Law Commons^™

Pattern Recognition In Tyus V Urban Search Management, Lee Anne Fennell

University of Chicago Law Review

Making judgments requires recognizing patterns—paying attention and picking out recurrent features in a noisy environment. Judge Diane Wood’s opinion in Tyus v Urban Search Management¹ is a masterwork in pattern recognition at several levels. It speaks to the need for legal doctrines capable of reaching subtle and cumulative acts of discrimination that continue to limit opportunities and stand in the way of the “truly integrated and balanced living patterns”² that were part of the original vision of the federal Fair Housing Act³ (FHA).

Tyus involved advertising campaigns used to market The New York, an upscale Chicago apartment …

Swanson V Citibank And The 1l Canon, William H.J. Hubbard

University of Chicago Law Review

Part of what’s special about teaching 1Ls is that 1L year initiates law students into the community of lawyers. This community not only shares a common set of professional commitments and qualifications. Thanks to their 1L courses, lawyers share familiarity with a pantheon of famous cases that have been taught for decades. These canonical cases connect the law school experiences of generations of lawyers.

Civil procedure has its share of these classics. Virtually every first-year law student learns the Strawbridge rule for federal diversity jurisdiction.¹ International Shoe is part of every 1L’s vocabulary.² And no law student who …

Death As Divorce For The Abandoned Spouse: Davis V Combes And The Cautious And Gender-Sensitive Judiciary, Saul Levmore

University of Chicago Law Review

No abstract provided.

Substitutes, Complements, And Irritants: Garza V Lappin And The Role Of International Law In Us Courts, Tom Ginsburg

University of Chicago Law Review

What is the relationship between US law and international law? This is the core question of the academic field of foreign relations law, but it is also a life-or-death issue for some people. In recent years, a series of cases involving death-row defendants has made its way to the federal courts, presenting a novel set of claims. This Essay discusses one such case, Garza v Lappin,¹ decided in 2001. The opinion by Judge Diane Wood is characteristically scrupulous, but is not among her best known, and was hardly controversial at the time.² Still, it is a useful case …

The Double Movement Of National Origin Discrimination, Aziz Huq

University of Chicago Law Review

Jose Figueroa’s case presented “little out of the ordinary” for the federal courts¹. His was a “multimillion-dollar” drug operation run out of Wisconsin that fell apart when a dealer and a partner flipped and gave testimony for the government.² Only in the closing moments of sentencing ³ did Figueroa’s case take an unusual turn, one that would in due course elicit an unusual opinion from Judge Diane Wood of the Seventh Circuit Court of Appeals. In the process of assigning Figueroa to the “low end of Figueroa’s advisory guidelines range,” ⁴ District Court Judge Rudolph T. Randa …

Judge Wood Meets International Tax, Julie Roin

University of Chicago Law Review

There is always a danger in having courts of general jurisdiction rule on issues involving the application of technical pieces of specialized legislation. Judges in these courts generally lack the background necessary to understand the interactions between the particular issue(s) under scrutiny and the larger legislative or regulatory picture. And unfortunately, the parties, usually operating under strict space constraints in their briefs, often fail to educate the judges about that larger picture. That is the situation Judge Diane Wood found herself in twenty-two years ago when it fell to her to write the opinion in Amoco Corp v Commissioner of …

Data Security’S Unjust Enrichment Theory, Lior Jacob Strahilevitz

University of Chicago Law Review

Remijas v Neiman Marcus Group, LLC,¹ is Judge Diane Wood’s most famous data security opinion, and for good reason. The opinion is elegantly written and refreshingly pragmatic with respect to an issue that has prompted other courts to fall into the trap of empty formalism. Yet the opinion is not perfect, and this Essay celebrating Wood’s silver anniversary on the bench will argue that it missed an opportunity to solve a vexing and important problem that arises when data breach suits are brought in federal court.

Harassment And Capabilities: Discrimination And Liability In Wetzel V Glen St. Andrew Living Community, Llc, Martha Craven Nussbaum

University of Chicago Law Review

No abstract provided.

