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Liberal Constitutionalism And Economic Inequality, Rosalind Dixon, Julie Suk
Liberal Constitutionalism And Economic Inequality, Rosalind Dixon, Julie Suk
University of Chicago Law Review
Economic inequality is rising in democracies across the world and poses a clear threat to both the stability and legitimacy of liberal constitutional models. Can liberal constitutionalism respond to this threat? Or are there inherent limits to the liberal model that prevent an effective response? This Essay explores these questions by surveying the range of possible structural and rights-based constitutional responses to economic inequality, as well as possible obstacles to these responses— including problems of definition, leveling up versus down, unintended or counterproductive consequences, and institutional path dependence.
Is Eu Supranational Governance A Challenge To Liberal Constitutionalism?
Is Eu Supranational Governance A Challenge To Liberal Constitutionalism?
University of Chicago Law Review
Does supranational governance present a challenge to liberal constitutionalism? More particularly, has the European Union’s supranational form of governance fueled the rise of illiberal authoritarianism and undermined liberal constitutionalism? This Essay first addresses two related empirical questions associated with this larger query: first, whether the Brexit vote reflected a rise in authoritarianism and a turn against liberal constitutionalism; and second, whether the Euroscepticism to which the process of European integration has given rise has also contributed to the growth of the illiberal far right across the European Union and to the weakening of support for liberal constitutionalism. The third part …
Courts’ Limited Ability To Protect Constitutional Rights, Adam Chilton, Mila Versteeg
Courts’ Limited Ability To Protect Constitutional Rights, Adam Chilton, Mila Versteeg
University of Chicago Law Review
Constitutional scholars have generally put faith in courts’ ability to improve the protection of constitutional rights. While courts have limited means to enforce their own decisions, the literature suggests that their decisions are implemented either when courts enjoy strong legitimacy or when they bring functional benefits to other branches. In this Essay, we call this conventional wisdom into question. We present data suggesting that the existence of independent courts does not increase the probability that governments will respect constitutional rights. We outline four reasons why this might be so. First, courts that too frequently obstruct the political branches face court-curbing …
Sticky Regulations, Aaron Nielson
Sticky Regulations, Aaron Nielson
University of Chicago Law Review
Administrative law is often said to present a dilemma. On one hand, all three branches of the federal government have crafted procedures to facilitate public participation in the regulatory process and to ensure that the benefits of regulations outweigh their costs. But on the other hand, such procedures have a price—they slow administrative action and sometimes thwart it altogether. In fact, marching under the banner of “ossification,” an entire literature has formed around the idea that there are too many procedures and that administrative law should be transformed to speed up the regulatory process. Ossification, however, has an overlooked, proregulatory …
Institutional Loyalties In Constitutional Law, David Fontana, Aziz Huq
Institutional Loyalties In Constitutional Law, David Fontana, Aziz Huq
University of Chicago Law Review
In Federalist 51, James Madison offered what has become the canonical account of how the separation of powers would pit branch against branch for the greater good. The officials of an institution would act on behalf of their institution for the Constitution to function properly. In Madison’s account, ensuring the presence of the right quantum of institutional loyalties would serve as a durable and plausible mechanism for enforcing institutional boundaries and ensuring a stable constitutional order. But modern scholars take a more skeptical view of his theory. This Article reconsiders the Madisonian concept of institutional loyalty as an object of …
A Borderline Case: The Establishment Clause Implications Of Religious Questioning By Government Officials, Allison Hugi
A Borderline Case: The Establishment Clause Implications Of Religious Questioning By Government Officials, Allison Hugi
University of Chicago Law Review
Does a border agent violate the Establishment Clause of the Constitution when he questions an individual about that person’s religious beliefs? The answer is unclear. The analysis that should be undertaken to reach that answer is similarly unsettled. This Comment addresses that gap in the literature. It considers whether policies under which government officials question individuals about their religion and religious practices violate the Establishment Clause. Because the Clause is more commonly used to consider government endorsement of religion (such as policies concerning school prayer and displays on government property), this is an underexplored area of the law. This Comment …
What About Bell? Overcoming The Presumption In Favor Of Requiring Finality In The Cwa’S Direct-Review Provision, Roberto Borgert
What About Bell? Overcoming The Presumption In Favor Of Requiring Finality In The Cwa’S Direct-Review Provision, Roberto Borgert
University of Chicago Law Review
The default rule for judicial review of agency action is that review is available for final agency action. Courts typically enforce this requirement by citing an explicit finality requirement in the text of a review statute. When a review statute does not mention finality, courts apply a presumption in favor of requiring final agency action. The Clean Water Act’s (CWA) direct-appellate-review provision does not contain an explicit finality requirement. This Comment analyzes whether the CWA’s directreview provision can overcome the presumption in favor of requiring final agency action. The Comment proposes a test to determine whether a statute can overcome …
Stigma Plus Whom: Evaluating Causation In Multiple-Actor Stigma-Plus Claims, Linnet Davis-Stermitz
Stigma Plus Whom: Evaluating Causation In Multiple-Actor Stigma-Plus Claims, Linnet Davis-Stermitz
University of Chicago Law Review
No abstract provided.
