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What About "Me (Too)"? The Case For Admitting Evidence Of Discrimination Against Nonparties, Nicholas C. Soltman
What About "Me (Too)"? The Case For Admitting Evidence Of Discrimination Against Nonparties, Nicholas C. Soltman
University of Chicago Law Review
No abstract provided.
Chicago, Post-Chicago, And Neo-Chicago (Reviewing How The Chicago School Overshot The Mark: The Effect Of Conservative Economic Analysis On U.S. Antitrust By Robert Pitofsky), Daniel A. Crane
University of Chicago Law Review
No abstract provided.
Approaching The Limits Of The Bankruptcy Code: Does Surcharging A Debtor's Exempt Assets Go Too Far?, Amanda K. Bloch
Approaching The Limits Of The Bankruptcy Code: Does Surcharging A Debtor's Exempt Assets Go Too Far?, Amanda K. Bloch
University of Chicago Law Review
No abstract provided.
The Legality Of Prolonged Traffic Stops After Herring: Brief Delays As Isolated Negligence, Reid M. Bolton
The Legality Of Prolonged Traffic Stops After Herring: Brief Delays As Isolated Negligence, Reid M. Bolton
University of Chicago Law Review
No abstract provided.
Regulating Privatized Government Through § 1983, Richard Frankel
Regulating Privatized Government Through § 1983, Richard Frankel
University of Chicago Law Review
As governments increasingly delegate traditional public functions to private, for-profit entities, the federal civil rights statute, 42 USC § 1983, has the potential to play an important role in encouraging private entities to respect constitutional rights when they take on public duties. That potential is undermined, however, by the prevailing view that private entities subject to § 1983 should be exempt from the traditional tort principle of respondeat superior liability simply because the Supreme Court already has held that municipal entities are exempt. Exempting private entities carries significant implications, not only because of the growing privatization of government functions, but …
The Captures Clause, Ingrid Wuerth
The Captures Clause, Ingrid Wuerth
University of Chicago Law Review
The Captures Clause of the United States Constitution gives Congress the power to "make Rules concerning Captures on Land and Water." A variety of courts, scholars, politicians, and others have recently cited the Clause to support conflicting arguments about the scope of Congress's power to initiate and prosecute war. Some claim or assume that the Captures Clause gives Congress power over the taking and detention of people, while others conclude that the power is limited to property only. Similarly, those who view Congress's power broadly understand the Captures Clause as giving Congress the general power to determine what (or whom) …
Gone, But Not Forgotten? Habeas Corpus For Necessary Predicate Offenses, Garrett Ordower
Gone, But Not Forgotten? Habeas Corpus For Necessary Predicate Offenses, Garrett Ordower
University of Chicago Law Review
No abstract provided.
The Nanny Corporation, M. Todd Henderson
The Nanny Corporation, M. Todd Henderson
University of Chicago Law Review
Individuals in common pools—for example, employees in firms and citizens in a jurisdiction—want managers of those pools to act paternalistically toward others because this lowers the costs of participating in the pool. The nanny state and, increasingly, the nanny corporation are simply responding to this demand. These two can be thought of as competing in the "market for nannyism" to deliver nannyism to individuals who demand it. Where nannyism is inevitable, as it is in a world in which others pay, the question then becomes which of the two sources of nanny rules—the state or the firm—is the most efficient …
Unitary, Executive, Or Both? (Reviewing The Unitary Executive: Presidential Power From Washington To Bush By Steven G. Calabresi, Christopher S. Yoo), John Yoo
University of Chicago Law Review
No abstract provided.
Crisis Governance In The Administrative State: 9/11 And The Financial Meltdown Of 2008, Eric A. Posner, Adrian Vermeule
Crisis Governance In The Administrative State: 9/11 And The Financial Meltdown Of 2008, Eric A. Posner, Adrian Vermeule
University of Chicago Law Review
This Article compares crisis governance and emergency lawmaking after 9/11 and the financial meltdown of 2008. We argue that the two episodes were broadly similar in outline, but importantly different in detail, and we attempt to explain both the similarities and differences. First, broad political processes, rather than legal or constitutional constraints, operated in both episodes to create a similar pattern of crisis governance, in which Congress delegated large new powers to the executive. We argue that this pattern is best explained by reference to the account of lawmaking in the administrative state offered by Carl Schmitt, as opposed to …
You Can Judge A Container By Its Cover: The Single-Purpose Container Exception And The Fourth Amendment, Allison M. Lucier
You Can Judge A Container By Its Cover: The Single-Purpose Container Exception And The Fourth Amendment, Allison M. Lucier
University of Chicago Law Review
No abstract provided.
