Article

Print
Article
Volume 90.4
The Fourth Amendment Without Police
Shawn E. Fields
Assistant Professor of Law, Campbell University School of Law.

I am grateful for conversations and discussion at the 2021 Southeastern Association of Law Schools Conference, at which I received helpful input from Cynthia Alkon, Mitch Crusto, Raff Donelson, Jancy Hoeffel, Nicole Iannarone, Christopher Lund, Carla Reyes, Daniel Schaffa, Kate Sneddon, Neil Sobol, Scott Sundby, Anna VanCleave, and Howard Wasserman. I also received enormously helpful comments and feedback from Dwight Aarons, Kristen Bell, Zac Bolitho, Bobbi Jo Boyd, Marcus Gadson, Tony Ghiotto, Noël Harlow, Orin Kerr, Cortney Lollar, and Gustavo Ribeiro. All errors are my own.

What role will the Fourth Amendment play in a world without police? As academics, activists, and lawmakers explore alternatives to traditional law enforcement, it bears asking whether the amendment primarily tasked with regulating police investigations would also regulate postpolice public safety agencies. Surprisingly, the answer is often no. Courts are reluctant to recognize protections from government searches or seizures outside criminal investigations, and they are even more reluctant to require probable cause or a warrant for such conduct. Thus, by removing most public safety functions outside the criminal sphere, abolitionists also move intrusive government conduct outside these traditional strictures and guardrails. This Article provides the first sustained evaluation of the Fourth Amendment’s limited role in a postpolice world and examines the implications of this reality.

Print
Article
Volume 90.4
Regulatory Trading
David A. Weisbach
Walter J. Blum Professor of Law, University of Chicago Law School.

Send comments to d-weisbach@uchicago.edu. I am thankful for Jen Nou and Mark Templeton for discussions and the many valuable comments from workshops at the University of Chicago Law School and Washington University Law School. Special thanks to Richard Sandor for allowing me to participate in his class at the University of Chicago Law School, The Law and Economics of Natural Resource Markets.

Regulatory trading systems, such as the SO2 cap-and-trade system, are ubiquitous in environmental and natural resources law. In addition to cap-and-trade systems for pollutants such as SO2, NOx, and CO2, environmental and natural resources law uses trading in areas such as endangered species, water quality, wetlands, vehicle mileage, and forestry and farming practices. Trading, however, is rarely used as a regulatory approach in other areas of law. This Article seeks to identify the reasons for this dichotomy. To understand the dichotomy, the Article examines the uses of trading in environmental and natural resources law, where it has been successful, and where problems have arisen, including hot spots problems, environmental justice problems, measurement problems, and moral problems with the use of markets. It then considers the possibility of trading in six nonenvironmental areas of law to see whether trading can be helpful, and if not, why not.

Print
Article
Volume 90.3
The Uncertain Judge
Courtney M. Cox
Associate Professor of Law, Fordham University School of Law. D.Phil., University of Oxford; J.D., University of Chicago Law School.

I owe a particular debt of gratitude to David Strauss for his engagement with this project. For generous comments and conversations, I also thank Atinuke Adediran, Aditi Bagchi, Olivia Bailey, Shyamkrishna Balganesh, Pamela Bookman, Andrew Botterell, John Broome, Ruth Chang, Mala Chatterjee, Bruce Cox, Nestor Davidson, Janet Freilich, Caroline Gentile, Abner Greene, Daniel Hemel, Zach Huffman, Clare Huntington, Felipe Jiménez, Brian Lee, Youngjae Lee, Ethan Leib, Brian Leiter, Seth Mayer, Dan Priel, Marcela Prieto, Richard Re, Pamela Samuelson, Steven Schaus, Sepehr Shahshahani, Jeremy Sheff, Seana Shiffrin, Lawrence Solum, Kevin Tobia, Murray Tipping, Ian Weinstein, Maggie Wittlin, Benjamin Zipursky; participants at the Fordham Faculty Workshop, UCLA Legal Theory Workshop, North American Workshop on Private Law Theory, NYC IP Law & Philosophy Workshop, St. John’s Faculty Workshop, UVA Hard Cases Workshop, USC Law & Philosophy Workshop, and Edinburgh Legal Theory Workshop; and my fall 2021 Philosophical Perspectives students. I am grateful for the opportunity to have discussed this project in its early stages with Hon. Sandra L. Lynch and Hon. David J. Barron of the U.S. Court of Appeals for the First Circuit. I am greatly indebted to the Fordham Law Librarians, especially Kelly Leong. For excellent research assistance, I thank my RAs, especially Edward Ernst, Eric Hechler, Jocelyn Lee, Maya Syngal McGrath, Jordan Phelan, Juliann Petkov, M. Ryan Purdy, Eleni Venetos, and Pamela White.

