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?
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.
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.
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.
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.
At the beginning of 2022, there were 196,714 affirmative asylum claims pending, and many applicants have waited in a state of legal limbo for over five years to receive a decision on their claim. To escape the indefinite queue, some have started bringing claims of unreasonable delay under the Administrative Procedure Act (APA) to federal courts. Because there are groups of asylum seekers who may be especially harmed by multiyear delays in adjudication, this Comment undertakes two separate but related tasks. First, it assesses whether the avenue for relief available to advocates and asylum seekers—federal court litigation—is actually viable for its purported ends. This Comment concludes that it is not. Second, it proposes a novel agency-side adjudicative mechanism, implemented through artificial intelligence technology, to more adequately provide reliable relief to especially vulnerable asylum seekers.
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.
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.
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.
Not long ago, economists denied the existence of monopsony in labor markets. Today, scholars are talking about using antitrust law to counter employer wage-setting power. While concerns about inequality, stagnant wages, and excessive firm power are certainly to be welcomed, this sudden about-face in theory, evidence, and policy runs the risk of overlooking some important concerns.
Workers’ labor market power matters enormously to their lives at work and beyond. And most workers have too little of it. This Essay highlights one underappreciated set of factors in the decline of workers’ labor market power and explores policy levers that might help to rebalance the bargaining field.
Due to a lack of competition among employers in the labor market, employers have monopsony power, or power to pay workers less than what the workers contribute to the employers’ bottom line. “Worker power” is workers’ ability to obtain higher wages and better working conditions.