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“Contrary To Law”: Determining The Scope Of Qualifying Predicate Offenses For 18 U.S.C. § 545, Arjun Prakash Dec 2022

“Contrary To Law”: Determining The Scope Of Qualifying Predicate Offenses For 18 U.S.C. § 545, Arjun Prakash

University of Chicago Law Review

This Comment seeks to resolve an ongoing dispute among courts regarding the correct interpretation of “contrary to law” in 18 U.S.C. § 545, a statute that criminalizes the unlawful importation of goods. In particular, courts disagree about whether “contrary to law” includes administrative regulatory viol ations, which would massively expand the applicability of § 545’s severe criminal penalties.

This Comment argues that analyzing previous versions of § 545 and applying canons of statutory interpretation provide support for a narrow interpretation of the statute. But these lines of analysis do not definitively establish that this interpretation is correct. As a result, …


Against Bankruptcy Exceptionalism, Jonathan M. Seymour Dec 2022

Against Bankruptcy Exceptionalism, Jonathan M. Seymour

University of Chicago Law Review

Bankruptcy courts conceive of their mission differently than other courts do. For the Supreme Court, bankruptcy cases are ordinary statutory cases to be resolved “clearly and predictably using well established principles of statutory interpretation.” Many bankruptcy judges, though, believe that bankruptcy courts serve a distinctive mission for which ordinary adjudicative methods do not suffice. Often, that mission is characterized using the language of equity. Judges and commentators alike have observed that among the most spoken words in the bankruptcy courts are: “the bankruptcy court is a court of equity.” Others have contended that bankruptcy necessitates “creativity and flexibility,” pursuant to …


Here’S Your Number, Now Please Wait In Line: The Asylum Backlog, Federal Court Litigation, And Artificial Intelligence In Agency Adjudication, Youssef Mohamed Dec 2022

Here’S Your Number, Now Please Wait In Line: The Asylum Backlog, Federal Court Litigation, And Artificial Intelligence In Agency Adjudication, Youssef Mohamed

University of Chicago Law Review

Asylum seekers are individuals who flee to other countries to find sanctuary from the persecution suffered within the borders of their home countries. The U.N. High Commissioner for Refugees estimated that by mid-2021 there were nearly 4.4 million individuals actively seeking asylum worldwide, and the most recent data available surprisingly suggest that the United States granted asylum to only 31,429 persons in 2020.

The asylum system that is with us today was created when Congress enacted the Refugee Act with the goal of “respond[ing] to the urgent needs of persons subject to persecution in their homelands” and “provid[ing] a permanent …


Jurisdiction As Power, Ryan C. Williams Nov 2022

Jurisdiction As Power, Ryan C. Williams

University of Chicago Law Review

For centuries, courts and legal commentators defined “jurisdiction” by reference to a court’s “power.” A court that lacked jurisdiction, under this conception, simply lacked the ability to bind the parties, and its resulting rulings could therefore be regarded by both litigants and later courts as void and of no legal effect. But in the middle decades of the twentieth century, the Supreme Court and other U.S. courts strongly embraced the so-called bootstrap doctrine—a distinctive branch of preclusion law that severely limits the ability to collaterally attack a judgment based on a claimed lack of jurisdiction. Because the bootstrap doctrine effectively …


Property Versus Antidiscrimination: Examining The Impacts Of Cedar Point Nursery V. Hassid On The Fair Housing Act, Amy Liang Nov 2022

Property Versus Antidiscrimination: Examining The Impacts Of Cedar Point Nursery V. Hassid On The Fair Housing Act, Amy Liang

University of Chicago Law Review

The Fair Housing Act is a groundbreaking federal law enacted in 1968 during the civil rights movement. Reflecting a policy judgment that the public’s interest in eliminating housing discrimination outweighs a prejudicial landlord’s property right to exclude, it prohibits landlords from rejecting tenants on a discriminatory basis. However, as the Act’s promises remain in the process of fulfillment, the Supreme Court’s 2021 decision in Cedar Point Nursery v. Hassid has placed it into unprecedented danger: by holding that a regulation authorizing temporary occupations of private property constituted a per se taking that requires compensation under the Takings Clause, Cedar Point …


The Joint Venture Exception In The International Silver Platter Doctrine: Variability And Devaluation Of Cooperation, Jacqueline Pecaro Nov 2022

The Joint Venture Exception In The International Silver Platter Doctrine: Variability And Devaluation Of Cooperation, Jacqueline Pecaro

