University of Chicago Law Review最新文献

{"title":"The Origins of the American Public Trust Doctrine: What Really Happened in Illinois Central","authors":"Joseph D. Kearney, T. Merrill","doi":"10.7916/D8W66KBZ","DOIUrl":"https://doi.org/10.7916/D8W66KBZ","url":null,"abstract":"Introduction ......................................................................................................... 800 I. The Standard Illinois Central Narrative .................................................. 805 II. Setting the Stage ........................................................................................ 811 A . The Lay of the Land ......................................................................... 811 B. Legal Uncertainty over Property Rights in Submerged Lands....826 C. Implications for the Lakefront ........................................................ 836 III. 1867: The Lakefront in Play ...................................................................... 838 IV. 1868: Debating the Future of the Lakefront ........................................... 842 V. 1869: Chicago and the Illinois Central Go to Springfield ...................... 853 A. A Note on Newspapers and State Legislatures in the M id-N ineteenth Century .................................................................. 853 B. The Lake Front Act of 1869 ............................................................. 860 C. The Motives of the Illinois Central ................................................. 877 D . The Public Interest ............................................................................ 881 E. The Question of Corruption ............................................................ 887 V I. A fter the A ct .............................................................................................. 894 A. 1869-1870: North Lake Park ............................................................ 895 B. 1870-1872: The Outer Harbor ......................................................... 900 C . 1873: R epeal ....................................................................................... 905 V II. The Lake Front Case ................................................................................. 912 VIII. What Illinois Central Really Tells Us about the Public Trust D octrine ................................................................................ 924 C onclusion ........................................................................................................... 930","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"28 1","pages":"799-931"},"PeriodicalIF":2.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85497971","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":"Intellectual Property Arbitrage: How Foreign Rules Can Affect Domestic Protections","authors":"Pamela Samuelson","doi":"10.1017/CBO9780511494529.031","DOIUrl":"https://doi.org/10.1017/CBO9780511494529.031","url":null,"abstract":"The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), concluded in 1994, has narrowed the range of issues on which nations can adopt differing IP rules. All World Trade Organization (WTO) member nations, for example, must now protect computer programs by copyright law.' Yet TRIPS plainly contemplates continued differences in national laws by signaling that nations are free to adopt higher-protection rules than the required minima' (which presumably means they need not do so). Nations are also \"free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.\"' TRIPS restricts national autonomy by forbidding nations from treating foreigners less well than their own nationals,4 but this implicitly \"accept[s] the proposition that states may differ in their substantive laws.\"5 Other TRIPS provisions recognize that member states can adopt IP rules \"in a manner conducive to social and economic welfare\" and \"to promote","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"9 1","pages":"223-239"},"PeriodicalIF":2.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86791616","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 Shaping of Chance: Actuarial Models and Criminal Profiling at the Turn of the Twenty-First Century","authors":"B. Harcourt","doi":"10.2307/1600548","DOIUrl":"https://doi.org/10.2307/1600548","url":null,"abstract":"The turn of the twentieth century marked a new era of individualization in the field of criminal law. Drawing on the new science of positivist criminology, legal scholars called for diagnosis of the causes of delinquence and for imposition of individualized courses of remedial treatment specifically adapted to these individual diagnoses. \"[M]odern science recognizes that penal or remedial treatment cannot possibly be indiscriminate and machine-like, but must be adapted to the causes, and to the man as affected by those causes,\" leading criminal law scholars declared. \"Thus the great truth of the present and the future, for criminal science, is the individualization of penal treatment, -for that man, and for the cause of that man's crime.