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Volume 90.1
Privacy and/or Trade
Anupam Chander
Scott K. Ginsburg Professor of Law and Technology, Georgetown University.
Paul Schwartz
Jefferson E. Peyser Professor, U.C. Berkeley School of Law.

For their helpful suggestions on previous drafts, we would like to thank Kathleen Claussen, Jill Goldenziel, Sylvia Lu, Indra Spieker, Lior Strahilevitz, and David Vladeck. We are grateful to a dream team of research assistants at Berkeley and Georgetown: Shayanna Ahuja, María José Badillo, Ryan Campbell, Robert Fairbanks, Gabriela Gabbidon, Saabhir Gill, Kiana Harkema, Joey Kingerski, Leo Koepp, Meet Mehta, Emma Neukrug, Sudipt Parth, Rishi Ray, Sophia Wallach, and Andy Zachrich. For superb editing, we thank Ian Howard and his colleagues on the University of Chicago Law Review. This Article is dedicated to the memory of Professor Joel R. Reidenberg, a great figure in privacy law and a cherished friend.

International privacy and trade law developed together but are now engaged in significant conflict. Current efforts to reconcile the two are likely to fail, and the result for globalization favors the largest international companies able to navigate the regulatory thicket. In a landmark finding, this Article shows that more than sixty countries outside the European Union are now evaluating whether foreign countries have privacy laws that are adequate to receive personal data. This core test for deciding on the permissibility of global data exchanges is currently applied in a nonuniform fashion with ominous results for the data flows that power trade today.

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Volume 90.1
The Independent State Legislature Theory, Federal Courts, and State Law
Carolyn Shapiro
Professor of Law and Co-Director, Institute on the Supreme Court of the United States, IIT Chicago-Kent College of Law.

This Article has benefited from the comments of Maggie Blackhawk, Nicholas Stephanopoulos, Alan Erbsen, Mark Krass, Gerard Magliocca, Richard Briffault, Joshua Douglas, Ethan Herenstein, Hayward Smith, Christopher Schmidt, Mark Rosen, Harold Krent, Stephen Heyman, and from the suggestions of additional participants at the 2021 Constitutional Law Colloquium at George Washington University and at the 2022 National Conference of Constitutional Law Scholars. Thanks are also due to Adam Bonin and Joshua Karsh. Taylor Iaculla provided excellent research assistance.

During the litigation surrounding the 2020 election, the independent state legislature theory (ISLT) emerged as a potentially crucial factor in the presidential election. The ISLT rests on the Electors and Elections Clauses of the Constitution, which assign decisions about federal elections to state legislatures. Proponents of the ISLT, including Supreme Court Justices, assert that state constitutions’ substantive provisions cannot apply to state election laws governing federal elections; that state courts’ statutory interpretations of such laws must be rigidly textualist and are reviewable, apparently de novo, by federal courts; and/or that delegations of decisionmaking authority to nonlegislative bodies may be limited, albeit in unspecified ways. 

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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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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.

Introduction

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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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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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Volume 89.6
Reducing Prejudice Through Law: Evidence from Experimental Psychology
Sara Emily Burke
Assistant Professor of Psychology, Syracuse University.
Roseanna Sommers
Assistant Professor of Law, University of Michigan.

We wish to thank the University of Chicago Law Review editors, as well as Becky Eisenberg, Don Herzog, J.J. Prescott, and Carl Schneider for helpful comments and suggestions. We also wish to thank Taylor Galdi, Alex Justicz, Parul Kumar, Caleigh Lin, and Julia Rubin for their research assistance. All data and materials related to this project are available online: Roseanna Sommers & Sara Emily Burke, The Legal Status of Discrimination Can Alter Personal Prejudice Against People with Depression, OPENICPSR (July 26, 2021), https://doi.org/10.3886/E146023V1.

Can antidiscrimination law effect changes in public attitudes toward minority groups? Could learning, for instance, that employment discrimination against people with clinical depression is legally prohibited cause members of the public to be more accepting toward people with mental health conditions? In this Article, we report the results of a series of experiments that test the effect of inducing the belief that discrimination against a given group is legal (versus illegal) on interpersonal attitudes toward members of that group. We find that learning that discrimination is unlawful does not simply lead people to believe that an employer is more likely to face punishment for discriminatory behavior.

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Volume 89.6
The Class Appeal
Adam S. Zimmerman
Professor of Law, Loyola Law School, Los Angeles.

