Law Commons^™

The (Mis)Uses Of The S&P 500, Adriana Z. Robertson

The University of Chicago Business Law Review

The S&P 500 is widely used to (i) direct capital through “passive” investing, (ii) benchmark investment portfolios, and (iii) evaluate firm performance. The securities regulatory regime’s approach to each of these uses is fundamentally flawed. I show that the index is neither neutral nor constant: it represents substantial amounts of discretionary decision-making and is simply one particular large-cap portfolio. I then argue that an “S&P 500 fund” is not meaningfully passive, the mutual fund prospectus benchmark requirement is flawed, and the requirement that index constituents compare their performance to that of the index is nonsensical. I propose regulatory changes to …

Banking On The Edge, Graham S. Steele‏‏‎‎

The University of Chicago Business Law Review

What’s old is new again. The risks of international banking have returned to prominence in the wake of the Russian invasion of Ukraine. Global banks are playing a central role in the economic sanctions regime imposed upon Russia in response to its acts of military aggression. Foreign banks have retrenched from serving the Russian economy. International markets for debt, equity, and commodities are experiencing significant disruptions. The solvency measures and quarterly earnings of global banks have been impacted. These risks are new versions of an old story. International banking has been a fraught endeavor dating back more than a century. …

Material Regulation Of Out-Of-State Production Processes As Impermissible Extraterritorial Law, Rebecca Zhu

The University of Chicago Business Law Review

A circuit split exists on whether the Supreme Court limited the Dormant Commerce Clause’s extraterritoriality doctrine to price affirmation statutes in Pharmaceutical Research & Manufacturers of America v. Walsh. This Comment argues that the Supreme Court has never drawn this limiting principle—in Walsh or otherwise—such that the Ninth Circuit incorrectly characterized Walsh in National Pork Producers Council v. Ross, and it should have held that the district court’s dependence on this reading constituted clear error in North American Meat Institute v. Becerra. Through synthesis of canonical and recent case law, this Comment proposes a new test for determining impermissible extraterritorial …

Antitrust Reform In The Digital Era: A Skeptical Perspective, Robert W. Crandall, Thomas W. Hazlett

The University of Chicago Business Law Review

The rise of large digital platforms, accompanied by claims of increasing industrial concentration, has prompted calls for antitrust policy reform. Yet, the observed market trends are consistent with improvements in welfare, as economies of scale often decentralize effective choices and disintermediate previously dominant structures, unleashing entrepreneurship. Evidence of deleterious impacts from the rise of the leading platforms—via mergers, predation, vertical foreclosure, and tying practices— is scant. The difficulty in amassing such evidence is implied in the argument that antitrust enforcement should no longer be focused on estimating consumer welfare impacts using traditional price theory. Recommendations for the creation of an …

Proceduralism: Delaware’S Legacy, Dalia T. Mitchell

The University of Chicago Business Law Review

“for law students or others who think of law as just a kind of a blunt instrument in which there are judgments and damages at the end of it, the fact is that the law grows through a sort of a conversation in the opinions . . .”¹

This article examines the Delaware courts’ 1980s shift from managerialism to a theory I label proceduralism. I argue that managerialism, which justified corporate law’s deference to directors in the preceding fifty years, was corporate law’s response to social, political, and cultural concerns outside corporations. At the turn of the twentieth century, …

The Chinese Antitrust Paradox, Wentong Zheng

The University of Chicago Business Law Review

Antitrust law faces a fundamental paradox between protecting competition and protecting competitors. This paradox is more structurally durable in China than in Western societies thanks to the oversized role of the Chinese state in its economy. This Article examines the changing market conditions in China following the adoption of China’s Antimonopoly Law (AML), and how these changes have led to paradoxical developments in Chinese antitrust. In a number of areas relating to enforcement authorities, transparency, courts, State-Owned Enterprises, cartels, internet platforms, and foreign companies, the tensions between protecting competition and protecting competitors have persisted or even deepened in the post-AML …

