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.
In Summer 2023, The University of Chicago Law Review Online transitioned to an updated website. Please visit our new page to read the latest Online publications alongside pieces from our recent Print editions.
In Summer 2023, The University of Chicago Law Review Online transitioned to an updated website. Please visit our new page to read the latest Online publications alongside pieces from our recent Print editions.
Katherine M. Koza "argues that a new U.N. cybercrime treaty should build on the strengths of the Budapest Convention by including a clearer 'extradite-or-prosecute' requirement for its signatories and by creating strong privacy requirements to counterbalance the risks created by any data-sharing provisions."
Tyler Mikulis proposes that courts allow cases with anonymous John Doe defendants "to continue under diversity jurisdiction" but that "plaintiffs ought to be required to make a good faith effort to identify the citizenship of any Doe defendants" and that courts should "allow limited, and temporary, jurisdictional discovery" to permit plaintiffs to do so.
Tahnee Thantrong Monnin analyzes a textual difference between §§ 3604(a) and (f) of the Fair Housing Act and concludes, based on a line of cases extending the Fair Housing Act's protections to residents of homeless shelters, "that third-party consideration is and should be sufficient for purposes of applying §§ 3604(a) and (f)."
Katherine Weaver discusses the Ninth Circuit's refusal in Olean v. Bumble Bee Foods LLC "to adopt a per se rule prohibiting class certification when the putative class contains more than a de minimis number of uninjured class members" and concludes that "lower courts grappling with this issue in the future should take into account the Seventh Circuit’s opinion in Mussat v. IQVIA, Inc." and treat classes as an "entity."
Responding to Profs. Chander & Schwartz’s Privacy and/or Trade, Profs. Kristina Irion, Margot E. Kaminski & Svetlana Yakovleva argue that "international trade as a regime is fundamentally the wrong forum for striking a balance" between "the free flow of information and the protection of data privacy."
Jason T. Hanselman analyzes Kennedy v. Bremerton School District, concluding that "[s]chool districts, which must assess indirect coercion to make termination decisions, will struggle to decide whether Kennedy establishes a new legal test or just revamps the old one."
Erin Yonchak, writing on stealthing and on rape exceptions to state abortion bans, concludes that, first, "[c]urrent rape law does not capture a swath of sexual violence, like stealthing—and rape exceptions, as written, do little to provide options for those victims," and second, "if providing abortion access to sexual violence survivors is a priority for legislators in abortion-restricted states, rape exceptions should be broadened to expansively define 'rape' as any unwanted sexual conduct and divorce rape exceptions from the criminal system, which remains an inadequate mechanism for victims of sexual violence."
Danielle Tyukody "presents an argument to permit greater disclosure of grand jury legal instructions by lowering the standard defendants must meet for the court to authorize disclosure of the instructions."
Responding to Sedlik v. Drachenberg, David Doktorman suggests that "tattoos, by virtue of their being inscribed on a human body, are inherently transformative uses that, as a matter of law, strongly support a finding of fair use."
Joaquin Gonzalez argues that E.U. Members States should pass "a farm animal welfare law mimicking California’s Prop 12" and that this approach "would be legal under an exception for laws regarding public morality."
Evan Blanchard-Wu first outlines "the history of Marsy's Laws" and related victims' rights efforts and then "explores the implications" of the Marsy's Law right "to reasonable protection from the accused."
Analyzing the First Circuit's opinion in Moore v. British Airways PLC, Kelsey Roberts suggests that when "courts determine whether there was an accident" under the Montreal Convention, they should do so from "the airline’s perspective, as measured by airline policies and industry standards."
Josh J. Leopold examines "two divergent causation standards endorsed by courts in [False Claims Act] claims predicated on [Anti-Kickback Statute] violations," ultimately concluding that a "but-for causation standard should be disfavored by courts in these cases."
Bethany Ao analyzes case law confronting the question of "whether the PREP Act preempts state tort law when plaintiffs raise wrongful death claims related to COVID-19."
Writing to revise Federalist No. 78, Publius proposes that the Constitution "be amended to require that the President nominate someone to the Supreme Court whose political affiliation we meaningfully know is opposed to that of the President."