The intellectually honest judge faces a very serious problem about which little has been said. It is this: What should a judge do when she knows all the relevant facts, laws, and theories of adjudication, but still remains uncertain about what she ought to do? Such occasions will arise, for whatever her preferred theory about how she ought to decide a given case—what I will call her preferred “jurisprudence”— she may harbor lingering doubts that a competing jurisprudence is correct instead. And sometimes, these competing jurisprudences provide conflicting guidance. When that happens, what should she do?

Print
Article
Volume 90.3
Beyond States: A Constitutional History of Territory, Statehood, and Nation-Building
Craig Green
Professor of Law, Temple University; Ph.D., Princeton University; J.D., Yale Law School.

Many thanks for comments on earlier drafts by Greg Ablavsky, Matthew Adler, Jane Baron, Maggie Blackhawk, Pam Bookman, Kellen Funk, Maeve Glass, Paul Gugliuzza, Dirk Hartog, Kaylin Hawkins, Owen Healy, Margaret Lemos, Jonathan Lipson, Jane Manners, Stephanie McCurry, Gillian Metzger, Henry Monaghan, Andrea Monroe, Christina D. Ponsa-Kraus, Rachel Rebouché, and Neil Siegel. Thanks also to workshop participants at the D’Arcy McNickle Center for American Indian and Indigenous Studies, the Rehnquist Center’s National Conference for Constitutional Law Scholars, and faculty workshops at Columbia Law School and Duke Law School. I am grateful to Cecilia Denhard, Erin Gallagher, Tess Gildea, Daniela Rakhlina-Powsner, Emory Strawn, Mona Vaddiraju, Tessa Valdez, Sarah Zimmerman, and especially Daniel Kilburn for outstanding research assistance.

The United States has always been more than simply a group of united states. The constitutional history of national union and component states is linked to a third category: federal territory. This Article uses an integrated history of territory, statehood, and union to develop a new framework for analyzing constitutional statehood. Three historical periods are crucial—the Founding Era, the Civil War, and Reconstruction—as times when statehood was especially malleable as a matter of constitutional law. During each of those formative periods, the most important constitutional struggles about statehood and the union involved federal territories.

Print
Article
Volume 90.3
Taming Wildcat Stablecoins
Gary B. Gorton
Frederick Frank Class of 1954 Professor of Finance at the Yale School of Management.
Jeffery Y. Zhang
Assistant Professor at the University of Michigan Law School.

The authors thank Michelle Tong for excellent research assistance as well as Jordan Bleicher, Lucy Chang, Jess Cheng, Randall Guynn, Howell Jackson, Jeremy Kress, Timothy Massad, Jai Massari, Bill Nelson, Mark Pocock, Mark Van Der Weide, David Warsh, and Evan Winerman for their suggestions. In addition, the authors thank the editors of the University of Chicago Law Review—Connie Gong, Adrian Ivashkiv, Annie Kors, Gabrielle Dohmen, Josh Leopold, Mario Ramirez, Burke Snowden, and Daniel Landy—for their thoughtful feedback and edits. Finally, the authors are grateful for discussions with seminar participants at Columbia Law School, the Northwestern Pritzker School of Law, the University of Chicago Law School, the University of Michigan Law School, the Wharton School of the University of Pennsylvania, the Council of Economic Advisers, and the Office of the Comptroller of the Currency.