University of Chicago Law Review

This Comment examines the joint venture exception in the international silver platter doctrine in the context of the use of wiretaps in federal narcotics cases. Under the international silver platter doctrine, evidence obtained through searches (like wiretaps) by foreign law enforcement on foreign soil and under foreign law is admissible in U.S. courts. The joint venture exception qualifies the international silver platter doctrine: if participation by U.S. law enforcement in a wiretap by foreign law enforcement on foreign soil constitutes a joint venture, then evidence obtained from the search is admissible only if the wiretap was reasonable under the Fourth …


The Improvised Implementation Of Executive Agreements, Kathleen Claussen Nov 2022

The Improvised Implementation Of Executive Agreements, Kathleen Claussen

University of Chicago Law Review

Implementation is at the core of lawmaking in our divided government. A rich literature covers the waterfront with respect to agencies’ implementation of legislative mandates, and another equally robust line of scholarship considers Congress’s implementation of treaties. Missing from those discussions, however, is another area of implementation central to U.S. foreign relations: the implementation of transnational regulatory agreements.

This Article examines how federal agencies have harnessed far-reaching discretion from Congress on whether and how to implement thousands of international agreements. Agencies regularly implement agreements by relying on a self-developed menu of options, much like they do in the domestic regulatory …


Toward A Centralized Hatch-Waxman Venue, Matthew Makowski Nov 2022

Toward A Centralized Hatch-Waxman Venue, Matthew Makowski

University of Chicago Law Review

Pharmaceutical litigation often begins when a generic drug company files an application to have its generic drug approved by the FDA. That application is received by the FDA in the District of Maryland. To “submit” it is a statutory act of patent infringement under the Hatch-Waxman Act. Establishing venue in subsequent Hatch-Waxman litigation can be complex because HatchWaxman litigation often involves simultaneous and independent lawsuits against many generic applicants. A Hatch-Waxman plaintiff might reasonably attempt to consolidate litigation in a single district court; Hatch-Waxman defendants might reasonably resist consolidation in the plaintiff’s preferred venue. Recent Supreme Court and Federal Circuit …


The Visibility Trap, Kate Redburn Oct 2022

The Visibility Trap, Kate Redburn

University of Chicago Law Review

In August 2021, the Indiana Court of Appeals prohibited a transgender teenage boy (H.S.) from changing the gender marker on his birth certificate. Because he was fifteen at the time, his parents had filed the petition on his behalf.1 As his parents testified, changing the gender marker on a young trans person’s birth certificate is more than a formality. It makes it possible for them to obtain a passport and driver’s license that match their identity, helping to avoid incongruities in gender regulation that can run the gambit from confusing to dangerous.2

The appellate panel was split. Legally …


Academic Freedom And Misgendered Honorifics In The Classroom, Gabrielle Dohmen Oct 2022

Academic Freedom And Misgendered Honorifics In The Classroom, Gabrielle Dohmen

University of Chicago Law Review

In recent years, public universities have promulgated pronoun policies designed to encourage professors and students to respect the pronouns that others use to identify themselves. A professor who does not follow the pronoun policy and instead misgenders a student—or uses gendered words or pronouns that do not match that student’s gender identity—may be disciplined by their university for violating the pronoun policy.

This Comment argues that professorial speech misgendering students in the classroom should not be protected by a professor’s First Amendment right to academic freedom, which traditionally covers teaching and scholarship. The First Amendment protects some exercises of academic …


The Class Appeal, Adam S. Zimmerman Oct 2022

The Class Appeal, Adam S. Zimmerman

University of Chicago Law Review

For a wide variety of claims against the government, the federal courthouse doors are closed to all but those brought by powerful, organized interests. This is because hundreds of laws—colloquially known as “channeling statutes”—require disaffected groups to contest government bodies directly in appellate courts that hear cases individually. In theory, these laws promise quick, consistent, and authoritative legal decisions in appellate courts. In fact, without class actions, government bodies avoid judicial review by selectively avoiding claims brought by some of the most vulnerable people in the administrative state—from veterans and immigrants to coal miners, laborers, and the disabled.

