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Is Drug Quantity An Element Of 21 Usc § 841(B)? Determining The "Apprendi" Statutory Maximum, Lindsay Calkins
Is Drug Quantity An Element Of 21 Usc § 841(B)? Determining The "Apprendi" Statutory Maximum, Lindsay Calkins
University of Chicago Law Review
No abstract provided.
Randomization And The Fourth Amendment, Bernard E. Harcourt, Tracey L. Meares
Randomization And The Fourth Amendment, Bernard E. Harcourt, Tracey L. Meares
University of Chicago Law Review
Randomized checkpoint searches are generally taken to be the exact antithesis of reasonableness under the Fourth Amendment. In the eyes of most jurists, checkpoint searches violate the central requirement of valid Fourth Amendment searches—namely, individualized suspicion. We disagree. In this Article, we contend that randomized searches should serve as the very lodestar of a reasonable search. The notion of "individualized" suspicion is misleading; most suspicion in the modern policing context is group based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on the question …
Settlements As Sales Under The Bankruptcy Code, Peter J. Davis
Settlements As Sales Under The Bankruptcy Code, Peter J. Davis
University of Chicago Law Review
No abstract provided.
Enumerated Federal Power And The Necessary And Proper Clause (Reviewing The Origins Of The Necessary And Proper Clause By Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, Guy I. Seidman), John Harrison
University of Chicago Law Review
No abstract provided.
Painting On A Canvas Of Skin: Tattooing And The First Amendment, Ryan J. Walsh
Painting On A Canvas Of Skin: Tattooing And The First Amendment, Ryan J. Walsh
University of Chicago Law Review
No abstract provided.
Public Entrenchment Through Private Law: Binding Local Governments, Christopher Serkin
Public Entrenchment Through Private Law: Binding Local Governments, Christopher Serkin
University of Chicago Law Review
Anti-entrenchment rules prevent governments from passing unrepeatable legislation and ensure that subsequent governments are free to revisit the policy choices of the past. However, governments—and local governments in particular—have become increasingly adept at using private law mechanisms like contracts and property conveyances to make binding precommitments into the future. Simultaneously, courts and state legislatures in recent years have reduced the availability of core de-entrenching tools, like eminent domain, that have traditionally allowed governments to recapture policymaking authority from the past. These changes threaten to shift democratic power intertempor ally. This Article develops a typology of mechanisms for public entrenchment through …
Federalism From The Bottom Up (Reviewing The Ideological Origins Of American Federalism By Alison L. Lacroix), Gordon S. Wood
Federalism From The Bottom Up (Reviewing The Ideological Origins Of American Federalism By Alison L. Lacroix), Gordon S. Wood
University of Chicago Law Review
No abstract provided.
Reconsidering Racial And Partisan Gerrymandering, Adam B. Cox, Richard T. Holden
Reconsidering Racial And Partisan Gerrymandering, Adam B. Cox, Richard T. Holden
University of Chicago Law Review
In recent years, scholars have come to a general agreement about the relationship between partisan gerrymandering and racial redistricting. Drawing districts that contain a majority of minority voters, as is often required by the Voting Rights Act, is said to help minority voters in those districts but hurt the Democratic Party more broadly. This Article argues that this familiar claim is based on a mistaken assumption about how redistricters can best manipulate districts for partisan gain—an assumption grounded in the idea that all voters can be thought of as either Democrats or Republicans. Relaxing this assumption, and acknowledging that voters …
Strategic Libility In The Corporate Group, Richard Squire
Strategic Libility In The Corporate Group, Richard Squire
University of Chicago Law Review
The typical large corporation divides itself into numerous subsidiaries but then overrides the liability barriers between them by having the subsidiaries and the parent company cross-guarantee each other's major debts. Previous scholarly theories of the corporate group cannot explain why. The leading theory posits that the subsidiaries make it easier for creditors to evaluate risk because they enable each creditor to lend against a discrete asset pool within the broader enterprise. But any such efficiency would be undercut by the guarantees, which transmit credit risk across subsidiary boundaries. This Article argues that the combination of subsidiaries and intragroup guarantees reflects …
Understanding The Statutory Tax Practitioner Privilege: What Is Tax Shelter "Promotion"?, Jared T. Meier
Understanding The Statutory Tax Practitioner Privilege: What Is Tax Shelter "Promotion"?, Jared T. Meier
University of Chicago Law Review
No abstract provided.
The Alien Tort Statute And The Law Of Nations, Anthony J. Bellia Jr, Bradford R. Clark
The Alien Tort Statute And The Law Of Nations, Anthony J. Bellia Jr, Bradford R. Clark
University of Chicago Law Review
Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts ... shall ... have cognizance ... of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United …
Reply: Rhetoric And Reality In Early American Legal History: A Reply To Gordon Wood (Reviewing The University Of Chicago Law Review), Alison L. Lacroix
Reply: Rhetoric And Reality In Early American Legal History: A Reply To Gordon Wood (Reviewing The University Of Chicago Law Review), Alison L. Lacroix
University of Chicago Law Review
No abstract provided.
