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Full-Text Articles in Law
Law And Subjective Well-Being, Thomas S. Ulen
Law And Subjective Well-Being, Thomas S. Ulen
University of Chicago Law Review
No abstract provided.
Can Americans Resist Surveillance?, Ryan Calo
Can Americans Resist Surveillance?, Ryan Calo
University of Chicago Law Review
This Essay analyzes the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technologies, and put market pressure on companies not to cooperate with law enforcement. In practice, however, many of these avenues are limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn citizens into targets. Citizens can extract promises from companies to push back against …
Territoriality, Technology, And National Security, Zachary D. Clopton
Territoriality, Technology, And National Security, Zachary D. Clopton
University of Chicago Law Review
Across various contexts, parties and courts have pressed for territorial rules in cases implicating technology and national security. This Essay suggests that presumptively territorial approaches to these questions are misguided. Territorial rules do not track the division of authority or capacity among the branches, nor are they effective proxies for the important interests of regulators or regulatees. On is-sues of technology and national security, territorial rules seem particularly ill suited: territorial rules aspire to certainty, but technology makes it harder to define “territoriality” in a consistent and predictable way; technology weakens territoriali-ty as a proxy for policy goals because data …
The Mutual Dependency Of Force And Law In American Foreign Policy, Richard A. Epstein, Mario Loyola
The Mutual Dependency Of Force And Law In American Foreign Policy, Richard A. Epstein, Mario Loyola
University of Chicago Law Review
A successful American grand strategy requires a close integration of interna-tional and domestic institutions and practices. This Essay explores the vital inter-dependence of grand strategy and law, both international and domestic. First, it asks how the United States should formulate its foreign policy strategy by pointing to the three primary components that must be deployed in tandem to forge a suc-cessful American foreign policy—persuasion, inducements, and force. Second, this Essay shows that in light of the distribution of powers between the president and Congress, and within the executive branch, the execution of that strategy requires a high level of bipartisan …
Cyberwar, International Politics, And Institutional Design, Daniel Abebe
Cyberwar, International Politics, And Institutional Design, Daniel Abebe
University of Chicago Law Review
In the United States, the breadth of the president’s warmaking authority has been governed by the Constitution, the Supreme Court’s jurisprudence, and, over time, historical practice; in short, the president’s powers are constrained by a well-developed body of US foreign relations law. But the prospect of a new kind of conflict—cyberwar—potentially challenges the existing regulatory regime, which rests on assumptions that are common to traditional, conventional war. For some, the complexities of cyberwar generate new foreign relations–law questions about the president’s authority to engage in offensive cyberoperations, and they thus necessi-tate a new regulatory framework. For others, cyberwar is not …
Checks And Balances From Abroad, Ashley Deeks
Checks And Balances From Abroad, Ashley Deeks
University of Chicago Law Review
Judicial and scholarly discussions about checks and balances almost always focus on actions and reactions by domestic actors. At least in the intelligence area, however, foreign actors can have direct and indirect influences on US checks and balances. New national-security challenges require increased cooperation with foreign intelligence partners. Leaks and voluntary transparency mean that far more information is publicly available about intelligence missions. And robust legal rules now bind the United States and other Western intelligence services. These changes create opportunities for foreign leaders, citizens, corporations, and peer intelligence services to affect the quantum of power within the executive or …
Big Data And Bad Data: On The Sensitivity Of Security Policy To Imperfect Information, James T. Graves, Alessandro Acquisti, Nicolas Christin
Big Data And Bad Data: On The Sensitivity Of Security Policy To Imperfect Information, James T. Graves, Alessandro Acquisti, Nicolas Christin
University of Chicago Law Review
In this Essay, we examine some of the factors that make developing a “science of security” a significant research and policy challenge. We focus on how the empirical hurdles of missing data, inaccurate data, and invalid inferences can significantly impact—and sometimes impair—the security decisionmaking processes of individuals, firms, and policymakers. We offer practical examples of the sensitivity of policy modeling to those hurdles and highlight the relevance of these examples in the context of national security.
