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Table Of Contents - Issue 1, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

Excavating Constitutional Antecedents In Asia: An Essay On The Potential And Perils, Arun K. Thiruvengadam

Chicago-Kent Law Review

This essay seeks to endorse Tom Ginsburg's call for studies that expand the relatively limited range of historically informed scholarship on constitutional law in Asia. Such a trend will no doubt also broaden the focus of the discipline of contemporary constitutional scholarship, which remains unjustifiably narrow and excludes many regions of the globe. While appreciating the virtues of Ginsburg's broader analysis, the essay also seeks to draw attention to the potential pitfalls of such historically-oriented inquiry. I emphasize the fact that in many Asian societies, contemporary constitutional practice marks radical departures from pre-existing traditions of law and constitutionalism. Drawing upon …

Horizontal Rights And Chinese Constitutionalism: Judicialization Through Labor Disputes, Ernest Caldwell

Chicago-Kent Law Review

Western academics who criticize Chinese constitutionalism often focus on the inability of the Supreme People's Court to effectively enforce the rights of Chinese citizens enshrined within the Constitution of the People's Republic of China. Such criticism, I argue, is the result of analytical methods too invested in Anglo-American constitutional discourse. These approaches tend to focus only on those Chinese political issues that impede the institution of western-style judicial review mechanisms, and often construe a 'right' as merely having vertical effect (i.e., as individual rights held against the State). Drawing on recent scholarship that studies Chinese constitutionalism using its own categories …

From Constitutional Listening To Constitutional Learning, Leigh Jenco

Chicago-Kent Law Review

In this article, I point out some limitations of Michael Dowdle's "listening" model, particularly its basis in the "principle of charity." I try to show that listening, as well as the principle of charity, are inadvertently passive and one-sided exercises that seem to have little similarity to the deeply self-transformative "learning" Dowdle urges us to undertake. I go on to suggest other ways of accomplishing the goals Dowdle sets for this project. Specifically, I develop the "self-reflexive approach" to think about how we might change ourselves—our conversations, our terms, our concerns—in addition to, and in the process of, learning from …

Beyond The Schoolhouse Gate: Should Schools Have The Authority To Punish Online Student Speech?, Brittany L. Kaspar

Chicago-Kent Law Review

This note analyzes the current circuit split over whether schools should have the authority to punish students for speech made on the Internet. Part I discusses the First Amendment generally and the four Supreme Court cases that have refined its application with respect to on-campus student speech. Part II presents the ensuing circuit split over the constitutionality of disciplining students for online, off-campus speech. Specifically, this section will explain both of the existing perspectives and why neither of the two is ideal. Part III attempts to devise a solution to the current divide by advocating a compromise position. In particular, …

Introduction, Ernest Caldwell, Terry Nardin

Chicago-Kent Law Review

No abstract provided.

Constitutionalism: East Asian Antecedents, Tom Ginsburg

Chicago-Kent Law Review

To what degree can traditional Asian political and legal institutions be seen as embodying constitutionalist values? This question has risen to the fore in recent decades as part of a new attention to constitutionalism around the world, as well as the decline in orientalist perceptions of Asia as a region of oppressive legal traditions. This article juxtaposes East Asian analogues or antecedents of constitutionalism with a particular set of recent theoretical understandings of the concept of constitutionalism. After conducting a historical review of political and legal institutions in China, Japan and Korea, the article argues that we can indeed speak …

Constitutionalism And The Rule Of Law: Considering The Case For Antecedents, Rogers M. Smith

Chicago-Kent Law Review

Tom Ginsburg credibly establishes that East Asian legal traditions include elements that can be considered antecedents for perhaps the strongest form of the rule of law, constitutional restraints that apply even to sovereigns. Treating these precedents chiefly as anticipations of Western-style constitutionalism, however, may be historically misleading and may inhibit reflection on the desirability of practices that represent alternatives to Western conceptions of the rule of law.

