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Sovereign Power Constitutionalism, Curtis A. Bradley

University of Chicago Law Review

The text of the U.S. Constitution seems to be missing a host of governmental powers that we take for granted, including powers relating to immigration, Indian affairs, acquisition of territory and resources, and the regulation and protection of U.S. citizens abroad. The Supreme Court suggested an explanation for these and other missing powers in its famous 1936 decision, United States v. Curtiss-Wright Export Corp. Upon becoming a nation, the Court contended, the United States automatically acquired powers “equal to the right and power of the other members of the international family”—powers that inhered in the government “as necessary concomitants of …

The Contractualization Of Disability Rights Law, Yaron Covo

University of Chicago Law Review

What body of law determines the content and scope of disability rights in the United States? The conventional wisdom is that the rights of disabled individuals are enshrined in and shaped by an array of civil rights statutes. While this answer is correct, it is incomplete. As this Article shows, U.S. disability rights are also built upon contract law concepts and doctrines. For example, in interpreting disability rights statutes, courts have turned to the parol evidence rule, the duty of good faith, and the doctrines of impossibility, materiality, duress, and mistake. Although not explicitly enumerated in disability rights statutes, these …

Legal Realignment, Richard Re

University of Chicago Law Review

The United States is undergoing a legal realignment, in that salient legal views recently associated with the right are now being espoused by the left, and vice versa. The clearest example involves Chevron deference: a doctrine once championed by conservatives like Justice Antonin Scalia has now been overruled in Loper Bright v. Raimondo—over dissenting votes by all three of the Court’s liberals. Similar points can be made about standing, stare decisis, textualism, positivism, and more. The basic reason for this transformation is straightforward: legal ideologies in power favor discretion, whereas those out of power favor constraint. Conservatives now firmly control …

Complete Preemption Via Historical Evolution, Ryan Jain-Liu

University of Chicago Law Review

Complete preemption is a jurisdictional doctrine that applies when a federal statute so wholly envelops certain state law claims that those claims effectively cease to exist. Aside from an explicit complete preemption hook, the Supreme Court has recognized just one way for a federal statute to completely preempt state law claims: it must provide an exclusive federal remedy and also have a special nature that makes it especially federal. Courts shirk this second prong to their own detriment. One example of complete preemption generating confusion is § 303(i) of the Bankruptcy Code, which provides remedies for involuntary debtors against bad …

Compassionate Causation In The Domestic Violence Survivors Justice Act, Zoë Lewis Ewing

University of Chicago Law Review

This Comment evaluates the implementation of the Domestic Violence Survivors Justice Act (DVSJA), a New York law passed in 2019 to provide shortened sentencing ranges for domestic violence survivors convicted of crimes. It identifies an inconsistency in sentencing courts’ application of the law’s causation standard, which requires that a petitioner’s experience of domestic violence be a “significant contributing factor” to their criminal conduct. Some courts interpret the prong narrowly, while others apply a broad causation standard. This Comment argues that courts should opt for the latter approach and consider causation in the DVSJA satisfied if domestic violence was “sufficiently significant …

Necessary Developments: Calibrating The Fair Housing Act’S Reasonable Accommodation Provision, Ben Griswold

University of Chicago Law Review

The Fair Housing Act prohibits denying people with disabilities “reasonable accommodations.” But courts have long split over how to interpret this provision. At the center of the divide is the statutory requirement that an accommodation be “necessary to afford . . . equal opportunity to use and enjoy a dwelling.” Courts diverge over whether the statute imposes a strict-necessity standard, requiring that an accommodation be truly indispensable, or a lenient-necessity standard, requiring only that the requested accommodation ameliorate the plaintiff’s disability.

Rather than pick one interpretation, this Comment suggests that courts should tailor the necessity standard they employ to the …

The Splintering Of American Public Law, Marco Basile

University of Chicago Law Review

Constitutional tradition has never mattered more for arguing about what the Constitution means. Yet the very idea of a constitutional tradition presents a shape-shifting target. Rather than an entirely distinct body of law, early U.S. constitutional law mixed and blurred with the law of nations in a broader category of “public law” that, unlike other forms of law, sought to govern the sovereign state itself through not only legal institutions but also political structures and actors outside courts.

