The University of Chicago Law Review Online – Started in 2018, The University of Chicago Law Review Online is an online platform focused on publishing legal analysis and scholarship for a general-interest audience.

Guilt by (Anticompetitive) Association: Criminal Enforcement as a Response to Labor Monopsony

Writing for the University of Chicago Law Review Symposium 2022 on Law and Labor Market Power, Marissa Piccolo evaluates when and how criminal antitrust enforcement can address the problem of labor monopsonies.

No More No-Poach? An (Early) Retrospective on Public and Private Antitrust Enforcement in the Fight against Franchise No-Poach Agreements

Writing for the University of Chicago Law Review Symposium 2022 on Law and Labor Market Power, Spencer J. Parts argues that private lawsuits and state enforcement were a suboptimal way of causing many national franchises to abandon the use of no-poach agreements.

Avoiding a Pie in the Face

Writing for the University of Chicago Law Review Symposium 2022 on Law and Labor Market Power, Henry Walter suggests that antitrust reform efforts directed at labor markets should proceed slowly, mindful of reform’s fragile political support and the potential for backlash.

Personalized Law: Different Rules for Different People

Omri Ben-Shahar and Ariel Porat examine the challenges and opportunities of a new legal paradigm—one where rules vary person by person—in light of their recent book, Personalized Law.

Race and the History of International Investment Law

Felipe Ford Cole details how race played a role in the development of international investment law during the late nineteenth and early twentieth centuries.

Standing Aside for Animals: Disentangling the Strategy and Goals of Animal Welfare Litigation

Tony Leyh argues that aesthetic injuries suffered by humans provides a legal pathway for granting animals Article III standing.

Applying the State-Created-Danger Doctrine to Cases Involving Suicide in Noncustodial Settings beyond Schools

Jace Lee explains that the reasoning behind the state-created-danger doctrine, as applied in cases involving suicides by adolescents in the school context, should also apply to cases involving suicides in noncustodial contexts beyond the school setting.

Agency Problems and the Misappropriation Theory of Insider Trading in SEC v. Panuwat

Ryan Fane discusses how securities law should address the theory of insider trading presented in SEC v. Panuwat.

Uncompassionate Incarceration: United States v. Thacker and Its Impact on Nonretroactivity-Based Compassionate Release

Jaden Lessnick argues that the Seventh Circuit's holding in United States v. Thacker misapplies the compassionate release statute and that, instead, a case-by-case assessment of whether a nonretroactive sentencing amendment can justify compassionate release is more consistent with the statute and Seventh Circuit precedent.

Avoiding a Pie in the Face

Writing for the University of Chicago Law Review Symposium 2022 on Law and Labor Market Power, Henry Walter suggests that antitrust reform efforts directed at labor markets should proceed slowly, mindful of reform's fragile political support and the potential for backlash.

No More No-Poach? An (Early) Retrospective on Public and Private Antitrust Enforcement in the Fight against Franchise No-Poach Agreements

Writing for the University of Chicago Law Review Symposium 2022 on Law and Labor Market Power, Spencer J. Parts argues that private lawsuits and state enforcement were a suboptimal way of causing many national franchises to abandon the use of no-poach agreements.

Guilt by (Anticompetitive) Association: Criminal Enforcement as a Response to Labor Monopsony

Writing for the University of Chicago Law Review Symposium 2022 on Law and Labor Market Power, Marissa Piccolo evaluates when and how criminal antitrust enforcement can address the problem of labor monopsonies.

Do You Want COVID-19 with That?:
Public Nuisance and Worker Protections at McDonald’s

Simon Jacobs analyzes how public nuisance litigation can affect workplace safety in the context of the COVID-19 pandemic.

Not My Cup of Special Tea: An Extradited Defendant’s Standing to Challenge American Prosecution Under The Specialty Doctrine

Caitlan M. Sussman explores whether extradited defendants have standing to challenge their American prosecutions under extradition treaties.