While the technology underlying cryptocurrencies is new, the economics is centuries old. Oftentimes, lawmakers are so focused on understanding a new technological innovation that they fail to ask what exactly is being created. In this case, the new technology has recreated circulating private money in the form of stablecoins, which are similar to the banknotes that circulated in many countries during the nineteenth century. The implication is that stablecoin issuers are unregulated banks. Based on lessons learned from economic theory and financial history, we argue that circulating private money is not an effective medium of exchange because it is not always accepted at par and its issuers are vulnerable to destabilizing bank runs.

Print
Article
Volume 90.3
In Defense of Chapter 11 for Mass Torts
Anthony J. Casey
Anthony J. Casey is the Donald M. Ephraim Professor of Law and Economics at the University of Chicago Law School, and Faculty Director of the Center on Law and Finance. In the interest of disclosure, Casey has worked as a consultant in one of the matters discussed in this Essay: Casey was retained by a law firm representing various plaintiffs with claims against 3M Company and its affiliates.
Joshua C. Macey
Joshua C. Macey is Assistant Professor at the University of Chicago Law School.

This research is funded by the Becker Friedman Institute at the University of Chicago. The Richard Weil Faculty Research Fund and the Paul H. Leffmann Fund also provided generous support. We thank Adam Badawi, Douglas Baird, Vince Buccola, Zach Clopton, Judge Robert Drain, Jared Elias, Michael Francus, Abbe Gluck, Brook Gotberg, William Hubbard, Alexandra Lahav, Jonathan Lipson, Jonathan Macey, Eric Posner, Adriana Robertson, Jonathan Seymour, Zenichi Shishido, Robert Stark, and Wataru Tanaka for helpful comments. We also thank Arielle Ambra-Juarez, Avery Broome, Ryan Fane, Rachel Kessler, Virginia Robinson, and Dania Siddiqi for their excellent research assistance.

This Essay argues that bankruptcy proceedings are well-suited to resolving mass tort claims. Mass tort cases create a collective action problem that encourages claimants who are worried about available recoveries to race to the courthouse to collect ahead of others. This race can destroy going concern value and lead to the dismemberment of valuable firms. Coordination among claimants is difficult as each one seeks to maximize its own recoveries. These are the very collective action and holdout problems that bankruptcy proceedings are designed to solve. As such, bankruptcy proceedings are appropriate means of resolving mass torts as long as they leave tort victims no worse off than they would have otherwise been.

Print
Article
Volume 89.8
Against Bankruptcy Exceptionalism
Jonathan M. Seymour
Associate Professor, Duke University School of Law.

I thank Douglas Baird, Stuart Benjamin, Elisabeth DeFontenay, Deborah DeMott, Craig Goldblatt, Melissa Jacoby, Margaret Lemos, Adam Levitin, Joshua Macey, Troy McKenzie, John Pottow, and Steven L. Schwarcz, as well as participants in two early-stage discussion groups at Duke Law School, and at the Global Bankruptcy Scholars Workshop at Brooklyn Law School, for helpful comments and feedback. I am also grateful to Wenxin Lu, Leping Sun, and Andrew O’Shaughnessy for valuable research assistance. I was first immersed in the issues discussed in this article while practicing as a bankruptcy litigator. In the interest of disclosure, I note that I was among counsel in two of the Supreme Court cases I discuss in this article: Harris v. Viegelahn, 575 U.S. 510 (2015) (representing the respondent), and Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973 (2017) (representing petitioners). I also assisted with my then–law firm’s representation of petitioners in both Mission Product Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652 (2019), and City of Chicago v. Fulton, 141 S. Ct. 585 (2021). The views expressed in this Article are, of course, my own.

