The Law of Clarity and the Clarity of Law by Michael A. Francus

Professor Richard Re’s Clarity Doctrines sheds light on a neglected and growing legal phenomenon, legal rules that turn on clarity. He is correct to note that these clarity doctrines can serve important aims in law. He is likewise correct to note that clarity doctrines necessarily calibrate conflicting values, as when they promote the finality of … Continue reading The Law of Clarity and the Clarity of Law by Michael A. Francus

The Unreasonableness of the Citizenship Distinction: Section 412 of the USA PATRIOT Act and Lessons from Abroad by Nino Guruli

The Case of Adham Hassoun and Section 412 of the USA Patriot Act When it was enacted—a mere seven weeks after the attacks of September 11th—the USA PATRIOT Act provided the government with the authority to detain, possibly indefinitely, non-deportable aliens on US soil that the Attorney General had reason to believe were a threat to … Continue reading The Unreasonableness of the Citizenship Distinction: Section 412 of the USA PATRIOT Act and Lessons from Abroad by Nino Guruli

Taking a Second Look at (In)Justice by Michael Serota

Should we reevaluate the sentences of individuals we incarcerate for long periods of time for crimes committed in their youth after they’ve served a decade or more in prison? That’s the question at the heart of a contentious debate over second-look sentencing, which is currently transpiring in the District of Columbia—but is poised to spread … Continue reading Taking a Second Look at (In)Justice by Michael Serota

A Novel Idea: Televising the Announcement of Supreme Court Opinions by Floyd Abrams & Ronald K.L. Collins

Some thirty-five years ago, Chief Justice Warren Burger said that, save for its private conferences, the Supreme Court operates “in a goldfish bowl.” Perhaps. Then again, it is impossible to see the “fish” in real time unless one is physically present in the high Court. How then to look into the metaphorical bowl? What about … Continue reading A Novel Idea: Televising the Announcement of Supreme Court Opinions by Floyd Abrams & Ronald K.L. Collins

The Role of Corporate Governance in a Macroprudential Framework by Katrien Morbee

Introduction The compliance units in financial institutions have experienced explosive growth since the financial crisis. This is not surprising given the equally rapid growth in regulations governing the financial sector. For example, the Dodd-Frank Act—the US federal act which reformed financial regulation in the aftermath of the financial crisis, contains 2300 pages of detailed rules, … Continue reading The Role of Corporate Governance in a Macroprudential Framework by Katrien Morbee

The Making of a Mismarker: The Case of the Only Banker Jailed in the U.S. for His Role in the Financial Crash by Joe McGrath

Introduction In 2013, Kareem Serageldin pleaded guilty to conspiracy to falsify books and records of a financial institution. He was mismarking the value of securities at Credit Suisse in order to make them appear more valuable than was really the case. Judge Hellerstein sentenced him to thirty months in prison for his crime. This was … Continue reading The Making of a Mismarker: The Case of the Only Banker Jailed in the U.S. for His Role in the Financial Crash by Joe McGrath

Regulating Cryptocurrency Secondary Market Trading Platforms by Kristin N. Johnson

Introduction A new class of assets has revolutionized capital raising, redefining antiquated notions of the terms “coins” and “tokens,” and capturing an increasingly significant role in financial markets. Celebrated by cryptoenthusiasts, blockchain-based coin offerings expand opportunities for entrepreneurs to raise capital and individual, retail, and institutional investors to invest. Issuers have distributed more than 2,900 … Continue reading Regulating Cryptocurrency Secondary Market Trading Platforms by Kristin N. Johnson

Foreign Corruption as Market Manipulation by Gina-Gail S. Fletcher

Introduction On March 6, 2019, the Commodity Futures Trading Commission (CFTC) announced that it would be taking an active role in prosecuting violations of the Commodities Exchange Act (CEA) that involve foreign corruption.[1] On the same date, the CFTC published an enforcement advisory further signaling its intention to investigate and prosecute violations of the laws … Continue reading Foreign Corruption as Market Manipulation by Gina-Gail S. Fletcher

Is Business and Human Rights Suitable for the Compliance Function? by Michael K. Addo

Introduction The links between business, human rights, and compliance are often nonobvious. Firstly, these are disciplines and discourses that have evolved separately. Secondly, in the few incidental contexts where human rights and compliance have been mentioned together, it has often been in the context of voluntary initiatives that fall at the less compelling end of … Continue reading Is Business and Human Rights Suitable for the Compliance Function? by Michael K. Addo