For discussion and comments, I’m grateful to Judge Michael Allen, Ahilan Arulanantham, Judge Margaret Bartley, Kent Barnett, Beth Burch, Aaron Caplan, Maureen Carroll, Sergio Campos, Zachary Clopton, Scott Dodson, Nora Engstrom, Jade Ford, Maggie Gardner, Myriam Gilles, Helen Hershkoff, Alexandra Lahav, Steve Landsman, Bryan Lammon, David Jaros, Anita Krishnakumar, David Marcus, Rick Marcus, David Noll, Peter Orlowicz, Elizabeth Pollman, Judith Resnik, Michael Sant’Ambrogio, Mila Sohoni, Michael E. Solimine, Bart Stichman, Adam Steinman, Jay Tidmarsh, Matthew Weiner, Lauren Willis, Michael Wishnie. This Article is dedicated to Judge Jack B. Weinstein.

For a wide variety of claims against the government, the federal courthouse doors are closed to all but those brought by powerful, organized interests. This is because hundreds of laws—colloquially known as “channeling statutes”—require disaffected groups to contest government bodies directly in appellate courts that hear cases individually. In theory, these laws promise quick, consistent, and authoritative legal decisions in appellate courts. In fact, without class actions, government bodies avoid judicial review by selectively avoiding claims brought by some of the most vulnerable people in the administrative state—from veterans and immigrants to coal miners, laborers, and the disabled. This Article proposes a novel solution: courts of appeals should hear class actions themselves.

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Volume 89.5
An Information-Production Theory of Liability Rules
Assaf Jacob
Harry Radzyner Law School, Reichman University (IDC)
Roy Shapira
Harry Radzyner Law School, Reichman University (IDC)

We thank Ronen Avraham, Shahar Dillbary, Avihay Dorfman, Ehud Guttel, Alon Harel, Yotam Kaplan, Dan Klerman, Steve Shavell, and Alfred Yen for helpful comments, and Yael Amiel, Tal Elmakaiess and Talya Yosphe for excellent research assistance.

tandard economic analysis views strict liability as preferable to negligence because it is easier to administer and leads to better risk reduction: strict liability induces injurers not only to optimally invest in precaution but also to optimally adjust their activity levels. Standard analysis thus views the prevalence of negligence as unjustifiable on efficiency grounds. This Article challenges the conventional wisdom and clarifies an efficiency rationale for negligence by spotlighting the information-production function of tort law.

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Volume 89.5
The Public Right to Education
Matthew Patrick Shaw
Assistant Professor of Law, Vanderbilt Law School; Assistant Professor of Public Policy and Education, Vanderbilt Peabody College. Affiliated Scholar, American Bar Foundation. J.D., Columbia University; Ed.D., Ed.M., Harvard University; A.B., University of North Carolina at Chapel Hill.

I thank Bernadette Atuahene, David Baluarte, Derek Black, Lisa Schultz Bressman, Jessica Clarke, Shari Diamond, Jonathan Feingold, Jonathan Glater, Vinay Harpalani, Brandon Hasbrouck, Brant Hellwig, Alexandra Klein, Terry Maroney, Ajay Mehrotra, Elizabeth Mertz, Robert Mikos, Melissa Murray, Laura Beth Nielsen, Shaun Ossei-Owusu, Kish Parella, Asad Rahim, James Ryan, Christopher Schmidt, Christopher Serkin, Daniel Sharfstein, Joan Shaughnessy, Jennifer Shinall, Fred Smith, Kevin Stack, Alan Trammell, Joshua Weishart, Kevin Woodson, Dwayne Wright, and Ingrid Wuerth for their helpful feedback on early drafts and much needed collegial support. I also thank the Frances Lewis Law Center at the Washington and Lee University School of Law and Christopher Seaman and Allegra Steck of that Center for their generous research support and Vanderbilt University’s Peabody College for its equally generous support for the research leave that yielded this Article. Franklin Runge at the Washington and Lee University School of Law provided incomparable library support, and George Bouchard, Francisco Santelli, Russel Wade, Jon D’Orazio, Richard Hall, Michelle Koffa, Ashton Toone, and Wesley Wei provided invaluable research assistance. I would also like to thank the student editors of the Law Review. This Article also benefitted immensely from helpful comments and remarks in faculty workshops at the American Bar Foundation, University of Chicago Law School, Vanderbilt Law School, and Washington and Lee University School of Law, as well as in the John Mercer Langston Workshop.

Public education is “the most important function of state and local government” and yet not a “fundamental right or liberty.” This Article engages one of constitutional law’s most intractable problems by introducing “the public right to education” as a doctrinal pathway to a constitutional right to education process in three steps.

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