Law Commons^™

Bankruptcy's Cathedral: Property Rules, Liability Rules, And Distress, Vincent S.J. Buccola

Northwestern University Law Review

What justifies corporate bankruptcy law in the modern economy? For forty years, economically oriented theorists have rationalized bankruptcy as an antidote to potential coordination failures associated with a company’s financial distress. But the sophistication of financial contracting and the depth of capital markets today threaten the practical plausibility, if not the theoretical soundness, of the conventional model. This Article sets out a framework for assessing bankruptcy law that accounts for changes in the technology of corporate finance. It then applies the framework to three important artifacts of contemporary American bankruptcy practice, pointing toward a radically streamlined vision of the field. …

Matter Of A-B-, Lgbtq Asylum Claims, And The Rule Of Law In The U.S. Asylum System, Nora Snyder

Northwestern University Law Review

On June 11, 2018, then-Attorney General Jeff Sessions released his decision in a case called Matter of A‑B‑, purporting to eliminate domestic violence and gang violence as grounds for asylum. The decision also cast doubt on the continued viability of asylum claims predicated on non-state actor violence, which alarmed LGBTQ advocates, whose asylum claims often involve non-state actor persecutors. In making this change, Sessions used a previously rarely used feature of the asylum system, the Attorney General’s self-certification power. This Note analyzes the potential impact of Matter of A‑B‑ on LGBTQ asylum seekers. Based on the text of the …

Framing Trans Rights, Marie-Amélie George

Northwestern University Law Review

In the wake of marriage equality, opponents of LGBT rights refocused their attention, making transgender rights their main target. To persuade voters to maintain gender identity antidiscrimination protections, LGBT rights campaigns presented trans identity in a specific, but limited, way. These campaigns emphasized gender-conforming transgender individuals—those who adhere to male and female stereotypes—and thereby implicitly reinforced the gender binary. Although LGBT advocates have largely succeeded in their efforts to preserve LGBT rights, their messaging may undermine the movement’s broader litigation strategy and subject nonbinary members of the transgender community to greater discrimination and persecution.

The trans rights framing choices thus …

Passive Voter Suppression: Campaign Mobilization And The Effective Disfranchisement Of The Poor, Bertrall L. Ross Ii, Douglas M. Spencer

Northwestern University Law Review

A recent spate of election laws tightened registration rules, reduced convenient voting opportunities, and required voters to show specific types of identification in order to vote. Because these laws make voting more difficult, critics have analogized them to Jim Crow Era voter suppression laws.

We challenge the analogy that current restrictive voting laws are a reincarnation of Jim Crow Era voter suppression. While there are some notable similarities, the analogy obscures a more apt comparison to a different form of voter suppression—one that operates to effectively disfranchise an entire class of people, just as the old form did for African …

The Transgender Military Ban: Preservation Of Discrimination Through Transformation, Michele Goodwin, Erwin Chemerinsky

Northwestern University Law Review

This Essay contends that the Trump Administration’s ban on transgender individuals serving in the military is based on prejudice and bias, lacking any legitimate justification. As such, the transgender military ban cannot be justified on legal grounds. Nor can it be justified based on health and safety. Engaging a robust empirical record, the authors show that the ban cannot be justified based on matters of efficiency, preparedness, or combat readiness—arguments used by the Trump Administration to justify the ban. Despite transgender individuals serving openly in the military in recent years, the Trump Administration has not been able to offer in …

The Statutory Interpretation Muddle, Richard H. Fallon, Jr.

Northwestern University Law Review

Debates about statutory interpretation typically proceed on the assumption that statutes have linguistic meanings that we can identify in the same way that we identify the meaning of utterances in ordinary conversation. But that premise is false. We identify the meaning of conversational utterances largely based on inferences about what the speaker intended to communicate. With legislatures, as now is widely recognized, there is no unitary speaker with the sort of communicative intentions that speakers in ordinary conversation possess. One might expect this recognition to trigger abandonment of the model of conversational interpretation as a framework for interpreting statutes. Instead, …

Reconstituting We The People: Frederick Douglass And Jürgen Habermas In Conversation, Paul Gowder

Northwestern University Law Review

This Article draws on Black American intellectual history to offer an approach to fundamental questions of constitutional theory from the standpoint of the politically excluded.

