What we call meat has become a contentious issue in the United States. This article is the first to explore the many dynamics behind meat labeling laws proposed by various state legislatures. It uses food studies methods to places those debates within a larger context of the history of “meat,” plant-based proteins, cell-cultured proteins, and insect-based proteins, as well as other food labeling struggles. The article ultimately argues that expressly recognizing these dynamics can augment sustainable food advocacy efforts in the future.
Congress and federal financial regulators have long prioritized the safety and soundness of banking firms. But at the same time, the directors and officers of banking firms are legally bound to prioritize shareholder wealth maximization, which creates incentives for risk-taking that work against these regulatory goals. This shareholder primacy norm has long been a central feature of corporate governance, but as I describe in this Article its application to banks was not a deliberate policy choice but rather a historical accident. Indeed, banks possess several unique features that make shareholder wealth maximization an inapt governance priority for them. Banks are highly leveraged, which increases the importance of creditor agency costs. Banks also enjoy government guarantees, either explicit or implicit, on their short-term debt, and thus their governance is a matter of public concern. Finally, bank failures result in high negative externalities, and this also creates a strong public interest in bank safety and soundness. This Article argues that a new federal governance regime for banking institutions is appropriate and consistent with the historical purposes of banking regulations and charter oversight in the United States. Furthermore, such a regime would reduce the tensions between the law of state entities and the sprawling federal banking regulatory framework created by Congress, and harmonize the internal governance of banking firms with the broader goals of external banking regulations. Finally, I offer some thoughts on the key principles that should be present in any such federal governance regime for banking. For too long, we have tolerated a “cat-and-mouse” dynamic in banking, one in which regulators have sought to identify and address risky practices while knowing that the directors and officers of banking firms have strong incentives to take on higher risk. By changing this paradigm and realigning the incentives inherent in banking governance, we can take a major step towards ensuring long-term stability in our financial system.
There is an inescapable inconsistency between the general rule that naked (cartelistic) restraints of competition are per se illegal and the treatment of such restraints when engaged in by self-regulatory professional organizations, standard setting organizations, and various private organizations that regulate competition in variety of athletic and other activities. Most observers believe that some of that cartelistic regulation may be not only socially and economically desirable but also necessary to serve the public interest. The judicial effort to explain when cartels or other naked restraints on competition within or between such groups and others are lawful and when they are not has floundered on the lack of specificity of the “rule of reason” which invites linking any justification for a restraint to some ambiguous assertion of “reasonableness.” The inevitable implication is that any cartel could be lawful if it were reasonable and served some “pro- competitive,” “consumer welfare,” or other “public interest” goal. This Article contends that this approach is wrong. Instead, what courts are in fact doing is preempting certain kinds of restraints from antitrust law review, although this is evident only by implication. This Article applies the Carstensen-Roth framework to explain such preemption or exemption. Three elements are necessary: state law, federal law, constitutional law, or some generally accepted public interest goal must authorize the organization to regulate some aspect of the market, the regulation at issue must be within the scope of that authorization, and the process used to adopt and implement the regulation must be appropriate under the circumstances. Naked restraints satisfying these elements are exempt from antitrust law review, and courts applying antitrust law should not undertake to determine the substantive “reasonableness” of such regulations. This framework adheres to the general rule that naked restraints of competition are always per se illegal unless exempt and provides a clearer basis for determining when and whether a restraint can be lawful. The three Supreme Court decisions reviewing FTC challenges to conspiracies among dentists to restrict and regulate competition in dental care provide the basis to illustrate and test this approach.
