Law Commons^™

Asymmetric Subsidies And The Bail Crisis, John F. Duffy, Richard M. Hynes

University of Chicago Law Review

When individuals are arrested or indicted for a crime, governments have legitimate interests in assuring that those individuals show up for future legal proceedings and also do not cause more social harm in the meanwhile. To serve those legitimate interests, governments may restrain the personal liberty of those presumptively innocent individuals—traditionally accomplished either by incarceration or by release subject to certain sureties and conditions. The choice, in short, is between jail and bail.

Currently, governments skew that choice by subsidizing the costs of jail but not bail. The result—wholly predictable given the size and asymmetric nature of the subsidy—is that …

Federal Corporate Law And The Business Of Banking, Lev Menand, Morgan Ricks

University of Chicago Law Review

The only profit-seeking business enterprises chartered by a federal government agency are banks. Yet there is barely any scholarship justifying this exception to state primacy in U.S. corporate law.

This Article addresses that gap. It reinterprets the National Bank Act (NBA)—the organic statute governing national banks, the heavyweights of the financial sec-tor—as a corporation law and recovers the reasons why Congress wrote this law: not to catalyze private wealth creation or to regulate an existing industry, but to solve an economic governance problem. National banks are federal instrumentalities charged with augmenting the money supply—a delegated sovereign privilege. Congress recruited private …

In Search Of Ordinary Meaning: What Can Be Learned From The Textualist Opinions Of Bostock V. Clayton County?, Sam Capparelli

University of Chicago Law Review

In Bostock v. Clayton County, the Supreme Court held that Title VII protects gay and transgender individuals from employment discrimination. Writing for the majority, Justice Neil Gorsuch adhered to textualist principles and relied on the ordinary public meaning of the phrase “discriminate because of sex.” Despite the ma-jority opinion purportedly not reaching beyond the words of the statute, three other conservatives on the Court accused Justice Gorsuch of legislating from the bench. Central to this Comment, Justice Brett Kavanaugh took exception with how Justice Gorsuch reached his ordinary meaning of the phrase. The debate between these two Justices can be …

It’S All About (Re)Location: Interpreting The Federal Sentencing Enhancement For Relocating A Fraudulent Scheme, Stephen Ferro

University of Chicago Law Review

Section 2B1.1(b)(10) of the U.S. Sentencing Guidelines Manual increases the recommended sentencing ranges for defendants who make fraudulent schemes harder to uncover. In particular, subsection (A) of this Guideline—the relocation enhancement—increases a defendant’s recommended sentence if she “relocated, or participated in relocating, a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory officials.” This provision raises the question: Where is a fraudulent scheme located? The question might have a straightforward answer in cases that involve few defendants and few fraudulent acts. But federal circuit courts have split over how to apply this enhancement to schemes that span multiple …

The Scope Of Evidentiary Review In Constitutional Challenges To Agency Action, Conley K. Hurst

University of Chicago Law Review

When reviewing agency action, the Administrative Procedure Act (APA) instructs courts to “review the whole record or those parts of it cited by a party.” The Supreme Court has interpreted this brief statement as a restriction on the evidentiary scope of judicial review under the APA. Courts may consider only the administrative record compiled by the agency, which includes all materials before the decisionmaker at the time he or she made the decision. The Supreme Court has recognized one exception: plaintiffs may supplement the administrative record if they make a strong showing of bad faith or improper behavior on the …

The Legal Causes Of Labor Market Power In The U.S. Agriculture Sector, Candice Yandam Riviere

University of Chicago Law Review

Recent developments in law and economics have shown that labor market power is a pervasive antitrust issue contributing to earnings inequality and slowed economic growth. In the agriculture sector, workers—especially H-2A temporary agricultural workers—have consistently suffered from low, stagnating wages and poor working conditions. This Comment evaluates the extent of labor market power in the agriculture sector and how antitrust law and immigration-policy norms exacerbate labor monopsony. I show that the pervasiveness of labor monopsony is due, in part, to a conflict between antitrust law and immigration regulation. Specifically, I examine an immigration statute that allows temporary guest workers to …

Trademark Law Pluralism, Daniel J. Hemel, Lisa Larrimore

University of Chicago Law Review

In recent years, trademark scholars have come to recognize that the supply of words, sounds, and symbols available to designate new goods and services is an exhaustible resource. In certain sectors, the most common English words and syllables and the most common U.S. surnames are almost all claimed as marks. Some firms have responded by resorting to ever-more-unusual brand names so as to avoid trademark disputes. Scholars have proposed solutions ranging from raising registration fees to narrowing the scope of trademark rights.

