Law Commons^™

Administrative Subordination, Bijal Shah

University of Chicago Law Review

Much of the scholarship on immigration enforcement and environmental justice assumes that agencies negatively impact vulnerable and marginalized people as a result of individualized bias or arbitrariness in administration. This Article argues that, beyond idiosyncrasies or flaws in administrators themselves, the poor impact of administration on minorities emanates from institutional systems. In doing so, this Article introduces a framework of institutional oppression into the study of administration that illustrates how agencies subordinate minority interests to the ends of administrative competence and self-preservation.

A healthy federal bureaucracy is sustained by administrative efforts to reduce institutional burdens, improve efficiency, conserve resources, and …

Against Associational Standing, Michael T. Morley, F. Andrew Hessick

University of Chicago Law Review

Associational standing is a widely used doctrine that has never been subject to serious academic scrutiny. It allows an organization that has not suffered any injury in fact to sue in its own name to assert its members’ causes of action. Though the doctrine is often associated with public interest groups, major corporations have usurped it to be able to sue, through trade groups or entities created solely to pursue a particular lawsuit, without becoming party litigants to the case.

The Supreme Court first recognized associational standing as an offshoot of third-party standing to allow an organization that had suffered …

Vacancy Taxes: A Possible Taking?, Christine Dong

University of Chicago Law Review

Vacancy taxes are an increasingly popular solution to the paradoxical problem of high housing demand coupled with high vacancy. Cities across the country facing housing shortages have either implemented or are considering adopting vacancy taxes to encourage property owners to rent or sell their property. Soon after San Francisco adopted a vacancy tax with one of the broadest definitions of vacancy, property owners lobbed a constitutional challenge under the Takings Clause, taking advantage of a moment of doctrinal instability.

This Comment seeks to make sense of how this and similar potential challenges would fare, given an expanding, property-protective takings doctrine, …

Tiktok The Tortfeasor: A Framework To Discuss Social-Platform Externalities And Arguments Favoring Ex Ante Mitigations, Karan Lala

University of Chicago Law Review

In recent years, social media platforms have grown increasingly complex in how they invite, intersect with, and influence third-party speech. This complexity lies in stark contrast to the simplicity of the statute that governs those very platforms: Section 230 of the Communications Decency Act. Although Section 230 has cabined liability for platforms in the past, some have advocated for activist judges to deploy tools available to them to hold platforms accountable and mitigate harm to users as research documenting the negative impact of social products on user well-being has matured

This Comment reviews Section 230 jurisprudence to develop a novel …

Rogue Ai Patents And The Uspto’S Rejection Of Alice Joshua A. Z, Joshua A. Zuchniarz

University of Chicago Law Review

AI inventions, from ChatGPT to self-driving taxis, have taken the world by storm. Many of these inventions are protected by patents, and the number of AI patents is rapidly growing. Yet a large number of AI patents are flawed, prone to invalidation in court. This Comment argues that many AI patents were granted on legally flawed grounds, pursuant to United States Patent and Trademark Office (USPTO) regulations that systematically departed from controlling case law. The existence of these flawed patents poses a growing problem. Courts may invalidate the patents, upsetting expectations of an important, nascent industry. On the other hand, …

Twin Inadequacies In The Ftc’S Recent Biometrics Policy Statement, John Burroughs

The University of Chicago Business Law Review

In the spring of 2023, the FTC released a policy statement addressing biometric information and technologies using or purporting to use such information. The policy statement contains a remarkably broad definition of “biometric information” and describes a variety of business practices that could violate § 5 of the Federal Trade Commission Act by being either “deceptive” or “unfair.” In spite of the policy statement’s comprehensiveness, however, it has two substantial inadequacies. First, the policy statement’s definition of “biometric information” is overly broad and will introduce unnecessary legal uncertainty for businesses by encompassing items not commonly thought of as “biometric information …

State Telemedicine Abortion Restrictions And The Dormant Commerce Clause, Laura Hu

University of Chicago Law Review

Telemedicine abortions allow women to meet virtually with abortion providers and receive abortion medication through the mail, all without ever leaving their homes. This development could be instrumental in facilitating access to abortion care for women living in abortion-restrictive states after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. However, many abortion-restrictive states have moved to restrict remote abortion care and impose legal liability on out-of-state telemedicine abortion providers.