From Treaties To International Commitments: The Changing Landscape Of Foreign Relations Law, Jean Galbraith
From Treaties To International Commitments: The Changing Landscape Of Foreign Relations Law, Jean Galbraith
University of Chicago Law Review
Sometimes the United States makes international commitments in the manner set forth in the Treaty Clause. But far more often it uses congressional-executive agreements, sole executive agreements, and soft-law commitments. Scholars of foreign relations law typically approach these other processes from the perspective of constitutional law, seeking to determine the extent to which they are constitutionally permissible. In contrast, this Article situates the myriad ways in which the United States enters into international commitments as the product not only of constitutional law, but also of international law and administrative law. Drawing on all three strands of law provides a rich …
The Myth Of Fourth Amendment Scrutiny, Matthew B. Kugler, Lior Jacob Strahilevitz
The Myth Of Fourth Amendment Scrutiny, Matthew B. Kugler, Lior Jacob Strahilevitz
University of Chicago Law Review
The Supreme Court's decision in Katz v United States made people's reasonable expectations of privacy the touchstone for determining whether state surveillance amounts to a search under the Fourth Amendment. Ever since Katz, Supreme Court justices and numerous scholars have referenced the inherent circularity of taking the expectations-of-privacy framework literally: people's expectations of privacy depend on Fourth Amendment law, so it is circular to have the scope of the Fourth Amendment depend on those same expectations. Nearly every scholar who has writ- ten about the issue has assumed that the circularity of expectations is a meaningful impediment to having the …
Pay It Backward: Buy-Money Repayment As A Condition Of Supervised Release, Roisin Duffy-Gideon
Pay It Backward: Buy-Money Repayment As A Condition Of Supervised Release, Roisin Duffy-Gideon
University of Chicago Law Review
No abstract provided.
Patent Law's Authorship Screen, Kevin Emerson Collins
Patent Law's Authorship Screen, Kevin Emerson Collins
University of Chicago Law Review
Intellectual property regimes frequently employ boundary screens. Boundary screens protect the different balances of competition and protection that Congress has struck in the different regimes by preventing the goods whose protectability should be determined by one regime from infiltrating into and receiving protection under another regime. Prior scholarship on boundary screens offers in-depth analyses of the functionality screens in nonpatent intellectual property that avoid upsetting patent law's competition-protection balance for functional innovation. This Article turns the table, asking a previously unasked question about how pa- tent's authorship screen-that is, its boundary screen that prevents infiltration by the authorial innovation that …
Cross-Examining The Preliminary Question: Encouraging Defendant Participation Under Federal Rule Of Evidence 104(D), Mila Rusafova
Cross-Examining The Preliminary Question: Encouraging Defendant Participation Under Federal Rule Of Evidence 104(D), Mila Rusafova
University of Chicago Law Review
No abstract provided.
Testing For Multisided Platform Effects In Antitrust Market Definition, Patrick R. Ward
Testing For Multisided Platform Effects In Antitrust Market Definition, Patrick R. Ward
University of Chicago Law Review
No abstract provided.
The Label Test: Simplifying The Tax Injunction Act After Nfib V. Sebelius, Brett J. Wierenga
The Label Test: Simplifying The Tax Injunction Act After Nfib V. Sebelius, Brett J. Wierenga
University of Chicago Law Review
No abstract provided.
The Nefarious Intentions Of The Framers, Paul Finkelman
The Nefarious Intentions Of The Framers, Paul Finkelman
University of Chicago Law Review
No abstract provided.
The Unexpected Role Of Tax Salience In State Competition For Businesses, Hayes R. Holderness
The Unexpected Role Of Tax Salience In State Competition For Businesses, Hayes R. Holderness
University of Chicago Law Review
Competition among the states for mobile firms and the jobs and infrastructure they can bring is a well-known phenomenon. However, in recent years, a handful of states have added a mysterious new tool to their kit of incentives used in this competition. Unlike more traditional incentives, these new incentives-which this Article brands "customer-based incentives'L-offer tax relief to a firm's customers rather than directly to the firm. The puzzle underlying customer-based incentives is that tax relief provided to the firm's customers would seem more difficult for the firm to capture than relief provided directly to the firm-strange, as a state's primary …
Schrodinger's Cell: Pretrial Detention, Supervised Release, And Uncertainty, Eric J. Maier
Schrodinger's Cell: Pretrial Detention, Supervised Release, And Uncertainty, Eric J. Maier
University of Chicago Law Review
No abstract provided.