This Article …


Reducing Prejudice Through Law: Evidence From Experimental Psychology, Sara Emily Burke, Roseanna Sommers Oct 2022

Reducing Prejudice Through Law: Evidence From Experimental Psychology, Sara Emily Burke, Roseanna Sommers

University of Chicago Law Review

Can antidiscrimination law effect changes in public attitudes toward minority groups? Could learning, for instance, that employment discrimination against people with clinical depression is legally prohibited cause members of the public to be more accepting toward people with mental health conditions? In this Article, we report the results of a series of experiments that test the effect of inducing the belief that discrimination against a given group is legal (versus illegal) on interpersonal attitudes toward members of that group. We find that learning that discrimination is unlawful does not simply lead people to believe that an employer is more likely …


An Information-Production Theory Of Liability Rules, Jacob Assaf, Roy Shapira Sep 2022

An Information-Production Theory Of Liability Rules, Jacob Assaf, Roy Shapira

University of Chicago Law Review

The negligence-versus–strict liability debate is over in tort law, and negligence has clearly won. Yet the fact that our accident-compensation system is fault based continues to attract much opposition in popular sentiment and academic circles. Standard economic analysis views strict liability as preferable to negligence because it is easier to administer and leads to better risk reduction: strict liability induces injurers not only to optimally invest in precaution but also to optimally adjust their activity levels. Standard analysis thus views the prevalence of negligence as unjustifiable on efficiency grounds. This Article challenges the conventional wisdom and clarifies an efficiency rationale …


What’S The Use?: Interpreting The Term “Uses” In The Aggravated Identity Theft Provision, Shang-Chi Andrew Liu Sep 2022

What’S The Use?: Interpreting The Term “Uses” In The Aggravated Identity Theft Provision, Shang-Chi Andrew Liu

University of Chicago Law Review

The Identity Theft Penalty Enhancement Act (ITPEA) increases penalties for crimes that involve the unlawful use of another person’s identifying information. A subsection of the ITPEA—the aggravated identity theft provision—imposes a mandatory two-year sentencing enhancement on a defendant who “uses” a means of identification of another person during and in relation to a predicate felony. Currently, federal circuit courts disagree about whether the term “uses” in the statute is ambiguous and whether the rule of lenity should consequently apply to narrow its reach. On the one hand, courts that have held the statute to be ambiguous apply the rule of …


The Public Right To Education, Matthew Patrick Shaw Sep 2022

The Public Right To Education, Matthew Patrick Shaw

University of Chicago Law Review

Public education is “the most important function of state and local government” and yet not a “fundamental right or liberty.” This Article engages one of constitutional law’s most intractable problems by introducing “the public right to education” as a doctrinal pathway to a constitutional right to education process in three steps. First, it identifies that the otherwise right-to-education foreclosing case, San Antonio Independent School District v. Rodriguez, only contemplated education as a fundamental right or liberty interest. Second, by identifying public education as a due process–protected property interest, this Article presents a viable pathway for circumventing Rodriguez. Third, mindful of …


Pretrial Detention By A Preponderance: The Constitutional And Interpretive Shortcomings Of The Flight-Risk Standard, Jaden M. Lessnick Sep 2022

Pretrial Detention By A Preponderance: The Constitutional And Interpretive Shortcomings Of The Flight-Risk Standard, Jaden M. Lessnick

University of Chicago Law Review

Pretrial detention seriously restricts the physical liberty of presumptively innocent people who have yet to be tried and convicted. The Bail Reform Act (BRA) imposes several procedural requirements that must be satisfied before a judge can order the pretrial detention of a federal defendant. At a detention hearing, the BRA allows a judge to order the pretrial detention of an arrestee who poses either a danger to the community or a flight risk. The BRA states unequivocally that a finding of dangerousness must be supported by clear and convincing evidence, but the statute is silent as to the evidentiary standard …


Untangling The Prison Mailbox Rules, Mario Ramirez Sep 2022

Untangling The Prison Mailbox Rules, Mario Ramirez

University of Chicago Law Review

Unlike typical litigants, pro se prisoners are unable to deliver filings to court or to have an attorney do so on their behalf. Such prisoners are forced to rely on their prisons’ mailing systems to file documents, which often results in those documents reaching the court after the applicable deadlines. Accordingly, the Supreme Court created a “prison mailbox rule” in Houston v. Lack, under which some filings by prisoners are considered filed when they are given to prison officials for mailing, rather than when they reach the court.

