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Lethal Autonomous Weapons Systems & International Law: Growing Momentum Towards A New International Treaty, Benjamin Perrin

All Faculty Publications

While existing international humanitarian law, international criminal law, and international human rights law provide foundational rules and principles governing LAWS, gaps in specificity and enforcement highlight the pressing need for a dedicated international treaty. Such a treaty could harmonize interpretations, establish clear prohibitions and restrictions, and ensure accountability in the use of these technologies.

A Half Century Of Criminalizing Serious Mental Illness: Observations And Considerations, Arthur J. Lurigio

DePaul Journal of Health Care Law

This article describes the difficulties of working with people with serious mental illnesses (PSMIs) at every stage of the criminal justice process—from arrest to post- incarceration release from prison. The needs of PSMI for mental health and social services are complex and require different case management plans and strategies at various points in the process. Severe mental illnesses (SMIs), such as schizophrenia, major depression, and bipolar disorder, stem from abnormalities in the brain structure and neuroprocessing that cause significant distress and dysfunction. People with serious mental illnesses typically suffer from a variety of other related problems (e.g., addiction) that can …

Tug Of War Between Opt-In And Opt-Out Organ Donation Systems, Amna Cehaja

DePaul Journal of Health Care Law

The demand for organ transplants is far greater than the supply of transplantable organs. Every day, twenty people in the United States die as they await an organ transplant; this equates to roughly 7,300 people annually. Whilst organ donation can be highly effective for prospective patients, not all individuals want to take part in such an action. A person’s decision not to partake in organ donation can stem from their ethics, morality, religion, and much more. For individuals that live in the United States and do not want to donate their organs upon death, they do not have to take …

Mental Health Courts: Is There Any Hope For Mental Illness In An Outdated Criminal Justice System?, Brock Imel

DePaul Journal of Health Care Law

Mental health awareness is an ever-growing field of study that has garnered more attention in America after the COVID-19 pandemic. As far back as colonial America, mental illness was considered taboo in society and often reprimanded with punishable crimes. This article seeks to divulge into the history of mental health and its relation to the law, as well as how the creation of mental health courts has led to a decrease in recidivism.

This article aims to provide the reader with an understanding of the evolving field of mental health courts and provide state legislatures foundational knowledge for creating and …

How Civil Aiding And Abetting Liability For Terrorist Activities Applies To Social Media Companies—And How It Does Not, Nathaniel Parr

University of Chicago Legal Forum

The 2023 Supreme Court case Twitter v. Taamneh found that defendant social media companies were not liable for aiding and abetting a terrorist attack overseas. The Court alluded to the existence of an alternative set of facts that might alter their analysis or produce a different outcome. This Comment explores those “other contexts” and seeks to identify what factors could produce a successful Justice Against Sponsors of Terrorism Act (JASTA) aiding and abetting claim against a social media company for an act of terrorism overseas. This is difficult, in part, because the framework for aiding and abetting liability provided in …

Taketok: Does A Tiktok Ban Violate The Takings Clause?, Kevin Marien

University of Chicago Legal Forum

No abstract provided.

Seeking The Divine: A Proposed Methodology Of Religion To Resolve Adjudications Over The Nexus Inquiry In Religious Asylum Claims, Saloni S. Jaiswal

University of Chicago Legal Forum

What is religion, and should immigration courts seek to define religion in the context of asylum claims? Under the Immigration and Nationality Act (INA), individuals who have experienced past persecution or fear future persecution because of their religious beliefs can apply for asylum in the United States. Although individuals are afforded these protections under the statutory provisions of the INA, there is a fundamental problem in the way courts have treated religious asylum claims. Rather than holistically considering religion, courts have instead focused on religion’s fragmentary aspects. This fragmentary understanding of religion has contributed to another legal problem among the …

Scrutinizing National Security: A Call For Clear And Convincing Evidence In § 1226(A) Prolonged Detention Cases, Rosie Gruen

University of Chicago Legal Forum

A noncitizen detained under 8 U.S.C. § 1226(a) may be detained indefinitely until her removal order is finalized. Detainees have challenged prolonged detention following a detainee’s bond hearing on Fourteenth Amendment Due Process grounds, leading to a circuit split. Courts generally apply the Mathews test when hearing these challenges, which requires balancing the individual’s liberty at stake against the government’s interest in limiting that liberty. The government’s asserted interests in these cases are frequently grounded in national security arguments, which courts rarely scrutinize. Instead, courts generally give great deference to the way the executive branch characterizes national security concerns, often …

