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Supervisory Liability After "Iqbal": Decoupling "Bivens" From Section 1983, William N. Evans
Supervisory Liability After "Iqbal": Decoupling "Bivens" From Section 1983, William N. Evans
University of Chicago Law Review
No abstract provided.
The Price Of Victory: Political Triumphs And Judicial Protection In The Gay Rights Movement, David Schraub
The Price Of Victory: Political Triumphs And Judicial Protection In The Gay Rights Movement, David Schraub
University of Chicago Law Review
No abstract provided.
Reconsidering "Murdoch": State-Law Reversals As Constitutional Avoidance, Jonathan F. Mitchell
Reconsidering "Murdoch": State-Law Reversals As Constitutional Avoidance, Jonathan F. Mitchell
University of Chicago Law Review
In 1874, the Supreme Court held in Murdock v City of Memphis that it lacked "jurisdiction" to review a state supreme court's interpretation of state law, even in cases that present federal-law claims. The justices have since backed away from that seemingly ironclad rule; they now review and set aside state-court interpretations of state law that lack "fair and substantial" or "adequate" support in certain cases where the justices wish to enforce federal rights against the states. Yet the justices continue to labor under the Muraook-inspired notion that they are powerless even to consider reversing a state supreme court's ruling …
Preventive Adjudication, Samuel L. Bray
Preventive Adjudication, Samuel L. Bray
University of Chicago Law Review
This Article identifies, justifies, and explains the parameters of a largely ignored but important category of cases—what is here called "preventive adjudication." In this category of cases, courts offer opinions without any "command" to the parties, and these opinions are meant to avoid future harm, not remedy past harm. Despite receiving little attention in the legal literature, preventive adjudication is pervasive throughout the law. It happens in declaratory judgment actions about wills, patents, and unconstitutionally vague statutes; in paternity and maternity petitions; in petitions to have missing persons declared dead; in boundary disputes; in actions to quiet title. This Article …
The Evolution Of Homeownership (Reviewing The Unbounded Home: Property Values Beyond Property Lines By Lee Anne Fennell), William A. Fischel
The Evolution Of Homeownership (Reviewing The Unbounded Home: Property Values Beyond Property Lines By Lee Anne Fennell), William A. Fischel
University of Chicago Law Review
No abstract provided.
Does The First Amendment Protect Testimony By Public Employees?, Matt Wolfe
Does The First Amendment Protect Testimony By Public Employees?, Matt Wolfe
University of Chicago Law Review
No abstract provided.
Habeas And (Non-)Delegation, Paul Diller
Habeas And (Non-)Delegation, Paul Diller
University of Chicago Law Review
Although the Constitution's Suspension Clause explicitly mentions the writ of habeas corpus, it does not require that Congress make the writ available in its common-law form at all times. Rather, the Clause has long been understood to permit Congress to replace the writ with an alternative procedure, so long as that remedy is an adequate and effective substitute for habeas corpus. Under this functional view of the Suspension Clause, Congress might delegate responsibility for performing the habeas review function to an entity other than an Article III court, so long as the substitute procedure allows a detainee to challenge the …
Privatization's Pretensions, Jon D. Michaels
Privatization's Pretensions, Jon D. Michaels
University of Chicago Law Review
For decades, policymakers have been privatizing government responsibilities for the customary, and ostensibly exclusive, objective of providing the public with the same goods and services more efficiently. It is becoming increasingly apparent that these policymakers are also doing something different: they are using that purportedly technocratic process to substantively alter the very policies they are supposed to be neutrally administering. And, it is working: these privatization "workarounds" can directly change the content of public education, health, and social welfare programs, the outcome of regulatory enforcement and rulemaking proceedings, and the trajectory of police and national security operations. Workarounds provide outsourcing …
Against Feasibility Analysis, Jonathan S. Masur, Eric A. Posner
Against Feasibility Analysis, Jonathan S. Masur, Eric A. Posner
University of Chicago Law Review
Feasibility analysis, a method of evaluating government regulations, has emerged as the major alternative to cost-benefit analysis. Although regulatory agencies have used feasibility analysis (in some contexts called "technology-based" analysis) longer than cost-benefit analysis, feasibility analysis has received far less attention in the scholarly literature. In recent years, however, critics of cost-benefit analysis have offered feasibility analysis as a superior alternative. We advance the debate by uncovering the analytic structure of feasibility analysis and its normative premises, and then criticizing them. Our account builds on two examples of feasibility analysis, one conducted by OSHA and the other by EPA. We …
The Overstated Promise Of Corporate Governance (Reviewing Corporate Governance: Promises Kept, Promises Broken By Jonathan Macey), Jill E. Fisch
The Overstated Promise Of Corporate Governance (Reviewing Corporate Governance: Promises Kept, Promises Broken By Jonathan Macey), Jill E. Fisch
University of Chicago Law Review
No abstract provided.
