Digital Commons Network^™

Inequality By Unnatural Selection: The Impact Of Tax Code Bias On The Racial Wealth Gap, Phyllis C. Taite

Faculty Articles

No abstract provided.

The Fall Of An American Lawyer, Michael Ariens

Faculty Articles

John Randall is the only former president of the American Bar Association to be disbarred. He wrote a will for a client, Lovell Myers, with whom Randall had been in business for over a quarter-century. The will left all of Myers’s property to Randall, and implicitly disinherited his only child, Marie Jensen. When Jensen learned of the existence of a will, she sued to set it aside. She later filed a complaint with the Iowa Committee on Professional Ethics and Conduct. That complaint was the catalyst leading to Randall’s disbarment.

Randall had acted grievously in serving as Lovell Myers’s attorney. …

Anti-Discrimination Ethics Rules And The Legal Profession, Michael Ariens

Faculty Articles

“Reputation ought to be the perpetual subject of my Thoughts, and Aim of my Behaviour. How shall I gain a Reputation! How shall I Spread an Opinion of myself as a Lawyer of distinguished Genius, Learning, and Virtue.” So wrote twenty-four-year-old John Adams in his diary in 1759. He had been a licensed lawyer for just three years at that time and had already believed himself to be hounded by “Petty foggers” and “dirty Dablers in the Law”—unlicensed attorneys who, Adams claimed, fomented vexatious litigation for the fees they might earn.

Adams believed his embrace of virtue, along with genius …

The Cost Of Unstable Property: Oil, Gas, And Other Confusing Mineral Interests, Chad J. Pomeroy

Faculty Articles

Most people think of property as a thing: a chunk of land or a piece of personal property. Most lawyers, hopefully, have a more sophisticated view and think of property as a set of rights that exists with respect to a thing and governs how one interacts with that thing vis-a-vis other people. But even that nuance is not refined enough for an oil and gas lawyer. Such a practitioner does, of course, view ownership as a set of rights, but the thing at hand is not just a piece of real property or the part of the land that …

Countermajoritarian Criminal Law, Michael L. Smith

Faculty Articles

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people's actions. Recent scholarship has criticized not only the scope and impact of these laws but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by …

Angels, Virgins, Demons, Whores: Moving Towards An Antiracist Praxis By Confronting Modern Investment Law Scholarship, Tara Van Ho

Faculty Articles

Racism is not a natural phenomenon. Historically, it was socialised into global exist existence through intentional acts that have become embedded parts of the international legal order and domestic social systems. Rejecting racism and developing alternative antiracist approaches similarly require intentionality. One area of concern for scholars is how our linguistic and framing choices perpetuate or reproduce racialised hierarchies. In this article, I employ I. Bennett Capers's 'Reading Black' methodology to interrogate racialised narratives embedded in four contributions to modern international investment law debates. The purpose is not to condemn the individual authors but to identify how the socialisation and …

Media Paratext And Constitutional Interpretation, Benjamin J. Priester

Faculty Articles

In the fields of media studies and fan studies, the concept of paratext is an analytical paradigm for understanding how audiences consume and interpret media texts, such as a novel or movie. Amid today's media-rich society, it is all but impossible to encounter a media text in isolation. Rather, we also invariably interact with a wide variety of associated paratexts, from official materials like trailers or marketing to unofficial materials like reviews or fan reactions, which play a role in shaping our interpretation of the core media text. This concept of media paratext provides a compelling analogy for constitutional interpretation. …

The Breakdown Of The Public–Private Divide In Securities Law: Causes, Consequences, And Reforms, George S. Georgiev

Faculty Articles

As a regulatory scheme, U.S. securities law has traditionally been designed around a set of lines—the “public–private divide”—which separate public companies, public capital, and public markets, from private companies, private capital, and private markets. Until the early 2000s, the lines were successful in establishing two largely coherent legal realms—a highly regulated public realm and a lightly regulated private realm. A series of bold and often-inconsistent reforms between 2002 and 2020, however, have transformed this longstanding regime into a low-friction system wherein public capital flows to both public and private companies, private capital is ever more abundant, and firms can effectively …

Life Course In Hearts: Enhancing Telehealth Resilience And Mindfulness Intervention In Older Adults Experiencing Abuse And Trauma-A Conceptualization, Mary Dioise Ramos