Dead Hand Proxy Puts And Shareholder Value, Sean J. Griffith, Natalia Reisel
Dead Hand Proxy Puts And Shareholder Value, Sean J. Griffith, Natalia Reisel
University of Chicago Law Review
We study the impact of Dead Hand Proxy Puts on shareholder value. Courts and commentators have characterized these terms as defenses against hedge fund activism that threaten to reduce firm value by entrenching underperforming managers and thereby increasing managerial agency costs. Our findings contradict this view. Using three court cases as a natural experiment, we find that shareholders do, not react negatively to the inclusion of a Dead Hand Proxy Put in a firm's loan agreements. Not only do Dead Hand Proxy Puts not destroy firm value, they may even preserve it by deterring activists who would seek to extract …
Qualified (Immunity) For Licensing Board Service, Christopher James Marth
Qualified (Immunity) For Licensing Board Service, Christopher James Marth
University of Chicago Law Review
No abstract provided.
Making Mistakes About The Law: Police Mistakes Of Law Between Qualified Immunity And Lenity, Lael Weinberger
Making Mistakes About The Law: Police Mistakes Of Law Between Qualified Immunity And Lenity, Lael Weinberger
University of Chicago Law Review
No abstract provided.
Associational Standing Under The Copyright Act, Andreas M. Petasis
Associational Standing Under The Copyright Act, Andreas M. Petasis
University of Chicago Law Review
No abstract provided.
Equal Right To The Poor, Richard Re
Equal Right To The Poor, Richard Re
University of Chicago Law Review
By law, federal judges must swear or affirm that they will "do equal right to the poor and to the rich." This frequently overlooked oath, which I call the "equal right principle," has historical roots dating back to the Bible and entered US law in a statute passed by the First Congress. Today, the equal right principle is often understood to require only that judges faithfully apply other laws. But that reading, like the idea that the rich and poor are equally barred from sleeping under bridges, is questionable in light of the equal right principle's text, context, and history. …
Revitalizing The Law That Preceded The Movement: Associational Discrimination And The Rehabilitation Act Of 1973, Bianca G. Chamusco
Revitalizing The Law That Preceded The Movement: Associational Discrimination And The Rehabilitation Act Of 1973, Bianca G. Chamusco
University of Chicago Law Review
No abstract provided.
Taming Cerberus: The Beast At Aedpa's Gates, Patrick J. Fuster
Taming Cerberus: The Beast At Aedpa's Gates, Patrick J. Fuster
University of Chicago Law Review
No abstract provided.
Between Here And There: Buffer Zones In International Law, Eian Katz
Between Here And There: Buffer Zones In International Law, Eian Katz
University of Chicago Law Review
No abstract provided.
Home Sweet Copyright, Ruth S. Thomson
Home Sweet Copyright, Ruth S. Thomson
University of Chicago Law Review
No abstract provided.
Due Process, Fair Play, And Excessive Partisanship: A New Principle For Judicial Review Of Election Laws, Edward B. Foley
Due Process, Fair Play, And Excessive Partisanship: A New Principle For Judicial Review Of Election Laws, Edward B. Foley
University of Chicago Law Review
American democracy is plagued by excessive partisanship, and yet constitutional law thus far has been incapable of redressing this ill. Gerrymandering is one clear example: the partisan distortion of legislative districts has accelerated dramatically in the last several decades, yet the federal judiciary has been unable to develop a constitutional standard for curbing this egregiously antidemocratic behavior. Likewise, state legislatures around the country in the last decade have been enacting statutes to cut back on voting opportunities, and federal courts have struggled with articulating appropriate standards for evaluating the constitutionality of these roll- back laws. A main reason for this …
Searching For The Common Law: The Quantitative Approach Of The Restatement Of Consumer Contracts, Oren Bar-Gill, Omri Ben-Shahar, Florencia Marotta-Wurgler
Searching For The Common Law: The Quantitative Approach Of The Restatement Of Consumer Contracts, Oren Bar-Gill, Omri Ben-Shahar, Florencia Marotta-Wurgler
University of Chicago Law Review
In 2012, the American Law Institute asked us to serve as reporters for a new Restatement of Consumer Contracts. Recognizing that many innovations in American contract law in the past generation occurred in the area of consumer transactions, the project seemed timely and challenging. We discovered that many of these innovations are controversial and seemingly subject to conflicting approaches in the case law and heated debates among commentators. We also discovered that prior attempts to devise a unified set of rules have largely failed. We therefore decided to take a new approach to our search for, and restatement of, the …