Digital Commons Network^™

As Brown Has Waned, Aziz Z. Huq

University of Chicago Law Review

No abstract provided.

Reading Erwin Chemerinsky, Michele Goodwin

University of Chicago Law Review

No abstract provided.

The Problem Of Gender Inequity: The Legacy Of Deborah Rhode, Joanna L. Grossman

University of Chicago Law Review

No abstract provided.

A Cross-Cutting Public Law Scholar For The Ages, Nicole Huberfeld

University of Chicago Law Review

No abstract provided.

What Is Privacy? That’S The Wrong Question, Woodrow Hartzog

University of Chicago Law Review

Every year on the first day of my course on information privacy law, I ask my students to define the concept of privacy. Usu-ally, I get a few different answers, each of which is built around some singular and definitive conceptualization of privacy. Some notions include: Privacy is “control over personal information.” Privacy is “secrecy.” Privacy is the “right to be left alone.” And so on. Then I gently push back, asking my students about notions of privacy that fall outside their definition. Which definition should the law adopt? All of these definitions seem right, yet somehow not enough. I …

Asymmetric Subsidies And The Bail Crisis, John F. Duffy, Richard M. Hynes

University of Chicago Law Review

When individuals are arrested or indicted for a crime, governments have legitimate interests in assuring that those individuals show up for future legal proceedings and also do not cause more social harm in the meanwhile. To serve those legitimate interests, governments may restrain the personal liberty of those presumptively innocent individuals—traditionally accomplished either by incarceration or by release subject to certain sureties and conditions. The choice, in short, is between jail and bail.

Currently, governments skew that choice by subsidizing the costs of jail but not bail. The result—wholly predictable given the size and asymmetric nature of the subsidy—is that …

Federal Corporate Law And The Business Of Banking, Lev Menand, Morgan Ricks

University of Chicago Law Review

The only profit-seeking business enterprises chartered by a federal government agency are banks. Yet there is barely any scholarship justifying this exception to state primacy in U.S. corporate law.

This Article addresses that gap. It reinterprets the National Bank Act (NBA)—the organic statute governing national banks, the heavyweights of the financial sec-tor—as a corporation law and recovers the reasons why Congress wrote this law: not to catalyze private wealth creation or to regulate an existing industry, but to solve an economic governance problem. National banks are federal instrumentalities charged with augmenting the money supply—a delegated sovereign privilege. Congress recruited private …

In Search Of Ordinary Meaning: What Can Be Learned From The Textualist Opinions Of Bostock V. Clayton County?, Sam Capparelli

University of Chicago Law Review

In Bostock v. Clayton County, the Supreme Court held that Title VII protects gay and transgender individuals from employment discrimination. Writing for the majority, Justice Neil Gorsuch adhered to textualist principles and relied on the ordinary public meaning of the phrase “discriminate because of sex.” Despite the ma-jority opinion purportedly not reaching beyond the words of the statute, three other conservatives on the Court accused Justice Gorsuch of legislating from the bench. Central to this Comment, Justice Brett Kavanaugh took exception with how Justice Gorsuch reached his ordinary meaning of the phrase. The debate between these two Justices can be …

It’S All About (Re)Location: Interpreting The Federal Sentencing Enhancement For Relocating A Fraudulent Scheme, Stephen Ferro

University of Chicago Law Review

Section 2B1.1(b)(10) of the U.S. Sentencing Guidelines Manual increases the recommended sentencing ranges for defendants who make fraudulent schemes harder to uncover. In particular, subsection (A) of this Guideline—the relocation enhancement—increases a defendant’s recommended sentence if she “relocated, or participated in relocating, a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory officials.” This provision raises the question: Where is a fraudulent scheme located? The question might have a straightforward answer in cases that involve few defendants and few fraudulent acts. But federal circuit courts have split over how to apply this enhancement to schemes that span multiple …

The Scope Of Evidentiary Review In Constitutional Challenges To Agency Action, Conley K. Hurst