In this Article, we frame trademark law’s governance of “linguistic space” as a balancing act between what we …

Defining Forced Labor: The Legal Battle To Protect Detained Immigrants From Private Exploitation, Samantha Sherman

University of Chicago Law Review

Privately run immigration detention facilities allegedly profit from a nation-wide system of forced labor. People detained in these for-profit facilities allege that they are compelled to work—often without pay—under threats of solitary confinement, deprivation of basic necessities, and other serious harms. Advocates have challenged these human rights abuses through a series of class action lawsuits under the Trafficking Victims Protection Act (TVPA). The TVPA’s forced labor provision, codified at 18 U.S.C. § 1589, prohibits the use of “labor or services” obtained by force or coercion. If successful, these lawsuits would not only help vindicate the rights of the hundreds of …

Arbitration And Title Vii Pattern-Or-Practice Claims After Epic Systems, Simon Jacobs

University of Chicago Law Review

In recent years, the Supreme Court has put up roadblocks for workers who seek relief in court for wrongs committed by their employers. This development is a con-sequence of the Court’s arbitration jurisprudence. Epic Systems Corp. v. Lewis, a 2018 decision, was par for the course. The Supreme Court held that employers could prevent group wage-and-hour claims by enforcing individual arbitration agreements. It rejected the plaintiffs’ argument that their litigation activity was protected by labor law. In dissent, Justice Ruth Bader Ginsburg questioned the application of the decision to Title VII pattern-or-practice cases. Indeed, Epic Systems puts potential Title VII …

Never Ask A Woman Her Wage: The Constitutionality Of Salary-History Bans, Tyler M. Wood

University of Chicago Law Review

For over a half-century, legislatures have struggled to close the pay gap be-tween men and women. Although the gap has shrunk substantially since Congress passed the Equal Pay Act in 1963, in recent years, progress has slowed to a near standstill. Why has the residual gap remained so persistent? Some argue that employers—by asking applicants to reveal their wage histories and then relying on that information to set future wages—have forced women to carry wage discrimination from job to job. Reacting to this argument, some states and cities have provided a simple solution: ban salary-history inquiries.

This Comment addresses whether …

The Pigouvian Constitution, Peter N. Salib

University of Chicago Law Review

How can lawmakers reduce the skyrocketing rate of gun deaths in the United States? How can they stymie the spread of viral fake news stories designed to under-mine our elections? Certain constitutionally protected activities—like owning a gun or speaking online—can generate social harms. Yet when lawmakers enact regulations to reduce those harms, they are regularly struck down as unconstitutional. In-deed, the very laws designed to most aggressively reduce social harms—like total criminal bans—are the least likely to be upheld. As a result, regulators appear stuck with an unpleasant choice—regulate constitutionally or effectively, but not both.

This Article proposes a novel …

On Relating Social Sciences To International Law: Three Perspectives, Yifeng Chen

Chicago Journal of International Law

This Essay offers a critical yet constructive reading of the social science approach to international law. In seeking to frame international legal studies alongside the positivistic social sciences, the social science approach has suffered from important methodological deficiencies. Though appearing to be an objective science, the social science approach requires a scholar to make subjective decisions throughout the research process. A reductionistic social science approach to international law risks consolidating existing inequalities and imperialistic institutions in the name of objective science. A healthy interaction between international law and the social sciences requires enriched conceptions of both international law and the …

China And Comparative International Law: Between Social Science And Critique, Matthew S. Erie

Chicago Journal of International Law

This Essay brings Abebe, Chilton, and Ginsburg’s Lead Essay into conversation with the literature on comparative international law to ask whether the social scientific approach to international law is “international.” In particular, this Essay takes the case of scholarship on international law in China to examine why or why not particular methodological and theoretical perspectives on international law may gain traction in certain jurisdictions’ legal academies. There are a number of linguistic, pedagogic, institutional, and, ultimately, political reasons why the Chinese scholarship that uses social science to understand international law is still nascent. At the same time, critical approaches to …

International Law And Transnational Legal Orders: Permeating Boundaries And Extending Social Science Encounters, Gregory Shaffer, Terence C. Halliday

