Digital Commons Network^™

On Trust, Law, And Expecting The Worst, Elizabeth F. Emens

Faculty Scholarship

This Review has three parts. Part I aims to convey something of the breadth and interest of Hasday’s fascinating new book, foregrounding the role of gender and beginning to touch the subject of trust. Part II delves briefly but widely into the theme of trust, which pervades the book and invites further examination. Part III presents a framework that combines affective trust and epistemic curiosity and applies this framework to illuminate and sort Hasday’s proposals for reform; to critique a recent, dramatic change in the evidentiary treatment of marital confidences; and to devise a novel approach to prenuptial agreements. Throughout, …

The Rise And Fall Of Transcendent Constitutionalism In The Civil War Era, Cynthia Nicoletti

Faculty Scholarship

In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress sought to translate the war's nationalistic spirit into text. But in the eyes of many contemporary thinkers, the war's centripetal energy was a doubleedged sword. It could create a nation out of disparate parts, but it was also potentially uncontainable, divorced from the regular lawmaking process and beyond the control of human actors. As a result, many American jurists …

Complete Contracts In Finance, Elisabeth De Fontenay

Faculty Scholarship

Notwithstanding its significant influence in corporate finance, the theory of incomplete contracts is arguably misunderstood by courts enforcing contracts governing corporate transactions. In resolving such disputes, judges implicitly assume that complete contracts are both achievable and desirable when the parties are financially sophisticated, and they systematically assign blame to one of the parties for leaving the contract incomplete. This, in turn, prompts parties to write ever longer and more complex agreements. Such agreements do not necessarily produce more efficient outcomes, however. In fact, they may yield unexpected outcomes or interpretations, which can be enforced opportunistically by one of the parties …

Populism And International Human Rights Law Institutions: A Survival Guide, Laurence R. Helfer

Faculty Scholarship

Confronting hostile governments is nothing new for international human rights courts, treaty bodies, and other monitoring mechanisms. Yet there is a growing sense that the recent turn to populism poses a new type of threat that international human rights law (IHRL) institutions are ill equipped to meet. This chapter begins by identifying the facilitating conditions that have, until recently, supported the international human rights system. It then assesses the distinctive challenges that populism poses to IHRL institutions. Turning from diagnosis to prescription, the chapter reviews a range of legal and political tools that might be deployed to address those challenges …

Do Patent Law Suits Target Invalid Patents?, Michael Frakes, Melissa F. Wasserman

Faculty Scholarship

One objective of the patent litigation system is to screen meritorious from non-meritorious patents and invalidate the latter. While much of this screening may occur at trial, some amount of targeting may take place at the time of the filing of the suit itself. In this chapter, we assess the targeting efficiency of the patent litigation system at this earlier filing stage. Should the system indeed screen at this stage, one would predict a higher likelihood of patent lawsuits among a set of patents with weaker underlying validity relative to a set of patents with stronger underlying validity. In prior …

Genetic Evidence, Maoa, And State V. Yepez, Nita A. Farahany, Roderick T. Kennedy, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Investigating Intersections Of Corporate Governance & Compliance, Veronica Root Martinez

Faculty Scholarship

In April 2019, Notre Dame Law in London hosted a conference entitled “Investigating Intersections of Corporate Governance & Compliance” with scholars from the United States, United Kingdom, and Ireland participating. The goal of the conference was to facilitate dialogue within and amongst legal scholarly disciplines regarding the ways in which governance and compliance intersect. The effort was a resounding success, and The University of Chicago Law Review Online graciously agreed to publish the six papers presented at the conference. This is the introduction to the symposium.

The Transparency Of Jail Data, William E. Crozier, Brandon L. Garrett, Arvind Krishnamurthy

Faculty Scholarship

Across the country, pretrial policies and practices concerning the use of cash bail are in flux, but it is not readily possible for members of the public to assess whether or how those changes in policy and practice are affecting outcomes. A range of actors affect the jail population, including: law enforcement who make arrest decisions, magistrates and judges who rule at hearings on pretrial conditions and may modify such conditions, prosecutors and defense lawyers who litigate at hearings, pretrial-service providers who assist in evaluation and supervision of persons detained pretrial, and the custodian of the jail who supervises facilities. …

The Fallacy Of Director Independence, Yaron Nili

Faculty Scholarship

Director independence has become a key cornerstone of the contemporary corporate governance landscape. Over the past few decades, the composition of public firms’ boards of directors in the United States has changed dramatically, shifting towards an increased reliance on directors labeled as “independent.” Courts, regulators, and investors have come to increasingly rely on these independent directors and have made their presence on boards a priority.

