Law Commons^™

Vapes In Violation: The Case For An Fdca-Based Negligence Per Se Claim Against E-Cigarette Manufacturers, Grace Hering

University of Chicago Legal Forum

The unexpected and dramatic rise in youth e-cigarette consumption in the past decade has left both private and public actors racing to catch up to a quickly evolving and potentially disastrous market. As litigation against e-cigarette manufacturers continues to develop, it is increasingly evident that one of the biggest obstacles to bringing private claims will be avoiding preemption under the Federal Food, Drug, and Cosmetic Act (FDCA).

This Comment argues that one untested yet promising pathway for injured plaintiffs to avoid preemption is to bring FDCA-based negligence per se claims. By examining precedent involving other FDCA provisions, this Comment assesses …

Curfew And Its Constitutional Limits: Analyzing The Judicial Standard Of Review For Curfews In Times Of Emergency, Alec Greven

University of Chicago Legal Forum

Curfews imposed against an entire civilian population are extremely rare. Despite this, the amount of curfews has recently skyrocketed in the United States as government officials use this sweeping power to respond to emergencies. This Comment evaluates the constitutional rights implicated by general curfew orders, namely the right to travel and the right to speak in public forums. Then, this Comment surveys the current circuit split. Lower courts significantly diverge in their standard of review of curfew orders and apply three very different forms of review: deference, intermediate scrutiny, and strict scrutiny. This Comment argues that courts should subject general …

Compassion Or Crisis?: Distinguishing Intent Under § 1324 In Sanctuary And Trafficking Cases, Leah Cussen

University of Chicago Legal Forum

Section 1324 of Title 8 of the U.S. Code prohibits “harboring” undocumented immigrants. But for decades, courts have disagreed over what counts as harboring and what mens rea is required to prove it. These questions have only grown more urgent as immigration has been repeatedly framed as a national crisis. A lack of uniformity in the application of § 1324 has enabled expansive enforcement of the anti-harboring provision, allowing a single statute to target both humanitarian actors providing sanctuary and traffickers exploiting immigrants.

Today, a circuit split reflects two competing approaches. The Third, Fifth, Sixth, and Eighth Circuits use a …

When Disaster Strikes: Assessing The Takings Clause In The Context Of Government-Caused Property Destruction, Abby Berman

University of Chicago Legal Forum

In rare but dire emergencies, the government must destroy the property of innocent homeowners to prevent further harm to a community. Although the law often forgives such destruction to protect the public good, courts have inadequately resolved how to compensate innocent property owners for their losses. This Comment unpacks how doctrine has split among circuit courts regarding whether the Takings Clause requires just compensation for innocent property owners whose property has been destroyed by government action in response to an emergency. As a resolution to this circuit split, this Comment proposes that courts should adopt a multi-factor test, utilizing the …

False Claims, Real Threats: Cybersecurity Noncompliance And The False Claims Act’S Materiality Standard, Charlotte Bairey

University of Chicago Legal Forum

This Comment examines the challenges of applying the False Claims Act’s (FCA) materiality standard to cybersecurity noncompliance by federal contractors. Although the Department of Justice’s Civil Cyber-Fraud Initiative seeks to hold government contractors accountable for misrepresenting their adherence to federal cybersecurity standards, courts have inconsistently applied the “holistic” framework for determining materiality established by the Supreme Court in Universal Health Services v. Escobar. Cybersecurity-related FCA claims face unique obstacles when it comes to showing materiality because noncompliance is widespread, national security interests complicate the government’s payment decisions, and government agencies may continue contracting with noncompliant entities out of necessity. This …

Killer Heat: The Disaster Fema Refuses To Own, Robert R.M. Verchick

University of Chicago Legal Forum

Extreme heat, also known as a “heatwave,” is by far the leading weather-related cause of death in the United States.1 In 2023, extreme heat took 2,300 lives—more than all the deaths attributed to hurricanes, earthquakes, tornadoes, droughts, wildfires, winter storms, and floods combined. Harms from extreme heat, which are especially severe in disadvantaged communities, will only increase as the climate continues to break down. Despite these facts, in more than 70 years of comprehensive disaster response, no president has ever declared a “major disaster” based on extreme heat, nor has the Federal Emergency Management Agency (FEMA) ever recommended he do …

Majority Rule And Bankruptcy Resolution Of Mass-Harm Events, Sarah Paterson, Adrian Walters

