Law Commons^™

Chevron Step Two's Domain, Kent H. Barnett, Christopher J. Walker

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An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference—a two-step inquiry under which courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Much of the debate centers on either Chevron’s domain (i.e., when Chevron should apply at all) or how courts ascertain statutory ambiguity at Chevron’s first step. Largely lost in this debate on constraining agency discretion is the role of Chevron’s second step: whether the agency’s resolution of a statutory ambiguity is reasonable. Drawing on the most comprehensive study of Chevron in the circuit courts, this Essay explores how …

Administrative Law's Political Dynamics, Kent H. Barnett, Christina L. Boyd, Christopher J. Walker

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Over thirty years ago, the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. commanded courts to uphold federal agency interpretations of ambiguous statutes as long as those interpretations are reasonable. This Chevron deference doctrine was based in part on the Court’s desire to temper administrative law’s political dynamics by vesting federal agencies, not courts, with primary authority to make policy judgments about ambiguous laws Congress charged the agencies to administer. Despite this express objective, scholars such as Frank Cross, Emerson Tiller, and Cass Sunstein have empirically documented how politics influence circuit court review of agency statutory …

Neil Gorsuch And The Ginsburg Rules, Lori A. Ringhand, Paul M. Collings Jr.

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Supreme Court nominees testifying before the Senate Judiciary Committee frequently invoke the so-called “Ginsburg Rule” to justify not answering questions posed to them. According to this “rule,” nominees during their testimony must avoid signaling their preferences about previously decided Supreme Court cases or constitutional issues. Using empirical data on every question asked and answered at every hearing from 1939–2017, we explore this “rule,” and its attribution to Justice Ruth Bader Ginsburg. We demonstrate three things. First, the Ginsburg Rule is poorly named, given that the practice of claiming a privilege to not respond to certain types of questions predates the …

The Future Of Lower-Income Students In Higher Education: Rethinking The Pell Program And Federal Tax Incentives, Camilla E. Watson

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As the costs of higher education have soared, the value of Pell grants has declined, making it more difficult for lower-income students to obtain an education without being hopelessly mired in debt. This article traces the evolution of the Pell program and discusses the diametrically opposed proposals of Presidents Obama and Trump to reform federal funding for higher education. The article proposes an alternative plan that would require a redirection of a portion of the funds from the Pell program and a reshuffling of the current tax incentives for higher education. The advantages of this proposal are that it would …

Corporate Governance Reform In Post-Crisis Financial Firms: Two Fundamental Tensions, Christopher Bruner

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The manner in which financial firms are governed directly impacts the stability and sustainability of both the financial sector and the "real" economy, as the financial crisis and associated regulatory reform efforts have tragically demonstrated. However, two fundamental tensions continue to complicate efforts to reform corporate governance in post-crisis financial firms. The first relates to reliance on increased equity capital as a buffer against shocks and a means of limiting leverage. The tension here arises from the fact that no corporate constituency desires risk more than equity does, and that risk preference only tends to be stronger in banks, and …

Dangerous Defendants, Sandra G. Mayson

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Bail reform is gaining momentum nationwide. Reformers aspire to untether pretrial detention from wealth (the ability to post money bail) and condition it instead on statistical risk, particularly the risk that a defendant will commit crime if he remains at liberty pending trial. The bail reform movement holds tremendous promise, but also forces the criminal justice system to confront a difficult question: What statistical risk that a person will commit future crime justifies short-term detention? What about lesser restraints, like GPS monitoring? Although the turn to actuarial risk assessment in the pretrial context has engendered both excitement and concern, the …

Free Speech And Generally Applicable Laws: A New Doctrinal Synthesis, Dan T. Coenen

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A longstanding mystery of constitutional law concerns how the Free Speech Clause interacts with “generally applicable” legal restrictions. This Article develops a new conceptual framework for working through this puzzle. It does so by extracting from prior Supreme Court rulings an approach that divides these restrictions into three separate categories, each of which (at least presumptively) brings into play a different level of judicial scrutiny. An example of the first and most closely scrutinized category of generally applicable laws—that is, laws that place a “direct in effect” burden on speech—is provided by breach-of-the-peace statutes. These laws are generally applicable because …

Publicly Funded Objectors, Elizabeth Chamblee Burch

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On paper, class actions run like clockwork. But practice suggests the need for tune-ups: sometimes judges still approve settlements rife with red flags, and professional objectors may be more concerned with shaking down class counsel than with improving class members’ outcomes. The lack of data on the number of opt-outs, objectors, and claims rates fuels debates on both sides, for little is known about how well or poorly class members actually fare. This reveals a ubiquitous problem — information barriers confront judges, objectors, and even reformers. Rule 23’s answer is to empower objectors. At best, objectors are a partial fix. …