Privacy-Privacy Tradeoffs, David E. Pozen
Privacy-Privacy Tradeoffs, David E. Pozen
University of Chicago Law Review
Legal and policy debates about privacy revolve around conflicts between pri-vacy and other goods. But privacy also conflicts with itself. Whenever securing privacy on one margin compromises privacy on another margin, a privacy-privacy tradeoff arises. This Essay introduces the phenomenon of privacy-privacy tradeoffs, with par-ticular attention to their role in NSA surveillance. After explaining why these tradeoffs are pervasive in modern society and developing a typology, the Essay shows that many of the arguments made by the NSA’s defenders appeal not only to a national-security need but also to a privacy-privacy tradeoff. An appreciation of these tradeoffs, the Essay contends, …
The Norm Against Economic Espionage For The Benefit Of Private Firms: Some Theoretical Reflections, Samuel J. Rascoff
The Norm Against Economic Espionage For The Benefit Of Private Firms: Some Theoretical Reflections, Samuel J. Rascoff
University of Chicago Law Review
For decades, the American intelligence community has adhered to a norm against spying for the sake of enriching private firms. More recently, the norm has figured in a prominent presidential directive as well as in various international agreements. But notwithstanding its durability and its newfound renown, the norm has largely eluded scholarly consideration. In this Essay, I aim to address that gap by showing how theories of agency capture and institutional culture can help make sense of the norm’s past and inform judgments about its future.
Beyond Cheneyism And Snowdenism, Cass R. Sunstein
Beyond Cheneyism And Snowdenism, Cass R. Sunstein
University of Chicago Law Review
In the domain of national security, many people favor some kind of precautionary principle, insisting that it is far better to be safe than sorry and contending that a range of important safeguards, including widespread surveillance, is amply justified to prevent the loss of life. Those who object to the resulting initiatives, and in particular to widespread surveillance, respond with a precautionary principle of their own, seeking safeguards against what they see as unacceptable risks to privacy and liberty. The problem is that, as in the environmental context, a precautionary principle threatens to create an unduly narrow viewscreen, focusing people …
#Liability: Avoiding The Lanham Act And The Right Of Publicity On Social Media, Hannah L. Cook
#Liability: Avoiding The Lanham Act And The Right Of Publicity On Social Media, Hannah L. Cook
University of Chicago Law Review
No abstract provided.
How The Fourth Amendment And The Separation Of Powers Rise (And Fall) Together, Aziz Z. Huq
How The Fourth Amendment And The Separation Of Powers Rise (And Fall) Together, Aziz Z. Huq
University of Chicago Law Review
This Essay explores an entanglement of ends and means between two seem-ingly disparate parts of the Constitution: the Fourth Amendment and the separation of powers. Not only do these two elements of the Constitution share a common ambition; they are also intertwined in practical operation. The vindication of Fourth Amendment interests, however defined, depends on a measure of institutional differentiation between the branches of government. That predicate, however, has eroded over time. In its absence, difficult questions arise about how Fourth Amendment values are best implemented and whether their realization will in the end hinge on private rather than on …
Constitutional Implications Of The Cost Of War, Lucas Issacharoff, Samuel Issacharoff
Constitutional Implications Of The Cost Of War, Lucas Issacharoff, Samuel Issacharoff
University of Chicago Law Review
Institutional practices evolve to fill gaps in all constitutional blueprints. One of the underappreciated features of the initial constitutional settlement of war powers was the accountability of the executive through the process of budgetary authorization and the corresponding need for Congress to answer to the citizenry for the tax implications of military expenditures. This political accountability is more complex than often described, consisting not merely of the division of the Declare War and Commander-in-Chief Clauses of Article I and Article II, but also of the temporal limitation of the budgetary power for the army and a variety of practical and …
Separation Of Powers And Centripetal Forces: Implications For The Institutional Design And Constitutionality Of Our National-Security State, Jon D. Michaels
Separation Of Powers And Centripetal Forces: Implications For The Institutional Design And Constitutionality Of Our National-Security State, Jon D. Michaels
University of Chicago Law Review
Today’s national-security state is increasingly highly concentrated, centralized, and consolidated across at least three dimensions: the public-private divide, the federal-state divide, and the political–civil servant divide within government agencies. Each of these dimensions of concentration, centralization, and consolida-tion has been individually examined. Yet notwithstanding careful study, there has been little appreciation of the potentially reinforcing effects of consolidation occurring along any two, let alone all three, of the relevant dimensions. That is to say, scholars and policymakers have generally zeroed in on only one dimension of con-solidation at a time—and they have assessed the pros and cons of public-private, federal-state, …