Democratic constitutional theory is vexed by a series of well-known challenges rooted in the inability to justify law without democracy (“the countermajoritarian difficulty”) and the inability to justify any particular composition of the popular demos without law (“the problem of constituent power”). Under conditions of genuine egalitarian political inclusion, a constitutional conception of popular sovereignty derived primarily from the civic republican constitutional patriotism associated with Jürgen Habermas and others can resolve these challenges by providing …

This Isn't Lochner, It's The First Amendment: Reorienting The Right To Contract And Commercial Speech, William French

Northwestern University Law Review

The commercial speech doctrine has long weathered accusations that it is simply an attempt to reinvigorate the laissez-faire protections provided by Lochner v. New York. The modern interpretation of Lochner is generally condemnatory, arguing that its “right to contract” is a symbol of the Supreme Court’s unprincipled decision to impose its own economic preferences upon the nation. Even though Lochnerism itself has been dead for nearly 100 years, some scholars believe that the First Amendment’s commercial speech doctrine is on its way to replicating the defenses provided by the right to contract. The argument goes that because speech pervades …

Accredited Investors: A Need For Increased Protection In Private Offerings, Christopher R. Zimmerman

Northwestern University Law Review

On June 19, 2019, the SEC released a report examining, in part, the adequacy of the accredited investor definition contained within Regulation D of the Securities Act of 1933 and soliciting public comment on potential changes to that definition. This Note argues that the current accredited investor definition, which determines who may invest in a private offering, does not adequately protect retail investors. Implemented in 1982 with fixed wealth requirements to qualify, the accredited investor definition has never been significantly revised, despite four decades of inflation that dramatically increased the percentage of households who meet the qualifications of an “accredited …

Algorithmic Advertising Discrimination, Joseph Blass

Northwestern University Law Review

The ability of social media companies to precisely target advertisements to individual users based on those users’ characteristics is changing how job opportunities are advertised. Companies like Facebook use machine learning to place their ads, and machine learning systems present risks of discrimination, which current legal doctrines are not designed to deal with. This Note will explain why it is difficult to ensure such systems do not learn discriminatory functions and why it is hard to discern what they have learned as long as they appear to be performing well on their assigned task. This Note then shows how litigation …

From Language To Law: Interpretation And Construction In Early American Judicial Practice, Hillary Chutter-Ames

Northwestern University Law Review

This Note surveys evidence concerning how early American Supreme Court Justices approached interpretation and construction based on an analysis of Supreme Court opinions from 1795 to 1805. An evaluation of this evidence indicates two main trends. First, the Justices engaged in interpretation and construction as a single process, alternating between textual and normative reasoning to determine the intent of the Framers or of Congress. In some cases, textual reasoning seemed determinative; in others, normative reasoning was decisive. This finding illustrates some tension between the idea of limiting judicial discretion in construction and applying methods of interpretation and construction that would …

Alienating Citizens, Amanda Frost

Northwestern University Law Review

Denaturalization is back. In 1967, the Supreme Court declared that denaturalization for any reason other than fraud or mistake in the naturalization process is unconstitutional, forcing the government to abandon its aggressive denaturalization campaigns. For the last half century, the government denaturalized no more than a handful of people every year. Over the past year, however, the Trump Administration has revived denaturalization. The Administration has targeted 700,000 naturalized American citizens for investigation and has hired dozens of lawyers and staff members to work in a newly created office devoted to investigating and prosecuting denaturalization cases.

Using information gathered from responses …

The Character Of Law: A Normative Critique Of Social-Emotional Learning Laws, Meredith R. Aska Mcbride

Northwestern University Law Review

This Note examines a widespread but barely acknowledged phenomenon within education law: the recent enactment, in all fifty states, of statutes and standards regarding students’ social and emotional learning within public schools. Despite significant empirical evidence that curricular and disciplinary interventions targeting students’ social and emotional skills are effective at building these skills and, in turn, enhancing students’ academic and long-term outcomes, this Note argues that social and emotional learning should not be legislated. Drawing on James Scott’s seminal critique of processes of state rationalization and Jal Mehta’s application of this critique to education policy, this Note shows that the …

Rethinking Police Rulemaking, Maria Ponomarenko

Northwestern University Law Review

For more than sixty years, prominent policing scholars have argued that the way to address the many problems of policing is to treat police departments like all other agencies of government—and to require that they set policy through something like notice-and-comment rulemaking. This paper argues that despite its intuitive appeal, rulemaking is not a particularly apt solution to policing’s various ills. Although policing scholars have been right to look to administrative law for ideas on how to govern policing, they have been focused on the wrong set of administrative tools. Instead of looking to the public to regulate the police …

