Thomas B. Nachbar

  • Professor of Law
  • Senior Fellow, Center for National Security 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 a senior fellow at the Center for National Security Law, a faculty affiliate of the National Security Policy Center at the Frank Batten School of Leadership and Public Policy, and a member of the Board of Advisors of the University of Virginia Applied Research Institute.

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

“Antitrust and the Politics of State Action,” 60 Wm. & Mary L. Rev. (forthcoming 2018).

“The Rule of Law: Fifteen Years of Lessons” (with Lt. Cmdr. Jeremy Snellen), The Army Lawyer (July/August 2018).

“Form and Formalism,” (2018).
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“Rational Basis ‘Plus,’” 32 Const. Comment. 449 (2017).
HeinOnline (PDF)

“The Rationality of Rational Basis Review,” 102 Va. L. Rev. 1627 (2016). 
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“Detention” with John D. Altenburg, Jr., in Moore, Roberts, and Turner, eds., National Security Law and Policy 457 (Carolina Academic Press, 2015).

“Rules and Standards in Copyright,” 52 Hous. L. Rev. 583 (2014).

“The Antitrust Constitution,” 99 Iowa L. Rev. 57 (2013).
SSRN | HeinOnline (PDF)

“Executive Branch Policy Meets International Law in the Evolution of the Domestic Law of Detention,” 53 Va. J. Int’l L. 201 (2013).
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“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 143 (ABA Section of International Law, 2013).
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“The Use of Law in Counterinsurgency,” 213 Mil. L. Rev. 140 (2012).
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“Counterinsurgency, Legitimacy, and the Rule of Law,” Parameters, Spring 2012, 27-38.
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“Defining the Rule of Law Problem,” 12 Green Bag 2d 303 (2009).
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Rule of Law Handbook: A Practitioner’s Guide for Judge Advocates (editor) (Judge Advocate General's Legal Center and School, 2009).

“The Public Network,” 17 CommLaw Conspectus 67 (2008).
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Communications Regulation with Glen Robinson (West, 2008).
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“Alternatives to the Copyright Power: The Relationship of the Copyright Clause to the Commerce Clause and the Treaty Power” (panelist), 30 Colum. J.L. & Arts 287 (2007).

“The Comedy of the Market,” 30 Colum. J.L. & Arts 453 (2007).
HeinOnline (PDF)

Rule of Law Handbook: A Practitioner’s Guide for Judge Advocates (editor with Katherine Gorove) (Judge Advocate General's Legal Center and School, 2008).

Rule of Law Handbook: A Practitioner‘s Guide for Judge Advocates (editor with Charles R. Oleszycki and Vasilios Tasikas) (Judge Advocate General’s Legal Center and School, 2007).

“Speech and Institutional Choice,” 21 Wash. U. J. L. & Pol’y 67 (2006).
HeinOnline (PDF)

“Monopoly, Mercantilism, and the Politics of Regulation,” 91 Va. L. Rev. 1313 (2005).
SSRN | HeinOnline (PDF)

“Intellectual Property and Constitutional Norms,” 104 Colum. L. Rev. 272 (2004).
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“Judicial Review and the Quest to Keep Copyright Pure,” 2 J. Telecom. High Tech. L. 33 (2003).
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“Constructing Copyright’s Mythology,” Green Bag 2d 37 (2002).
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“Paradox and Structure: Relying on Government Regulation to Preserve the Internet’s Unregulated Character,” 85 Minn. L. Rev. 215 (2000).
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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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