University of Chicago Law Review

When reviewing agency action, the Administrative Procedure Act (APA) instructs courts to “review the whole record or those parts of it cited by a party.” The Supreme Court has interpreted this brief statement as a restriction on the evidentiary scope of judicial review under the APA. Courts may consider only the administrative record compiled by the agency, which includes all materials before the decisionmaker at the time he or she made the decision. The Supreme Court has recognized one exception: plaintiffs may supplement the administrative record if they make a strong showing of bad faith or improper behavior on the …

Defining Forced Labor: The Legal Battle To Protect Detained Immigrants From Private Exploitation, Samantha Sherman

University of Chicago Law Review

Privately run immigration detention facilities allegedly profit from a nation-wide system of forced labor. People detained in these for-profit facilities allege that they are compelled to work—often without pay—under threats of solitary confinement, deprivation of basic necessities, and other serious harms. Advocates have challenged these human rights abuses through a series of class action lawsuits under the Trafficking Victims Protection Act (TVPA). The TVPA’s forced labor provision, codified at 18 U.S.C. § 1589, prohibits the use of “labor or services” obtained by force or coercion. If successful, these lawsuits would not only help vindicate the rights of the hundreds of …

Never Ask A Woman Her Wage: The Constitutionality Of Salary-History Bans, Tyler M. Wood

University of Chicago Law Review

For over a half-century, legislatures have struggled to close the pay gap be-tween men and women. Although the gap has shrunk substantially since Congress passed the Equal Pay Act in 1963, in recent years, progress has slowed to a near standstill. Why has the residual gap remained so persistent? Some argue that employers—by asking applicants to reveal their wage histories and then relying on that information to set future wages—have forced women to carry wage discrimination from job to job. Reacting to this argument, some states and cities have provided a simple solution: ban salary-history inquiries.

This Comment addresses whether …

The Pigouvian Constitution, Peter N. Salib

University of Chicago Law Review

How can lawmakers reduce the skyrocketing rate of gun deaths in the United States? How can they stymie the spread of viral fake news stories designed to under-mine our elections? Certain constitutionally protected activities—like owning a gun or speaking online—can generate social harms. Yet when lawmakers enact regulations to reduce those harms, they are regularly struck down as unconstitutional. In-deed, the very laws designed to most aggressively reduce social harms—like total criminal bans—are the least likely to be upheld. As a result, regulators appear stuck with an unpleasant choice—regulate constitutionally or effectively, but not both.

This Article proposes a novel …

Deal Protection Devices, Albert H. Choi

University of Chicago Law Review

In mergers and acquisitions transactions, a buyer and a seller will often agree to contractual mechanisms (deal protection devices) to deter third parties from jumping the deal and to compensate a disappointed buyer. With the help of auction theory, this Article analyzes various deal protection devices, while focusing on the two most commonly used mechanisms: match rights and target termination fees. A match right gives the buyer a right to “match” a third party’s offer so as to prevent the third party from snatching the target away, while a termination fee compensates the buyer when a third party acquires the …

Federal Rules Of Platform Procedure, Rory Van Loo

University of Chicago Law Review

Tech platforms serve as private courthouses for disputes about speech, lodging, commerce, elections, and reputation. After receiving allegations of defamatory content in top search results, Google must decide between protecting one person’s public image and another's profits or speech. Amazon adjudicates disputes between consumers and third-party merchants about defective or counterfeit items. For many small businesses, layoffs and bankruptcy hang in the balance. This Article begins to uncover the processes that these platforms use to resolve disputes and proposes reforms. Other important businesses that intermediate, such as credit card companies ruling on a disputed charge between a merchant and consumer, …

Vindicating The Right To Be Heard: Due Process Safeguards Against Government Interference In The Clemency Process, Jay Clayton

University of Chicago Law Review

No abstract provided.

Removing Interpretative Barnacles: Counterclaims And Civil Forfeiture, Nicholas Hallock

University of Chicago Law Review

Through civil forfeiture, the federal government can take ownership of property merely by proving it “guilty” by a preponderance of the evidence. The government need not formally accuse its owner of any crime. Yet the procedural mechanisms available to a property owner who wishes to contest a forfeiture are limited, complex, and strictly enforced. A creature of admiralty law, civil forfeiture draws on supplemental provisions of the Federal Rules of Civil Procedure with which many lawyers and federal judges are unfamiliar.

