Law Commons^™

What Is Discriminatory Intent?, Aziz Huq

Articles

No abstract provided.

Sticky Regulations, Aaron Nielson

University of Chicago Law Review

Administrative law is often said to present a dilemma. On one hand, all three branches of the federal government have crafted procedures to facilitate public participation in the regulatory process and to ensure that the benefits of regulations outweigh their costs. But on the other hand, such procedures have a price—they slow administrative action and sometimes thwart it altogether. In fact, marching under the banner of “ossification,” an entire literature has formed around the idea that there are too many procedures and that administrative law should be transformed to speed up the regulatory process. Ossification, however, has an overlooked, proregulatory …

Institutional Loyalties In Constitutional Law, David Fontana, Aziz Huq

University of Chicago Law Review

In Federalist 51, James Madison offered what has become the canonical account of how the separation of powers would pit branch against branch for the greater good. The officials of an institution would act on behalf of their institution for the Constitution to function properly. In Madison’s account, ensuring the presence of the right quantum of institutional loyalties would serve as a durable and plausible mechanism for enforcing institutional boundaries and ensuring a stable constitutional order. But modern scholars take a more skeptical view of his theory. This Article reconsiders the Madisonian concept of institutional loyalty as an object of …

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

Coase-Sandor Institute for Law & Economics Research Paper Series

The year 2017 marked an inflection point in the evolution of social norms regarding sexual harassment. While victims of workplace harassment had long suffered in silence, the surfacing of serious sexual misconduct allegations against Hollywood producer Harvey Weinstein encouraged many more victims to tell their personal stories of abuse. These scandals have spread beyond Hollywood to the rest of corporate America, leading to the departures of several high-profile executives as well as sharp stock price declines at a number of firms. In the past year, shareholders at four publicly traded companies have filed lawsuits alleging that corporate directors and officers …

Antitrust Remedies For Labor Market Power, Suresh Naidu, Eric A. Posner, E. Glen Weyl

Coase-Sandor Institute for Law & Economics Research Paper Series

Recent research indicates that labor market power has contributed to wage inequality and economic stagnation. Although the antitrust laws prohibit firms from restricting competition in labor markets like in product markets, the government does little to address the labor market problem and private litigation has been rare and mostly unsuccessful. The reason is that the analytic methods for evaluating labor market power in antitrust contexts are primitive, far less sophisticated than the legal rules used to judge product market power. To remedy this asymmetry, we propose methods for judging the effects of mergers on labor markets. We also extend our …

States And Localities Can Offset Federal Tax Law's Impact On Their Residents, Daniel Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

Recently enacted federal tax reform expands the standard deduction while limiting the deduction for state and local taxes. Many households will now be paying nondeductable state and local taxes, and may well resist state and local efforts to increase taxes for schools, hospitals, and other public services. In this article, Assistant Professor Daniel Hemel of the University of Chicago Law School discusses these issues and options for states and localities to offset the impact of federal tax reform.

Disagreement, Anti-Realism About Reasons, And Inference To The Best Explanation, Brian Leiter

Public Law and Legal Theory Working Papers

No abstract provided.

Personalizing Mandatory Rules In Contract Law, Omri Ben-Shahar, Ariel Porat

Coase-Sandor Institute for Law & Economics Research Paper Series

Mandatory rules provide people protections they might otherwise fail to secure in their contracts. Because people vary in the degree of protection they need and the cost of protection they can afford, one-size-fits-all rules are too weak for some and too strong for others. This Essay examines the case for personalized mandatory protections. With the increasing availability of information about consumers, the law may soon be able to tailor mandatory protections that vary with each individual’s characteristics. We show that personalized protections increase the overall contractual surplus and prompt more people to enter into contracts. It eliminates cross-subsidies within a …

Police Violence In The Wire, Jonathan Masur, Richard H. Mcadams

Public Law and Legal Theory Working Papers

Police brutality—the unsanctioned, unlawful use of force by police against unarmed (and often defenseless) civilians—is one of the recurring motifs of The Wire.¹ The violence occurs in a variety of settings: occasionally the victim of the police brutality has done something to precipitate it (though the brutality is never justified), but more often the violence is unprovoked and senseless. Some police are one-time wrongdoers; others are repeat offenders. Some officers participate in the actual beatings, while others only cover up for the actions of their fellow officers. But in sum, the violence is regular and recurring, if not omnipresent. …

