University of Chicago Law Review最新文献

{"title":"The Timing of Elections","authors":"Christopher R. Berry, Jacob E. Gersen","doi":"10.2139/ssrn.1433518","DOIUrl":"https://doi.org/10.2139/ssrn.1433518","url":null,"abstract":"There are nearly half a million elected officials in American local governments, and the timing of their elections varies enormously both across states and even within the same state. Some local elections are held simultaneously with major federal and state races, while others are held at times when no higher level elections coincide. This Article argues that the timing of local elections drives turnout and, ultimately, substantive policymaking. When local elections do not coincide with important federal or state contests, the marginal cost to voters of participating rises, and consequently only those voters with the greatest stake in the electoral outcome turn out, a phenomenon we label “selective participation.” Selective participation is especially pronounced in local specialpurpose elections, such as those for school and special districts, where single-issue interest groups are especially influential. When there is selective participation in a low turnout election, policy outcomes will be more favorable to special interests than they would be if the same government were elected in a high turnout election. To explore these ideas empirically, we examine a natural experiment created by a 1980s change in the California Election Code, which gave school boards the option of changing their elections from off-cycle to on-cycle. Against this backdrop, we consider alternative legal regimes for regulating the timing of local government elections.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"5 1","pages":"3"},"PeriodicalIF":2.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87208186","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 Most Popular Tool: Tax Increment Financing and the Political Economy of Local Government","authors":"Richard Briffault","doi":"10.7916/D8J966KG","DOIUrl":"https://doi.org/10.7916/D8J966KG","url":null,"abstract":"Tax increment financing (TIF) is the most widely used local government program for financing economic development in the United States, but the proliferation of TIF is puzzling. TIF was originally created to support urban renewal programs and was narrowly focused on addressing urban blight, yet now it is used in areas that are plainly unblighted. TIF brings in no outside money and provides no new revenue-raising authority. There is little clear evidence that TIF has done much to help the municipalities that use it, and it is also a source of intergovernmental tension and a site of conflict over the scope of public aid to the private sector. Yet, the expansion of TIF makes sense in light of the basic structure of American local government law. Studying TIF can illuminate central features of our local government system. TIF succeeds—in the sense of its widespread adoption and use— because it, like local government more generally, is highly decentralized; reflects and reinforces the fiscalization of development policy; plays off the fragmentation of local governments and the resulting interlocal struggle for investment; and fits well with the entrepreneurial spirit characteristic of contemporary local economic development policy. A better understanding of TIF contributes to a better understanding of the political economy of American local government.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"55 1","pages":"65-95"},"PeriodicalIF":2.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79838515","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":"Direct Voting by Property Owners","authors":"T. Merrill","doi":"10.7916/D8CZ36PP","DOIUrl":"https://doi.org/10.7916/D8CZ36PP","url":null,"abstract":"Direct voting by property owners is a widespread but controversial tool for resolving disputes over local collective goods. Direct voting has powerful advantages, in that it can harness the superior knowledge of many local minds, resolve controversies in a way that is perceived to be legitimate, and eliminate corrupt dealmaking. But it also has serious pitfalls, if local voters are poorly informed, or if they ignore external effects on other communities, or if the process is distorted by majoritarian or minoritarian bias. To capitalize on the advantages of local voting, and minimize the risks, this Article proposes that direct voting be limited to local property owners, in a one-owner, one-vote fashion. The issues chosen for resolution by direct voting should also be ones with uniform high stakes for property owners, and minimal spillover effects outside the voting community. Applications to controversies over the creation of local historic districts and the use of eminent domain for economic development are discussed.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"1 1","pages":"275-310"},"PeriodicalIF":2.