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A Principled Approach To Equitable Compensation Undea Principled Approach To Equitable Compensation Under Erisa § 502(A)(3)R Erisa § 502(A)(3), Gabriel Juedemann

University of Chicago Law Review

In many cases, a beneficiary of an employee benefit plan suffers an injury due to a fiduciary’s misfeasance, but the beneficiary does not have a claim under ERISA’s benefit-recovery provision. In these circumstances, the beneficiary’s only path to relief is § 502(a)(3)’s authorization of “appropriate equitable relief.” But whether that provision permits monetary compensation when a beneficiary sues a fiduciary is a question the Supreme Court has not cleanly resolved, and circuit courts have fractured as a result.

This Comment argues that equitable compensation—or surcharge—should be available under § 502(a)(3) when a beneficiary sues a fiduciary, but only under certain …

Administrative Acquiescence: An Analysis Of Nonadverse Litigation Involving Administrative Agencies, Sami Winawer

University of Chicago Law Review

When an administrative agency declines to defend the constitutionality of its structure, courts must grapple with the unusual scenario in which the parties before it agree—or at least do not disagree—on the merits of the constitutional question at issue. This Comment seeks to provide some clarity to this area of the law by proposing a multifactor framework for courts to use at the standing stage when determining the justiciability of a question when the Executive declines to defend a federal statute, and explaining how these factors can be weighed in cases in which an administrative agency declines to defend some …

Extradition In The Early Republic: International Law And Constitutional Authority, Curtis A. Bradley

University of Chicago Law Review

This Article is the first comprehensive account of the constitutional foundations of U.S. extradition practice and its relationship to international law. Through detailed analysis of early American extradition controversies—including the Longchamps Affair and the Robbins case—the Article shows how political actors and courts constructed the modern constitutional law of extradition, resolving key issues concerning presidential power, the role of the states, and the scope of congressional authority. This regime, the Article argues, emerged not from appeals to the constitutional text or original understandings, but rather from structural intuitions, consequentialist considerations, and, as time went on, historical traditions. As the Article …

Native Marburys: Judicial Review In Tribal Courts, Elizabeth Hidalgo Reese

University of Chicago Law Review

Not all of America’s courts have judicial review. This Article is the first to dis- cuss a body of judicial review case law in which this extraordinary judicial power has been rejected, is a recent development, or is not yet a settled question—judicial review cases from tribal courts. In a time when skepticism about the power that judicial review gives to the federal courts is at an all-time high, it is that much more important that we look to other examples of government systems wrestling with whether to give their courts the power of judicial review—to other courts that are …

Establishing A Right To Civil Transcription, Shruti Bax

University of Chicago Law Review

Court reporters have long been a fixture of American jurisprudence, but tightening state budgets and a nationwide shortage of certified reporters have left many state court civil proceedings without any form of verbatim transcription at public expense. While litigants with means can hire private court reporters to accompany them to their proceedings, indigent parties must go without—even though the absence of a transcript is often deadly to one’s chances of prevailing on appeal, no matter how meritorious the claim.

In the 1956 case Griffin v. Illinois, the Supreme Court held that the principle of equal justice demands that “[d]estitute defendants …

Extending Premerger Notification To Labor Markets, Eric A. Posner, Elena Prager

Coase-Sandor Institute for Law & Economics Research Paper Series

US antitrust law requires mergers above a certain size to be reported to the federal antitrust agencies for review prior to consummation. For decades, this premerger notification process and subsequent merger review focused nearly exclusively on product markets. In the last few years, the agencies have also begun to challenge mergers on their effects on labor markets. But the agencies’ ability to detect potential labor market harms is hampered by an absence of labor market information at the premerger notification stage. This article proposes specific types of information that the agencies could collect about labor markets in order to put …

How Deals Die, Da Lin, Morgan Ricks

University of Chicago Law Review

The risk of deal breakage is central to merger and acquisition (M&A) dealmaking. Yet neither the finance nor corporate law literatures have systematically explored how and why deals fall apart. We rectify this deficiency, making three principal contributions.

