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Volume 93.1
Designing Contract Modification
Albert H. Choi
Paul G. Kauper Professor of Law, University of Michigan Law School and Research Member, European Corporate Governance Institute (ECGI).

We would like to thank the workshop participants at University of Michigan Law School, Northwestern University Law School, Notre Dame Law School, University of Toronto Law School, Stanford Law School, and N.Y.U. School of Law; and conference participants at the 2024 American Law and Economics Association Meeting for many helpful comments and suggestions. We are most grateful to Jonathan Morad Artal (Stanford Class of 2025) and Andrea Lofquist (Michigan Class of 2024) for their valuable research assistance and comments on earlier drafts.

George Triantis
Dean and Richard E. Lang Professor of Law, Stanford Law School.

We would like to thank the workshop participants at University of Michigan Law School, Northwestern University Law School, Notre Dame Law School, University of Toronto Law School, Stanford Law School, and N.Y.U. School of Law; and conference participants at the 2024 American Law and Economics Association Meeting for many helpful comments and suggestions. We are most grateful to Jonathan Morad Artal (Stanford Class of 2025) and Andrea Lofquist (Michigan Class of 2024) for their valuable research assistance and comments on earlier drafts.

The flexibility to renegotiate can facilitate long-term contracting and thereby beneficial reliance investments and risk allocation. The prospect of modification can induce contracting parties who expect their bargaining power to improve to enter into contracts earlier and realize the advantages of longer-term relationships. Otherwise, those parties might decline to contract or delay until those opportunities realize, thereby foregoing the benefits of long-term risk allocation or reliance investments. The parties decide not only whether, but also when, to make legally binding commitments to each other. Courts should be more lenient in enforcing contract modifications that, prompted by a shift in bargaining power, may have only a redistributive effect. Parties can design under-compensatory damages that would provide a credible threat of breach ex post to facilitate ex post modification. Requiring good faith in modification (along with damages) can constrain possible holdup and protect reliance investments and risk allocation.

Contract Law Law and Economics
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Volume 93.1
The Structural Law of Data
Bridget A. Fahey
Professor of Law, University of Chicago Law School.

This Article has benefited from workshops at Harvard Law School, Northwestern Pritzker School of Law, the University of Chicago Law School, the University of Virginia School of Law, and Yale Law School, in addition to helpful comments from, and conversations with, Ian Ayres, Will Baude, Curt Bradley, Danielle Citron, Alex Hemmer, Aziz Huq, Alison LaCroix, David Strauss, David Weisbach, and Taisu Zhang. We finally thank the Neubauer Collegium and the University of Chicago Data Science Institute for their generous financial support.

Raul Castro Fernandez
Assistant Professor of Computer Science, University of Chicago.

This Article has benefited from workshops at Harvard Law School, Northwestern Pritzker School of Law, the University of Chicago Law School, the University of Virginia School of Law, and Yale Law School, in addition to helpful comments from, and conversations with, Ian Ayres, Will Baude, Curt Bradley, Danielle Citron, Alex Hemmer, Aziz Huq, Alison LaCroix, David Strauss, David Weisbach, and Taisu Zhang. We finally thank the Neubauer Collegium and the University of Chicago Data Science Institute for their generous financial support.

The central concern of structural constitutional law is the organization of governmental power, but power comes in many forms. This Article develops an original account of data’s structural law—the processes, institutional arrangements, transparency rules, and control mechanisms that, we argue, create distinctive structural dynamics for data’s acquisition and appropriation to public projects. Doing so requires us to reconsider how law treats the category of power to which data belongs. Data is an instrument of power. The Constitution facilitates popular control over material forms of power through distinctive strategies, ranging from defaults to accounting mechanisms. Assessing data’s structural ecosystem against that backdrop allows us to both map the structural law of data and provide an initial diagnosis of its deficits. Drawing on our respective fields—law and computer science—we conclude by suggesting legal and technical pathways to asserting greater procedural, institutional, and popular control over the government’s data.

Constitutional Law Technology
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Volume 93.1
Settlements of Adhesion
Nicole Summers
Associate Professor of Law, Georgetown University Law Center; Affiliated Scholar, American Bar Foundation.