Forgotten Limits On The Power To Amend State Constitutions, Jonathan L. Marshfield

Northwestern University Law Review

There seem to be no limits on what can pass through state constitutional amendment procedures. State amendments have targeted vulnerable minorities, deeply entrenched specific fiscal strategies, and profoundly restructured institutions. The malleability of state constitutions is significant because in many states there are legitimate fears that special interests dominate amendment politics, and that fundamental change is occurring with minimal opportunities for constructive deliberation or inclusive participation. The state doctrine of “referendum sovereignty” is a key condition fueling this dynamic. The doctrine holds that there are no substantive limits on any state amendment processes so long as amendments comply with federal …

Originalism And A Forgotten Conflict Over Martial Law, Bernadette Meyler

Northwestern University Law Review

This Symposium Essay asks what a largely forgotten conflict over habeas corpus and martial law in mid-eighteenth-century New York can tell us about originalist methods of constitutional interpretation. The episode, which involved Abraham Yates, Jr.—later a prominent Antifederalist—as well as Lord Loudoun, the commander of the British forces in America, and New York Acting Governor James De Lancey, furnishes insights into debates about martial law prior to the Founding and indicates that they may have bearing on originalist interpretations of the Suspension Clause. It also demonstrates how the British imperial context in which the American colonies were situated shaped discussions …

Originalism Versus Living Constitutionalism: The Conceptual Structure Of The Great Debate, Lawrence B. Solum

Northwestern University Law Review

The great debate between originalism and living constitutionalism ought to focus on the merits, including normative arguments for and against various forms of each theory. Frequently, however, discussion turns to disputes about definitions and concepts. This Essay investigates the conceptual structure of the great debate. It lays out a variety of issues that arise when theorists attempt to define “originalism” and “living constitutionalism” and proposes criteria for settling definitional disputes.

Unifying Original Intent And Original Public Meaning, John O. Mcginnis, Michael B. Rappaport

Northwestern University Law Review

Original intent and original public meaning are generally thought to be opposing camps within originalism. Both theories assert that that the meaning of a constitutional provision was fixed at the time it was enacted. But they disagree fundamentally on the nature of interpretation. Original intent asserts that the meaning sought is that intended by the Constitution’s enactors. Original public meaning asserts that the meaning sought is that revealed by the text as reasonably understood by a well-informed reader at the time of the provision’s enactment.

In this Essay, we unite these two conflicting principles of originalism under the original methods …

Originalism And James Bradley Thayer, Steven G. Calabresi

Northwestern University Law Review

This Essay provides an originalist appraisal of Professor James Bradley Thayer’s famous book on The Origin and Scope of the American Doctrine of Constitutional Law. I critique Professor Thayer’s thesis on multiple levels, pointing out important aspects of the original understanding that the Framers would have had of the meaning and origins of the U.S. Constitution, as well as disputing Professor Thayer’s discussion of the history of American judicial review from 1790 to the publication of his book in 1893. I conclude that no person can be both an originalist and a Thayerian. The two theories contradict one another …

Grounding Originalism, William Baude, Stephen E. Sachs

Northwestern University Law Review

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official …

Originalism And Structural Argument, Thomas B. Colby

Northwestern University Law Review

The “new originalism” is all about the text of the Constitution. Originalists insist that the whole point of originalism is to respect and follow the original meaning of the text, and that originalism derives its legitimacy from its unwavering focus on the text alone as the sole basis of higher law. And yet, many leading Supreme Court decisions in matters of great importance to conservatives—in opinions authored and joined by originalist judges, and often praised by originalist scholars—are seemingly not grounded in the constitutional text at all. They rest instead on abstract structural argument: on freestanding principles of federalism and …

Contract Governance In Small-World Networks: The Case Of The Maghribi Traders, Lisa Bernstein

Northwestern University Law Review

This Article revisits the best known example of successful private ordering in the economics literature: the Maghribi Jewish merchants who engaged in both local and long-distance trade across the Islamic Mediterranean in the eleventh century. Drawing on a case study of over 200 Maghribi merchant letters, it develops a network governance-based account of the way that private ordering might have supported exchange among the Maghribi traders with little or no reliance on the public legal system. The analysis reveals that a particular type of bridge-and-cluster configuration of ties among traders and trading centers--known as a “small-world network”—can have strong reputation-based …

Empirical Legal Scholarship: Observations On Moving Forward, Shari Seidman Diamond

Northwestern University Law Review

Empirical legal scholarship was once a novel and contested participant in the legal academy. In the twenty-first century, it has emerged as an active and valued player. That is not to say that empirical research has replaced doctrinal scholarship, or even that an empirical perspective is uncontroversial as a foundation for conclusions about how the legal system ought to operate. The current legal landscape, however, does reflect that empirical legal scholarship is now recognized as a legitimate contributor to our understanding of law and the operation and effects of legal institutions.