This Comment outlines a novel argument that these state restrictions on telemedicine abortions violate the Dormant Commerce Clause, which prohibits state regulation that discriminates against or unduly burdens …

Outsourcing Electricity Market Design, Joshua C. Macey

University of Chicago Law Review

A basic principle of virtually every regulation to improve grid reliability and reduce power sector emissions is that market participants change their behavior when regulations make it more expensive to engage in socially harmful activities. To give a concrete example, a carbon tax assumes that increasing the costs of emitting carbon dioxide will lead market participants to reduce energy consumption and switch to less carbon-intensive resources.

But this assumption does not apply to large parts of the electricity industry, where investor-owned utilities are often able to pass the costs of climate and reliability rules on to captive ratepayers. The underlying …

Mutually Assured Democracy: Cooperating Under The Compact Clause To Combat Partisan Gerrymandering, Samuel P. Leroy

University of Chicago Law Review

No abstract provided.

Political Freedom And Economic Constraints: The Political Setting For The Problem Of Twelve, John C. Coates

The University of Chicago Business Law Review

This essay outlines foundations of the current moment facing corporations and politics, which I have characterized as a new “problem of twelve”—that is, the concentration of power in the hands of a small number of index and private equity fund sponsors.1 Through the middle of the twentieth century, public companies dominated the U.S. economy and government. They owed their dominance to having been socially legitimated coming out of the Great Depression, a legitimation built on their affirmative war efforts and on the negative constraints of securities law, progressive taxation, labor unions, and operational regulation. From 1970 on, however, they changed …

The Power To Shape The “Political”, Amanda Shanor

The University of Chicago Business Law Review

The role of corporations in American life has become the focus of intense public and scholarly debate. How do corporations influence political outcomes? What norms or laws should structure corporate political participation? And who should decide what political interventions corporations make? These are vitally important questions that bear on how to deal with the pressing challenges of social media, money in politics, polarization, autocratic threats, and the influence of consolidated capital on governmental and democratic decision-making.

Most conversations about the role of corporations in politics, however, assume a definition of “political.” This key term is commonly taken for granted or …

Kalven For Corporations: Should For-Profit Corporations Adopt Public Statement Policies?, Anthony J. Casey, Tom Ginsburg

The University of Chicago Business Law Review

In the last few years, corporations have been called upon to take public positions on myriad issues unconnected to core business concerns. Demands for public statements may arise from various stakeholders, as well as from the general public and the media. Sometimes such statements are uncontroversial, but other times, firms find themselves in a no-win position, in which both silence and voice will offend some core constituency. Crafting meaningful public-facing statements becomes a major challenge.

In this article, we ask whether these corporations should adopt some form of express upfront policy on when they will and when they will not …

How Did Corporations Get Stuck In Politics And Can They Escape?, Jill E. Fisch, Jeff Schwartz

The University of Chicago Business Law Review

Corporations have always been involved in politics, but today is different. They are taking public positions, either directly or indirectly, on contested political and social issues unrelated to their businesses. In contrast to the conventional wisdom, we argue that this practice, which we term “corporate political posturing,” is problematic. First, it is of dubious value to the corporation and its stakeholders. Corporate political posturing often backfires, it does so unpredictably and potentially catastrophically, and it is particularly susceptible to agency costs. Second, it is harmful to society. The fundamental problem is that corporations are institutionally ill-equipped to take center stage …

Corporate Participation In Social Debates, Anna Toniolo

The University of Chicago Business Law Review

Corporations are increasingly wading into social and political matters that are unrelated to their business operations. This Paper empirically investigates corporate participation in social debates through the corporate response to Dobbs, the Supreme Court’s decision overturning the constitutional right to abortion.

First, the Paper identifies and examines the public companies that reacted to the reversal of Roe v. Wade (“Reacting Companies”). Only a few corporations reacted. On the one side, they tend to be large, with sizeable workforces, concentrated in consumer-facing and tech industries, and headquartered in states with no restrictions on abortion rights. On the other side, they tend …

The Surprising Survival—So Far—Of The Corporate Contribution Ban, Richard Briffault

The University of Chicago Business Law Review

No abstract provided.

Lawbreaking As Lawmaking, Michael S. Kang

The University of Chicago Business Law Review

No abstract provided.

