Print Archive | The University of Chicago Law Review

Essay

86 Special

C. Scott Hemphill

Professor of Law, New York University School of Law.

I thank Harry First, Eleanor Fox, Bert Huang, Jon Jacobson, Saul Levmore, and Tim Wu for helpful comments. Alex Gelb, Tim Keegan, Alison Perry, and Phantila Phataraprasit provided outstanding research assistance.

This Essay considers the influence of Richard Posner’s judicial opinions about antitrust law.

Article

86 Special

Unlikely Resurrection: Richard Posner, Promissory Estoppel, and The Death of Contract

Douglas G. Baird

Harry A. Bigelow Distinguished Service Professor, The University of Chicago Law School

I thank Saul Levmore for his thoughtful comments. The Frank Greenberg Fund provided generous research support for this Essay.

Many of Richard Posner’s opinions boldly confront great questions. But equally important are those that, in the aggregate, illuminate discrete areas of the law and make them easier to understand.

Article

86 Special

Foreword

Lawrence Lessig

Roy L. Furman Professor of Law and Leadership, Harvard Law School

Richard Posner is the most prolific federal judge and academic in the history of American law.

Comment

86.4

The Underlying Underwriter: An Analysis of the Spotify Direct Listing

Benjamin J. Nickerson

AB 2015, The University of Chicago; JD Candidate 2020, The University ofChicago Law School.

I wish to thank Nicholas B. Aeppel, Douglas G. Baird, William A. Birdthistle, Anthony J. Casey, Ryan D. Doerfler, Thomas J. Miles, and the editors of The University of Chicago Law Review for their thoughtful guidance and advice.

On April 3, 2018, global music streaming company Spotify Technology S.A. (Spotify) went public through a direct listing of its ordinary shares on the New York Stock Exchange (NYSE). Rather than raise money by issuing new shares to the public through a traditional initial public offering (IPO), Spotify made its existing shares available for purchase on the public exchange through the seldom-utilized direct listing process.

Comment

86.4

Partially Tribal Land: The Case for Limiting State Eminent Domain Power under 25 USC § 357

Addison W. Bennett

BA 2016, Skidmore College; JD Candidate 2020, The University of Chicago Law School.

When a state government pursues a utility project, utility lines must often cross land owned by private individuals. Though the state’s power to condemn property is ordinarily sufficient to allow the government to construct such a line through the property, special difficulty emerges when the utility lines are to cross tribal lands.

Article

86.4

Religious Accommodation, the Establishment Clause, and Third-Party Harm

Mark Storslee

Executive Director, Stanford Constitutional Law Center.

Thanks to Stephanie Barclay, William Baude, Thomas Berg, Samuel Bray, Jud Campbell, Nathan Chapman, Nora Freeman Engstrom, Carl Esbeck, Richard Garnett, Stephanie Inks, Mark Kelman, Andrew Koppelman, Douglas Laycock, Christopher Lund, Ira Lupu, William Marshall, Michael McConnell, Chloe Moon, Douglas NeJaime, Jane Schacter, Geoffrey Sigalet, Lance Sorenson, Charles Tyler, Robin Fretwell Wilson, and participants in the Stanford Law School Fellows Workshop and the Annual Law and Religion Roundtable for helpful conversations and feedback on earlier drafts. Special thanks are also due to Frederick Mark Gedicks, Micah Schwartzman, and Nelson Tebbe for their generosity and for helpful conversations about this topic and others. All errors, of course, are my own.

We occupy a unique moment in the story of American religious liberty. During the Founding period and for much of the twentieth century, it was widely accepted that religious accommodation—the practice of sometimes exempting religious individuals or groups from burdensome laws—was a desirable means of protecting free exercise. But as a matter of cultural consensus, that agreement seems to be quickly unraveling or at least entering a new period of uncertainty.

Article

86.4

The Logic and Limits of Municipal Bankruptcy Law

Vincent S.J. Buccola

Assistant Professor, The Wharton School of the University of Pennsylvania.

Thanks to Douglas Baird, Allison Buccola, Steve Buccola, Laura Coordes, Brian Hathaway, Rich Hynes, Juliet Moringiello, Eric Rasmusen, David Schleicher, and David Skeel for extensive comments on earlier drafts; and to Joe Gyourko and Bob Inman for generative conversations. Thanks also to participants in workshops at Wharton and the Indiana University Kelley School of Business. Dorinda and Mark Winkelman provided valuable research support.

Cities and towns across the country face debt burdens of a magnitude not seen since the Great Depression. Four of the five largest municipal bankruptcies in history have been filed in the last decade, and more are bound to come.