Beyond The Courts, Beyond The State: Reflections On Caldwell's "Horizontal Rights And Chinese Constitutionalism", Victor V. Ramraj

Chicago-Kent Law Review

This article provides a critical response to Ernest Caldwell's article, Horizontal Rights and Chinese Constitutionalism: Judicialization through Labor Disputes. According to Caldwell, those looking for an emerging constitutional culture in China should be looking not in the higher courts (as the American paradigm of constitutional law suggests), but in the lower courts that settle day-to-day disputes. Moreover, the constitutional discourse in those lower courts is not about limiting state power, but about the need for "horizontal" protections of citizens—specifically laborers—from their powerful employers in furtherance of constitutional values. This article offers three responses to Caldwell's thesis. First, while acknowledging and …

The Unity Of Constitutional Values: A Comment On Ernest Caldwell's "Horizontal Rights And Chinese Constitutionalism: Judicialization Through Labor Disputes", Arif A. Jamal

Chicago-Kent Law Review

Ernest Caldwell wants to defend Chinese constitutionalism from criticism, mainly from Western constitutional scholars or scholars who hold up Western constitutional patterns as an ideal. Caldwell makes both a 'comparative' claim and a 'value' claim. The comparative claim is that Chinese constitutional law must be understood on its own terms and that on these terms it does protect rights, even if it does not do so in the same way as Western constitutional law. The value claim is that the procedures in China's legal system satisfy value concerns captured in the term 'constitutionalism' because they show how that system respects …

Constitutional Listening, Michael W. Dowdle

Chicago-Kent Law Review

This article explores a particular methodology of comparative constitutional analysis that it calls "constitutional listening." Derived from the interpretive "principle of charity," constitutional listening involves interpreting constitutional discourse of other polities in their best light. This includes not simply polities whose constitutional structures and values resemble our own, but perhaps even more importantly, polities and constitutional systems whose values and structures seem alien to us. The value of this methodology, it is argued, lies in its ability to expand our understanding of the diversity of experiences that have gone into the human project of constitutionalism, and in the diversity of …

From Constitutional Listening To Moral Listening, Roy Tseng

Chicago-Kent Law Review

In order to provide comments on Michael Dowdle's account of "Constitutional Listening," this paper aims to establish three counter-arguments. First of all, in contrast to Dowdle's particularly narrow understanding of liberalism, I argue that to evaluate the moral import of liberalism properly, we need to draw attention to the diversities of liberalism. According to what I will call "historicist liberalism," for example, in understanding other cultures we should try to show sensitivities toward alien political systems and moral values. Second of all, although I appreciate Dowdle's effort to avoid the misinterpretation of non-Western constitutional discourse, I do not agree with …

Discrimination In The Marcellus Shale: The Dormant Commerce Clause And Hydraulic Fracturing Waste Disposal, Eric Michel

Chicago-Kent Law Review

The environmentally controversial process of hydraulic fracturing (commonly referred to as "fracking") has led to a recent explosion in the supply and sale of natural gas in the United States. However, every fracking operation creates a sizable amount of toxic wastewater that requires disposal, and drillers in Pennsylvania have increasingly been shipping their waste across the border to Ohio because of Pennsylvania's inadequate internal disposal options. In response, Ohio has passed legislation that taxes out-of-state fracking waste at a greater rate than waste derived from natural gas drilling within its borders. This Note examines whether Ohio's taxing scheme violates the …

The Nursing Standard Of Care In Illinois: Rethinking The Wingo Exception In The Wake Of Sullivan V. Edward Hospital, Emily Chase-Sosnoff

Chicago-Kent Law Review

This note analyzes the current circuit split among Illinois courts over whether the same-license requirement for medical expert testimony applies to testimony about the standard of care for nurse-doctor communications. Part I traces the history of the problem by explaining the original same-license requirement, the Wingo exception for nurse-doctor communications, and the Illinois Supreme Court's decision in Sullivan, which cast doubt on Wingo's continued survival. Part II illustrates the nature of the circuit split by describing the lower courts' three distinct interpretations of Sullivan. Finally, Part III argues that courts should apply Sullivan strictly and abandon the Wingo exception because …