The Dance Of Partisanship And Districting, Nicholas O. Stephanopoulos

Public Law and Legal Theory Working Papers

Academic studies of redistricting tend to be either doctrinal or empirical, but not both. As a result, the literature overlooks some of the most important aspects of the mapmaking process and its judicial supervision, like how they relate to the broader American political context. In this Article, I try to fill this gap. I first observe that the half-century in which federal courts have decided redistricting cases can be divided into two periods: one lasting from the 1960s to the 1980s, in which voters and politicians were both comparatively nonpartisan; and another reaching from the 1990s to the present day, …

A Regulatory Classification Of Digital Assets: Toward An Operational Howey Test For Cryptocurrencies, Icos, And Other Digital Assets, M. Todd Henderson

Public Law and Legal Theory Working Papers

Digital assets are hot right now. Whether cryptocurrencies, like bitcoin, or initial coin offerings and tokens, this new asset class has captured the imagination of American investors. While it remains to be seen if this phenomenon has staying power, there is no doubt that these assets and their promoters have attracted the attention of the Securities and Exchange Commission. But neither Congress nor the SEC has formally elucidated which digital assets are securities and which are not.

This Article seeks to provide clarity in determining which digital assets are securities. It proposes two tests that operationalize the Supreme Court’s test …

Assessing The Empirical Upside Of Personalized Criminal Procedure, Matthew B. Kugler, Lior Jacob Strahilevitz

Public Law and Legal Theory Working Papers

Though personalization of law is often viewed as a new idea, pockets of criminal procedure already tolerate it. Many courts have held that Miranda warnings must be tailored when read to juveniles or people with limited English proficiency; a suspect’s age is necessarily part of the judicial calculus when determining whether the police’s questioning of her is a custodial interrogation; and some state courts consider a person’s demographic characteristics when deciding whether they have consented to a search. The question before us now is whether society should go further. Should the law of criminal procedure pay more attention to individual …

The Consequences Of The Tcja's International Provisions: Lessons From Existing Research, Dhammika Dharmapala

Public Law and Legal Theory Working Papers

This paper discusses the potential consequences of the international tax provisions of the recent Tax Cut and Jobs Act (TCJA), drawing on existing research. The TCJA’s dividend exemption provision is expected to eliminate distortions to the amount and timing of dividend repatriations. However, the efficiency gains from increased repatriations – which are primarily expected to increase shareholder payout – are likely to be modest. The paper uses the observed behavior of firms during the repatriation tax holiday implemented in 2005 to infer the relative magnitudes of the burdens created by the repatriation tax under the old (pre-TCJA) regime and by …

Article Ii And Antidiscrimination Norms, Aziz Z. Huq

Public Law and Legal Theory Working Papers

The Supreme Court’s judgment in Trump v. Hawai’i validated a prohibition on entry to the United States from several largely Muslim-majority countries, and at the same time repudiated a longstanding precedent associated with the Japanese-American internment of World War II. This Article closely analyzes the relationship of these twin holdings. It uses their dichotomous valances as a lens onto the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a generative tension between the two holdings. Contrary to …

Legal Or Political Checks On Apex Criminality: An Essay On Constitutional Design, Aziz Z. Huq

Public Law and Legal Theory Working Papers

How should constitutional designers address the problem of apex criminality, or criminal actions by those elected or appointed to high positions in a national government? I offer three general observations about this difficult question of constitutional design. First, it is not at all clear that a constitutional designer ought to expend effort on creating accountability mechanisms to address apex criminality. Second, if a designer does choose to address the question, she must opt between two highly imperfect options—a ‘legal’ mechanism embedded in a nonpartisan body such as a prosecutor’s office, or a ‘political’ mechanism, which runs through an elected body …

Gender Discrimination In Online Markets, Christopher Anthony Cotropia, Jonathan S. Masur, David L. Schwartz

Public Law and Legal Theory Working Papers

We study whether a seller’s gender impacts the bargained-for price in a product market, specifically baseball cards, as well whether any discrimination that might be present is tastebased or statistically-based. We accomplish this by isolating the seller’s gender using an online transaction on eBay where the buyer is exposed to the seller’s gender by only the seller’s hand and name. We test for differential treatment in two environments: a field experiment, in which we actually sell cards on eBay, and a laboratory experiment, in which we conduct surveys via Amazon Mechanical Turk (MTurk). We find that there is consistent differential …

