process, Ilan Wurman

University of Chicago Law Review

In the antebellum nineteenth century, courts often voided legislative acts for substantive unreasonableness or for exceeding the scope of legitimate police powers. Contrary to the assertions of a number of modern scholars, however, this tradition does not support the concept of economic substantive due process. Courts voided municipal acts exceeding the scope of legitimate police powers on two grounds—the law of delegation and the law of municipal corporations—that did not apply to acts of state legislatures. The states themselves were limited to reasonable exercises of the police power only when their asserted authority came into potential collision with federal constitutional …

Some Doubts About “Democratizing” Criminal Justice, John Rappaport

University of Chicago Law Review

The American criminal justice system’s ills are by now so familiar as scarcely to bear repeating: unprecedented levels of incarceration, doled out disproportionately across racial groups,and police that seem to antagonize and hurt the now-distrustful communities they are tasked to serve and protect. Systemic social ailments like these seldom permit straightforward diagnoses, let alone simple cures. In this case, however, a large, diverse, and influential group of experts—the legal academy’s “democratizers”—all identify the same disease: the retreat of local democratic control in favor of a bureaucratic “machinery” disconnected from public values and the people themselves. Neighborhood juries, for example, internalize …

Consent Behind Bars: Should It Be A Defense Against Inmates’ Claims Of Sexual Assault?, Nika Arzoumanian

University of Chicago Legal Forum

No abstract provided.

Sexual Harassment Litigation With A Dose Of Reality, Diane P. Wood

University of Chicago Legal Forum

No abstract provided.

#Metoo As Catalyst: A Glimpse Into 21st Century Activism, Jamillah Bowman Williams, Lisa Singh, Naomi Mezey

University of Chicago Legal Forum

No abstract provided.

#Metoo And Law Talk, Lesley Wexler

University of Chicago Legal Forum

No abstract provided.

Sexual Harms Without Misogyny, Deborah M. Weiss

University of Chicago Legal Forum

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“Whistle Blowers”: To What Extent Does Federal Law Impose Mandatory Reporting Obligations On Collegiate Coaches For Allegations Of Sexual Misconduct?, Julia Tabat

University of Chicago Legal Forum

No abstract provided.

Opening Closed Doors: How The Current Law Surrounding Nondisclosure Agreements Serves The Interests Of Victims Of Sexual Harassment, And The Best Avenues For Its Reform, D. Andrew Rondeau

University of Chicago Legal Forum

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Patrolling Pregnant Immigrant Detainees’ Bodies, Alexa Rollins

University of Chicago Legal Forum

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Revenge Porn And The First Amendment: Should Nonconsensual Distribution Of Sexually Explicit Images Receive Constitutional Protection?, Evan Ribot

University of Chicago Legal Forum

No abstract provided.