\"' The turn to individualized punishment gave rise to the rehabilitative project of the first three-quarters of the twentieth century -to discretionary juvenile courts, indeterminate sentencing, probation and parole, rehabilitative treatment, and the overarching concept of corrections. At the close of the century, the contrast could hardly have been greater. The rehabilitative project had been largely displaced by a model of criminal law enforcement that emphasized mandatory sentences, fixed guidelines, and sentencing enhancements for designated classes of crimes. The focus of criminal sentencing had become the category of crime, rather than the individual characteristics and history of the convicted person, with one major exception for prior criminal conduct. Incapacitation","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"122 1","pages":"105-128"},"PeriodicalIF":2.0,"publicationDate":"2003-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89163974","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":"Agency Choice of Policymaking Form","authors":"M. Magill","doi":"10.2139/SSRN.476562","DOIUrl":"https://doi.org/10.2139/SSRN.476562","url":null,"abstract":"An administrative agency delegated some task - protect the environment, assure the integrity of the securities markets, improve auto safety - might carry out that obligation by adopting a rule, bringing or deciding a case, or announcing its interpretation of the statute. Although agencies are unique institutions in this respect, this state of affairs generates little comment. This Article aims to rectify that by identifying, evaluating, and coming to terms with the phenomenon of agency choice of policymaking form. That phenomenon can be simply stated: The typical administrative agency is authorized to use a range of distinct policymaking forms to effectuate its statutory mandate and its choice about which tool to rely on appears, at first glance at least, to be unregulated by courts. Part I of the Article will discuss the policymaking tools that statutes and case law typically make available, the significance of the choice among them, and the varying choices that agencies make. Part II takes up the judicial reaction to agency choices of procedure. That judicial reaction, at least at first blush, can be simply described: hands-off. An agency can choose among its available policymaking tools and a court will not require it to provide an explanation for its choice. This judicial reaction is perplexing because it is out of step with the rest of the law of judicial review of agency action. This Part examines possible reasons why courts might treat agency choices of procedure differently than other exercises of discretion, but dismisses each of them as implausible. After setting forth this puzzle in the structure of the law, this Part offers an explanation for it. That explanation is rooted in the fact that courts have a surprising degree of control over the consequences of an agency's choice of form. By adjusting the consequences of choosing one form or another, courts have the opportunity to respond to whatever concerns they might have about an agency's choice. Courts thus review agency choices of procedure, albeit in a roundabout way. Parts I and II are devoted to identifying and analyzing the phenomenon of agency choice of policymaking form. That task is the main object of the Article because these features of administrative law and practice are not now considered worthy of notice. After noticing them, though, the next step is to come to terms with them. Part III of the Article starts that task.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"38 1","pages":"2"},"PeriodicalIF":2.0,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76944629","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":"Rethinking Prosecution History Estoppel","authors":"D. Lichtman","doi":"10.2139/SSRN.455380","DOIUrl":"https://doi.org/10.2139/SSRN.455380","url":null,"abstract":"Under the rule of prosecution history estoppel, patent applicants who amend their claims during the course of patent prosecution assume a significant risk: namely, the risk that a court will later construe the changes as concessions that should be read to limit patent scope. This risk is exacerbated by strong evidentiary presumptions under which courts are to assume, unless the patentee presents sufficient evidence otherwise, that every change triggers estoppel, and that the resulting estoppel forfeits everything except that which the revised language literally describes. The justification for these presumptions is that, implemented in this fashion, prosecution history estoppel makes patent scope more predictable. In this Article, I argue that the benefit comes at too high a price. Drawing on a large empirical study of patent prosecution, I show that, because of these evidentiary presumptions, estoppel is dangerously sensitive to differences between patent examiners and differences across technology categories. That is, estoppel treats similar applications in dissimilar ways, not because of differences on the merits, but instead because of the personal characteristics of the examiners involved and because of differences inherent to the types of technology at issue. A better rule, I argue, would minimize the significance of examiner and technology disparities by reversing the current evidentiary presumptions and thus recognizing estoppel only where there is clear evidence that the applicant and the examiner intended to forfeit a given scope of coverage.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"16 1","pages":"151-182"},"PeriodicalIF":2.0,"publicationDate":"2003-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81325416","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":"Reports of the Nondelegation Doctrine's Death Are Greatly Exaggerated","authors":"L. Alexander, S. Prakash","doi":"10.2139/SSRN.449020","DOIUrl":"https://doi.org/10.2139/SSRN.449020","url":null,"abstract":"The nondelegation doctrine has roots that extend as far back as three centuries, or so most of us suppose. In The Second Treatise of Government, John Locke listed four constraints on the legislative power, the last that the power, being derived from the People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands.Most contemporary readers have assumed two things about Locke's statement: First, that the legislative power was the power to make rules for society. Second, that this delegated power to make laws