Court Reform And Breathing Space Under The Establishment Clause, Mark C. Rahdert

Chicago-Kent Law Review

Flast v. Cohen held that federal taxpayers have standing to challenge government spending for religion. While Frothingham v. Mellon generally prohibits taxpayer standing in federal courts, the Court reasoned that the Establishment Clause specifically prohibits taxation in any amount to fund unconstitutional religious spending. For several decades Flast has been settled law that supplied jurisdiction in many leading establishment cases. But Hein v. Freedom from Religion Foundation, Inc. and Arizona Christian School Tuition Organization v. Winn signal that Flast may soon be overruled. This jurisdictional ferment raises two questions: Why this sudden shift? And what does it signify for the …

Toward A Meaning-Full Establishment Clause Neutrality, Bruce Ledewitz

Chicago-Kent Law Review

Some form of government neutrality toward religion, in contrast to a more pro-religion stance or a turn toward nonjusticiability, is the only interpretation of the Establishment Clause that can potentially lead to a national consensus concerning the proper role of religion in American public life. But to achieve that goal, neutrality theory must acknowledge and engage the need for the expressions of deep meaning on public occasions and in the public square generally. Current neutrality doctrine promotes a silent and empty public square. This article proposes an interpretation of neutrality that would allow a symbol-rich, meaning-full public square without violating …

Electronic Privacy And Employee Speech, Pauline T. Kim

Chicago-Kent Law Review

The boundary between work and private life is blurring as a result of changes in the organization of work and advances in technology. Current privacy law is ill-equipped to address these changes and as a result, employees' privacy in their electronic communications is only weakly protected from employer scrutiny. At the same time, the law increasingly protects certain socially valued forms of employee speech. In particular, collective speech, speech that enforces workplace regulations and speech that deters or reports employer wrong-doing are explicitly protected by law from employer reprisals. These two developments—weak protection of employee privacy and increased protection for …

Higher Law Secularism: Religious Symbols, Contested Secularisms, And The Limits Of The Establishment Clause, Zachary R. Calo

Chicago-Kent Law Review

There are two dominant traditions of understanding the secular, both with long genealogical resonance in western thought: Christian secularity and secularism. The former links the secular to a theological narrative, while the latter defines the secular as standing over and against religion. Constitutional debate has commonly framed the issue of religious symbols as demanding resolution in favor of one of these traditions. Rather than offering a way to overcome the divide and the culture war it generates, the Court's jurisprudence has instead concretized the binary. Only by cultivating a new understanding of the secular in law might there emerge an …

Table Of Contents - Issue 3, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

The Future Of The Establishment Clause In Context: Neutrality, Religion, Or Avoidance?, Nicholas P. Cafardi

Chicago-Kent Law Review

No abstract provided.

The Future Of The Establishment Clause In Context: A Response To Ledewitz, Christopher C. Lund

Chicago-Kent Law Review

No abstract provided.

A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine

Chicago-Kent Law Review

As a number of commentators have observed, the Supreme Court's record in adjudicating the free exercise claims of religious minorities—in particular, unfamiliar and unpopular religious minorities—is vulnerable to the critique that the Court's rhetoric and, at times, the Court's holdings demonstrate an inability or unwillingness to look beyond majoritarian religious perspectives. Building on this scholarship, this article analyzes the Court's adjudication of Establishment Clause cases in the context of different religious perspectives, including those of religious minorities, religious minorities, and nonbelievers.

In exploring these questions, this article traces the Court's Establishment Clause jurisprudence through several decades, examining a number of …

The Constitutional Politics Of The Establishment Clause, Richard Albert

Chicago-Kent Law Review

In these reflections presented at a Symposium hosted by Duquesne University School of Law on "The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?" I examine the constitutional politics driving the interpretation of the Establishment Clause. I suggest that the Supreme Court's recent case law on taxpayer standing may signal a return to the founding design of the Establishment Clause. At the founding, the Establishment Clause constrained the actions of only the national government, disabled only Congress from establishing a religion, and vigorously protected the sovereignty of states. Each of these three signposts—national interdiction, congressional disability, and …