Title Vii And The #Metoo Movement, Rebecca White

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The #MeToo movement has drawn unprecedented attention to sexual harassment in the workplace. But there is a disconnect between sexual harassment as popularly understood and sexual harassment as prohibited by Title VII. This Essay identifies those areas where the law and the public understanding of it most starkly diverge. These include the requirements of severity or pervasiveness, the issue of unwelcomeness, the availability of an affirmative defense for hostile work environment claims, and the time limits within which claims must be brought. Additionally, those making claims of sexual harassment fare poorly when they suffer retaliation for stepping forward. Internal complaints …

A Reformed Liberalism: Michael Mcconnell’S Contributions To Christian Jurisprudence, Nathan Chapman

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Michael McConnell is one of the most influential constitutional scholars of the past thirty years. He has written a great deal about religious liberty, but relatively little about how his own religious beliefs may relate to his constitutional jurisprudence. This essay is the first to explore the connection between McConnell’s religious views and scholarship. The essay engages with a short piece by McConnell that sketches the outlines of a “reformed liberalism.” McConnell argued that reformed Christian theology is compatible with the classical liberalism that animated the framing of the U.S. Constitution. Though he did not develop this account into a …

Making Existing Homes Greener, James Smith

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The environmental movement that has taken hold in the last half-century includes the objective of reducing the adverse impacts buildings have on the natural environment. In the United States, this has manifested itself in changes in the design and construction of buildings. Modern buildings-those built recently-perform better with respect to some, but not all, environmental criteria than older buildings. The most prominent characteristic is the efficiency of energy use for heating, cooling, and appliances.

Even when the combination of building codes and voluntary standards work effectively to promote the construction of new green homes, they cannot provide a solution with …

Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck

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The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed.” The …

A Transformative Use Taxonomy: Making Sense Of The Transformative Use Standard, David E. Shipley

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The transformative use standard, which is an important aspect of copyright law’s fair use doctrine, has been confusing and uncertain since 1994 when it was first introduced by the United States Supreme Court in Campbell v. Acuff-Rose Music. To try to make some sense of this standard, this article extends the work of several scholars who have argued that the massive amount of fair use case law generally divides itself into categories, patterns or policy clusters which have their own internal coherence. This article contends that these observations apply as well to transformative use decisions more particularly, which similarly fit …

Favoring The Press, Sonja R. West

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In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to independently spend unlimited amounts of money in political campaigns. The Court rested its 5-4 decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”

To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction — the treatment of news media corporations. …

How Dreamland Colored My Summer Vacation And Thinking About The Opioid Epidemic, Elizabeth Leonard

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Book Review of Dreamland: The True Tale of America’s Opiate Epidemic by Sam Quinones,(2018).

Distributed Ledgers, Traceable Shares, And The Division Of Power In Corporate Law, Christopher M. Bruner

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Review of Traceable Shares and Corporate Law, 113 Nw. U. L. Rev. __ by George S. Geis (forthcoming 2018)

Center-Left Politics And Corporate Governance: What Is The 'Progressive' Agenda?, Christopher Bruner

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For as long as corporations have existed, debates have persisted among scholars, judges, and policymakers regarding how best to describe their form and function as a positive matter, and how best to organize relations among their various stakeholders as a normative matter. This is hardly surprising given the economic and political stakes involved with control over vast and growing "corporate" resources, and it has become commonplace to speak of various approaches to corporate law in decidedly political terms. In particular, on the fundamental normative issue of the aims to which corporate decision-making ought to be directed, shareholder-centric conceptions of the …

Medicalization Of Rural Poverty: Challenges For Access, Elizabeth Weeks

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This article was prepared for a live conference, on “The Medicalization of Poverty,” held at the University of Illinois College of Law, and a symposium to be published in the Journal of Law, Medicine & Ethics. My piece focuses on a constellation of challenges for health care delivery and access to care in rural areas. Discussions regarding health and poverty often seem to focus on the admittedly persistent and multilayered problems of the urban poor: unemployment, substandard and unaffordable housing, violent crime, nutrition and “food desserts,” recreation and safe outdoor spaces, and under-resourced public schools, to name a few. While …

Models Of Law, Christian Turner

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The more we examine what is behind our most difficult legal questions, the more puzzling it can seem that we continue both to disagree strongly and, yet, to cooperate. If law is a reasoned enterprise, how is it that we are neither torn apart nor homogenized by our long social practice of it? I resolve this puzzle, and arrive at a richer understanding of law, using the idea of modeling familiar from the natural sciences and mathematics. I show (a) that theorists can model legal systems as abstract systems of institutions, information flows, and institutional processing or reasoning and (b) …

Athens Access To Justice Initiative: Judicial Leadership + Bar Support + Local Resources = Powerful Synergy, Eleanor Lanier

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No abstract provided.

