Digital Commons Network^™

“On Behalf Of Each Child”: Section 1983 Enforcement Of The Right To Foster Care Maintenance Payments Under The Child Welfare Act, Parker C. Eudy

University of Chicago Law Review

In 1980, Congress passed the Adoption Assistance and Child Welfare Act (CWA). As a piece of Spending Clause legislation, the CWA imposes upon states numerous conditions in exchange for federal funding. One of these conditions is that states must make foster care maintenance payments to foster caregivers “on behalf of each child” who qualifies for assistance. Because the CWA does not include a federal mechanism for reviewing individual claims, foster caregivers seeking to compel their state to make adequate foster care maintenance payments have resorted to suing under 42 USC § 1983. However, since the 1980s, the Supreme Court has …

Inferentialism, Title Vii, And Legal Concepts, Lee Farnsworth

University of Chicago Law Review

We are all textualists now, or so it has been claimed. But textualism, the practice of interpreting statutes solely by reference to their words, is often associated with conservative judicial outcomes. This is especially true when a focus on statutory text is combined with the belief that the meanings of words are fixed. This combination creates a sort of textualist originalism, in which judges interpret statutes in accordance with what the words of a statute meant to the relevant linguistic community at the time of a statute’s enactment.

In reaction to this conservative interpretive method, rejecting textualism but keeping an …

Is Efficiency Biased?, Zachary Liscow

University of Chicago Law Review

Efficiency is a watchword in policy circles. If we choose policies that maximize people’s willingness to pay, we are told, we will grow the economic pie and thus benefit the rich and poor alike. Who would oppose efficiency when it is cast in this fashion?

However, there are actually two starkly different types of efficient policies: those that systematically distribute equally to the rich and the poor and those that systematically distribute more to the rich.

Our collective failure to grasp this distinction matters enormously for those with a wide range of political commitments. Many efficient policies distribute more to …

In Defense Of Territorial Jurisdiction, Cody J. Jacobs

University of Chicago Law Review

As the story is traditionally told, the minimum contacts test introduced in International Shoe v Washington freed personal jurisdiction from the dark age of territorialism and gave courts the flexibility to expand the scope of personal jurisdiction to keep pace with modern society. While scholars have critiqued the minimum contacts test on a number of grounds, the narrative that the Territorial Model was inherently problematic—and that Shoe was a step in the right direction— has gone largely unchallenged.

This Article challenges that narrative and argues for a return to the Territorial Model. While Shoe is traditionally cast as a step …

Defining “Second Or Successive” Habeas Petitions After Magwood, Megan Volin

University of Chicago Law Review

The Antiterrorism and Effective Death Penalty Act (AEDPA) precludes the filing of “second or successive” federal habeas corpus petitions—when a petitioner files a habeas petition for the second time, it will generally be dismissed. In Magwood v Patterson, the Supreme Court held that this prohibition did not bar the filing of a technically “second” habeas petition challenging aspects of a resentencing that resulted from the partial grant of the petitioner’s prior habeas petition. Because this resentencing led to the entry of a new judgment, the Court explained, the petition was not barred by AEDPA as, while it was the petitioner’s …

I4i Makes The Patent World Blind, Michael J. Conway

University of Chicago Law Review

All patents receive a presumption of validity pursuant to 35 USC § 282. Courts have traditionally put this presumption into practice by requiring invalidity to be established by clear and convincing evidence. The Supreme Court reaffirmed this understanding of the presumption in Microsoft Corp v i4i Ltd Partnership.

District courts have divided, however, on whether to require clear and convincing evidence when the challenger seeks to invalidate a patent for covering ineligible subject matter. The conflict originates from a concurrence written by Justice Stephen Breyer in i4i, in which he stated that a heightened standard of proof—like the clear and …

Not So Different After All: The Status Of Interpretive Rules In The Medicare Act, Graham Haviland

University of Chicago Law Review

The Medicare Act is not subject to the informal rulemaking requirements of the Administrative Procedure Act (APA). Instead, it has its own provision that mandates notice and comment for proposed regulations. Courts have come to different conclusions regarding the scope of the Medicare Act’s notice-and-comment requirement. This Comment interprets this Medicare Act provision to determine whether its requirement is equivalent in scope to that of the APA. This Comment presents arguments from text and legislative history to demonstrate that, as in the APA, interpretive rules are exempt from notice and comment. Finally, this Comment explains why this outcome is desirable …

Relational Contracts Of Adhesion, David A. Hoffman

University of Chicago Law Review

Not all digital fine print exculpates liability: some exhorts users to perform before the consumer relationship has soured. We promise to choose strong passwords (and hold them private); to behave civilly on social networks; to refrain from streaming shows and sports; and to avoid reverse-engineering code (or, worse, deploying deadly bots). In short, consumers are apparently regulated by digital fine print, though it’s universally assumed that we don’t read it and, even if we did, that we’ll never be sued for failing to perform.