Does Patented Information Promote The Progress Of Technology?, Jonathan H. Ashtor

Northwestern University Law Review

This Article investigates the relationship between the exclusive rights of patents, their information disclosures, and the impact they have on the development of future technologies. An examination of over 1000 patents that courts have held valid or invalid reveals a significant positive relationship. Specifically, the private rights and technological impact of patents rise and fall together, and moreover, both are related to the quantity of new and useful technical information contained in their disclosures.

This Article identifies, for the first time, significant differences between the technological impact of valid patents and invalid patents, as measured by the future patented inventions …

Prosecuting In The Shadow Of The Jury, Anna Offit

Northwestern University Law Review

This Article offers an unprecedented empirical window into prosecutorial discretion, drawing on research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make commonsense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants, and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point, I argue that …

A New Strategy For Regulating Arbitration, Sarath Sanga

Northwestern University Law Review

Confidential arbitration is a standard precondition to employment. But confidential arbitration prevents a state from ensuring or even knowing whether employees’ economic, civil, and due process rights are respected. Further, employers regularly require employees to waive rights to class proceedings (thereby foreclosing small claims) and to arbitrate under the laws of another jurisdiction (thereby evading mandatory state law). In response, states have tried to regulate arbitration provisions, arbitral awards, and arbitral processes. But these efforts have all failed because the Supreme Court says they are preempted by the Federal Arbitration Act.

In this Article, I argue that states can and …

Eddie Murphy And The Dangers Of Counterfactual Causal Thinking About Detecting Racial Discrimination, Issa Kohler-Hausmann

Northwestern University Law Review

The model of discrimination animating some of the most common approaches to detecting discrimination in both law and social science—the counterfactual causal model—is wrong. In that model, racial discrimination is detected by measuring the “treatment effect of race,” where the treatment is conceptualized as manipulating the raced status of otherwise identical units (e.g., a person, a neighborhood, a school). Most objections to talking about race as a cause in the counterfactual model have been raised in terms of manipulability. If we cannot manipulate a person’s race at the moment of a police stop, traffic encounter, or prosecutorial charging decision, then …

Fourth Amendment Gloss, Aziz Z. Huq

Northwestern University Law Review

Conventional wisdom suggests that a constitutional right should be defined so as to effectively constrain government actors. A right defined in terms of what state actors routinely do would seem to impose in practice an ineffectual brake on much intrusive state action—and so seems pointless. Nevertheless, in defining Fourth Amendment rights, the Supreme Court frequently draws on the practice of contemporaneous government actors to define the constitutional floor for police action. The actions of the regulated thus define the content of regulation. This Article isolates and analyzes this seemingly paradoxical judicial practice, which it labels “Fourth Amendment gloss,” by analogy …

Abolishing The Suicide Rule, Alex B. Long

Northwestern University Law Review

Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and often triggers irrational fears and misunderstanding. For many, suicide remains an immoral act that flies in the face of strongly held religious principles. In some ways, tort law’s treatment of suicide mirrors the conflicting societal views regarding suicide. Tort law has long been reluctant to permit …

Consequential Sex: #Metoo, Masterpiece Cakeshop, And Private Sexual Regulation, Melissa Murray

Northwestern University Law Review

The last sixty years have ushered in a tectonic shift in American sexual culture, from the sexual revolution—with its liberal attitudes toward sex and sexuality—to a growing recognition of rape culture and sexual harassment. The responses to these changes in sexual culture have varied. Conservatives, for their part, bemoan the liberalization of sexual mores and the rise of a culture where “anything goes.” And while progressives may cheer the liberalization of attitudes toward sex and sexuality and the growing recognition of sexual harassment and sexual assault, they lament the inadequacy of state efforts to combat sexual violence. Although these responses …