Personalized Law: Different Rules for Different People

Omri Ben-Shahar and Ariel Porat examine the challenges and opportunities of a new legal paradigm—one where rules vary person by person—in light of their recent book, Personalized Law.

But What Is Personalized Law?

Sandra G. Mayson aims to clarify the concept of personalized law by considering the nature of legal rules, which must all generalize on some dimension.

Personalized Law: Distinctions and Procedural Observations

Hans Christoph Grigoleit takes a look at personalized law's procedural consequences for the allocation of functions between the legislature and judiciary.

Tailoring ex Machina: Perspectives on Personalized Law

Gregory Klass argues that personalized law imagines an alternative form of lawmaking, one that presupposes abilities that human lawmakers do not possess.

Personalized Damages

Catherine M. Sharkey explores the issues which arise in tort law from applying personalized law to standards of care but not damages.

Implementing Personalized Negligence Law

Jared I. Mayer proposes feedback mechanisms as a way to overcome the limitations of personalized standards of care in tort law.

Personalized Law, Political Power, and the Dangerous Few

Adam Davidson warns that personalized commands could be shaped and abused by the moral and political judgements of bad actors.

Personalization and the Constitution

Netta Barak-Corren addresses the effects of personalized law on constitutional rights, personal autonomy, and choice.

Complex Algorithmic Law

Peter N. Salib previews the problems that could arise if personalized law is powered by cutting-edge, artificial intelligence algorithms.

Two Cheers for Cyborgs

Lauren Henry Scholz contends that a cyborg system of law, one that relies on human-machine collaboration, can achieve the benefits of personalized law with more limited technology.

Personalized Enfranchisement

H. Javier Kordi details how personalized law, by avoiding arbitrary age cutoffs, could result in true universal suffrage.

The Ancient Alien: Good Faith as the Facilitator of Personalized Law

Catalina Goanta argues that personalized law is the modern application of the centuries-old, open-ended norm of good faith.

Moving Toward Personalized Law

Cary Coglianese proposes custom and competence as solutions to overcome the challenges facing the implementation of personalized law.

Why Personalized Law?

Horst Eidenmüller argues that the best normative justification for personalized law, utility maximization, supports a limited role for personalization in lawmaking.

Race and the History of International Investment Law

Felipe Ford Cole details how race played a role in the development of international investment law during the late nineteenth and early twentieth centuries.

Standing Aside for Animals: Disentangling the Strategy and Goals of Animal Welfare Litigation

Tony Leyh argues that aesthetic injuries suffered by humans provides a legal pathway for granting animals Article III standing.

Ninth Circuit Renames Copyright Estoppel the Asserted Truths Doctrine

Yiwei Jiang looks at how a copyright ruling on the Broadway hit “Jersey Boys” paves the way for creators to make projects based on true stories.

Does Chiafalo v. Washington Bolster the Case for the National Popular Vote Interstate Compact? Not So Fast.

Zachary Reger examines how the Supreme Court's ruling on faithless electors in Chiafalo v. Washington affects the national popular vote movement.

Some Doubts About Folk Jurisprudence: The Case of Proximate Cause

Felipe Jiménez offers a critique of folk jurisprudence, arguing that law and legal concepts depend on how legal officials—not the population at large—understand them.

A Demographic Moral Panic: Fears of a Majority-Minority Future and the Depreciating Value of Whiteness

Brittany Farr contends that anxious news media coverage of U.S. demographic changes has fueled a moral panic over the country’s projected majority-minority future.

There’s Something Fishy About McGirt: The Decision’s Hidden Effects on Indian Treaty-Based Fishing Rights in the Pacific Northwest

Alec F. Mouser explores how the Supreme Court's decision in McGirt v. Oklahoma might affect the scope of environmental rights in Indian treaties.

Let’s Talk About Sex Ed, Baby: Sexual Education Programs and Curricular Exclusions Under Title IX

Danny Moreno argues that Title IX provides protections against abstinence-only sex education programs because of their discriminatory intent and impact.