For very helpful feedback on prior versions of this piece, I thank Russell Engler, David Luban, David Hoffman, Tal Kastner, Timothy Mulvaney, Michael Pollack, Tanina Rostain, Kathryn Sabbeth, Emily Saltzberg, Emily Satterthwaite, Jessica Steinberg, Neel Sukhatme, and Josh Teitelbaum. This Article benefited from presentations at the Harvard-Yale-Stanford Junior Faculty Forum, the Law and Society Association Annual Meeting, the 2024 Access to Justice Roundtable, the Property Worksin- Progress Workshop, the State and Local Courts Workshop, and the State and Local Government Law Workshop. Emmeline Basco provided excellent research assistance and Yi Yao provided excellent assistance with data analysis. I am very grateful to the editors of The University of Chicago Law Review for their outstanding editorial work. All errors are my own.

Eviction cases make up over a quarter of all cases filed in the federal and state civil courts and have enormous consequences for tenants, who are nearly always unrepresented by counsel. These cases overwhelmingly settle, yet settlement scholars have entirely overlooked eviction both empirically and theoretically. The Article presents results from the first empirical study of eviction settlement negotiations. The study involved rigorous analysis of an original dataset of over one thousand hand-coded settlements, observations of settlement negotiations in the hallways of housing court, and dozens of interviews. The findings demonstrate that unrepresented tenants—who make up the vast majority of tenants in the eviction system—have no meaningful influence over settlement terms. Rather, the terms are set by landlords and their attorneys. Drawing on the empirical findings and scholarship about contracts of adhesion, the Article develops the theoretical concept of “settlements of adhesion.”

Contract Law Contracts Empirical Analysis Housing
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Volume 92.8
No Exceptions: The New Movement to Abolish Slavery and Involuntary Servitude
Adam A. Davidson
Assistant Professor of Law, The University of Chicago Law School.

Thanks to Laura Appleman, Monica Bell, Tan Boston, Curtis Bradley, Emily Buss, Adam Chilton, Justin Driver, Jessica Eaglin, Sheldon Evans, Lee Fennell, James Forman, Cynthia Godsoe, Nyamagaga Gondwe, Bernard Harcourt, Hajin Kim, Brian Leiter, Aaron Littman, Jamelia Morgan, Renagh O’Leary, Farah Peterson, James Gray Pope, Eric Posner, Judith Resnik, Mara Revkin, Anna Roberts, Cristina Rodríguez, Jocelyn Simonson, Kate Skolnick, Fred Smith, Stephen Smith, David Strauss, I. India Thusi, Christopher Williams, and Quinn Yeargain for thoughtful comments and conversations, and the participants of The University of Chicago Faculty Workshop, Northwestern Faculty Workshop, Yale Public Law Workshop, CrimFest, Decarceration Workshop, and Criminal Justice Roundtable for their helpful engagement. Thanks also to the editors at The University of Chicago Law Review for their excellent editorial support. The author thanks the Paul H. Leffmann Fund for research support.

In recent years, many states passed constitutional amendments prohibiting modern day slavery in the form of forced prison labor allowed by the Thirteenth Amendment. However, the state amendments' text alone has not ended prison slavery in those states. This Article examines why. It grounds its discussion in the history of American slavery after the Civil War as well as the various attempts of legislation, litigation, and constitutional amendments to dismantle forced prison labor. Drawing on this discussion, it suggests how organizers might craft these amendments and how judges and lawyers should interpret them. It argues that, ultimately, amending constitutional text alone is not enough. To achieve their goals amendments must work in tandem with litigation, governmental structural reform, and the inevitable political battles that arise over the shape of the criminal legal system.

Antiracism Constitutional Law State Law
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Volume 92.7
Sovereign Power Constitutionalism
Curtis A. Bradley
Allen M. Singer Distinguished Service Professor, University of Chicago Law School.