This Article argues that U.S. constitutional law and international law diverged after the Civil War when courts came to apply them differently …

In Search Of A Judicial Taking, Coby Goldberg

University of Chicago Law Review

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Supreme Court held that the Takings Clause applies to the judiciary as it does to any government actor. In the more than fifteen years since, none of the sixty courts to consider judicial takings claims have found a judicial taking. This Comment provides the only comprehensive analysis of the judicial takings case law since Stop the Beach in order to determine why no court has found a judicial taking. Based on this analysis of the case law, this Comment suggests that finding a judicial taking …

Leveraging The Federal Trust Responsibility To Safeguard Net Neutrality On Tribal Lands, Morgan O. Schaack

University of Chicago Law Review

The internet plays a crucial role in modern life, but equal access to it is not guaranteed. This inequality is only starker since the recent overruling of the Chevron doctrine that afforded agencies deference in their interpretation of statutes and the second Trump administration’s hostility toward net neutrality––a policy that prevents internet service providers from charging more money for access to faster internet while slowing other users’ access. For those living on tribal lands, rescission of net neutrality policies has unique implications due to the federal government’s trust responsibility to American Indians.

The trust responsibility is a long-standing and deeply …

Eliminating The Malice Requirement For Fourth Amendment Malicious Prosecution Plaintiffs, Sabrina Huang

University of Chicago Law Review

Someone who has been wrongfully prosecuted in violation of their Fourth Amendment rights can sue a government actor, such as a police officer, for malicious prosecution under 42 U.S.C. § 1983. Malicious prosecution arises when a government actor initiates a criminal case without probable cause, the prosecution leads to the accused’s seizure, and the accused is ultimately not convicted. Fourth Amendment malicious prosecution claims are critical to holding officers and prosecutors accountable for misconduct. Official misconduct is common: more than half of the people exonerated since 1989 were incarcerated due in part to misconduct by the police or prosecutors.

Fourth …

Constitutional Rights As Protected Reasons, Stephanie Hall Barclay

University of Chicago Law Review

This Article proposes and defends a new theoretical model of constitutional rights. Virtually all the prevailing theories about constitutional rights envision, at some level, judges balancing the importance of various individual rights against the importance of other societal goods in tension with those rights. These theories also generally hold out the judiciary as the primary guardian of these rights, whereas the other political branches are often viewed as fulfilling a role of interfering with (or protecting) rights only as much as the judiciary will allow. This Article explains why the existing accounts of constitutional rights are either incoherent or incomplete. …

The Amended Statute, Jesse M. Cross

University of Chicago Law Review

We live in a republic of amended statutes. In each Congress, our laws are amended tens of thousands of times. Individual statutes make amendments that number in the thousands. As a result, the amended statute has become the central democratic text of our age—a remarkable development for a type of document unknown at the Founding. Yet the amended statute has been relegated to an after-thought in legal theory. This is incredible neglect for an essential source of modern law—one that anchors innumerable rights in U.S. society.

This Article demonstrates that, instead, the amended statute belongs at the center of public …

On Frand-Ly Terms: Examining The Role Of Juries In Standard-Essential Patent Disputes, Marta Krason

University of Chicago Law Review

Modern society relies on interconnected technologies, and interoperability has become crucial for meeting consumer expectations. Technology standards have emerged to ensure compatibility and interoperability across products. Once an industry selects a standard as the default for consumers and businesses, industry players begin to adapt it, often phasing out alternative—sometimes even superior— technologies. Holders of patents covering technology standards, known as standard- essential patents (SEPs), control the rights to an invention with no commercially viable alternative or that cannot be designed around while still complying with a standard. This gives SEP holders significant leverage in licensing negotiations

Standards development organizations (SDOs) …

Looking For The Public In Public Law, Nikhil Menezes, David E. Pozen

University of Chicago Law Review

The “public” is everywhere and nowhere in contemporary public law. Everywhere, in that the term is constantly invoked to justify and explain existing arrangements. Nowhere, in that serious attempts to identify a relevant public and elicit its input are few and far between. Scholars and officials depict the U.S. public as playing myriad roles in governance—checking, guiding, approving, repudiating—without offering an account of how public preferences are formed or how they exercise influence on questions of interest.

