Law Commons^™

The Restatement Of Law On Juveniles’ Adjudicative Competence And Rights In Interrogation: Evidence Of Progress, Thomas Grisso

University of Chicago Law Review

Part 3 of the Restatement of Children and the Law, ¹ “Children in the Justice System,” reflects recent dramatic reform in juvenile law and practice.² The reform recognizes that kids are different, requiring special attention to protecting due process when the justice system must make decisions in delinquency cases.³ The Restatement’s analyses use neuroscientific and psychosocial developmental research that has improved our under- standing of children’s and adolescents’ immature decision-making capacities and psychosocial vulnerability compared to adults.⁴ This developmental perspective has led to extensive reform of laws and practices that seek to better protect juveniles’ due process …

Advancing Racial Justice Through The Restatement Of Children And The Law: The Challenge, The Intent, And The Opportunity, Kristin Henning

University of Chicago Law Review

No abstract provided.

Adolescents In The Justice System: A Progress Report On The Restatement Of Children And The Law, Richard J. Bonnie

University of Chicago Law Review

Professor Elizabeth Scott, the chief reporter of the American Law Institute’s (ALI) Restatement of Children and the Law,¹ has often observed that the nation’s widespread commitment to juvenile justice reform in the twenty-first century should be grounded in two premises: (1) the laws and practices of the juvenile justice system must be grounded in and guided by evolving knowledge about adolescent development; and (2) youth-serving institutions, including the justice system, must collaborate to erase substantial racial disparities in intervention, discipline, and punishment.² This Symposium will explore the current draft of the Restatement of Children and the Law with …

The New Parents' Rights Movement, Education, And Equality, Kristine L. Bowman

University of Chicago Law Review

No abstract provided.

Some Thoughts On A Developmental Approach To A Sound Basic Education, Goodwin Liu

University of Chicago Law Review

No abstract provided.

Protecting Children's Access To A Sound Basic Education In The Age Of Political Polarization, A Comment On Goodwin Liu And Kristine Bowman's Essays On Children's Education In The Restatement, Emily Buss

University of Chicago Law Review

Justice Goodwin Liu and Professor Kristine Bowman have taken two very different approaches in their essays commenting on the Restatement’s¹ coverage of the law governing children’s education. In Some Thoughts on a Developmental Approach to a Sound Basic Education,² Justice Liu focuses near exclusively on the Restatement’s articulation of the core educational standard, the “sound basic education,” and presses for an expanded application of that standard to children from birth through young adulthood.³ In The New Parents’ Rights Movement, Education, and Equality,⁴ Bowman addresses the entire structure of the educational provisions of the Restatement, which straddle …

Parental Rights: Rhetoric Versus Doctrine, Clare Huntington

University of Chicago Law Review

Professor Josh Gupta-Kagan observes that the Restatement of Children and the Law¹ does not transform the law of child abuse and neglect.² As he contends, this is neither a feature nor a bug.³ It is simply the reality of a restatement, which can only nudge, not reform, the law⁴ I agree with Gupta-Kagan that only political will, not the American Law Institute (ALI), can fix the significant problems with the family regulation system. For advocates and scholars—including both of us—who seek structural and doctrinal change, the ALI has principles projects, and there is a broader ecosystem …

Parents In Fact, Douglas Nejaime

University of Chicago Law Review

The Restatement of Children and the Law, protects a child’s relationship with a T“de facto parent”—a person who has “established a bonded and dependent relationship with the child that is parental in nature.” De facto parent doctrines are part of a broader category of functional parent doctrines that extend parental rights to an individual who has developed a parent-child relationship and acted as a parent to the child. Application of the de facto parent doctrine depends on a conclusion that the person formed a parental relationship, and yet debate remains over whether the person is a parent or merely a …

De Facto Parents, Legal Parents, And Inchoate Rights, Solangel Maldonado

University of Chicago Law Review

Professor Douglas NeJaime’s Essay Parents in Fact¹ com- mends the Restatement of Children and the Law’s² embrace of the de facto parent doctrine.³ He is somewhat critical, however, of the Restatement’s reference to individuals seeking recognition as de facto parents as “third parties” and its reluctance to recognize de facto parents as legal parents.⁴ He is also skeptical of the Restatement’s requirement that an individual seeking recognition as a de facto parent first show that a legal parent consented to and fostered the individual’s creation of a parent-child relationship with the child.⁵ NeJaime’s observations provide …