Since World War II, it has become increasingly common practice for presidents to use non-defensive military force abroad without obtaining congressional pre-approval, thereby leaving Congress with no meaningful role in the decision. This modern practice is clearly at odds with the Constitution’s text and original meaning. A wealth of scholarly commentary concludes that the Constitution grants Congress alone the power to authorize non-defensive military force. Although not expressly mentioned in the Constitution, ample commentary also concludes that a president has inherent constitutional power only to defend the nation from an actual or impending attack. This Essay rejects the notion that a president’s independent constitutional authority to use non-defensive military force is, as a matter of constitutional law, left solely to the routine political give and take of the elected branches. In a republic based upon fundamental individual rights to life, liberty, and property—and of a limited central government constrained by fundamental law—legislative acts and well-accepted principles of necessity must govern a president’s legal authority to invade individual rights through the use of military force. A more complete contextual and structural reading of the Constitution’s text, as well as early government practice and relevant Supreme Court precedent, demonstrate that the Framers and ratifiers of the Constitution believed these basic, rule-of-law and separation-of-powers principles to be etched into the Constitution’s original design. This Essay briefly reviews the current situation and comprehensively surveys the Constitution’s allocation of war- and military-related powers to demonstrate Congress's extensive authority over war and the nation's armed forces. This review strongly confirms the view that the Constitution requires Congress to affirmatively authorize all non-defensive military force and provides Congress with several powers to check a president's use and command of the military. It then briefly posits some of the reasons the relevant constitutional norms have eroded, clarifies why aberrant past practice cannot amend the Constitution's separation of war powers, and explains why Congress must reestablish its authority, briefly suggesting two ways that it may do so.
An account of Charles R. Garry's contribution to the Chicago 7 Trial and his reputation generally.
This paper arose from an invited symposium on Democracy in America: The Promise and the Perils, held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the 1960s. These efforts at demographic control are being pursued unilaterally, however, without sufficient evidence there is a broad and lasting desire on the part of the people to alter the fundamental values generated during that period. In order to withstand Trumpism’s challenges, we’ll have to better understand the Immigration and Naturalization Act’s origins as an integral component of the civil rights revolution. When we revisit this history, we learn that this settlement introduced three principles into the immigration context: equality, a presumption of cultural compatibility, and family integrity. These crucial principles must be made part of any judicial evaluation of a president’s policies — especially those conducted unilaterally.
In 1969, Judge Julius Hoffman presided over the trial of the infamous Chicago Eight -- protestors during the 1968 Democratic National Convention in Chicago. Judge Hoffman's behavior during that trial demonstrates why there is a need for codes of conduct governing judicial behavior in the courtroom. This article revisits the famous trial and the genesis of codes of conduct for judges. To avoid the politicization of trials themselves, it is imperative that judges follow norms designed to ensure fair and impartial trials.
By consensus, smart contracts are a revolution in private ordering: they offer guaranteed enforcement, independent of the whims of territorial governments; efficient formation and interpretation; immunity from external interference; and complete deference to the parties’ wishes. Each of these claims is a myth. While smart contracts present themselves as natural and neutral, they are in fact deeply politicized. The Legal Realists tore down the foundations of smart contracts almost a century ago. Advocates for them have not solved the problems of the past—they have forgotten them. This Article offers a new critique of the optimism about smart contracts and desirability of securing mutual agreements by code rather than law. More specifically, this Article takes aim at the assertion that smart contracts can, and should, provide an alternative to traditional contract law. It contends that advocates for smart contracts rely reflexively on deeply contested assumptions from Lochner-era legal thought, including a political commitment to “freedom of contract,” insistence on a division between “public” and “private” spheres, and a minimalist view of the state’s role in managing private law systems of contract and property. More specifically, these assumptions cause smart contract partisans to fundamentally underestimate the role of the state in maintaining a functioning private law regime. This failure to recognize the inevitable extent of state intervention in private law means that smart contracts will create novel distributions of wealth and power that are normatively suspect. Furthermore, this Article draws upon two foundational moments in Internet law—early hopes for a realm beyond territorial governance, and attempts to override copyright law through technology—to demonstrate the errors that advocates and scholars alike commit based on the evanescent technology promise of this new method. Finally, this Article demonstrates that, far from realizing a utilitarian ideal of efficiency, smart contracts are constructed without democratic oversight and governance, which are essential for a legitimate system of private law.
Traditionally, securities fraud has been civilly enforced and criminally prosecuted under Section 10(b) of the Securities Exchange Act and Rule 10b-5 promulgated thereunder. Recently, however, the Securities and Exchange Commission has increasingly asserted claims under Section 17(a)(2) of the Securities Act for conduct that sounds in securities fraud, and criminal securities fraud prosecutions could follow this trend. Yet, although the elements of Section 10(b) and Rule 10b-5 violations have been well-developed by the courts, many of the elements of Section 17(a)(2) violations remain unsettled. This essay seeks to define the elements of the crime of violating Section 17(a)(2); compares and contrasts those elements to the crime of violating Rule 10b-5; and considers the policy implications of prosecuting securities fraud under Section 17(a)(2) rather than Rule 10b-5.