This Article seeks to identify and call attention to the foundational dilemmas underlying this disconnect, to clarify their normative contours and intellectual history, …

Contract Or Prison, S. R. Blanchard

University of Chicago Law Review

Critics of the criminal enforcement system have condemned the expansion and privatization of electronic monitoring, criminal diversion, parole, and probation. But the astonishing perversion of contract involved in these new practices has gone unnoticed. Governments are turning to “offender-funded” programs that empower firms to contract with people who are suspected of or have been convicted of crimes— and whose alternative to agreeing to these contracts is prosecution or incarceration. Though incarceration-alternative (IA) contracting is sometimes framed as humane, historical and current context illuminates its coercive nature. IA contracting must be examined under classical contract theory and in light of the …

Identifiable To Whom? Clarifying Biometric Privacy Rights In Illinois And Beyond, Hana Ferrero

University of Chicago Law Review

Illinois’s Biometric Information Privacy Act (BIPA) is the country’s most powerful law governing biometric data—data generated from an individual’s biological characteristics, like fingerprints and voiceprints. Over the past decade, BIPA garnered a reputation as an exceptionally plaintiff-friendly statute. But from 2023 to 2024, the Illinois legislature, Illinois Supreme Court, and Ninth Circuit Court of Appeals all sided with BIPA defendants, largely for the first time. Most significantly, in Zellmer v. Meta Platforms, Inc., the Ninth Circuit dismissed the plaintiff’s BIPA claim because the face scan collected by the defendant could not be used to identify him.

It is unclear whether …

Decentering Property In Fourth Amendment Law, Michael C. Pollack, Matthew J. Tokson

University of Chicago Law Review

For the past several decades, privacy has been the primary conceptual foundation for Fourth Amendment search law. The canonical test for Fourth Amendment searches accordingly looks to whether the government has violated a person’s reasonable expectation of privacy. Yet privacy is no longer the sole determinant of Fourth Amendment protection, as the Supreme Court has recently added a property based test to address cases involving physical intrusions on land or chattel. Further, given the ambiguity of the reasonable expectation of privacy test, a variety of influential judges and scholars have proposed relying primarily, or even exclusively, on property in determining …

Special-Purpose Governments, Conor Clarke, Henry Hansmann

University of Chicago Law Review

When one thinks of government, what comes to mind are familiar generalpurpose entities like states, counties, cities, and townships. But more than half of the ninety thousand governments in the United States are strikingly different: they are “special-purpose” governments that do one thing, such as supply water, fight fire, or pick up the trash. These entities have expanded far more rapidly than any other form of government. Yet they remain understudied, and they present at least two puzzles. First, special-purpose governments are difficult to distinguish from entities that are typically regarded as business organizations—such as consumer cooperatives—and thus underscore the …

The Holistic Theory Of Precedent, Charles F. Capps

University of Chicago Law Review

Standard theories of precedent limit the legal effect of a precedent to cases within the scope of its holding. Yet the widespread use of analogies to precedent in legal reasoning presupposes that precedents have legal implications for cases outside the scope of their holdings. This Article suggests that arguments from analogy to precedent have the currency they do in our legal system because respect for a precedent requires more than treating the precedent’s holding as true: It also requires the judge, for purposes of deciding the case, to update her other beliefs around the assumption that the precedent’s holding is …

Central Clearing The U.S. Treasury Market, Yesha Yadav, Joshua Younger

University of Chicago Law Review

The market for Treasury securities represents its own kind of “taproot”—a deep and liquid market for risk-free debt that has anchored an ambitious and creative U.S. dollar economy, while also ensuring the safety and soundness of its financial and monetary system. It has more than quintupled in size over the past. This Essay considers this regulatory response. It focuses on the introduction of mandatory central clearing for most trades in U.S. Treasuries—a proposal seeking to significantly reshape the day-to-day functioning of the Treasury market. Central clearing is a well-established means by which to reduce the risk of loss associated when …

Public Investment As Constitutional Power And Accountability Challenge, Saule T. Omarova, Brian Richardson

University of Chicago Law Review

No abstract provided.

The Constitutional Money Problem, Brian D. Galle, Aziz Z. Huq

University of Chicago Law Review

We consider three aspects of the constitutional status of the U.S. Federal Reserve in this Article. Under the Supreme Court’s contemporary approach to constitutional meaning, there is a surprising degree of doubt about whether key aspects of the Federal Reserve (or the Fed)—its independence from Congress and the President, and even its power to create money—are constitutional. We suggest this is reason to believe the Court’s dominant interpretive approaches generate implausible results, but identify a previously overlooked source of constitutional grounding for the Fed that better supports its authority and structure. We further sketch the potential limits, costs, and benefits …

Regionalism And The Federal Reserve Banks, Kathryn Judge, Lev Menand

University of Chicago Law Review

Regionalism is central to our country’s central banking system. Rather than rely on a single organization to set monetary policy and oversee banks, Congress created a multiplicity of bodies including twelve Federal Reserve Banks (FRBs), each designed to operate in a different part of the country. These FRBs are an early and undertheorized example of how the federal government uses regional bodies to formulate and administer federal policy. When they were first authorized in 1913, their regional character assuaged concerns about centralizing power over the economy. Today, the FRBs continue to play a number of important roles, helping to shape …