Migratory Birds And The Administrative State, David A. Strauss

University of Chicago Law Review

Solid Waste Agency of Northern Cook County v United States Army Corps of Engineers,¹ a case in which Judge Diane Wood wrote the opinion for a unanimous Seventh Circuit panel, addressed important questions about both the Commerce Clause and the Clean Water Act² (CWA). The Supreme Court reversed the Seventh Circuit’s decision by a vote of five to four. To read the Supreme Court’s majority opinion side by side with Judge Wood’s is to see a contrast that does not, to put it mildly, make the Supreme Court look good. Judge Wood’s opinion is lucid, careful, and measured; …

Necessary “Procedures”: Making Sense Of The Medicare Act’S Notice-And-Comment Requirement, Josh Armstrong

University of Chicago Law Review

The Supreme Court’s recent decision in Azar v Allina Health Services, Inc opened and then declined to resolve a new question of administrative law. In that case, the Court affirmed the DC Circuit’s holding that the Medicare Act, unlike the Administrative Procedure Act (APA), did not exempt so-called “interpretive rules” from notice and comment. Crucially, however, the Supreme Court declined to give any further guidance as to what rules the Medicare Act’s notice-and-comment provision does cover. This lack of guidance added further confusion to an already-murky area of law: the DC Circuit’s current interpretation of the Medicare statute, which is …

A (Very) Unlikely Hero: How United States V Armstrong Can Save Retaliatory Arrest Claims After Nieves V Bartlett, Brenna Darling

University of Chicago Law Review

In Nieves v Bartlett, the Supreme Court holds that plaintiffs alleging retaliatory arrests are generally required to prove a lack of probable cause to arrest; there is one small exception for plaintiffs who can demonstrate by “objective evidence” that similarly situated individuals would not have been arrested but for the protected speech at issue. Unfortunately, neither the general rule nor the exception in this re-cent ruling will help many victims of retaliation. The expansion of the criminal code to cover petty indiscretions means police officers will not have any difficulty identifying probable cause to arrest for something. As to the …

“What Shall I Give My Children?”: Installment Land Contracts, Homeownership, And The Unexamined Costs Of The American Dream, Caelin Moriarity Miltko

University of Chicago Law Review

Gwendolyn Brooks’s “The Children of the Poor" is a meditation on parenthood in times of hardship, with a particular focus on the impact of poverty and social injustice. The title of this Comment comes from the second sonnet of Brooks’s tripartite poem: “What shall I give my children? who are poor,/ Who are adjudged the leastwise of the land.” In the poem, Brooks asks an immediate question: How will she respond to her children’s requests right now for material goods and acceptance that she cannot give them? Unable to fulfill those needs, the mother in the poem instructs her children …

The Myth Of Creditor Sabotage, Vincent S.J. Buccola, Jameson K. Mah, Tai Zhang

University of Chicago Law Review

Since credit derivatives began to substantially influence financial markets a decade ago, rumors have circulated about so-called “net-short” creditors who seek to damage promising, albeit financially distressed, companies. A recent episode pitting the hedge fund Aurelius against broadband provider Windstream is widely supposed to be a case in point and has at once fueled calls for law reform and yielded an effigy of ostensible Wall Street predation.

This Article argues that creditor sabotage is a myth. Net-short strategies work, if at all, by in effect burning money. When an activist creditor shows its cards, as all activists must eventually do, …

Exporting American Discovery, Yanbai Andrea Wang

University of Chicago Law Review

This Article presents the first comprehensive study of an intriguing and increasingly pervasive practice that is transforming civil litigation worldwide: US judges now routinely compel discovery in this country and make it available for disputes and parties not before US courts. In the past decade and a half, federal courts have received and granted thousands of such discovery requests for use in foreign civil proceedings governed by different procedural rules. I call this global role played by US courts the “export” of American discovery.

This Article compiles and analyzes a data set of over three thousand foreign discovery requests filed …

Frankfurter, Abstention Doctrine, And The Development Of Modern Federalism: A History And Three Futures, Lael Weinberger

University of Chicago Law Review

In its first century and a half, the Supreme Court never used the term “federalism” in its opinions. The Court had talked about federal-state relations before, but the concept had gone unlabeled. That changed in 1939. Something new was hap-pening, thanks in large part to Justice Felix Frankfurter. Just a month after joining the Court, Frankfurter authored the Court’s first opinion using the term “federalism.” Frankfurter introduced federalism as a key concept for analyzing the relationship between state courts and federal courts. Before long, Frankfurter would rely on federalism to fashion an original and enduring doctrine of judicial federalism: abstention, …

Litigating The Line Drawers: Why Courts Should Apply Anderson-Burdick To Redistricting Commissions, Andrew C. Maxfield

University of Chicago Law Review

In the wake of the Supreme Court’s recent decision in Rucho v Common Cause, ruling partisan gerrymandering claims nonjusticiable, redistricting commissions have never been more important. These commissions remain one of the few methods to remove the redistricting process from the hands of self-interested state legislatures. To accomplish this goal, many commissions limit the number of Republicans and Democrats who can serve on the commission and bar certain political actors— such as legislators and party leaders—from serving as commissioners. Although likely necessary to ensure redistricting commissions’ independence, these provisions burden the First Amendment associational rights of the excluded individuals and …