On reflection, this ordinary phenomenon is perplexing. Why would firms persist in deploying uncommunicative behavioral spurs? …

A New Market-Based Approach To Securities Law, Kevin S. Haeberle, M. Todd Henderson

University of Chicago Law Review

Modern securities regulation has three main areas, each of which is plagued by a core problem. Mandatory disclosure law leaves society with suboptimal disclosure, as the government calls for too little of some information (for example, management analysis of company prospects) and too much of other information (for example, data about trivial executive perks). Securities fraud law (specifically, its central fraud-on-the-market theory of reliance) yields damages at odds with any reasonable theory of compensation and deterrence. And insider trading law fails to achieve its ends because incentives to police illegal trading and tipping by executives are currently weak.

In this …

Reviewing Leniency: Appealability Of 18 Usc § 3582(C)(2) Sentence Modification Motions, Sarah E. Welch

University of Chicago Law Review

In ordinary circumstances, criminal defendants get only one shot at sentencing. But in a few cases, defendants have a second chance at a more lenient sentence. This Comment considers one of those circumstances: motions under 18 USC § 3582(c)(2) for sentence reduction after retroactive downward adjustment of the Sentencing Guidelines. Specifically, this Comment considers the circuit split over when those motions are appealable. Courts disagree about which statute governs appellate jurisdiction: the general jurisdictional statute permitting appeal of any final decision of a district court (28 USC § 1291) or the specific sentencing jurisdictional statute restricting appeal of otherwise final …

Master Of Its Own Case: Eeoc Investigations After Issuing A Right-To-Sue Notice, Eric E. Petry

University of Chicago Law Review

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the full arsenal of federal employment discrimination laws. But in addition to vindicating the rights of employment discrimination victims, the EEOC also serves as a gatekeeper to screen claims before they get to court. As part of that gatekeeping function, Congress requires that individuals alleging employment discrimination under Title VII of the Civil Rights Act of 1964 must obtain permission from the EEOC before they can bring legal action on their own.

Title VII’s text leaves the EEOC’s role after issuing a right-to-sue notice ambiguous. Despite this ambiguity, or perhaps …

War Manifestos, Oona A. Hathaway, William S. Holste, Scott J. Shapiro, Jacqueline Van De Velde, Lisa Wang Lachowicz

University of Chicago Law Review

This Article is the first to examine “war manifestos,” documents that set out the legal reasons sovereigns provided for going to war from the late fifteenth through the mid-twentieth centuries. We have assembled the world’s largest collection of war manifestos—over 350—in languages as diverse as Classical Chinese, German, French, Latin, Serbo-Croatian, and Dutch. Prior Anglophone scholarship has almost entirely missed war manifestos. This gap in the literature has produced a correspondingly large gap in our understanding of the role of war during the period in which manifestos were commonly used. Examining these previously ignored manifestos reveals that states exercised the …

State Bureaucratic Undermining, Justin Weinstein-Tull

University of Chicago Law Review

Our federal rights are failing, and the inner workings of state government provide an explanation. States administer more federal rights than ever before; administering those rights requires intrastate coordination both horizontally (across cabinet-level state actors, agencies, and commissions) and vertically (with local governments like counties and towns). That coordination undermines federal law by creating bureaucratic barriers to full compliance. I unearth and identify three of these barriers—agency alienation, agency conflict, and role confusion—by surveying remedies in recent suits against state actors. These remedies take the form of choreography: they specify how internal state actors must work together to vindicate federal …

A Simplified “Benefit” Prong For Securedcreditor Surcharges, Matthew Lagrone

University of Chicago Law Review

Who pays the debtor’s expenses that are incurred during the bankruptcy is a common debate. One potential option, especially in small to midsize corporate bankruptcies, is a secured creditor who can be surcharged in accordance with 11 USC § 506(c). Of that section’s three requirements, most litigation concerns the requirement that the expense “benefit” the secured creditor. A split has recently developed between courts, led by the Seventh Circuit in Trim-X, that require the bankruptcy trustee to exclusively intend to benefit the secured creditor and obtain secured-creditor consent and courts, such as the Fifth Circuit in Domistyle, that merely require …

Vindication For Students With Disabilities: Waiving Exhaustion For Unavailable Forms Of Relief After Fry V Napoleon Community Schools, Katherine Bruce