Beyond Home And School, Anne C. Dailey, Laura A. Rosenbury

University of Chicago Law Review

The Restatement’s focus on children in society encourages us to move beyond a merely descriptive project toward a new way of envisioning children’s place in law as full persons in the present. In our view, Part 4 does much more than identify the situations where the law does or should treat children like adult decision- makers. Instead, Part 4 illuminates the possibilities for a new law of the child that understands children as developing persons deeply connected to but also distinct from the adults in their lives. We focus on § 18.11––“Minors’ Right to Gain Access to Information and Other …

She's So Exceptional: Rape And Incest Exceptions Post-Dobbs, Michele Goodwin

University of Chicago Law Review

No abstract provided.

Nudging Improvements To The Family Regulation System, Josh Gupta-Kagan

University of Chicago Law Review

The Restatement of Children and the Law features a strong endorsement of parents’ rights to the care, custody, and control of their children because parents’ rights are generally good for children. Building on that foundation, the Restatement’s sections on child neglect and abuse law would resolve several jurisdictional splits in favor of greater protections for family integrity, thus protecting more families against the harms that come from state intervention, especially state separation of parents from children.

But a close read of the Restatement shows that it only goes so far. It is not likely to significantly reduce the wide variation …

Comment On Part 4 Essays: Goodwin And Dailey And Rosenbury, Elizabeth S. Scott

University of Chicago Law Review

Professors Michelle Goodwin and Anne Dailey and President Laura Rosenbury have written two compelling essays on Part 4 of the Restatement of Children and the Law,¹ dealing with Children in Society. Goodwin’s essay, She’s So Exceptional: Rape and Incest Exceptions Post-Dobbs,² focuses on § 19.02 of the Restatement, dealing with the right of minors to reproductive health treatments. This Section was approved by the American Law Institute before the Supreme Court decided Dobbs v. Jackson Women’s Health Organization,³ overturning Roe v. Wade.⁴ In her essay, Goodwin explores the harms that will follow if minors’ right of …

The Illusion Of Public Space: Enforcement Of Anti-Camping Ordinances Against Individuals Experiencing Homelessness, Peer Marie Oppenheimer

University of Chicago Legal Forum

In response to the growing homelessness problem, many state and local governments have developed anti-camping ordinances that criminalize the act of sleeping on public property. Anti-camping laws can devastate individuals experiencing homelessness, especially when alternative resources, such as shelters, are not easily accessible. This Comment addresses the extent to which municipalities may enforce anti-camping ordinances against individuals experiencing homelessness who have no alternative to sleeping in public without violating the Eighth Amendment. As municipal regulation and judicial interpretation narrow the scope of permissible use of publicly owned areas, this raises the question of to what extent, and to whom, public …

Knock And Talks: Faithfully Applying Social Norms To Prevent Unconstitutional Police Intrusion Upon The Home, Alexander Newman

University of Chicago Legal Forum

A “knock and talk” is a common police practice involving an officer approaching a home and knocking on the front door to speak with a resident. The knock and talk is a long-recognized exception to the Fourth Amendment’s warrant requirement, making it a powerful police tool to access constitutionally protected areas of the home. But courts have struggled to define the limits of a knock and talk. For example, when police officers knock and receive no answer, can they remain standing at the door, or even roam to other parts of the home?

The Supreme Court grounds the practice in …

Defunding Cities: Reconsidering The Fiscal Sanctioning Measures Of State Punitive Preemption Statutes, Eliza Martin

University of Chicago Legal Forum

In an effort to deter and punish cities for passing ordinances that conflict with state priorities, states are utilizing a new form of legislative power: punitive preemption. It is generally considered a legitimate use of state power to utilize statutes to preempt local measures and ordinances deemed inconsistent with state policy. State legislatures, however, are attaching punitive mechanisms to preemption legislation that, in the event of local noncompliance, create criminal and civil liability for local officials, provide removal mechanisms for elected officials, and allow for the fiscal sanctioning of local governments.

