Law Commons^™

Regulatory Diffusion, Jennifer Nou, Julian Nyarko

Articles

Regulatory diffusion occurs when an agency adopts a substantially similar rule to that of another agency. Indeed, regulatory texts proliferate just like other forms of law do. While this insight has been explored across countries, this dynamic also occurs closer to home: American administrative agencies regularly borrow language from one another. Our research shows that, in recent years, agencies reused one out of every ten paragraphs of the Code of Federal Regulations. These findings are timely given the Supreme Court’s call for judges to be less deferential to agency regulatory interpretation. There is thus newfound significance to understanding how legislative …

Not-For-Profits, Esgs, And The Economic Structure Of Corporate Law, Saul Levmore

Articles

A compelling point in The Economic Structure of Corporate Law is that the single goal of maximizing shareholder value is efficient and generally desirable because it gives the managers one aim—while leaving room for law and private contracts to impose constraints on the firm in order to control negative externalities and other social concerns. Easterbrook and Fischel say that: “A manager told to serve two masters (a little for the equity holder, a little for the community) has been freed of both and is answerable to neither.” The point is an especially good one when the manager has more of …

Checks, Not Balances, Joshua C. Macey, Brian M. Richardson

Articles

Critics of the administrative state who would revive the nondelegation doctrine and embrace the unitary theory of executive power often assume that each branch’s powers are capable of precise definition, functionally distinct from the others, and that the formal boundaries between each branch are sacrosanct. This Article situates these critiques in Founding Era and nineteenth century debates about the structure of the Constitution. In the 1780s, the AntiFederalists objected to the Constitution for failing to enumerate a precise taxonomy of each branch’s powers, for failing to specify that each branch’s powers were exclusive, and for failing to make government officials …

English Common Law And The Ius Commune: The Contributions Of An English Civilian, R. H. Helmholz

Articles

Any student of legal history who believes that the European ius commune played a meaningful part in the origins and development of English law will profit from reading Reinhard Zimmermann’s masterpiece, The Law of Obligations. Indeed, that student will read it with joy. I am one of that number, and I remember my own reaction well when his book first appeared—equal parts of admiration and encouragement. Not only was the book a sparkling and learned treatment of many important aspects of the civil law, subjects about which I needed to learn more, it also proved to be the source of …

Kids Are Not So Different: The Path From Juvenile Exceptionalism To Prison Abolition, Emily Buss

Articles

Inspired by the Supreme Court’s embrace of developmental science in a series of Eighth Amendment cases, “kids are different” has become the rallying cry, leading to dramatic reforms in our response to juvenile crime designed to eliminate the incarceration of children and support their successful transition to adulthood. The success of these reforms represents a promising start, but the “kids are different” approach is built upon two flaws in the Court’s developmental analysis that constrain the reach of its decisions and hide the true implications of a developmental approach. Both the text of the Court’s opinions and the developmental and …

Symposium Introduction: This Violent City? Urban Violence In Chicago And Beyond, Aziz Z. Huq, John Rappaport

Articles

To many, the city of Chicago conjures up a specter of unremitting urban violence. In 2014, the city was labeled the “murder capital” of the United States.¹ The following year, a video of the police shooting Laquan McDonald became a cynosure of public concern.² Commentators as disparate as Spike Lee and President Donald Trump agree: Chicago is uniquely bloody.³ Predictably, the empirical data about Chicago’s crime and policing trends belie the most dramatic of these claims.⁴ Yet if Chicago is not as violent as either Lee or Trump makes it out to be, the city’s experience …

Nonparty Interests In Contract Law, Omri Ben-Shahar, David A. Hoffman, Cathy Hwang

Articles

Contract law has one overarching goal: to advance the legitimate interests of the contracting parties. For the most part, scholars, judges, and parties embrace this party primacy norm, recognizing only a few exceptions, such as mandatory rules that bar enforcement of agreements that harm others. This Article describes a distinct species of previously unnoticed contract law rules that advance nonparty interests, which it calls “nonparty defaults.”