First, we develop a comprehensive typology of eight M&A outcomes:
completed-as-announced deals and seven types of deal breakage. This precise mapping provides both positive and normative payoffs. Apart from revealing the multifaceted ways in which announced deals can be disrupted, we detail the starkly differing implications for the merging parties associated with each outcome type and thus illuminate why incorporating outcome heterogeneity …

The Specter Of Future Blight: State Approaches To Speculative Takings, Julianna G. Bass

University of Chicago Law Review

This Comment creates the first comprehensive taxonomy of state eminent domain regimes’ treatment of private-to-private takings for the purpose of preventing future blight. Following the Supreme Court’s expansion of the Public Use Clause in Kelo v. City of New London, many states moved to limit takings justified solely by economic development yet maintained broad blight statutes that continued to authorize the condemnation of property to eliminate or prevent blight. This Comment exposes the indeterminate contours of the future-blight takings landscape and ultimately urges state legislatures and courts seeking to cabin sweeping public use determinations to find the prevention of future …

Enforcing The First Amendment In An Era Of Jawboning, Genevieve Lakier

University of Chicago Law Review

First Amendment law tends to focus on the exercise of formal government power. Nevertheless, for over six decades now, it has been black letter law that the informal exercise of government power can violate the First Amendment when it creates what the Court described in Bantam Books v. Sullivan as an “informal system of censorship,” outside the reach of the formal system. Lower courts have been deeply divided, however, about what kinds of government actions create this kind of informal system. The Court’s recent decision in NRA v. Vullo should end this division. In Vullo, the Court held that officials …

When A Mass Resignation Becomes A Merger: Rethinking Asset Acquisitions For The Ai Era, Nina Fridman

University of Chicago Law Review

The Microsoft–Inflection AI deal shocked Silicon Valley: Nearly all seventy of Inflection’s employees resigned simultaneously to join Microsoft, which then paid the startup’s shell $650 million. After the mass exodus, Inflection appointed new leadership that switched the company’s direction, while Microsoft assumed the mantle of Inflection’s old mission. The competitive effect was thus nearly identical to that of a traditional acquisition. But relying on their novel deal structure to shield them from regulatory requirements, Microsoft and Inflection barreled ahead without filing a notice of the transaction with regulators. The rest of the industry soon followed suit, with Amazon, Google, and …

Quasi-Judicial Immunity Misapplied, Claire Hodges

University of Chicago Law Review

Multiple circuit courts have extended quasi-judicial immunity—a form of judicially derived, absolute immunity—to sheriffs, marshals, and bailiffs when they execute judicial orders. In some circuits, that immunity extension covers the use of excessive force by the officer, even if that force is outside the scope of the order they are executing.

This Comment argues that the trend of lower courts extending quasi-judicial immunity to enforcement officers is inconsistent with the Supreme Court’s absolute immunity doctrine. A survey of the opinions in which the Court has granted absolute immunity to a government official reveals four considerations guiding the Court’s decision. The …

What Sustainability Disclosures Disclose, Kim Hajin

Coase-Sandor Institute for Law & Economics Research Paper Series

Sustainability disclosures are the backbone of corporate sustainability efforts. If stakeholders want companies to compete over how “good” they are for society, they need a way to see what companies are doing and trying to do. But these disclosures have been widely criticized for their lack of credibility and comparability. To improve them, nonprofits and companies have developed voluntary reporting frameworks that many firms have now adopted and that have informed mandatory disclosure regulations. These critiques and regulatory debates have proceeded, however, without basic facts about what these disclosures contain and whether voluntary tools help. Answering these questions has been …

The Return To Autochthonous Law, Grant Christensen

University of Chicago Law Review

This Book Review examines the significance of Professor David E. Wilkins’s (Lumbee Nation) newest book Indigenous Governance: Clans, Constitutions, and Consent. It suggests that Wilkins has produced a critically important collection of primary sources related to the origins of tribal government and that his contribution could not come at a better time within the discipline of Indian Law.

This Book Review takes the position that Indian Law is seeing the emergence of a fourth wave of scholarship that recenters the conversation from tribal self-determination as a means of decolonization to one embracing the autochthonous powers of tribes themselves. It is …

Against General Law Constitutionalism, Joshua Macey, Ketan Ramakrishnan, Brian Richardson

University of Chicago Law Review

This Article considers how and under what circumstances the “general law,” a species of unwritten law grounded in legal customs and practices shared across different legal jurisdictions, might be used in modern constitutional interpretation. Constitutional originalists have increasingly argued that central provisions of the Constitution, such as the First and Second Amendments and the Fourteenth Amendment’s Privileges or Immunities Clause, incorporate various bodies of general law. This Article argues that, even if the Constitution did incorporate various bodies of general law, most of those bodies of law have now been emptied of content, and must remain empty without profound changes …

The Twelfth Amendment And The Era, Stephen E. Sachs

University of Chicago Law Review

How many amendments are in the Constitution? Americans should be able to know. But whether the Equal Rights Amendment is—right now—part of the Constitution remains controversial. Thirty-eight states have sought to ratify it, several of them after the seven-year deadline in the proposing resolution. Given President Joe Biden’s last-minute claim that the ERA is now the Twenty-Eighth Amendment, in a future administration this lingering debate could provoke a minor constitutional crisis.