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86505144","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 Arbitrator as Agent: Why Deferential Review is Not Always Pro-Arbitration","authors":"Tom Ginsburg","doi":"10.2139/SSRN.1523969","DOIUrl":"https://doi.org/10.2139/SSRN.1523969","url":null,"abstract":"It has long been thought that minimal judicial review of arbitral awards helps further the federal policy of supporting arbitration. This contribution to a symposium on Judge Easterbrook’s judicial contributions argues that this position has its limits. Viewing the arbitrator as an agent of the parties, as Judge Easterbrook does in the 2001 case of George Watts and Sons v. Tiffany, helps to illuminate that parties might sometimes want to choose a higher level of judicial review than the minimal level required by the Federal Arbitration Act. Allowing parties to opt into higher levels of review might allow high-quality arbitrators to trade on their skill, ensuring that the pool of arbitrators as a whole is of higher quality. The U.S. Supreme Court’s 2008 decision in Hall Street Associates v. Mattel, however, holds that parties cannot contract for higher levels of review of arbitral awards. Hall Street, perversely, might reduce the overall quality of arbitration, leading to more contract disputes in the federal courts.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"3 1","pages":"1013"},"PeriodicalIF":2.0,"publicationDate":"2009-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86626415","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":"History of the Supreme Court of the United States, Volume V: The Taney Period, 1836-64","authors":"D. Fehrenbacher, C. B. Swisher","doi":"10.2307/1121707","DOIUrl":"https://doi.org/10.2307/1121707","url":null,"abstract":"","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"14 1","pages":"216"},"PeriodicalIF":2.0,"publicationDate":"2009-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72829672","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":"Easterbrook on Copyright","authors":"Randal C. Picker","doi":"10.2139/SSRN.1505613","DOIUrl":"https://doi.org/10.2139/SSRN.1505613","url":null,"abstract":"In this essay prepared in celebration of Judge Frank Easterbrook’s 25th year on the bench, I focus on what copyright students learn from him. Three of his dozen or so copyright opinions turn up repeatedly in copyright casebooks: Nash v. CBS, Inc.; Lee v. A.R.T. Co.; and ProCD, Inc. v. Zeidenberg. This is a surprising success rate for a judge from the copyright-starved 7th Circuit. Judge Easterbrook has an eye for fundamental questions, writes opinions that are brief while treating issues fully and has a distinctively lively Easterbrookian style, one that he preserves by refusing to outsource his opinions to his clerks.Nash poses a key conceptual question: if only one person believes something to be a fact, is it a copyright fact? We confront the idiosyncratic fact, that is a claim of fact that may be believed by only one person and by no one else. Nash is casebook-worthy alone because of the factual situation it encompasses, as it is the law-school hypo come alive. The opinion nails down a key conceptual boundary question for copyright: copyright facts and actual facts may have little to do with each other.Lee answers the age-old question: what does glue do? Annie Lee created postcards of her original art. A.R.T. Co. glued postcards to tiles and sold them. In doing so, does A.R.T. violate Lee’s exclusive right to make derivative works as set forth in Section 106(2)? Lee is a refreshingly brief opinion, little more than five columns in F3d, yet, like Nash, it poses in simple fashion a basic question about the operation of copyright. Boundary cases are particularly important because legal analysis frequently builds off of what is taken as given: if x is right, then y must follow. Lee does exactly that for derivative works, an area of increasing importance for copyright.Finally. ProCD is one of Easterbrook’s best-known decisions, studied by contract students and copyright students alike. ProCD is the opinion that the copyright casebooks love to hate. Easterbrook validates the contract that limits the subsequent use of the ProCD database and wrestles with the tricky question of the interaction between copyright and contract.Student learn to pay close attention to the text of the copyright statute and to appreciate how that text operates in critical boundary settings. The opinions are written with a distinctive elan, with a little bit of law and economics thrown in, though less than you might expect given Frank’s deep academic roots. Students should understand that the business of deciding cases is a different one than of engaging in an abstract academic inquiry. Easterbrook on copyright is somehow a work of interest, fun and yet discipline all at the same time.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"79 1","pages":"1165"},"PeriodicalIF":2.0,"publicationDate":"2009-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76727480","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":"Pre-Closing Liability","authors":"O. Ben‐Shahar","doi":"10.2139/SSRN.1505614","DOIUrl":"https://doi.org/10.2139/SSRN.1505614","url":null,"abstract":"Two years after Penzoil v. Texaco threatened to burst the seam of contract formation and find binding commitments before negotiations ended, Judge Easterbrook stitched the rupture. His landmark decision in Empro v. Ball Co. held that a letter-of-intent, which is subject to the preparation of a more comprehensive formal document, is not binding. Each party can freely walk away from it prior to the closing, without incurring any liability and without the court scrutinizing the reasons for the negotiations breakdown. Many courts have since cited and followed Judge Easterbrook’s approach. In this commentary, I argue that that this freedom to walk away from negotiations is too broad and in conflict with the ex ante interests of the parties. Intermediate liability at the pre-closing stage would induce more efficient levels of precontractual reliance, benefiting both parties. I develop one possible foundation for an intermediate liability regime and demonstrate how it would apply in the case.