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Introduction, Jake Gnolfo

Loyola University Chicago Law Journal

No abstract provided.

Eviction Abolition, Larisa G. Bowman

Loyola University Chicago Law Journal

This Article contends that today’s eviction crisis in the United States is the civil equivalent of mass incarceration. Eviction, like mass incarceration, is a racialized and gendered system of social control heavily supervised by the state. State court judges order evictions, and law enforcement officers execute them. Eviction’s mechanisms of control are to punish, exploit, and surveil. Some tenants are forcibly removed from their homes as punishment for their poverty, while others pay their last dollar to remain housed. In nuisance and lease violation cases, tenants routinely are subjected to onerous “probationary” terms that place them under heightened surveillance. Low-income, …

Restorative Justice As A Democratic Practice, Daniel S. Mcconkie Jr.

Loyola University Chicago Law Journal

Our criminal justice system, to be truly democratic, should be more responsive to those most affected by it, and this calls for significant participation from citizens. Unfortunately, the state-centered, professionalized criminal justice system marginalizes citizens at every stage, depriving them of a voice and power. Instead, the system should embody and encourage criminal justice citizenship, which refers to the rights and privileges of ordinary people to participate directly in certain aspects of the criminal justice system and to deliberate in some of its workings. Such citizenship is indispensable to democracy, or rule by the people.

Restorative justice, especially where it …

Table Of Contents, Luc Law Journal

Loyola University Chicago Law Journal

No abstract provided.

From 1965 To 2023: How Allen V. Milligan Upheld The Voting Rights Act But Failed To Adapt To The Age Of Computers, Rachel E. Dudley

Loyola University Chicago Law Journal

In 1982, Congress amended Section 2 of the Voting Rights Act of 1965 to outlaw voting practices that deprive or abridge minorities’ voting rights on account of race. This amendment outlaws both intentional discrimination and disparate impacts. For the past thirty years, private citizens have used Section 2 to challenge redistricting maps that dilute minority voters’ voices.

In Allen v. Milligan, the Supreme Court protected Section 2 when it held that Alabama’s redistricting map diluted minority voters’ right to vote. The Court rejected Alabama’s proposal for a new test to compare states’ maps to computer-generated redistricting maps that did …

The Constitutional Multiverse: A Retroactive Analysis Of Hemphill V. New York, Michael C. Wetmore

Loyola University Chicago Law Journal

In 2022, the Supreme Court was asked the question: May a criminal defendant “open the door” to evidence that it is otherwise inadmissible because of their Sixth Amendment right to confront adversarial witnesses? It is not unheard of that, at trial, a defendant’s attorney makes arguments that prosecutors and judges think will mislead the jury. Many times, these arguments reference evidence that—by evidentiary rule, pretrial ruling, or otherwise—is inadmissible. Trial courts have long been afforded the discretion to measure how much evidence can come through the door a defendant opens by raising these arguments to cure any false impression that …

When Claims Collide: Students For Fair Admissions V. Harvard And The Meaning Of Discrimination, Cara Mcclellan

Loyola University Chicago Law Journal

This term, the Supreme Court will decide Students for Fair Admissions v. President and Fellows of Harvard College (SFFA v. Harvard), a challenge to Harvard College’s race-conscious admissions program. While litigation challenging the use of race in higher education admissions spans over five decades, previous attacks on race-conscious admissions systems were brought by white plaintiffs alleging “reverse discrimination” based on the theory that a university discriminated against them by assigning a plus factor to underrepresented minority applicants. SFFA v. Harvard is distinct from these cases because the plaintiff organization, SFFA, brought a claim alleg-ing that Harvard engages in intentional discrimination …

Locating Free-Exercise Most-Favored-Nation-Status (Mfn) Reasoning In Constitutional Context, Alan E. Brownstein, Vikram David Amar

Loyola University Chicago Law Journal

This Article examines the theoretical and doctrinal origins and consequences of a potentially game-changing approach to processing claims brought under the Free Exercise Clause of the First Amendment. Since 1990, and the decision in Employment Division v. Smith, the Court has read that Clause not to require accommodation of religious activity via exemptions from religion-neutral and generally applicable laws and regulations. What the Free Exercise Clause does prohibit, according to Smith, is government action targeting or discriminating against religion. But the Court’s decision a year ago in Tandon v. Newsom provides some powerful evidence about how this doctrine …

Justice Alito, Originalism, And The Aztecs, Andrew Koppelman

Loyola University Chicago Law Journal

No abstract provided.

