Digital Commons Network^™

Enforcing The First Amendment In An Era Of Jawboning, Genevieve Lakier

University of Chicago Law Review

First Amendment law tends to focus on the exercise of formal government power. Nevertheless, for over six decades now, it has been black letter law that the informal exercise of government power can violate the First Amendment when it creates what the Court described in Bantam Books v. Sullivan as an “informal system of censorship,” outside the reach of the formal system. Lower courts have been deeply divided, however, about what kinds of government actions create this kind of informal system. The Court’s recent decision in NRA v. Vullo should end this division. In Vullo, the Court held that officials …

When A Mass Resignation Becomes A Merger: Rethinking Asset Acquisitions For The Ai Era, Nina Fridman

University of Chicago Law Review

The Microsoft–Inflection AI deal shocked Silicon Valley: Nearly all seventy of Inflection’s employees resigned simultaneously to join Microsoft, which then paid the startup’s shell $650 million. After the mass exodus, Inflection appointed new leadership that switched the company’s direction, while Microsoft assumed the mantle of Inflection’s old mission. The competitive effect was thus nearly identical to that of a traditional acquisition. But relying on their novel deal structure to shield them from regulatory requirements, Microsoft and Inflection barreled ahead without filing a notice of the transaction with regulators. The rest of the industry soon followed suit, with Amazon, Google, and …

Quasi-Judicial Immunity Misapplied, Claire Hodges

University of Chicago Law Review

Multiple circuit courts have extended quasi-judicial immunity—a form of judicially derived, absolute immunity—to sheriffs, marshals, and bailiffs when they execute judicial orders. In some circuits, that immunity extension covers the use of excessive force by the officer, even if that force is outside the scope of the order they are executing.

This Comment argues that the trend of lower courts extending quasi-judicial immunity to enforcement officers is inconsistent with the Supreme Court’s absolute immunity doctrine. A survey of the opinions in which the Court has granted absolute immunity to a government official reveals four considerations guiding the Court’s decision. The …

The Administrative Law Of Mccarthyism, Nicholas Handler

Faculty Scholarship

This Article recovers the largely overlooked legal and administrative history of the federal loyalty-security program, and argues that it played a formative role in the development of modern civil service protections and administrative law. During the McCarthy era, the United States Civil Service Commission (CSC), under pressure from Congress, implemented a sweeping loyalty program aimed at rooting out purportedly disloyal federal employees. Though often remembered as a moment of political overreach and civil liberties violations, this Article shows that the loyalty program simultaneously catalyzed a surprising expansion in procedural rights for government workers—both through internal reforms initiated by the CSC …

Owning Geothermal Energy, Gabriel Eckstein

Faculty Scholarship

Geothermal energy holds vast potential for decarbonizing the U.S. energy system, yet the sector remains significantly underdeveloped, supplying only 0.4% of the nation's electricity. A principal barrier to growth is the fragmented and ambiguous legal landscape currently governing ownership of geothermal resources: thirty-three states lack any clear statutory or common-law framework identifying who owns subsurface thermal energy. This Article examines the physical characteristics of geothermal energy, recent developments in the U.S. geothermal sector, and the principal doctrinal approaches that might govern ownership of subsurface heat, including the ad coelum doctrine, common-pool and open-access frameworks, the rule of capture, and public …

Aggregation And The “Universal” Injunction, Portia Pedro, Adam N. Steinman

Faculty Scholarship

In this Essay, we begin with a brief summary of the CASA decision’s holding regarding the availability of “universal” injunctions. Part II discusses the relationship between remedies and judicial review and the important role that such injunctions play in that regard. Part III explores how class actions could serve as an alternative path for federal courts, after engaging in judicial review, to make their decisions meaningful by requiring officials to comply with the law and to cease illegal actions or policies. We also respond to several objections to the use of class actions in this context. The final Part addresses …

The Supreme Court Under Threat: Early Lessons In Judicial Self-Protection, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

This Essay explores how the U.S. Supreme Court, despite being vulnerable to defiance of its decisions and political retaliation, has developed tools of judicial self-protection to preserve its institutional authority and thus its capacity to sustain the Constitution and the rule of law. Arguing that the Court performs not only a legal role that requires interpretation of the law but also a political one that demands institutional preservation, the Essay examines how the Court has historically navigated political threats by using a range of tools—including avoidance, delay, narrow rulings, strategic dicta, and rhetorical appeals. The Essay focuses on three nineteenth-century …