Yet there may be a legal answer. Congress has long placed operative language in amendment resolutions that modifies the legal force of the proposed text—not only in the Bill …

Some Things Are Actually Nails: The Value Of Randomized Experiments Across Legal Theories, Hajin Kim, Kevin Tobia, Kristen Underhill

University of Chicago Law Review

Experiments sometimes get a bad rap. Critics allege that they don’t illuminate how the real world works, are subject to p-hacking and manipulation, and often don’t study the most important populations of interest. We examine historical uses of experiments to generate knowledge for legal academia. Recently, experiments have become associated with law and economics as part of a broader coupling of quantitative empirical work with law and economics. But experimentation is a highly adaptable, if imperfect, research method that can support causal claims and test assumptions that are useful across many legal theories, including law and political economy. We discuss …

Expanding Sources Of Knowledge In Legal Scholarship, Adam Davidson, Jocelyn Simonson

University of Chicago Law Review

No abstract provided.

Economics Or Populism? The Battle For The Future Of Antitrust, Erik Hovenkamp

University of Chicago Law Review

Mainstream antitrust policy is grounded in economics and views the protection of competition as antitrust’s singular goal. But the populist “antimonopoly movement” believes that antitrust should focus less on economic issues and more on the political influence of large firms. While the courts have long embraced the economic approach to antitrust, antimonopolists have recently gained some support in politics. This battle of ideas is therefore poised to determine the future of antitrust.

Antitrust law currently suffers from a number of problems, but the antimonopoly movement does not offer serious solutions. On the contrary, by deemphasizing tangible economic harms in favor …

The Lpe Critique Of Law And Economics, Sarath Sanga

University of Chicago Law Review

No abstract provided.

Living Under Contract: An Lpe Analysis Of American Democracy, Amy J. Cohen, Ilana Gershon

University of Chicago Law Review

Is President Donald Trump appealing in part because he has made contracts seem like provisional arrangements likely to endure only insofar as they serve his (or putatively national) interests? Two political economy studies of U.S. workplaces and firms, one ethnographic and one historical, can begin to shed light. Ilana Gershon’s ethnography explores how people’s everyday legal and political consciousness is formed through their experiences of regulatory decision-making in a contract filled workplace. Sociologist Melinda Cooper’s historical account reveals how a turn to viewing corporations as a conglomeration of individual contracts paved the way for a veneration of autocratic rule. In …

The Law And Political Economy Movement’S Crime Agenda Hurts Black People, Jonathan Klick

University of Chicago Law Review

The law and political economy (LPE) movement claims concern for marginalized communities as a motivation for its crime agenda. However, efforts to defund police, elect progressive prosecutors, and eliminate prisons are likely to generate large costs for the very communities LPE scholars say they care about. Existing empirical analyses demonstrate that Black individuals benefit disproportionately from the deterrence provided by police. This Essay also provides new evidence that progressive prosecutors have put Black people in lethal danger. Finally, there are reasons to believe that decarceration would not be costless for the Black community.

Contemporary Law And Economics, Adam Chilton, Joshua C. Macey, Mila Versteeg

University of Chicago Law Review

Law and economics (L&E) emerged as a field in the middle of the twentieth century, it focused on using economic theory to study the common law. During this period, L&E offered insights so novel that it not only profoundly influenced legal doctrine, but the movement’s key figures also became some of the most cited and acclaimed scholars in the American academy. The field of law and economics has since continued to grow and become more technically sophisticated, but it is also a less cohesive movement. Moreover, L&E has been misunderstood and misrepresented by the emerging law and political economy (LPE) …

When Should The Legal System Help Redistribute Income?, Jacob Goldin, Zachary Liscow

University of Chicago Law Review

Should legal rules be designed exclusively based on efficiency considerations, or should they also attempt to promote an equitable distribution of social resources? The answer traditionally associated with scholarship in law and economics is that they should focus only on efficiency. Even for a society that cares about achieving an equitable distribution of resources by income, the argument goes, it is generally better to adopt legal rules based exclusively on efficiency considerations while relying on the income tax and transfer system to promote distributional goals.