More Meaningful Ethics by Veronica Root Martinez

Introduction Creating systems to create, promote, and encourage ethical behavior within firms is a maddeningly difficult endeavor. Whether one focuses on the purposeful decision to attempt to cheat emissions standards by Volkswagen, the failure of attorneys to alert upper management regarding potential problems with an ignition switch at General Motors, the creation of standards that … Continue reading More Meaningful Ethics by Veronica Root Martinez

Investigating Intersections of Corporate Governance & Compliance by Veronica Root Martinez

Symposium Introduction In April 2019, Notre Dame Law in London hosted a conference entitled “Investigating Intersections of Corporate Governance & Compliance” with scholars from the United States and United Kingdom participating.  The goal of the conference was to facilitate dialogue within and amongst legal scholarly disciplines regarding the ways in which governance and compliance intersect.  … Continue reading Investigating Intersections of Corporate Governance & Compliance by Veronica Root Martinez

Originalist Fiction as Constitutional Faith by Eric J. Segall

Professor Christopher Green’s respectful review of my book “Originalism as Faith” argues that my project “has one big virtue” but several “flaws.” He says that the book “properly points out elements of hypocrisy from originalists on the Court but draws the wrong lesson from that hypocrisy” because it “muddies” the “crucial distinctions . . . between Court … Continue reading Originalist Fiction as Constitutional Faith by Eric J. Segall

The Political Economy of Judicial Federalism by Michael E. Solimine

Professor Diego Zambrano’s recent article in the University of Chicago Law Review, Federal Expansion and the Decay of State Courts, is an institutional and comparative examination of federal and state courts as it pertains to judicial federalism. While judicial federalism has a long and complicated history, by most accounts, in the past several decades, both … Continue reading The Political Economy of Judicial Federalism by Michael E. Solimine

Fifth Circuit Will Reconsider Constitutionality of ICWA’s Race-Based Burdens by Timothy Sandefur

The Fifth Circuit Court of Appeals announced on November 7 that it will rehear a case called Brackeen v. Bernhardt that weighs the constitutionality of the Indian Child Welfare Act (ICWA). Adopted in 1978, ICWA was written in response to concerns that Native American children were being unjustly taken from their parents by social workers … Continue reading Fifth Circuit Will Reconsider Constitutionality of ICWA’s Race-Based Burdens by Timothy Sandefur

Originalism as Faithfulness by Christopher R. Green

Eric Segall’s Originalism as Faith is a quick, easily-digestible summary of the conventional wisdom about the Supreme Court’s relationship to original meaning for large portions of the legal academy. Prominent textbook authors like Deans Erwin Chemerinsky and Geoffrey Stone tout it as “masterful” and “persuasive.” Originalism is false, Segall contends, because its adherents on the … Continue reading Originalism as Faithfulness by Christopher R. Green

Criminal Justice Reform and the Courts by Rachel E. Barkow

Prosecutors seem to be the primary target for criminal justice reformers today, and with good reason: they are key gatekeepers to whether criminal charges get brought or not, and the particular charges they bring often dictate a defendant’s sentence. In a world dominated by plea bargains, prosecutors are essentially the final adjudicators in most criminal … Continue reading Criminal Justice Reform and the Courts by Rachel E. Barkow

Why Mississippi’s Plea to the Supreme Court That It “Owns” Its Water and That Tennessee Is “Stealing” It Is Just Wrong by Joseph Regalia

        I.          Mississippi and Tennessee’s water fight in the U.S. Supreme Court Water is pretty important. There’s a reason why people have been fighting over it for over a thousand years. We need it for the essentials—drinking, washing, and shipping things. We need it for the conveniences—our grassy front yards, our bottled water, and our … Continue reading Why Mississippi’s Plea to the Supreme Court That It “Owns” Its Water and That Tennessee Is “Stealing” It Is Just Wrong by Joseph Regalia

The Admissibility of Forensic Reports in the Post–Justice Scalia Supreme Court by Laird Kirkpatrick

Forensic reports linking a defendant to a crime—such as drug tests, blood analysis, DNA profiles, and much more—often constitute the most powerful and persuasive evidence that can be offered at a criminal trial. Yet the Supreme Court is sharply divided about the constitutionally required foundation for the admission of such reports. Its opinions on the … Continue reading The Admissibility of Forensic Reports in the Post–Justice Scalia Supreme Court by Laird Kirkpatrick

