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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 …

Tort Liability And The Risk Of Discriminatory Government, Ehud Guttel, Ariel Porat

University of Chicago Law Review

When individuals and firms fail to invest in adequate care, the government often steps in, taking costly measures to restore safety or mitigate harm. Under such circumstances, a question arises as to whether the government can demand recovery for its costs. For many years, the answer has been negative; tort law has persistently refused to render negligent individuals and firms liable for governmental expenditures. Yet recently, the law changed markedly. Recognizing that the no-liability regime subsidizes faulty behavior, an increasing number of jurisdictions have established the right of public entities to sue for reimbursement of costs. Against this backdrop, this …

A Network Theory Of Patentability, Laura G. Pedraza-Fariña, Ryan Whalen

University of Chicago Law Review

Patent law is built upon a fundamental premise: only significant inventions receive patent protection while minor improvements remain in the public domain. This premise is indispensable for maintaining an optimal balance between incentivizing new innovation and providing public access to existing innovation. Despite its importance, the doctrine that performs this gatekeeping role—nonobviousness— has long remained indeterminate and vague. Judicial opinions have struggled to articulate both what makes an invention significant (or nonobvious) and how to measure nonobviousness in specific cases. These difficulties are due in large part to the existence of two clashing theoretical frameworks, cognitive and economic, that have …

The Limits Of Good Law: A Study Of Housing Court Outcomes, Nicole Summers

University of Chicago Law Review

The enactment of the warranty of habitability in the early 1970s was hailed as a revolution in tenants’ rights. Reversing centuries of legal precedent, the doctrine established that a tenant’s obligation to pay rent is contingent upon the landlord’s obligation to maintain the premises in good repair. Today, nearly fifty years later, scholars and advocates frequently observe that the law has not lived up to the potential originally envisioned. Yet these observations have been based on weak empirical evidence. This Article presents the results of the first rigorous empirical study on the effectiveness of the warranty of habitability. Based on …

Exclusionary Advertising? The Case For Cautious Enforcement Of 42 Usc § 3604(C) Against Minority-Language Housing Advertisements, Emily A. Vernon

University of Chicago Law Review

Section 804(c) of the Fair Housing Act (FHA), codified at 42 USC § 3604(c), prohibits advertisements that “indicate[ ] any preference” on the basis of race, national origin, and other protected categories. The text of the FHA, however, is ambiguous regarding its applicability to the language in which housing advertisements appear, raising the specter of potential liability in communities where residents speak and write in multiple languages. Using Chicago’s Chinatown as a case study, this Comment examines whether the exclusive use of Chinese-language advertisements for housing in Chinatown violates § 3604(c). I begin by enumerating a series of factors that …

Clarifying Vagueness: Rethinking The Supreme Court’S Vagueness Doctrine, Emily M. Snoddon

University of Chicago Law Review

For over a hundred years, the Supreme Court has struggled to articulate a coherent test for analyzing constitutional challenges based on vagueness. The current formulation of the vagueness test is rooted in due process principles and calls for invalidation of laws when they either (1) fail to “give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden” by the law, or (2) encourage “arbitrary arrests and convictions.” Certain aspects of this test suggest that the separation of powers is relevant to the analysis. Nevertheless, it is currently unclear what role this constitutional protection plays.

Recent Supreme …

Legal Fictions And Foreign Frictions: An Argument For A Functional Interpretation Of Jesner V Arab Bank For Transnational Corporations

University of Chicago Law Review

The Alien Tort Statute (ATS) allows noncitizens to bring civil actions in US federal courts for a select class of particularly egregious violations of international law. Human rights activists have pushed the boundaries of the ATS in recent decades, and the Supreme Court has responded by establishing several limiting rules for ATS jurisdiction. Most recently, in April 2018, the Supreme Court ruled in Jesner v Arab Bank that foreign corporations cannot be defendants in ATS suits. Following Jesner, plaintiffs in ongoing ATS suits have dropped key corporate defendants from their complaints. This Comment argues that courts and litigants should pause …

Exculpatory Evidence Pre-Plea Without Extending Brady, Brian Sanders

University of Chicago Law Review

Innocent defendants sometimes plead guilty. This is a problem. Some suggest fixing this problem with a constitutional requirement that prosecutors disclose exculpatory evidence before a defendant pleads guilty. A circuit split has thus developed concerning whether Brady, which requires disclosure of exculpatory evidence, extends to the pre-plea context. The Supreme Court’s jurisprudence, however, likely bars a constitutional requirement for pre-plea disclosure of exculpatory evidence. Faced with this exigency, this Comment argues that contract law should form the legal basis for pre-plea disclosure. Specifically, the contract doctrine of constructive fraud provides a suitable remedy. While big boy clauses, which defeat constructive …

Jurisdictional Realism: Where Modern Theories Of Choice Of Law Went Wrong, And What Can Be Done To Fix Them, Lea Brilmayer, Charles Seidell

University of Chicago Law Review

An American Law Institute project on the conflict of laws is preparing to bring forth a new Restatement on the subject. The issues most hotly debated behind the scenes are those involving choice of law, a somewhat technical legal specialty with a well-earned reputation for impenetrability. Despite the theoretical difficulty of the topic, the drafting of the new Restatement (Third) has been the cause of intense interest on the part of the bench and bar. Selection of the applicable law—while deeply influenced by theoretical considerations—has immense practical consequences because of the recurrence of the issue in contemporary litigation.