Faculty Articles

Advances in research and evidence-based practice improve the prevention and treatment of diseases, but the marginalized seems to be left behind. The purpose of this paper is to conceptualize a telehealth intervention aimed to improve the health and health span of older adults. More particularly, we articulate the conceptual framework underlying our intervention, Telehealth Resilience Mindfulness (TRM) Intervention, which will be delivered via text messaging (for those who have phones or smartphones), video conferencing such as Zoom (for those with internet connectivity), or in-person (when it is practical) to older adults to enhance HEARTS (health, experiences of abuse and trauma, …

The Non-Consequentialist Uses Of Economic Analysis: A Comment On Dagan And Kreitner, Economic Analysis In Law, Lewis A. Kornhauser

Faculty Articles

In this essay, I focus on the uses of economic analysis in non-consequentialist evaluations. I proceed in two steps. First, I consider the applications that Dagan and Kreitner suggest in their Part III. I argue that (a) economic analysis has already contributed to these inquiries; and (b) that Dagan and Kreitner have not adequately specified the task to be undertaken. Second, I argue, through an extended example, that Dagan and Kreitner have overlooked arguably the most significant use of economic analysis in non-consequentialist evaluation: the investigation of the logical relation among various values that we may endorse.

Anti-Modalities, David E. Pozen, Adam M. Samaha

Faculty Articles

Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters—the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the “anti-modalities” of …

A Podcast Of One’S Own, Leah M. Litman, Melissa Murray, Katherine Shaw

Faculty Articles

In this short Essay, we discuss the lack of racial and gender diversity on and around the Supreme Court. As we note, the ranks of the Court’s Justices and its clerks historically have been dominated by white men. But this homogeneity is not limited to the Court’s members or its clerks. As we explain, much of the Court’s broader ecosystem suffers from this same lack of diversity. The advocates who argue before the Court are primarily white men; the experts cited in the Court’s opinions, as well as the experts on whom Court commentators rely in interpreting those opinions, are …

Codifying Constitutional Norms, Jonathan S. Gould

Faculty Articles

Ours is an era of fraying constitutional norms. Norms that long governed the conduct of public officials have in recent years been violated by the White House, in Congress, and in the states. In the face of threats to constitutional norms, some have proposed codifying constitutional norms—that is, enacting their content into law. This Article examines the dynamics around codifying constitutional norms. It begins by showing that codification efforts face both practical and legal barriers. Practically, it can be difficult to define the precise contours of a constitutional norm and to codify a norm in a polarized political environment. Legally, …

How Racial Politics Led Directly To The Enactment Of The Adoption And Safe Families Act Of 1997 - The Worst Law Affecting Families Ever Enacted By Congress, Martin Guggenheim

Faculty Articles

This Article is part of a celebration of the magnificent work of Dorothy Roberts who, more than any other scholar, has brilliantly demonstrated both the highly destructive qualities of the United States’ family regulation system and its relationship to the country’s legacy of slavery. The most vicious feature of the current family regulation system is the almost routine destruction of families resulting from an overly zealous enforcement of the Adoption and Safe Families Act of 1997, through which the federal government pays states to permanently banish parents from their children and legally sever the parent-child relationship when children have remained …

Behind Bartkus: A Flamboyant Lawyer, A Vindictive Judge, And The Untold Story Of Double Jeopardy’S Dual Sovereignty, Stephen E. Henderson, Dean Strang

Faculty Articles

A young defense attorney earns his client, charged in federal court with bank robbery, a jury acquittal. (It’s the attorney’s first.) One would expect the impartial judge to thank the jury for its service. Instead, this one harangues both jury and defense attorney (“entailing changes in his complexion from red to purple to dead white”), publicly rails against the verdict, attempts to bar the jurors from future service, refuses to release the defendant, and successfully prods prosecutors to bring a duplicative state prosecution that would end in conviction for the same crime. To anyone who respects the rule of law—or …

Can Prosecutors End Mass Incarceration?, Rachel E. Barkow

Faculty Articles

Emily Bazelon argues in her excellent book, Charged, that “[t]he movement to elect a new kind of prosecutor is the most promising means of reform . . . on the political landscape.” While I share Bazelon’s enthusiasm for prosecutors committed to using empirical evidence to guide their policymaking, instead of reflexively supporting the most punitive policies because those measures traditionally played well with voters, I am less optimistic this new breed of so-called progressive prosecutors will make a significant dent in mass incarceration. In this review, I explain why. Bazelon is right that prosecutors have enormous discretion to decide how …

In Tribute To My Friend, Justice Ruth Bader Ginsburg, Aka “Notorious Rbg”, Harry T. Edwards

Faculty Articles

Tribute by Hon. Harry T. Edwards in memoriam of Justice Ruth Bader Ginsburg.