Making The Party Presentation Principle Safe For Originalism, Randy E. Barnett, Lawrence B. Solum

Faculty Scholarship

The Supreme Court sometimes adheres to what it calls the “party presentation principle”—terminology that dates back to 2008. Although judicial articulations of the principle have been inconsistent and imprecise, the gist is the familiar notion that courts should resolve cases on the basis of the issues and reasons presented by the parties to the dispute. Conversely, questions not properly raised by the parties should be avoided by the Court. Thus, the Court has on several occasions declined to address arguments outside the scope of the questions raised by the parties in their petition for certiorari.

For originalists, the importance of …

Evolving Networks: Information Exchanges Reshaping Of Global Finance, Andrew P. Morriss, Charlotte Ku

Faculty Scholarship

This article challenges the characterization of international financial centers (IFCs), often called "tax havens," as enablers of tax evasion and money laundering. Drawing on an extensive analysis of tax treaties, regulatory statutes, and historical literature, we explore the evolution of the global information exchange network, its impact on integrating IFCs into the global financial system, and the resulting curtailment of their use for illicit purposes. The expansion of treaties, from Mutual Legal Assistance Treaties (MLATs) to Tax Information Exchange Agreements (TIEAs) and multilateral frameworks like the OECD's Common Reporting Standard (CRS), has significantly limited the potential for secrecy-driven financial activities …

Jurisdictional Waters, Jamison E. Colburn

Faculty Scholarship

No abstract provided.

Line Warming: Improperly Influencing Voters Or Mitigating The Effects Of Voter Suppression?, Elizabeth Ellen Gordon

Nevada Law Journal

No abstract provided.

Sex On Trial, Nathalie Greenfield, Sandra L. Babcock

Cornell Law Faculty Publications

On January 21, 2025, the U.S. Supreme Court recognized in Andrew v. White that the State’s introduction of sexualizing evidence in a woman’s capital trial may violate due process. In Brenda Andrew’s case, prosecutors presented evidence about her sexual relationships, clothing, and style of underwear as proof that she was guilty of capital murder. Our research, supported by a grant from the National Science Foundation, reveals for the first time that the prosecution’s tactics in Brenda Andrew’s case were far from unique. Based on a systematic review of the trial transcripts of every woman currently on death row in the …

To Lecture Capture Or Not To Lecture Capture? The Answer For Legal Education Appears To Be A “Regulated Yes”, Nikos Harris Kc

Dalhousie Law Journal

The debate over the use of technology in the law classroom is often framed as the necessary use of modern forms of information sharing versus the creation of distractions which undermine deeper learning. One subject of significant debate in law faculties is whether students should have regular access to taped lectures from their courses, often referred to as “lecture capture.” Most universities have systems that can routinely record classes, and there are a number of pedagogical benefits which flow from student use of taped lectures. However, the issue of providing broad access to lecture capture is a complex one which …

Mandatory Minimum Sentences After R V Hill: A Different Way Of “Treating” Reasonably Foreseeable Offenders, Colton Fehr

Dalhousie Law Journal

The Supreme Court of Canada was initially reluctant to strike down minimum sentences for inconsistency with the prohibition against “cruel and unusual treatment or punishment” found in section 12 of the Charter. The Court’s more recent jurisprudence incorporating the experiences of equality-seeking groups and vulnerable offenders played a key role in reversing course. It is principled to take into account the experiences of minority groups to the extent they are capable of illustrating an offender’s reduced moral blameworthiness. The inevitable criticism that this approach unduly expands judicial review is nevertheless more convincingly rebutted by observing that equality plays a …

The Court Of Small Things, The Curse Of Legal Superstition: The Precipitous Decline Of Small Claims Court, Why It Matters, And What Can Be Done About It, Telia Mary U. Williams

Nevada Law Journal

This Article addresses the precipitous decline of small claims courts in the United States and argues that their erosion is more than administrative; it is a democratic and constitutional crisis. Small claims courts were once the laboratories of everyday justice, where ordinary citizens could access law without lawyers, ritual, or mystery. The seemingly minor disputes of the small claims court illuminate the democratic soul of American law. Yet, over recent decades, filings have declined dramatically, and the locus of power has shifted from the poor to repeat-player institutional actors. This is in part due to what I call, “legal superstition,” …