Responding to On the Manner of the Appointment of Justices to the Supreme Court: Revising Federalist No. 78, Publius argues that "our devotion to the nation as a whole," not partisan Supreme Court reform, "is the only thing that will save our nation as a whole."
Stephen Vukovits argues that Kennedy v. Bremerton School District's treatment of the Lemon test means that, for purposes of standing, courts should now "recognize that merely being offended by an alleged government endorsement of religion does not constitute a concrete and particularized injury-in-fact."
Jaden M. Lessnick discusses the implications of Brown v. Davenport for federal habeas corpus law, answering two open questions: "[I]f a petitioner satisfies both AEDPA and the Court’s equitable precedents, may a court deny habeas relief regardless, and if so, on what basis?"
Writing on the review of referee decisions in soccer games by Video Assistant Referee (VAR) technology, Eliana Fleischer argues "that different categories of VAR review require distinct standards of review to match the subjectivity of the referee’s decision and the informational asymmetry between the referee and VAR."
Rhemé Sloan discusses the repeal of the OCC's "true lender" rule and evaluates the implications of that repeal, from a consumer protection perspective, for the fintech and lending industries.
Professor Adam S. Zimmerman critiques the Federal Circuit's holding in Skaar v. McDonough that the Veterans Court's 2020 class action rule allowed as class members only those veterans who had exhausted the appeals process at the VA at the time of class certification.
Gabrielle Dohmen argues that when analyzing Title VII anti-retaliation claims after an employee makes a mistake of law, courts should apply a training-based standard that compares the employee's belief to that of a reasonable employee similarly situated in terms of training and experience.
Claire J. Rice surveys state law approaches to establishing probable cause using plain odor and canine sniffs in states that have legalized marijuana, concluding that the Illinois legislature should, first, clarify that marijuana odor cannot serve as the sole basis for probable cause to search a vehicle and, second, ban the use of marijuana-detecting canines.
Narayan Narasimhan argues that the Native American Graves Protection and Repatriation Act's protections for human remains should apply only when there is an ascertainable relationship between those human remains and a presently existing tribe.
Youssef Mohamed summarizes how United States v. Turkiye Halk Bankasi A.S. impacts the law of foreign sovereign immunity as it applies in criminal proceedings, ultimately concluding that, without further input from Congress, courts should defer to executive branch determinations of foreign immunity as manifested by the commencement of criminal proceedings.
So Jung Kim analyzes the impact that the Supreme Court's decision in FTC v. AMG will have on the FTC's ability to obtain equitable monetary relief for those harmed by deceptive or unfair business practices.
Alessandro Clark-Ansani applies the equal protection analysis in United States v. Carrillo-Lopez to federal marijuana laws, concluding that courts should find such laws to be an unconstitutional violation of the Equal Protection Clause because of their racially discriminatory intent.
Laura Geary surveys recent state laws that regulate the use of commercial genetic databases by law enforcement, concluding that states should be cautious about adopting laws that require law enforcement officers to use government genetic databases before commercial ones.
Responding to Elon Musk's proposed acquisition of Twitter, Daphne Keller suggests that "middleware" models, not common carriage rules, best put control over internet speech regulation in the hands of users.
Responding to Elon Musk's proposed acquisition of Twitter, Professors evelyn douek and Genevieve Lakier argue that the Twitter deal is a byproduct, not a driver, of broader ongoing shifts in free speech politics and First Amendment doctrine.
Professors Guha Krishnamurthi and Peter N. Salib analyze state gun use and self-defense laws and provide a framework for understanding when such laws can lead even perfectly rational, well-intentioned actors to engage in escalatory small arms races.
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.
Ryan Fane discusses how securities law should address the theory of insider trading presented in SEC v. Panuwat.
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.
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.
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.
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.
Simon Jacobs analyzes how public nuisance litigation can affect workplace safety in the context of the COVID-19 pandemic.
Caitlan M. Sussman explores whether extradited defendants have standing to challenge their American prosecutions under extradition treaties.
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.
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.
Hans Christoph Grigoleit takes a look at personalized law's procedural consequences for the allocation of functions between the legislature and judiciary.
Gregory Klass argues that personalized law imagines an alternative form of lawmaking, one that presupposes abilities that human lawmakers do not possess.
