Law Commons^™

Proximate Cause Explained: An Essay In Experimental Jurisprudence, Joshua Knobe, Scott J. Shapiro

University of Chicago Law Review

One of the oldest debates in American jurisprudence concerns the concept of “proximate cause.” According to so-called formalists, the legal concept of proximate cause is the same as the ordinary concept of “cause.” The legal question of whether a cause is proximate for the purposes of establishing tort liability, therefore, is an objective matter about the external world determinable by familiar descriptive inquiry. By contrast, legal realists think that issues of proximate causation are disguised normative questions about responsibility. As the realists William Prosser and W. Page Keeton put it, proximate cause is better called “responsible cause.”

Recent work in …

A Class Of One: Multiracial Individuals Under Equal Protection, Desirée D. Mitchell

University of Chicago Law Review

When it comes to recognizing multiracial individuals under the Equal Protection Clause, courts have fallen short. Only rarely do courts explicitly identify multiracial plaintiffs as just that—multiracial. Instead, the majority of courts revert to a “one-drop” rule in which they view plaintiffs as only one part of their self-identified racial composition. In doing so, the unique identities and experiences of multiracial individuals remain unaddressed. This Comment builds off previous scholarship by arguing that courts can and should do better at recognizing multiracial plaintiffs in equal protection cases by using a “class-of-one” framework. Under that doctrine, the Supreme Court has held …

The Discrete Charm Of Leveling Down, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Starting from Justice Ginsburg’s 2017 opinion in Sessions v. Morales-Santana, this essay explores the choice between ‘leveling up’ and ‘leveling down’ as a response to an unlawful difference in the legal treatment of two distinct groups. That problem can arise in the Equal Protection, Free Speech, Free Exercise, and Dormant Commerce Clause contexts. My analysis starts by defining the idea of a ‘leveling down’ disposition in the context of a constitutional equality claim. After exploring analogies in other areas of constitutional law, I turn to two alternative ways of analyzing and solving the leveling-down disposition—one through the lens of Article …

Revitalizing The Generation-Skipping Transfer Tax, Daniel J. Hemel, Robert Lord

Public Law and Legal Theory Working Papers

Congress first enacted the generation-skipping transfer (GST) tax in 1976 to protect the estate and gift tax base and to ensure that extraordinary fortunes would bear their fair share of the transfer tax burden. Nearly a half-century into the life of the GST tax, those goals remain unrealized. In recent decades, high-net-worth individuals have succeeded in shifting hundreds of billions of dollars to “dynasty trusts” that—under current law—are poised to escape federal wealth transfer taxation indefinitely. The rise of dynasty trusts reduces the revenue-raising potential of the estate and gift taxes and allows a privileged class to exert vast economic …

Framing Vaccine Mandates: Messenger And Message Effects, Christopher Buccafusco, Daniel Hemel

Public Law and Legal Theory Working Papers

In September 2021, President Biden announced that the Occupational Safety and Health Administration (OSHA) would require all employers with 100 or more employees to ensure that their workers are fully vaccinated against Covid-19 or show a negative test for the virus at least once a week. The policy has been widely characterized in the media as “President Biden’s vaccine mandate,” though it could be described with equal accuracy as “OSHA’s testing mandate” (since OSHA, rather than Biden, officially promulgated the policy, and once-a-week testing and vaccination are both valid compliance options). Some commentators have speculated that reframing the policy as …

Table Of Contents

Chicago Journal of International Law

Table of Contents (Winter 2021 / 21.2)

Human Rights Disclosure And Due Diligence Laws: The Role Of Regulatory Oversight In Ensuring Corporate Accountability, Rachel Chambers, Anil Yilmaz Vastardis

Chicago Journal of International Law

The proliferation of human rights disclosure and due diligence laws around the globe is a welcome development in the area of business and human rights. Corresponding improvement in conditions for workers and communities in global supply chains whose human rights are impacted by businesses has not materialized, however. In this Article, we focus on the oversight and enforcement features of human rights disclosure and due diligence laws as one of the missing links to achieving the accountability objectives envisaged by such legislation. Drawing on our analysis of key legislative developments, we observe and critique that the state has almost completely …