From Sense To Nonsense And Back Again: Sro Immunity, Doctrinal Bait-And-Switch, And A Call For Coherence, Rohit A. Nafday
From Sense To Nonsense And Back Again: Sro Immunity, Doctrinal Bait-And-Switch, And A Call For Coherence, Rohit A. Nafday
University of Chicago Law Review
No abstract provided.
The Classical Liberal Alternative To Progressive And Conservative Constitutionalism (Reviewing The Constitution In 2020 By Jack M. Balkin, Reva B. Siegel), Richard A. Epstein
The Classical Liberal Alternative To Progressive And Conservative Constitutionalism (Reviewing The Constitution In 2020 By Jack M. Balkin, Reva B. Siegel), Richard A. Epstein
University of Chicago Law Review
No abstract provided.
The Political Roots Of Judicial Legitimacy: Explaining The Enduring Validity Of The Insular Cases, Krishanti Vignarajah
The Political Roots Of Judicial Legitimacy: Explaining The Enduring Validity Of The Insular Cases, Krishanti Vignarajah
University of Chicago Law Review
At the end of the Spanish-American War of 1898, America gained control of three new territories—Puerto Rico, Guam, and the Philippines. The political fate of these islands generated a bitter debate in the United States as many wondered how a country whose identity had been forged in the crucible of colonialism could, only a century after gaining its independence, administer an empire of its own. Despite the enormous political and public attention paid to the issue of American expansion, it was the Supreme Court—in a series of decisions collectively known as the Insular Cases—that interceded to settle the protracted political …
Entrenching Environmentalism: Private Conservation Easements Over Public Land, Christopher Serkin
Entrenching Environmentalism: Private Conservation Easements Over Public Land, Christopher Serkin
University of Chicago Law Review
This Article examines how local governments can use private law mechanisms to entrench policy in ways that circumvent typical legal limitations. The Article explores in detail a specific example of a town donating conservation easements over property it owns to a third-party not-for-profit conservation organization to ensure that the property would not be developed in the future. This is nearly the functional equivalent of passing an unrepeatable zoning ordinance to restrict development, something existing antientrenchment rules would never permit. The Article discusses the costs and benefits of using such a device. It theorizes generally about the nature of entrenchment outside …
The Most Popular Tool: Tax Increment Financing And The Political Economy Of Local Government, Richard Briffault
The Most Popular Tool: Tax Increment Financing And The Political Economy Of Local Government, Richard Briffault
University of Chicago Law Review
Tax increment financing (TIF) is the most widely used local government program for financing economic development in the United States, but the proliferation of TIF is puzzling. TIF was originally created to support urban renewal programs and was narrowly focused on addressing urban blight, yet now it is used in areas that are plainly unblighted. TIF brings in no outside money and provides no new revenue-raising authority. There is little clear evidence that TIF has done much to help the municipalities that use it, and it is also a source of intergovernmental tension and a site of conflict over the …
The Timing Of Elections, Christopher R. Berry, Jacob E. Gersen
The Timing Of Elections, Christopher R. Berry, Jacob E. Gersen
University of Chicago Law Review
There are nearly half a million elected officials in American local governments, and the timing of their elections varies enormously both across states and even within the same state. Some local elections are held simultaneously with major federal and state races, while others are held at times when no higher level elections coincide. This Article argues that the timing of local elections drives turnout and, ultimately, substantive policymaking. When local elections do not coincide with important federal or state contests, the marginal cost to voters of participating rises, and consequently only those voters with the greatest stake in the electoral …
How To Undermine Tax Increment Financing: The Lessons Of City Of Chicago V Prologis, Richard A. Epstein
How To Undermine Tax Increment Financing: The Lessons Of City Of Chicago V Prologis, Richard A. Epstein
University of Chicago Law Review
This Article examines the appropriate level of constitutional protection against outside governments that condemn property located within a given local municipality that uses tax increment financing (TIF) to fund local improvements. The standard TIF arrangement does not provide the TIF lenders with liens against any particular asset, because to do so would be to abandon the tax-exempt status of the municipal bonds that are issued. Yet these agreements guarantee that the local government that issued the bonds will take no steps to compromise their repayment from (incremental) tax dollars. These protections allow TIF bonds to trade in ordinary financial markets. …