could not be transferred to third parties because the people had never authorized their agents to further delegate. These two principles underlay the conventional nondelegation doctrine, which maintains that if a statutory delegation of discretion to third parties sweeps too broadly, it will constitute an impermissible delegation of legislative power.In their recent article, Interring the Nondelegation Doctrine, Professors Eric Posner and Adrian Vermeule reconsider the meaning of Locke's epigram and reassess the foundations of the nondelegation doctrine. In their view, the \"legislative power\" generally references the right to vote on bills in a legislature along with the other de jure powers of legislators. Moreover, Locke's maxim means no more than that the legislature cannot make third parties \"legislators\" by giving them the power to vote in the legislature. So when Article I of the Constitution speaks of \"legislative Powers,\" it refers to those powers individually held by federal legislators, including most prominently the right to vote on bills. Furthermore, under their \"naive\" nondelegation doctrine, these are the legislative powers that cannot be delegated to third parties. Under their view, neither Locke's epigram nor the federal Constitution go further and prohibit broad delegations of discretion to third parties because such delegations do not create legislators and hence cannot delegate legislative power. Accordingly, should Congress delegate to some third party its entire power to \"regulate Commerce,\" Congress has not delegated legislative power at all in either a Lockean or a constitutional sense.Professors Posner and Vermeule deserve praise for reexamining fundamental assumptions about the nature and meaning of legislative power and of the nondelegation doctrine. When scholars don't periodically reconsider conventional wisdom, scholarship stagnates and shibboleths are unreflectively accepted as constitutional gospel.Having said this, we doubt that they truly have laid to rest either the traditional understanding of legislative power or the conventional nondelegation doctrine. Our disagreements are both normative and descriptive. We cannot discern (and they do not advance) a plausible rationale for simultaneously permit","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"35 1","pages":"1297-1329"},"PeriodicalIF":2.0,"publicationDate":"2003-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89448093","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 Origins of Judicial Review","authors":"J. Yoo, S. Prakash","doi":"10.2139/SSRN.426860","DOIUrl":"https://doi.org/10.2139/SSRN.426860","url":null,"abstract":"This year marks the 200th anniversary of Marbury v. Madison, the case which is often taught in law schools as establishing judicial review. Despite the absence of any broader political controversy over the role of the Supreme Court, akin to that which existed during the Civil War or the New Deal periods, academics from both ends of the political spectrum have attacked the legitimacy of judicial review. Recent critics have even argued that the Constitution, as originally understood, did not authorize courts to refuse to enforce unconstitutional legislation. In this paper, we discuss the textual, structural, and historical roots of judicial review. First, we show that the constitutional text permits judicial review and we describe the severe difficulties associated with the claim that the Constitution is not law to be applied in the courts. Second, we explain that the constitutional structure requires the judiciary refuse to enforce laws that violate the Constitution due to its status as a coordinate branch of government. Simply put, the text and structure demand that the judiciary interpret and give effect to the Constitution in the course of performing its function of deciding Article III cases or controversies. Third, we refute the notion that the Founders did not understand the Constitution to establish judicial review. We trace how historical developments leading up to the ratification had made judicial review a familiar institution to the Founders, and we demonstrate that all those who discussed judicial review during ratification (there were dozens) agreed that the Constitution authorized judicial review. We conclude that those who argue that the Founders originally understood the Constitution to preclude judicial review have misread the historical record.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"45 1","pages":"887-982"},"PeriodicalIF":2.0,"publicationDate":"2003-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87527398","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":"Information Markets, Administrative Decisionmaking, and Predictive Cost-Benefit Analysis","authors":"M. Abramowicz","doi":"10.2139/SSRN.430640","DOIUrl":"https://doi.org/10.2139/SSRN.430640","url":null,"abstract":"FutureMAP, a project of the Defense Advanced Research Projects Agency, was to involve experiments to determine whether information markets could improve Defense Department decisionmaking. Information markets are securities markets used to derive information from the prices of securities whose liquidation values are contingent on future events. The government intended to use such a market to assess the probabilities of potential political assassinations, and the indelicacy of this potential application contributed to a controversy leading to the cancellation of the program. In this Article, Professor Abramowicz assesses whether information markets in theory could be useful to administrative agencies, and it concludes that information markets could help discipline administrative agency predictions, but only if a number of technical hurdles such as the danger of manipulation can be overcome. Because the predictions of well-functioning information markets are objective, they function as a tool that exhibits many of the same virtues in predictive tasks that cost-benefit analysis offers for normative policy evaluation. Both approaches can help to overcome cognitive errors, thwart interest group manipulation, and discipline administrative agency decisionmaking. The Article suggests that the two forms of analysis might be combined to produce a \"predictive cost-benefit analysis.