A Transnational Law Of The Sea, Josh Martin

Chicago Journal of International Law

It is widely accepted that we are presently struggling to govern the vast expanse of the ocean effectively. This Article finally gets to the real cause of much of the failures of the law of the sea: Westphalian sovereignty. In particular, it evidences that certain features of our obstinate model of public international law—such as sovereign exclusivity, equality, and territoriality—can be linked with a large majority of the governance “gaps” in the global ocean context. It thereby exonerates the falsely accused Grotius’s mare liberum doctrine and flag state regulation, which both still continue to receive an unmerited level of condemnation. …

The Legal Man In The Moon: Exploring Environmental Personhood For Celestial Bodies, William B. Altabef

Chicago Journal of International Law

The rise of the commercial space industry endangers the preservation of environments, such as the lunar surface and other celestial bodies, with the threat of contamination and resource exploitation. In the coming decades, flights to space will become commonplace—but at present, there is no way to hold outer space polluters accountable. The existing international legal regime is weak, with the United Nations’ space treaties offering limited enforcement mechanisms against offenders. The increasingly popular concept of environmental personhood offers a solution by rethinking the meaning of a juridical person within the text of the United Nations Outer Space, Space Liability, and …

Whole Issue (Winter 2021 / 21.2)

Chicago Journal of International Law

No abstract provided.

Shining A Light On Dark Patterns, Jamie Luguri, Lior Jacob Strahilevitz

Public Law and Legal Theory Working Papers

Dark patterns are user interfaces whose designers knowingly confuse users, make it difficult for users to express their actual preferences, or manipulate users into taking certain actions. They typically exploit cognitive biases and prompt online consumers to purchase goods and services that they do not want or to reveal personal information they would prefer not to disclose. This article provides the first public evidence of the power of dark patterns. It discusses the results of the authors’ two large-scale experiments in which representative samples of American consumers were exposed to dark patterns. In the first study, users exposed to mild …

Late-Stage Textualism, Ryan D. Doerfler

Public Law and Legal Theory Working Papers

No abstract provided.

Escape Room: Implicit Takings After Cedar Point Nursery, Lee Anne Fennell

Public Law and Legal Theory Working Papers

In Cedar Point Nursery v. Hassid, the Supreme Court ruled 6-3 that a California regulation that gave union organizers limited access to agricultural worksites amounted to a per se taking. The Court went on to opine that any governmental grant of physical access, no matter how time-limited or functionally constrained, similarly works a per se taking, unless one of the Court’s exceptions applies. This essay argues that Cedar Point is best understood as part of an implicit takings apparatus designed to selectively apply scrutiny to property-facing governmental acts in ways that broadly entrench status quo patterns of property wealth. The …

The Future Of Liberal Democracy In The International Legal Order, Tom Ginsburg

Public Law and Legal Theory Working Papers

Liberal democracy is a feature of national political order that can be promoted, defended, or undermined by international legal institutions. It is not a feature of international legal order itself, nor can it be, given the inherent pluralism about ways of organizing government that is constitutive of the international legal system. But neither is it the case that any particular liberal democracy is an island; liberalism is itself a transnational ideology, and both the expansion and recession of democracy around the world have been the result of interdependent decisions made by states and other transnational actors.

Of particular importance has …

Global Impunity: How Police Laws & Policies In The World's Wealthiest Countries Fail International Human Rights Standards, Claudia Flores, Brian Citro, Nino Guruli, Mariana Olaizola Rosenblat, Chelsea Kehrer, Hannah S. Abrahams

Public Law and Legal Theory Working Papers

No abstract provided.

Equalizing The Tax Treatment Of Stock Buybacks And Dividends, Daniel J. Hemel, Gregg D. Polsky

Public Law and Legal Theory Working Papers

This policy brief highlights flaws in the current federal tax treatment of stock buybacks and proposes to address those flaws by equalizing the tax treatment of buybacks and dividends. (We explore the proposal in greater detail in Hemel & Polsky, Taxing Buybacks, 38 Yale J. on Reg. 246 (2021), https://ssrn.com/abstract=3764112.) Stock buybacks allow foreign shareholders to avoid U.S. withholding tax on corporate cash distributions. Stock buybacks also allow U.S. taxable investors to reduce or eliminate shareholder-level tax on corporate cash distributions through a combination of deferral, loss harvesting, and stepped-up basis at death. Our proposal—based on an idea first suggested …

