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Volume 93.4
Enforcing the First Amendment in an Era of Jawboning
Genevieve Lakier
Professor of Law and Herbert & Marjorie Fried Teaching Scholar, University of Chicago Law School.

Thanks to participants at the University of Colorado, University of Texas, and University of Chicago Workshops for thoughtful feedback, to my First Amendment discussion group for helping refine my thinking on the topic, and to Evelyn Douek for all her ideas and edits.

For decades, it has been black letter law that the informal exercise of government power can violate the First Amendment when it creates an “informal system of censorship.” Lower courts have been deeply divided about what kinds of government actions create this kind of informal system. The Court’s recent NRA v. Vullo decision holds that officials engage in informal censorship whenever they intentionally use informal power to evade First Amendment constraints on their formal powers. Vullo clarified that the rule against informal censorship is categorical: officials may never evade constitutional constraints by threatening harm or promising benefits to private parties, no matter how they attempt to do so. This Article argues that the Court's reaffirmation of the categorical nature of the First Amendment rule against informal censorship is very good and comes at a critical time. The Article examines the doctrine prior to the decision, the significance of Vullo’s intervention, and its implications.

Constitutional Law First Amendment
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Volume 93.4
How Deals Die
Da Lin
Senior Lecturer, Victoria University of Wellington; Affiliated Scholar, University of Richmond School of Law.

We are grateful to Adam Badawi, Albert Choi, Elisabeth de Fontenay, Jeff Gordon, Steven Haas, Lawrence Hamermesh, Scott Hirst, David Katz, Ronald Masulis, Holger Spamann, and Randall Thomas for generous conversations and valuable feedback, and to workshop participants at the Conference on Empirical Legal Studies, Junior Faculty Forum, NYU/Penn Conference on Law & Finance, Tulane Corporate Law Roundtable, Winter Deals Conference, the University of Richmond School of Law, Temple University Beasley School of Law, Vanderbilt Law School, and the New Zealand Takeovers Panel. The production of this Article involved a team of exceptional research assistants too large to mention here, to whom we are immensely grateful and whose names we list in Appendix A.

Morgan Ricks
Herman O. Loewenstein Chair in Law, Vanderbilt Law School.

We are grateful to Adam Badawi, Albert Choi, Elisabeth de Fontenay, Jeff Gordon, Steven Haas, Lawrence Hamermesh, Scott Hirst, David Katz, Ronald Masulis, Holger Spamann, and Randall Thomas for generous conversations and valuable feedback, and to workshop participants at the Conference on Empirical Legal Studies, Junior Faculty Forum, NYU/Penn Conference on Law & Finance, Tulane Corporate Law Roundtable, Winter Deals Conference, the University of Richmond School of Law, Temple University Beasley School of Law, Vanderbilt Law School, and the New Zealand Takeovers Panel. The production of this Article involved a team of exceptional research assistants too large to mention here, to whom we are immensely grateful and whose names we list in Appendix A.

The risk of deal breakage is central to merger and acquisition (M&A) dealmaking. Yet neither the finance nor corporate law literatures have systematically explored how and why deals fall apart. This Article rectifies this deficiency, making three principal contributions. First, it develops a comprehensive typology of eight M&A outcomes: completed-as-announced deals and seven types of deal breakage. Second, it unveils a novel dataset of 5,058 mergers and acquisitions involving U.S. public company targets signed between 1996 and 2020. Finally, it demonstrates how the Article's typology and data yield important implications for M&A practice and doctrine by casting new light on key debates over deal protection devices, the power of controlling shareholders, and “merger arbitrage” investors.

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Volume 93.3
The Holistic Theory of Precedent
Charles F. Capps
Associate Professor of Law, Arizona State University Sandra Day O’Connor College of Law; Affiliated Professor of Philosophy, Arizona State University.

For helpful comments and discussions, I am grateful to Will Baude, Shelly Capps, Sherif Girgis, Jonathan Green, Jamie Grischkan, Esther Hong, Randy Kozel, Tyler Lindley, Ben McJunkin, Caitlin Millat, Micah Quigley, Richard Re, Steve Sachs, Erin Scharff, Nina Varsava, Lael Weinberger, and the participants in the Federalist Society Junior Scholars Workshop and the Arizona Junior Scholars Colloquium where I presented drafts of this Article. Thanks also to the editors of The University of Chicago Law Review for their corrections and suggestions.

Standard theories of precedent limit the legal effect of a precedent to cases within the scope of its holding. Yet the widespread use of analogies to precedent in legal reasoning presupposes that precedents have legal implications for cases outside the scope of their holdings. This Article suggests that arguments from analogy to precedent have the currency they do in our legal system because respect for a precedent requires more than treating the precedent’s holding as true: It also requires the judge to update her other beliefs around the assumption that the precedent’s holding is true.

Jurisprudence
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Volume 93.3
Against General Law Constitutionalism
Joshua C. Macey
Professor, Yale Law School.

The authors are grateful to workshop participants at Michigan, Virginia, Stanford, Yale, the Junior Faculty Federal Courts Workshop, the National Conference of Constitutional Law Scholars, Gregory Ablavsky, Payvand Ahdout, Ash Ahmed, Akhil Amar, William Baude, Rachel Bayefsky, Curt Bradley, Sam Bray, Jud Campbell, Dan Deacon, Abbe Gluck, Tara Leigh Grove, Bill Eskridge, Harold Koh, Alexi Lahav, Daniel Markovits, Bernadette Meyler, Trevor Morrison, Julian Mortenson, Doug NeJaime, Robert Post, Sai Prakash, Elizabeth Reese, Cristina Rodriguez, Shalev Roisman, Stephen Sachs, David Schleicher, Joseph Schottenfeld, Reva Seigel, Scott Shapiro, and Taisu Zhang, for generous comments. We are also grateful to the editors of The University of Chicago Law Review, and especially to Elijah Greisz, for superb editorial assistance.