Faster Fashion: The Piracy Paradox And Its Perils, Kal Raustiala, Christopher J. Sprigman

Faculty Articles

Fashion today is faster than ever and knockoffs more common, but fashion copying is nothing new. For over a century the fashion industry has bemoaned the ubiquity and ease of copying. Writing in 1916, one industry observer explained the problem: Despite “the expense of thousands of dollars to create a design…copies appeared within forty-eight hours. The only recourse was multiplicity and rapidity of design at such frequent intervals that competitors would lag behind.” Copyists could not be defeated in the marketplace or in court. They could only be outraced. The story is unchanged today. Seeking to explain how the fashion …

Proximate Cause Untangled, Mark A. Geistfeld

Faculty Articles

The many facets of tort liability are filtered through the requirement of proximate cause, which has made the element confusing and the source of considerable controversy. Is proximate cause properly determined by the directness test or the foreseeability test, each of which has been both widely adopted and roundly criticized? Is there any defensible conception of a direct cause? Is foreseeability an adequately determinate method for limiting liability? If so, is foreseeability relevant to duty, to proximate cause, or to both elements? Disagreement about all these matters stems from the failure to fully untangle the role of proximate cause across …

Federalism And Federal Rights Minimalism: Overlooked Effects On State Court Education Litigation In Wisconsin, Helen Hershkoff, Nathan D. Yaffe

Faculty Articles

In 1973, the U.S. Supreme Court in San Antonio Independent School District v. Rodriguez held that education is not a fundamental right under the Fourteenth Amendment and that the Equal Protection Clause did not bar the state of Texas from using a system of school funding that produced radically unequal educational opportunities for students in low-wealth communities relative to those in more affluent districts. Federal defeat is said to have incentivized advocates seeking to improve and equalize public schooling to turn in their litigation efforts from federal court to state courts and from the Federal Constitution to state constitutions, which …

Birth Rights And Birth Wrongs Through A Common Law Lens: Why The No Liability Regime Is Likely To Endure, Richard A. Epstein

Faculty Articles

A saga in four parts: Dov Fox’s recent book, the aptly named Birth Rights and Wrongs, is, as its title suggests, a study of the stark conflicts that arise in the highly contested area of reproductive rights. Fox makes the powerful case that the legal protection of reproductive rights, in all their protean forms, is systematically under-protected relative to two key benchmarks: the standards of ordinary decency, and social expectations. In my view, he has an acute awareness of these failures. But his greatest strength is also his greatest weakness, as he systematically ignores the great successes wrought through the …

Assessing The Rights To Water And Sanitation: Between Institutionalization And Radicalization, Margaret L. Satterthwaite

Faculty Articles

In the past two decades, the human rights to water and sanitation have emerged, matured, and taken their place at the center of discussions about rights, sustainable development, global health, and climate change. While there was early hope that these rights—especially the right to water—would provide a strong basis for rejecting the commodification of essential services spurred by neoliberalism, as they were institutionalized, the rights to water and sanitation have in many places been tamed, if not neutralized. However, while the human rights framework concerning water and sanitation has accommodated powerful economic imperatives, it still holds promise as a vehicle …

The Aoc In The Age Of Covid - Pandemic Preparedness Planning In The Federal Courts, Zoe Niesel

Faculty Articles

The 2020 COVID-19 pandemic created a crisis for American society—and the federal courts were not exempt. Court facilities came to a grinding halt, cases were postponed, and judiciary employees adopted work-from-home practices. Having court operations impacted by a pandemic was not a new phenomenon, but the size, scope, and technological lift of the COVID-19 pandemic was certainly unique.