For helpful comments and suggestions, I thank Will Baude, Rachel Bayefsky, Jamie Boyle, Anu Bradford, Kathy Bradley, Brad Clark, Bridget Fahey, Martin Flaherty, Jean Galbraith, Jonathan Gienapp, Jack Goldsmith, Craig Green, Larry Helfer, Todd Henderson, William Hubbard, Aziz Huq, Alison LaCroix, Margaret Lemos, Jonathan Masur, Tim Meyer, John Mikhail, Henry Monaghan, Martha Nussbaum, Eric Posner, Jeff Powell, Richard Primus, Robert Reinstein, Mara Revkin, Shalev Roisman, Neil Siegel, Larry Solum, Matt Waxman, John Witt, Ernie Young; participants in faculty workshops at the University of Chicago Law School, Duke University School of Law, and the University of Virginia School of Law; and participants in the University of Pennsylvania’s Constitutional Law Speaker Series, the Comparative and International Law Workshop at Columbia Law School, the Legal History Forum & Public Law Workshop at Yale Law School, the annual International Law in Domestic Courts workshop, an online constitutional law workshop at the University of Michigan Law School, and a conference at the University of Chicago Law School on “Sovereign Power and the Constitutional Text.” I also want to thank the students in my Autumn 2024 seminar at the University of Chicago Law School for their insights on the topic.

The constitutional text seems to be missing a host of governmental powers that we take for granted. The Supreme Court has suggested the United States automatically acquired powers “equal to the right and power of the other members of the international family”—powers that inhered in the government “as necessary concomitants of nationality.” Although the Curtiss-Wright decision has been heavily criticized, this Article shows that the “concomitants of nationality” idea reflects an important and longstanding feature of U.S. constitutional law: a presumption that the nation acquired the full complement of sovereign powers allocated to nations under international law.

Constitutional Law International Law
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Volume 92.7
The Contractualization of Disability Rights Law
Yaron Covo
Assistant Professor, Case Western Reserve University School of Law.

For helpful comments on earlier drafts, I thank Sania Anwar, Ian Ayres, Abbe Gluck, Adi Goldiner, Hanoch Dagan, Doron Dorfman, Klaas Eller, Elizabeth Emens, Jasmine Harris, Avery Katz, Craig Konnoth, Juliet Kostritsky, Shirley Lin, Daniel Markovits, Petros Mavroidis, Jamelia Morgan, Szymon Osmola, David Pozen, Jessica Roberts, Emily Rock, Elle Rothermich, Kate Sapirstein, Ani Satz, Michael Ashley Stein, Karen Tani, and Cristina Tilley, as well as participants in the Junior Scholars Conference at Northeastern School of Law (2024), the Junior Faculty Forum at Richmond School of Law (2024), the 47th Health Law Professors Conference (2024), and the Ninth Annual Health Law Works-in-Progress Retreat at Seton Hall Law School (2025). Lastly, I thank the editors of The University of Chicago Law Review for their insightful and helpful edits and suggestions.

In this Article, Yaron Covo argues that disability rights law in the United States is shaped not only by civil rights statutes but also by contract law doctrines. Contract law surfaces in the disability rights context through judicial determinations of accommodations negotiations and spending clause language in disability rights statutes. The Article argues that this intertwining has eroded rights under statutes meant to promote equality and protect vulnerable classes. The Article concludes with two recommendations: replacing the “individualized” negotiation model with a uniform model and adding certain mandatory rules and defaults in the disability rights context.

Civil Rights Contract Law Disability Law
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Volume 92.6
The Splintering of American Public Law
Marco Basile
Assistant Professor, Boston College Law School.

For feedback and suggestions at various stages of this project, I thank David Barron, Mary Sarah Bilder, Nikolas Bowie, Richard Chen, Noah Feldman, Idriss Fofana, Barry Friedman, Jack Goldsmith, Daniel Hulsebosch, Mark Jia, Michael Klarman, Chris Mirasola, and Susannah Barton Tobin. This project also benefitted from workshops with faculty at Boston College Law School, University of Chicago Law School, Cornell Law School, Harvard Law School, Loyola Law School, New York University School of Law, Notre Dame Law School, University of San Diego School of Law, Seattle University School of Law, University of Texas School of Law, University of Southern California Gould School of Law, and Washington University School of Law. I am also grateful to Emma Svoboda and Elaine Tsui for research assistance and to the members of the University of Chicago Law Review for their hard work editing the manuscript.