This Comment considers whether local governments are legally protected …

The Dysfunctional “Functional Equivalent” Standard: Regulations Of Groundwater Discharges Since County Of Maui V. Hawaii Wildlife Fund, Ellie Maltby

University of Chicago Legal Forum

The distinction between “groundwater” and “navigable waters” has long created legal disputes. The most recent Supreme Court decision to grapple with the boundary between groundwater and navigable waters is County of Maui v. Hawaii Wildlife Fund. Section 301(a) of the Clean Water Act (CWA) prohibits the discharge of any pollutant into navigable waters without a National Pollutant Discharge Elimination System (NPDES) permit. The question in County of Maui is whether the CWA applies to pollutants that travel from a point source through groundwater, before entering navigable waters. The Supreme Court held that the CWA requires a permit when the discharge …

Domestic Terror Across State Lines: A Failed Federal Framework, Sophia Houdaigui

University of Chicago Legal Forum

As white supremacist violence has substantially increased over the last two decades, calls to combat associated attacks have intensified. This Comment outlines the impact of the events of September 11, 2001 on domestic and international terrorism policy, contextualizing the subsequent invocation of international terrorism charges at significantly higher rates than those of domestic terrorism. It introduces the lack of a general criminal statute prohibiting acts of terrorism and discusses the issues associated with the varying definitions of domestic terrorism employed by the federal government.

Due to the lack of common terminology in referencing domestic terrorism, a number of white supremacists …

Multidistrict Litigation & Choice Of Federal Law, Andrew Eller

University of Chicago Legal Forum

Multidistrict litigation (MDL) is a procedural mechanism that consolidates federal civil cases from around the country into one federal district for pre-trial proceedings. Congress enacted MDL by statute in 1968 in response to a substantial influx of cases, and MDL represents a large portion of the federal civil docket today. MDL creates tricky choice of law questions, however, because cases are often filed in one district and then transferred to another through consolidation. Should a judge handling an MDL apply the state and federal law that the original court would apply or should he apply the law of his own …

The Past, Present, And Future Of Humanitarian Parole, Farooq Chaudhry

University of Chicago Legal Forum

The humanitarian parole provision of the Immigration and Nationality Act grants the Attorney General discretion to allow people to enter the United States without an immigrant or non-immigrant visa. Despite the sparse language of the provision establishing parole, it has been used in a wide variety of contexts, ranging from one-time grants of entry into the United States for medical care to the establishment of large-scale programs for entire groups of people. The creation and administration of large-scale parole programs have been the focus of recent lawsuits, placing critical questions on the meaning and scope of the provision before judges. …

Non-Retrogression Without Law, Nicholas O. Stephanopoulos, Eric Mcghee, Christopher Warshaw

University of Chicago Legal Forum

For five straight cycles (the 1970s through the 2010s), Section 5 of the Voting Rights Act dominated redistricting in states covered by the provision. In these states, district plans had to be precleared with federal authorities before they could be implemented. Preclearance was granted only if plans wouldn’t retrogress, that is, reduce minority representation. Thanks to the Supreme Court’s 2013 decision in Shelby County v. Holder, Section 5 is no longer operative. So what happened to minority representation in formerly covered states after Section 5’s protections were withdrawn? This Article is the first to tackle this important question. We examine …

International Borders: Yours, Mine, And Ours, Beth Simmons

University of Chicago Legal Forum

International borders have become divisive issues in international and domestic politics. They have also become sites where the human rights of vulnerable persons have increasingly been documented as at risk. Policies of border hardening in the face of growing human mobility and other external threats—real and imagined—have made international borders focal sites of conflict at many levels. This Article argues that international law can reframe our understanding of bordering, leading to a more constructive approach to border management and greater respect for human rights. Borders are essentially institutions with the potential to settle coordination problems over territory. But of growing …

Borders And Boundaries In Markets: A Sociocognitive Approach For Market Definition And Implications For Antitrust, Elizabeth G. Pontikes

University of Chicago Legal Forum

Categorical distinctions are foundational to firm competition and regulation. Yet, market categories are notoriously difficult to define. The question of how to delineate markets is well-worn in the antitrust literature but is now the focus of a growing sociocognitive literature in strategy and organizational sociology.1 Historically, there has been little cross-pollination between these research areas. More integration, however, may be increasingly important in modern markets, where change is rapid, new technologies are key differentiators in many traditional industries, and platform competition is on the rise. In this paper, I introduce recent theoretical and empirical advances in sociocognitive research on categories …

The Neglected Value Of Effective Government, Richard H. Pildes

University of Chicago Legal Forum

Democratic systems inevitably seek to reflect and realize a range of values. But democratic and legal theory in recent decades have given too little attention and weight to the value and importance of delivering effective government. Much of democratic theory and legal scholarship on democracy focuses on values such as political equality, fair representation, democratic deliberation, political participation, and individual rights, among other values. But less weight is given to the capacity of government to deliver effectively on the issues citizens care about most urgently.