However, despite the increased attention, the current system of selecting, anointing, and ensuring director independence is laden with gaps. This Essay highlights three key issues with the current independence framework. First, the current designation and …

Institutional Choice And Targeted Killing: A Comparative Perspective, Elad D. Gil

Faculty Scholarship

For over a decade, the use of targeted killing has been one of the most controversial issues in counterterrorism policy and law. One longstanding debate over this tactic concerns the allocation of decision-making and oversight authority among the branches of government. As attempts to settle this debate through textual and historical sources yield indeterminant answers, scholars tend to examine them through a functionalist prism, asking what institutional structures best serve the interests of national security while ensuring adequate accountability and preventing unnecessary force.

This article, retaining that functionalist framing of that issue, will approach the question through a comparative law …

Injustice And The Disappearance Of Discretionary Detention Under Trump: Detaining Low Risk Immigrants Without Bond, Robert Koulish, Kate Evans

Faculty Scholarship

This Report demonstrates that the Immigration and Customs Enforcement (ICE) violates legal requirements to provide immigrants with an individualized custody determination. Trump’s enforcement policies brought a surge of low-risk immigrants into ICE custody. The detention risk tool was supposed to train officers and strongly discourage them from detaining low-risk immigrants who posed no harm to society and were not a flight risk. Data received pursuant to FOIA show the opposite result. ICE has failed to perform the individualized assessment and restrict its use of civil detention to only those whose high levels of dangerousness and risk of flight justify their …

Packing And Unpacking State Courts, Marin K. Levy

Faculty Scholarship

When it comes to court packing, questions of “should” and “can” are inextricably intertwined. The conventional wisdom has long been that federal court packing is something the President and Congress simply cannot do. Even though the Constitution’s text does not directly prohibit expanding or contracting the size of courts for political gain, many have argued that there is a longstanding norm against doing so, stemming from a commitment to judicial independence and separation of powers. And so (the argument goes), even though the political branches might otherwise be tempted to add or subtract seats to change the Court’s ideological makeup, …

The Paradoxical Impact Of Scalia's Campaign Against Legislative History, Stuart Minor Benjamin, Kristen M. Renberg

Faculty Scholarship

Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia’s position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with greater support from ideological conservatives. In this Article, we consider the role that political party and timing of judicial nomination played in circuit judges’ use of legislative history. Specifically, we hypothesize that Republican circuit judges were more likely to respond to the attacks on legislative …

Exemplary Legal Writing 2019: Books: Five Recommendations, Femi Cadmus, Casandra Laskowski

Faculty Scholarship

A brief review of five recommended exemplary legal books published in 2019.

Firearms, Extreme Risk, And Legal Design: "Red Flag" Laws And Due Process, Joseph Blocher, Jacob D. Charles

Faculty Scholarship

The most prominent recent development in gun regulation has been the spread of extreme risk protection order (ERPO) laws—often called “red flag” laws—which permit the denial of firearms to individuals who a judge has determined present an imminent risk of harm to themselves or others. Following a wave of adoptions in the wake of the Parkland murders, such orders are now authorized by law in eighteen states and the District of Columbia, and under consideration in many others. Advocates argue that they provide a tailored, individualized way to deter homicide, suicide, and even mass shootings by providing a tool for …

Sandra Day O’Connor’S "First" Principles: A Constructive Vision For An Angry Nation, Lisa Kern Griffin

Faculty Scholarship

During her 25-year tenure on the Supreme Court, Justice Sandra Day O’Connor cast the decisive votes to resolve the most emotional debates, yet she maintained collegiality among the Justices and retained the public’s high regard. A recent biography by historian and journalist Evan Thomas chronicles her extraordinary personal qualities, remarkable professional journey, and constructive brand of patriotism. This book review essay describes a legacy in three parts: a lived example of how to thrive in the face of challenges, a jurisprudence driven by the courage to make compromises, and a theory about the long game of American democracy. First reintroduces …

