Law Commons^™

The Bankruptcy Partition, Douglas G. Baird, Anthony Casey, Randal C. Picker

Articles

No abstract provided.

The Jurisprudence Of Anti-Erosion, Tom Ginsburg

Articles

No abstract provided.

The Keyes Of Constitutional Law, Justin Driver

Articles

No abstract provided.

Treaties And Human Rights: The Role Of Long-Term Trends, Adam S. Chilton, Eric A. Posner

Articles

No abstract provided.

How Not To Regulate, Lisa E. Heinzerling

University of Chicago Law Review

Review of: How to Regulate: A Guide for Policymakers Thomas A. Lambert. Cambridge, 2017. 256 pages.

To Move Or Not To Move? That Is The Metaphysical Question, David J. Sandefer

University of Chicago Law Review

Circuit courts are currently split on how to apply the robbery abduction enhancement contained in the United States Sentencing Guidelines. As a result of patchwork interpretations and a failure to agree on when an abduction occurs, courts have come to drastically different conclusions in almost identical cases. In order to resolve the circuit split, courts need a functional test that applies a unified definition of location.

This Comment seeks to provide courts with such a test. In proposing this test, this Comment looks to (1) the Guidelines, (2) sexual assault case law, and (3) kidnapping case law

Waiving Chevron, Jeremy D. Rozansky

University of Chicago Law Review

By according agencies the power to interpret the law, Chevron deference increases the power of administrative agencies. Yet agencies may not always want the benefits of Chevron deference. If the agency is a party in a lawsuit, it might decide not to seek Chevron deference in the hope that the court will reverse its binding policy. Following the inauguration of President Donald Trump, the Federal Communications Commission did just that in Global Tel*Link Inc v FCC, a lawsuit concerning regulations of calling services at correctional facilities. At least initially, the DC Circuit did not apply the Chevron framework because the …

The Constitutionality Of Income-Based Fines, Alec Schierenbeck

University of Chicago Law Review

In America, fines are typically imposed without regard to income. The result is a system that traps low-income offenders in a cycle of debt and jail while letting rich offenders break the law without meaningful financial consequence. One-sizefits-all fines also fail to meet basic goals of the justice system: to treat like offenders alike, punish the deserving, and encourage respect for the law. Elsewhere in the world, however, systems that assess fines based on earnings have been around for nearly one hundred years. The most common model—known as the “day fine”— scales penalties according to a person’s daily income. These …

Arguing With Friends, William Baude, Ryan D. Doerfler

Articles

No abstract provided.

Compelled Subsidies And The First Amendment, William Baude, Eugene Volokh

Articles

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The Restoration Remedy In Private Law, Omri Ben-Shahar, Ariel Porat

Articles

No abstract provided.

Empirical Patterns Of Pro Se Litigation In Federal District Courts, Mitchell Levy

University of Chicago Law Review

Pro se litigants face a number of challenges when bringing civil litigation. One potential solution to these challenges, endorsed by members of the judiciary and the legal academy, is pro se reform at the trial court level: offering special services to pro se litigants in order to help them successfully navigate the legal system. This Comment offers the first publicly available empirical assessment of several pro se reform efforts thus far. The analysis shows that these pro se reforms have not succeeded in improving pro se litigants’ win rates at trial. This Comment thus suggests that, while pro se reforms …

“On Behalf Of Each Child”: Section 1983 Enforcement Of The Right To Foster Care Maintenance Payments Under The Child Welfare Act, Parker C. Eudy

University of Chicago Law Review

In 1980, Congress passed the Adoption Assistance and Child Welfare Act (CWA). As a piece of Spending Clause legislation, the CWA imposes upon states numerous conditions in exchange for federal funding. One of these conditions is that states must make foster care maintenance payments to foster caregivers “on behalf of each child” who qualifies for assistance. Because the CWA does not include a federal mechanism for reviewing individual claims, foster caregivers seeking to compel their state to make adequate foster care maintenance payments have resorted to suing under 42 USC § 1983. However, since the 1980s, the Supreme Court has …

Inferentialism, Title Vii, And Legal Concepts, Lee Farnsworth

University of Chicago Law Review

We are all textualists now, or so it has been claimed. But textualism, the practice of interpreting statutes solely by reference to their words, is often associated with conservative judicial outcomes. This is especially true when a focus on statutory text is combined with the belief that the meanings of words are fixed. This combination creates a sort of textualist originalism, in which judges interpret statutes in accordance with what the words of a statute meant to the relevant linguistic community at the time of a statute’s enactment.