Neither "Creatures Of The State" Nor "Accidents Of Geography": The Creation Of American Public School Districts In The Twentieth Century, William A. Fischel
Neither "Creatures Of The State" Nor "Accidents Of Geography": The Creation Of American Public School Districts In The Twentieth Century, William A. Fischel
University of Chicago Law Review
American public school districts numbered more than 200,000 in 1910. By 1970 there were fewer than 20,000. The decline was almost entirely accounted for by the consolidation of one-room, rural schools into larger school districts. Education leaders had long urged districts to consolidate, but local residents voted to do so, I argue, only after high school education became widespread. Graduates of one-room schools found it difficult to get into high school. Rural districts that were not "making the grade" were unattractive to home and farm buyers, and the threat of reduced property values induced voters to agree to consolidate.
Affordable Private Education And The Middle Class City, Nicole Stelle Garnett
Affordable Private Education And The Middle Class City, Nicole Stelle Garnett
University of Chicago Law Review
City leaders, who have struggled for decades with public education reform, are well aware that good schools are needed to attract residentially mobile families to urban neighborhoods. But, while critically important, public education reform alone is not enough. Rather, state and local officials hoping to make our central city neighborhoods attractive places to raise children should come to understand that affordable private schools serve an important urban-development function: they partially unbundle the residential and educational decisions of families with children. Most middle class families, however, cannot afford to send their children to private schools. Thus, state and local officials hoping …
Who Should Authorize A Commuter Tax?, Clayton P. Gillette
Who Should Authorize A Commuter Tax?, Clayton P. Gillette
University of Chicago Law Review
The decision to impose a commuter tax — a tax on income earned within the city by nonresidents — is typically made at the state level. There are both doctrinal and economic reasons for this allocation of authority. Cities are creatures of the states of which they are political subdivisions, and legal doctrine requires that they receive either state legislative or constitutional approval before exercising authority. States have jealously guarded their prerogatives over the taxing power. Perhaps there is nothing surprising about this state of affairs with respect to commuter taxes. After all, the natural stopping point for the exercise …
Controlling Residential Stakes, Lee Anne Fennell, Julie A. Roin
Controlling Residential Stakes, Lee Anne Fennell, Julie A. Roin
University of Chicago Law Review
Local communities often suffer when residents have too small a stake in their homes—a point underscored by recent rashes of foreclosures and abandonments, and implicated by longstanding questions about the effects on communities of renters and owner-occupants, respectively. However, homeowners with too great a financial stake in their homes can also cause difficulties for local governance by acting as risk-averse NIMBYs. Local governments should have a strong interest in helping members of their communities move away from problematic forms of stakeholding and toward more desirable intermediate positions. This Article examines how and why governmental entities at the state and local …
Rethinking The Theory And Practice Of Local Economic Development, Richard C. Schragger
Rethinking The Theory And Practice Of Local Economic Development, Richard C. Schragger
University of Chicago Law Review
Scholars of urban law and policy tend to assume that local officials can exert some influence over city well-being. More specifically, the literature assumes that government policies—either at the federal, state, or local level—can influence local economic growth and decline, the most important determinants of a city's health. This connection between policy and local economic outcomes implies a theory of how cities form and grow, however, and legal scholars have not adequately articulated such a theory. This Article argues that we need a better (and more self-conscious) account of city formation and local economic growth. The Article then tests our …
Fast-Track Sentencing Disparity: Rereading Congressional Intent To Resolve The Circuit Split, Thomas E. Gorman
Fast-Track Sentencing Disparity: Rereading Congressional Intent To Resolve The Circuit Split, Thomas E. Gorman
University of Chicago Law Review
No abstract provided.
