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Essay
Volume 90.1
Stakeholderism Silo Busting
Aneil Kovvali
Associate Professor, Indiana University Maurer School of Law.

I thank Douglas Baird, Sarah Light, Joshua Macey, and Elizabeth Pollman for helpful comments and conversations.

The fields of antitrust, bankruptcy, corporate, and securities law are undergoing tumultuous debates. On one side in each field is the dominant view that each field should focus exclusively on a specific constituency—antitrust on consumers, bankruptcy on creditors, corporate law on shareholders, and securities regulation on financial investors. On the other side is a growing insurgency that seeks to broaden the focus to a larger set of stakeholders, including workers, the environment, and political communities. But these conversations have largely proceeded in parallel, with each debate unfolding within the framework and literature of a single field. 

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Comment
Volume 89.8
“Contrary to Law”: Determining the Scope of Qualifying Predicate Offenses for 18 U.S.C. § 545
Arjun Prakash
B.A. 2019, Yale University; J.D. Candidate 2023, The University of Chicago Law School.

I would like to thank my family for their constant and unwavering support. Also, thank you to Professor Adam Chilton and the editors of the University of Chicago Law Review for their help and advice. 

This Comment seeks to resolve an ongoing dispute among courts regarding the correct interpretation of “contrary to law” in 18 U.S.C. § 545, a statute that criminalizes the unlawful importation of goods. In particular, courts disagree about whether “contrary to law” includes administrative regulatory violations, which would massively expand the applicability of § 545’s severe criminal penalties.

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Comment
v90.4
Here’s Your Number, Now Please Wait in Line: The Asylum Backlog, Federal Court Litigation, and Artificial Intelligence in Agency Adjudication
Youssef Mohamed
B.A. 2019, The Florida State University; J.D. Candidate 2023, The University of Chicago Law School.

أولاً†الحمد†لله†و†ثانيا†الحمد†لله†—I owe a debt of gratitude to Professor Jennifer Nou for pushing me and this piece to ask bigger questions. I would also like to thank Lauren Dunn, Dylan Salzman, Virginia Robinson, Brian Bornhoft, and the University of Chicago Law Review editors for their patience, hard work, and insights.

The U.N. High Commissioner for Refugees has estimated that, by the end of June 2021, there were nearly 4.4 million pending asylum applications worldwide. Many asylum seekers suffer heinous abuses in both the countries from which they flee and the countries through which they travel to reach sanctuary.

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Article
v90.4
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. 

 

 

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Comment
Volume 89.8
State Policy in Federal Courts: Stabilizing the Burford Abstention Doctrine
Virginia Robinson
B.S. 2012, Auburn University; B.A. 2012, Auburn University; J.D. Candidate 2023, The University of Chicago Law School.

I would like to thank Professor Bridget Fahey and the editors and staff of the University of Chicago Law Review for their thoughtful advice and insight. 

The federal abstention doctrines govern the narrow circumstances under which a district court can decline to hear a case even though it has proper jurisdiction. One of those doctrines—Burford abstention—has generated a morass of confusion over when it applies and what goals it is meant to achieve. To find a way out of the morass, this Comment looks at contemporaneous developments in doctrines of federal court review—and at the procedural history of Burford itself—to pinpoint the precise problem that Burford abstention was created to solve.

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Comment
Volume 89.8
The Right to Exclude: People, Animals, and Pollution
Ariana Vaisey
B.A. 2017, The University of North Carolina at Chapel Hill; J.D. Candidate 2023, The University of Chicago Law School.

I would like to thank Professor Lior Strahilevitz and the editors and staff of the University of Chicago Law Review for their advice. 

The Supreme Court has deemed the right to exclude one of the most fundamental property rights. Accordingly, the Court has offered the right to exclude heightened protection under the Takings Clause. However, the Court has left significant uncertainty about the scope of the right to exclude that is protected under takings doctrine. For instance, does the Takings Clause require compensation if the government, pursuant to the Comprehensive Environmental Response and Liability Act (CERCLA), requires a landowner to house another party’s pollutants? This Comment draws from property theory and analytical jurisprudence to offer a new approach to takings analyses concerning the right to exclude.

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Article
v90.4
Jurisdiction as Power
Ryan C. Williams
Assistant Professor, Boston College Law School.

My thanks to William Baude, Kevin Clermont, Scott Dodson, Benjamin Eidelson, and Evan Tsen Lee, and to participants at workshops at Boston College Law School and the Seventh Annual Civil Procedure Workshop for helpful comments on earlier drafts.

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Article
Volume 89.7
The Improvised Implementation of Executive Agreements
Kathleen Claussen
Professor, University of Miami School of Law.

Thanks to Pam Bookman, Curt Bradley, Elena Chachko, Nathan Cortez, John Coyle, Evan Criddle, Rebecca Crootof, Bill Dodge, Michael Froomkin, Jean Galbraith, Harlan Cohen, Ben Johnson, Ron Levin, Tim Meyer, David Moore, Sean Murphy, Lisa Ouellette, Steve Ratner, Ryan Sakoda, Matthew Schaefer, Gabriel Scheffler, David Sloss, Brian Soucek, Jim Speta, Matt Spitzer, Paul Stephan, David Super, Ed Swaine, Pierre-Hugues Verdier, Dan Walters, and David Zaring for their feedback on this project. Thanks also to the participants in the ASIL International Law in Domestic Courts Interest Group Workshop, the BYU Law Faculty Workshop, the Columbia Law International Law Colloquium, the George Washington Law Faculty Workshop, the Georgetown Institute of International Economic Law Colloquium, the Junior International Law Scholars Association Annual Meeting, the Miami/FIU Law School Joint Workshop, the New Voices in Administrative Law Scholarship Workshop, and the Richmond Law Junior Scholars Workshop for their comments. I’m grateful to Bianca Anderson, Pam Lucken, and Zachary Tayler for their very helpful research assistance and to the several current and former government officials who spoke with me about this project.