How To Fix Doj Privilege Teams, Anna Dincher

The University of Chicago Business Law Review

The federal government frequently executes searches and seizures in the course of criminal investigations. Many of the premises searched contain materials protected by privileges, placing them outside the reach of the Department of Justice. However, again and again those materials are swept up, potentially landing in the hands of government attorneys who are not permitted to review them—placing defendants’ Sixth Amendment right to effective assistance of counsel at risk of being violated. To rectify this risk, the DOJ employs “privilege teams” to filter through seized materials, removing those that are protected by privilege, before handing off the remaining materials to …

The Commission Goes To Walmart: Changing Patterns Of Ftc Enforcement, Jed Greenberg

The University of Chicago Business Law Review

The FTC Act allows the FTC to recover monetary relief only in certain circumstances. Under Sections 5 and 19, the Commission can recover monetary relief in federal court by showing that a party violated a final cease and desist order issued through administrative processes. Until recently, the FTC extensively used Section 13 of the Act, which courts had interpreted to provide some pathways to monetary relief. But the Supreme Court recently ruled in AMG that Section 13 only permits injunctive, rather than monetary, relief. After the case had been decided, many, including the FTC chair, predicted that this would erode …

Workers Of The World, Differentiate: Expanding Protections For Workers In The Age Of Labor Antitrust, Sarah Hammond Roberts

The University of Chicago Business Law Review

Antitrust has traditionally served consumers—how can the law regulate firms in a manner that prevents monopolization and preserves competition among sellers of goods? A recent turn in scholarship and shifting application of antitrust law from a regulatory perspective suggests the possibility for a broader expansion of antitrust protections into the labor market. Rather than considering monopoly effects in a market (where a market is dominated by a single seller), this line of work suggests a turn to focus on monopsony effects (where a market—such as a labor market—is dominated by a single buyer), and a particular focus on the risk …

A Disclosure Gap In The Market For Order, Joshua Nathanson

The University of Chicago Business Law Review

Wholesalers in U.S. equity markets are once again a focus of the SEC and scholarly debate. In this Comment, building on the empirical work of Schwarz, et. al. (2022), I present a model of the broker-wholesaler relationship based on the duty of best execution under FINRA Rule 5310 and the antifraud provisions of the federal securities laws as well as public disclosures by brokers and wholesalers. I suggest that the arrangement between a broker and a wholesaler on any given day is determined by the technology of the wholesaler, the likelihood of adverse selection, and the overall strategy of the …

Table Of Contents

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Masthead

Saint Louis University Journal of Health Law & Policy

No abstract provided.

The Battle For Medicare, Isaac D. Buck

Saint Louis University Journal of Health Law & Policy

America is aging. From 2019 to 2060, the total population of Americans over sixty-five will grow from fifty-four million to ninety-five million. Of all Americans, sixteen percent were aged sixty-five and older in 2019; nearly twenty-two percent are projected to be in this age group by 2040. This shift will put unprecedented pressure on the Medicare program. Its enrollment is already in the midst of an unparalleled boom, growing from forty-eight million in 2010 to eighty-six million by just 2035. As it grows in importance and size, the future of Medicare will be dominated by two competing pressures.

First, Medicare …

Gender Identity, Health, And The Law: An Overview Of Key Laws Impacting The Health Of Transgender And Gender Non-Conforming People, Naomi Seiler, Amanda Spott, Mekhi Washington, Paige Organick-Lee, Aaron Karacuschansky, Gregory Dwyer, Katie Horton, Alexis Osei

Saint Louis University Journal of Health Law & Policy

A growing population of transgender, nonbinary, and other gender non-conforming Americans experience the burden of multiple physical and mental health inequities. Largely rooted in discrimination and stigma, these disparities are compounded by barriers to respectful, appropriate healthcare.