Adjusting Immunity For Unconstitutional Torts, Liam Grah

University of Chicago Legal Forum

Sovereign immunity protects the government from liability arising in suits brought against it by citizens. Though lacking a firm constitutional basis, sovereign immunity has been justified as protecting the public fisc and maintaining the sense of sovereign dignity. The Federal Tort Claims Act (FTCA) broadly waives sovereign immunity for tort claims against the United States. The discretionary function exception maintains immunity for tortious acts committed by employees acting within the valid bounds of their discretion. There is a circuit split about whether the discretionary function exception immunizes tortious conduct that is also unconstitutional. Circuits in the majority side of the …

Water Security In The Wake Of Arizona V. Navajo Nation: How The President’S Emergency Powers Can Provide A Path Forward For The Navajo Nation, Kelly Bridges

University of Chicago Legal Forum

In 2023, the Supreme Court decided Arizona v. Navajo Nation, finding that the United States government does not have an affirmative duty to ensure the Navajo Nation’s water security. The decision offers the Navajo two paths forward for relief: the tribe can either litigate specific water rights claims in the Colorado River Basin or lobby the President and Congress to amend an 1868 treaty, the language of which served as the basis for the holding in Navajo Nation. These paths forward are not without problems. Litigating water rights claims is costly and time-intensive, sometimes taking decades to be decided. As …

“Sportswashing” As A National Security Concern: The Role Of The Committee On Foreign Investment In The United States (Cfius), Luke Bianco

University of Chicago Legal Forum

Throughout United States history, foreign investment has played a key role in stimulating the national economy and supporting domestic businesses. But foreign investment can also imperil national security, such as by enabling an adversary to enhance its own ‘hard power’ capabilities at the expense of our own. The Committee on Foreign Investment in the United States (CFIUS) was created to combat such threats, flagging and preventing deleterious investment when it might pose a national security threat. Today, CFIUS operates pursuant to a flexible statutory scheme. And increasingly, in response to an evolving threat landscape, CFIUS has utilized that broad authority …

Extraction, Retention, And Use: Applying Use-Restrictions To Fourth Amendment Forensic Electronic Device Search Doctrine At The Border, Daniel Vicente Alayo-Matos

University of Chicago Legal Forum

Forensic electronic device searches are a formidable weapon in a border protection agents’ arsenal. Agents download the data from an electronic device and may store it for up to fifteen years, where it can be accessed by thousands Department of Homeland Security (DHS) agents with minimal controls. Annually, agents collect the forensic digital data of over 40,000 international travelers. The border constitutes an exception to typical Fourth Amendment protections against unreasonable searches and seizures, as officials may search individuals crossing the border without a warrant or reasonable suspicion. At least one circuit has held that the Fourth Amendment’s protections pose …

Big Data As A National Security Issue, Paul B. Stephan Iii

University of Chicago Legal Forum

Modern enhancements of data mining have unfolded in a legal near-vacuum. No extant legal system adequately specifies the property rights in the information elements that make up big data. The miners rely on their technical ability to gather and exploit, without waiting to confirm their entitlement to do so. Innovators have tolerated the legal vacuum because, as a practical matter, most potentially valuable information is accessible. Information by its nature implies a sender and a recipient. This sharing relationship necessarily complicates ownership, in particular the power to exclude. At the same time, the capacities that the mining of big data …

Terrorism, Not Treason: The Rise And Fall Of Criminal Charges, Shirin Sinnar

University of Chicago Legal Forum

Two decades into the global war on terror, the United States has a vast legal and institutional architecture for prosecuting "international" terrorism. A sprawling global intelligence network, thousands of informants in U.S. communities, and a highly permissive legal regime feed the prosecution of hundreds of Muslim defendants. Despite this intense state response and the panoply of charges brought, the U. S. government has charged treason in these cases on only one occasion, over fifteen years ago. Given the prominence of treason charges as a response to political violence in earlier eras, commentators have periodically asked why the treason charge has …