\" In such an analysis, an information market would predict the outcome of a retrospective cost-benefit analysis, to be conducted some years after the decision whether to enact a particular policy. As long as the identity of the eventual decisionmaker cannot be anticipated, predictive cost-benefit analysis estimates how an average decisionmaker would be expected to evaluate the policy. Because the predictive cost-benefit analysis assessment is not dependent on the identity of current agency officials, they cannot shade the numbers to justify policies that the officials prefer for idiosyncratic or ideological reasons.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"24 1","pages":"933-1020"},"PeriodicalIF":2.0,"publicationDate":"2003-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84173464","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 Consequences of Undoing the Federal Income Tax","authors":"Julie Roin","doi":"10.2307/1600561","DOIUrl":"https://doi.org/10.2307/1600561","url":null,"abstract":"Although economists have long trumpeted the benefits of \"economically neutral\" tax systems, Congress has always used the income tax code to help favoured groups and to encourage certain activities. This essay identifies and evaluates a few of the myriad dislocations that would be brought about by the repeal of the federal income tax and its replacement with some form of consumption tax. In particular, the essay examines the political quandaries such a repeal will create in the areas of employer-provided health care and pension benefits, owner-occupied housing, and state and local government financing.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"8 1","pages":"319-334"},"PeriodicalIF":2.0,"publicationDate":"2003-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78126448","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 Constitutional Law of Congressional Procedure","authors":"Adrian Vermeule","doi":"10.2139/SSRN.382461","DOIUrl":"https://doi.org/10.2139/SSRN.382461","url":null,"abstract":"The federal constitution contains a set of rules that I will describe as the constitutional law of congressional procedure. These are rules that regulate the internal decisionmaking procedures of Congress; absent specific constitutional provision, they would be subject to the authority of each House to \"determine the Rules of its Proceedings.\" The constitutional law of congressional procedure encompasses the long catalogue of provisions in Article I, Section 4-5, which includes rules for assembling the legislature, selecting its officers, and disciplining its members; voting and quorum rules; rules governing the transparency of deliberation and voting; and a range of other provisions. It also encompasses other important rules scattered elsewhere in Articles I and II, such as the Origination Clause, special quorum rules for supermajority voting, and the special procedures for overriding a presidential veto. The constitutional law of congressional procedure has rarely been analyzed as an integrated body of rules, largely because of historical quirks in the relevant sectors of political science and constitutional law. The article's project is to examine this body of rules as a unified topic that is central to the constitutional design of legislative power. The project is instrumental and prescriptive; the article asks how the Constitution's rules of congressional procedure might be structured to advance a congeries of widely-shared aims. The relevant rules should, among other things, promote congressional deliberation that is well-informed and cognitively undistorted, minimize the principal-agent problems inherent in legislative representation, and encourage technically efficient use of constrained legislative resources, especially time. The difficult enterprise is not stating the aims to which well-designed legislative procedure should conduce, but rather negotiating the inevitable tradeoffs between and among them. Part I surveys the methodological problems that constitutional framers designing legislative procedure must confront, especially the key problem whether and when rules of legislative procedure should be promulgated in the Constitution itself, or instead be committed to the discretion of future congresses through a general grant of rulemaking power. Part II considers in turn the timing of congressional sessions, the admission and expulsion of legislators, the selection of legislative officers, voting and quorum rules, the transparency of legislative deliberation and voting, the rule barring the Senate from originating revenue bills, and the question whether Congress may enact binding statutes that prescribe internal rules for the two Houses taken separately. This Part also considers rules of legislative procedure that appear in state and foreign constitutions, and whose absence from our own itself poses interesting puzzles. Examples are rules requiring three readings before a bill may be enacted, and rules that bar the introduction or ena","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"61 1","pages":"361-437"},"PeriodicalIF":2.0,"publicationDate":"2003-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80384126","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}