This Article by Marco Basile argues that U.S. constitutional law and international law diverged after the Civil War when courts came to apply them differently against the state as the United States consolidated a continental nation-state. On one hand, the Supreme Court came to assert authority over constitutional law more aggressively in the context of gutting Reconstruction in the South. At the same time, the Court stepped back from international law in deference to Congress as the United States conquered territories and peoples in the West. The simultaneous rise of judicial supremacy as to constitutional law and of judicial deference as to international law recast constitutional law as more “legal” than political and international law as more “political” than legal. By recovering the earlier understanding of public law, this Article challenges how we construct constitutional traditions from the past. The Article ultimately invites us to reimagine a more integrated public law today.

International Law Legal History
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Volume 92.6
Disclosure Puzzles in Patent Law
Jonathan S. Masur
John P. Wilson Professor of Law, The University of Chicago Law School.

For helpful comments, thanks to Sarah Burstein, Bernard Chao, Kevin Collins, Laura Dolbow, Tabrez Ebrahim, Jeanne Fromer, Jordi Goodman, Paul Gugliuzza, Tim Holbrook, Mark Lemley, Oskar Liivak, Mike Meurer, Andrew Michaels, Lidiya Mishchenko, Nicholson Price, Arti Rai, Jason Rantanen, Jason Reinecke, Michael Risch, Andres Sawicki, Jake Sherkow, and participants at the Intellectual Property Scholars Conference and the Works-in-Progress Intellectual Property Colloquium. We thank Victoria Fang, Josh Leopold, Joseph Robinson, and Marissa Uri for excellent research assistance. Masur thanks the David and Celia Hilliard Fund and the Wachtell, Lipton, Rosen & Katz Program in Behavioral Law, Finance and Economics for support.

Lisa Larrimore Ouellette
Deane F. Johnson Professor of Law, Stanford Law School.

For helpful comments, thanks to Sarah Burstein, Bernard Chao, Kevin Collins, Laura Dolbow, Tabrez Ebrahim, Jeanne Fromer, Jordi Goodman, Paul Gugliuzza, Tim Holbrook, Mark Lemley, Oskar Liivak, Mike Meurer, Andrew Michaels, Lidiya Mishchenko, Nicholson Price, Arti Rai, Jason Rantanen, Jason Reinecke, Michael Risch, Andres Sawicki, Jake Sherkow, and participants at the Intellectual Property Scholars Conference and the Works-in-Progress Intellectual Property Colloquium. We thank Victoria Fang, Josh Leopold, Joseph Robinson, and Marissa Uri for excellent research assistance.

Since its inception, patent law has required that inventors publicly disclose information about their inventions in exchange for receiving patent rights. This foundational requirement is policed through multiple doctrines: patents fail “enablement” if “undue experimentation” is needed to practice the invention, and they lack adequate “written description” when they fail to establish the inventor’s “possession” of the invention. Despite disclosure doctrines’ centrality, fundamental puzzles about their application remain unresolved. In Amgen v. Sanofi , the Supreme Court recently took up one such puzzle: Must a patent enable the full scope of the claim or merely some number of working examples? But the Court failed to address long-standing puzzles surrounding this issue. In this Article, Jonathan S. Masur and Lisa Larrimore Ouellette tackle these questions and more. The Article attempts to bring conceptual order to the disclosure doctrines, reconciling them with one another and with the broader animating principles of patent law. These puzzles must be solved if patent law is to fulfill its promises; if they are not, the resulting doctrinal gaps will expose the patent system to strategic behavior by nefarious noninventors—including those aided by new generative artificial intelligence tools—who learn how to acquire the patent quo without paying their quid.

Patent
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Volume 92.5
Constitutional Rights as Protected Reasons
Stephanie Hall Barclay
Professor of Law at Georgetown University Law Center and Faculty Co-Director of the Georgetown Center for the Constitution.