Implementation is at the core of lawmaking in our divided government. A rich literature covers the waterfront with respect to agencies’ implementation of legislative mandates, and another equally robust line of scholarship considers Congress’s implementation of treaties. Missing from those discussions, however, is another area of implementation central to U.S. foreign relations: the implementation of transnational regulatory agreements. This Article examines how federal agencies have harnessed far-reaching discretion from Congress on whether and how to implement thousands of international agreements.

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Article
Volume 89.7
Jurisdiction as Power
Ryan C. Williams
Assistant Professor, Boston College Law School.

My thanks to William Baude, Kevin Clermont, Scott Dodson, Benjamin Eidelson, and Evan Tsen Lee, and to partici- pants at workshops at Boston College Law School and the Seventh Annual Civil Procedure Workshop for helpful comments on earlier drafts.

For centuries, courts and legal commentators defined “jurisdiction” by reference to a court’s “power.” A court that lacked jurisdiction, under this conception, simply lacked the ability to bind the parties, and its resulting rulings could therefore be regarded by both litigants and later courts as void and of no legal effect. But in the middle decades of the twentieth century, the Supreme Court and other U.S. courts strongly embraced the so-called bootstrap doctrine—a distinctive branch of preclusion law that severely limits the ability to collaterally attack a judgment based on a claimed lack of jurisdiction. Because the bootstrap doctrine effectively allows courts to establish their own jurisdiction simply by concluding that they possess it, critics of the power-based conception contend that the definition no longer provides a descriptively plausible or conceptually coherent account of jurisdiction’s identity. This Article defends the traditional power-based conception of jurisdiction’s identity as both conceptually coherent and normatively desirable.

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Comment
Volume 89.7
Property Versus Antidiscrimination: Examining the Impacts of Cedar Point Nursery v. Hassid on the Fair Housing Act
Amy Liang
B.A. 2020, Northwestern University; J.D. Candidate 2023, The University of Chicago Law School.

The Fair Housing Act is a groundbreaking federal law enacted in 1968 during the civil rights movement. Reflecting a policy judgment that the public’s interest in eliminating housing discrimination outweighs a prejudicial landlord’s property right to exclude, it prohibits landlords from rejecting tenants on a discriminatory basis. However, as the Act’s promises remain in the process of fulfillment, the Supreme Court’s 2021 decision in Cedar Point Nursery v. Hassid has placed it into unprecedented danger: by holding that a regulation authorizing temporary occupations of private property constituted a per se taking that requires compensation under the Takings Clause, Cedar Point threatens the constitutionality of the Act, which grants tenants a similar temporary right to access rental properties. This Comment takes up the task of finding an escape valve for the Act within the current legal landscape.

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Comment
Volume 89.7
Toward a Centralized Hatch-Waxman Venue
Matthew Makowski
B.S. 2012, American University; Ph.D. 2018, Radboud University; J.D. Candidate 2023, The University of Chicago Law School.

I would like to thank, in particular, Professor Jonathan Masur for his consistently excellent supervision and Comments Editors Brian Bornhoft and Jaston Burri for improving this Comment at every stage of the editing process. I would also like to thank Professor William Hubbard and the editors and staff of the University of Chicago Law Review for their helpful advice, insight, and feedback.

Pharmaceutical litigation often begins when a generic drug company files an application to have its generic drug approved by the FDA. That application is received by the FDA in the District of Maryland. To “submit” it is a statutory act of patent infringement under the Hatch-Waxman Act. Establishing venue in subsequent Hatch-Waxman litigation can be complex because Hatch- Waxman litigation often involves simultaneous and independent lawsuits against many generic applicants. A Hatch-Waxman plaintiff might reasonably attempt to consolidate litigation in a single district court; Hatch-Waxman defendants might reasonably resist consolidation in the plaintiff’s preferred venue. Recent Supreme Court and Federal Circuit case law has narrowed venue options for Hatch-Waxman plaintiffs. This Comment argues for an interpretation of Hatch-Waxman’s statutory act of patent infringement and the patent venue rules that moves toward a centralized venue for Hatch-Waxman litigation in the District of Maryland.

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Comment
Volume 89.7
The Joint Venture Exception in the International Silver Platter Doctrine: Variability and Devaluation of Cooperation
Jacqueline Pecaro
B.A. 2018, Cornell University; J.D. Candidate 2023, The University of Chicago Law School.

I would like to thank Professor Eric Posner and the editors and staff of the University of Chicago Law Review for their thoughtful advice and insight on this Comment.

This Comment examines the joint venture exception in the international silver platter doctrine in the context of the use of wiretaps in federal narcotics cases. Under the international silver platter doctrine, evidence obtained through searches (like wiretaps) by foreign law enforcement on foreign soil and under foreign law is admissible in U.S. courts. The joint venture exception qualifies the international silver platter doctrine: if participation by U.S. law enforcement in a wiretap by foreign law enforcement on foreign soil constitutes a joint venture, then evidence obtained from the search is admissible only if the wiretap was reasonable under the Fourth Amendment.