University of Chicago Legal Forum

Mass-harm events invariably precipitate mass tort liabilities. Since the enactment of the Bankruptcy Code in 1978, firms have resorted to Chapter 11 to address mass tort claims in cases involving asbestos-related disease, defective products, the opioid crisis, and historic sexual abuse. Of late, the use of bankruptcy to resolve mass tort claims has been the subject of sustained criticism from inside and outside bankruptcy law’s professional and academic communities. Much of this has been provoked by the Purdue Pharma filing and the bankruptcy court’s approval of a plan of reorganization that created a liability shield for the Sackler family in …

Vaccines For Pandemics: Lessons From Covid-19 For H5n1 And Beyond, Alison Mccarthy, Michael S. Sinha

University of Chicago Legal Forum

The COVID-19 pandemic brought unprecedented challenges to vaccine development and distribution. Never before has a vaccine been developed so quickly and distributed so rapidly. But compared to past pandemics and public health crises—like polio or even the more recent H1N1 pandemic—the United States government’s COVID-19 vaccine strategy depended greatly on the private sector.

COVID-19 vaccines were credited with saving millions of lives worldwide, but private companies reaped these rewards, retained their patent rights, and profited from the vast and pressing need for their vaccines. Now, five years later, not every company views its vaccine work as a success. Financial hits …

Elections, Courts, And Democratic Crisis: Constitutional Structure And The 2020 Election, Manoj Mate

University of Chicago Legal Forum

This Article analyzes how the U.S. constitutional order responds to democratic crisis by examining Supreme Court cases dealing with the effort to overturn the 2020 election, and the response to the January 6th Capitol attack. It analyzes the Court’s approaches to constitutional structure in key cases and how these approaches impact constitutional capacity to address democratic crises. The Article discusses how the effort to overturn the 2020 election sought to exploit key weaknesses in the U.S. constitutional framework. It then examines how the Supreme Court adjudicated cases related to the effort to overturn the 2020 election, including Moore v. Harper, …

Emergencies, Alien And Domestic, Samuel Issacharoff

University of Chicago Legal Forum

Democracies survive some emergencies, even emerging stronger after some crises despite temporary suspensions of liberty. Democracies die when faced with other emergencies. This Article explores why. It addresses the claimed need to limit rights of electoral participation in response to the rise of antidemocratic forces through the lens of militant democracy in Europe and the Insurrection Clause of Section Three of the Fourteenth Amendment in the United States. When examined through the context of claimed exigency, the ability of democracies to survive or even thrive after emergencies turns heavily on whether the source of the perceived threat is foreign or …

Realizing The World Health Organization’S Constitutional Mission: Equitably And Everywhere, Sam Halabi, Lawrence Gostin

University of Chicago Legal Forum

COVID-19 revealed deeply embedded inequalities in countries’ capacity to respond to public health disasters. From 2020 to 2024, the content and scope of international health law expanded to address these deep inequities, including a new pandemic agreement and significant changes to the International Health Regulations (IHR). Recent moves by the Trump Administration leveled significant losses on this new global health law infrastructure. At the heart of this infrastructure is the World Health Organization (WHO)—the UN’s specialized agency, which for 77 years has led the world toward realizing the human right to the highest attainable standard of mental and physical health. …

Crisis And The Constitution: The Role Of Civil Liberties In Times Of National Security Threat, Michele Goodwin, Allison M. Whelan

University of Chicago Legal Forum

In this Article, we contribute to the unfolding debate around civil liberties and civil rights in times of political, cultural, and health crises. As this Article was drafted, the National Guard was deployed in Los Angeles, California and Washington, D.C. by the President of the United States. In Oregon, a federal judge issued a final order barring the Trump administration from deploying troops to Portland. These events renew questions related to federalism, states’ rights, individual civil rights, and civil liberties. As chaos unfolds, what is the rule of law and role of civil liberties in times of real or purported …

Liability For Disaster Risks, Daniel A. Farber

University of Chicago Legal Forum

A growing body of law addresses liability for harms caused by disasters. The bases for liability are diverse: common law torts, statutes covering specific risks, and takings doctrine. Litigation can involve government or private defendants, while the disaster could be anything from an oil spill to a flood. This Article maps this complex legal terrain and discusses three cross-cutting themes in disaster liability. One theme is the action/inaction distinction, which can create a perverse incentive to postpone or forego mitigation efforts. The second theme involves the interplay between legislatures and courts in designing and implementing liability rules. The final theme …

A Continuum Of Responsibility: An Examination Of The Human Right To A Healthy Environment Of Present And Future Generations, Sarah Dávila A.