This Comment explores an active circuit split and identifies an undertheorized way for property owners to vindicate their rights: …

Education’S Deep Roots: Historical Evidence For The Right To A Basic Minimum Education, Caroline A. Veniero

University of Chicago Law Review

For decades, the U.S. Supreme Court has left open the question whether the U.S. Constitution protects a right to some amount of education. While such a right is not specifically enumerated in the Constitution, advocates have long argued for the existence of an implicit, fundamental right to a basic minimum education under the Due Process Clause of the Fourteenth Amendment. Recognition of such a right requires grappling with the Supreme Court’s substantive due process jurisprudence. To be a fundamental right, one requirement is that a proposed right have deep roots in U.S. history and tradition. This Comment examines whether the …

Rethinking Nudge: An Information-Costs Theory Of Default Rules, Oren Bar-Gill, Omri Ben-Shahar

University of Chicago Law Review

Policy makers and scholars—both lawyers and economists—have long pon-
dered the optimal design of default rules. From the classic works on “mimicking”
defaults for contracts and corporations to the modern rush to set “sticky” default
rules to promote policies as diverse as organ donation, retirement savings, consumer
protection, and data privacy, the optimal design of default rules has featured as a
central regulatory challenge. The key element driving the design is opt-out costs—
how to minimize them, or, alternatively, how to raise them to make the default sticky.
Much of the literature has focused on “mechanical” opt-out costs—the effort people …

Qualified Immunity's Boldest Lie, Joanna C. Schwartz

University of Chicago Law Review

Qualified immunity shields government officials from damages liability—even if they have violated plaintiffs’ constitutional rights—so long as they have not violated “clearly established law.” The Supreme Court has explained that water-shed cases describing legal requirements—like Graham v. Connor and Tennessee v. Garner—are alone insufficient to clearly establish the law. Instead, the plaintiff must find prior cases applying Graham and Garner to cases with facts virtually identical to their own case, explaining that such factually analogous cases are necessary to put officers on notice of the illegality of their conduct. But do officers actually know about the facts and holdings of …

Organizational Rights In Times Of Crisis, Adam Chilton, Mila Versteeg

University of Chicago Law Review

As populist leaders gain power around the world, democratic governments retreat, and authoritarian states gain power in the international system,¹ it is critical to find levers of resistance. Professors Adam Chilton and Mila Versteeg’s masterful volume, How Constitutional Rights Matter, offers a timely and provocative answer: let’s look to organizations as potential defenders of rights in challenging times.² In a world in which human rights are widely understood as individual rights, it is high time to theorize about how organizations can help vindicate these individual protections.

The specific thesis Chilton and Versteeg promote is that “some rights, once …

The Corpus And The Critics, Thomas R. Lee, Stephen C. Mouritsen

University of Chicago Law Review

Most any approach to interpretation of the language of law begins with a search for ordinary meaning. Increasingly, judges, scholars, and practitioners are highlighting shortcomings in our means for assessing such meaning. With this in mind, we have proposed the use of the tools of corpus linguistics to take up the task. Our proposals have gained traction but have also seen significant pushback. The search for ordinary meaning poses a series of questions that are amenable to evaluation and analysis using evidence of language usage. And we have proposed to use the tools of corpus linguistics—tools for assessing patterns of …

Competing Algorithms For Law: Sentencing, Admissions, And Employment, Saul Levmore, Frank Fagan

University of Chicago Law Review

Algorithms have found their way into courtrooms, college admission committees, and human resource departments. While defendants and other disappointed parties have challenged the use of algorithms on the basis of due process or similar objections, it should be expected that they will also challenge their accuracy and attempt to present algorithms of their own in order to contest the decisions of judges and other authorities. The problem with this approach is that people who can transparently see why they have been algorithmically denied rights or resources can manipulate an algorithm by retrofitting data. Demands for full algorithmic transparency by policy …

