University of Chicago Law Review最新文献

{"title":"The Scope of Statutory Permissiveness: Private Actions to Enforce Self-Evaluation and Transition Plans under Title II of the Americans with Disabilities Act","authors":"Casey R. Fronk","doi":"10.2307/20141864","DOIUrl":"https://doi.org/10.2307/20141864","url":null,"abstract":"Toby Tyler, a former police officer disabled in the line of duty, was convinced that his hometown's attempts to comply with the Americans with Disabilities Act' (ADA) were palpably inadequate. The city claimed it was financially incapable of modifying its sidewalks and curbs in a timely manner, and it resisted Tyler's repeated requests for other facilitative adaptations. Although Tyler desired to be active in civic affairs, the city permitted its advisory committees to convene in a restaurant lacking handicap-accessible restrooms, and the City Commission refused to generate audio copies of important documents debated in its biweekly meetings. Tyler enjoyed watching tennis and baseball, and yet the city delayed constructing the handicap ramps necessary to provide egress from certain recreational viewing areas. After frequent but ultimately ineffective attempts to convince the city to comply voluntarily with the ADA, Tyler brought suit for injunctive relief. However, rather than premising liability solely on violations of the ADA itself, Tyler also included a more adventitious claim: that the city had failed to formulate an adequate transition plan and selfevaluation plan required by Title II's implementing regulations, which","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"11 1","pages":"6"},"PeriodicalIF":2.0,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83423389","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 Common Interest Doctrine and Disclosures during Negotiations for Substantial Transactions","authors":"Anne King","doi":"10.2307/20141866","DOIUrl":"https://doi.org/10.2307/20141866","url":null,"abstract":"During negotiations for corporate transactions, each party involved shares non-public information with the other party. Information shared during negotiations is instrumental in assessing the financial and legal risks of doing business. Sometimes, one of the parties discloses communications protected by the attorney-client privilegesuch as a patent opinion letter or a memorandum assessing a corporate client's litigation risks. Disclosure of a privileged document during business negotiations appears to work an implied waiver of the attorney-client privilege, meaning that the shared documents could be compelled in future litigation. Document sharing does not inexorably work a waiver: the law of evidence recognizes that parties with a common interest may share privileged communications without waiving the privilege.' Nevertheless, the \"common interest doctrine\" arguably does not protect disclosures during business negotiations. In order to come within the common interest doctrine, parties must share a common interest that is \"legal, not solely commercial,\"2 and parties must anticipate collaboration in pending or future litigation.3 Under this definition, one might argue, corporations engaged in negotiations do not share a common interest because each party seeks to maximize its commercial gain","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"26 1","pages":"8"},"PeriodicalIF":2.0,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89366900","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":"Minors' Constitutional Right to Informational Privacy","authors":"Helen L. Gilbert","doi":"10.2307/20141865","DOIUrl":"https://doi.org/10.2307/20141865","url":null,"abstract":"The contours of the constitutional right to privacy have eluded courts since the Supreme Court first announced this distinct right in Griswold v Connecticut.' Likely in a failed attempt to clear up this doctrine, the Court in Whalen v Roe2 declared that the right to privacy encompasses two separate interests: security of personal information and autonomy in making important decisions.3 While the Supreme Court has revisited the second strand-often deemed \"decisional privacy\"-many times since Whalen, it has reexamined the first strand, \"informational privacy,\" only once, and in the same year it decided Whalen. Yet in this case, Nixon v Administrator of General Services,' the Court did little to clarify the scope of informational privacy rights, leaving the courts of appeals to build a framework for evaluating informational privacy claims. Every circuit court but the D.C. Circuit recognizes Whalen as establishing a separate constitutional right to informational privacy. These courts have created a conceptually diverse but relatively stable framework for evaluating informational privacy claims. However, this framework was built on the informational privacy claims of adults. Recently, courts have been asked to assess similar claims brought by minors and have responded in two ways.7 The Third and Ninth Circuits have applied their informational privacy analysis to minors with","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"1 1","pages":"7"},"PeriodicalIF":2.0,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82838897","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":"RLUIPA, Distress, and Damages","authors":"Jennifer Larson","doi":"10.2307/20141867","DOIUrl":"https://doi.org/10.2307/20141867","url":null,"abstract":"Do prisoners have a right without a remedy? 3 The Religious Land Use and Institutionalized Persons Act of 2000 4 (RLUIPA or “the Act”) provides that “[n]o government shall impose a substantial burden on the religious exercise of a person” confined in a prison. 5 The Act further provides that a prisoner bringing a cause of action under RLUIPA may “obtain appropriate relief.” 