The Living Anti-Injunction Act, Daniel J. Hemel

Public Law and Legal Theory Working Papers

In the coming months, the Internal Revenue Service is likely to issue a slew of new regulations interpreting the December 2017 federal tax reform legislation. These regulations are likely to define the scope of the new deduction for pass-through entities; determine the reach of the new base erosion tax on multinational enterprises; fill in the details of the new “opportunity zone” program aimed at encouraging investment in low-income communities; and address a wide range of other important matters.¹ Inevitably, some taxpayers will object to these regulations and will seek to challenge the new rules in court. When, where, and …

Innovation Policy Pluralism, Daniel J. Hemel, Lisa Larrimore Ouellette

Public Law and Legal Theory Working Papers

When lawyers and scholars speak of “intellectual property,” they are generally referring to a combination of two distinct elements: an innovation incentive that promises a marketbased reward to producers of knowledge goods, and an allocation mechanism that makes access to knowledge goods conditional upon payment of a proprietary price. Distinguishing these two elements clarifies ongoing debates about intellectual property and opens up new possibilities for innovation policy. Once intellectual property is disaggregated into its core components, each element can be combined synergistically with non-IP innovation incentives such as prizes, tax preferences, and direct spending on grants and government research, or …

States And Localities Can Offset Federal Tax Law's Impact On Their Residents, Daniel J. Hemel

Public Law and Legal Theory Working Papers

No abstract provided.

Statutory Interpretation On The Bench: A Survey Of Forty-Two Judges On The Federal Courts Of Appeals, Abbe R. Gluck, Richard A. Posner

Public Law and Legal Theory Working Papers

This Article reports the results of a survey of a diverse group of forty-two federal appellate judges concerning their approaches to statutory interpretation. The study reveals important differences between their approaches and the approach that the Supreme Court purports to take. It also helps to substantiate the irrelevance of the enduring, but now-boring, textualism-versus-purposivism debate. None of the judges we interviewed was willing to associate himself or herself with “textualism” without qualification. All consult legislative history. Most eschew dictionaries. All utilize at least some canons of construction, but for reasons that range from “window dressing,” to the use of canons …

The Tax Legislative Process: A Byrd's Eye View, Ellen P. Aprill, Daniel J. Hemel

Public Law and Legal Theory Working Papers

The year 2017 was, among other distinctions, the year of the Byrd rule. This once-obscure Senate procedural provision—on the books since 1985 but only recently the stuff of page one news¹ — featured prominently in several failed attempts to repeal the Affordable Care Act in the spring and summer. Then again at year’s end, the Byrd rule played a central role in the successful effort to rewrite large swaths of the Internal Revenue Code. While the Byrd rule has influenced the legislative process in the past, never before has it drawn so much attention from the mainstream and trade …

Criminal Justice, Inc., John Rappaport

Public Law and Legal Theory Working Papers

In the past decade, major retailers nationwide have begun to employ a private, for-profit system to settle criminal disputes, extracting payment from shoplifting suspects in exchange for a promise not to call the police. This Article examines what retailers’ decisions reveal about our public system of criminal justice and the concerns of the agents who run it, the victims who rely on it, and the suspects whose lives it alters. The private policing of commercial spaces is well known, as is private incarceration of convicted offenders. This Article is the first, however, to document how industry has penetrated new parts …

The Measure Of A Metric: The Debate Over Quantifying Partisan Gerrymandering, Nicholas Stephanopoulos, Eric Mcghee

Public Law and Legal Theory Working Papers

Over the last few years, there has been an unprecedented outpouring of scholarship on partisan gerrymandering. Much of this work has sought either to introduce new measures of gerrymandering or to analyze a metric—the efficiency gap— that we previously developed. In this Essay, we reframe the debate by presenting a series of criteria that can be used to evaluate gerrymandering metrics: (1) consistency with the efficiency principle; (2) distinctness from other electoral values; (3) breadth of scope; and (4) correspondence with U.S. electoral history. We then apply these criteria to both the efficiency gap and other measures. The efficiency gap …