Catherine M. Sharkey explores the issues which arise in tort law from applying personalized law to standards of care but not damages.
Jared I. Mayer proposes feedback mechanisms as a way to overcome the limitations of personalized standards of care in tort law.
Adam Davidson warns that personalized commands could be shaped and abused by the moral and political judgements of bad actors.
Netta Barak-Corren addresses the effects of personalized law on constitutional rights, personal autonomy, and choice.
Peter N. Salib previews the problems that could arise if personalized law is powered by cutting-edge, artificial intelligence algorithms.
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.
H. Javier Kordi details how personalized law, by avoiding arbitrary age cutoffs, could result in true universal suffrage.
Catalina Goanta argues that personalized law is the modern application of the centuries-old, open-ended norm of good faith.
Cary Coglianese proposes custom and competence as solutions to overcome the challenges facing the implementation of personalized law.
Horst Eidenmüller argues that the best normative justification for personalized law, utility maximization, supports a limited role for personalization in lawmaking.
Felipe Ford Cole details how race played a role in the development of international investment law during the late nineteenth and early twentieth centuries.
Tony Leyh argues that aesthetic injuries suffered by humans provides a legal pathway for granting animals Article III standing.
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.
Lina Dayem analyzes the treatment of state public-speech protection laws in federal diversity suits under the Erie Doctrine.
Zachary Reger examines how the Supreme Court's ruling on faithless electors in Chiafalo v. Washington affects the national popular vote movement.
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.
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.
Alec F. Mouser explores how the Supreme Court's decision in McGirt v. Oklahoma might affect the scope of environmental rights in Indian treaties.
Danny Moreno argues that Title IX provides protections against abstinence-only sex education programs because of their discriminatory intent and impact.
Reagan W. Kapp examines the meaning of "international tribunal" to determine whether federal courts can facilitate discovery in private international arbitration.
Ellen A. Wiencek analyzes how federal courts have responded to plea bargains that waive compassionate release following the First Step Act.
Betsy J. Grey argues nursing homes should be held accountable for failures to use mitigation measures during the COVID-19 pandemic.
Adam Chilton and Mila Versteeg discuss the future of empirical constitutional studies in light of their recent book, "How Constitutional Rights Matter."
Rosalind Dixon and Richard Holden propose that future studies in comparative constitutional law utilize the synthetic control method.
Adi Leibovitch and Alexander Stremitzer argue that abstract lab experiments can play a distinctive role in developing constitutional law theory.
Jerg Gutmann, Mahdi Khesali and Stefan Voigt analyze whether the comprehensibility of a constitution affects its enforcement.
Kevin L. Cope and Charles Crabtree analyze original data on U.S. residents' knowledge of international and constitutional law.
Zachary Elkins looks at the branding of social, cultural, and economic organizations to argue that law and interest groups mutually reinforce each other.
Ran Hirschl and Alexander Hudson posit that powerful groups not only enforce rights but also push for their inclusion in constitutions.
Mark Tushnet comments on the importance of limitations clauses when assessing the substantive reach of constitutional rights.
Tyler B. Lindley dissects the tensions at play in the Supreme Court's doctrines of justiciability and remedies.
Peter N. Salib and Guha Krishnamurthi argue that the impact of vote margins on election litigation and legitimacy provides a rationale for voting.
Margo Schlanger proposes a novel statutory pathway for disability-discrimination damages claims against federal contractors.
Kevin Tobia sets out best practices to guide courts employing corpus linguistics methods in legal interpretation.
Nicholas Hallock shows how the federal diversity-jurisdiction statute can accommodate the modern reality of companies with no physical presence at all.
Jay Clayton argues that the Supreme Court has moved one step closer toward a total refusal to consider method-of-execution challenges.
Alexander C. Meade explains why grand juries should win out in the clash between foreign data privacy laws and U.S. criminal proceedings.
Judge Diane Wood's talent for the oboe reflects her approach to judging and living, writes David Engstrom.
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.
Tejas Narechania remembers Judge Diane Wood's extraordinary humanity as a constant during her 25 years and running on the bench.
Some see the law as a ladder to power. Elizabeth Reese says Judge Diane Wood couldn't see things more differently.