6 But the Prison Litigation Reform Act of 1995 7 (PLRA) bars claims for damages for mental and emotional distress without physical injury. Because violations of the right to freely exercise one’s religion seldom cause physical injury, it is not clear whether or when prisoners suing under RLUIPA may recover compensatory damages when their statutory rights are violated. This Comment examines the apparent conflict between RLUIPA and PLRA. The issue addressed here is the result of three developments. First, in 1990 the Supreme Court decided Employment Division v Smith, 8 which made it more difficult for individuals (including prisoners) to establish a violation of First Amendment rights in the particu-","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"1 1","pages":"9"},"PeriodicalIF":2.0,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87513272","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":"\"Second or Successive\" Habeas Petitions and Late-Ripening Claims after Panetti v Quarterman","authors":"K. Reynolds","doi":"10.2307/20141868","DOIUrl":"https://doi.org/10.2307/20141868","url":null,"abstract":"The Antiterrorism and Effective Death Penalty Act of 19961 (AEDPA) provides that, except in narrow circumstances, \"second or successive\" petitions for writs of habeas corpus must be dismissed.2 Some valid constitutional claims, however, do not become ripe until after the prisoner has been convicted and sentenced, and perhaps af ter one habeas petition has been presented and denied on the merits. AEDPA's \"gatekeeping\" provisions-codified at 28 USC ? 2244(b) have the potential to foreclose review of meritorious constitutional claims, and a division in the circuit courts has developed over their interpretation. One set of courts takes a \"liberal\" approach, focusing on pre-AEDPA common law principles and erring on the side of al lowing claims. Another set takes a more rigorous textual and struc tural tack, which is appealing on an interpretive level but has the po tential to prevent judicial review of constitutional violations. The Su preme Court has recently addressed a limited aspect of this question, and it applied the liberal approach with a pragmatist flourish. All of these approaches suffer from serious shortcomings, and this Comment argues that the textual interpretation should be followed except in certain circumstances in which that interpretation would foreclose review of a possible constitutional violation. In this scenario, courts should invoke the canon of constitutional avoidance to prevent violat ing the underlying constitutional right that the prisoner seeks to vindi cate through a writ of habeas corpus. In short, this Comment focuses on a very particular question, but one that could be of great import. Imagine a prisoner petitions a fed eral court for a writ of habeas corpus, and the petition is duly adjudi cated on the merits. If she files again, this time including a claim that was unripe at the time of the earlier petition and thus not included, must the chronologically second petition be dismissed as \"second or","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"65 Supplement 1","pages":"10"},"PeriodicalIF":2.0,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82050950","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":"Explaining Theoretical Disagreement","authors":"B. Leiter","doi":"10.2139/SSRN.1004768","DOIUrl":"https://doi.org/10.2139/SSRN.1004768","url":null,"abstract":"Shapiro (2007) has recently argued that Dworkin posed a new objection to legal positivism in Law's Empire, to which positivists, he says, have not adequately responded. Positivists, the objection goes, have no satisfactory account of what Dworkin calls \"theoretical disagreement\" about law, that is, disagreement about \"the grounds of law\" or what positivists would call the criteria of legal validity. I agree with Shapiro that the critique is new, and disagree that it has not been met. Positivism can not offer an explanation that preserves the \"face value\" of theoretical disagreements, because the only intelligible dispute about the criteria of legal validity is an empirical or \"head count\" dispute, i.e., a dispute about what judges are doing, and how many of them are doing it (since it is the actual practice of officials and their attitudes towards that practice that fixes the criteria of legal validity according to the positivist). Positivism, however, has two other explanations for theoretical disagreement, which \"explain away\" rather than preserve the \"face value\" disagreement. According to positivists, either theoretical disagreements are disingenuous, in the sense that the parties, consciously or unconsciously, are really trying to change the law, that is, they are trying to say, as Dworkin puts it, \"what it should be\" not \"what the law is\"; or they are simply in error, that is, they honestly think there is a fact of the matter about what the grounds of law are, and thus what the law is, in the context of their disagreement, but they are mistaken, because, in truth, there is no fact of the matter about the grounds of law in this instance precisely because there is no convergent practice of behavior among officials constituting a Rule of Recognition on this point. The \"Disingenuity\" and \"Error Theory\" accounts of theoretical disagreement are explored, with attention to the theoretical desiderata (e.g., simplicity, consilience, methodological conservativism) at stake in choosing between competing explanatory theories. Particular attention is given to the best explanation for Riggs v. Palmer in light of the actual historical context of the decision and other opinions by the Riggs judges in contemporaneous cases.