In doing so, this Article makes three contributions to the contract law literature. First, it identifies nonparty defaults as a judicial technique. It shows how courts deviate from the party primary norm with surprising …

Procedural Losses And The Pyrrhic Victory Of Abolishing Qualified Immunity, Adam A. Davidson

Articles

Who decides? Failing to consider this simple question could turn attempts to abolish qualified immunity into a Pyrrhic victory. That is because removing qualified immunity does not change the answer to this question; the federal courts will always decide. For an outcome-neutral critic of qualified immunity who cares only about its doctrinal failures, this does not matter. But for the vast majority of critics who are outcome- sensitive, meaning they care about qualified immunity because of its role in police accountability, this is a troubling realization. Building on earlier work on the equilibration thesis, as well as on qualitative and …

Open Access, Interoperability, And Dtcc’S Unexpected Path To Monopoly, Dan Awrey, Joshua C. Macey

Articles

For markets characterized by significant economies of scale, scholars and policy- makers o�en advance open-access and interoperability requirements as superior to both regulated monopoly and the breakup of dominant firms. In theory, by compelling firms to coordinate in the development of common infrastructure, these requirements can replicate the advantages of scale without leaving markets vulnerable to monopoly power. Examples of successful coordination include the provision of electricity, intermodal transportation, and credit-card networks.

This Article offers a qualification to this received wisdom. By tracing the Depository Trust and Clearing Corporation’s path to monopoly in the U.S. securities clearing and depository markets, …

Written Statement Of Anthony Casey To The Subcommittee On Federal Courts, Oversight, Agency Action, And Federal Rights Of The Committee Of The Judiciary Of The United States Senate, Anthony Casey

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

The Power Of Attorneys: Addressing The Equal Protection Challenge To Merit-Based Judicial Selection, Zachary Reger

University of Chicago Law Review

Many states use merit-based judicial selection to limit political influence on state courts. Under merit selection, an independent, nonpartisan commission screens candidates for any open judgeship, sending a slate of finalists to the governor. Because the governor may appoint only from these approved finalists, merit selection constrains the ability of political officials to stack the courts with partisan judges.

Yet not all are convinced of merit selection’s merit. Critics of merit selection have assailed the role attorneys play in selecting some of the commission’s members. Though the details vary by state, ordinarily a minority of commissioners must be attorneys, and …

The Promise And Perils Of Open Finance, Dan Awrey, Joshua Macey

Coase-Sandor Institute for Law & Economics Research Paper Series

We are at the dawn of a new age of Open Finance. Open Finance seeks to harness the potential of new platform technology to enhance customer data access, sharing, portability, and interoperability—thereby leveling the informational playing field and fostering greater competition between incumbent financial institutions and a new breed of fintech disruptors. According to its proponents, this competition will yield a radical restructuring of the financial services industry: offering more and better choices for consumers looking to make fast payments, borrow money, invest their savings, manage household budgets, and compare financial products and services. The promise of Open Finance is …

Submerged Independent Agencies, Brian D. Feinstein, Jennifer Nou

Coase-Sandor Institute for Law & Economics Research Paper Series

Independent agencies are in the judicial crosshairs. Scholars criticize their efficacy—while still puzzling over how to define the form. By and large, this attention focuses on the top of the agency hierarchy, the extent to which agency heads are insulated from presidential control. What this perspective misses, however, is that power is also exercised by tenure-protected civil servants below. This phenomenon exists not because Congress has delegated them authority, but because executive branch actors have. Consequently, there exists another species of independent agency that requires a reckoning: call them “submerged independent agencies.” These entities are “agencies” because they wield discretionary …

Horizontal Collusion And Parallel Wage-Setting In Labor Markets, Johnathan Masur, Eric A. Posner

Public Law and Legal Theory Working Papers

Horizontal collusion among employers to suppress wages has received almost no attention in the academic literature, in contrast with its more familiar cousin, product market collusion. The similar economic analysis of labor and product markets might suggest that antitrust should regulate labor and product markets in the same way. But product markets and labor markets do not operate identically: people behave differently as employees and as consumers. Unlike consumers who can switch products relatively easily, employees face significant frictions in changing jobs. Other labor market frictions are created by the pay equity norm and downward nominal wage rigidity. These factors …

The Corruption Of The Pardon Power, Albert Alschuler

Public Law and Legal Theory Working Papers

This Article shows how the pardon power has been corrupted over the past forty years. It begins with a brief history of federal clemency. Throughout this history, presidents gave weight to the views of prosecutors and judges and afforded politicians considerable influence. Nevertheless, until well into the twentieth century, presidents liberally granted clemency to both prisoners and ex-offenders who, after completing their sentences, sought to erase their convictions.