University of Chicago Law Review

The Individuals with Disabilities Education Act (IDEA) is a federal statute that protects the rights of students with disabilities by conferring onto them a substantive right to a free, appropriate public education (FAPE). Under the IDEA, aggrieved parents may demand a “due process hearing,” an administrative process presided over by an impartial hearing officer through which students and families may seek redress for violations of the IDEA. Due process hearings, however, allow only for certain types of relief—notably, money damages are not available under the IDEA. Students with disabilities are also protected under other statutes, including the Americans with Disabilities …

Cost-Benefit Analysis And The Judicial Role, Jonathan S. Masur, Eric A. Posner

University of Chicago Law Review

The two most vilified cases in administrative law are Business Roundtable v Securities and Exchange Commission and Corrosion Proof Fittings v Environmental Protection Agency. In Business Roundtable, the DC Circuit struck down the SEC’s proxy access rule because the agency’s cost-benefit analysis of the regulation, in the court’s view, was defective. In Corrosion Proof Fittings, the Fifth Circuit struck down an EPA regulation of asbestos products on the same grounds. Nearly all scholars who have written about these cases have condemned them. We argue that the courts acted properly. The regulators’ cost-benefit analyses were defective, seriously so; and the courts …

Citizens Of The State, Maeve Glass

University of Chicago Law Review

According to conventional wisdom, state citizenship emerged out of the localism of early America and gave way to national citizenship with the ratification of the Fourteenth Amendment. This Article offers a different account of state citizenship and, with it, new resources for analyzing the Constitution. It argues that far from a primordial category that receded into irrelevance, state citizenship provided a crucial strategic tool in America’s antislavery movement, as abolitionist lawyers used the label of state citizenship to build a coalition with white elites by reframing the issue of slavery from the rights of a black person to the sovereignty …

Righting Categorical Wrongs: A Holistic Solution To Rule 8(A)’S Same-Or-Similarcharacter Prong, Matthew Deates

University of Chicago Law Review

More than half of federal criminal defendants are charged with multiple offenses in a single indictment. These defendants are more likely to be convicted on at least one charge than defendants who receive separate trials for each charge. Joinder has been both lauded for increasing the efficiency of the federal criminal justice system and criticized for unfairly prejudicing criminal defendants. Federal Rules of Criminal Procedure 8(a) and 14 govern the joinder of offenses in the federal system. Rule 8(a) permits offenses of the “same or similar character” to be joined against a single defendant while Rule 14 allows district courts …

Rethinking Family-Court Prosecutors: Elected And Agency Prosecutors And Prosecutorial Discretion In Juvenile Delinquency And Child Protection Cases, Josh Gupta-Kagan

University of Chicago Law Review

Like criminal prosecutors, family-court prosecutors have immense power. Determining which cases to prosecute and which to divert or dismiss goes to the heart of the delinquency system’s balance between punishment and rehabilitation of children and the child protection system’s spectrum of family interventions. For instance, the 1990s shift to prosecute (rather than dismiss or divert) about 10 percent more delinquency cases annually is as significant a development as any other. Yet scholars have not examined the legal structures for these charging decisions or family-court prosecutors’ authority in much depth.

This Article shows how family-court prosecutors’ roles have never been fully …

Defining Flight Risk, Lauryn P. Gouldin

University of Chicago Law Review

Our illogical and too-well-traveled paths to pretrial detention have created staggering costs for defendants who spend unnecessary time in pretrial detention and for taxpayers who fund a broken system. These problems remain recalcitrant even as a third generation of reform efforts makes impressive headway. They are likely to remain so until judges, attorneys, legislators, and scholars address a fundamental definitional problem: the collapsing of very different types of behavior that result in failures to appear in court into a single, undifferentiated category of nonappearance risk. That single category muddies critical distinctions that this Article’s new taxonomy of pretrial nonappearance risks …

Courts, Congress, And The Conduct Of Foreign Relations, Kristen E. Eichensehr

University of Chicago Law Review

In the US constitutional system, the president generally conducts foreign relations. But not always. In recent years, the courts and Congress have repeatedly taken steps to interact directly with foreign governments. Nonexecutive conduct of foreign relations occurs when the courts or Congress engage in or take actions that result in the opening of a direct channel of official communications between the US nonexecutive branch and a foreign executive branch. Nonexecutive conduct of foreign relations raises serious constitutional questions, but to date there is no clear rubric for analyzing the constitutionality of the judiciary’s or Congress’s actions. Moreover, nonexecutive conduct of …

Autocratic Legalism, Kim L. Scheppele

University of Chicago Law Review

Buried within the general phenomenon of democratic decline is a set of cases in which charismatic new leaders are elected by democratic publics and then use their electoral mandates to dismantle by law the constitutional systems they inherited. These leaders aim to consolidate power and to remain in office indefinitely, eventually eliminating the ability of democratic publics to exercise their basic democratic rights, to hold leaders accountable, and to change their leaders peacefully. Because these “legalistic autocrats” deploy the law to achieve their aims, impending autocracy may not be evident at the start. But we can learn to spot the …