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"40 1","pages":"1215"},"PeriodicalIF":2.0,"publicationDate":"2007-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90466436","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 Tax Advantage to Paying Private Equity Fund Managers with Profit Shares: What is it? Why is it Bad?","authors":"C. Sanchirico","doi":"10.2139/SSRN.2017126","DOIUrl":"https://doi.org/10.2139/SSRN.2017126","url":null,"abstract":"Private equity is very much in the public eye. The prototypical private equity fund purchases, restructures, and resells ailing companies. The managers of such funds are typically paid with a share of the fund's profits. Over the last several months, the favorable income tax treatment of these compensatory profits interests has been the subject of an ever swelling stream of headlines, editorials, and Congressional hearings. But despite the attention the issue has received, the tax advantage of compensatory profit shares is not well understood, and the reasons for reform are, accordingly, not well developed. This article clarifies the nature of the tax advantage and, with that understanding in mind, critically assesses some of the chief arguments for and against the current tax treatment.The appendices for this paper are available at the following URL: http://ssrn.com/abstract=2017126","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"68 1","pages":"4"},"PeriodicalIF":2.0,"publicationDate":"2007-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84064782","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":"Virtual Confrontation: Is Videoconference Testimony by an Unavailable Witness Constitutional?","authors":"Matthew J. Tokson","doi":"10.2307/20141871","DOIUrl":"https://doi.org/10.2307/20141871","url":null,"abstract":"Because United States courts have no subpoena power over foreign witnesses, securing their in-person testimony in criminal cases presents serious difficulties for prosecutors. Video conferencing technology may offer a creative solution to this problem. However, defendants often challenge video testimony on constitutional grounds, arguing that its use in court violates their Sixth Amendment right to confront the witnesses testifying against them. Courts have split over the constitutional status of video testimony, and its legality remains uncertain. This Comment resolves the split by examining the history, purpose, and jurisprudence of the Confrontation Clause and identifying the constitutional standards that courts should apply to video testimony. Analyzing foreign and domestic deposition procedures, the Comment identifies numerous situations where video testimony serves an important public policy and is constitutionally permissible.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"35 1","pages":"13"},"PeriodicalIF":2.0,"publicationDate":"2007-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74688072","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":"Reviewing the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform","authors":"Max M. Schanzenbach, Emerson H. Tiller","doi":"10.2139/SSRN.995299","DOIUrl":"https://doi.org/10.2139/SSRN.995299","url":null,"abstract":"This article presents the first large-scale empirical study of federal guidelines sentencing that matches offenders to the sentencing judge. We confirm the widely-held belief that political ideology matters in criminal sentencing - specifically, Republican-appointed judges give longer sentences than Democrat-appointees with regard to certain crimes. More interestingly, we find evidence consistent with positive political theory that such decision making is nested within the broader political-ideological relationship of the sentencing judge and the overseeing circuit court. We find, for example, that Democrat-appointed judges depart from the Sentencing Guidelines to give shorter sentences more often and to a greater degree when the reviewing court is politically aligned (circuit majority Democrat-appointed) than when not aligned (circuit majority Republican-appointed). We then discuss the Supreme Court's evolving sentencing jurisprudence and the likely impact of alternatives to the present system. We conclude that Guidelines improves sentencing consistency and preserves the benefit of appellate review. We also proposes two potential reforms: first, mandating open access to judge identifiers in sentencing data for researchers to study sources of judicial bias; and, second, mandating ideologically mixed appellate panels for review of criminal sentences to prevent the more extreme instances of ideological alignment that frequently occur between district and circuit court panels that lead to more extreme outcomes in sentencing.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"8 1","pages":"3"},"PeriodicalIF":2.0,"publicationDate":"2007-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76093232","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":"Booker's Unnoticed Victim: The Importance of Providing Notice Prior to Sua Sponte Non-Guidelines Sentences","authors":"I. Beylin","doi":"10.2139/SSRN.940954","DOIUrl":"https://doi.org/10.2139/SSRN.940954","url":null,"abstract":"This paper 1) notices that Booker uprooted the statutory basis for the departure concept, suggesting that courts are at liberty to deviate from precedent rooted in the pre-Booker concept; 2) explains why Rule 32(i)(1)(C) as read by Burns v United States requires notice prior to sua sponte non-Guidelines sentences in those jurisdictions that require a distinct legal determination if a non-Guidelines sentence is warranted; and 3) discusses why such notice would be beneficial in other jurisdictions.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"1 1","pages":"6"},"PeriodicalIF":2.0,"publicationDate":"2007-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83941231","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}