The Scale Of Misdemeanor Justice, Megan T. Stevenson, Sandra G. Mayson

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This Article seeks to provide the most comprehensive national-level empirical analysis of misdemeanor criminal justice that is currently feasible given the state of data collection in the United States. First, we estimate that there are 13.2 million misdemeanor cases filed in the United States each year. Second, contrary to conventional wisdom, this number is not rising. Both the number of misdemeanor arrests and cases filed have declined markedly in recent years. In fact, national arrest rates for almost every misdemeanor offense category have been declining for at least two decades, and the misdemeanor arrest rate was lower in 2014 than …

Access To Consumer Bankruptcy, Pamela Foohey

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This essay examines the state of access to justice in the context of consumer bankruptcy from two vantage points: (1) how people decide that their money problems are legal problems addressable by filing bankruptcy; and (2) the barriers people face in using the consumer bankruptcy system. To shed new light on how people decide to use bankruptcy to address their financial troubles, I analyze a sample of narratives accompanying consumers' complaints about financial products and services submitted to the Consumer Financial Protection Bureau. I also chronicle the evolution of research regarding consumer bankruptcy’s “local legal culture,” systemic racial bias, and …

Bringing Counsel In From The Cold: Reconciling Ethical Rules With The Quagmire Of Insurance Defense Practice, Joseph Regalia, V. Andrew Cass

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Our case study is an ethical dilemma faced by insurance defense attorneys daily. An attorney is hired by Insurance Company A to defend an insured who is in a lawsuit over a car accident. Insurance Company A is one of the attorney's best clients, from whom he receives a steady stream of cases. Our attorney's investigation reveals good news-another driver not yet a party to the lawsuit may have contributed to the accident. This revelation has the potential to shift the blame, and all or part of the financial responsibility, onto the shoulders of the new potential party and his …

Doing Right By Nevada: Adopting The Uniform Bar Exam, Daniel W. Hamilton

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No abstract provided.

Platform Law And The Brand Enterprise, Sonia K. Katyal, Leah Chan Grinvald

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The emergence of platforms has transformed the digital economy, reshaping and recasting online transactions within the service industry. This transformation, as many have argued, has created new and unimagined challenges for policymakers and regulators, as well as for traditional, offline companies. Most scholarship examining platforms discuss their impact on employment law or consumer protection. Yet trademark law, which is central to the success of the platform enterprise, has been mostly overlooked within these discussions. To address this gap, this article discusses the emergence of two central forms of platform entrepreneurship-the platform, or "macrobrand" and the platform service provider, or the …

Realizing Restorative Justice: Legal Rules And Standards For School Discipline Reform, Lydia Nussbaum

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Zero-tolerance school disciplinary policies stunt the future of school children across the United States. These policies, enshrined in state law, prescribe automatic and mandatory suspension, expulsion, and arrest for infractions ranging from minor to serious. Researchers find that zero-tolerance policies disproportionately affect low-income, minority children and correlate with poor academic achievement, high drop-out rates, disaffection and alienation, and greater contact with the criminal justice system, a phenomenon christened the "School-to-Prison Pipeline."

A promising replacement for this punitive disciplinary regime derives from restorative justice theory and, using a variety of different legal interventions, reform advocates and lawmakers have tried to institute …

Another Look At Lawyer Discretion To Assist Clients In Unlawful Conduct: A Response To Professor Tremblay, Samuel J. Levine

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Professor Paul Tremblay’s At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct, identifies and explores an apparent gap in the law governing the work of lawyers: the question of whether lawyers may assist clients in unlawful conduct that is not criminal or fraudulent. After introducing the issue through three illustrative scenarios, which he labels “lawbreaking stories,” Professor Tremblay engages in an extensive analysis of the applicable substantive law, relying primarily on ethics codes, which directly regulate the work of lawyers, with additional reference to other sources of law. Having reached the considered conclusion that the law does not …

Bicycle-Friendly Policies, Michael Lewyn

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A review of Copenhagenize by Mikael Colville-Andersen

Engineering Standards In Highway Design Litigation, Michael Lewyn

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Highway engineers sometimes believe that if they redesign streets to improve pedestrian safety (for example, by introducing traffic calming techniques) they might be successfully sued for negligent design by motorists. This chapter suggests that in such situations, governments are likely to be protected by discretionary function immunity. In addition, the chapter discusses a variety of technical issues.

The Behavior Of Jewish Judges: A Theoretical Study Of Religious Decision-Making, Mark Goldfeder, Michael J. Broyde

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No abstract provided.