The Missing Indian Affairs Clause, Lorianne Updike Toler

University of Chicago Law Review

Congressional plenary power over Native Americans sits in direct conflict with tribal sovereignty. Scholarship and case law justifying plenary power run the gamut from finding an expansive preconstitutional federal plenary power over Native Americans to narrowly reading the Indian Commerce Clause to limit congressional power to trade alone. All claim historical legitimacy, but none has been able to explain why the Indian Affairs Clause from the Articles of Confederation failed to appear in the Constitution or, conversely, why the new federal government never limited itself to regulating Indian trade. The combination of the unexplained textual shrinkage and disharmony between text …

Classaction.Gov, Amanda M. Rose

University of Chicago Law Review

This Essay proposes the creation of a federally run class action website and supporting administration (collectively, Classaction.gov) that would both operate a comprehensive research database on class actions and assume many of the notice and claims-processing functions performed by class action claims administrators today. Classaction.gov would bring long-demanded transparency to class actions and, through forces of legitimization and coordination, would substantially increase the rate of consumer participation in class action settlements. It also holds the key to mitigating other problems in class action practice, such as the inefficiencies and potential abuses associated with multiforum litigation, the limited success of the …

Stickiness And Incomplete Contracts, Julian Nyarko

University of Chicago Law Review

Both economic theory and legal theory assume that sophisticated parties routinely aim to write contracts that are optimal, in the sense of maximizing the parties’ joint surplus. But more recent studies analyzing corporate and government bond agreements have suggested that some contract provisions are highly path dependent, or “sticky,” with future agreements only rarely improving upon previous ones.

Analyzing half a million contracts using automated text analysis, this Article demonstrates that the stickiness hypothesis explains the striking lack of dispute resolution clauses that can be found in agreements between even the most sophisticated commercial parties. When drafting these contracts, external …

The Comparative Constitutional Law Of Presidential Impeachment, Tom Ginsburg, Aziz Huq, David Landau

University of Chicago Law Review

With the charging and acquittal of President Donald Trump, impeachment once again assumed a central role in U.S.constitutional law and politics. Yet because so few impeachments, presidential or otherwise, have occurred in U.S history, we have little understanding of how removing presidents in the middle of a term alters the direction or quality of a constitutional democracy. This Article illuminates the appropriate scope and channels of impeachment by providing a comprehensive description of the law and practice of presidential removal in the global frame. We first catalog possible modalities of impeachment through case studies from South Korea, Paraguay, Brazil, and …

Proximate Cause Explained: An Essay In Experimental Jurisprudence, Joshua Knobe, Scott J. Shapiro

University of Chicago Law Review

One of the oldest debates in American jurisprudence concerns the concept of “proximate cause.” According to so-called formalists, the legal concept of proximate cause is the same as the ordinary concept of “cause.” The legal question of whether a cause is proximate for the purposes of establishing tort liability, therefore, is an objective matter about the external world determinable by familiar descriptive inquiry. By contrast, legal realists think that issues of proximate causation are disguised normative questions about responsibility. As the realists William Prosser and W. Page Keeton put it, proximate cause is better called “responsible cause.”

Recent work in …

A Class Of One: Multiracial Individuals Under Equal Protection, Desirée D. Mitchell

University of Chicago Law Review

When it comes to recognizing multiracial individuals under the Equal Protection Clause, courts have fallen short. Only rarely do courts explicitly identify multiracial plaintiffs as just that—multiracial. Instead, the majority of courts revert to a “one-drop” rule in which they view plaintiffs as only one part of their self-identified racial composition. In doing so, the unique identities and experiences of multiracial individuals remain unaddressed. This Comment builds off previous scholarship by arguing that courts can and should do better at recognizing multiracial plaintiffs in equal protection cases by using a “class-of-one” framework. Under that doctrine, the Supreme Court has held …

Judge Wood Meets International Tax, Julie Roin

University of Chicago Law Review

There is always a danger in having courts of general jurisdiction rule on issues involving the application of technical pieces of specialized legislation. Judges in these courts generally lack the background necessary to understand the interactions between the particular issue(s) under scrutiny and the larger legislative or regulatory picture. And unfortunately, the parties, usually operating under strict space constraints in their briefs, often fail to educate the judges about that larger picture. That is the situation Judge Diane Wood found herself in twenty-two years ago when it fell to her to write the opinion in Amoco Corp v Commissioner of …