Yet a defining feature of—and threat to—democracy in recent years is the perceived failure of …

Cross-Border Influencers: Democracy And Externalities, Saul Levmore

University of Chicago Legal Forum

This Article explores the fact that United States law permits domestic crossborder political influences while restricting foreign interference in elections. It tries to show that the law is inconsistent in trying to balance its faith in democracy (in a given jurisdiction) with its concern for externalities. Laws forbidding all cross-border attempts to influence politics would seem to reflect the view that decision-making processes across a border should be respected rather than subject to interference, assuming that the other jurisdiction is reasonably democratic. The analysis explores, and offers examples of, the interaction between a faith in democracy and the consideration of …

The Border’S Migration, Nicole Hallett

University of Chicago Legal Forum

The border has never played a larger role in the American psyche than it does today, and yet it has never been less legally significant. Today, a noncitizen’s place of residence tells you less about what rights and privileges they enjoy than it ever has in the past. The border has migrated inward, affecting many aspects of non-citizens’ lives in the United States. The divergence between the physical and legal border is no accident. Instead, it is a policy response to the perceived loss of control over the physical border. But the physical border remains porous despite these legal changes. …

Borders That Bend, César Cuauhtémoc García Hernández

University of Chicago Legal Forum

Borders do not exist. They are made and remade. At every step, the law creates, moves, reforms, reproduces, and reinforces the border. Focusing on the boundary that México and the United States share, this essay critiques the U.S. Supreme Court’s privileging of the sovereign prerogative to control access to the nation’s territory. In their efforts to control movement across and near the border, legal doctrine permits Executive officials to deviate from ordinary legal constraints on the use of violence. This creates a modern version of the sovereign that Carl Schmitt described a century ago: extra-constitutional in origin and subject to …

Deploying Trustworthy Ai In The Courtroom: Lessons From Examining Algorithm Bias In Redistricting Ai, Wendy K. Tam Cho, Bruce E. Cain

University of Chicago Legal Forum

Deploying trustworthy AI is an increasingly pressing and common concern. In a court of law, the challenges are exacerbated by the confluence of a general lack of expertise in the judiciary and the rapid speed of technological advancement. We discuss the obstacles to trustworthy AI in the courtroom through a discussion that focuses on the legal landscape surrounding electoral redistricting. We focus on two particular issues, data bias and a lack of domain knowledge, and discuss how they may lead to problematic legal decisions. We conclude with a discussion of the separate but complementary roles of technology and human deliberation. …

A New Global Corporate Regulatory Power?: Market Entry As The Basis For Prescriptive Jurisdiction, Rachel Brewster

University of Chicago Legal Forum

The rules of international economic law are changing. In a range of areas, governments are asserting that if a multinational firm touches the state’s market, the state can claim the authority to regulate the firm everywhere. This departure from multilateral economic coordination and towards more unilateral regulatory power over firms’ global operations represents an important shift in international economic policy. We have entered an era where governments are embracing more unilateral tools to resist foreign economic influence and reinvigorating national industrial policies. This Article examines the political dynamics that lead states to use access to their national markets as the …

The Gravity Of Legal Diffusion, Anu Bradford, Adam Chilton, Katerina Linos

University of Chicago Legal Forum

A persistent empirical finding is that bilateral trade between two countries is proportional to the size of their economies and inversely proportional to their geographic distance. We hypothesize that a similar pattern is likely to hold for the diffusion of laws. We specifically argue that countries’ propensity to update their laws to converge with the leading regulator in a given policy area is likely to be proportional to the size of their economies and inversely proportional to their geographic distance. We then empirically test this theory in the area of antitrust and assess countries’ convergence to the world’s leading antitrust …