Nonprofit Corporations & Politics: The Entity/Coordination Tension, Lloyd Hitoshi Mayer

The University of Chicago Business Law Review

Federal tax law treats separate nonprofit corporations as distinct legal entities for almost all purposes, in common with most other areas of law. With respect to political activity, this means that one nonprofit corporation’s lobbying or election-related actions are generally not attributed to another nonprofit corporation. This is the case even if the two entities have overlapping or even identical boards of directors. It is also the case even if the two entities collaborate regarding their respective activities and share employees, facilities, outside vendors, and other resources, as long as the entities reasonably allocate the costs for those shared resources. …

Private Equity Investment In Health Care And Ineffective Antitrust Regulations, Sofia Gracias

The University of Chicago Business Law Review

The corporatization of health care in the United States has forced us to confront society’s moral expectations of the industry, which serves uniquely vulnerable consumers. Health care has become increasingly more lucrative, attracting private equity (“PE”) investment, specifically in private physicians’ practices. Physicians find PE transactions appealing because physicians have difficulty competing with large hospital systems and complying with expansive regulatory requirements. The attention given by PE to health care has raised concerns regarding the tension between the expected priorities of PE firms and health care. Additionally, the nature of PE investments through roll-ups of smaller companies has regulators worried …

Free Markets And Free Speech: Understanding The Limits Of The Noerr-Pennington Doctrine, Mitsoo K. Patel

The University of Chicago Business Law Review

Based in First Amendment principles, the Noerr-Pennington doctrine immunizes parties petitioning the government from antitrust liability, even when such petitioning may be considered anticompetitive. Within the doctrine exists a narrower “sham exception” which eliminates Noerr-Pennington antitrust immunity when petitions are merely shams meant to interfere with a competitor’s business. The Supreme Court has examined the sham exception in two cases which have produced differing standards for when and how to apply it. As a result, circuit courts have had to grapple with this uncertainty and a circuit split has developed as they have disagreed on the proper approach to applying …

Balancing Interests In The Separation Of Powers, Shalev Gad Roisman

University of Chicago Law Review

There are two conventional methods for resolving separation of powers disputes: formalism and functionalism. Although both approaches have been around for decades, neither has proven capable of resolving the difficult separation of powers disputes that actually arise today. Such disputes—including over statutory removal restrictions, recognition, conduct of diplomacy, and executive privilege—do not involve instances where one branch is trying to exercise the other’s exclusive power, as formalism posits. Nor is it clear how one could measure, or evaluate the effect of any one dispute on, the general balance of powers between the branches that functionalism seeks to maintain. Instead, difficult …

Weak-Willed Legislatures And Statutory Interpretation, Helen Zhao

University of Chicago Law Review

Not all statutes are created equal. Contributing to the literature on “super statutes,” I suggest that an analogy to the philosophical concept of weakness of will can illuminate circumstances under which some statutes ought to stand above others. Analogizing to philosopher Richard Holton’s account of weak will, I develop an account in which some statutes express long-term commitments, are intended to foreclose future deliberation, and enact reasons into the law. Such statutes have the status of what Holton calls “resolutions.” Like an individual resolving to stop eating meat, yet finding themself unable to resist, Congress can be weak willed when …

Subsidiarity And The Best Interests Of The Child, Lindsay Saligman

Chicago Journal of International Law

In the context of adoption, subsidiarity is the principle that children should remain with their birth families whenever possible, and whenever not possible, that in-country placements should take precedence over intercountry adoption. This Comment looks at the specific meaning of subsidiarity in the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. It highlights that the convention does not require intercountry adoption be a last resort, but rather that “due consideration” be given to placements “within the State of origin.” Then, the Comment looks at the domestic law of India, Colombia, and South Korea, three of …

Corporate Creditors Protection Rights Worldwide: Towards A Convergence Of Strategies, Samuel Biresaw, Mia Rahim, Michael Adams

Chicago Journal of International Law

Companies rely on creditors for funding to operate, making it crucial to have legislative and procedural frameworks that protect the interests of these creditors. This article engages in a comparative analysis of corporate creditors’ protection rights on a global scale, emphasizing the Ethiopian case. The study contends that while countries may adopt distinct approaches to safeguard corporate creditors, and variations may exist in the strictness of rules across different strategies, nations have a universal commitment to implement strategies to ensure adequate protection for creditors’ interests. Notably, the study underlines that, amid the surge in globalization and cross-border commerce, strategies for …

Navigating State Interventions: The Pivotal Role Of Ptas In Modern Trade Conflicts, Andrew D. Mitchell