All Roads Lead to Guo: The Case for In Re Guo’s (2d Cir. 2020) Resolution of the § 1782 Circuit Split

Reagan W. Kapp examines the meaning of "international tribunal" to determine whether federal courts can facilitate discovery in private international arbitration.

Waivers of Compassionate Release in Plea Bargains: The Need for Administrative Action to Prevent Unfair Sentencing

Ellen A. Wiencek analyzes how federal courts have responded to plea bargains that waive compassionate release following the First Step Act.

Against Immunizing Nursing Homes

Betsy J. Grey argues nursing homes should be held accountable for failures to use mitigation measures during the COVID-19 pandemic.

Measuring Impact in Constitutional Law

Adam Chilton and Mila Versteeg discuss the future of empirical constitutional studies in light of their recent book, "How Constitutional Rights Matter."

Comparative Constitutional Matching: From Most Similar Cases to Synthetic Control?

Rosalind Dixon and Richard Holden propose that future studies in comparative constitutional law utilize the synthetic control method.

Experimental Methods in Constitutional Law

Adi Leibovitch and Alexander Stremitzer argue that abstract lab experiments can play a distinctive role in developing constitutional law theory.

Constitutional Comprehensibility and the Coordination of Citizens: A Test of the Weingast-Hypothesis

Jerg Gutmann, Mahdi Khesali and Stefan Voigt analyze whether the comprehensibility of a constitution affects its enforcement.

Knowing the Law

Kevin L. Cope and Charles Crabtree analyze original data on U.S. residents' knowledge of international and constitutional law.

The Mutualism of Human Rights Law and Interest Groups

Zachary Elkins looks at the branding of social, cultural, and economic organizations to argue that law and interest groups mutually reinforce each other.

How Constitutional Rights Matter: Thoughts on the New Gold Standard in Empirical Constitutional Studies

Ran Hirschl and Alexander Hudson posit that powerful groups not only enforce rights but also push for their inclusion in constitutions.

“Sometimes the Magic Works. Sometimes It Doesn’t”: A Comment on Chilton and Versteeg

Mark Tushnet comments on the importance of limitations clauses when assessing the substantive reach of constitutional rights.

Justiciability and Remedies in Administrative Law Challenges

Tyler B. Lindley dissects the tensions at play in the Supreme Court's doctrines of justiciability and remedies.

Post-Election Litigation and the Paradox of Voting

Peter N. Salib and Guha Krishnamurthi argue that the impact of vote margins on election litigation and legitimacy provides a rationale for voting.

Narrowing the Remedial Gap: Damages for Disability Discrimination in Outsourced Federal Programs

Margo Schlanger proposes a novel statutory pathway for disability-discrimination damages claims against federal contractors.

The Corpus and the Courts

Kevin Tobia sets out best practices to guide courts employing corpus linguistics methods in legal interpretation.

Distributing the Corporation’s Brain: Principal Place of Business Without Physical Presence

Nicholas Hallock shows how the federal diversity-jurisdiction statute can accommodate the modern reality of companies with no physical presence at all.

Willfully Blind to the Machinery of Death: The State of Execution Challenges After Barr v. Lee

Jay Clayton argues that the Supreme Court has moved one step closer toward a total refusal to consider method-of-execution challenges.

Federal Grand Juries’ Supremacy Over Foreign Data Privacy Laws

Alexander C. Meade explains why grand juries should win out in the clash between foreign data privacy laws and U.S. criminal proceedings.

Oboe Judging

Judge Diane Wood's talent for the oboe reflects her approach to judging and living, writes David Engstrom.

Judge Diane P. Wood: A True Friend

Zachary Clopton writes that a case about French press offers a window into what makes Judge Diane Wood a towering figure in the federal judiciary.

Judge Wood and the Human Side of Judging

Tejas Narechania remembers Judge Diane Wood's extraordinary humanity as a constant during her 25 years and running on the bench.