The leading …

Federal Expansion And The Decay Of State Courts, Diego Zambrano

University of Chicago Law Review

At the turn of the twenty-first century, the country entered its third era of judicial federalism. That era is defined by federal judicial expansion into areas of statecourt power and federal monopolization of large and complex litigation. These changes, in turn, have coincided with the decay of state courts. Whether measured by funding, delays, or docket loads, state courts—the true workhorses of the American legal system—have declined relative to federal courts. Indeed, over the last decade, state chief justices have complained that state courts are “financially bankrupt,” “at ‘the tipping point of dysfunction,’” and “on the edge of an abyss.” …

High-Value, Low-Value, And No-Value Guns: Applying Free Speech Law To The Second Amendment, Joseph E. Sitzmann

University of Chicago Law Review

Like the First, Fourth, Fifth, and Fourteenth Amendments, the Second Amendment stirs fervent debate among legal academics and the American public. Unlike these Amendments, however, the Second Amendment has received very little treatment from the Supreme Court until recently. In District of Columbia v Heller, the Court established that the “right of the people to keep and bear Arms” includes the right to bear arms for self-defense. Without further guidance from the Court, lower courts have struggled to consistently and uniformly determine when the Constitution permits gun regulations in spite of the Second Amendment.

To provide clarity, this Comment offers …

“Unfair Or Unconscionable”: A New Approach To Time-Barred Debt Collection Under The Fdcpa, Jon D. Fish

University of Chicago Law Review

Since the 1990s, the trade in second-hand debt has exploded. Debt collectors now relentlessly pursue decades-old debts, purchased for pennies on the dollar from primary creditors. To avoid the bar that statutes of limitations place on judicial enforcement of these debts, third-party debt collectors seek “acknowledgment” from unwitting consumers, which resets the limitations periods under state law. Under the Fair Debt Collection Practices Act (FDCPA), federal courts have struggled to deal with these attempts at resetting the statutes of limitations—a practice that often feels inherently unfair. So far, courts have focused on whether collection attempts have violated the FDCPA’s ban …

Liability For Data Scraping Prohibitions Under The Refusal To Deal Doctrine: An Incremental Step Toward More Robust Sherman Act Enforcement, Ioannis Drivas

University of Chicago Law Review

The digital economy has become increasingly consolidated in recent years as a handful of companies (namely Google, Facebook, Microsoft, and Amazon) have come to dominate every corner of the internet. Several of these companies have attained such size and influence that labelling them monopolists seems unavoidable. These companies have reinvigorated the debate regarding how antitrust law should treat monopolists. Many scholars, typically associated with the Chicago School of antitrust, believe that courts should hesitate before taking action against internet monopolists because judicial intervention may discourage investment in the digital economy without benefiting consumers. Critics of the Chicago School meanwhile argue …

Settlement Malpractice, Michael Moffitt

University of Chicago Law Review

Lawyers routinely settle lawsuits or advise their clients about settlement. One might expect, therefore, that clients routinely complain about some aspect of their lawyers’ settlement services. Ten years of data from eleven jurisdictions paint a vivid, different picture: although the vast majority of civil lawsuits are resolved through negotiated settlements and although complaints against lawyers are common, fewer than 1 percent of reported legal malpractice cases and only about 1.5 percent of bar complaints relate in any way to lawyers’ settlement-related conduct or advice. Even in those instances when clients do raise such complaints, clients rarely prevail. In short, even …

Reviewing Presidential Orders, Lisa Manheim, Kathryn A. Watts

University of Chicago Law Review

Beginning with President Ronald Reagan, presidents of both political parties increasingly have relied on executive orders and other unilateral written directives as a means of exerting significant control over agencies’ policymaking activities. Nevertheless, no coherent or well-theorized legal framework exists to guide courts as they review presidential orders. In contrast, a robust body of administrative law principles—rooted largely in the Administrative Procedure Act (APA)—exists to guide courts in their review of agency action, including agency action that is heavily influenced by the president. Until recently, this gap in the legal framework did not prove particularly problematic because litigants generally waited …

Standing For Statues, But Not For Statutes? An Argument For Purely Stigmatic Harm Standing Under The Establishment Clause, Merav Bennett

University of Chicago Law Review

In the wake of Obergefell v Hodges, a number of state legislatures passed laws exempting individuals with religious objections to same-sex marriage from state antidiscrimination laws. By granting special privileges to religious adherents, these laws may violate the Establishment Clause. This Comment concerns the threshold issue of which plaintiffs have standing to bring such an Establishment Clause challenge. Specifically, can the emotional harm caused by a law’s stigmatizing message—for example, the message that individuals in same-sex relationships are lessvalued members of the community—constitute a judicially cognizable “injury in fact” in the Establishment Clause context? This question has split the lower …

Clarity Doctrines, Richard Re

University of Chicago Law Review

Clarity doctrines are a pervasive feature of legal practice. But there is a fundamental lack of clarity regarding the meaning of legal clarity itself, as critics have pointed out. This Article explores the nature of legal clarity as well as its proper form. In short, the meaning of legal clarity in any given doctrinal context should turn on the purposes of the relevant doctrine. And the reasons for caring about clarity generally have to do with either (i) the deciding court’s certainty about the right answer or (ii) the predictability that other interpreters (apart from the deciding court) would converge …

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 …

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 …