Congress could face a disputed presidential election triggered, not necessarily by foreign interference, but by the ballots counted after Election Night that cause the initial apparent winner to fall behind. If Congress receives conflicting submissions of electoral votes from the same state, the existing statutory and constitutional provisions for handling this conflict are ambiguous and vulnerable to partisan posturing. Bicameral deadlock, in which the Senate claims one presidential winner while the House claims the other, would resemble the disputed Hayes-Tilden election of 1876 in a way that Bush v. Gore in 2000 did not. This kind of bicameral deadlock, if it lasted until noon on January 20, 2021, would cause serious difficulties in the capacity of the nation to transition from one presidential term to the next pursuant to the rule of law. It is in the nation's best interest to confront this vulnerability now, in order to be in the best possible position to handle this kind of situation if it should arise.
As technology progresses, businesses are enacting new programs that utilize emerging technology. Biometric data is an example of a tech capability that is becoming more popular for businesses. Companies can use an individual’s unique body data to monitor their employees, collect data, and enhance security and convenience for their customers. While this technology is impressive, it comes with privacy and security concerns. In 2008, Illinois enacted the Biometric Information Privacy Act (BIPA) to address these concerns. BIPA aims to protect individuals by setting strict guidelines for data collection by private entities. Individuals can file suit for violations of this statute, so long as they can show that they are an aggrieved party. Since June 1, 2017, over two hundred class actions have been filed in Illinois alleging claims under BIPA. In 2017, Illinois’s Second District Appellate Court heard an appeal from a ruling in Rosenbach v. Six Flags Entertainment Corp. and set forth an important new interpretation of BIPA. The appellate court found that the plaintiff was not an aggrieved party as they did not assert actual harm from the violation of BIPA. In 2018, Illinois’s First District Appellate Court disagreed with this holding, and in the case of Sekura v. Krishna Schaumburg Tan, Inc., held that a statutory violation of BIPA created an aggrieved party. Also in 2018, the Illinois Supreme Court agreed to hear the appeal of Rosenbach. On January 25, 2019, the Illinois Supreme Court handed down its decision in Rosenbach v. Six Flags Entertainment Corp. In a unanimous decision, the court held a person is “aggrieved” when there is a technical violation of BIPA; a showing of further harm is not necessary to bring a cause of action under the statute. This Comment will examine the Rosenbach decision and analyze its overall logic, application of Illinois’s statute and case law, and appreciation for the intent of the Illinois legislature. Last, this Comment will assess the impact of the Illinois Supreme Court’s decision on the future of biometric data collection and provide suggestions for future corporate compliance.
Recent decisions by the Supreme Court in Carpenter v. United States and the Illinois Supreme Court in Rosenbach v. Six Flags Entertainment Corporation signal a shift in the traditional understanding of what exactly is protected by a privacy interest. Carpenter distinguished between a police officer’s observation of a suspect’s location and a perpetual catalogue of a person’s movements obtained through cell site location information (CSLI). The pervasive and vast quantity of information from CSLI exposed a protected privacy interest. In Rosenbach, the Illinois Supreme Court found the unique and personal quality of biometric information meant that consent and disclosure requirements under the state’s Biometric Information Privacy Act (BIPA) were not “merely technical in nature” and did not require additional allegations of harm. These decisions move away from a binary conception of privacy - which ignores distinctions between types of information disclosures and the harm emanating from them - toward a contextual conception of privacy - which takes into account the quality and quantity of information as well as the original purpose of the disclosure. An examination of sociological definitions of deviance help to understand contextual privacy. Section I notes that sociological deviance is highly contextual and relational, depending not only on the specific behavior or characteristic, but also on the group that defines or enforces the characteristic as deviant. Because deviance depends on the potential imposition of sanctions by others, the manner of disclosure and the extent of distribution of information matters. Section II examines the “Nothing to Hide” arguments developed by Professor Daniel Solove and noted in the dialogue between the majority and the dissenters in Carpenter. Section III argues that there is inherent value to deviance. A better understanding of the concept of deviance not only adds value to specific policy debates about privacy and security, but also highlights the importance of diversity in our communities.