South Atlantic Mpas And Oculina Hapc: Characterization Of Fish Communities, Benthic Habitat, And Benthic Macrobiota Final Report For 2018-2019 Noaa Ship Pisces Cruises (18-02, 19-02)., Stacey Harter, John K. Reed, Stephanie Farrington

Faculty Scholarship

The South Atlantic Fishery Management Council (SAFMC) and Department of Commerce through the Magnuson-Stevens Fishery Management Act have established eight deepwater Marine Protected Areas (MPAs), five deepwater Coral Habitat Areas of Particular Concern (CHAPCs), and the Oculina Coral HAPC along the outer continental shelf off the southeastern U.S. This project proposed to document and characterize the benthic habitat, benthic sessile biota, and fish populations within some of these protected areas and within the jurisdiction of the SAFMC. In February 2009, the SAFMC implemented eight Type II MPAs between Cape Hatteras, NC and the Florida Keys to protect seven species of …

Title Ix And Official Policy Liability: Maximizing The Law’S Potential To Hold Education Institutions Accountable For Their Responses To Sexual Misconduct, Erin E. Buzuvis

Faculty Scholarship

Title IX, the federal statute that prohibits sex discrimination in education, plays a key role in institutional accountability for sexual misconduct that is perpetrated by a school’s students, faculty, and staff. The Supreme Court has confirmed that Title IX includes an implied right of action for money damages when the institution had actual notice that sexual harassment had occurred, or was likely to occur, and responded to that threat with deliberate indifference. But the deliberate indifference standard has proven to be a high and unpredictable bar for plaintiffs. For this reason, many institutions required the threat of government enforcement—issued in …

Foreword, Sudha Setty

Faculty Scholarship

In November 2019, the Western New England Law Review held its symposium, On Account of Sex: Women’s Suffrage and the Role of Gender in Politics Today. The symposium articles ask us to look at history to see what factors enabled path-breaking activists to secure the right to vote in a time of immense national turmoil. They also ask us to weigh how history should assess the strategic decisions that ultimately gained political rights for some women, but deliberately excluded Black women and other activists.

These historical accounts help us consider how the right to vote is faring, particularly after …

The Long Tail Of World War Ii: Jus Post Bellum In Contemporary East Asia, Timothy Webster

Faculty Scholarship

The shadow of World War II still looms over East Asia. Unlike the West, issues of state accountability, corporate liability, and individual reparation roil the victims, governments, and civil society organizations. It stills form a critical, often controversial, backdrop for international relations among China, Japan, Korea, and other Asian nations. This chapter fills an important gap by focusing on jus post bellum outside of the West. The chapter examines the results, motivations, and achievements of civil litigation, namely approximately one hundred World War II reparations lawsuits filed in Japan. In so doing, it answers three related questions. Why does World …

Lockean Copyright Versus Lockean Property, Mala Chatterjee

Faculty Scholarship

Locke’s labor theory, the most familiar of property theories, has faced centuries of philosophical criticism. Nonetheless, recent legal scholars have applied it to intellectual property while overlooking these philosophical critiques. Philosophers, on the other hand, are largely absent in IP theorizing, thus not asking whether Locke’s resilient intuition is salvageable in copyright’s domain. This Article argues that Lockean copyright is actually far more plausible than Lockean property, for it avoids the most devastating objections the latter faces. It then defends a surprising doctrinal implication of this theoretical conclusion: a workable Lockean copyright favors rights far more limited than present law.

Making Sense Of Customary International Law, Monica Hakimi

Faculty Scholarship

This Article addresses a longstanding puzzle about customary international law (CIL): How can it be, at once, so central to the practice of international law — routinely invoked and applied in a broad range of settings — and the source of such persistent confusion and derision? The centrality of CIL suggests that, for the many people who use it, it is not only comprehensible but worthwhile. They presumably use it for a reason. But then, what accounts for all the muddle and disdain?