University of Chicago Legal Forum

Youth-led advocacy has been at the forefront of the protection of the right to a healthy environment in the face of a triple planetary crisis: loss of biodiversity, environmental degradation, and climate change. Globally, youth have called upon international bodies to provide guidance as to how States and private actors can be held accountable for human right violations. They have demanded that States protect not merely the human rights of present generations, but those of future generations. This Article explores recent developments in international human rights law, including the recent Committee on the Rights of the Child General Comment No. …

Emergency Lending By The Federal Reserve, Richard Clarida, Kathryn Judge

University of Chicago Legal Forum

The Federal Reserve established an array of innovative emergency lending facilities during the Great Financial Crisis and expanded the scope of its emergency lending yet further in response to the Covid-19 pandemic. This Article provides a retrospective of how the Federal Reserve used its emergency lending authority across these two episodes, identifying patterns and revealing some differences. It sheds light on the conditions that enabled the Federal Reserve to establish the facilities that it did, including the roles played by Congress and Treasury in providing the equity funding that made certain facilities possible. It shows how in each episode, the …

The Disaster Management Complex: Law’S Adaptations In Times Of Climate Disaster, Michael Burger, Jeffrey Schlegelmilch, Lucia Bragg

University of Chicago Legal Forum

The Anthropocene is marked by constant climate-related disasters and defined by the urgent need to foster and implement adaptations to future climate impacts that reduce disaster risk. The intensity, frequency, and severity of extreme weather events continue to rise even as nations and corporations alike miss their emissions targets, all promising a hotter, wetter, and more extreme future. A number of federal agencies, including the Federal Emergency Management Agency (FEMA), have, at times, sought to adapt their own famously fragmented responses to these changing circumstances. However, federal disaster response is conducted against a backdrop of authorizing legislation that is designed …

In-House Lawyers And The Impact Of Crisis-Driven Financial Legislation: Evidence From Sarbanes-Oxley, Dhruv Chand Aggarwa

University of Chicago Legal Forum

The Sarbanes-Oxley Act of 2002 (SOX) entrusted the general counsel (GC) of public companies with overseeing a new system of internal controls and reporting misconduct at their firms. I use a hand-collected dataset tracking the backgrounds of in-house lawyers to argue that SOX increased the value of “experienced” GCs who had worked at the firm for longer as of the legislation’s enactment. I find that firms with experienced GCs exhibited positive abnormal returns around key legislative dates associated with the passage of SOX. Experienced GCs also saw larger increases in compensation immediately after the passage of SOX. Experienced GCs could …

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

Public Law and Legal Theory Working Papers

No abstract provided.

When Are Foot Pursuits Really Necessary?: How Improved Policies Might Reduce Community Harm, Sharon R. Fairley

Public Law and Legal Theory Working Papers

Despite the widely accepted view that foot pursuits are inherently dangerous for both police officers and citizens, a minority of municipal police agencies have adopted policies that have the potential to minimize the risk of harm by limiting the circumstances in which police officers are permitted to pursue a subject on foot. This paper presents data related to foot pursuit incidents and existing foot pursuit policies. The paper documents that most existing foot pursuit policies are limited in their potential to reduce unwarranted deadly encounters because the guidance they provide requires officers to consider and weigh vague concepts in tense, …

Value Maximization In Financial Contracts, Vincent S.J. Buccola

Coase-Sandor Institute for Law & Economics Research Paper Series

This essay, adapted from the 2026 Coase Lecture, at the University of Chicago, considers the extent to which financial contracts are calibrated to maximize parties' expected joint surplus. Because capital market transactions link typically well-counseled parties who put substantial value at risk, and produce only muted externalities, it is tempting to conclude that the associated contracts will ameliorate the inevitable problems of imperfect information more or less as well as possible. This essay describes conventional grounds for thinking so and offers several criticisms. Taken together, the criticisms imply that justificatory inference from a term's use--even widespread and longstanding use--to its …

Dammed If You Do: Should The Government Be Liable For Hurricane Flooding And Other Natural Disasters?, Lior Jacob Strahilevitz

Coase-Sandor Institute for Law & Economics Research Paper Series

When hurricanes, wildfires, and other natural disasters strike, government officials must make difficult decisions under time pressure and amidst uncertainty over how best to save lives and mitigate the resulting damage to private property. Sometimes landowners who do not second-guess the appropriateness of those decisions made in exigent circumstances nonetheless insist that the government should foot the bill for the resulting destruction. In a 2025 opinion (Ablan) and a 2022 decision (Milton), both involving flooding damage resulting from Hurricane Harvey, the Federal Circuit articulated an expansive vision of government liability under the Takings Clause that can be squared with neither …