Will Increased Disclosure Help? Evaluating The Recommendations Of The Ali's "Principles Of The Law Of Software Contracts", Florencia Marotta-Wurgler
Will Increased Disclosure Help? Evaluating The Recommendations Of The Ali's "Principles Of The Law Of Software Contracts", Florencia Marotta-Wurgler
University of Chicago Law Review
The aim of the American Law Institute's new Principles of the Law of Software Contracts is to improve online contracting practices. Instead of regulating terms directly to reduce the possibility of unfair or biased terms, the Principles emphasize increased contract disclosure to encourage readership and comparison shopping. In this Article, I test whether increasing disclosure in the proposed manner is likely to increase readership in the setting of end user license agreements (EULAs) of software sold online. I follow the clickstreams of 47,399 households to 81 Internet software retailers and find that EULAs are approximately 0.36 percent more likely to …
The Creativity Effect, Christopher Buccafusco, Christopher Jon Sprigman
The Creativity Effect, Christopher Buccafusco, Christopher Jon Sprigman
University of Chicago Law Review
This Article reports the first experiment to demonstrate the existence of a valuation anomaly associated with the creation of new works. To date, a wealth of social science research has shown that the least amount of money that owners of goods are willing to accept to part with their possessions is often far greater than the amount that purchasers would be willing to pay to obtain them. This phenomenon, known as the endowment effect, may create substantial inefficiencies in many markets. Our experiment demonstrates the existence of a related "creativity effect. "We show that creators of works value their creations …
Contracting Around Copyright: The Uneasy Case For Unbundling Of Rights In Creative Works, Guy A. Rub
Contracting Around Copyright: The Uneasy Case For Unbundling Of Rights In Creative Works, Guy A. Rub
University of Chicago Law Review
The Copyright Act grants authors and users a set of entitlements in copyrightable works. It is questionable whether and to what extent authors and users can reallocate these rights by entering into legally enforceable contracts. The Seventh Circuit's historic decision in ProCD, Ine v Zeidenberg, which held that contracts are usually not preempted by the Copyright Act, produced an extensive debate in the copyright literature regarding the enforceability and desirability of such contracts. Many participants in this debate, both supporters and critics of the court's holding, assume that the ProCD rule enhances economic efficiency by allowing authors to unbundle the …
Questioning The Frequency And Wisdom Of Compulsory Licensing For Pharmaceutical Patents, Richard A. Epstein, F. Scott Kieff
Questioning The Frequency And Wisdom Of Compulsory Licensing For Pharmaceutical Patents, Richard A. Epstein, F. Scott Kieff
University of Chicago Law Review
Many advocates for using compulsory licensing (CL) for pharmaceutical patents in developing countries like Thailand rest their case in part on the purported use of CL in the United States. In this Article we take issue with that proposition on several grounds. As a textual mattery the "commercially reasonable terms" language in Article 31 of TRIPS, even when qualified by the Doha declaration, prevents any host nation from using whatever royalties it wants in its CL arrangements, especially those that are below marginal cost. As a theoretical matter, we argue that the basic presumption in favor of voluntary licenses for …
Patent Liability Rules As Search Rules, Jonathan S. Masur
Patent Liability Rules As Search Rules, Jonathan S. Masur
University of Chicago Law Review
Patent law's infringement doctrines, commonly understood to be simply rules of liability, are in fact search rules as well Patent liability rules determine not only who will be responsible for what conduct, but also when patent holders and potential infringers will benefit from locating (or remaining ignorant of) one another. They thus affect the conditions under which parties will have incentives to engage in search. The dynamics of patent search are actually quite complicated. Under normal circumstances, patent law's liability rules generate approximately optimal investments in search as both patent holders and possible infringers have incentives to locate one another. …
Cafa And Parens Patriae Actions, Dwight R. Carswell
Cafa And Parens Patriae Actions, Dwight R. Carswell
University of Chicago Law Review
No abstract provided.
Damages For Unlicensed Use, Omri Ben-Shahar
Damages For Unlicensed Use, Omri Ben-Shahar
University of Chicago Law Review
This Article investigates the distinction between breach of license and infringement of property rights and how damages ought to be measured for each. It identifies two remedial puzzles. First, under current law the line between breach of a license contract and infringement of a property right is murky, and thus minor differences between violations could lead to major differences in damage measures. Second, damages for infringement are augmented in a subtle but distortive way by giving owners an option to choose between the greater of two computation measures, each based on different information. The Article argues that these existing remedial …
Patent Costs And Unlicensed Use Of Patented Inventions, Rebecca S. Eisenberg
Patent Costs And Unlicensed Use Of Patented Inventions, Rebecca S. Eisenberg
University of Chicago Law Review
Recent commentators have observed, and sometimes lamented, significant gaps between the formal reach of the patent system and the practical exclusionary effect of patent law. It is costly for technology developers to obtain and assert patents, for technology users to identify the patents they might be infringing and to clear rights, and for the Patent and Trademark Office (PTO) to find patent-defeating prior art The costs of the patent system provide shelter for infringing behavior that might otherwise lead to either licensing or liability, perhaps mitigating excesses in the patent system while retaining strong rights that motivated owners may enforce. …
Practicing In The Patent Marketplace, Anne Kelley
Practicing In The Patent Marketplace, Anne Kelley
University of Chicago Law Review
The growing secondary market for patents is a relatively recent phenomenon. Understanding this unusual and developing market is necessary to navigating it effectively. This Article surveys the marketplace, identifies its key players, and notes some of the unique challenges presented in patent sales. Patents are unique assets with differing impacts in different hands. They are susceptible of effective valuation only by specialists—yet most patents are not worth such costly effort and investment. This Article explores how this vibrant marketplace continues to adapt to value these unique assets more efficiently and to deal with imperfect information in individual transactions.