Chicago Journal of International Law

This Essay elaborates in three ways the call for a renewal of social science approaches to international law advanced by Daniel Abebe, Adam Chilton, and Tom Ginsburg. First, while we affirm the importance of what they call the “scientific method” of hypothesis testing, we argue that it can and must be complemented by several other well-institutionalized social science approaches to international law. Second, we loosen the conventional “internal”/“external” distinction in legal scholarship and make the case that conceptualization and empirics are integral to both approaches. Third, we propose that the full promise of social science approaches to international law can …

Linguistic Minorities With Disabilities And The Right To Native Language Instruction, Carol Zhang

Chicago Journal of International Law

This Comment examines whether international law guarantees for linguistic minorities with disabilities the right to native language instruction. Linguistic minorities with disabilities currently face two challenges: the barriers presented by their disability and the difficulties of learning the majority language. A right to native language instruction would help eliminate this second challenge, removing an obstacle in academic and social development. To determine the existence of such a right, this Comment will first analyze the language rights regime and show that linguistic rights require further evaluation of the specific pragmatic interests involved. Next, this Comment looks at treaty and case law …

Deal Protection Devices, Albert H. Choi

University of Chicago Law Review

In mergers and acquisitions transactions, a buyer and a seller will often agree to contractual mechanisms (deal protection devices) to deter third parties from jumping the deal and to compensate a disappointed buyer. With the help of auction theory, this Article analyzes various deal protection devices, while focusing on the two most commonly used mechanisms: match rights and target termination fees. A match right gives the buyer a right to “match” a third party’s offer so as to prevent the third party from snatching the target away, while a termination fee compensates the buyer when a third party acquires the …

Applying The United Nations Trafficking Protocol In The Context Of Climate Change, Mikaila V. Smith

Chicago Journal of International Law

Climate change will increasingly lead to widespread environmental degradation which will in turn spur large-scale vulnerability, displacement, and migration. This phenomenon is now well recognized in the literature, although causal pathways continue to be debated. However, scholars and practitioners have so far largely neglected to examine the related ways in which climate change will significantly impact the scale and scope of global trafficking in persons. This Comment responds to a lack of scholarship on the climate change-human trafficking nexus by exploring the predicted impacts of climate change on human trafficking. In light of these forecasted developments, this Comment argues that …

How Hackers Of Submarine Cables May Be Held Liable Under The Law Of The Sea, Jason Petty

Chicago Journal of International Law

Submarine internet cables play a vital role in the modern economy and transmit almost all global internet connections between countries. These cables, however, are vulnerable to interference or hacking by foreign states who seek to obtain the valuable data that passes through them. Because these cables are located on the high seas, however, no country has legal jurisdiction over large portions of them allowing for any number of states or private actors to hack into them and steal valuable information. This Comment evaluates whether states have any legal recourse under public international law against entities that hack into submarine cables. …

Herding Schrödinger’S Cats: The Limits Of The Social Science Approach To International Law, Simon Chesterman

Chicago Journal of International Law

The struggle to assert the legitimacy and relevance of international law is integral to its story. Among academics, that tale has seen other lawyers question whether it is “really” law, while scholars of international relations have dismissed it in a bemused footnote. Among politicians, the narrative has been one of efforts to establish international law as more than simply one foreign policy justification among others. The turn to social science offers a double remedy: rigorous methods that will earn the respect of the academy while also demonstrating the discipline’s “real world” impact. This is an elegant answer—to the wrong question. …

Comparative International Law And The Social Science Approach, Emilia Justyna Powell

Chicago Journal of International Law

The social science approach has already contributed and continues to contribute to the study of international law. In particular, research that incorporates the social science approach has provided much insight into reality and day-to-day functioning of international law by going beyond historical and normative description and providing generalizable theories. If based on a sound theoretical framework that is subsequently tested in a rigorous scientific manner, the social science approach allows us to uncover a multiplicity of factors that commingle to shape states’ preferences and actions toward international law. Combining insights provided by analysis of large-N data with qualitative methodology allows …

Esg And Private Ordering, Michal Barzuza, Quinn Curtis, David H. Webber

The University of Chicago Business Law Review

Easterbrook and Fischel’s seminal book The Economic Structure of Corporate Law has taught us the crucial role of markets in shaping the corporate contract. With the rise of ESG, the nature of that contract is changing, but the importance of markets (and of their limitations) is not. In this piece, building on our previous work that traces the remarkable growth of ESG to a shift in demand, primarily, but not solely, among millennials, we discuss the role of markets in shaping ESG, as well as their limitations. The rise of social values, and the increasing willingness of millennials to act …