For very helpful comments, conversations, and encouragement on this draft and earlier versions of this project, the author thanks Joel Alicea, Howard Anglin, Kristina Arriaga, Randy Barnett, William Baude, Rachel Bayefsky, Joseph Blocher, Samuel Bray, Christian Burset, Jud Campbell, Louis Capozzi, Piero Ríos Carrillo, Conor Casey, Nathan Chapman, Aimee Clesi, Nicholas Cole, Steve Collis, Caroline Mala Corbin, Katherine Mims Crocker, Marc DeGirolami, Michelle Dempsey, Alma Diamond, Hasan Dindjer, Richard Ekins, Timothy Endicott, David Enoch, Bridget Fahey, Richard Fallon, John Finnis, Frederick Gedicks, Nazila Ghanea, Sherif Girgis, Raphaël Grenier-Benoit, Simona Grossi, Jeremy Gunn, John Harrison, Michael Helfand, Richard Helmholz, Don Herzog, Steven Heyman, Kristin Hickman, Jessie Hill, Heidi Hurd, Michael Kang, Paul Kerry, Andrew Koppelman, Konrad Ksiazek, Genevieve Lakier, Lia Lawton, Douglas Laycock, Robert Leider, Tyler Lindley, Christopher Lund, Elinor Mason, Michael McConnell, Stefan McDaniel, Bradley Miller, Darrell Miller, Paul Miller, Robert Miller, Christina Mulligan, Jim Oleske, Filipa Paes, James Phillips, Richard Pildes, Jeffrey Pojanowski, Zachary Price, Haley Proctor, Eric Rassbach, Richard M. Re, Bradley Rebeiro, Veronica Rodriguez-Blanco, Zalman Rothschild, Angelo Ryu, Stephen Sachs, Josep Tirapu Sanuy, Micah Schwartzman, Amanda Shanor, Reva Siegel, Geoffrey Sigalet, Lawrence Solum, Anna Stelle, John Stinneford, Mark Storslee, Michael David Thomas, Rebecca Tushnet, Francisco Urbina, Pía Chible Villadangos, Eugene Volokh, Derek Webb, Grégoire Webber, Lael Weinberger, Andrew Willinger, John Witte, Kara Woodbury-Smith, Ilan Wurman, Paul Yowell, Mary Ziegler, the participants at the Women in Legal Philosophy Conference at Villanova Law School, the First Annual UChicago Constitutional Law Conference, the Oxford Public Law Discussion Group, the Oxford University Bonavero Institute of Human Rights Works-in-Progress session, Federalist Society Junior Scholar Panel at Association of American Law Schools, the Salmon P. Chase Colloquium, the Georgetown Law School Works-in-Progress session, the Minnesota Law School Works-in-Progress session, the Pepperdine Law School Nootbaar Fellows workshop, the Northwestern Law School Works-in-Progress session, the Northwestern Law School Public Law Colloquium, and the Stanford Law School Constitution Center Works-in-Progress workshop. For excellent research assistance, the author thanks Nat Deacon, Chris Ostertag, Jacob Feiser, Mathias Valenta, Anneliese Ostrom, and Athanasius Sirilla.

Professor Stephanie Hall Barclay proposes and defends a new theoretical model of constitutional rights. While virtually all the prevailing theories about constitutional rights envision, at some level, judges balancing the importance of various individual rights against the importance of other societal goods in tension with those rights and generally hold out the judiciary as the primary guardian of these rights, this Article explains why the existing accounts of constitutional rights are either incoherent or incomplete. It proposes and defends an alternative model that is more consistent with democratic principles and the institutional competencies of the various branches of government.

Constitutional Law
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Volume 92.5
The Amended Statute
Jesse M. Cross
Professor of Law, Joseph F. Rice School of Law, University of South Carolina.

The author wishes to thank Aaron Galbraith for his outstanding data analysis contributions. The author also wishes to thank William Eskridge, Abbe Gluck, Anita Krishnakumar, Nicholas Parrillo, Josh Chafetz, Alexander Zhang, and all the participants in the Legislation Roundtable at the Georgetown University Law Center, the Legislation Colloquium at the Georgetown University Law Center, and the works in progress workshop at the Joseph F. Rice School of Law.

We live in a republic of amended statutes. In each Congress, our laws are amended tens of thousands of times. Individual statutes make amendments that number in the thousands. As a result, the amended statute has become the central democratic text of our age—a remarkable development for a type of document unknown at the Founding. Yet the amended statute has been relegated to an afterthought in legal theory. This is incredible neglect for an essential source of modern law—one that anchors innumerable rights in U.S. society. In this Article, Jesse M. Cross demonstrates that, instead, the amended statute belongs at the center of public law. To that end, he undertakes three projects with respect to the amended statute: documenting, theorizing, and interpreting.

Judicial Review Statutory Interpretation

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