Constructing The Establishment Clause, Vincent Phillip Muñoz, Kate Hardiman Rhodes

Loyola University Chicago Law Journal

In this Article, we attempt to document how the history of the Supreme Court’s Establishment Clause jurisprudence is a history of constructionism, much of it—though not all—originalist in flavor. We use “construction” in a technical sense and in contradistinction to “interpretation.” Construction is the act of importing meaning into the constitutional text. To document and explain how leading Supreme Court justices have engaged in originalist constructionism, we employ the interpretation-construction distinction as well as two additional analytical concepts recently discussed by leading legal scholars: Sam Bray’s recovery of “the mischief rule” and Jack Balkin’s textual typology of principles, standards, and …

The Establishment Clause, Civil Rights, And The Accomodationist Path Forward, Lisa Shaw Roy

Loyola University Chicago Law Journal

The U.S. Supreme Court’s First Amendment Religion Clause doctrine is undergoing a transition between the Court’s older, strict separationist decisions and its current accommodationist approach. This shift can be seen in the Court’s most recent Establishment and Free Exercise Clause decisions, and in particular, in its unanimous Free Speech Clause decision in Shurtleff v. City of Boston, a case which found that the challenger, Harold Shurtleff, had a First Amendment right to raise a flag with a cross on a city flagpole. In many ways, Shurtleff exemplifies the Court’s incremental movement toward an accommodationist Establishment Clause doctrine, and this …

Razing & Rebuilding Delinquency Courts: Demolishing The Flawed Philosophical Foundation Of Parens Patriae, Eduardo R. Ferrer

Loyola University Chicago Law Journal

Professor Eduardo R. Ferrer of Georgetown University explores the history and background of the juvenile delinquent system in the United States. Professor Ferrer argues that the philosophical underpinnings of our legal youth systems, under the concept of parens patriae, have led to failure with regard to how states care for children that come under their control—and ultimately need to be abandoned in favor of a more effective and just system.

Federal Election Commission V. Ted Cruz For Senate: How The Supreme Court Is Clearing The Way For Corruption In Politics, Sarah B. Gleason

Loyola University Chicago Law Journal

Political speech lies at the heart of the First Amendment. Candidates for office have the constitutional right to raise funds to express their viewpoints, run campaigns, and associate with their supporters. However, leaving this flow of money unchecked creates a risk that candidates will sell the promise of political favors for increased monetary support from voters. Congress passed Section 304 of the Bipartisan Campaign Reform Act to prevent the risk of quid pro quo corruption, which is heightened when donors contribute money to candidates after the election for the sole purpose of retiring the candidates’ personal loans. Section 304 restricted …

Law School Plagiarism: A Measured Solution For An Unmeasured Problem, Ashley S. Lipson

Loyola University Chicago Law Journal

No abstract provided.

Religious Nondelegation, B. Jessie Hill

Loyola University Chicago Law Journal

The problem of religious exemptions has given rise to a rich body of scholarly literature, as well as a flood of litigation. One recent set of cases involved challenges to the Affordable Care Act’s (ACA) health care mandates—Section 1557 and the contraceptive mandate—and their religious exemptions. Some scholars have argued that religious exemptions violate the Establishment Clause when they confer a benefit on religious individuals, the costs of which are largely borne by those who do not share the religious individuals’ beliefs—a notion that is sometimes expressed in terms of “third-party harms.” The third-party harms approach to Establishment Clause violations …

Virtual Justice: Measuring Perceptions Of Fairness In Civil And Criminal Courts, Kaitlyn Filip, Kat Albrecht

Loyola University Chicago Law Journal

COVID-19 had an instant effect on the court system in the United States as court business ground to a halt and then transitioned to being conducted online. Now the courts have a substantial decision to make concerning how much court business should continue being conducted online and what court business should return entirely to in-person proceedings. Because of the relative recency of digital court modalities, the body of existent research is small. Moreover, the existing universe of law research takes pre-pandemic in-person proceedings as a necessary baseline instead of considering virtual courts as a potential mechanism for improving enduring problems …

Introduction, Jake Gnolfo

Loyola University Chicago Law Journal

No abstract provided.

Table Of Contents, Luc Law Journal

Loyola University Chicago Law Journal

No abstract provided.

United States V. Vaello-Madero: The Impact Of Varying Rights To Citizens Of The United States, Ana Siracusa

Loyola University Chicago Law Journal

Since 1917, residents of Puerto Rico have been citizens of the United States. However, because of Puerto Rico’s status as a United States territory, residents of Puerto Rico are not automatically guaranteed the same constitutional rights as other citizens of the United States. When faced with the question of what constitutional rights residents of Puerto Rico are entitled to, the Supreme Court has continued to perpetuate the otherness of United States territories. This disposition results from the United States’ colonial mindset in the acquisition and government of its territories. The discrimination against United States territories, namely Puerto Rico, has bled …

Independent And Overlapping: Institutional Religious Freedom And Religious Providers Of Social Services, Kathleen A. Brady

Loyola University Chicago Law Journal

Roughly two decades ago, scholarly interest in the limits of government involvement in religious institutions exploded. Scholars explored distinctions between the spiritual and temporal dimensions of human activity and identified numerous individual, social, spiritual and civic goods associated with independent religious groups. From these foundations, they defined and refined areas of protection and immunity from government intervention. A shared premise of much of this work was that religious matters belong to religious believers and their institutions, and that the internal governance and operations of these institutions must be kept from state interference. In 2012, this scholarship bore fruit when the …

Making Protection Unexceptional: A Reconceptualization Of The U.S. Asylum System, Denise Gilman

Loyola University Chicago Law Journal

The United States treats asylum as exceptional, meaning that asylum is presumptively unavailable and is offered only in rare cases. This exceptionality conceit, combined with an exclusionary apparatus, creates a problematic cycle. The claims of asylum seekers arriving as part of wide-scale refugee flows are discounted, and restrictive policies are adopted to block these claims. When asylum claims nonetheless continue to mount, the United States asserts “crisis” and deploys new exclusionary measures. The problems created by the asylum system are not addressed but are instead deepened. This Article encourages a turn away from policies that have led down the same …

Rodriguez At Fifty: Lessons Learned On The Road To A Right To A High-Quality Education For All Students, Kimberly Jenkins Robinson

Loyola University Chicago Law Journal

No abstract provided.

