University of Chicago Law Review最新文献

{"title":"The Perceived Intrusiveness of Searching Electronic Devices at the Border: An Empirical Study","authors":"Matthew B. Kugler","doi":"10.2139/SSRN.2402244","DOIUrl":"https://doi.org/10.2139/SSRN.2402244","url":null,"abstract":"This paper presents new empirical data that seeks to quantify the privacy interests and expectations of regular people in the context of a border crossing. Courts have previously disagreed about whether travelers understand that their electronic devices are subject to search at the border, and whether such searches are more intrusive than routine examinations of traveler luggage. The data presented here show that, consistent with the view the 9th Circuit recently adopted in its controversial Cotterman decision, ordinary people believe that searches of their electronic devices impinge more on their privacy and dignity interests than do most traditional searches. In fact, survey participants tended to rate electronic searches as being almost as intrusive as strip and body cavity searches. In addition, the overwhelming majority of participants believed that their electronic devices could not be searched at a border crossing unless the customs agent had some level of individualized suspicion, suggesting that current doctrine creates substantial risk of surprise. These data will hopefully serve to shed light on the new issues raised by searches of electronic devices in an era of smartphones, tablets, and cloud computing.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"20 1","pages":"6"},"PeriodicalIF":2.0,"publicationDate":"2014-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81810651","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Savage Tables and Tort Law: An Alternative to the Precaution Model","authors":"J. Currie, W. Macleod","doi":"10.7916/D8X63JVF","DOIUrl":"https://doi.org/10.7916/D8X63JVF","url":null,"abstract":"The model of precaution has become a central tool of law and economics, beginning with Judge Learned Hand’s brilliant opinion in United States v Carroll Towing Co.1 In it he argues that a defendant should be found liable for harm if and only if the expected cost of additional care is less than the expected benefit.2 The model of precaution relies upon the economics of incentives, a subfield of game theory—the study of how individuals choose actions when these actions affect others.3 The landmark books of Professor William Landes and Judge Richard Posner, and Professor Steven Shavell illustrate how the precaution model illuminates a wide variety of legal rules.4 Professor Guido Calabresi and A. Douglas Melamed show how it can be used to","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"35 1","pages":"4"},"PeriodicalIF":2.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77948397","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tiers of Scrutiny in Enumerated Powers Jurisprudence","authors":"Aziz Z Huq","doi":"10.2139/SSRN.2284250","DOIUrl":"https://doi.org/10.2139/SSRN.2284250","url":null,"abstract":"This Article identifies and analyzes the recent emergence of a “tiers of scrutiny” system in Supreme Court jurisprudence respecting the boundaries of Congress’s enumerated powers. The inquiry is motivated by the Court’s recent ruling on the federal healthcare law, which demonstrated that the national legislature’s election among its diverse textual sources of authority in Article I can have large, outcome-determinative consequences in constitutional challenges to federal laws. This is so because the Court not only delineates each power’s substantive boundaries differently but also applies distinct standards of review to the various legislative powers enumerated in Article I and elsewhere in the Constitution. Variation in the standard of review generates both synchronic and diachronic oscillation in the quantum of empirical justification and means-end rationality demanded of Congress. This observed heterogeneity in the judicial demand for legislative rationality and empirical evidence is quite distinct from questions of how broadly or narrowly the substance of each enumerated power is defined. This Article’s threshold contribution is a comprehensive documentation of variation in doctrinal formulae concerning the standard of review in enumerated powers cases. Having demonstrated the existence of tiers of scrutiny for enumerated powers, it then evaluates their use in enumerated powers jurisprudence. Drawing on political science scholarship, social choice theory, and public choice theory, it demonstrates that the Court’s use of tiers of scrutiny has deleterious effects on judicial and legislative incentives and behavior. This Article then identifies six potential justifications for the Court’s emergent practice of calibrating judicial review differentially by enumerated power. Closely examining each of those six justifications for stratified review, it finds all of them wanting. At the same time as it creates negative externalities, therefore, the practice of tiered review for enumerated powers lacks any compelling normative justification. By abandoning the emerging tiers of scrutiny and instead employing a lockstep approach to the review of enumerated powers, this Article suggests, federal courts would reduce opportunities for strategic behavior by judges and elected officials. The proposed doctrinal reformulation would also introduce clarity into a currently opaque, yet abidingly important, domain of public law.