The University of Chicago Law Review

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.

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The University of Chicago Law Review Online

Symposium

Presidential Politics and the 113th Justice
 

Introduction

   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

* * * 

Taxes, Subsidies, and Knowledge:
A Reply to Professor Oei

Michael Simkovic

The purpose of The Knowledge Tax is not to assert that the only explanation for underinvestment in higher education is differences in tax treatment and subsidies. Rather, The Knowledge Tax highlights that a simple neoclassical model can explain much of the observed data, and that a simple and underexplored explanation is credibly at least one important driver. An economic model can remove higher education policy from the realm of anecdotes and narrow interest group politics, and situate higher education in broader conversations about efficiency (relative to alternatives), investment, and economic growth.

As Professor Shu-Yi Oei’s response highlights, even demonstrating that higher education is at a disadvantage relative to other investments would be a substantial contribution to the scholarly literature. Demonstrating such a disadvantage would shift the policy question from whether we should subsidize higher education to how we should counter anti-education policies embedded in the tax system. Particular taxes and subsidies can best be understood within a broader context.

83 U Chi L Rev Online 82 [Essay PDF]

Is Abood Irrelevant?

Daniel Hemel and David Louk

In this Essay, we compare and contrast the basic features of the agency shop arrangement and the direct payment alternative, and we consider the constitutional, economic, and political factors that might lead state and local governments and public sector unions to choose one approach over the other. On first glance, the direct payment alternative appears to be the more advantageous approach for all parties involved: state and local governments, employees, and unions. Thus the puzzle: Why does the agency shop approach persist today? We present several hypotheses drawn from behavioral economics and political psychology—and, in particular, from the emerging literature on the salience of taxes and fees—that might explain why employers and unions would opt for agency shop arrangements despite the apparent advantages of the direct payment alternative. We conclude by considering the practical consequences of a possible Supreme Court decision overruling Abood.

82 U Chi L Rev Dialogue 227 [Essay PDF]

Intermediary Influence and Competition: Berkshire versus KKR

Lawrence A. Cunningham

The American financial services industry employs innumerable intermediaries working for investors and savers, such as accountants, advisors, agents, bankers, brokers, consultants, directors, funds, lawyers, managers, and rating agencies. They charge considerable fees to facilitate exchanges by easing searches and synthesizing or validating complex information. Their influence has been studied from numerous perspectives, including behavioral finance, industrial economics, and public-choice theory. Such treatments illuminate why financial intermediaries exist, what value they add, and what costs they impose, from the perspective of how clients act, how market structures work, and how laws and policies are formulated.

82 U Chi L Rev Dialogue 177 [Essay PDF]

A Response to Kathryn Judge, Intermediary Influence, 82 U Chi L Rev 573 (2015). [Article PDF]

* * *

The University of Chicago Law Review Dialogue

Online Symposium

Grassroots Innovation & Regulatory Adaptation

Food Trucks, Incremental Innovation, and Regulatory Ruts

Beth Kregor

Regulating the Underground: Secret Supper Clubs, Pop-Up Restaurants, and the Role of Law

Sarah Schindler

The Political Economy of Crowdsourcing: Markets for Labor, Rewards, and Securities 

Richard A. Epstein

A Conceptual Framework for the Regulation of Cryptocurrencies

Omri Marian

Tax Regulation, Transportation Innovation, and the Sharing Economy

Jordan M. Barry & Paul L. Caron

The Social Costs of Uber

Brishen Rogers

Airbnb: A Case Study in Occupancy Regulation and Taxation

Roberta A. Kaplan & Michael L. Nadler

Self-Regulation and Innovation in the Peer-to-Peer Sharing Economy

Molly Cohen & Arun Sundararajan

* * *

The Habeas Optimist

Lee Kovarsky

For those who believe that legal rules are supposed to predictably map events onto outcomes, federal postconviction law is a frustrating mess. Most of those who try to make sense of it end up with some variant of a pretty cynical model: if the claimant is an inmate convicted in state court, then federal relief is unavailable. Some of us, however, remain cautiously receptive to theories that high-court habeas outcomes express a more complex function. In Habeas and the Roberts Court, Professor Aziz Huq establishes himself as the field’s foremost academic optimist.

81 U Chi L Rev Dialogue 108 [Essay PDF]

A response to 81 U Chi L Rev 519 [Article PDF]

Inter Partes Review: An Early Look at the Numbers

Brian J. Love and Shawn Ambwani

In the roughly two years since inter partes review (IPR) replaced  inter partes reexamination, petitioners have filed almost two thousand requests for the Patent Trial and Appeal Board (PTAB) to review the validity of issued US patents. As partial data on IPR has trickled out via the blogosphere, interest from patent practitioners and judges has grown to a fever (and sometimes fevered) pitch. To date, however, no commentator has collected a comprehensive set of statistics on IPR. Moreover, what little data currently exists focuses on overall institution and invalidation rates—data that, alone, gives us little idea whether IPR is thus far accomplishing its original goal of serving as an efficient alternative to defending patent suits filed in federal court, particularly those initiated by nonpracticing entities (NPEs).

81 U Chi L Rev Dialogue 93 [Essay PDF]