Law Commons^™

Reviewing Presidential Orders, Lisa Manheim, Kathryn A. Watts

University of Chicago Law Review

Beginning with President Ronald Reagan, presidents of both political parties increasingly have relied on executive orders and other unilateral written directives as a means of exerting significant control over agencies’ policymaking activities. Nevertheless, no coherent or well-theorized legal framework exists to guide courts as they review presidential orders. In contrast, a robust body of administrative law principles—rooted largely in the Administrative Procedure Act (APA)—exists to guide courts in their review of agency action, including agency action that is heavily influenced by the president. Until recently, this gap in the legal framework did not prove particularly problematic because litigants generally waited …

Standing For Statues, But Not For Statutes? An Argument For Purely Stigmatic Harm Standing Under The Establishment Clause, Merav Bennett

University of Chicago Law Review

In the wake of Obergefell v Hodges, a number of state legislatures passed laws exempting individuals with religious objections to same-sex marriage from state antidiscrimination laws. By granting special privileges to religious adherents, these laws may violate the Establishment Clause. This Comment concerns the threshold issue of which plaintiffs have standing to bring such an Establishment Clause challenge. Specifically, can the emotional harm caused by a law’s stigmatizing message—for example, the message that individuals in same-sex relationships are lessvalued members of the community—constitute a judicially cognizable “injury in fact” in the Establishment Clause context? This question has split the lower …

Clarity Doctrines, Richard Re

University of Chicago Law Review

Clarity doctrines are a pervasive feature of legal practice. But there is a fundamental lack of clarity regarding the meaning of legal clarity itself, as critics have pointed out. This Article explores the nature of legal clarity as well as its proper form. In short, the meaning of legal clarity in any given doctrinal context should turn on the purposes of the relevant doctrine. And the reasons for caring about clarity generally have to do with either (i) the deciding court’s certainty about the right answer or (ii) the predictability that other interpreters (apart from the deciding court) would converge …

In Defense Of The Hare: Primary Jurisdiction Doctrine And Scientific Uncertainty In State-Court Opioid Litigation, Anna Stapleton

University of Chicago Law Review

When state and local governments sue prescription opioid manufacturers in state courts, the defendants often move for courts to stay or dismiss proceedings under the doctrine of primary jurisdiction. This common-law doctrine instructs courts to issue stays when waiting for a federal agency to address specific issues within the case would promote uniformity or allow the court to benefit from the agency’s expertise. In the prescription opioid cases, defendant manufacturers have argued that courts should stay proceedings until the completion of a new set of studies ordered by the Food and Drug Administration (FDA). State courts have divided on whether …

Whether 8 Usc § 1252(G) Precludes The Exercise Of Federal Jurisdiction Over Claims Brought By Wrongfully Removed Noncitizens, Matthew Miyamoto

University of Chicago Law Review

Section 1252(g) of the Immigration and Nationality Act provides that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.” The Eighth and Ninth Circuits disagree about whether this provision precludes judicial review over claims brought by noncitizens who are wrongfully removed from the United States. This Comment advances four arguments for why § 1252(g) should be interpreted narrowly to allow federal jurisdiction over such claims by looking to Supreme …

Tangled Arms: Modernizing And Unifying The Arm-Of-The-State Doctrine, Kelsey Joyce Dayton

University of Chicago Law Review

The arm-of-the-state doctrine, which entitles certain governmental entities to the states’ sovereign immunity, is an embodiment of American federalism. In theory, this doctrine ensures that federal courts appreciate the concerns for state sovereignty and solvency that motivated the passage of the Eleventh Amendment. However, a combination of factors—the Supreme Court’s sparse guidance, the growth and diffusion of power across local, state, and federal governments, and the availability of other immunity doctrines—has rendered the arm-of-the-state doctrine an incomprehensible anachronism. Most courts determine whether an entity defendant receives arm-of-the-state immunity by examining the entity’s legal status and structure. But many courts applying …

Contents / Editorial Information

University of Chicago Law Review

No abstract provided.

Remedies For Robots, Mark A. Lemley, Bryan Casey

University of Chicago Law Review

What happens when artificially intelligent robots misbehave? The question is not just hypothetical. As robotics and artificial intelligence systems increasingly integrate into our society, they will do bad things. We seek to explore what remedies the law can and should provide once a robot has caused harm.

Remedies are sometimes designed to make plaintiffs whole by restoring them to the condition they would have been in “but for” the wrong. But they can also contain elements of moral judgment, punishment, and deterrence. In other instances, the law may order defendants to do (or stop doing) something unlawful or harmful.

Each …

Categorically Redeeming Graham V Florida And Miller V Alabama: Why The Eighth Amendment Guarantees All Juvenile Defendants A Constitutional Right To A Parole Hearing, Parag Dharmavarapu

University of Chicago Law Review

The Supreme Court has held that life without parole is an unconstitutional sentence for nearly all juvenile defendants—except for a select few that the criminal justice system deems irredeemable. Though this represents a positive development in the Court’s juvenile sentencing jurisprudence, it has left the case law deeply unsettled. For instance, the Court has held that redeemable juveniles are all entitled to a “meaningful opportunity to obtain release,” but it has failed to explicitly define what that constitutional mandate means in practice. On top of that, the Court has concluded that not even expert psychologists can determine at sentencing whether …

Passive Embezzlement Schemes As Continuing Offenses, William Admussen

University of Chicago Law Review

For most offenses, the statute of limitations begins to run when the elements of an offense are satisfied. For continuing offenses, however, the statute of limitations begins to run when the crime stops, extending the amount of time the government has to bring charges. This Comment considers the circuit split over whether passive embezzlement schemes are continuing offenses. Typically charged under the federal embezzlement statute, 18 USC § 641, passive embezzlement schemes continue automatically once set in motion. They are distinguished from active embezzlement schemes in that active schemes require some affirmative act by the embezzler for the scheme to …

Contents / Editorial Information

University of Chicago Law Review

No abstract provided.