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"2 4 1","pages":"575"},"PeriodicalIF":2.0,"publicationDate":"2013-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78631426","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Paradox of Access Justice, And Its Application to Mandatory Arbitration","authors":"O. Ben‐Shahar","doi":"10.2139/SSRN.2197013","DOIUrl":"https://doi.org/10.2139/SSRN.2197013","url":null,"abstract":"Equal Access is one of the most appealing and least contentious regulatory techniques in law’s repertoire. It aspires to give people even opportunity to utilize certain primary goods, and it does so by assuring openness — that access to these goods is not distorted by wealth or by privilege. But equal access often fails, because access and its benefits are deployed disproportionately by elites, yet paid for directly or indirectly by weaker groups. This article demonstrates the unintended and regressive cross-subsidy created by policies of access to information, compensation, insurance, and accommodations. It then examines the debate over access to courts, and the effect of mandatory arbitration agreements that limit such access. It demonstrates that access to courts is a benefit to the elite and of little value to weak consumers. Finally, it considers the effect of arbitration clauses on class actions, and whether weak consumers are potentially the indirect beneficiaries of class action litigation. This argument has theoretical merit, but it, too, is limited in ways that are often unappreciated.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"2 1","pages":"1755"},"PeriodicalIF":2.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90921542","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Felony, I Presume?: 21 USC § 841(b)’s Mitigating Provision and the Categorical Approach in Immigration Proceedings","authors":"Laura Jean Eichten","doi":"10.2139/SSRN.2046218","DOIUrl":"https://doi.org/10.2139/SSRN.2046218","url":null,"abstract":"Recently federal circuit courts have split on what to do in immigration proceedings when a state law drug conviction is written broadly enough to include conduct that, had the charges been brought under federal law, might have been punished as only a misdemeanor under 21 USC § 841(b)(4). The difficulty arises because § 841(b)(4) is a mitigating factor, as opposed to an element of the crime, and therefore criminal defendants are sentenced under the felony provision by default. In other words, defendants tried under federal law are required to produce evidence in order to be sentenced under the misdemeanor provision. This creates a problem in T2 immigration proceedings in which the noncitizen’s record includes a T1 state law drug conviction: in his T1 trial, the noncitizen might not have had any reason (or opportunity) to provide the evidence that would have entitled him to a misdemeanor sentence had he been tried in federal court. This comment argues that the circuit courts addressing this issue have failed to give adequate attention to the Supreme Court’s guidance regarding the categorical approach, as well as the original reasons for using the categorical approach in immigration proceedings. This guidance suggests that courts should analyze crimes differently during collateral proceedings at T2 than if they were adjudicating criminal sentencing proceedings at T1. The framework adopted by this Comment allows the immigration judge to look into the record of conviction under broad statutes to the extent he can find facts that were necessarily decided by the T1 fact finder. But on an empty record — a criminal trial record that indicates neither the quantity nor remunerative nature of the drug transaction — state law drug convictions should be presumed to correspond to the CSA’s misdemeanor provision.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"25 1","pages":"5"},"PeriodicalIF":2.0,"publicationDate":"2012-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81881752","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Delegation in Immigration Law","authors":"Adam Cox, E. Posner","doi":"10.2139/SSRN.1924382","DOIUrl":"https://doi.org/10.2139/SSRN.1924382","url":null,"abstract":"Immigration law both screens migrants and regulates the behavior of migrants after they have arrived. Both activities are information-intensive because the migrant’s “type” and the migrant’s post-arrival activity are often forms of private information that are not immediately accessible to government agents. To overcome this information problem, the national government can delegate the screening and regulation functions. American immigration law, for example, delegates extensive authority to both private entities - paradigmatically, employers and families - and to the fifty states. From the government’s perspective, delegation carries with it benefits and costs. On the benefit side, agents frequently have easy access to information about the types and activities of migrants, and can cheaply monitor and control them. On the cost side, agents’ preferences are not always aligned with those of the national government. The national government can ameliorate these costs by giving agents incentives to act consistently with the government’s interests. Understanding these virtues and vices of delegation sheds light on longstanding debates about the roles that employers, families, and states play in American immigration law.