Property Law For The Ages, Michael C. Pollack, Lior Jacob Strahilevitz

Public Law and Legal Theory Working Papers

Within the next forty years, the number of Americans over age sixty-five is projected to nearly double. This seismic demographic shift will necessitate a reckoning in several areas of law and policy, but property law is especially unprepared. Built primarily for young and middle-aged white men, the common law of property has been critiqued for decades for the ways in which it oppresses or simply leaves behind people based on their race, sex, Native heritage, and more. This Article contributes a new focus on property law’s treatment of people based on their advanced age. Burdened by higher relocation costs, more …

Regulation And Redistribution With Lives In The Balance, Daniel J. Hemel

Public Law and Legal Theory Working Papers

A central question in law and economics is whether non-tax legal rules should be designed solely to maximize efficiency or whether they also should account for concerns about the distribution of income. This question takes on particular importance in the context of cost-benefit analysis. Federal agencies apply cost-benefit analysis when writing regulations that generate multibillion dollar impacts on the US economy and profound effects on millions of Americans’ lives. In the past, agency cost-benefit analyses typically have ignored the income-distributive consequences of those regulations. That may soon change: On his first day in office, President Biden instructed his Office of …

Artificial Intelligence And The Rule Of Law, Aziz Z. Huq

Public Law and Legal Theory Working Papers

This chapter examines an interaction between technological shocks and the “rule of law.” It does so by analyzing the implications of a class of loosely related computational technologies termed “machine learning” (ML) or, rather less precisely “artificial intelligence” (AI). These tools are presently employed in the pre-adjudicative phase of enforcing of the laws, for example facilitating the selection of targets for tax and regulatory investigations (Coglianese and Lehr, 2016). They are also increasingly used during adjudication, for example, to facilitate and guide determinations of individual violence risk during pretrial bail determinations (Huq, 2019). Predictions of a general displacement of human …

The Limits Of International Law Fifteen Years Later, Eric A. Posner, Jack L. Goldsmith

Public Law and Legal Theory Working Papers

The Limits of International Law received a great deal of criticism when it was published in 2005 but it has aged well. The skeptical, social-scientific methodology that it recommended has become a normal mode of international law scholarship. And the dominant idealistic view of international law that the book criticized is today in shambles, unable to explain the turmoil in international politics. This essay reflects on the book’s reception and corrects common misperceptions of its arguments.

The Public Trust In Data, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Personal data is no longer just personal. Social networks and pervasive environmental surveillance via cellphones and the ‘internet of things’ extract minute-by-minute details of our behavior and cognition. This information accumulates into a valuable asset. It then circulates among data brokers, targeted advertisers, political campaigns, and even foreign states as fuel for predictive interventions. Rich gains flow to firms well positioned to leverage these new information aggregates. The privacy losses, economic exploitation, structural inequalities, and democratic backsliding produced by personal data economies, however, fall upon society at large.

This Article proposes a novel regulatory intervention to mitigate the harms from …

Congress’S Commissioners: Former Hill Staffers At The S.E.C. And Other Independent Regulatory Commissions, Brian D. Feinstein, M. Todd Henderson

Public Law and Legal Theory Working Papers

The expression “personnel is policy” has become a truism in Washington. Yet our understanding of how the political branches use appointments to project influence into the administrative state is incomplete. This Article leverages data on almost one-thousand commissioners serving on eleven major independent regulatory commissions to chart, for the first time, Congress’s growing practice of placing former legislative-branch personnel onto these entities. We then theorize that this phenomenon is rooted in fundamental changes in American politics in recent decades— and, in turn, that it has deeply affected administrative law and separation-of-powers dynamics.

Over the past several decades, the number of …

The Law Of Democratic Disqualification, Tom Ginsburg, Aziz Z. Huq, David Landau

Public Law and Legal Theory Working Papers

Almost all constitutions, including our own, include one or several ways to disqualify specific individuals from political office. The U.S. Constitution, indeed, incorporates no less than four overlapping pathways toward disqualification. This power of retail disqualification stands at the heartland of the complex project of democratic rule. In practice, it works both an instrument for preserving democratic rule, and also a knife against it. This Article is the first to analyze systematically the complex positive and normative questions raised by disqualification. It offers both a positive account of the function that disqualification plays in constitutional ordering, and a normative account …