Financial Stability And Bank Agency Discretion, Christina Parajon Skinner

University of Chicago Law Review

Following the 2008 global financial crisis, new mandates to address “financial stability” and “systemic risk” expanded financial regulators’ discretion considerably. By predicating action upon these terms, the banking agencies took up issues beyond the express terms of their statutory mandates. Given the vagueness of the terms, actions taken on the basis of financial stability could easily evade congressional scrutiny and accompanying accountability. As a result, the pursuit of financial stability goals over the past fifteen years has fueled the perception that a regulatory “expertocracy” governs the field of banking, rather than market forces.

This Essay discusses four areas where financial …

Securities Regulation And Administrative Law In The Roberts Court, David Zaring

University of Chicago Law Review

This Essay compares a judicial revolution that is happening to one that is not. Both the change and the status quo are being managed by the current Supreme Court. That Court has, when it comes to administrative law, shown a capacity to revisit everything. But when it comes to securities regulation, it has resisted change. What is the explanation for this divergent approach between general regulation, which the Court has sought to police, and securities regulation, which the Court has left alone? Some scholars have argued that the Supreme Court is simply uninterested in securities regulation, but the Court now …

Scrutinizing Sex, Jessica A. Clarke

University of Chicago Law Review

Critics of the Supreme Court’s equal protection jurisprudence despair that the Court conceives of discrimination as the mere classification of individuals on for- bidden grounds, such as race and sex, rather than systemic patterns of subordination. On the Court’s anticlassification theory, affirmative action, which relies on overt racial or gender classifications, is generally forbidden. Anticlassification rules are insensitive to context: a classification is a classification, no matter how well intentioned it might be, no matter what effects it might have, and no matter if it treats members of various groups in ways that are substantively equal. Whether a classification might …

Reestablishing Religion, Richard C. Schragger, Micah Schwartzman, Nelson Tebbe

University of Chicago Law Review

In the last few years, the Supreme Court has upended its doctrine of religious freedom under the First Amendment. The Court has explicitly rejected separationism, which limited government support of religion, and it has adopted interpretations of disestablishment and free exercise that provide special solicitude for religion. Now, the government must treat religion equally with respect to providing public benefits. But it must also grant special exemptions from regulations that burden religion. This pattern of equal treatment for benefits and special exemptions from burdens yields a doctrinal structure that gives preference to religion. We refer to this regime as structural …

Bankruptcy’S Turn To Market Value, Mark J. Roe, Michael Simkovic

University of Chicago Law Review

Chapter 11 was widely viewed as a failure in the first decade of the Bankruptcy Code’s operation, the 1980s. Large firms were mired in bankruptcy for years; the process was seen as expensive, inaccurate, and subject to abuse. While basic bankruptcy still has its critics and few would say it works perfectly, the contrast with bankruptcy today is stark: bankruptcies that took years in the 1980s take months in the 2020s.

Multiple changes explain bankruptcy’s success—creditor learning, statutory reform, better judging and lawyering, new techniques, fuller integration of the improved mechanisms that the 1978 Code added—and we do not challenge …

A Disability-Inclusive Theory Of “Ordinary” Care: Redistributing Accommodative Labor In Torts, Rachel Caldwell

University of Chicago Law Review

Everyone generally owes each other a duty of ordinary care—but what is “ordinary”? How does one act reasonably to meet this burden? The answer depends on a plaintiff’s disability status. This Comment analyzes the current reasonable per- son standard for disabled plaintiffs and the corresponding duty of “ordinary care” provided by defendants through a critical disability studies lens. The current system burdens disabled plaintiffs with accommodating themselves, rather than requiring defendants to include accessible care in meeting their general duty of ordinary care. To redistribute this inequitable distribution of accommodative labor, this Comment proposes three stackable policies: (1) courts should …

Weighing In: Why Obesity Should Be Considered A Qualifying Disability Under The Americans With Disabilities Act, Anne Marie Hawley

University of Chicago Law Review

Anti-fat bias has been described as the last socially acceptable form of prejudice. Weight discrimination persists even though obesity affects over 100 million adults in the United States and obesity rates have continued climbing over the past few decades. Despite the discrimination that fat people face, there is no federal protection against weight discrimination. One potential solution to the lack of existing legal protections is the Americans with Disabilities Act (ADA).

Claimants challenging weight discrimination under the ADA argue that weight discrimination is a form of disability discrimination—namely, discrimination based on the medical condition of obesity. Although the medical community …