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The University of Chicago Law Review

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In Memoriam: Antonin Scalia (1936–2016)

In memory of Justice Antonin Scalia, the editors of The University of Chicago Law Review are republishing five pieces related to Scalia in an online collection. Three of these pieces were written by Scalia himself; the other pieces were written about him and in response to his writings. All of the pieces illuminate Scalia’s intellectual contributions and legal influence.

New Issue! Volume 83.2 Is Now Live!

Check out the newest edition of The University of Chicago Law Review on our "Issues" page or by clicking here!

The Statutory Case against Off-Label Promotion

Nathan Cortez

One of the most vexing problems in drug and device regulation is “off-label” promotion--when a company markets uses for a product that have not been approved by the US Food and Drug Administration (FDA). Off-label use can range from conspicuous (prescribing a product for an unapproved medical condition or patient group) to more subtle (prescribing beyond the approved dosage, duration, or any other parameter set forth in the approved labeling). The challenge posed by off-label promotion derives from a well-established dichotomy: the FDA has jurisdiction to regulate manufacturers and the claims they make about their products, but has no jurisdiction to regulate the practice of medicine or physicians’ prescribing behavior. This dichotomy not only creates the temptation for companies to promote off-label uses, but also creates a regulatory conundrum for the FDA.

83 U Chi L Rev Online 124 (2016) [Essay PDF]

* * *

Safety First? The Deceptive Allure of Full Reserve Banking

Morgan Ricks

In Safe Banking, Professor Adam Levitin joins a venerable tradition in the money and banking literature. That tradition, called full reserve banking, has claimed a number of illustrious supporters over the years, including Professors Irving Fisher, Henry Simons, and Milton Friedman. The basic idea of full reserve banking is seductive in its simplicity: “banks” should own nothing but physical cash. Because a full reserve bank has no investments, it can suffer no investment losses. A run on such a bank would be harmless, because the bank would never fail to meet redemptions (barring any loss or theft of cash). The process of bank money creation, familiar to any student of Economics 101, would go away. Money creation would be exclusively a government affair; “banks” would be pass-through vehicles, true depositories of currency. Our elaborate system of prudential bank regulation and supervision would be needless.

83 U Chi L Rev Online 97 (2016) [Essay PDF]

A Response to Adam J. Levitin, Safe Banking: Finance and Democracy, 83 U Chi L Rev 357 (2016) [Article PDF]

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Incidental Burdens and the Nature of Judicial Review

Michael C. Dorf

Professors Joseph Blocher and Darrell Miller deserve enor­mous credit for identifying a heretofore largely unrecognized problem. They explain that common-law doctrines and general statutes that are not instances of conventional gun control can nonetheless be applied in ways that limit the freedom to own, pos­sess, and use firearms. They ask: “Does the Second Amendment apply to civil suits for trespass, negligence, and nuisance? Does the Amendment cover gun-neutral laws of general applicability like assault and disturbing the peace?” More broadly, should the application of such doctrines and laws trigger Second Amendment scrutiny? Blocher and Miller offer a framework for thinking about an important set of unresolved questions.

This Essay has three goals of its own. Part I is a compliment disguised as a quibble. In responding to Blocher and Miller’s char­acterization of my own analysis of incidental burdens, I note that their article is an important contribution to the literature on the Second Amendment as a whole, not just incidental burdens thereon. Part II notes an important distinction between other rights that might be incidentally burdened by general laws—es­pecially speech, religion, and equal protection—and the Second Amendment right to own, possess, and use firearms. Each of the former has a strong equality component. That difference might lead one to conclude that direct burdens on these other rights ought to trigger greater scrutiny than direct burdens on Second Amendment rights. Part III explains how Blocher and Miller have identified what ought to be, but is not yet, a central concern of jurisprudence: when and how to pick out a particular legal ob­ligation from the entire legal corpus and call that particular ob­ligation a distinct law.

83 U Chi L Rev Online 97 (2016) [Essay PDF]

A Response to Joseph Blocher and Darrell A.H. Miller, What Is Gun Control? Direct Burdens, Incidental Burdens, and the Boundaries of the Second Amendment, 83 U Chi L Rev 295 (2016) [Article PDF]

The University of Chicago Law Review Online


Presidential Politics and the 113th Justice


   Amy Howe
   83 U Chi L Rev Online 1

The West Wing, the Senate, and "The Supremes" (Redux)

   Lisa McElroy
   83 U Chi L Rev Online 8

Restoring the Lost Confirmation

   Randy E. Barnett & Josh Blackman
   83 U Chi L Rev Online 18

The Constitutional Propriety of Ideological "Litmus Tests" for Judicial Appointments

   Michael Stokes Paulsen
   83 U Chi L Rev Online 28

The Fight for Equal Protection: Reconstruction-Redemption Redux

   Kermit Roosevelt III & Patricia Stottlemyer
   83 U Chi L Rev Online 36

The 2016 Election, the Supreme Court, and Racial Justice

   Erwin Chemerinsky
   83 U Chi L Rev Online 49

Justice Scalia, the 2016 Presidential Election, and the Future of Church-State Relations

   Marci A. Hamilton
   83 U Chi L Rev Online 61

Donald Trump and Other Agents of Constitutional Change

   Michael C. Dorf
   83 U Chi L Rev Online 72