In the early 1930s, as parole became a common means of releasing prisoners, the use of clemency to release prisoners declined. The abolition of parole in the 1980s, however, brought no revival …

Cash Substitution And Deferred Consumption As Data Breach Harms, Lior Strahilevitz, Lisa Yao Liu

Coase-Sandor Institute for Law & Economics Research Paper Series

In a series of federal court cases, judges have debated whether data breaches that expose consumer information satisfy Article III of the United States Constitution’s requirement that plaintiffs suffer an “injury in fact.” Judicial opinions find no constitutional standing in a narrow majority of such cases, and plaintiffs are likely to lose absent causal links to subsequent identity theft or the disclosure of embarrassing information. Consumers whose data are breached thus are left without a federal remedy, and firms’ incentives to invest in data security are diminished. Our paper identifies a novel injury that results from data breaches. Upon learning …

Screening Meaning, Christopher Buccafusco, Jonathan S. Masur, Mark P. Mckenna

Coase-Sandor Institute for Law & Economics Research Paper Series

Trademark law exists to promote competition. If consumers know which companies are responsible for which products, they can more easily find the products they actually want to purchase, and companies will have incentives to cultivate reputations for high quality. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this paper, we establish that this equation of source significance and pro-competitiveness is misguided. …

Appellate Panels Of One, Saul Levmore

Public Law and Legal Theory Working Papers

Appellate review can be understood as an opportunity to correct errors made by lower courts and, by virtue of their multi-member panels, as a way to benefit from the wisdom of crowds. Appellate panels of three judges, and then a larger Supreme Court of nine, are likely to interpret, apply, or advance law more correctly, or simply better, than a single lower-court judge whose effort is under review.¹ Appellate review can also be understood as relying on more experienced or otherwise superior decision-makers or as designed to make law more uniform, inasmuch as lower court decisions on many matters …

Cash Substitution And Deferred Consumption As Data Breach Harms, Lior Strahilevitz, Lisa Yao Liu

Public Law and Legal Theory Working Papers

In a series of federal court cases, judges have debated whether data breaches that expose consumer information satisfy Article III of the United States Constitution’s requirement that plaintiffs suffer an “injury in fact.” Judicial opinions find no constitutional standing in a narrow majority of such cases, and plaintiffs are likely to lose absent causal links to subsequent identity theft or the disclosure of embarrassing information. Consumers whose data are breached thus are left without a federal remedy, and firms’ incentives to invest in data security are diminished. Our paper identifies a novel injury that results from data breaches. Upon learning …

Our Constitutionalism Of Force, Farah Peterson

Public Law and Legal Theory Working Papers

The Founders’ constitution—the one they had before the Revolution and the one they fought the Revolution to preserve—was one in which violence played a lawmaking role. An embrace of violence to assert constitutional claims is worked deeply into our intellectual history and culture. It was entailed upon us by the Founding generation, who sincerely believed that people “are only as free as they deserve to be” and that one could tell how much freedom people deserved by how much blood they were willing to shed to obtain it. This constitutionalism of force survived ratification. Its legacy is a constitutional order …

Optional Price Discrimination, Lee Anne Fennell

Public Law and Legal Theory Working Papers

Price discrimination gets a bad rap. It is associated with the exploitation of monopoly power and with opportunistically extracting surplus from consumers. As merchants develop ever-more-powerful mechanisms for gathering and compiling information about consumers, the specter of fully personalized pricing seems to loom as an ominous threat. Despite past economic defenses of price discrimination as an efficient and even consumer-friendly move in some contexts,¹ recent writing highlights the perceived unfairness of tailoring prices to willingness to pay, especially when this is accomplished through “big data.”²

Yet a parallel phenomenon quietly coexists with all this distress over personalized prices: …