Introduction To The Northern Illinois University Law Review 2026 Symposium, Ashley Larsen

Northern Illinois University Law Review

In the fifty years since the advent of Agricultural Law as a field, there has been a cascade of changes and new laws that impact the everyday farmer. In 2025 alone, the National Agricultural Law Center noted ten hot button issues impacting laws and policies surrounding agriculture. Issues mentioned span from changes in pesticide regulations to alleged anticompetitive conduct in the beef sector. Recent discussions in Agricultural Law heavily concern the development of technology, including the ever more complex software in farm equipment,  and the growth of artificial intelligence. As technology continues to advance, these conversations will only grow more …

Aligning Quality Assurance For Agricultural Carbon Credits With Farm Bill Conservation, Andrew Hockenberry, A. Bryan Endres, Jonathan Coppess

Northern Illinois University Law Review

The growing number of corporate net-zero pledges and promises to reduce emissions, spurred by pressure from consumers, shareholders, and employees, is leading to the emergence of voluntary carbon markets—carbon markets independent of government mandated emission reductions or regulatory structure. Because agricultural soil can provide a carbon sink, depending on management practices and soil type, many agricultural producers and landowners are poised to generate carbon credits and supplement farm income by selling those credits to corporations seeking to offset emissions. However, carbon crediting programs qualify credits through assurances that the credits are additional to a business-as-usual scenario, remain permanent, and avoid …

U.S. Regulation And Litigation Regarding Gmos: A Cautionary Tale Of A Piecemeal Framework, Michael R. Reese, George V. Granade

Northern Illinois University Law Review

Bioengineered crops using genetically modified organisms (GMOs or GM) are big business in the United States. In little more than two decades, GM agriculture constitutes more than 90% of crops such as corn, soy, and canola. The acceptance of GMO foods by consumers, however, has not been as robust—leading to demand for labeling regulations so consumers can identify whether their foods contain GMOs. U.S. law governing GMOs, particularly food labeling, lacks a comprehensive regulatory scheme and is instead highly fragmented. The Food and Drug Administration (FDA) has debated how to label such foods for over a decade, issuing no rules …

Nothing Runs Like A Deere, Except When Deere Doesn’T Run: Why Illinois Should Enact Right-To-Repair Legislation For Its Farmers, John Aird

Northern Illinois University Law Review

Since 1971, John Deere has been using the popular slogan “Nothing Runs Like a Deere,” symbolizing the strength and self-reliance long associated with American farming. Yet as modern agricultural equipment has become more computerized and complex, manufacturers such as John Deere have restricted farmers’ ability to independently repair the equipment they own, through the use of unattainable software, licensing agreements, digital locks, and warranty limitations. The modern right-to-repair movement challenges this shift. At its core, the movement asserts that ownership should include the ability to repair the product that a consumer owns. This article argues that Illinois should enact a …

Human Rights, Between Peace And Dignity, Ryan Liss

Michigan Journal of International Law

Today, it seems self-evident that human rights are enshrined at the international level because they protect universal human dignity—a cosmopolitan entitlement that cannot be left to the contingencies of domestic law. The prevalence of this received wisdom, however, masks a fundamental transformation in the idea of human rights over the last century. When human rights were first enshrined in international law—during and following the Second World War— their international status was not seen to be justified primarily by the inherent dignity of persons, but by the instrumental role human rights were understood to play in securing interstate peace. This article …

‘Insistent’ Objectors: The (Ab)Use Of Procedural Defenses Before The International Court Of Justice, Damian A. Gonzalez-Salzberg, Eoin Campbell

Michigan Journal of International Law

Procedural defenses refer to tactical devices that object to either a court’s jurisdiction or to the admissibility of an application, aimed at stopping a court from deciding on the merits of a case or, at least, at limiting the scope of its decision. From its creation in June 1945 and up to the end of 2024, the International Court of Justice (“ICJ”) has adjudicated 101 cases, with almost 80% of them featuring procedural defenses raised by states. These defenses have not only been plentiful, but have been extremely effective, leading to the ICJ’s refusal to decide on the merits of …

Seqra Developments: Amendments To Ease Housing Construction, Revised Regulations, New Cases, Michael B. Gerrard

Faculty Scholarship

In the hopes of easing the housing shortage, on May 26 the New York Legislature passed and Governor Kathy Hochul signed a bill that will exempt many multifamily housing projects from the State Environmental Quality Review Act (SEQRA).