What Judge Wood Taught Me About Glass Cages

Some see the law as a ladder to power. Elizabeth Reese says Judge Diane Wood couldn't see things more differently.

Zoom Trials as the New Normal: A Cautionary Tale

The pandemic has changed how courts operate. Angela Chang examines the pitfalls of remote proceedings—and how courts, parties, and jurors might combat them.

Affirmative Action at a Crossroads

Taiyee Chien and Matthew Reade present a diverse, challenging, and respectful conversation about affirmative action and its future.

Talking About Affirmative Action

What can a debate between two political adversaries in October 1996 teach us about the affirmative-action debate today? Matthew Reade explains.

Affirmative Action: Towards a Coherent Debate

Coleman Hughes frames the affirmative-action debate as a contest between three positions: the pro-equality position, the pro-equity position, and the middle ground between them.

Fifteen Questions About Prop. 16 and Prop. 209

Richard Sander asks and answers fifteen questions about California's antidiscrimination provisions and their proposed repeal.

Good Trouble

Girardeau Spann hopes that ongoing protests against racial injustice across the United States reflect an emerging consensus around the pro-equity conception of affirmative action—a consensus that may prompt the Supreme Court to embrace the view that the Constitution requires efforts to "eradicat[e] racially disparate impact."

“All (Poor) Lives Matter”: How Class-Not-Race Logic Reinscribes Race and Class Privilege

Jonathan Feingold criticizes the Supreme Court's "preference" for "class-not-race" affirmative action as "intersectional blindness"—a failure to recognize that hardship may attach simultaneously to many different facets of a person's identity.

Reframing Affirmative Action: From Diversity to Mobility and Full Participation

Defending affirmative action "continues to be important and necessary." But, Susan Sturm argues, affirmative action is not enough. Institutional transformation is necessary to correct structural bias in education.

Before Bakke: The Hidden History of the Diversity Rationale

Anthony Chen and Lisa Stulberg argue that the diversity rationale for affirmative action originated earlier—and for different reasons—than scholars previously thought.

Pursuing Diversity: From Education to Employment

The diversity rationale for race-based affirmative action drastically departs from its traditional justification as a remedy for past discrimination. Amy Wax argues that the diversity rationale paves the way for "affirmative action forever." In this new paradigm, to remain true to the civil-rights laws, courts must prohibit racial preferences in education and employment unless their proponents offer specific evidence that the benefits of racial preferences outweigh their cost.

Affirmative-Action Jurisprudence Reflects American Racial Animosity but Is Also Unhappy in Its Own Special Way

The fight over affirmative action is nothing new, Richard T. Ford writes. We'd be better off without it—but it reflects enduring malignancies in American life.

Affirmative Action, Transparency, and the SFFA v. Harvard Case

Peter Arcidiacono, Josh Kinsler, and Tyler Ransom analyze the rich trove of admissions data revealed at trial in an ongoing racial-discrimination suit against Harvard University.

Affirmative Algorithms: The Legal Grounds for Fairness as Awareness

Daniel E. Ho and Alice Xiang examine the implications of affirmative-action jurisprudence for the future of algorithmic fairness.

The Hertz Maneuver (and the Limits of Bankruptcy Law)

Critics scoffed when Hertz tried to finance its bankruptcy by issuing new stock. Anthony J. Casey & Joshua C. Macey argue that the "Hertz maneuver" highlights distortions created by bankruptcy law's "absolute priority" rule.

The Organization Judge

According to David Zaring, President Trump's judicial appointees are younger and spent less time in private practice—and more in politics—than past administrations' appointees.

A Brief History of Schedule A: The United States’ Forgotten Shortage Occupation List

Lindsay Milliken details the history of a promising (and forgotten) regulatory avenue for addressing high-skilled labor shortages in the United States.

Master John Marshall and the Problem of Slavery

Paul Finkelman examines Chief Justice John Marshall's personal relationship with slavery in this Essay—the first in a two-part series.