However, even proponents of the claim that social welfare is best promoted through the adoption …

Law And The Self-Coordinating Market Idea, Sanjukta Paul

University of Chicago Law Review

“This emotional pronouncement of value judgments condemning emotion and value judgments seems to [me] a symptom of a defective sense of humor. The attempt to build a social science on these foundations suggests that the human race, and especially a large proportion of its ‘best minds,’ having at long last (a very long last) found out that the objects of nature are not like human beings—are not actuated by love and hate and caprice and contrariness, and subject to persuasion, cajolery, and threats—have logically inferred that human beings must be like natural objects, and so viewed by the seeker of …

From Kickbacks To False Claims: The Causation Consequences Of The 2010 Anti-Kickback Statute Amendment, Daniella Stoltz

University of Chicago Legal Forum

The 2010 amendment to the Anti-Kickback Statute (AKS) sought to strengthen federal healthcare fraud enforcement by clarifying that Medicare and Medicaid claims submitted to the government “resulting from” AKS violations constitute false claims under the False Claims Act (FCA). However, two words, “resulting from,” have created a deep circuit split over the requisite causation standard. The First, Sixth, and Eighth Circuits require but-for causation, demanding proof that false claims would not have been submitted but-for the illegal kickback. The Third Circuit adopted a looser standard, requiring only some evidence of the illegal kickback and the submitted claim. Rather than focus …

The T+0 Imperative: Modernizing Markets By Shortening The Settlement Cycle, Julia Schreder

University of Chicago Legal Forum

In January 2021, the GameStop short squeeze exposed a major vulnerability in the U.S. financial regulatory system: the T+2 settlement cycle. During the GameStop event, the two-day lag between trade execution and settlement amplified volatility, strained firms like Robinhood, and ultimately limited investor participation. As part of its response, the Securities and Exchange Commission moved from two-day to one-day settlement.

But many of the conditions that led to the GameStop short squeeze persist. Existing securities laws are inadequate to contend with a rapidly evolving online, retail trading landscape. Retail investors are easy targets for bad actors and are frequently left …

When The Rules Burn: A New Approach To Governmental Discretion In Firefighting Operations, Nathan Li

University of Chicago Legal Forum

The Federal Tort Claims Act (FTCA) broadly waives the federal government’s sovereign immunity, but the discretionary function exception (DFE) preserves immunity for acts grounded in judgment or choice. A doctrinal tension arises from the Supreme Court’s instruction in Berkovitz v. United States that the DFE does not apply when a directive “specifically prescribes a course of action.” In high stakes contexts such as wildfire suppression, government actors sometimes deviate from such mandatory directives to make split-second, policy-driven decisions. Yet, in most cases, courts still treat these violations as discretionary acts protected by the DFE, often without explaining how this outcome …

Reckoning With Retaliation: Objective Reasonableness In Sox Whistleblower Cases, Jacob S. Levin

University of Chicago Legal Forum

Congress passed the Sarbanes-Oxley Act of 2002 to prevent systemic fraud. To this end, Congress included unparalleled anti-retaliation protections for whistleblowers in 28 U.S.C. § 1514A, aimed expressly at ending the “corporate code of silence” which enabled large-scale fraud to go undetected.

To fall within the scope of SOX’s anti-retaliation provisions, a whistleblower must demonstrate he had an “objectively reasonable belief” that his employer’s conduct violated the laws or regulations enumerated in § 1514A. However, the Act does not define what a whistleblower must show to establish an “objectively reasonable belief” that their employer engaged in fraudulent conduct. Over time, …

Beyond Elrod: Extending The Presumption Of Irreparable Harm To The Second Amendment, Roland Kim

University of Chicago Legal Forum

In response to gun violence, many states have attempted to implement gun control laws. Some of these gun control laws have been challenged under the Second Amendment, with parties seeking preliminary injunctions to halt these laws’ enforcement until a final judicial decision has been reached.

In legal disputes over whether to grant a preliminary injunction over various gun control laws, circuits are split as to whether an alleged violation of the Second Amendment is presumptively irreparable, i.e., unable to be adequately remedied after a final judgment. In the First Amendment context, the Supreme Court established in Elrod v. Burns that …