Does The Prior Conviction Exception Apply To A Criminal Defendant's Supervised Release Status?, Eric C. Tung
Does The Prior Conviction Exception Apply To A Criminal Defendant's Supervised Release Status?, Eric C. Tung
University of Chicago Law Review
No abstract provided.
Explaining Theoretical Disagreement, Brian Leiter
Explaining Theoretical Disagreement, Brian Leiter
University of Chicago Law Review
Scott Shapiro has recently argued that Ronald Dworkin posed a new objection to legal positivism in Law's Empire, to which positivists, he says, have not adequately responded. Positivists, the objection goes, have no satisfactory account of what Dworkin calls "theoretical disagreement" about law, that is, disagreement about "the grounds of law" or what positivists would call the criteria of legal validity. I agree with Shapiro that the critique is new but disagree that it has not been met. Positivism cannot offer an explanation that preserves the "Face Value" of theoretical disagreements, because the only intelligible dispute about the criteria of …
Executive Branch Contempt Of Congress, Josh Chafetz
Executive Branch Contempt Of Congress, Josh Chafetz
University of Chicago Law Review
After former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten refused to comply with subpoenas issued by a congressional committee investigating the firing of a number of United States Attorneys, the House of Representatives voted in 2008 to hold them in contempt. The House then chose a curious method of enforcing its contempt citation: it filed a federal lawsuit seeking a declaratory judgment that Miers and Bolten were in contempt of Congress and an injunction ordering them to comply with the subpoenas. The district court ruled for the House, although that ruling was subsequently stayed …
Hiding In Plain Sight? Timing And Transparency In The Administrative State, Jacob E. Gersen, Anne Joseph O'Connell
Hiding In Plain Sight? Timing And Transparency In The Administrative State, Jacob E. Gersen, Anne Joseph O'Connell
University of Chicago Law Review
Anecdotal evidence of agencies burying bad news in rife in law and politics. The bureaucracy regularly is accused of announcing controversial policies on holidays and weekends when public attention is elsewhere. We show that this conventional wisdom is wrong, or at least significantly incomplete. The conventional wisdom is riddled with theoretical holes, and there is little systematic empirical evidence to support it. After critiquing the conventional account of agencies hiding bad news, we articulate and defend a revised theory of strategic timing in administrative law. We argue that timing decisions rarely affect the visibility of decisions but can drive up …
Fair Labor Standards Act Preemption Of State Wage-And-Hour Law Claims, Daniel V. Dorris
Fair Labor Standards Act Preemption Of State Wage-And-Hour Law Claims, Daniel V. Dorris
University of Chicago Law Review
No abstract provided.
The Mens Rea Dilemma For Aiding And Abetting A Felon In Possession, Lisa Rachlin
The Mens Rea Dilemma For Aiding And Abetting A Felon In Possession, Lisa Rachlin
University of Chicago Law Review
No abstract provided.
From Victorian Secrets To Cyberspace Shaming (Reviewing Guarding Life's Dark Secrets: Legal And Social Controls Over Reputation, Propriety, And Privacy By Lawrence Friedman), Paul M. Schwartz
University of Chicago Law Review
No abstract provided.
Notice-And-Comment Judicial Decisionmaking, Michael Abramowicz, Thomas B. Colby
Notice-And-Comment Judicial Decisionmaking, Michael Abramowicz, Thomas B. Colby
University of Chicago Law Review
Executive branch agencies typically use a process of "notice and comment" to permit the public to respond to the proposed text of rules. The legal literature has not considered whether a similar process would be helpful for the judicial branch. This Article argues that it would be. Neither the parties to a litigation nor third parties generally have an opportunity to comment on judicial opinions after they are drafted but before they are made final. As a result, judicial opinions often contain errors and frequently have far-ranging and unanticipated negative consequences. A notice-and-comment system could mitigate these concerns, and could …
Reasonable Doubt And The History Of The Criminal Trial (Reviewing The Origins Of Reasonable Doubt: Theological Roots Of The Criminal Trial By James Q. Whitman), Thomas P. Gallanis
Reasonable Doubt And The History Of The Criminal Trial (Reviewing The Origins Of Reasonable Doubt: Theological Roots Of The Criminal Trial By James Q. Whitman), Thomas P. Gallanis
University of Chicago Law Review
No abstract provided.
Private Takings, Abraham Bell
Private Takings, Abraham Bell
University of Chicago Law Review
Eminent domain, or the power to take, is generally analyzed as the quintessential government power. It is unsurprising, therefore, that scholars tend to operate from the basic assumption that eminent domain is solely an incident of the government's domain in the provision of public goods. This assumption has led to widespread criticism of the courts' evisceration of the "public use" requirement, and repetition of the mantra that the government cannot simply take from A in order to give to B. In this Article, I show that this conception of takings is too narrow. In function, if not in name, eminent …
Act Or Asset? Multiplicitous Indictments Under The Bankruptcy Fraud Statute, 18 Usc § 152, Nevin M. Gewertz
Act Or Asset? Multiplicitous Indictments Under The Bankruptcy Fraud Statute, 18 Usc § 152, Nevin M. Gewertz
University of Chicago Law Review
No abstract provided.