John Marshall’s Proslavery Jurisprudence: Racism, Property, and the “Great” Chief Justice

Chief Justice John Marshall consistently sided with slaveowners in slavery cases. Paul Finkelman explains in this second Essay.

Seila Law and the Roberts Court

Deborah Malamud presents a timely series on the Roberts Court, judicial interpretation, and the future of the administrative state.

October Term 2019 in Review: Blue June

Josh Blackman offers his tongue-in-cheek summary of the historic October Term 2019—when the Court decided Seila Law.

Out of the Separation-of-Powers Frying Pan and Into the Nondelegation Fire: How the Court’s Decision in Seila Law Makes CFPB’s Unlawful Structure Even Worse

In remedying CFPB's separation-of-powers violation, Markham S. Chenoweth and Michael P. DeGrandis contend, the Seila Law Court worsened the constitutional defects in CFPB's funding structure.

Seila Law as an Ex Post, Static Conception of Separation of Powers

Timothy G. Duncheon & Richard L. Revesz explain Seila Law as an example of ex post regulation of separation of powers. But ex post regulation may bring unexpected ex ante effects.

Seila Law and the Law of Judicial Review

In Seila Law, the Court invalidated the for-cause removal protection of the CFPB's director. Or did it? John Harrison explains that courts only find invalidity; they cannot make it.

Constitutionalizing Financial Instability

Patricia A. McCoy argues that Seila Law puts at risk the longstanding independence of federal financial regulators and, with it, the U.S. economy.

Non-Judicial Precedent and the Removal Power

The core disagreement in Seila Law, writes David A. Strauss, was about historical practice and its role in determining what the Constitution requires.

Seila Law: Is There a There There?

Jack M. Beermann contends that the Seila Law majority's distinction between multimember and single-headed independent agencies lacks legal and historical support and lays the groundwork for invalidating independent agencies altogether.

What Seila Law Says About Chief Justice Roberts’ View of the Administrative State

Lisa Schultz Bressman argues that Seila Law reveals protecting liberty and preventing abuse of power are the first principles of Chief Justice John Roberts' administrative law.

Conservative Minimalism and the Consumer Financial Protection Bureau

Jonathan Adler argues that Seila Law, like many cases this past term, exemplifies the Roberts Court's conservative minimalism.

Of Angels, Pins, and For-Cause Removal: A Requiem for the Passive Virtues

Seila Law involved a constitutional puzzle with a straightforward answer. According to Jerry Mashaw, the Court overlooked the missing piece.

Judicial Review of Deadlock Votes: Campaign Legal Center & Democracy 21 v. Federal Election Commission (D.C. Cir. 2020)

Partisan deadlock on the Federal Election Commission has left campaign finance rules underenforced at a crucial time. Kate Harris highlights how courts have—and should—grapple with partisan deadlock when our elections are at stake.

Welcome to the Maze: Race, Justice, and Jurisdiction in McGirt v. Oklahoma

Elizabeth Reese contextualizes McGirt v. Oklahoma as a potential game-changer for jurisdictional disputes between the United States and Native American tribes.

A Proposal for Police Reform: Require Effective Accountability Measures in Police Union Contracts as a Condition of Tax-Exempt Status

Brian Mogck argues that using tax law to threaten police unions' pocketbooks could deliver much-needed policing reforms.

An Updated Analysis of Corporate Behavior and the Tax Cuts and Jobs Act

Nicholas H. Cohen and Manoj Viswanathan update their analysis of how large corporations have reacted to President Trump's much-touted tax cuts.

Making Wilkie Worse: Qualified-Immunity Appeals and the Bivens Question after Ziglar and Hernandez

Bryan Lammon argues that qualified immunity has generated an appellate-procedure morass that prevents victims from getting justice when government officials, including police, violate their rights.

Solving the Problem in One Bite: Addressing “Meat” Advertising with Federal Law

States' efforts to regulate advertising of plant-based products have reduced competition and confused consumers. Daly Brower says federal preemption can solve these problems.