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"392 1","pages":"977"},"PeriodicalIF":2.0,"publicationDate":"2009-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85007008","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":"NRA v. City of Chicago: Does the Second Amendment Bind Frank Easterbrook?","authors":"R. Epstein","doi":"10.2139/SSRN.1505608","DOIUrl":"https://doi.org/10.2139/SSRN.1505608","url":null,"abstract":"In NRA v. City of Chicago, Judge Easterbrook held that the Second Amendment, which protects the right to keep and bear arms, did not bind state governments. This article examines the reasoning that he uses to reach that result, which it contrasts with the style of argumentation that led to the opposite conclusion in Judge O’Scannlain’s decision in Norkdye v. King. Easterbrook’s approach emphasized the imperative need for lower court deference to the Supreme Court’s explicit Reconstruction Era holdings that the Second Amendment does not bind the states, even after the Supreme Court’s game-changing decision in District of Columbia v. Heller and thus gave only scant attention to the various historical authorities that O’Scannlain referred to in Nordyke. On balance it appears that Easterbrook is against incorporation on a variety of historical and federalism grounds, none of which are likely to prevail when the Supreme Court addresses the issue of incorporation when it hears the case later in the 2009 October Term.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"58 1","pages":"997"},"PeriodicalIF":2.0,"publicationDate":"2009-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83573527","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":"ProCD v. Zeidenberg and Cognitive Overload in Contractual Bargaining","authors":"E. Posner","doi":"10.2139/SSRN.1499414","DOIUrl":"https://doi.org/10.2139/SSRN.1499414","url":null,"abstract":"Judge Frank Easterbrook’s opinion in ProCD v. Zeidenberg has been heavily criticized for ignoring the law and making unrealistic assumptions about the ability of consumers to read and understand contract terms. This contribution to a symposium on Judge Easterbrook’s judicial output argues that the opinion is a classic example of the manipulation of legal doctrine to advance a policy goal - here, enabling sellers to communicate contract terms when buyers’ time and attention are limited. Contrary to the conventional wisdom, Judge Easterbrook implicitly assumes that buyers are fallible, not hyperrational; his doctrinal solution persuasively addresses the problem of cognitive overload while endorsing a valuable business tool - the “terms later” or “rolling” contract - that reduces the cost of transacting.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"43 1","pages":"1181"},"PeriodicalIF":2.0,"publicationDate":"2009-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84703563","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 Modernizing Mission of Judicial Review","authors":"D. Strauss","doi":"10.2139/SSRN.1452877","DOIUrl":"https://doi.org/10.2139/SSRN.1452877","url":null,"abstract":"Constitutional interpretation usually looks to the past--to an old text, to history, to precedent, to tradition — in an effort to limit political majorities. But recently, the Supreme Court has taken a different approach to the Constitution: It has tried to anticipate trends in public opinion instead of taking lessons from the past; and, at the same time, instead of facing down popular majorities, the Court has been prepared to give way if it learns that it has misgauged public opinion. This approach — which might be called modernization — has characterized the Supreme Court’s recent work in several areas, including the Cruel and Unusual Punishment Clause of the Eighth Amendment and the limits on sex discrimination imposed by the Equal Protection Clause. Perhaps most interesting, the substantive due process decisions of the last 40 years are modernizing decisions, unlike the pre-New Deal substantive due process decisions to which they are often, mistakenly, compared. Modernization is an appealing approach in many ways. Among other things, it holds out the hope of more easily reconciling judicial review with democracy. But modernization also raises serious questions--particularly that the courts may distort the political process and may be too willing to accommodate what they perceive as the demands of popular opinion, at the expense of a principled judicial role.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"51 1","pages":"859"},"PeriodicalIF":2.0,"publicationDate":"2009-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87466882","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}