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In Defense Of The Hare: Primary Jurisdiction Doctrine And Scientific Uncertainty In State-Court Opioid Litigation, Anna Stapleton

University of Chicago Law Review

When state and local governments sue prescription opioid manufacturers in state courts, the defendants often move for courts to stay or dismiss proceedings under the doctrine of primary jurisdiction. This common-law doctrine instructs courts to issue stays when waiting for a federal agency to address specific issues within the case would promote uniformity or allow the court to benefit from the agency’s expertise. In the prescription opioid cases, defendant manufacturers have argued that courts should stay proceedings until the completion of a new set of studies ordered by the Food and Drug Administration (FDA). State courts have divided on whether …

Whether 8 Usc § 1252(G) Precludes The Exercise Of Federal Jurisdiction Over Claims Brought By Wrongfully Removed Noncitizens, Matthew Miyamoto

University of Chicago Law Review

Section 1252(g) of the Immigration and Nationality Act provides that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.” The Eighth and Ninth Circuits disagree about whether this provision precludes judicial review over claims brought by noncitizens who are wrongfully removed from the United States. This Comment advances four arguments for why § 1252(g) should be interpreted narrowly to allow federal jurisdiction over such claims by looking to Supreme …

Tangled Arms: Modernizing And Unifying The Arm-Of-The-State Doctrine, Kelsey Joyce Dayton

University of Chicago Law Review

The arm-of-the-state doctrine, which entitles certain governmental entities to the states’ sovereign immunity, is an embodiment of American federalism. In theory, this doctrine ensures that federal courts appreciate the concerns for state sovereignty and solvency that motivated the passage of the Eleventh Amendment. However, a combination of factors—the Supreme Court’s sparse guidance, the growth and diffusion of power across local, state, and federal governments, and the availability of other immunity doctrines—has rendered the arm-of-the-state doctrine an incomprehensible anachronism. Most courts determine whether an entity defendant receives arm-of-the-state immunity by examining the entity’s legal status and structure. But many courts applying …

Law School Record, Vol. 66, No. 1 (Fall 2019), Law School Record Editors

Law School Record

• Message from the Dean
• An Enduring Commitment To the Law School and Its Students
• The Thinker, the Counselor, the Champion
• 'The Best Postdoc You Could Ever Have'
• Open to Opportunity
• Paul Woo, Director of Career Services Retires after 39 Years
• Finding the Right Fit
• A Culture of Curiosity
• Graduation 2019
• Faculty News
• Development News
• Alumni in Memoriam

Categorically Redeeming Graham V Florida And Miller V Alabama: Why The Eighth Amendment Guarantees All Juvenile Defendants A Constitutional Right To A Parole Hearing, Parag Dharmavarapu

University of Chicago Law Review

The Supreme Court has held that life without parole is an unconstitutional sentence for nearly all juvenile defendants—except for a select few that the criminal justice system deems irredeemable. Though this represents a positive development in the Court’s juvenile sentencing jurisprudence, it has left the case law deeply unsettled. For instance, the Court has held that redeemable juveniles are all entitled to a “meaningful opportunity to obtain release,” but it has failed to explicitly define what that constitutional mandate means in practice. On top of that, the Court has concluded that not even expert psychologists can determine at sentencing whether …

Passive Embezzlement Schemes As Continuing Offenses, William Admussen

University of Chicago Law Review

For most offenses, the statute of limitations begins to run when the elements of an offense are satisfied. For continuing offenses, however, the statute of limitations begins to run when the crime stops, extending the amount of time the government has to bring charges. This Comment considers the circuit split over whether passive embezzlement schemes are continuing offenses. Typically charged under the federal embezzlement statute, 18 USC § 641, passive embezzlement schemes continue automatically once set in motion. They are distinguished from active embezzlement schemes in that active schemes require some affirmative act by the embezzler for the scheme to …

Contents / Editorial Information

University of Chicago Law Review

No abstract provided.

Criminal Law In A Civil Guise: The Evolution Of Family Courts And Support Laws, Elizabeth D. Katz

University of Chicago Law Review

Each year family courts incarcerate thousands of Americans for nonpayment of child support. The vast majority of these parents are not accorded criminal procedure protections because courts have characterized routine child support enforcement as a “civil” matter. The United States Supreme Court has endorsed this approach. In Turner v Rogers, the Court began from a premise it regarded as both legally significant and unquestionably true: that child support proceedings are civil On that basis, the Court determined that an indigent father facing a year in jail was not entitled to a public defender. The Court’s analysis reflects a broader and …

Judge Posner’S Reconstruction Of Property Theory, Rachel E. Sachs

University of Chicago Law Review

No abstract provided.

Dismissing Decisional Independence Suits, Jennifer Nou

University of Chicago Law Review

No abstract provided.

Posner And Class Actions, Daniel Klerman

University of Chicago Law Review

No abstract provided.

Foreword, Lawrence Lessig

University of Chicago Law Review

No abstract provided.

Posner’S Unlikely Patent Intervention, Jonathan Masur

University of Chicago Law Review

No abstract provided.

On Posner On Copyright, Tim Wu

University of Chicago Law Review

No abstract provided.

Richard Posner, The Decline Of The Common Law, And The Negligence Principle, Saul Levmore

University of Chicago Law Review

No abstract provided.

Posner’S Pragmatic Justiciability Jurisprudence: The Triumph Of Possibility Over Probability, Eugene Kontorovich

University of Chicago Law Review

No abstract provided.

Judges And Judgment: In Praise Of Instigators, Kathryn Judge

University of Chicago Law Review

No abstract provided.

Entire Issue

University of Chicago Law Review

No abstract provided.