Arbitration Under Union-Negotiated Collective-Bargaining Agreements: The Need For Perspicuity When Employees Waive The Right To Pursue Discrimination Claims In Federal Court, Travis Thickstun

Loyola University Chicago Law Journal

How clear and unmistakable should arbitration clauses be when employees waive their right to pursue discrimination claims in federal court under union-negotiated collective-bargaining agreements? The United States courts of appeals have been split on this question since the Supreme Court handed down its decisions in Wright v. Universal Maritime Service Corp. and 14 Penn Plaza LLC v. Pyett.¹ In Wright, the Court held that waiver in union-negotiated collective-bargaining agreements must be “clear and unmistakable.”² Eleven years later, in Pyett, the Court affirmed its clear-and-unmistakable standard for waiver of a union member’s right to pursue …

Mandatory Judging, Douglas R. Richmond

Loyola University Chicago Law Journal

As a matter of judicial ethics, judges must disqualify themselves in matters in which their impartiality may reasonably be questioned. This key principle implicates two additional aspects of judicial ethics: the duty to sit and the rule of necessity. The duty to sit basically describes a judge’s duty to preside over a case unless disqualified as a matter of judicial ethics. Or, phrased another way, a judge must hear a case if her impartiality cannot reasonably be questioned. Recognition of the duty to sit means that judges may not disqualify themselves based on their unease with cases, personal or professional …

Haaland V. Brackeen: The Decision That Threatened The Indian Child Welfare Act’S Protections Of Native Families In Illinois, Kennedy Ray Fite

Loyola University Chicago Law Journal

The Indian Child Welfare Act has become a controversial piece of legislation since the Supreme Court heard oral argument on the case of Haaland v. Brackeen in November 2022 and released its decision in June 2023. The statute was originally enacted in 1978 to remedy the United States’ tragic history of family separation in tribal communities, including removal of native children who were subsequently placed into federal boarding schools or non-native homes by a child-welfare system grounded in white-American assumptions. Congress recognized the vital nature of Native American culture for native children and the importance of native children to tribal …

And On The Third Wave: Using Intersectionality To Resurrect Heightened Scrutiny In Public Education Litigation, Chris Chambers Goodman

Loyola University Chicago Law Journal

This Symposium marks the fiftieth anniversary of San Antonio Independent School District v. Rodriguez, and seeks to address how society could have been different if the Supreme Court had recognized education as a fundamental right. It also considers how the lack of a fundamental right to education may have led to the under-education of our population and may be linked to other issues like economic inequality and the shifting landscape of fundamental rights.

This Article focuses on the ties between race and socioeconomic status in public school K–12 education. It analyzes the impact of the Rodriguez holding that education …

A Law & Macroeconomics Critique Of San Antonio Independent School District V. Rodriguez, Steven A. Ramirez

Loyola University Chicago Law Journal

Fifty years ago, the Supreme Court decided, in San Antonio Independent School District v. Rodriguez, to permit states to provide dramatically disparate funding for childhood education from district to district, thereby concretizing and propagating racial and economic inequality indefinitely. This Article shows that this decision entails staggering macroeconomic costs, undermines human development in the United States, and has hindered the government from promoting general welfare, domestic tranquility, and common defense. The opinion pursued the political objectives of the Southern Strategy and does not rest upon a legitimate exercise of judicial power. Rodriguez furthers the replication of our nation’s racial …

“So” What? Why The Supreme Court’S Narrow Interpretation Of The Computer Fraud And Abuse Act In Van Buren V. United States Has Drastic Effects, Landon Wilneff

Loyola University Chicago Law Journal

In Van Buren v. United States, the United States Supreme Court held that one does not “exceed authorized access” under the Computer Fraud and Abuse Act (CFAA) when one accesses information they were otherwise entitled to access. Part I will outline the legislative history of the CFAA, and will explain the circuit split between the Second, Fourth, Sixth, and Ninth Circuits and the First, Third, Fifth, and Seventh Circuits. Part II will detail the facts and procedural history of Van Buren, and will walk through the reasoning of the majority and dissent. Part III will analyze the majority’s …

Table Of Contents, Luc Law Journal

Loyola University Chicago Law Journal

No abstract provided.

Table Of Contents, Loyola University Chicago Law Journal

Loyola University Chicago Law Journal

No abstract provided.