The pandemic has changed how courts operate. Angela Chang examines the pitfalls of remote proceedings—and how courts, parties, and jurors might combat them.
Taiyee Chien and Matthew Reade present a diverse, challenging, and respectful conversation about affirmative action and its future.
What can a debate between two political adversaries in October 1996 teach us about the affirmative-action debate today? Matthew Reade explains.
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.
Richard Sander asks and answers fifteen questions about California's antidiscrimination provisions and their proposed repeal.
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."
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.
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.
Anthony Chen and Lisa Stulberg argue that the diversity rationale for affirmative action originated earlier—and for different reasons—than scholars previously thought.
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.
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.
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.
Daniel E. Ho and Alice Xiang examine the implications of affirmative-action jurisprudence for the future of algorithmic fairness.
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.
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.
Lindsay Milliken details the history of a promising (and forgotten) regulatory avenue for addressing high-skilled labor shortages in the United States.
Paul Finkelman examines Chief Justice John Marshall's personal relationship with slavery in this Essay—the first in a two-part series.
Chief Justice John Marshall consistently sided with slaveowners in slavery cases. Paul Finkelman explains in this second Essay.
Deborah Malamud presents a timely series on the Roberts Court, judicial interpretation, and the future of the administrative state.
Josh Blackman offers his tongue-in-cheek summary of the historic October Term 2019—when the Court decided Seila Law.
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.
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.
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.
Patricia A. McCoy argues that Seila Law puts at risk the longstanding independence of federal financial regulators and, with it, the U.S. economy.
The core disagreement in Seila Law, writes David A. Strauss, was about historical practice and its role in determining what the Constitution requires.
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.
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.
Jonathan Adler argues that Seila Law, like many cases this past term, exemplifies the Roberts Court's conservative minimalism.
Seila Law involved a constitutional puzzle with a straightforward answer. According to Jerry Mashaw, the Court overlooked the missing piece.
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.
Elizabeth Reese contextualizes McGirt v. Oklahoma as a potential game-changer for jurisdictional disputes between the United States and Native American tribes.
Brian Mogck argues that using tax law to threaten police unions' pocketbooks could deliver much-needed policing reforms.
Nicholas H. Cohen and Manoj Viswanathan update their analysis of how large corporations have reacted to President Trump's much-touted tax cuts.
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.
States' efforts to regulate advertising of plant-based products have reduced competition and confused consumers. Daly Brower says federal preemption can solve these problems.
Reid Coleman argues that Congress's impulse to use the judiciary to oversee the executive branch has practical and constitutional flaws.
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.
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.
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.
Miriam George and the University of Chicago Law Review Online present this series on protecting democratic elections and voting rights during pandemic times.
James A. Gardner writes that the coronavirus pandemic is likely to depress voter turnout, posing disturbingly high risks to democratic legitimacy.
A surge in absentee voting is inevitable. Richard H. Pildes offers five steps to make sure the election still works.
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.
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.
During the pandemic, courts have held ballot initiative qualification to a higher standard. Richard L. Hasen asks why.
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.
Judge Michael Hawkins and Matthew Stanford on how Congress should regulate Big Tech.
The president may remove inspectors general when they attempt to go beyond their limited powers.
Why the Court's conservative bloc fractured in one of the most important religion cases this term.
The University of Chicago Law School's International Human Rights Clinic unveils a groundbreaking study on police use of force.
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.
Facebook's new Oversight Board is an unprecedented experiment in content moderation governance. But how will it work—and why does it matter?
Vice President Biden is considering elevating some White House offices to the Cabinet. But this change comes with complications.
President Trump has floated the possibility of issuing a quarantine order for New York, New Jersey, and Connecticut. But is this even legal?
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.
Section Two of the Fourteenth Amendment could provide a powerful protection to voting rights. But its risks outweigh its rewards.
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
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.
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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 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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Profs. Adriana Z. Robertson and Sarath Sanga argue "that an ESG fund must establish a consistent link among the fund’s stated ESG purpose, its ESG investing strategy, and—crucially—the portfolio-level ESG metric." Then, the authors "propose a practical approach to constructing portfolio-level ESG metrics and explain how, in light of [that] analysis, ESG fund managers and the SEC should act."