Climatizing National Security, Mark Nevitt

University of Chicago Legal Forum

Is climate change a national security issue? Human security? Ecological security? This Article addresses the growing nexus between climate change and various conceptions of security with a particular emphasis on climate change's national security impacts. This Article argues that there is a growing connection between national security and climate change and a corresponding need to address the normative implications of "climatizing national security." This connection can be observed through three lenses: mitigation (reducing greenhouse gas emissions from military and national security sources); adaptation (investing in climate resilient infrastructure in an effort to prepare for climate impacts), and response (addressing climate-exacerbated …

Cultural Heritage And Security Policy, Morag M. Kersel, Patty Gerstenblith

University of Chicago Legal Forum

National security and cultural heritage protection are connected in several ways. Cultural policy as a component of security policy plays a crucial role in promoting social cohesion, diplomatic relations, international cooperation, and regional stability. Instrumental in shaping and promoting national identity, cultural heritage fosters unity among citizens. Safeguarding cultural heritage can contribute to national cohesion and resilience, which are essential components of national security. Caring for culture is not only necessary for maintaining history but also for sustaining economic growth and stability. Protecting and preserving a nation's culture can enhance its international reputation, strengthen diplomatic relations, and promote peaceful cooperation …

A Transformational Agenda For National Security, Maryam Jamshidi

University of Chicago Legal Forum

Past efforts to "reimagine" national security in legal scholarship have largely avoided systematic engagement with the foundational assumptions and presumptions of the field. Challenging and critiquing those assumptions is, however, necessary to producing scholarly work that reimagines, rather than reproduces, status quo approaches to U.S. national security. This Article presents an agenda for reimagining national security through legal scholarship, which is premised on the view that challenging the national security status quo should be part of those efforts. In doing so, this agenda explores seven premises central to how U.S. national security is currently conceived of, practiced, and implemented. Moving …

Addressing Ip And Technology Challenges To Pandemic Protection: A Need For Global Coordination To Promote National Security, Cynthia M. Ho

University of Chicago Legal Forum

This Article argues that effective national security mandates protection against the spread of infectious diseases, which requires addressing intellectual property (IP) and technology obstacles. Without modification, IP laws can bar the manufacture of needed treatments by anyone besides the IP owner and its licensees. Although there was some recognition during the COVID-19 pandemic that existing IP laws should be modified, there was strong resistance not only by IP-owning companies, but also by individual countries that impeded the ability to manufacture needed vaccines during the height of the pandemic.

Many global leaders have recognized that future pandemics are inevitable and that …

Deepfakes In Court: How Judges Can Proactively Manage Alleged Ai-Generated Material In National Security Cases, Abhishek Dalal, Chongyang Gao, Hon. Paul W. Grimm, Maura R. Grossman, Daniel W. Linna Jr., Chiara Pulice, V.S. Subrahmanian, Hon. John Tunheim

University of Chicago Legal Forum

Dall-E. ChatGPT GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI-generated and not real and, second, that other evidence is genuine but alleged to be fabricated. Technologies designed to detect AI-generated content have proven to be unreliable, …

Resilience For A Digital Age, Danielle Keats Citron, Kristen E. Eichensehr

University of Chicago Legal Forum

A resilience agenda is an essential part of protecting national security in a digital age. Digital technologies impact nearly all aspects of everyday life, from communications and medical care to electricity and government services. Societal reliance on digital tools should be paired with efforts to secure societal resilience. A resilience agenda involves preparing for, adapting to, withstanding, and recovering from disruptions in ways that advance societal interests, goals, and values. Emphasizing resilience offers several benefits: 1) Resilience is threat agnostic or at least relatively threat neutral; 2) its inward focus emphasizes actions under the control of a targeted country, rather …

War Powers And The Return Of Major Power Conflict, Scott R. Anderson

University of Chicago Legal Forum

The United States is, by many accounts, facing a renewed risk of major power conflict. This Article considers what the reemergence of this risk may mean for the executive branch's operational understanding of constitutional war powers, specifically as they relate to the use of military force. After outlining the relationship between U.S. strategic concerns and executive branch legal interpretations and reviewing the most recent historical parallel the Truman administration's reconsideration of war powers in the early Cold War it examines three aspects of the executive branch's current understanding for tensions with the strategic demands of major power conflict: the anticipated …