Article

86.3

The Failure of Mixed-Motives Jurisprudence

Andrew Verstein

Associate Professor of Law, Wake Forest University School of Law.

For helpful comments, I am grateful to Jessica Clarke, Brandon Garrett, Mike Green, Aziz Huq, Martha Nussbaum, Eric Posner, Sean P. Sullivan, David Super, Matthew C. Stephenson, Gabriel Rauterberg, Ron Wright, the participants in the Brooklyn Law School Faculty Workshop, the George Mason Faculty Workshop, and the Yale/Stanford/Harvard Junior Faculty Forum. Andrew Homer and Abby Jacobs provided helpful research assistance.

How should we judge people who act for both good and bad motives?

Article

86.3

Enacted Legislative Findings and Purposes

Jarrod Shobe

Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University.

Thanks to Michael Herz, Ethan Leib, Victoria Nourse, Bill Eskridge, Rachel Barkow, Jim Brudney, Peter Strauss, Abbe Gluck, Jesse Cross, Maggie Lemos, Evan Zoldan, Bill Buzbee, Josh Chafetz, Daphna Renan, Paul Stancil, Aaron Nielson, participants at the Legislation Roundtable at Fordham University, the J. Reuben Clark Law Society Workshop, and BYU law faculty workshop for helpful comments on earlier drafts. For excellent research assistance I am grateful to Trevor Nielson, Bonnie Stohel, Eric Abram, Katie Ellis, and Laura Hunt. I am especially grateful for the assistance of Shawn Nevers for help with many of the empirical aspects of this project.

Whether judges should consider legislative history is the most hotly debated issue in statutory interpretation.

Essay

86.3

Inversion Aversion

Lee Anne Fennell

Max Pam Professor of Law, The University of Chicago Law School. I am grateful for research support from the Harold J. Green Faculty Fund and the SNR Denton Fund.

For conversations about this Essay, we thank Anupam Chander, Victor Fleischer, Jerry Frug, Calvin Johnson, Michael Knoll, Steven Medema, Richard Schragger,Sloan Speck, Andrew Verstein, and participants in the Harvard Law School conference Celebrating Jerry Frug’s Work on Cities. We also thank Reeves Jordan for excellent research assistance. An earlier, longer draft of this Essay circulated under the title Inverted Theoriesand remains available on Chicago Unbound at http://perma.cc/XB7Q-TXYE.

Richard H. McAdams

Deputy Dean and Bernard D. Meltzer Professor of Law, The University of Chicago Law School.

Some objects, like Weebles and lawn darts, resist inversion. The same is true of certain popular legal theories—or so we argue.

Article

86.3

Testing for Trademark Dilution in Court and the Lab

Barton Beebe

John M. Desmarais Professor of Intellectual Property Law, New York University School of Law.

The authors thank Jamie Boyle, Chris Buccafusco, Alex Cadmus, Shari Diamond, Michael Frakes, Jeanne Fromer, John Golden, Scott Hemphill, Marco Kleine, Stephan Tontrup, and Deepa Varadarajan; and participants in workshops at the New York UniversitySchool of Law, the Duke University School of Law, the St. John’s University School of Law, the 2017 Intellectual Property Scholars Conference hosted by the Benjamin N. Cardozo School of Law, the 2018 Munich Summer Institute hosted at the Bavarian Academy of Sciences and Humanities, Georgia State University’s J. Mack Robinson College of Business, and the Intellectual Property, Science, and Technology Workshop hosted by the University of Texas at Austin School of Law for helpful comments and conversations. Thanks also to the Filomen D’Agostino and Max E. Greenberg Research Fund for grants that supported this work, and to Ari Lipsitz for excellent research assistance.

Roy Germano

Senior Research Scholar, New York University School of Law.

Christopher Jon Sprigman

Professor of Law, New York University School of Law.

Joel H. Steckel

Professor of Marketing and Vice Dean for Doctoral Education, New York University Stern School of Business.

Trademark dilution is among the most elusive concepts in intellectual property law.

Essay

86.2

Down by Algorithms? Siphoning Rents, Exploiting Biases, and Shaping Preferences: Regulating the Dark Side of Personalized Transactions

Gerhard Wagner

Chair for Private Law, Business Law, and Law and Economics at the Humboldt University in Berlin and Academic Director of Humboldt’s LLM program on International Dispute Resolution

Horst Eidenmüller

Freshfields Professor of Commercial Law at the University of Oxford and Professorial Fellow of St. Hugh’s College, Oxford.

The rise of big data and artificial intelligence creates novel and unique opportunities for business to consumer (B2C) transactions. Businesses assemble or otherwise gain access to comprehensive sets of data on consumer preferences, behavior, and resources.