Hide That Syndicated Junk In The Closet! A Case For Credit Risk Retention In The Clo Market, Adam Altman

Chicago-Kent Law Review

Pursuant to Section 941(b) of the Dodd-Frank Act, the federal finance and banking agencies proposed rules requiring securitizers to retain some of the credit risk associated with their securitization transactions. In their proposed rules, the agencies noted that CLO managers fall squarely within their definition of the term "securitizer." Industry participants, however, vehemently contend that CLO man- agers should not be subject to the credit risk retention rules. This note argues that if risk retention is an effective means of promoting responsible securitization activity, regulators should require CLO managers to retain credit risk.

A Comparative Law Analysis Of Private Securities Litigation In The Wake Of Morrison V. National Australia Bank, Grant Swanson

Chicago-Kent Law Review

This article examines the recent Supreme Court decision in Morrison v. National Australia Bank and its broad implications for private securities litigants going forward. Morrison overturned forty years of jurisprudence when it rejected the conduct and effects tests used in some form by every Circuit Court when determining the extraterritorial reach of Section 10(b) of the Securities Act. The Court instead adopted a transactional test requiring that the security be traded in the United States or otherwise domestic, substantially cutting back the reach of Section 10(b). As a result, many securities litigants will be forced to bring claims in the …

Women Lawyers And Women's Legal Equality: Reflections On Women Lawyers At The 1893 World's Columbian Exposition In Chicago, Mary Jane Mossman

Chicago-Kent Law Review

In Chicago in 1893, for the first time in history, women lawyers were invited to participate with male lawyers and judges at the Congress on Jurisprudence and Law Reform, one of a number of Congresses organized in conjunction with the World's Columbian Exposition. By the 1890s, women lawyers had achieved considerable success for at least two decades in gaining admission to state bars in the United States, and their success provided important precedents for women who wished to become lawyers in other parts of the world. Yet, as Nancy Cott explained, although women's admission to the professions had been seen …

Introduction: Making History, Felice Batlan

Chicago-Kent Law Review

No abstract provided.

Puerto Rican Women Nationalist Vs. U.S. Colonialism: An Exploration Of Their Conditions And Struggles In Jail And Court, Margaret Pour

Chicago-Kent Law Review

This article examines the legal ramifications experienced by several women members of the Puerto Rican Nationalist Party as a result of their militant opposition to U.S. colonialism in Puerto Rico. These women participated in the 1950 uprising in Puerto Rico or, in the case of Lolita Lebrón, the Nationalist Party's 1954 attack on the U.S. Congress. The article explores their sentences and conditions in prison from a gendered perspective. It also suggests that several of the women were tortured while in prison. The article concludes that the women drew strength from their political commitment to Puerto Rican independence and their …

The Possibility Of Compromise: Antiabortion Moderates After Roe V. Wade, 1973–1980, Mary Ziegler

Chicago-Kent Law Review

Leading studies argue that Roe itself radicalized debate and marginalized antiabortion moderates, either by issuing a sweeping decision before adequate public support had developed or by framing the opinion in terms of moral absolutes. The polarization narrative on which leading studies rely obscures important actors and arguments that defined the antiabortion movement of the 1970s. First, contrary to what the polarization narrative suggests, self-identified moderates played a significant role in the mainstream antiabortion movement, shaping policies on issues like the treatment of unwed mothers or the Equal Rights Amendment. Working in organizations like Feminists for Life (FFL) or American Citizens …

Adultery By Doctor: Artificial Insemination, 1890–1945, Kara W. Swanson

Chicago-Kent Law Review

In 1945, American judges decided the first court cases involving assisted conception. The challenges posed by assisted reproductive technologies to law and society made national news then, and have continued to do so into the twenty-first century. This article considers the first technique of assisted conception, artificial insemination, from the late nineteenth century to 1945, the period in which doctors and their patients worked to transform it from a curiosity into an accepted medical technique, a transformation that also changed a largely clandestine medical practice into one of the most pressing medicolegal problems of the mid-twentieth century. Doctors and lawyers …