Law Commons^™

Parenting Prison: How Mass Incarceration Of Parents Affects Child Development, Bridget Boland

Children's Legal Rights Journal

No abstract provided.

"We Can't Hear You": A Call For Right To Counsel For Youth In Care, Leyda Garcia-Greenawalt

Children's Legal Rights Journal

No abstract provided.

Protecting Children's Privacy Rights: A Preventative Measure For Suicide Among Children, Abigail Magat

Children's Legal Rights Journal

Article 16 of the United Nations Convention on the Rights of Child (UNCRC) broadly entitles children to protections of their privacy and reputations. Under the UNCRC, nations have pledged to uphold any protections necessary to protect children against such attacks or interference regarding their honor and reputation. Among the 196 member states of this convention, very few have specific legislation dedicated to protecting children's privacy rights. As the cyberworld has increasingly become heavily accessible to children, so has the notion that their reputation and honor revolve around how they are perceived on the internet. Nevertheless, throughout most member states, privacy …

Organizations Behind Ending The Gun Violence Epidemic, Melissa Spero

Children's Legal Rights Journal

No abstract provided.

Is Florida Ready For The Universal School Choice Bill?, Joseline Vargas

Children's Legal Rights Journal

Educational inequities can affect someone's future; school choice is meant to bridge the gap between those that receive a better education and those unable to receive one due to financial hardships to ensure a better future for students. While in numerous occasions school choice is a student's saving grace from a failed system, regulations must be in place to ensure that the people that are being helped by the law are those who need it, not just want it. Florida, following the school choice movement, has introduced the Universal School Choice Bill, which has now been voted in and signed. …

Membership In An Exclusive Club: International Humanitarian Law Rules As Peremptory International Law Norms, Ata R. Hindi

Loyola University Chicago International Law Review

This paper entertains the somewhat scattered debate as to whether international humanitarian law ("IHL") rules could, and should, be considered peremptory norms of international law. For some time, the "basic rules of IHL" have been found to constitute peremptory norms of international law, with scant identification of those rules. Through a doctrinal analysis, this paper argues that, so long as they meet the Vienna Convention on the Law of Treaties' criteria, IHL rules should be treated as peremptory norms, creating erga omnes obligations for third States. Further, in theory, while the third State (external) obligation to "ensure respect" in IHL …

Comparative Immigration Policies For Unaccompanied Minors: A Shared Challenge, Diana Ramirez

Loyola University Chicago International Law Review

Unaccompanied minors from the Northern-Triangle and Mexico have been arriving at the United States border in large numbers over the past decade as a result of forced migration movements. Although the arrival of unaccompanied minors is not a new phenomenon in the United States, recent administrations have responded in ways that have made the country's immigration system increasingly hostile towards them.

However, this issue is not exclusive to the United States. Unaccompanied minors traveling alone to Europe, Australia, South Africa, Canada, or the United States face similar dangers and are particularly vulnerable to abuse and trafficking. Regardless of jurisdiction, the …

European Court Of Human Rights' Ruling In Georgia V. Russia (Ii) And Its Application To The Current Crisis In Ukraine, Edward N. Cain

Loyola University Chicago International Law Review

Georgia v Russia (II) represents an important decision in the European Court of Human Rights case law. The Court sets out an important interpretation of Article 1 of the European Convention on Human Rights regarding the jurisdiction of signatory parties during times of invasion and war. The Court articulated that during active hostilities, there is no positive or negative obligation on the invading country to uphold or defend the human rights of the civilians of the invaded country. This is because they do not have effective control over the local population due to the dynamic nature of war. This precedent …

Qatar V. Uae-- The Weight Of Words, Samantha H. Hughes

Loyola University Chicago International Law Review

In 2021, the International Court of Justice decided, in Qatar v. United Arab Emirates, that the term "national origin" does not include current nationality as used in the International Convention on the Elimination of all Forms of Racial Discrimination ("CERD"). While the Court's decision is supported by various legal arguments, the majority's approach seems to stray from practices regarding interpreting ambiguous terms, and is contradictory to some of its earlier opinions. This Note uses CERD, other International Court of Justice opinions, and the dissenting opinions to the Qatar v. United Arab Emirates decision to critically analyze the strength of …

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 …

Standing On The Shoulders Of Llcs: The Tax Entity Status And Decentralized Autonomous Organizations, Samuel D. Brunson

Faculty Publications & Other Works

Since the formation of the first decentralized autonomous organization (DAO) in 2016, their use has exploded. Thousands of DAOs now try to take advantage of smart contracts to solve a problem that plagues business entities: the gulf between ownership and management. Armed with smart contracts and requiring token-holders to vote on any change in strategy, DAOs dispense with the management layer so necessary in traditional business entities. DAOs owe their existence to technology. Without blockchain, without cryptocurrency, and without smart contracts, there would be no DAOs. But they owe their explosiveness to something much more unexpected: Treasury regulations. In the …

Lessons Of The Plague Years, Barry Sullivan

Faculty Publications & Other Works

The COVID-19 pandemic has challenged governments of every description across the globe, and it surely would have tested the mettle of any American administration. But the pandemic appeared in the United States at a particularly inopportune time. January 2020 marked the beginning of a presidential election year in a deeply polarized country. President Donald Trump was a controversial figure, beginning the fourth year of a highly idiosyncratic administration. He was both a candidate for re-election and the subject of an ongoing impeachment proceeding. In these circumstances, the pandemic quickly became politicized. President Trump's response to the COVID-19 pandemic has often …

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 …