A range of new policies, including state laws attempting to limit access to gender-affirming care for minors, may further compound health disparities. However, in some states and at the federal level, protective laws seek to prohibit discrimination and support access to care. Meanwhile, the constitutional status of gender identity under the Equal Protection Clause, and the legality of certain federal protections challenged on …

The Future Of Health Care Must Be Harm Reductionist—To Bring It About, We Need Moral Philosophy, Travis N. Rieder

Saint Louis University Journal of Health Law & Policy

In the United States, more than 100,000 people now die each year from drug overdose, but nearly all of these deaths are preventable. The purpose of this Article is to show that harm reduction interventions could go a long way towards saving these lives, but we don’t adopt many of these interventions, or fail to adopt them at the scale needed. Although it is often suggested by opponents of harm reduction that the interventions are unlikely to actually reduce harm, this Article argues that the empirical debate is largely over—decades of data demonstrate that harm reduction saves lives, promotes health, …

Inefficacy Of The Transparency In Coverage Final Rule In Promoting Cost-Effective Choices, Abigail Jaeger

Saint Louis University Journal of Health Law & Policy

The Transparency in Coverage Final Rule requires health plans to provide beneficiaries with financial information such as estimates of their personalized cost-sharing liabilities for items and services offered by different providers, the plan’s negotiated in-network rates with these providers, and the plan’s allowed out-of-network amounts. The Final Rule is designed to enhance consumers’ access to pricing information under their health plan so they have the ability to make well-informed and cost-effective decisions regarding their health care. However, empirical evidence suggests that the Final Rule will not effectuate its intended purpose. Many consumers lack the high level of health insurance comprehension …

Who Pays First?: Medicaid Third-Party Liability In Florida And Virginia’S Birth-Related Neurological Injury Compensation Programs, Alexandra M. Robbins

Saint Louis University Journal of Health Law & Policy

In response to an impending obstetrician shortage and medical malpractice crisis, the states of Florida and Virginia adopted no-fault birth-related neurological injury compensation programs in the 1980s. Both of these programs provide lifetime coverage for eligible children with serious birth-related neurological injuries; however, both programs treated themselves as the payer of last resort and required families to submit claims to Medicaid first based on an inaccurate interpretation of Medicaid third party-liability (“TPL”) laws and the program-enabling statutes. Both programs’ policies treating themselves as the payer of last resort not only violated Federal and State Medicaid laws, they caused harm to …

The Promise Of Collaborative Problem Solving In Enhancing Iam Effectiveness, Gina Barbieri

Perspectives

This essay analyses the effectiveness of collaborative problem-solving through mediation within accountability mechanisms, and considers ways in which western mediation principles should be enhanced to ensure fair outcomes given the power imbalance at play in development disputes. It also considers whether there is any scope to use problem solving principles to address questions of compliance, arguing for consideration of a hybrid approach to bolster tools available to IAMs, and so strengthen outcomes for communities.

Rethinking 'What Counts' As Accountability, Jonathan Fox

Perspectives

The current accountability impasse suggests it may be time to rethink core concepts, as well as the field’s underlying theories of change. The idea of accountability is malleable, ambiguous — and contested. This fuzziness poses challenges for both theory and practice – how do we know what strategies bolster accountability – or whether accountability produces its expected effects? This think piece recognizes the challenge of defining ‘what counts’ as accountability, unpacks a longstanding theory of change - that sunshine is the best disinfectant - and considers some information-based reform initiatives to identify missing links in the causal chain between transparency …

An Increased Normalization Of Iams Faces Ground Realities: Lack Of Transparency Impedes Access To Iams, Hamid Sharif

Perspectives

The creation of the Inspection Panel at the World Bank has led to the emergence of a norm that international financial institutions (IFIs) must hold themselves accountable to project-affected people through independent accountability mechanisms (IAMs). AIIB as a 21^st century bank reflects this normalization of IAMs. As a new MDB, AIIB’s charter mandates creation of an oversight body that includes the independent accountability mechanism or the Project-affected People’s mechanism (PPM). The PPM is aligned with many features of IFI’s IAMs while incorporating some innovations.