Congress In The Administrative State, Brian D. Feinstein

Public Law and Legal Theory Working Papers

In an era of increased concern over presidential power, congressional oversight of the executive branch constitutes a substantial—but underappreciated—means of influencing agency decision-making. Scholars too often have overlooked it, and Congress is sub-optimally designed for its provision, but oversight has a significant impact on agency behavior

This Article provides a corrective. It presents the legal mechanisms that give oversight hearings their force and situates these hearings in their historical and legal context. In light of this framework and historical practice, the Article posits that ex post oversight hearings facilitate political control over the administrative state. Because oversight gets its bite …

New Light On The Trial Of Billy Budd, Richard H. Mcadams, Jacob Corre

Public Law and Legal Theory Working Papers

Few American literary works have been the subject of as much academic commentary as has Billy Budd, Herman Melville’s unfinished final novel.¹ Possibly no American novel has garnered more attention from those interested in the roles that law plays in understanding literature. To summarize what some regard as a novel immune to summary: Billy Budd is a guileless and winsome impressed crewman on board an English man o’ war in 1797. England is at war, and recent mutinies fill the navy with anxiety. Budd is prone to bouts of severe stuttering. John Claggart, the ship’s master-at-arms, brings a malicious …

A Borderline Case: The Establishment Clause Implications Of Religious Questioning By Government Officials, Allison Hugi

University of Chicago Law Review

Does a border agent violate the Establishment Clause of the Constitution when he questions an individual about that person’s religious beliefs? The answer is unclear. The analysis that should be undertaken to reach that answer is similarly unsettled. This Comment addresses that gap in the literature. It considers whether policies under which government officials question individuals about their religion and religious practices violate the Establishment Clause. Because the Clause is more commonly used to consider government endorsement of religion (such as policies concerning school prayer and displays on government property), this is an underexplored area of the law. This Comment …

What About Bell? Overcoming The Presumption In Favor Of Requiring Finality In The Cwa’S Direct-Review Provision, Roberto Borgert

University of Chicago Law Review

The default rule for judicial review of agency action is that review is available for final agency action. Courts typically enforce this requirement by citing an explicit finality requirement in the text of a review statute. When a review statute does not mention finality, courts apply a presumption in favor of requiring final agency action. The Clean Water Act’s (CWA) direct-appellate-review provision does not contain an explicit finality requirement. This Comment analyzes whether the CWA’s directreview provision can overcome the presumption in favor of requiring final agency action. The Comment proposes a test to determine whether a statute can overcome …

Gender Discrimination In Online Markets, Christopher Anthony Cotropia, Jonathan Masur, David L. Schwartz

Public Law and Legal Theory Working Papers

We study whether a seller’s gender impacts the bargained-for price in a product market, specifically baseball cards, as well whether any discrimination that might be present is taste-based or statistically-based. We accomplish this by isolating the seller’s gender using an online transaction on eBay where the buyer is exposed to the seller’s gender by only the seller’s hand and name. We test for differential treatment in two environments: a field experiment, in which we actually sell cards on eBay, and a laboratory experiment, in which we conduct surveys via Amazon Mechanical Turk (MTurk). We find that there is consistent differential …

Legality In Contemporary Chinese Politics, Taisu Zhang, Tom Ginsburg

Public Law and Legal Theory Working Papers

The picture of Chinese law that many Western scholars and commentators portray is an increasingly bleak one: since the mid-2000s, China has been retreating from legal reform back into unchecked authoritarianism. This article argues that, much to the contrary, Chinese politics have in fact become substantially more law-oriented over the past five years. The Chinese Communist Party under Xi Jinping has indeed centralized power and control to an almost unprecedented extent, but it has done this in a highly legalistic way, empowering courts against other state and Party entities, insisting on legal professionalism, and bringing political powers that were formerly …

The Supreme Court Of India: An Empirical Overview Of The Institution, Aparna Chandra, William H.J. Hubbard, Sital Kalantry

Public Law and Legal Theory Working Papers

The Indian Supreme Court has been called “the most powerful court in the world” for its wide jurisdiction, its expansive understanding of its own powers, and the billion plus people under its authority. Yet scholars and policy makers have a very uneven picture of the court’s functioning: deep knowledge about the more visible, “high-profile” cases but very little about more mundane, but far more numerous and potentially equally important, decisions. This chapter aims to address this imbalance with a rigorous, empirical account of the Court’s decisions from 2010 to 2015. We use the most extensive original dataset of Indian Supreme …