Within the world of bankruptcy, in other words, it is commonly understood that bankruptcy is a special field that requires an exceptional approach—one rooted in the norms, commitments, and assumptions that underlie the values of the bankruptcy community. I examine this disjunction and consider whether there is any principled justification for bankruptcy exceptionalism. I explain the sources of the disjunction and show how the bankruptcy courts’ exceptional approach has driven outcomes in the ongoing Purdue Pharma opioid crisis bankruptcy saga and other hotly contested and socially consequential cases. I conclude that there are many singular aspects of bankruptcy but none that justify treating it specially. Bankruptcy is distinctive, but it is not exceptional.

Print
Article
Volume 90.2
Introduction to the Symposium on Labor Market Power
Eric A. Posner
Kirkland & Ellis Distinguished Service Professor of Law.

Many thanks to Matt Dimick, Cynthia Estlund, Ioana Marinescu, Sanjukta Paul, Steve Salop, and Marshall Steinbaum for helpful comments.

The University of Chicago Law Review convened a symposium to bring together scholars from various disciplines and with different subject matter expertise but with a common interest in understanding the regulation of labor markets in light of new empirical results.

Print
Article
Volume 90.2
Antitrust Worker Protections: The Rule of Reason Does Not Allow Counting of Out-of-Market Benefits
Laura Alexander
Director of Markets & Competition Policy, Washington Center for Equitable Growth.
Steven C. Salop
Professor (Emeritus) of Economics & Law, Georgetown University Law Center and Senior Consultant, Charles River Associates.

The views expressed in this Essay are our own and may not reflect the views of our colleagues, consulting clients, WCEG, or its advisors or sponsors. We are grateful for helpful comments from Dennis Carlton, Daniel Francis, Scott Hemphill, Jon Jacobson, Tom Krattenmaker, Mark Lemley, Doug Melamed, Eric Posner, and Randy Stutz, and research assistance of Tessa Griego. All errors are our own.

Anticompetitive conduct toward upstream trading partners may have the effect of benefiting downstream consumers even as the conduct harms the firms’ workers or suppliers. Defendants may attempt to justify their upstream conduct—and may rely on the ancillary restraints doctrine in doing so—on the grounds that the restraints create efficiencies benefitting downstream purchasers, rather than focusing solely on the impact of the restraints on the workers or suppliers in the upstream market. Such balancing of harms against out-of-market benefits achieved by a different group should be rejected by antitrust doctrine generally, and specifically in the case of harms to workers.

Print
Article
Volume 90.2
Labor Market Concentration and Competition Policy Across the Atlantic
Satoshi Araki
Junior Economist, Jobs and Income Division, Organisation for Economic Cooperation and Development.
Andrea Bassanini
Senior Economist, Jobs and Income Division, Organisation for Economic Cooperation and Development, and Research Fellow, IZA.
Andrew Green
Economist, Skills and Employability Division, Organisation for Economic Cooperation and Development.
Luca Marcolin
Economist, Skills and Employability Division, Organisation for Economic Cooperation and Development, and KU Leuven.
Cristina Volpin
Competition Expert, Competition Division, Organisation for Economic Cooperation and Development.

This Essay expresses the personal views of the authors. It does not necessarily reflect the official views of the Organisation for Economic Co-operation and Development or any of its Member Countries. The authors are grateful to the participants of the 2022 University of Chicago Law Review Symposium on Law and Labor Market Power for comments and suggestions.

Drawing upon data from the largest cross-country study of labor market concentration to date, this Essay analyzes the level of concentration of labor-input markets in Europe and North America and provides a comparative perspective on employers’ monopsony power. It explores the characteristics of monopsony in labor markets and documents its impact by looking at the magnitude of employer concentration in selected jurisdictions.

Volumes