Defining the exact reach of that prison mailbox rule has created considerable …


The Role Of Transnational Civil Society In Shaping International Values, Policies, And Law, Mariana Olaizola Rosenblat Jun 2022

The Role Of Transnational Civil Society In Shaping International Values, Policies, And Law, Mariana Olaizola Rosenblat

Chicago Journal of International Law

This Essay suggests that predictions about the character of international law in the context of rising authoritarianism may be nuanced by paying closer attention to the influence of transnational civil society (TCS) on global affairs and normative development. While acknowledging that pro-liberal civil society has faced escalating threats from authoritarian governments in recent years, the Essay highlights the resilience, adaptability, and creativity of TCS, which finds ways to remain active and harness sources of strength despite those threats. However, TCS is not always pro-liberal, and there is evidence of strong anti-liberal civil society influence as well. Whether or not authoritarian …


Retooling Sanctions: China’S Challenge To The Liberal International Order, Timothy Webster Jun 2022

Retooling Sanctions: China’S Challenge To The Liberal International Order, Timothy Webster

Chicago Journal of International Law

Professor Tom Ginsburg has produced yet another classic of transnational law, political science, and international relations. Democracies and International Law yields important insights into the democratic nature of international law but cautions that authoritarian states can apply these very legal technologies for repressive or antidemocratic purposes. Building on Ginsburg’s theories of mimicry and repurposing, this contribution highlights the role of both techniques in the creation of China’s economic sanctions program. On the one hand, China has developed a basic set of tools to impose economic sanctions—a key instrument in the liberal international toolkit—on foreign entities and persons. In so doing, …


Democracies And International Law: An Update, Tom Ginsburg Jun 2022

Democracies And International Law: An Update, Tom Ginsburg

Chicago Journal of International Law

Democracies have traditionally played a very important role in the construction and operation of international law, but this role has come under some pressure with the wave of democratic erosion that began around 2006. In a book published last year, the author laid out an argument that in some cases, international law could help to bolster democracy around the world, but that role was under threat from rising authoritarianism. This Essay considers relevant developments, finding cause for optimism in Latin America, some cause for pessimism in Africa, and real risks in Europe. Cyber governance is going to be a critical …


The Future Of Embedded International Law: Democratic And Authoritarian Trajectories, Karen J. Alter Jun 2022

The Future Of Embedded International Law: Democratic And Authoritarian Trajectories, Karen J. Alter

Chicago Journal of International Law

This short Essay explains why deeply embedding international law (IL) directly into domestic legal orders is seen as a helpful democratic legal strategy to make international law more effective. It also describes the logistics of embedding international law into national legal systems. The goal is to then query whether and how authoritarian regimes dis-embed or work around this embedded IL. The analysis raises a fundamental question about how time is important for any conversation about embedded or entrenched international or authoritarian law. The embedded IL strategy is a long-game strategy, and as such it can ultimately outlive periods of authoritarian …


Violating International Law Is Contagious, Shai Dothan Jun 2022

Violating International Law Is Contagious, Shai Dothan

Chicago Journal of International Law

Democracies have a stronger incentive to comply with international law than autocracies, but they will not comply when faced with violations by other states. International law is a mechanism of cooperation between states: it can make states vulnerable to betrayal, but also increase their chances for successful collaboration. In other words, complying with international law is like playing cooperate in a stag hunt game. Cooperating is an efficient strategy but not a strategy that is evolutionarily stable. If an autocracy emerges and starts to violate international law, democracies will violate international law in response. This makes violating international law contagious. …


A Mimicry Of International Law Compliance: How The Abusive Interpretation Of International Norms Serves Poland’S Illiberal Regime, Aleksandra Dzięgielewska Jun 2022

A Mimicry Of International Law Compliance: How The Abusive Interpretation Of International Norms Serves Poland’S Illiberal Regime, Aleksandra Dzięgielewska

Chicago Journal of International Law

In recent years, the instrumental use of international norms to entrench abusive rule has been a strategy increasingly utilized by democratically regressing European states. This pattern is evident in Poland in particular, where captured democratic institutions have attempted to legitimize unconstitutional reforms of the justice system by asserting their consistency with international law. To provide an insight into this illiberal strategy, this Essay uses the concept of mimicry as a framework to study recent judgments by the Polish Constitutional Tribunal. This Essay argues that the Polish Constitutional Tribunal feigns legal compliance by abusively interpreting well-established concepts of international law. The …


Democratization’S Discontents: Rediscovering The Virtues Of The Non-Intervention Norm, Brad R. Roth Jun 2022

Democratization’S Discontents: Rediscovering The Virtues Of The Non-Intervention Norm, Brad R. Roth

Chicago Journal of International Law

Post-Cold War triumphalism prompted efforts to transform international law into a tool of democratization, forsaking the international legal order’s former neutrality with respect to the foundations of political legitimacy within states. Yet after three decades, the sources of political legitimacy remain “incorrigibly plural,” and efforts to ascertain “the will of the people” remain beset by indeterminacy. It is time to rediscover international law’s role as a framework of accommodation among bearers of conflicting interests and values, with consequent limits on pro-democratic intervention in the internal affairs of states.