Criminal Law In A Civil Guise: The Evolution Of Family Courts And Support Laws, Elizabeth D. Katz

University of Chicago Law Review

Each year family courts incarcerate thousands of Americans for nonpayment of child support. The vast majority of these parents are not accorded criminal procedure protections because courts have characterized routine child support enforcement as a “civil” matter. The United States Supreme Court has endorsed this approach. In Turner v Rogers, the Court began from a premise it regarded as both legally significant and unquestionably true: that child support proceedings are civil On that basis, the Court determined that an indigent father facing a year in jail was not entitled to a public defender. The Court’s analysis reflects a broader and …

Judge Posner’S Reconstruction Of Property Theory, Rachel E. Sachs

University of Chicago Law Review

No abstract provided.

Dismissing Decisional Independence Suits, Jennifer Nou

University of Chicago Law Review

No abstract provided.

Posner On Tax: The Independent Investor Test, Yair Listokin

University of Chicago Law Review

No abstract provided.

Posner And Class Actions, Daniel Klerman

University of Chicago Law Review

No abstract provided.

Unlikely Resurrection: Richard Posner, Promissory Estoppel, And The Death Of Contract, Douglas Baird

University of Chicago Law Review

No abstract provided.

Foreword, Lawrence Lessig

University of Chicago Law Review

No abstract provided.

Posner’S Unlikely Patent Intervention, Jonathan Masur

University of Chicago Law Review

No abstract provided.

On Posner On Copyright, Tim Wu

University of Chicago Law Review

No abstract provided.

Richard Posner, The Decline Of The Common Law, And The Negligence Principle, Saul Levmore

University of Chicago Law Review

No abstract provided.

Posner’S Pragmatic Justiciability Jurisprudence: The Triumph Of Possibility Over Probability, Eugene Kontorovich

University of Chicago Law Review

No abstract provided.

Judges And Judgment: In Praise Of Instigators, Kathryn Judge

University of Chicago Law Review

No abstract provided.

Posner On Vertical Restraints, C. Scott Hemphill

University of Chicago Law Review

No abstract provided.

Front Matter / Editorial Information

University of Chicago Law Review

No abstract provided.

What Does The Cisg Have To Say About Smart Contracts? A Legal Analysis, Anna Duke

Chicago Journal of International Law

Smart contracts—contracts written into lines of code that automatically execute all or parts of an agreement—are a relatively new technology, which has raised many questions regarding their validity and formation. This Comment looks at smart contracts under the lens of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and analyzes what its provisions have to say on the validity and formation of a contract. This analysis is written from the internationalist perspective, which favors applying the CISG to issues it addresses even in cases where domestic law might apply. Moreover, this Comment argues that a …

From The State Of Emergency To The Rule Of Law: The Evolution Of Repressive Legality In The Nineteenth Century British Empire, Christopher M. Roberts

Chicago Journal of International Law

Why are contemporary laws and techniques that state authorities use to crack down on political dissent so similar across countries? This Article argues that at least part of the answer may be found by turning to colonial history. The Article has two Parts. In the first Part, the Article explores the manner in which, over the course of the nineteenth century, the British deployed various different legal and institutional approaches in response to an Irish polity that consistently refused to submit to British authority. In the second Part, the Article examines the manner in which the approaches developed in Ireland …

Navigating Rough Seas: Women On Waves’ Legal Options For Overcoming Resistant States, Jennifer Bisgaier

Chicago Journal of International Law

Women on Waves is a Dutch nonprofit that seeks to provide women with safe abortion services and health information, as well as to raise public awareness of countries with restrictive abortion laws. One of the means through which the group achieves these goals is its ship campaigns, in which Women on Waves sails a ship to the harbor of a country with restrictive laws, and then brings local women out to international waters to give them medical abortion pills. In 2017, Guatemala expelled the group’s ship from its dock before it had the chance to fulfill its mission, claiming that …

Problems Of Proof For The Ban On Female Athletes With Endogenously High Testosterone Levels, Silver Lin

Chicago Journal of International Law

At the time of this writing, a new International Association of Athletics Federations regulation preventing women with naturally high testosterone from competing in certain international athletics events has reignited the controversy over the male-female distinction in sports and its implications on individuals’ right to compete. A recent case filed by runner Caster Semenya and Athletics South Africa challenging this regulation before the Court of Arbitration for Sport, an arbitral tribunal that adjudicates disputes in international sports, sought to have the regulation overturned as discriminatory against women with a genetic intersex condition. Drawing on established international arbitration law, international norms in …

Entire Issue

University of Chicago Law Review

No abstract provided.