Property Law For The Ages, Lior Strahilevitz, Michael C. Pollack

Coase-Sandor Institute for Law & Economics Research Paper Series

Within the next forty years, the number of Americans over age sixty-five is projected to nearly double. This seismic demographic shift will necessitate a reckoning in several areas of law and policy, but property law is especially unprepared. Built primarily for young and middle-aged white men, the common law of property has been critiqued for decades for the ways in which it oppresses or simply leaves behind people based on their race, sex, Native heritage, and more. This Article contributes a new focus on property law’s treatment of people based on their advanced age. Burdened by higher relocation costs, more …

Open Access, Interoperability, And The Dtcc's Unexpected Path To Monopoly, Dan Awrey, Joshua Macey

Coase-Sandor Institute for Law & Economics Research Paper Series

In markets with significant scale economies and network effects, scholars and policymakers often tout open access and interoperability requirements as superior to both regulated monopoly and the break-up of dominant firms. In theory, by compelling firms to coordinate to develop common infrastructure, regulators can use these requirements to replicate scale and network economies without leaving markets vulnerable to monopoly power. Examples of successful coordination include the provision of electricity, intermodal transportation, and credit card networks.

This Article analyzes the history of U.S. securities clearinghouses and depositories in order to offer a significant qualification to this received wisdom. This history demonstrates …

Congress’S Commissioners: Former Hill Staffers At The S.E.C. And Other Independent Regulatory Commissions, Brian D. Feinstein, M. Todd Henderson

Coase-Sandor Institute for Law & Economics Research Paper Series

The expression “personnel is policy” has become a truism in Washington. Yet our understanding of how the political branches use appointments to project influence into the administrative state is incomplete. This Article leverages data on almost one-thousand commissioners serving on eleven major independent regulatory commissions to chart, for the first time, Congress’s growing practice of placing former legislative-branch personnel onto these entities. We then theorize that this phenomenon is rooted in fundamental changes in American politics in recent decades— and, in turn, that it has deeply affected administrative law and separation-of- powers dynamics.

Over the past several decades, the number …

Utility Mergers And The Modern (And Future) Power Grid, Joshua Macey

Coase-Sandor Institute for Law & Economics Research Paper Series

Scott Hempling’s Regulating Mergers and Acquisitions of U.S. Electric Utilities provides a comprehensive history of electric utility mergers in the United States since the 1980s. Hempling documents the dramatic consolidation the industry has seen in the past fifty years, and he convincingly argues that electric utility mergers present unique problems for regulators. This Review considers how utility acquisitions (a) allow holding companies to leverage the utilities’ creditworthiness to cross-subsidize non-utility affiliates, and (b) exacerbate informational asymmetries between regulators and utilities. It argues that utility mergers generate negative spillovers outside of the utility’s service territory that have potentially significant environmental consequences, …

Taxing Buybacks, Daniel J. Hemel, Gregg D. Polsky

Coase-Sandor Institute for Law & Economics Research Paper Series

A recent rise in the volume of corporate share repurchases has prompted calls for changes to the rules governing stock buybacks. These calls for reform are animated by concerns that buybacks enrich corporate executives at the expense of productive investment. This emerging antibuyback movement includes prominent politicians as well as academics and Republicans as well as Democrats. The primary focus of buyback critics has been on securities-law changes to deter repurchases, with only passing mention of potential tax-law solutions.

This Article critically examines the policy arguments against buybacks and arrives at a mixed verdict. On the one hand, claims that …

Regulation And Redistribution With Lives In The Balance, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

A central question in law and economics is whether non-tax legal rules should be designed solely to maximize efficiency or whether they also should account for concerns about the distribution of income. This question takes on particular importance in the context of cost-benefit analysis. Federal agencies apply cost-benefit analysis when writing regulations that generate multibillion dollar impacts on the US economy and profound effects on millions of Americans’ lives. In the past, agency cost-benefit analyses typically have ignored the income-distributive consequences of those regulations. That may soon change: On his first day in office, President Biden instructed his Office of …

Visibility And Indivisibility In Resource Arrangements, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

Projects like highways, bridges, pipelines, and wildlife corridors exhibit indivisibilities—we need the whole thing to have anything of value. Many environmental and social goals have a similar all-or-nothing character: staying above or below a certain critical threshold can make all the difference. This essay focuses on the role of visibility in addressing resource dilemmas that have this structure. I examine how two kinds of visibility can help avoid catastrophic consequences and advance desirable ones. The first involves recognizing when an indivisibility is present—that is, appreciating the vulnerability of resources to thresholds and cliff effects before it is too late. The …