The Modernizing Mission Of Judicial Review, David A. Strauss
The Modernizing Mission Of Judicial Review, David A. Strauss
University of Chicago Law Review
Constitutional interpretation, as it is usually conceived, looks to the past—to an old text, to history, to precedent, to tradition—in an effort to limit political majorities. But over the last generation or so, a different approach to the Constitution has emerged. That approach, which might be called modernization, tries to anticipate trends in public opinion instead of taking lessons from the past; and a modernizing court, instead of facing down popular majorities, yields when it finds out that it has misgauged public opinion. This modernizing approach has characterized the Supreme Court's recent work in many disparate areas, including, among others, …
"Securing" The Nation: Law, Politics, And Organization At The Federal Security Agency, 1939–1953, Mariano-Florentino Cuéllar
"Securing" The Nation: Law, Politics, And Organization At The Federal Security Agency, 1939–1953, Mariano-Florentino Cuéllar
University of Chicago Law Review
American public law is affected by two important dynamics impacting the relationship between citizens and their government: how the executive branch defines national security, and how politicians compete to secure control of the vast public organizations through which governments implement the law. This Article analyzes the intersection of these dynamics by investigating the now-forgotten history of the US Federal Security Agency (FSA) and drawing perspectives from separation of powers, organization theory, and the study of American political development. In 1939, the Roosevelt White House overcame strong political opposition to centralize vast legal responsibilities within the FSA. Soon after its creation, …
Claiming Intellectual Property, Jeanne C. Fromer
Claiming Intellectual Property, Jeanne C. Fromer
University of Chicago Law Review
This Article explores the claiming systems of patent and copyright law with a view to how they affect innovation. It first develops a two-dimensional taxonomy: claiming can be either peripheral or central, and either by characteristic or by exemplar. Patent law has principally adopted a system of peripheral claiming, requiring patentees to articulate by the time of the patent grant their invention's bounds, usually by listing its necessary and sufficient characteristics. And copyright law has implicitly adopted a system of central claiming by exemplar, requiring the articulation only of a prototypical member of the set of protected works—namely, the copyrightable …
Going Private But Staying Public: Reexamining The Effect Of Sarbanes-Oxley On Firms' Going-Private Decisions, Robert P. Bartlett Iii
Going Private But Staying Public: Reexamining The Effect Of Sarbanes-Oxley On Firms' Going-Private Decisions, Robert P. Bartlett Iii
University of Chicago Law Review
This Article examines whether the cost of complying with the Sarbanes-Oxley Act of 2002 (SOX) contributed to the rise in going-private transactions after its enactment. Prior studies of this issue generally suffer from a mistaken assumption that by going-private, a publicly traded firm necessarily immunizes itself from SOX. In actuality, the need to finance a going-private transaction often requires firms to issue high-yield debt securities that subject the surviving firm to SEC reporting obligations and, as a consequence, most of the substantive provisions of SOX. This Article thus explores a previously unexamined natural experiment: to the extent SOX contributed to …
Defining "Departure" In The Context Of 8 Cfr § 1003.4, Marianna C. Mancusi-Ungaro
Defining "Departure" In The Context Of 8 Cfr § 1003.4, Marianna C. Mancusi-Ungaro
University of Chicago Law Review
No abstract provided.
Preserving Procedure: Requiring The Government To Disprove Causation In Procedural Due Process Claims, James M. Burnham
Preserving Procedure: Requiring The Government To Disprove Causation In Procedural Due Process Claims, James M. Burnham
University of Chicago Law Review
No abstract provided.
One Hat Too Many? Investment Desegregation In Private Equity, William A. Birdthistle, M. Todd Henderson
One Hat Too Many? Investment Desegregation In Private Equity, William A. Birdthistle, M. Todd Henderson
University of Chicago Law Review
The nature of private-equity investing has changed significantly as two dynamics have evolved in recent years: portfolio companies have begun to experience serious financial distress, and general partners have started to diversify and desegregate their investment strategies. Both developments have led private-equity shops—once exclusively interested in acquiring equity positions through leveraged buyouts—to invest in other tranches of the investment spectrum, most particularly public debt. By investing now in both private equity and public debt of the same issuer, general partners are generating a host of new conflicts of interest between themselves and their limited partners, between multiple general partners in …
Rethinking The Connection Between Developmental Science And Juvenile Justice (Reviewing Rethinking Juvenile Justice By Elizabeth S. Scott, Laurence Steinberg), Emily Buss
University of Chicago Law Review
No abstract provided.