The Effects Of Tax Evasion On Inequality, David A. Weisbach, Thomas Coleman

Coase-Sandor Institute for Law & Economics Research Paper Series

To estimate inequality from tax data, researchers must allocate misreported income (e.g., evasion) to individuals. Misreported income, however, is not directly observed. Recovering true income therefore requires identifying assumptions about the joint distribution of true income and reporting, and these assumptions can substantially change estimated top income shares. A central reason is that membership in the reported top group is selected on compliance, an unobservable, so the composition of the reported top depends on assumptions the data alone cannot settle. We develop a computational framework that makes these assumptions explicit and clarifies how they shape estimates of inequality.We show that …

Lockstepping Structure, Darrell A.H. Miller

Public Law and Legal Theory Working Papers

The new judicial federalism is now entering its early middle age. As it has matured—moving from rights to structure—it has become more complicated in its application. For if one were to take arguments about state experimentation and interpretive flexibility to their logical conclusion, there is no reason state legislative, executive, and judicial powers should stay in lanes demarcated by federal constitutional law. Easily amended state constitutions and elected judges support theories of judicial function more akin to statewide legislative policymakers than passive judicial magistrates. Positive rights in state constitutions would seem to demand recalibration of the rules of standing and …

Designing Contract Modification, Albert H. Choi, George Triantis

University of Chicago Law Review

No abstract provided.

The Structural Law Of Data, Bridget A. Fahey, Raul Castro Fernandez

University of Chicago Law Review

The central concern of structural constitutional law is the organization of governmental power, but power comes in many forms. This Article is about how the law of structure regulates decision-making about, and popular control over, an increasingly potent form of power: the power government obtains from data. The government has always relied on information to meet its objectives, but the digitization of information over the last half century has yielded a distinctive form of governmental power—one that is liquid, transferable, minable, dynamic, and vital to virtually all governmental activity today.

But despite the significant literature on private-sector “data governance,” public …

Settlements Of Adhesion, Nicole Summers

University of Chicago Law Review

Eviction cases make up over a quarter of all cases filed in the federal and state civil courts and have enormous consequences for tenants, who are nearly always unrepresented by counsel. These cases overwhelmingly settle, yet settlement scholars have entirely overlooked eviction both empirically and theoretically. One of the core questions animating settlement scholarship—how do the parties negotiate settlement?— has never been asked or answered in the eviction context. This Article does so.

The Article presents results from the first empirical study of eviction settlement negotiations. The study involved rigorous analysis of an original dataset of over one thousand hand-coded …

The Law And Economics Of Guilt And Shame, Ian Ayres, Joseph Bankman, Daniel Hemel

University of Chicago Law Review

The negative moral emotions of guilt and shame impose real social costs but also create opportunities for policymakers to engender compliance with legal rules in a cost-effective manner. We present a unified model of guilt and shame that demonstrates how legal policymakers can harness negative moral emotions to increase social welfare. The prospect of guilt and shame can deter individuals from violating moral norms and legal rules, thereby substituting for the expense of state enforcement. But when legal rules and law enforcement fail to induce total compliance, guilt and shame experienced by noncompliers can increase the law’s social costs. We …

Administrative Self-Constitutionalism, Brian Lipshutz

Public Law and Legal Theory Working Papers

Since the days of the Interstate Commerce Commission, federal agencies have generally refused to address the constitutionality of statutory provisions. They have offered little reasoning to justify that refusal, yet scholars have generally accepted it. This Article explains why agencies can—and should—address constitutional challenges to statutory provisions.

Agencies have the power to assess the constitutionality of statutory provisions. They already exercise a similar authority when they apply the canon of constitutional avoidance and consider the constitutionality of individual actions. There is no basis for stopping short of addressing challenges to statutes. And many scholars have recognized that, as a formal …

General Law Revivalism And The Problem Of 1938, Jack Landman Goldsmith, Curtis Bradley

Public Law and Legal Theory Working Papers

From the constitutional Founding until Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts routinely applied a body of “general law” to resolve a wide range of legal issues, including issues relating to commercial law, tort law, international law, conflict of laws, equity, and procedure. This general law regime became politically fraught and difficult to administer, and the Supreme Court repudiated it in Erie, declaring that “there is no federal general common law” and requiring the federal courts to ground all rules in either federal or state law. Erie and its progeny created what this Article terms the …

The Seeds Of Peace And Justice, Shai Dothan

Chicago Journal of International Law

Some positive developments in international law had humble beginnings. They started from a small group of idealists who wanted to change the world for the better. Once their ideas gathered momentum, they got the support of people with power and transformed the world. State after state followed each other in a cascade toward improving international law. The purpose of this paper is to investigate the conditions that are beneficial for the initial germination of ideas with the potential to positively revolutionize international law. By using a series of case studies focused on the initiation of major transformations that improved international …