Chicago Journal of International Law

In international trade, State interventions often challenge the efficacy of traditional antidumping and countervailing measures under the World Trade Organization (WTO) framework. This article examines the limitations of the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing Measures (SCM Agreement) in addressing State interventions, such as export taxes, export bans on raw materials, and non-commercial activities by State-owned enterprises. These interventions pose significant legal and economic challenges in global trade. The article advocates for the potential of preferential trade agreements (PTAs) as practical tools to address these challenges, surpassing traditional legal pathways under the Anti-Dumping Agreement. An analysis of …

Theorizing Constitutional Change In East Asia, John Gillespie

Chicago Journal of International Law

How do constitutions change in response to social problems? This Article explores why constitutions in three East Asian countries, namely Japan, Indonesia, and China, changed rapidly during times of social crisis and then incrementally evolved during periods of stability. It looks for explanations in historical institutionalism, a novel theory developed to understand the factors that give rise to the creation, persistence, and change of political institutions, such as constitutions. Constitutional change in these East Asian countries is explored by examining constitutionally defined eminent domain powers that enable governments to compulsorily acquire land in the public interest. The Article aims to …

Kids, No Phones At The Dinner Table: Analyzing The People’S Republic Of China’S Proposed “Minor Mode” Regulation And An International Right To The Internet, Tucker Craven

Chicago Journal of International Law

Around the world, governments are contemplating taking steps to reverse or mitigate the negative health and developmental effects that come from the increasing amount of time children are spending online and using screens. In 2023, the People’s Republic of China (PRC) released a draft regulation restricting minors’ screen time and internet use, which imposes a significant burden not only on children, but also on technology and internet companies that wish to continue operating in the country. However, the PRC’s proposed minor mode regulation is neither an extreme departure from the types of restrictions neighboring countries in East Asia have imposed …

The New Gender Perspective: The Dawn Of Intersectional Autonomy In Women’S Rights, Rosa Celorio

Chicago Journal of International Law

International human rights jurisprudence has increasingly mandated state action which integrates a gender perspective, taking into consideration the discriminatory norms, harmful social practices, stereotypes, and violence that women have and still suffer. A range of supranational bodies have issued case decisions promoting the adoption of gender-sensitive legislation, policies, programs, and the establishment of administration of justice systems well-trained and equipped to address women’s rights violations.

This article discusses how the conception of this gender perspective has evolved over time and is now centered on the pursuit of autonomy for women. Autonomy is presented as a key ingredient to ensure due …

Legitimizing Agencies, Brian D. Feinstein

University of Chicago Law Review

The project of bolstering the administrative state’s perceived legitimacy is central to administrative law. To enhance agencies’ legitimacy with the public, generations of judges and scholars have variously called for changes designed to insulate technocrats from political influence, involve interested members of the public, and subject agencies to greater political control. Despite the pitch of debate in elite legal circles, however, little is known about the views of ordinary citizens—the very people whose beliefs constitute popular legitimacy.

This Article provides evidence of Americans’ actual views concerning what features contribute to agencies’ perceived legitimacy. It presents the results of a set …

Effective Removal Of Article Iii Judges: Case Suspensions And The Constitutional Limits Of Judicial Self-Policing, Jack Brake

University of Chicago Law Review

Under the Judicial Conduct and Disability Act of 1980 (JCDA), it falls to federal judges in each circuit to investigate and redress complaints about their col- leagues’ behavior. A controversial provision of the Act authorizes the temporary suspension of misbehaving judges from new case assignments. Judges suspended under the Act—most recently, Judge Pauline Newman in the Federal Circuit—have argued that this amounts to effectively removing them from office without impeachment, violating constitutional protections of judicial tenure and independence. No court has invalidated a suspension on this basis so far. Yet courts have reserved the question taken up here, namely whether …

The Information Costs Of Exclusion, Jonathan Sarnoff

University of Chicago Law Review

The appropriate scope of the right to exclude is among the most contentious topics in property theory: while some defend direct state regulations that override owners’ right to exclude unwanted uses from their property, others defend greater deference to owners’ authority, implemented by stringent enforcement of the right to exclude. In recent years, scholars who favor exclusion have developed novel arguments to support it by focusing on the information costs of property. Because every- one must respect property rights, those rights must be simple enough for everyone to understand their content. And the right to exclude, which requires everyone to …