Simplifying Patent Venue, Micah Quigley

University of Chicago Law Review

In 2017, the Supreme Court overruled the Federal Circuit’s then-longstanding interpretation of 28 USC § 1400(b)—the statute that governs venue in patent infringement lawsuits. This ruling significantly narrowed patent venue. It also brought § 1400(b)’s neglected “regular and established place of business” test back into the light of day. Under this revived test, venue is proper if a defendant has a regular and established place of business in the judicial district where suit is brought. Despite initial guidance from the Federal Circuit, the resurrected test caused confusion and disagreement at the district court level.

One disagreement concerned whether § 1400(b) …

This Land Is Not Our Land, K-Sue Park

University of Chicago Law Review

“The story of our relationship to the earth is written more truthfully on the land than on the page. It lasts there. The land remembers what we said and what we did.” –Robin Wall Kimmerer, Braiding Sweetgrass 341 (Milk-weed 2013)

“The land and the wealth that began in it still carry the shape of history. . . . The land remembers. But what do we remember of it? Every political contest over claims on the land is, in part, a contest over what will be remembered and what will be forgotten.” –Jedediah Purdy, This Land Is Our Land: The Struggle …

Exhaustion Of Local Remedies And The Fsia Takings Exception: The Case For Deferring To The Executive’S Recommendation, Ikenna Ugboaja

University of Chicago Law Review

The Takings Exception to the Foreign Sovereign Immunities Act (FSIA) abrogates the defense of sovereign immunity when a foreign government takes property in violation of international law. But the exception does not specify whether plaintiffs must first exhaust local remedies in the relevant foreign country before filing suit in the United States. In the absence of clear statutory guidance, the circuit courts have reached divergent conclusions: the Seventh Circuit has held that the exhaustion rule is required under customary international law, the Ninth Circuit has suggested that courts could impose it at their discretion for reasons of comity, and the …

California’S Proposition 47 And Effectuating State Laws In Federal Sentencing, Brenna Ledvora

University of Chicago Law Review

Proposition 47 is a California voter initiative that reduced possessory drug offenses and minor thefts from felonies to misdemeanors. The law allows individuals to retroactively reclassify their convictions and mandates that these convictions shall be considered misdemeanors “for all purposes.” Under California law, reclassified convictions cannot be predicate felonies for future state sentencing enhancements. However, federal courts have held that reclassified convictions still constitute prior convictions for federal sentencing enhancements. Thus, these convictions still trigger felony-based enhancements. This Comment argues that this result is not mandated by Supreme Court precedent and that it conflicts with California’s intent to ameliorate the …

The Adjudicative Model Of Precedent, Charles W. Tyler

University of Chicago Law Review

In most courts, a statement in an opinion is a holding only if it was necessary for the outcome of the case. Several state courts and one federal court of appeals, however, have a much broader definition of a holding, which this Article calls the “adjudicative model.” The adjudicative model defines a holding as any ruling expressly resolving an issue that was part of the case.

This Article offers the first empirical and normative assessment of the adjudicative model. It describes an empirical case study of the Ninth Circuit and finds that, after adopting the adjudicative model, that court was …

The Scope Of Tribal Immunity In Real Property Disputes, Sean Frazzette

University of Chicago Law Review

Native American tribes are sovereign nations with some degree of sovereign immunity. The exact contours of that immunity are often in flux. While the Supreme Court has established the confines of tribal immunity in cases involving torts, taxation, and contracts, it has avoided determining the doctrine’s application to cases involving real property. Recently, in Upper Skagit Indian Tribe v Lundgren, the Court dismissed the common notion that prior precedent mandates an in rem versus in personam distinction but refused to answer whether tribes can claim sovereign immunity in in rem actions against tribal land. By analyzing the history of tribal …

Statutes And Spokeo: The Case Of The Fdcpa, Jason R. Smith

University of Chicago Law Review

The Supreme Court’s decision in Spokeo, Incv Robins clarified the “concreteness” element of the injury-in-fact requirement for standing. The Court explained that while some statutory violations are concrete injuries, others are merely procedural and insufficient for standing without additional allegations of concrete harms. Federal courts have divided on the decision’s application to many statutory causes of action, including the mandatory disclosure requirements of the Fair Debt Collection Practices Act (FDCPA). While some courts view FDCPA mandatory disclosure violations as concrete injuries if they threaten the plaintiff’s concrete interests, others view the violations as merely procedural and never sufficient for standing. …

Political Questions And The Ultra Vires Conundrum, Richard H. Fallon Jr.