The central question asked by civil society and board members across IFIs is why there …

Walking The Line: The Politics Of Federalism And Environmental Change, Allan C. Hutchinson

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

This short paper looks at the Greenhouse Gas Pollution Pricing Act decision through a wider and more critical jurisprudential lens. In so doing, I demonstrate that the courts are no less political than legislatures in making decisions about who has the constitutional capacity to decide on how the challenges of climate change should be met. This is not so much a criticism of the Supreme Court of Canada, but an inevitable feature of constitutional law. After introducing the traditional and received explanation of the differences between political decision-making and judicial decision-making, I delve deeper into the Court’s opinions and show …

Judging Youth Time, Lisa M. Kelly

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Questions of time, culpability and rehabilitation permeate youth criminal law. This paper examines competing claims about time and justice in R. v. P. (C.), a recent decision of the Supreme Court of Canada upholding a leave requirement for youth appeals in circumstances where adults enjoy an appeal as of right. In light of the relatively low stakes of the case in terms of actual appellate practice, I question why the majority worked so hard, often at the expense of logic, to deny a formal equality claim that would have changed little in reality. I argue that an enduring, if unstated, …

The Significance Of R. V. Albashir In The Evolution Of Constitutional Remedies, Anne M. Turley, Zoe Oxaal

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

This paper examines the impact of the Supreme Court of Canada’s decision in R. v. Albashir on constitutional remedies under section 52(1) of the Constitution Act, 1982 and section 24(1) of the Canadian Charter of Rights and Freedoms. Albashir marks a step in the evolution of constitutional remedies by adding to the list of factors that can justify a court declaring a law invalid on a prospective-only basis. It recognizes a new exception to the presumption of retroactivity that applies when a court declares a law to be invalid. Where a court suspends its declaration of invalidity, once the suspension …

Insulating The Church: Ethiopian Orthodox Tewahedo Church Of Canada St. Mary Cathedral V. Aga And The Suppression Of Public Law In The Construction Of Religious Communities, Rabiat Akande, Faisal Bhabha

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

In Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, the Supreme Court of Canada undertook to grapple with the question of whether, when, and to what extent courts should get involved in the internal decisions of religious groups where there are allegations of procedural unfairness. This paper approaches Aga with an interest in the issue of state regulation of religion through law. The paper (1) reviews and assesses the Court’s judgment; (2) summarizes and analyzes the 12 intervener submissions, many of which were made by religious groups likely to be affected by the Court’s eventual judgment; and …

Performance Gaps And Opportunities For Growth: Addressing Remote Learning In Nevada, Anna Dreibelbis-Colquitt

BYU Education & Law Journal

Although education is not a fundamental right under the United States Constitution, it is nonetheless deemed as “perhaps the most important function of state and local governments.” The importance of education is reinforced through the Nevada Constitution. Specifically, Article 11 states that “[t]he legislature shall provide for a uniform system of common schools,” which is seen through the public school system. However, this ‘uniform’ system drastically changed two years ago with the surge in online learning.

Should Using An Ai Text Generator To Produce Academic Writing Be Plagiarism?, Brian L. Frye, Chat Gpt

Fordham Intellectual Property, Media and Entertainment Law Journal

Author's Foreword: I “wrote” this article while taking a bath with a bottle of champagne, by submitting the questions in bold to ChatGPT and copying its responses. I did not bother providing citations for ChatGPT’s claims, because they would obviously be superfluous.

Editor-in-Chief's Foreword: In 2023, the question is unavoidable: when it comes to scholarship, and in our case, legal scholarship, what do we do about artificial intelligence (AI) like ChatGPT? Do we need to do anything? In the Comment that follows, author Brian L. Frye and ChatGPT tried to provide an answer to these questions. Actually, ChatGPT did most …

Diving Into Correctional Education Program Research: A Systematic Review, Evelyn Roehn

Undergraduate Honors Theses

In the last three decades, there has been a growing interest in correctional education programming and its effects on the recidivism rates of offenders. Research has concluded that programs such as general education equivalency (GED), college credit, and trade/vocational skill-building work to reduce recidivism rates among offenders. Although current research is widely accepted among scholars, several questions remain. 1) How is recidivism defined, and how does the definition change the rates? 2) How are researchers addressing selection bias in their study, and what impact does this have on their findings? 3) How are inmates with learning disabilities and language barriers …

National Security Or National Origin? The Implications Of Florida's Alien Land Law Under The Federal Fair Housing Act, Emily Behzadi Cardenas

South Carolina Law Review

No abstract provided.

Robot Regulations, Henry H. Perritt Jr.

South Carolina Law Review

No abstract provided.

A Guide To South Carolina Zoning Law, F. Patrick Hubbard

South Carolina Law Review

No abstract provided.