Separation-of-Powers Faux Pas: The McGahn Litigation and Congress’s Efforts to Use the Courts to Resolve Interbranch Information Disputes

Reid Coleman argues that Congress's impulse to use the judiciary to oversee the executive branch has practical and constitutional flaws.

Her Alone: Feminist Perspectives on the Future of Spousal Privileges

Last August, the New Mexico Supreme Court repudiated the spousal evidentiary privilege on feminist grounds. Alexandra Aparicio argues that in so doing, the court overlooked feminism's complexity—and the right result.

A Small World After All: Extending the Martindell Standard to Block Grand Jury Access to Sealed Foreign Discovery Materials Held at U.S. Law Firms

J. Sam Bonafede argues that to protect our civil litigation system, the Second Circuit should block DOJ's efforts to circumvent civil protective orders covering foreign-based discovery materials through well-timed grand jury subpoenas.

The Troubling Case of the Unlimited Pass-Through Deduction: Section 2304 of the CARES Act

Clint Wallace says an obscure provision of Congress's COVID-19 relief package delivers big breaks to high earners and shows the pathologies of modern tax policymaking.

Pandemic Elections

Miriam George and the University of Chicago Law Review Online present this series on protecting democratic elections and voting rights during pandemic times.

Democratic Legitimacy Under Conditions of Severely Depressed Voter Turnout

James A. Gardner writes that the coronavirus pandemic is likely to depress voter turnout, posing disturbingly high risks to democratic legitimacy.

How to Accommodate a Massive Surge in Absentee Voting

A surge in absentee voting is inevitable. Richard H. Pildes offers five steps to make sure the election still works.

Voter Registration in a Pandemic

Media and the public have fixated on changes to how people vote. Daniel P. Tokaji says that voter registration should not be lost in the shuffle.

Election Law Localism in the Time of COVID-19

Local elections officers play a key but little discussed role in protecting the right to vote. Richard Briffault explains they are a source of strength in our elections.

Direct Democracy Denied: The Right to Initiative During a Pandemic

During the pandemic, courts have held ballot initiative qualification to a higher standard. Richard L. Hasen asks why.

Election Litigation in the Time of the Pandemic

When normal life has ground to a halt, it may be reassuring that one American tradition—suing over electoral rules—is still going strong. Nicholas Stephanopoulos paints this election litigation landscape.

Uproot or Upgrade? Revisiting Section 230 Immunity in the Digital Age

Judge Michael Hawkins and Matthew Stanford on how Congress should regulate Big Tech.

Kendall v. United States and the Inspector General Dilemma by Daniel Epstein

The president may remove inspectors general when they attempt to go beyond their limited powers.

Free Exercise in a Pandemic by Zalman Rothschild

Why the Court's conservative bloc fractured in one of the most important religion cases this term.

Deadly Discretion: The Failure of Police Use of Force Policies to Meet Fundamental International Human Rights Law and Standards

The University of Chicago Law School's International Human Rights Clinic unveils a groundbreaking study on police use of force.

Mobile-Based Transportation Employment Disputes: Corporate Chutzpa and the Potential Resurrection of Class Arbitration by Tamar Meshel

It is often said that arbitration favors employers' interests and that class actions do not. Tamar Meshel argues that for employers and employees alike, class arbitration may offer the best of both worlds.

“What Kind of Oversight Board Have You Given Us?” by Evelyn Douek

Facebook's new Oversight Board is an unprecedented experiment in content moderation governance. But how will it work—and why does it matter?

Legislative Hurdles and Unintended Consequences: Potential Pitfalls of Vice President Biden’s Interest in Cabinet Restructuring by Eli Nachmany

Vice President Biden is considering elevating some White House offices to the Cabinet. But this change comes with complications.

The Federal Government Probably Can’t Order Statewide Quarantines by Maryam Jamshidi

President Trump has floated the possibility of issuing a quarantine order for New York, New Jersey, and Connecticut. But is this even legal?