Against this background, this Article examines the history and future of pandemic preparedness planning in the federal court system and seeks to capture some of the lessons learned from initial federal court transitions to pandemic operations in 2020. The Article begins by …

Seeing Those We’Ve Rendered Invisible – A Clarion Call For Criminal Justice, Stephen E. Henderson, Jordan Thomas

Faculty Articles

Jonathan Rapping, Gideon’s Promise: A Public Defender Movement to Transform Criminal Justice (Beacon Press 2020) In this brief review, we situate Rapping’s work among those demanding criminal justice reform, praise an unrelated bonus, and propose a friendly amendment to nudge his vision over the finish line of justice. It will not be enough to provide newly enabled and supported public defenders to those our systems consider indigent. We ought to provide them to us all.

Uncertain Risk, Science Experiments, And The Courts, Eric E. Johnson

Faculty Articles

Legal scholarship has looked at problems of uncertainty--"unknown unknowns"--in a variety of contexts, from financial regulation to national security. This Article, however, focuses on uncertain risk in what may be its most challenging arena: experimental scientific research. Notably, this context imposes a key conceptual hurdle. In other arenas, law and regulation can work to lessen uncertainty. But with science-experiment risk, uncertainty cannot be sidestepped, since going beyond the current state of human knowledge is the whole point of experimental research. Moreover, science-experiment risk involves the highest possible stakes, since future experiments could plausibly lead to global catastrophe, even human extinction. …

Four Futures For U.S. Pandemic Policy, Daniel J. Hemel

Faculty Articles

The COVID-19 pandemic is probably not the last time that a new and deadly infectious disease will sweep the planet. What can the United States do to improve its chances of averting large-scale loss of life the next time? This essay—prepared for The University of Chicago Legal Forum’s symposium issue on “Law for the Next Pandemic”—envisions four “futures” for the United States’ pandemic response and considers the advantages and drawbacks of each. One approach, the Mass Surveillance strategy, relies on widespread population monitoring, rigorous contact tracing, and enforced isolation of the infected. That strategy has enabled several East and Southeast …

Keeping The Compact Clause Irrelevant, Roderick M. Hills Jr.

Faculty Articles

This Essay is a lightly edited version of Professor Hills’ remarks at the Federalist Society’s Panel, “The Compact Clause,” held on March 14, 2020 and in dialogue with Eugene B. Meyer and Professors Jonathan H. Adler and Michael S. Greve. I want to say a few words, some sounding in law and some sounding in policy, about why I think the Compact Clause should continue to be, as it has always been, ignored by all relevant constitutional actors. That is not to say we should not acknowledge the Compact Clause is in the Constitution, but we should treat that Clause …

The Essential Role Of Empirical Analysis In Developing Law And Economics Theory, Jennifer H. Arlen

Faculty Articles

Throughout its history, the development of theoretical law and economics has depended on, and been shaped by, empirical analyses of law. Theoretical law and economics scholars cannot draw persuasive positive or normative conclusions about legal rules unless the models employed accurately capture the factors affecting people’s responses to legal rules. Models thus must accurately describe decision-makers’ decision-making environment, available choices, and decision-making processes. Empirical analysis plays a vital role in theoretical scholars’ ability to develop such models. Empirical analyses can improve theoretical models by testing the predictions of models; refuted theoretical predictions regularly spur lead theoreticians to revise and improve …

Validation Capital, Alon Brav, Dorothy Lund, Edward B. Rock

Faculty Articles

Although it is well understood that activist shareholders challenge management, they can also serve as a shield. This Article describes “validation capital,” which occurs when a bloc holder’s—and generally an activist hedge fund’s—presence protects management from shareholder interference and allows management’s pre-existing strategy to proceed uninterrupted. When a sophisticated bloc holder with a large investment and the ability to threaten management’s control chooses to vouch for management’s strategy after vetting it, this support can send a credible signal to the market that protects management from disruption. By protecting a value-creating management strategy that might otherwise be misjudged, providers of validation …

Hidden Voices: Reimagining Racial Violence, Peggy C. Davis, Zachary Mason

Faculty Articles

Historians have struggled to overcome the limitations of archives that record the presence, but rarely capture the voices, of marginalized people. In her prize-winning book, Wayward Lives, Beautiful Experiments, Saidiya Hartman offers histories of African American women at the turn of the 20th century. Hartman works from archives that contain sparse and primarily bureaucratic information about her subjects, and few, if any, of their own words and thoughts. She therefore fills in unknowable experiences and subjective states to imagine lives lost to history. Conventionally verifiable facts and preserved photographic images are chord progressions upon which Hartman improvises plausibly harmonious lived …