A month before, the New York State Department of Environmental Conservation (DEC) issued regulations on protecting disadvantaged communities, and took steps to require more discussion of climate impacts under SEQRA.

Five Urban Futures For A Hot Planet: U.S. Legal Scenarios, Michael B. Gerrard

Faculty Scholarship

If current climate change trends continue, flooding, extreme heat, wildfires, and water scarcity will make the homes of millions of people in the United States increasingly uninhabitable. This change could happen by the end of the century, perhaps sooner. Most people will want to stay in their current homes, but there is no coherent policy to fortify the most vulnerable places. Nor is the current legal system equipped to handle what may become one of the largest migrations in U.S. history, as people flee intolerable climate conditions. This Article envisions five scenarios for cities in the future: sprout, grow, stay, …

Understanding Victim Experiences Within The Criminal Justice System, Carmen Hardin, Caron Lott

Journal of Criminal Justice and Law

This study explores crime victims’ perceptions of participation in criminal justice proceedings. In all, eight (8) interviews and 314 surveys of crime victims were conducted in Arkansas.  Among crime victims, 92% reported the crime to the police, 76% felt the case’s outcome served justice, 78% would be okay attending court again, 45% felt very safe in court, and 38% strongly agreed that their needs and wishes were considered in court.   Three main themes emerged from the interviews: 1) impact of crime victimization on individual needs, 2) perceived access to mental and physical well-being support, and 3) perceptions of crime victims …

A Blind Eye To Justice: Blind Pleas In The American Courtroom, Meghan Koza, Makayla Nolen, Stuti Kokkalera

Journal of Criminal Justice and Law

Over 90% of criminal court cases are decided through plea negotiations, rather than through a jury or bench trial. Within the broader context of plea negotiations is the use of a “blind” or “open” plea, where defendants consent to the court’s decision without a chance to participate in the bargaining process. In entering blind pleas, defendants must waive constitutional trial rights with the hope that they will be given a more lenient sentence but are largely left in the dark during the process. This study aims to provide a national overview of the utilization of blind pleas in the United …

Calvip Cohort 4 Local Evaluation Report: Peace And Justice Law Center’S Legal Services To Support Gang Desistance, Nyla Baxter-Williamson Ma, Kirsten Chaplin Ma, Tori Luna Ma, Topher Mcdougal Phd

Kroc IPJ Research and Resources

This Local Evaluation Report assesses the implementation and outcomes of the Peace and Justice Law Center’s Legal Services to Support Gang Desistance (LSSGD) project, funded by the California Board of State and Community Correction’s California Violence Intervention and Prevention Program (CalVIP) Grant, Cohort 4. Through LSSGD, PJLC sought to provide direct legal services to current or formerly gang-involved individuals, as well as those treated by law enforcement as gang-involved, to reduce legal obstacles to desistance, expand access to lawful employment, promote family stability, and improve trust in legal institutions. The Joan B. Kroc Institute for Peace and Justice (Kroc IPJ) …

The History Of The Constitution Is Our Future., Maggie Blackhawk

Michigan Law Review

The Constitution of the United States establishes a government; it also stands as the fundamental law of a people. It shapes daily life, distributes power, and sets a direction for the future. And yet when we ask about the reach and meaning of the Constitution, we are increasingly told to look backward. The answers to our future are said to lie in the past.

Schools Without Borders: Ending The Containment, Jade A. Craig

Michigan Law Review

A review of The Containment: Detroit, the Supreme Court, and the Battle for Racial Justice in the North. By Michelle Adams.

What Personhood Means, Laura Portuondo

Michigan Law Review

A review of Personhood: The New Civil War over Reproduction. By Mary Ziegler.

Jurisdictional Waters, Jamison E. Colburn

Michigan Law Review

A review of Waters of the United States: POTUS, SCOTUS, WOTUS, and the Politics of a National Resource. By Royal C. Gardner.