Tradition As Justification: The Case Of Opposite-Sex Marriage, Kim Forde-Mazrui
Tradition As Justification: The Case Of Opposite-Sex Marriage, Kim Forde-Mazrui
University of Chicago Law Review
A central point of contention in the national debate over same-sex marriage is the importance of preserving tradition. That debate also features prominently in constitutional litigation over bans on same-sex marriage. Opponents of such bans argue that tradition is an illegitimate justification for the bans, while defenders of traditional marriage contend that tradition is not only a legitimate justification, but is in fact sufficiently important to withstand heightened judicial scrutiny. This Article assesses tradition as a justification for laws challenged on equal protection grounds, with a focus on laws that limit marriage to opposite-sex couples. The Article makes two main …
Executive Power And The Discipline Of History (Reviewing Crisis And Command: The History Of Executive Power From George Washington To George W. Bush By John Yoo), Julian Davis Mortenson
Executive Power And The Discipline Of History (Reviewing Crisis And Command: The History Of Executive Power From George Washington To George W. Bush By John Yoo), Julian Davis Mortenson
University of Chicago Law Review
No abstract provided.
Defending Disclosure In Software Licensing, Robert A. Hillman, Maureen O'Rourke
Defending Disclosure In Software Licensing, Robert A. Hillman, Maureen O'Rourke
University of Chicago Law Review
This Article surveys prominent kinds of disclosures in contract law—of facts, contract terms, and performance intentions. We show why the disclosure tool, although subject to substantial criticism, promotes important social values and goals, including efficiency, autonomy, corrective justice, fairness, and the legitimacy of the contract process. Further, proposals to replace disclosure with other alternatives are unrealistic because they are too expensive or complex. Our working example is the American Law Institute's Principles of the Law of Software Contracts.
"Based On" The Guidelines? Applying Retroactive Sentencing Amendments To Binding Plea Agreements, Daniel I. Siegfried
"Based On" The Guidelines? Applying Retroactive Sentencing Amendments To Binding Plea Agreements, Daniel I. Siegfried
University of Chicago Law Review
No abstract provided.
An Argument For Requiring Officer Identification, Jeffrey A. Crapko
An Argument For Requiring Officer Identification, Jeffrey A. Crapko
University of Chicago Law Review
No abstract provided.
Sentencing Discretion At Gunpoint: How To Think About Convictions Underlying § 924(C) Mandatory Minimums, Molly Booth
Sentencing Discretion At Gunpoint: How To Think About Convictions Underlying § 924(C) Mandatory Minimums, Molly Booth
University of Chicago Law Review
No abstract provided.
Summary Dismissals, James Fallows Tierney
Summary Dismissals, James Fallows Tierney
University of Chicago Law Review
No abstract provided.
On Law's Tiebreakers, Adam M. Samaha
On Law's Tiebreakers, Adam M. Samaha
University of Chicago Law Review
Tiebreakers are familiar tools for decisionmaking. Ready examples include penalty shootouts in soccer matches and vice presidents breaking tie votes in the Senate. But we lack a precise understanding of the concept and a normative theory for the use of tiebreakers. This Article strictly defines a tiebreaker as a kind of lexically inferior decision rule and then builds justifications for tiebreaking decision structures. Concentrating on situations in which ties are considered intolerable, the Article suggests methods for either preventing ties or designing sensible tiebreakers. As to the latter, tradeoffs are identified for the use of random variables, morally relevant variables, …
Some Realism About Punishment Naturalism (With Responses), Donald Braman, Dan M. Kahan, David A. Hoffman, Paul H. Robinson
Some Realism About Punishment Naturalism (With Responses), Donald Braman, Dan M. Kahan, David A. Hoffman, Paul H. Robinson
University of Chicago Law Review
In this Article, we critique the increasingly prominent claims of Punishment Naturalism—the notion that highly nuanced intuitions about most forms of crime and punishment are broadly shared, and that this agreement is best explained by a particular form of evolutionary psychology. While the core claims of Punishment Naturalism are deeply attractive and intuitive, they are contradicted by a broad array of studies and depend on a number of logical missteps. The most obvious shortcoming of Punishment Naturalism is that it ignores empirical research demonstrating deep disagreements over what constitutes a wrongful act and just how wrongful a given act should …