Why the NCAA’s No-Transfer Rule Is No Good by Michael A. Carrier & Marc Edelman

Earlier this year, after suffering from depression, University of Michigan football lineman James Hudson applied to transfer to the University of Cincinnati. Hudson aimed to start anew at Cincinnati, immediately joining the school’s football team. But unfortunately, Hudson’s hopes were dashed. The NCAA’s “year-in-residence” rule requires Division I college athletes to sit out a year … Continue reading Why the NCAA’s No-Transfer Rule Is No Good by Michael A. Carrier & Marc Edelman

Taking Rulemaking Procedures Seriously in Bending the Rules by Rachel Augustine Potter

Notice-and-comment rulemaking is often thought of as a fixed process: if agency X follows the process then it creates binding regulation Y. Yet, there is considerable variation in how the notice-and-comment rulemaking process actually proceeds. For instance, Trump’s Environmental Protection Agency allotted only 15 days for public comment on a recently proposed rule. This amount … Continue reading Taking Rulemaking Procedures Seriously in Bending the Rules by Rachel Augustine Potter

Unequal State Sovereignty: Considering the Equal State Sovereignty Principle Through Nineteenth-Century Election Laws by Zachary Newkirk

Introduction The equal state sovereignty principle may be “our historic tradition,” but it is an ill-defined, unexplored, and ambiguous one. In Shelby County v. Holder, the Supreme Court invalidated Section 4(b) of the Voting Rights Act (“VRA”) as a violation of the “fundamental principle of equal sovereignty.” Section 4(b) contained a formula that required some … Continue reading Unequal State Sovereignty: Considering the Equal State Sovereignty Principle Through Nineteenth-Century Election Laws by Zachary Newkirk

The Origins of War Manifestos by Oona A. Hathaway, William S. Holste, Scott J. Shapiro, Jacqueline Van De Velde, and Lisa Wang Lachowicz

Our recent article, War Manifestos, was the first work of legal scholarship to examine the documents that set out the legal reasons sovereigns provided for going to war from the late fifteenth century until the mid-twentieth century. The article described these “war manifestos” and explored their history and evolution over the course of five centuries. … Continue reading The Origins of War Manifestos by Oona A. Hathaway, William S. Holste, Scott J. Shapiro, Jacqueline Van De Velde, and Lisa Wang Lachowicz

How Probable is “Plausible”? by Daniel A. Epstein

See Mr. Epstein's article in the Online Journal here The federal pleading threshold is probably the most confronted, least understood, threshold in American law. We know that to survive a Rule 12(b)(6) motion to dismiss in the post-Twombly and -Iqbal world, a pleading must state a claim to relief that is “plausible” on its face. … Continue reading How Probable is “Plausible”? by Daniel A. Epstein

What is a Constitutional Right? by Professor Robert Leider

The word “right” may describe different kinds of legal relationships.  Nowhere has the nature of rights become more confused than in the debate over the Second Amendment’s scope. On Friday, November 2, the First Circuit released its opinion in Gould v O’Leary, No. 17-2202, which upheld Boston and Brookline’s denial of licenses to carry firearms … Continue reading What is a Constitutional Right? by Professor Robert Leider

Waiving Administrative Deference, by Jamie Durling & E. Garrett West

Litigants in our adversarial system must raise their best arguments or the court will find that the argument has been “waived” (or more precisely, “forfeited”). But what should courts do if an agency or a private party fails to raise Chevron deference during litigation about the lawfulness of agency action? In a forthcoming essay in … Continue reading Waiving Administrative Deference, by Jamie Durling & E. Garrett West

3.13 – Interpreting the Law through Corpus Linguistics

This is Briefly, a production of the University of Chicago Law Review. Today we’re discussing Corpus Linguistics, which is a sub-field of linguistics that employs database searches to study language usage. Through this linguistic method, jurists, lawyers, and legal academics can add empirical rigor to textualist assumptions regarding the legal meaning of words, based on … Continue reading 3.13 – Interpreting the Law through Corpus Linguistics

Briefly 3.12 – Experimental Jurisprudence

This is Briefly, a production of the University of Chicago Law Review. Today we’re discussing Experimental Jurisprudence, which is an emerging field that uses empirical methods, particularly from the cognitive sciences, to clarify important concepts in the law. For example, scholars in this field conduct experiments to understand what ordinary people make of legal concepts, … Continue reading Briefly 3.12 – Experimental Jurisprudence

Briefly 3.11 – Social Media and Market Manipulation

This is Briefly, a production of the University of Chicago Law Review. Today we are discussing social media influencers and their ability to manipulate markets. We also discuss the legal regime that governs influencers and the agencies, namely the SEC and FTC, that regulate them. We're joined by Anna Pinedo, a partner in Mayer Brown's … Continue reading Briefly 3.11 – Social Media and Market Manipulation