In reaction to this conservative interpretive method, rejecting textualism but keeping an …

Is Efficiency Biased?, Zachary Liscow

University of Chicago Law Review

Efficiency is a watchword in policy circles. If we choose policies that maximize people’s willingness to pay, we are told, we will grow the economic pie and thus benefit the rich and poor alike. Who would oppose efficiency when it is cast in this fashion?

However, there are actually two starkly different types of efficient policies: those that systematically distribute equally to the rich and the poor and those that systematically distribute more to the rich.

Our collective failure to grasp this distinction matters enormously for those with a wide range of political commitments. Many efficient policies distribute more to …

In Defense Of Territorial Jurisdiction, Cody J. Jacobs

University of Chicago Law Review

As the story is traditionally told, the minimum contacts test introduced in International Shoe v Washington freed personal jurisdiction from the dark age of territorialism and gave courts the flexibility to expand the scope of personal jurisdiction to keep pace with modern society. While scholars have critiqued the minimum contacts test on a number of grounds, the narrative that the Territorial Model was inherently problematic—and that Shoe was a step in the right direction— has gone largely unchallenged.

This Article challenges that narrative and argues for a return to the Territorial Model. While Shoe is traditionally cast as a step …

Intelligent Design, Christopher Buccafusco, Mark Lemley, Jonathan Masur

Articles

No abstract provided.

Sexual Harassment And Corporate Law, Daniel Hemel, Dorothy Shapiro Lund

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No abstract provided.

A New Market-Based Approach To Securities Law, Kevin S. Haeberle, M. Todd Henderson

Articles

No abstract provided.

Congress In The Administrative State, Brian D. Feinstein

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No abstract provided.

Defining “Second Or Successive” Habeas Petitions After Magwood, Megan Volin

University of Chicago Law Review

The Antiterrorism and Effective Death Penalty Act (AEDPA) precludes the filing of “second or successive” federal habeas corpus petitions—when a petitioner files a habeas petition for the second time, it will generally be dismissed. In Magwood v Patterson, the Supreme Court held that this prohibition did not bar the filing of a technically “second” habeas petition challenging aspects of a resentencing that resulted from the partial grant of the petitioner’s prior habeas petition. Because this resentencing led to the entry of a new judgment, the Court explained, the petition was not barred by AEDPA as, while it was the petitioner’s …

I4i Makes The Patent World Blind, Michael J. Conway

University of Chicago Law Review

All patents receive a presumption of validity pursuant to 35 USC § 282. Courts have traditionally put this presumption into practice by requiring invalidity to be established by clear and convincing evidence. The Supreme Court reaffirmed this understanding of the presumption in Microsoft Corp v i4i Ltd Partnership.

District courts have divided, however, on whether to require clear and convincing evidence when the challenger seeks to invalidate a patent for covering ineligible subject matter. The conflict originates from a concurrence written by Justice Stephen Breyer in i4i, in which he stated that a heightened standard of proof—like the clear and …

Not So Different After All: The Status Of Interpretive Rules In The Medicare Act, Graham Haviland

University of Chicago Law Review

The Medicare Act is not subject to the informal rulemaking requirements of the Administrative Procedure Act (APA). Instead, it has its own provision that mandates notice and comment for proposed regulations. Courts have come to different conclusions regarding the scope of the Medicare Act’s notice-and-comment requirement. This Comment interprets this Medicare Act provision to determine whether its requirement is equivalent in scope to that of the APA. This Comment presents arguments from text and legislative history to demonstrate that, as in the APA, interpretive rules are exempt from notice and comment. Finally, this Comment explains why this outcome is desirable …

Relational Contracts Of Adhesion, David A. Hoffman

University of Chicago Law Review

Not all digital fine print exculpates liability: some exhorts users to perform before the consumer relationship has soured. We promise to choose strong passwords (and hold them private); to behave civilly on social networks; to refrain from streaming shows and sports; and to avoid reverse-engineering code (or, worse, deploying deadly bots). In short, consumers are apparently regulated by digital fine print, though it’s universally assumed that we don’t read it and, even if we did, that we’ll never be sued for failing to perform.

