Valena Beety and Brandon Garrett present a timely series at the intersection of criminal justice and the coronavirus pandemic.
Taiyee Chien and Matthew Reade present a diverse, challenging, and respectful conversation about affirmative action and its future.
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.
Deborah Malamud presents a timely series on the Roberts Court, judicial interpretation, and the future of the administrative state.
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.
The pandemic has changed how courts operate. Angela Chang examines the pitfalls of remote proceedings—and how courts, parties, and jurors might combat them.
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 whether and how universities might harness machine learning to effect affirmative action.
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.
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.
Seila Law involved a constitutional puzzle with a straightforward answer. According to Jerry Mashaw, the Court overlooked the missing piece.
Jonathan Adler argues that Seila Law, like many cases this past term, exemplifies the Roberts Court's conservative minimalism.
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.
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.
The core disagreement in Seila Law, writes David A. Strauss, was about historical practice and its role in determining what the Constitution requires.
Patricia A. McCoy argues that Seila Law puts at risk the longstanding independence of federal financial regulators and, with it, the U.S. economy.
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.
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.
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.
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.
During the pandemic, courts have held ballot initiative qualification to a higher standard. Richard L. Hasen asks why.
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.
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
Sharon Dolovich explores how the criminal justice system has responded—or not—to COVID-19 in America's prisons.
Maybell Romero argues that the pandemic has shown, more clearly than ever, why police should be treated as a disease vector.
Valena E. Beety explains how courts might deploy an obscure but powerful equitable tool to release the dual pressures of pandemic and social turmoil.
Deniz Ariturk, William E. Crozier, and Brandon L. Garrett survey the transformation wrought by virtual court proceedings.
Pamela Metzger and Gregory Guggenmos show how rural communities have long struggled with the distance, scale, and scarcity that the pandemic has now brought to more populous places.
Barry Friedman and Robin Tholin argue that restraining the pandemic will require judicious application of government power.
Jennifer Oliva examines how the pandemic has disrupted access to opioid treatment—and for some more than others.
Why do people confess to crimes they didn't commit? Host Taiyee Chien and guest Professor Richard A. Leo (U. San Francisco Law) explore this difficult and persistent psychological phenomenon—and how the law can address it going forward.