Constitutionalism And The American Imperial Imagination, Aziz Rana

University of Chicago Law Review

Constitutionalism as a legal technology for structuring state power has spread around the world over the last century, as a practice and also as an ideal often linking the institutions of the state to commitments relating to political liberalism and free markets. Yet there is growing evidence that illiberal forms of constitutionalism may now be on the rise internationally. Some of the countervailing forces (economic crisis, national security threats, populism) that may limit the appeal and spread of liberal constitutionalism have been identified in the comparative-law literature as key drivers of this phenomenon. This Essay turns to a different explanation: …

Against Constitutional Excess: Tocquevillian Reflections On International Investment Law, David Schneiderman

University of Chicago Law Review

Contributing to democratic malaise in operative democracies are transnational constitution-like commitments, such as those found in international investment law. Among its constraints, citizens are legally discouraged from initiating policy innovations that will upset investment expectations. Yet, one of the great virtues of democratic society, according to Alexis de Tocqueville, is the capacity of people to change their minds: an ability to repair mistakes. Though the threat of continual legislative innovation resulted in costly instability, it served as a catalyst for an energetic public and private life. So as to tame the threat of intemperate change, Tocqueville looked to the guiding …

Populist Constitutions, David Landau

University of Chicago Law Review

This Essay draws on recent academic definitions of populism and recent examples of its use in order to show that there is an affinity between populism and widespread constitutional change. It argues that populists use constitutional change to carry out three functions: deconstructing the old institutional order, developing a substantive project rooted in a critique of that order, and consolidating power in the hands of populists. Thus, access to the tools of constitutional change may accentuate both the promise of populism as a corrective to stagnating liberal democracies and the threat that it poses to those constitutional orders. I also …

Democracy’S Deficits, Samuel Issacharoff

University of Chicago Law Review

Barely a quarter century after the collapse of the Soviet empire, democracy has entered an intense period of public scrutiny. The election of President Donald Trump and the Brexit vote are dramatic moments in a populist uprising against the postwar political consensus of liberal rule. But they are also signposts in a process long in the making, yet perhaps not fully appreciated until the intense electoral upheavals of recent years. The current moment is defined by distrust of the institutional order of democracy and, more fundamentally, of the idea that there is a tomorrow and that the losers of today …

The Coming Demise Of Liberal Constitutionalism?, Tom Ginsburg, Aziz Huq, Mila Versteeg

University of Chicago Law Review

No abstract provided.

Terrorism And Democratic Recession, Aziz Huq

University of Chicago Law Review

This Essay examines the potential causal mechanisms that plausibly link the occurrence of terrorism within a polity to that polity’s democratic decline. That causal pathway is often asserted in political rhetoric about terrorism. But such assertions do not rest on a robust body of theory or empirical knowledge. I hypothesize three pathways along which acts of terrorism might lead to a decline in democratic practices. These three pathways work through the use of emergency powers, the assemblage of a repressive state apparatus, and the emergence of a populist style of politics adverse to democratic contestation. I tentatively conclude that terrorism …

The Wrong Rights, Or: The Inescapable Weaknesses Of Modern Liberal Constitutionalism, Richard A. Epstein

University of Chicago Law Review

My thesis is that modern progressive or social-democratic liberal constitutionalism invites economic decline and political polarization, even if it avoids the massive institutional rot that pervades authoritarian regimes. Its key omission is its conscious decision not to specify the protected individual rights, of which individual autonomy, private property, and contractual freedom are key. Yet ironically, not one of these is typically listed in the standard human-rights statutes, which instead focus on three different factors: positive rights to education, health, and housing; overcoming the widening inequality of wealth; and demarcating an ever-larger list of improper grounds for discrimination. Regrettably, the modern …

Competing Orders? The Challenge Of Religion To Modern Constitutionalism, Ran Hirschl, Ayelet Shachar

University of Chicago Law Review

Religion and constitutionalism often collide on both substantive values and policy preferences. Moving beyond the familiar angle of divergent value sets, this Essay critically highlights the structural, “clash of orders” features that make religion a credible rival and a serious challenger to modern constitutionalism. We identify three additional dimensions of the potential clash between religion and constitutionalism in a world of resurgent populist nationalism: (1) the structural logic of competing orders; (2) the strategic reliance on religious identity markers to generate unequal civic standings among formally equal citizens; and (3) the transnational nature of religious solidarity and affiliation, which permits …