On reflection, this ordinary phenomenon is perplexing. Why would firms persist in deploying uncommunicative behavioral spurs? …

A New Market-Based Approach To Securities Law, Kevin S. Haeberle, M. Todd Henderson

University of Chicago Law Review

Modern securities regulation has three main areas, each of which is plagued by a core problem. Mandatory disclosure law leaves society with suboptimal disclosure, as the government calls for too little of some information (for example, management analysis of company prospects) and too much of other information (for example, data about trivial executive perks). Securities fraud law (specifically, its central fraud-on-the-market theory of reliance) yields damages at odds with any reasonable theory of compensation and deterrence. And insider trading law fails to achieve its ends because incentives to police illegal trading and tipping by executives are currently weak.

In this …

Regulatory Enforcement Under New York's Martin Act: From Financial Fraud To Global Warming, Richard A. Epstein

Articles

No abstract provided.

Reviewing Leniency: Appealability Of 18 Usc § 3582(C)(2) Sentence Modification Motions, Sarah E. Welch

University of Chicago Law Review

In ordinary circumstances, criminal defendants get only one shot at sentencing. But in a few cases, defendants have a second chance at a more lenient sentence. This Comment considers one of those circumstances: motions under 18 USC § 3582(c)(2) for sentence reduction after retroactive downward adjustment of the Sentencing Guidelines. Specifically, this Comment considers the circuit split over when those motions are appealable. Courts disagree about which statute governs appellate jurisdiction: the general jurisdictional statute permitting appeal of any final decision of a district court (28 USC § 1291) or the specific sentencing jurisdictional statute restricting appeal of otherwise final …

Master Of Its Own Case: Eeoc Investigations After Issuing A Right-To-Sue Notice, Eric E. Petry

University of Chicago Law Review

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the full arsenal of federal employment discrimination laws. But in addition to vindicating the rights of employment discrimination victims, the EEOC also serves as a gatekeeper to screen claims before they get to court. As part of that gatekeeping function, Congress requires that individuals alleging employment discrimination under Title VII of the Civil Rights Act of 1964 must obtain permission from the EEOC before they can bring legal action on their own.

Title VII’s text leaves the EEOC’s role after issuing a right-to-sue notice ambiguous. Despite this ambiguity, or perhaps …

War Manifestos, Oona A. Hathaway, William S. Holste, Scott J. Shapiro, Jacqueline Van De Velde, Lisa Wang Lachowicz

University of Chicago Law Review

This Article is the first to examine “war manifestos,” documents that set out the legal reasons sovereigns provided for going to war from the late fifteenth through the mid-twentieth centuries. We have assembled the world’s largest collection of war manifestos—over 350—in languages as diverse as Classical Chinese, German, French, Latin, Serbo-Croatian, and Dutch. Prior Anglophone scholarship has almost entirely missed war manifestos. This gap in the literature has produced a correspondingly large gap in our understanding of the role of war during the period in which manifestos were commonly used. Examining these previously ignored manifestos reveals that states exercised the …

State Bureaucratic Undermining, Justin Weinstein-Tull

University of Chicago Law Review

Our federal rights are failing, and the inner workings of state government provide an explanation. States administer more federal rights than ever before; administering those rights requires intrastate coordination both horizontally (across cabinet-level state actors, agencies, and commissions) and vertically (with local governments like counties and towns). That coordination undermines federal law by creating bureaucratic barriers to full compliance. I unearth and identify three of these barriers—agency alienation, agency conflict, and role confusion—by surveying remedies in recent suits against state actors. These remedies take the form of choreography: they specify how internal state actors must work together to vindicate federal …