Thomas B. Nachbar

  • Professor of Law

After earning his undergraduate degree in history and economics, Tom Nachbar spent five years as a systems analyst, working for both Andersen Consulting and Hughes Space and Communications before entering law school, where he served on the University of Chicago Law Review and was elected to the Order of the Coif. After graduation, he clerked for Judge Frank H. Easterbrook of the U.S. Court of Appeals for the Seventh Circuit and later practiced with what is now Mayer Brown in Chicago as a member of the firm’s appellate litigation, information technology and intellectual property practice groups.

Nachbar’s research focuses on the nature of regulation: how the law is used (and by whom) to shape and control behavior. His early work addressed how the availability of new technologies alters conceptions of regulation. His current work is on the relationship between public and private regulation. Throughout, his work has retained a focus on the regulation of markets and networks. He has written extensively on the history of trade regulation, from mercantilist England through 20th-century America, with an emphasis on the constitutional dimensions of trade regulation. His work on network regulation ranges from study of common law, common-carriage obligations to regulation of the Internet. He has both practiced and published in the field of telecommunications law (he authored, with Glen Robinson, the casebook Communications Regulation), and is an expert on the Supreme Court’s constitutional equal protection and due process jurisprudence.

Nachbar also works in national security. He teaches and writes on cybersecurity, with an emphasis on security of communication networks and the connection between network security and private industry. He is the convener of the Stanton Series on Liberty and Security — an annual meeting of leaders in industry, government, academia and civil society to discuss the issues they face and foresee in the relationship between the free flow of information and national security — which is organized and hosted by the Law School each spring and sponsored by the Stanton Foundation. He is a judge advocate in the U.S. Army Reserve, where he has, among other assignments, edited an Army handbook on the development of legal systems, trained Palestinian security forces in the West Bank and deployed to Iraq. He is affiliated with the Law School’s National Security Law Center and the National Security Policy Center at the Frank Batten School of Leadership and Public Policy. 

Scholarship Profile: How Should We Understand, Develop, and Allocate Regulatory Authority (Virginia Journal 2016)

Education

  • J.D.
    University of Chicago Law School
    1997
  • A.B.
    University of Illinois
    1989

Forthcoming

Algorithmic Fairness, Algorithmic Discrimination, Florida State Law Review (2021).

Works in Progress

Platform Effects, (2021).

Books

Rule of Law Handbook: A Practitioner’s Guide for Judge Advocates, Judge Advocate General’s Legal Center and School (2009 ed. 2009).
Communications Regulation (with Glen O. Robinson), Thomson/West (2008).
Rule of Law Handbook: A Practitioner’s Guide for Judge Advocates (with Katherine Gorove), Judge Advocate General’s Legal Center and School (2008 ed. 2008).
Rule of Law Handbook: A Practitioner’s Guide for Judge Advocates (with Charles R. Oleszycki & Vasilios Tasikas), Judge Advocate General’s Legal Center and School (2007 ed. 2007).

Articles & Book Chapters

Twenty-First Century Formalism, 75 University of Miami Law Review 113-189 (2020).
Heroes and Villains of Antitrust, (reviewing Tim Wu, The Curse of Bigness: Antitrust in the Gilded Age) 18 Antitrust Source 1-12 (2019).
Antitrust and the Politics of State Action, 60 William & Mary Law Review 1395-1438 (2019).
The Peculiar Case of State Network Neutrality Regulation, 37 Cardozo Arts & Entertainment Law Review 659-699 (2019).
Rational Basis “Plus”, 32 Constitutional Commentary 449-477 (2017).
The Rationality of Rational Basis Review, 102 Virginia Law Review 1627-1690 (2016).
Detention, in John Norton Moore, Guy B. Roberts, & Robert F. Turner, eds., National Security Law and Policy, Carolina Academic Press 457-483 (2015).
Patent and Copyright Clause, in David F. Forte & Matthew Spalding, eds., The Heritage Guide to the Constitution, Heritage Foundation 152-155 (2 ed. 2014).
Rules and Standards in Copyright, 52 Houston Law Review 583-612 (2014).
The Antitrust Constitution, 99 Iowa Law Review 57-114 (2013).
The U.S. Military’s Role in Rule of Law Development, in Lelia Mooney, ed., Promoting the Rule of Law: A Practitioner’s Guide to Key Issues and Developments, American Bar Association Section of international Law 143-160 (2013).
The Use of Law in Counterinsurgency, 213 Military Law Review 140-164 (2012).
Defining the Rule of Law Problem, 12 The Green Bag Second Series 303-318 (2009).
The Public Network, 17 Commlaw Conspectus 67-139 (2008).
The Comedy of the Market, 30 Columbia Journal of Law & Arts 453-466 (2007).
Speech and Institutional Choice, 21 Washington University Journal of Law & Policy 67-79 (2006).
Monopoly, Mercantilism, and the Politics of Regulation, 91 Virginia Law Review 1313-1379 (2005).
Patent and Copyright Clause, in Edwin Meese, David F. Forte, & Matthew Spalding, eds., The Heritage Guide to the Constitution, Elsevier 120-122 (1 ed. 2005).
Intellectual Property and Constitutional Norms, 104 Columbia Law Review 272-362 (2004).
Judicial Review and the Quest to Keep Copyright Pure, 2 Journal on Telecommunications & High Technology Law 33-72 (2003).
Constructing Copyright’s Mythology, 6 The Green Bag Second Series 37-446 (2002).

Op-Eds, Blogs, Shorter Works

Ajit Pai and Risk-Taking at the FCC, Truth on the Market (January 25, 2021).
Algorithms Are Running Foul of Anti-Discrimination Law (with David Evans), Brink: The Edge of Risk (December 7, 2020).
The Rule of Law: Fifteen Years of Lessons (with Jeremy Snellen), The Army Lawyer 22-26 (July, 2018).
Net Neutrality’s Winners and Losers, UVA Lawyer 34 (2018).
Guest Post: Tom Nachbar on COIN, Lawfare (December 6, 2010).

Current Courses

All Courses

Antitrust
Communications Law
Constitutional Law
Contracts
Copyright II (Advanced Topics)
Economic Concepts in Law
Intellectual Property: Copyright
Irregular Warfare
Overview of Military Law
National Security Detention
National Security and Information
Regulation of New Media (seminar)
Seminar in Ethical Values

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