Ketan Ramakrishnan
Associate Professor, Yale Law School.

The authors are grateful to workshop participants at Michigan, Virginia, Stanford, Yale, the Junior Faculty Federal Courts Workshop, the National Conference of Constitutional Law Scholars, Gregory Ablavsky, Payvand Ahdout, Ash Ahmed, Akhil Amar, William Baude, Rachel Bayefsky, Curt Bradley, Sam Bray, Jud Campbell, Dan Deacon, Abbe Gluck, Tara Leigh Grove, Bill Eskridge, Harold Koh, Alexi Lahav, Daniel Markovits, Bernadette Meyler, Trevor Morrison, Julian Mortenson, Doug NeJaime, Robert Post, Sai Prakash, Elizabeth Reese, Cristina Rodriguez, Shalev Roisman, Stephen Sachs, David Schleicher, Joseph Schottenfeld, Reva Seigel, Scott Shapiro, and Taisu Zhang, for generous comments. We are also grateful to the editors of The University of Chicago Law Review, and especially to Elijah Greisz, for superb editorial assistance.

Brian M. Richardson
Professor, Cornell Law School.

The authors are grateful to workshop participants at Michigan, Virginia, Stanford, Yale, the Junior Faculty Federal Courts Workshop, the National Conference of Constitutional Law Scholars, Gregory Ablavsky, Payvand Ahdout, Ash Ahmed, Akhil Amar, William Baude, Rachel Bayefsky, Curt Bradley, Sam Bray, Jud Campbell, Dan Deacon, Abbe Gluck, Tara Leigh Grove, Bill Eskridge, Harold Koh, Alexi Lahav, Daniel Markovits, Bernadette Meyler, Trevor Morrison, Julian Mortenson, Doug NeJaime, Robert Post, Sai Prakash, Elizabeth Reese, Cristina Rodriguez, Shalev Roisman, Stephen Sachs, David Schleicher, Joseph Schottenfeld, Reva Seigel, Scott Shapiro, and Taisu Zhang, for generous comments. We are also grateful to the editors of The University of Chicago Law Review, and especially to Elijah Greisz, for superb editorial assistance.

This Article considers how and under what circumstances the “general law,” a species of unwritten law grounded in legal customs and practices shared across different legal jurisdictions, might be used in modern constitutional interpretation. Constitutional originalists have increasingly argued that central provisions of the Constitution incorporate various bodies of general law. This Article argues that, even if the Constitution did incorporate various bodies of general law, most of those bodies of law have now been emptied of content, and must remain empty without profound changes in the practice of federal judicial review. Because the general law requires that nonfederal judicial actors such as state courts, governors, legislatures, the President, and perhaps foreign legal systems participate in the development of public law norms and customs, a general law revival would involve eliminating, or at least curtailing, federal judicial supremacy and would therefore impliedly reject nearly a hundred years of public law precedent.

Constitutional Law Federal Courts
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Volume 93.3
The Twelfth Amendment and the ERA
Stephen E. Sachs
Antonin Scalia Professor of Law, Harvard Law School.

The author is grateful for advice and comments from William Baude, Joseph Blocher, Samuel Bray, Douglas Johnson, Saikrishna Prakash, Richard Re, Alan Sachs, David Sachs, Thomas Schmidt, Amanda Schwoerke, and Robert Sitkoff, and from workshop participants in the Boston University School of Law Clark Legal History Series, the Harvard Law School Ideas Lunch, the Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference, the Society for the Rule of Law webinar series, and the University of Virginia School of Law Public Law Workshop, and for excellent research assistance by Owen Smitherman and by Maya Bergamasco and Christine Park of the Harvard Law School Library.

How many amendments are in the Constitution? Americans should be able to know. But whether the Equal Rights Amendment is—right now—part of the Constitution remains controversial. Thirty-eight states have sought to ratify it, several of them after the seven-year deadline in the proposing resolution. Given President Joe Biden’s last-minute claim that the ERA is now the Twenty-Eighth Amendment, in a future administration this lingering debate could provoke a minor constitutional crisis. Yet there may be a legal answer. Congress has long placed operative language in amendment resolutions that modifies the legal force of the proposed text—not only in the Bill of Rights, as is well-known, but also in the Twelfth and Seventeenth Amendments. This language was deliberately chosen, was repeated by state ratifications, and seems to have been accepted as legally effective. This historical practice suggests that, under Article V, the resolution is the amendment: What matters is the entire constitutional change that Congress proposes, not just the additional language it would append. This understanding means that certain parts of the 1788 Constitution have been repealed, not just superseded. It also means that the ERA’s deadline rendered it incapable, even with thirty-eight states’ assent, of making any change to the Constitution’s text once seven years had passed. Both President Biden’s statement and the ongoing lobbying efforts are therefore seriously misguided. In a divided society, losing consensus on the Constitution’s text carries an especially high cost: The National Archives is the wrong place to play with fire.

Constitutional Law
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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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