Shareholder-Driven Stakeholderism by Cathy Hwang and Yaron Nili

It turns out that shareholders, not management, have been the driving force behind the environmental, social, and governance principles that many associate with stakeholder governance.

The Worrisome Ghost of the Fourteenth Amendment’s Second Section by Eden Bernstein

Section Two of the Fourteenth Amendment could provide a powerful protection to voting rights. But its risks outweigh its rewards.

Reexamining the Government’s Interest in Border Searches of Digital Devices by Charles W. Gibson

The Fourth Amendment requires that searches be reasonable. Courts effectuate this requirement through a balancing analysis, weighing a search’s harm to privacy against the governmental interest it serves. The results of these balancing exercises are then recast as constitutional requirements and exceptions. For example, the requirement that an ordinary search be backed by a warrant … Continue reading Reexamining the Government’s Interest in Border Searches of Digital Devices by Charles W. Gibson

Clarifying and Reframing the “Ministerial Exception” by Tyler B. Lindley

The First Amendment’s Religion Clauses requires an exemption to certain anti-discrimination laws, like the ADA, for certain employees of religious employers. But lower courts disagree about which employees qualify for the so-called “ministerial exception.” This Essay argues that the exception should apply to any employee of a religious group who fills a religious role.

Corporate Behavior and the Tax Cuts and Jobs Act by Nicholas H. Cohen and Manoj Viswanathan

While other studies have considered the TCJA’s effect on specific corporate attributes, this Essay is the first to assess the TCJA’s effect on a range of corporate behaviors by using recently filed, publicly available data on a granular, corporation-by-corporation basis.

Go Configure by Lee Anne Fennell

In Slices and Lumps: Division and Aggregation in Law and Life, I argue that the future depends on configuration. Putting together resources and cooperation in the right combinations is essential to human flourishing in multiple domains: the environment, the city, the workplace, the market, and the home. It is also central to reaching collective and … Continue reading Go Configure by Lee Anne Fennell

Paying with Lumps by Brian Galle

Introduction Slices and Lumps, the remarkable new book by Professor Lee Fennell, begins from the title itself to tell a story about the instability of how the world is organized. Lumps can be natural things, formed in a bowl by humidity’s kiss, but slices are often the work of human intervention. When, then, should we … Continue reading Paying with Lumps by Brian Galle

Slicing Defamation by Contract by Yonathan Arbel

Slices and Lumps is a recipe book for thinking. Using a deceptively simple analytical framework, the book showcases the power of conceptualizing the world through the prism of “slices” and “lumps.” As Professor Fennell shows, the level of granularity of legal rights and duties—how lumpy they are—can have a marked impact on behavior, which presents … Continue reading Slicing Defamation by Contract by Yonathan Arbel

The Smooth Value of Lumpy Goods by Matthew D. Adler

Lumpiness and the Standard Picture Economists often employ a convenient set of assumptions regarding the goods that individuals care about and the form of individuals’ preferences for these goods. For short, call this set of assumptions “the Standard Picture.” (1) Individuals’ preferences are “outcome-oriented,” in the sense that each individual cares about her own holdings of … Continue reading The Smooth Value of Lumpy Goods by Matthew D. Adler

Co-Location Covenants by Lior Jacob Strahilevitz

Mom and Dad are aging. They have more house than they need, and at their ages maintaining it has become an unmanageable burden. Their friends have begun to die off, they are close to giving up their driver’s licenses, and the kid has long since grown up and moved away. The sensible thing to do … Continue reading Co-Location Covenants by Lior Jacob Strahilevitz

Lumps in Antitrust Law by Sean P. Sullivan

The framework of aggregation and division that Lee Fennell develops in Slices and Lumps: Division and Aggregation in Law and Life is both elegant and encompassing. Through the simple device of questioning how ideas and individuals are grouped together, or split apart, Fennell is able to explain and challenge concepts from diverse areas of law. … Continue reading Lumps in Antitrust Law by Sean P. Sullivan