From The State Of Emergency To The Rule Of Law: The Evolution Of Repressive Legality In The Nineteenth Century British Empire, Christopher M. Roberts

Chicago Journal of International Law

Why are contemporary laws and techniques that state authorities use to crack down on political dissent so similar across countries? This Article argues that at least part of the answer may be found by turning to colonial history. The Article has two Parts. In the first Part, the Article explores the manner in which, over the course of the nineteenth century, the British deployed various different legal and institutional approaches in response to an Irish polity that consistently refused to submit to British authority. In the second Part, the Article examines the manner in which the approaches developed in Ireland …

The Persecution Of Stones: War Crimes, Law’S Autonomy And The Co-Optation Of Cultural Heritage, Timothy William Waters

Chicago Journal of International Law

In 1567, a bridge was built over a river in Bosnia—a bridge widely seen as a work of great beauty. In 1993, it was destroyed in a war. What did its destruction mean? Was it a crime—and which one? An assault on culture—and whose? Between 2004 and 2017, a trial held in The Hague sought to answer these questions. The way it did—the assumptions and categories the prosecutors and judges deployed, the choices they made—tells us something important about how law operates and how it appropriates other bodies of knowledge, whether in a now-obscure Balkan conflict or on the battlefields …

What Does The Cisg Have To Say About Smart Contracts? A Legal Analysis, Anna Duke

Chicago Journal of International Law

Smart contracts—contracts written into lines of code that automatically execute all or parts of an agreement—are a relatively new technology, which has raised many questions regarding their validity and formation. This Comment looks at smart contracts under the lens of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and analyzes what its provisions have to say on the validity and formation of a contract. This analysis is written from the internationalist perspective, which favors applying the CISG to issues it addresses even in cases where domestic law might apply. Moreover, this Comment argues that a …

Closing The Liability Loophole: The Liability Convention And The Future Of Conflict In Space, Trevor Kehrer

Chicago Journal of International Law

The 21st century has borne witness to an explosion of human activity of all kinds in space; but the rules that govern that activity have failed to keep pace. The extant international liability regime for damage on Earth caused by space objects has a blind spot that the original framers could not have anticipated: an object launched into space by one nation may now come under the control of another nation—or even a private actor—through cyberwarfare. Moreover, the liability regime has another problem: if an incident involving an object in space results in harm on Earth, the Liability Convention does …

Problems Of Proof For The Ban On Female Athletes With Endogenously High Testosterone Levels, Silver Lin

Chicago Journal of International Law

At the time of this writing, a new International Association of Athletics Federations regulation preventing women with naturally high testosterone from competing in certain international athletics events has reignited the controversy over the male-female distinction in sports and its implications on individuals’ right to compete. A recent case filed by runner Caster Semenya and Athletics South Africa challenging this regulation before the Court of Arbitration for Sport, an arbitral tribunal that adjudicates disputes in international sports, sought to have the regulation overturned as discriminatory against women with a genetic intersex condition. Drawing on established international arbitration law, international norms in …

Enforcement Through The Network: The Network Enforcement Act And Article 10 Of The European Convention On Human Rights, Imara Mcmillan

Chicago Journal of International Law

This Comment explores the conflict between state-described freedom of expression and the autonomy of social media companies to regulate content on their platforms through the lens of the Network Enforcement Act, passed by Germany in 2017, and the freedom of expression clause of the European Convention on Human Rights. The Network Enforcement Act, which compels social media companies to monitor and remove content from their sites which violate certain other provisions of German law, has thrust the issues of intermediary autonomy and censorship-byproxy into the spotlight. Proponents of the law support it as a way to ensure that what is …

Civil Servant Disobedience, Jennifer Nou

Articles

No abstract provided.

Enacted Legislative Findings And Purposes, Jarrod Shobe

University of Chicago Law Review

Statutory interpretation scholarship generally imagines a sharp divide between statutory text and legislative history. This Article shows that scholars have failed to consider the implications of a hybrid type of text that is enacted by Congress and signed by the president, but which looks like legislative history. This text commonly appears at the beginning of a bill under headings such as “Findings” and “Purposes.” This enacted text often provides a detailed rationale for legislation and sets out Congress’s intent and purposes. Notably, it is drafted in plain language by political congressional staff rather than technical drafters, so it may be …

The Failure Of Mixed-Motives Jurisprudence, Andrew Verstein

University of Chicago Law Review

Because legal determinations often turn on motive, and motives are often complex, courts must decide what to do about mixed motives. For example, a boss might fire someone both for lawful reasons relating to job performance and also because of illegal prejudice. Increasingly, courts evaluate such cases under a “ButFor standard,” which finds for the plaintiff only if the defendant would have acted differently but for the bad motive. Put another way, the defendant loses unless the bad motive made some kind of causal difference in outcomes. While this approach is intuitive, I argue that the But-For standard is problematic. …

Testing For Trademark Dilution In Court And The Lab, Barton Beebe, Roy Germano, Christopher J. Sprigman, Joel H. Steckel

University of Chicago Law Review

Federal courts are currently split, even within particular districts, on the basic question of what a plaintiff must show to establish that a defendant’s conduct constitutes trademark dilution by blurring. Federal trademark law defines “dilution by blurring” as “association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark.” In construing this statutory language, a majority of courts have held that to establish blurring, a plaintiff need only show that consumers associate the defendant’s mark with the plaintiff’s famous mark. These courts appear to assume that to the …

Disparate Impact, Unified Law, Nicholas Stephanopoulos

Articles

No abstract provided.

Patents, Property, And Prospectivity, Jonathan Masur, Adam Mortara

Articles

No abstract provided.