Federal Rules Of Platform Procedure, Rory Van Loo

University of Chicago Law Review

Tech platforms serve as private courthouses for disputes about speech, lodging, commerce, elections, and reputation. After receiving allegations of defamatory content in top search results, Google must decide between protecting one person’s public image and another's profits or speech. Amazon adjudicates disputes between consumers and third-party merchants about defective or counterfeit items. For many small businesses, layoffs and bankruptcy hang in the balance. This Article begins to uncover the processes that these platforms use to resolve disputes and proposes reforms. Other important businesses that intermediate, such as credit card companies ruling on a disputed charge between a merchant and consumer, …

Vindicating The Right To Be Heard: Due Process Safeguards Against Government Interference In The Clemency Process, Jay Clayton

University of Chicago Law Review

No abstract provided.

Removing Interpretative Barnacles: Counterclaims And Civil Forfeiture, Nicholas Hallock

University of Chicago Law Review

Through civil forfeiture, the federal government can take ownership of property merely by proving it “guilty” by a preponderance of the evidence. The government need not formally accuse its owner of any crime. Yet the procedural mechanisms available to a property owner who wishes to contest a forfeiture are limited, complex, and strictly enforced. A creature of admiralty law, civil forfeiture draws on supplemental provisions of the Federal Rules of Civil Procedure with which many lawyers and federal judges are unfamiliar.

This Comment explores an active circuit split and identifies an undertheorized way for property owners to vindicate their rights: …

Education’S Deep Roots: Historical Evidence For The Right To A Basic Minimum Education, Caroline A. Veniero

University of Chicago Law Review

For decades, the U.S. Supreme Court has left open the question whether the U.S. Constitution protects a right to some amount of education. While such a right is not specifically enumerated in the Constitution, advocates have long argued for the existence of an implicit, fundamental right to a basic minimum education under the Due Process Clause of the Fourteenth Amendment. Recognition of such a right requires grappling with the Supreme Court’s substantive due process jurisprudence. To be a fundamental right, one requirement is that a proposed right have deep roots in U.S. history and tradition. This Comment examines whether the …

Foreword

Chicago Journal of International Law

No abstract provided.

The Social Science Approach To International Law, Daniel Abebe, Adam Chilton, Tom Ginsburg

Chicago Journal of International Law

For over a hundred years, scholars have argued that international law should be studied using a “scientific” approach. Throughout the twentieth century, however, the most prominent methods used to study international law primarily consisted of different theoretical and analytical claims about how international law should be developed, interpreted, and critiqued. It is only in the first two decades of the twenty-first century that the conventional social science approach to research—identifying a specific question, developing hypotheses, using a research design to test those hypotheses based on some form of qualitative or quantitative data, and presenting conclusions, all while acknowledging the assumptions …

Reflections On The Value Of Socio-Legal Approaches To International Economic Law In Africa, Olabisi D. Akinkugbe

Chicago Journal of International Law

In their Lead Essay for the 2021 Chicago Journal of International Law Symposium, Daniel Abebe, Adam Chilton, and Tom Ginsburg offer an account of “the rise of the social science approach to international law, explain the basics of the method, and advocate for its continued adoption.” This Essay critically assesses how and why one might use socio-legally inspired methods (analytical, empirical, and normative) for the study of international economic law (IEL) in Africa. It illustrates the empirical method’s importance in understanding one of the most challenging aspects of the study of IEL in Africa: capturing the data and dynamism of …

Whole Issue

Chicago Journal of International Law

No abstract provided.

Studying Race In International Law Scholarship Using A Social Science Approach, James Thuo Gathii

Chicago Journal of International Law

This Essay takes up Abebe, Chilton, and Ginsburg’s invitation to use a social science approach to establish or ascertain some facts about international law scholarship in the United States. The specific research question that this Essay seeks to answer is to what extent scholarship has addressed international law’s historical and continuing complicity in producing racial inequality and hierarchy, including slavery, as well as the subjugation and domination of the peoples of the First Nations. To answer this question, this Essay uses the content published in the American Journal of International Law (AJIL) from when it was first published in 1907 …