The Article argues that the problem lies less in the everyday operation of CIL than in the …

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less …

Restructuring Vs. Bankruptcy, Jason Roderick Donaldson, Edward R. Morrison, Giorgia Piacentino, Xiaobo Yu

Faculty Scholarship

We develop a model of a firm in financial distress. Distress can be mitigated by filing for bankruptcy, which is costly, or preempted by restructuring, which is impeded by a collective action problem. We find that bankruptcy and restructuring are complements, not substitutes: Reducing bankruptcy costs facilitates restructuring, rather than crowding it out. And so does making bankruptcy more debtor-friendly, under a condition that seems likely to hold now in the United States. The model gives new perspectives on current relief policies (e.g., subsidized loans to firms in bankruptcy) and on long-standing legal debates (e.g., the efficiency of the absolute …

The Economics Of Leasing, Thomas W. Merrill

Faculty Scholarship

Leasing may be the most important legal institution that has received virtually no systematic scholarly attention. Real property leasing is familiar in the context of residential tenancies. But it is also widely used in commercial contexts, including office buildings and shopping centers. Personal property leasing, which was rarely encountered before World War II, has more recently exploded on a world-wide basis, with everything from autos to farm equipment to airplanes being leased. This article seeks to develop a composite picture of the defining features of leases and why leasing is such a widespread and highly successful economic institution. The reasons …

For Coöperation And The Abolition Of Capital, Or, How To Get Beyond Our Extractive Punitive Society And Achieve A Just Society, Bernard E. Harcourt

Faculty Scholarship

In hindsight, the term "capitalism" was always a misnomer, coined paradoxically by its critics in the nineteenth century. The term misleadingly suggests that the existence of capital produces a unique economic system or that capital itself is governed by economic laws. But that's an illusion. In truth, we do not live today in a system in which capital dictates our economic circumstances. Instead, we live under the tyranny of what I would call "tournament dirigisme": a type of state-directed gladiator sport where our political leaders bestow spoils on the wealthy, privileged elite.

We need to displace this tournament dirigisme with …

Coordinating Injunctions, Bert I. Huang

Faculty Scholarship

Consider this scenario: Two judges with parallel cases are each ready to issue an injunction. But their injunctions may clash, ordering incompatible actions by the defendant. Each judge has written an opinion justifying her own intended relief, but the need to avoid conflicting injunctions presses her to make a further choice – “Should I issue the injunction or should I stay it for now?” Each must make this decision in anticipation of what the other will do.

This Article analyzes such a judicial coordination problem, drawing on recent examples including the DACA cases and the “sanctuary cities” cases. It then …

Intellectual Property Law And Redressive Autonomy, Shyamkrishna Balganesh

Faculty Scholarship

Intellectual property law remains a body of private law, but for reasons that transcend its reliance on ideas and concepts from the common law of property and tort. This essay argues that the connection between forms of intellectual property law and private law is rooted in a form of autonomy that characterizes private law regimes — known as “redressive autonomy.” It shows how a strong commitment to redressive autonomy undergirds the unique right–duty structure of intellectual property, informs intellectual property’s central doctrines, and injects an additional layer of normative complexity into its functioning.

Agency Problems And Organizational Costs In Slave-Run Business, Barbara Abatino, Giuseppe Dari-Mattiacci

Faculty Scholarship

This chapter examines the internal economic organization of the peculium servi communis — that is, of separate business assets assigned to a slave — and its (external) relationships with creditors. Literary, legal, and epigraphic evidence points predominantly to businesses of small or medium size, suggesting that there must have been some constraints to growth. We identify both agency problems arising within the business organization (governance problems) and agency problems arising between the business organization and its creditors (limited access to credit). We suggest that, although the praetorian remedies had a remarkable mitigating effect, agency problems operated as a constraint to …

The Dual Origin Of The Duty To Disclose In Roman Law, Barbara Abatino, Giuseppe Dari-Mattiacci

Faculty Scholarship

The Roman law remedies for failure to disclose in sales contracts were developed by two different institutions: that of the aediles, with jurisdiction on market transactions effected through auctions, and that of the praetor, with general jurisdiction including private transactions. The aedilician remedies — the actiones redhibitoria and quanti minoris — allowed for rapid transactions and inexpensive litigation but generated some allocative losses ex post, as they did not incentivize the parties to exchange information about idiosyncratic characteristics of the goods for sale. In contrast, the remedy developed by the praetor — the actio ex empto — implied …