Law Commons^™

Immigration Unilateralism And American Ethnonationalism, Robert L. Tsai

Faculty Scholarship

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 …

The Upside Of Deep Fakes, Jessica Silbey, Woodrow Hartzog

Faculty Scholarship

It’s bad. We know. The dawn of “deep fakes” — convincing videos and images of people doing things they never did or said — puts us all in jeopardy in several different ways. Professors Bobby Chesney and Danielle Citron have noted that now “false claims — even preposterous ones — can be peddled with unprecedented success today thanks to a combination of social media ubiquity and virality, cognitive biases, filter bubbles, and group polarization.” The scholars identify a host of harms from deep fakes, ranging from people being exploited, extorted, and sabotaged, to societal harms like the erosion of democratic …

Obama’S National Security Exceptionalism, Sudha Setty

Faculty Scholarship

This Article discusses how continued national security exceptionalism engenders a view of the United States as considering itself to be above international obligations to investigate and prosecute torturers and war criminals, and the view by the global community that the United States is willing to apply one standard for itself, and another for the rest of the world. Exceptionalism not only poses real challenges in terms of law, morality, and building useful relationships with allied nations, but acts as a step backward for the creation of enforceable international norms and standards, and in efforts to restore a balance in the …

A Tale Of Two Paradigms: Judicial Review And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

What is the role of judges in holding government acts unconstitutional? The conventional paradigm is "judicial review." From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that of judicial duty. From this point of view, presented in my book Law and Judicial Duty, a judge has an office or duty, in all decisions, to exercise judgment in accord with the law of the land. On this understanding, there is no distinct power to review acts for their constitutionality, and what is called "judicial review" …

Do We Care Enough About Racial Inequality? Reflections On The River Runs Dry, Guy-Uriel Charles

Faculty Scholarship

In response to Kimberly West-Faulcon, The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws, 157 University of Pennsylvania Law Review 1075 (2009)

Cross-Examining Film, Jessica Silbey

Faculty Scholarship

The Supreme Court decision in Scott v. Harris holds that a Georgia police officer did not violate a fleeing suspect's Fourth Amendment rights when he caused the suspect's car to crash. The court's decision relies almost entirely on the filmed version of the high-speed police chase taken from a "dash-cam," a video camera mounted on the dashboard of the pursuing police cruiser. The Supreme Court said that in light of the contrary stories told by the opposing parties to the lawsuit, the only story to be believed was that told by the video. In Scott v. Harris, the court fell …

Democracy's Handmaid, Robert L. Tsai

Faculty Scholarship

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, I draw from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, I present a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

Facing The Challenge: A Lawyer's Response To Anti-Gay Initiatives, Suzanne B. Goldberg

Faculty Scholarship

We are living in an extraordinary period of gay and lesbian history. As lesbian and gay civil rights gain increasing recognition throughout the country – through small but growing numbers of laws prohibiting sexual orientation discrimination, court rulings protecting lesbian and gay parents' custody of their children, and a historically unprecedented level of positive media coverage – our struggles also have escalated enormously. Not only must we litigate and negotiate for equal opportunity in employment, housing, and parenting rights as always, but also we face a nationally organized and terrifically well-funded assault on our fundamental rights as citizens.

This nationwide …

The Mccarthy Era: History As Snapshot, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Militants, Moderates, And Social Change, Michael I. Sovern

Faculty Scholarship

The thesis of this paper is a simple generalization: To the extent that social protest draws attention to its form rather than to the grievance it seeks to redress, it is likely to be unproductive. I add a quick qualification. In offering this generalization, I am assuming that the protester is genuine in seeking to redress one or more grievances and that he is not using the grievance as a subterfuge to pick a fight. If the purpose of the protest is in fact to provoke a repressive response, then, of course, my generalization is inapplicable.

We obviously have a …