Indivisibilities in Technology Regulation by Lauren Henry Scholz

Lee Fennell’s Slices and Lumps: Division and Aggregation in Law and Life reveals the benefits of isolating configurations in legal analysis. A key characteristic of configurations, or “lumps” whether found or created, is that they are indivisible. To say a lump is indivisible is not to say that it is literally impossible to divide, but … Continue reading Indivisibilities in Technology Regulation by Lauren Henry Scholz

From Slices to Lumps and Back Again: Aggregation and Division in US Federal Income Tax Law by Sarah B. Lawsky

Introduction As Lee Anne Fennell writes in Slices and Lumps: Division and Aggregation in Law and Life, “law must determine the proper unit of analysis—how widely or narrowly to set its viewfinder—in assessing whether a given line has been crossed or a given standard has been satisfied . . . . Second, law must decide how sharp or … Continue reading From Slices to Lumps and Back Again: Aggregation and Division in US Federal Income Tax Law by Sarah B. Lawsky

Slicing (and Transferring) Development by John Infranca

Introduction: Lumpy Depth Spend too long within the pages of Lee Fennell’s Slices and Lumps and you begin to see slices and lumps everywhere. The deadline for this Essay fast approaches and I fear I will not have enough time to devote to it. Sure, there are slices of time I can carve out between … Continue reading Slicing (and Transferring) Development by John Infranca

Getting People to Lump or Split Themselves: Pooling vs Separation by Peter Siegelman

I. Lumping & Splitting vs Pooling & Separating My goal in this short Essay is to show how an analytic vocabulary first developed to analyze insurance markets by Michael Rothschild and Joseph Stiglitz (some parallel ideas were developed by Michael Spence at roughly the same time) can shed light on a range of institutional design … Continue reading Getting People to Lump or Split Themselves: Pooling vs Separation by Peter Siegelman

Agency Lumping and Splitting by Jennifer Nou

Regulations, like other legal instruments, often arrive in lumps. An agency, for example, can issue a rule addressing many different subjects, each of which could be split off and issued as a separate regulation. Take, for example, a recently finalized proposed rule issued by the Environmental Protection Agency (EPA). In the agency’s own words, the … Continue reading Agency Lumping and Splitting by Jennifer Nou

Lumping, Fairness, and Single People by Michael C. Pollack

A popular tweet (popular to a certain segment of folks roughly 250,000 strong, at least) chants, “Who are we? Single young professionals. What do we want? For perishable groceries to be sold in smaller portion sizes.” I cannot count the number of times I have stood in front of a wall of bagged salad greens … Continue reading Lumping, Fairness, and Single People by Michael C. Pollack

Ownership Work and Work Ownership by Hiba Hafiz

Professor Lee Fennell’s groundbreaking Slices and Lumps incisively reconceptualizes how the gig—or “slicing”—economy impacts the structuring of work. But it goes even further to alert us to how “delumping the working experience” (p 6) can transform the infrastructure of work, from an individual’s task design to the agglomeration costs and benefits of untying and retying … Continue reading Ownership Work and Work Ownership by Hiba Hafiz

Lumpy Work by Deepa Das Acevedo

For close to ten years, the gig economy has dazzled with its seeming powers of disaggregation. Want a picture mounted on your wall but no other decorating, framing, or assembly help? There’s an app for that (TaskRabbit). Want a place to stay during your holiday but without the frills of turn-down service, room service, and … Continue reading Lumpy Work by Deepa Das Acevedo

Water Slices and Water Lumps by Rhett B. Larson

While reading Lee Fennell’s book Slices and Lumps, I was struck that the book could have been written using only examples from water law. Fennell’s framework describes nearly all challenges and aims inherent in water management, and connects these challenges to broader questions in life and law. Water law is all about slices and lumps. … Continue reading Water Slices and Water Lumps by Rhett B. Larson

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