Checks, Not Balances, Joshua Macey, Brian Richardson

Public Law and Legal Theory Working Papers

Critics of the administrative state who would revive the nondelegation doctrine and embrace the unitary theory of executive power often assume that each branch’s powers are capable of precise definition, functionally distinct from the others, and that the formal boundaries between each branch are sacrosanct. This Article situates these critiques in Founding Era and nineteenth century debates about the structure of the Constitution. In the 1780s, the AntiFederalists objected to the Constitution for failing to enumerate a precise taxonomy of each branch’s powers, for failing to specify that each branch’s powers were exclusive, and for failing to make government officials …

Data Federalism, Bridget Fahey

Public Law and Legal Theory Working Papers

Private markets for individual data have received significant and sustained attention in recent years. But data markets are not for the private sector alone. In the public sector, the federal government, states, and cities gather data no less intimate and on a scale no less profound. And our governments have realized what corporations have: It is often easier to obtain data about their constituents from one another than to collect it directly. As in the private sector, these exchanges have multiplied the data available to every level of government for a wide range of purposes, complicated data governance, and created …

Militant Democracy Comes To The Metaverse, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Social media platforms such as Facebook, Twitter, Instagram, and Parlor are an increasingly central part of the democratic public sphere in the United States. But the prevailing view of this platform-based public sphere has of late become increasingly dour and pessimistic. What were once seen as technologies of liberation have come to be viewed with skepticism as channels and amplifiers of “antisystemic” forces, damaging the quality and feasibility of democracies. If correct, this skepticism yields an interesting tension: How can the state protect its democratic character against unravelling pressure from actors who are necessary components of democratic practice in the …

Procedural Losses And The Pyrrhic Victory Of Abolishing Qualified Immunity, Adam Davidson

Public Law and Legal Theory Working Papers

Who decides? Failing to consider this simple question could turn attempts to abolish qualified immunity into a Pyrrhic victory. That is because removing qualified immunity does not change the answer to this question; the federal courts will always decide. For an outcome-neutral critic of qualified immunity who cares only about its doctrinal failures, this does not matter. But for the vast majority of critics who are outcome-sensitive, meaning they care about qualified immunity because of its role in police accountability, this is a troubling realization. Building on earlier work on the equilibration thesis, as well as on qualitative and quantitative …

The Counter-Democratic Difficulty, Aziz Z. Huq

Public Law and Legal Theory Working Papers

No abstract provided.

Digital Privacy For Reproductive Choice In The Post-Roe Era, Aziz Z. Huq, Rebecca Wexler

Public Law and Legal Theory Working Papers

The overruling of Roe v. Wade has unleashed a torrent of regulatory and punitive activity restricting previously lawful reproductive options. But the turn to the expansive criminal law and new schemes of civil liability creates novel concerns, quite distinct from the pre-Roe landscape a half-century ago. Reproductive choice, and its nemesis, turn upon information. For pregnant people, deciding on a choice of medical care entails a search for advice and services. Information is at a premium for them. Meanwhile, efforts to regulate abortion began with clinic closings. But they will quickly extend to civil actions and criminal indictments of patients, …

Stark Choices For Corporate Reform, Aneil Kovval

Public Law and Legal Theory Working Papers

For decades, corporate law scholars insisted on a simple division of responsibilities. Corporations were told to focus exclusively on maximizing financial returns to shareholders while the government tended to all other concerns by adopting new regulations. As reformers challenged this orthodoxy by urging corporations to take action on pressing social problems, defenders of the status quo have responded by suggesting that these efforts could be dangerous. In their view, internal corporate governance reforms could interfere with the adoption of external governmental regulations that would be more effective. The hypothesis that reformers face a stark choice between pursuing internal corporate changes …

The Unexpected Costs Of Moral Minimization As An Interrogation Tactic, Margareth Etienne, Richard H. Mcadams

Public Law and Legal Theory Working Papers

No abstract provided.

Civil Procedure As The Regulation Of Externalities: Toward A New Theory Of Civil Litigation, Ronen Avraham, William H.J. Hubbard

University of Chicago Law Review

Civil procedure serves a multitude of goals, from regulating the cost of fact gathering to dictating the rules of advocacy in court to promoting public participation in trials. To what extent can procedural design serve them all, or must rules sacrifice some interests to serve others? In this Article, we are the first to introduce a theory of procedural design that answers this question. We build upon the fundamental insight that the goals of civil procedure, as varied as they are, all occupy a common conceptual space—each addresses an externality, positive or negative, that litigation creates. This insight allows us …