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"11 1","pages":"1285"},"PeriodicalIF":2.0,"publicationDate":"2012-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81692886","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What If Religion Is Not Special","authors":"Micah Schwartzman","doi":"10.2139/SSRN.1992090","DOIUrl":"https://doi.org/10.2139/SSRN.1992090","url":null,"abstract":"This Article argues that leading accounts of the First Amendment’s Religion Clauses fail to provide a coherent and morally attractive position on whether religion warrants special treatment as compared with secular ethical and moral doctrines. Focusing on two central issues involving whether laws must have a secular purpose and whether religious exemptions are constitutionally mandatory, this Article rejects existing theories as either theoretically inconsistent or substantively mistaken. If religion does not warrant special treatment, then it is important to ask what our attitude should be toward the Religion Clauses. Under originalist theories of constitutional interpretation, the Religion Clauses should be considered morally regrettable. Under non-originalist theories, there may be interpretations of the constitutional text that allow for the possibility of moral reconciliation. Either way, rejecting the idea that religion is special requires reassessing our understanding of the Religion Clauses.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"30 1","pages":"3"},"PeriodicalIF":2.0,"publicationDate":"2012-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87272816","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rhetoric and Reality in Early American Legal History: A Reply to Gordon Wood","authors":"Alison L. LaCroix","doi":"10.2139/SSRN.1879555","DOIUrl":"https://doi.org/10.2139/SSRN.1879555","url":null,"abstract":"In this reply to a review by Gordon Wood of Alison LaCroix’s book The Ideological Origins of American Federalism (Harvard University Press, 2010), LaCroix corrects several of Wood’s misstatements about the book and expands upon the book’s main themes. The book’s central claim is that the debates of the 1760s through the 1780s culminated in a new constitutionalization of federalism, a process that continued into the early 1800s. From a disconnected and sometimes ambiguous set of arguments about divided sovereignty in politics, American colonists and early republicans fashioned a new architecture of legal and constitutional authority built on a subject-matter-based division of governmental power. In contrast to earlier systems – whether formal or informal – of polycentric government, late-eighteenth- and early-nineteenth-century American federalism was specifically designed to avoid the ancient problem of imperium in imperio, or dominion within a dominion, that had troubled the British Atlantic political world for decades. The significant innovation of the American federal idea was to authorize the division of sovereignty and to create viable legal categories that could contain multiple sources of governmental power within one overarching system. LaCroix discusses the substantive issues of popular sovereignty and judicial review, as well as the relationship between ideas and experience in historical methodology.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"208 1","pages":"733"},"PeriodicalIF":2.0,"publicationDate":"2011-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75664026","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Licensing of Intellectual Property","authors":"O. Ben‐Shahar, R. Epstein, J. Masur","doi":"10.4324/9780203472989-10","DOIUrl":"https://doi.org/10.4324/9780203472989-10","url":null,"abstract":"","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"69 1","pages":"1"},"PeriodicalIF":2.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88306493","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"On Law's Tiebreakers","authors":"Adam M. Samaha","doi":"10.2139/SSRN.1572923","DOIUrl":"https://doi.org/10.2139/SSRN.1572923","url":null,"abstract":"Tiebreakers are familiar tools for decision-making. Ready examples include penalty shootouts in soccer matches and vice presidents breaking tie votes in the Senate. However, we lack a precise understanding of the concept and a normative theory for the use of tiebreakers. This Article strictly defines a tiebreaker as a kind of lexically inferior decision rule and then builds justifications for tiebreaking decision structures. Concentrating on situations in which ties are considered intolerable, the Article suggests methods for either preventing ties or designing sensible tiebreakers. As to the latter, tradeoffs are identified for the use of random variables, morally relevant variables, and double counted variables within a lexically inferior decision rule. Finally, the Article applies its conceptual and normative lessons to three problems: the best design for affirmative action programs, the proper interpretive method for legal texts, and the core function of adjudication. The closing sections evaluate law and adjudication as one large tiebreaker for the rest of social life, with contrasts and comparisons to other major theories for the mission of the court system in the United States.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"23 1","pages":"1661"},"PeriodicalIF":2.0,"publicationDate":"2010-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72971040","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}