When "No" Is Not Enough: The Express Rejection Of Sexual Advances Under Title Vii, Diana M. Watral
When "No" Is Not Enough: The Express Rejection Of Sexual Advances Under Title Vii, Diana M. Watral
University of Chicago Law Review
No abstract provided.
Retributivism Refined—Or Run Amok? (Reviewing Crime And Culpability: A Theory Of Criminal Law By Larry Alexander, Kimberly Kessler Ferzan, Stephen Morse), Kenneth W. Simons
Retributivism Refined—Or Run Amok? (Reviewing Crime And Culpability: A Theory Of Criminal Law By Larry Alexander, Kimberly Kessler Ferzan, Stephen Morse), Kenneth W. Simons
University of Chicago Law Review
No abstract provided.
Community Benefits Agreements: A New Local Government Tool Or Another Variation On The Exactions Theme?, Vicki Been
Community Benefits Agreements: A New Local Government Tool Or Another Variation On The Exactions Theme?, Vicki Been
University of Chicago Law Review
Community benefits agreements (CBAs) are the latest in a long line of tools neighbors have used to protect their neighborhood from the burdens of development, and to try to secure benefits from the proposed development. This Article canvasses the benefits and drawbacks various stakeholders perceive CBAs to offer or to threaten, and reviews the legal and policy questions CBAs present. It recommends that local governments avoid the use of CBAs in land use approval processes unless the CBAs are negotiated through processes designed to ensure the transparency of the negotiations, the representativeness and accountability of the negotiators, and the legality …
Debacle: How The Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended, Frank O. Bowman Iii
Debacle: How The Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended, Frank O. Bowman Iii
University of Chicago Law Review
This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v Pennsylvania in 1986, crescendoed in Blakely v Washington and United States v Booker in 2004-2005, and continues in cases such as Oregon v Ice, is a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It has failed to recognize that defining, adjudicating, and punishing crimes implicates both the Sixth Amendment …
The Foreclosure Crisis And The Antifragmentation Principle In State Property Law, David A. Dana
The Foreclosure Crisis And The Antifragmentation Principle In State Property Law, David A. Dana
University of Chicago Law Review
This Article explains how excessive fragmentation of property interests in mortgages has prevented reasonable modifications in loan terms and helped to create the current foreclosure crisis. The Article argues that Anglo-American property law reflects an antifragmentation principle. This principle offers historical grounding for and constitutional legitimacy to proposals to restructure the servicing of troubled loans so as to produce loan modifications when doing so would produce more net economic value than foreclosure. The Article also considers some reforms that could be adopted to prevent future cycles of excessive fragmentation of property interests in mortgages.
The Steep Costs Of Using Noncumulative Zoning To Preserve Land For Urban Manufacturing, Roderick M. Hills Jr, David Schleicher
The Steep Costs Of Using Noncumulative Zoning To Preserve Land For Urban Manufacturing, Roderick M. Hills Jr, David Schleicher
University of Chicago Law Review
In cities around the country, huge swaths of property in desirable locations house only empty warehouses, barely-used shipping facilities, and heavily subsidized industrial-age factories, often right across the street from high-end condos and office buildings. The reason is a widely-used, but poorly understood form of local industrial policy known as non-cumulative zoning. In contrast with traditional Euclidean zoning, in which manufacturing uses were prohibited in residential areas but not vice versa, areas that are zoned non-cumulatively allow only manufacturing uses and bar any residential (and sometimes even commercial uses) of property. The arguments for non-cumulative zoning are always the same: …
Direct Voting By Property Owners, Thomas W. Merrill
Direct Voting By Property Owners, Thomas W. Merrill
University of Chicago Law Review
Direct voting by property owners is a widespread but controversial tool for resolving disputes over local collective goods. Direct voting has powerful advantages, in that it can harness the superior knowledge of many local minds, resolve controversies in a way that is perceived to be legitimate, and eliminate corrupt dealmaking. But it also has serious pitfalls, if local voters are poorly informed, or if they ignore external effects on other communities, or if the process is distorted by majoritarian or minoritarian bias. To capitalize on the advantages of local voting, and minimize the risks, this Article proposes that direct voting …