Democracy And Statehood, Veronika Fikfak Jun 2022

Democracy And Statehood, Veronika Fikfak

Chicago Journal of International Law

This Essay addresses the relationship between democracy and statehood. The two concepts have been linked since the 1990s, when new entities claiming statehood were expected to have constituted themselves on a democratic basis and to have put in place democratic government structures to be recognized by the international community. Yet, as Professor Tom Ginsburg’s book Democracies and International Law reveals, the rise of autocracies and a general backlash against democracy in the last three decades have led to changes in countries’ behavior. This Essay argues that today, the requirement of democratic process and institutions for international recognition is less stringent. …


The Limits Of Prodemocratic International Law In Europe, Aslı Ü. Bâli Jun 2022

The Limits Of Prodemocratic International Law In Europe, Aslı Ü. Bâli

Chicago Journal of International Law

Tom Ginsburg’s Democracies and International Law explores the ways in which regional human rights regimes have been designed to promote and protect democracy and the degree of their success in an age of democratic backsliding. In this symposium contribution, I examine the impact of the relationship between the European Union (E.U.) and Turkey on that country’s record of democratic backsliding. I argue that European countries’ difficulties in managing multi-racial democracy have limited the depth and effectiveness of the E.U.’s pro-democratic commitments in its dealings with Turkey.


Dark Law On The South China Sea, Stephen Cody Jun 2022

Dark Law On The South China Sea, Stephen Cody

Chicago Journal of International Law

In Democracies and International Law, Tom Ginsburg warns of an emerging post-liberal order influenced by powerful authoritarian regimes and new illiberal laws that repurpose global rights, undermine international courts, and expand executive power. Autocrats and kleptocrats embedded in the global economy increasingly appear to use international law to preserve their power, protect norms of non-intervention, and enhance the global stability of autocratic rule. Legalistic autocrats, for example, exploit judicial deference and vague statutory language in national security laws to circumvent checks on their authority. This process, which I call “dark law,” aids in the consolidation of state power and the …


International Institutions And Platform-Mediated Misinformation, Aziz Z. Huq Jun 2022

International Institutions And Platform-Mediated Misinformation, Aziz Z. Huq

Chicago Journal of International Law

The Essay is part of a Symposium on Tom Ginsburg’s insightful book Democracies and International Law. It explores one particular kind of interaction between democratic nation states and international instruments and institutions: how international law and institutions either mitigate or exacerbate harms to democracy from the diffusion of misinformation and hate speech on social-media platforms. I identify three distinct pathways not covered by Ginsburg: (a) international law as an off-the-rack legal regime for content-moderation by such platforms; (b) international contouring of feasible domestic regulation; and (c) ex ante and ex post international regulation of platform-mediated misinformation. Reflection upon these pathways …


Tianxia, Or Another Grossraum? U.S.–China Competition And Paradigm Change In The International Legal Order, Tokujin Matsudaira Jun 2022

Tianxia, Or Another Grossraum? U.S.–China Competition And Paradigm Change In The International Legal Order, Tokujin Matsudaira

Chicago Journal of International Law

In this Essay, I try to provide some clarification on the concept of Tianxia from the perspectives of both classical Chinese philosophy and constitutional theory, which Tom Ginsburg nominated as the source of authoritarian international law. My observation is that a paradigm shift is occurring in the international legal order. Tianxia designates the ideal relationships between states in the Chinese classics. And in the new paradigm, Tianxia is expected to integrate the international society. In that sense, I take Tianxia as a regime-neutral ideotype between democratic/Western and authoritarian/non-Western legal order. However, Chinese engagement with international law has shown a tendency …


Clearview Ai, Tiktok, And The Collection Of Facial Images In International Law, Miriam Kohn Jun 2022

Clearview Ai, Tiktok, And The Collection Of Facial Images In International Law, Miriam Kohn

Chicago Journal of International Law

Private companies’ collection of facial images is on the rise globally, which has major implications for both economic development and privacy laws. This Comment uses the facial recognition technology company Clearview AI and the video sharing app TikTok as case studies to examine the problems raised by these practices. After summarizing the relevant legal regimes created by the United Nations (U.N.) and the European Union (E.U.), it applies the E.U. privacy regime to TikTok’s most recent Privacy Policy. The Comment concludes by proposing updates to the E.U. and U.N. privacy regimes to more effectively regulate TikTok’s data collection and analogous …