University of Chicago Law Review

This Article advances a novel theory of the political question doctrine by locating its foundations in a conundrum about ultra vires action, exemplified by the ancient question: Who will guard the guardians? The political question doctrine marks some questions as ultra vires the judicial power, or beyond the jurisdiction of courts to resolve. Correspondingly, designation of a question as political typically identifies it as lying within the jurisdiction of a nonjudicial institution to settle. Even after denominating a question as political, however, courts retain a responsibility to check actions by other institutions that overreach those institutions’ authority and thus are …

An Institution “At Arm’S Length”: Reconsidering Supervisory Power Over The Federal Grand Jury, Rebecca Gonzalez-Rivas

University of Chicago Law Review

Grand jury proceedings are shrouded in secrecy. No judge presides over them, no reporter annotates them, and when they have concluded, no juror may speak about them. While secrecy serves many important functions for the grand jury, its veil may be lifted under certain circumstances. Grand jury records may be released if they fall under a disclosure exception laid out in Federal Rule of Criminal Procedure 6(e). While some courts limit release to the exceptions laid out in the Rule, others look to an alternative source of authority.

Several courts of appeals have held that district court judges may exercise …

Penalty Default Rules For Digital Searches: Why Courts Should Spur Legislative Action Via Second-Order Regulation, Meghan Holloway

University of Chicago Law Review

We live in a data-rich age. But Fourth Amendment doctrines have failed to adapt to our current reality. Legal principles that evolved to cabin the scope of physical searches seldom constrain searches of digital devices. As a result, a warrant to search a digital device gives police officers unfettered access to all of our information. While many scholars have argued that courts should address this problem by adopting rules that directly limit the scope of digital searches, this Comment argues that some courts have already eschewed this approach in favor of rules that encourage legislatures to regulate digital searches. Legislative …

Available, Granted, Revoked: A New Framework For Assessing Unauthorized Access Under The Computer Fraud And Abuse Act, Samuel Kane

University of Chicago Law Review

The Computer Fraud and Abuse Act (CFAA) criminalizes a broad range of conduct related to the compromise of computer systems. Specifically, the CFAA prohibits unauthorized access to computer systems, defining such access as that which occurs “without authorization” or in a manner that “exceeds authorized access.” Courts interpreting the meaning of unauthorized access under the CFAA have diverged into two camps. On one side, proponents of the broad approach argue that the CFAA unauthorized access inquiry should focus on access purpose, assessing whether a given access was conducted for a purpose authorized by the computer owner. On the other side, …

A Mission Statement For Mutual Funds In Shareholder Litigation, Sean J. Griffith, Dorothy S. Lund

University of Chicago Law Review

This Article analyzes the conduct of mutual funds in shareholder litigation. We begin by reviewing the basic forms of shareholder litigation and the benefits such claims might offer mutual fund investors. We then investigate, through an in-depth docket review, whether and how the ten largest mutual funds participate in share-holder litigation. We find that although shareholder suits offer potential benefits, the largest mutual funds have essentially forfeited their use of litigation. This finding is particularly striking given that index funds and other long-term oriented mutual funds generally cannot sell their shares when they are dissatisfied with company performance, leaving them …

The First Amendment’S Real Lochner Problem, Genevieve Lakier

University of Chicago Law Review

One of the most common criticisms of contemporary free speech law is that it is too Lochnerian. What critics usually mean by this is that First Amendment doctrine, by extending significant constitutional protection to advertising and other kinds of commercially oriented speech, makes the same mistake as the Supreme Court made in Lochnerv New Yorkand other late nineteenth-and early twentieth-century Due Process Clause cases: namely, it grants judges too much power to second-guess the economic policy decisions of democratically elected legislatures.

This Article challenges that argument—not to reject the idea that contemporary free speech law resurrects Lochner, but instead to …

Does The Tax Code Believe Women?: Reexamining 26 Usc §104(A)(2) In The #Metoo Era, Simon De Carvalho

University of Chicago Law Review

Since 1918, the tax code has included26 USC §104(a)(2),an exclusion from gross in come for civil lawsuit damages for “personal injuries or sickness.” In 1996, by adding one word—“physical”—to the provision (twice), Congress narrowed the exclusion’s scope dramatically. Now, damages compensating for a broken arm (a “personal physical injury”) are tax-free, but those arising out of claims for, say, sexual harassment or race discrimination are fully taxable. Such injuries, the statute says, are insufficiently “physical” to merit exclusion from income.

Using the recent #MeToo movement as a jumping-off point and borrowing the language and methodologies of feminist legal theory, this …