After Lebor: Can The Rights Of Nature Movement Stand Back Up?, Desmond Nichols

Florida Law Review

The Rights of Nature Movement, a global political movement that seeks to expand the legal rights traditionally granted to humans and corporations to natural entities like lakes, rivers, and ecosystems, is becoming more mainstream. In the United States, the movement has had successes in passing local ordinances that grant lakes and rivers the right to exist and flourish. The most high-profile of these victories for the movement was the Lake Erie Bill of Rights, an ordinance that passed in Toledo, Ohio, in February of 2019. This Note explores the Rights of Nature Movement in the United States. The ordinances that …

Wayne Ford Racial Impact Statement Act And The Necessity Of Minority Impact Statements, Seonwoo Kim

Cardozo Journal of Equal Rights and Social Justice (ERSJ) Blog

In 1968, Congress passed the Anti-Drug Abuse Act (“ADAA”) in response to the drug overdose of Len Bias, a basketball star at the University of Maryland.  The Act imposed harsh sentences for crack cocaine offenses; a person charged with possession of crack cocaine faced the same mandatory minimum prison sentence as someone charged with possession of one hundred times more powered cocaine.  For example, a person charged with carrying five grams of crack cocaine would receive the same sentence as someone carrying five hundred grams of powdered cocaine. Historically, the enforcement of drug-related crimes disproportionately targeted Black Americans, and this …

Safeguarding Submarine Cables And Pipelines In Times Of Peace And War, Raul (Pete) Pedrozo

International Law Studies

Incidents involving damage to undersea infrastructure illustrate the vulnerability of submarine cables and pipelines. While damage can occur accidentally in peacetime, recent incidents suggest cables and pipelines are being systematically targeted and that the resulting damage is not accidental or the result of poor seamanship. Most undersea infrastructure can also be attacked as a military objective in wartime. Peacetime adversaries or opposing belligerents during an armed conflict can easily damage undersea infrastructure to further their political, strategic, or wartime objectives. These incidents also highlight the inadequacy of coastal State authority under international law to take measures against foreign-flagged vessels intentionally …

How Safe Is Safe Enough? Analyzing The Incentive Structure Of The Products Liability Scheme On Commercial Aviation Manufacturers, Ethan Schwab

University of Miami Law Review

How do aviation manufacturers work to prevent tragedy? After tragedy strikes, how does the legal system’s imposition of a remedy change the operations and decision-making of these manufacturers, if at all? This Note explores whether the current products liability framework effectively achieves the goals of tort law—including whether it deters unsafe innovation in the high-risk commercial aviation manufacturing industry. The Note explores these topics through the lens of the recent Boeing 737 Max disasters of 2018 and 2019, using such disasters to exemplify the skewed incentive structure that manufacturers face in the modern products liability tort system. This Note argues …

Congressional Tribal Trust Responsibility And The Opioid Mdl: A Call To Finish The Work The Judiciary Was Forced To Undertake, Curtis E. Osceola Esq.

University of Miami Law Review

Congressional inaction has forced Native American Tribes to utilize the judiciary as a last resort to obtain relief from the crippling effects of the opioid epidemic. Tribes have received inadequate funding from settlements to abate the widespread use of prescription opiates on and around their lands of concern. Hundreds of mass tort lawyers have been navigating the In re National Prescription Opiate Litigation (MDL 2804)—one of the largest and most valuable litigation pools in the history of the Republic—in an effort to provide relief for cities and counties, individuals, consumers, hospitals, third-party payors, and federally recognized Tribes. Based on …

Two Piecemeal Treatments For A System Addicted To Punishment, Myles Crandall

University of Miami Law Review

For decades, the American criminal legal system has failed to curtail illicit drug use and overdose deaths through punitive and selective enforcement. The federal government has prosecuted people and succeeded in securing many long prison sentences based on drug crimes. In the past two years, two amendments by the United States Sentencing Commission offered a measured reprieve through sentence reductions. Amendment 821 offered the possibility for sentence reductions based on recalculating the guidelines associated with certain prior offenses. Amendment 814 updated policy statements for assessing “extraordinary and compelling reasons” for a sentence reduction. These changes are not revolutionary; however, the …

Prescription For Failure: Public Nuisance Claims Against The Opioid Industry, Francis A. Citera, Julia Steiner

University of Miami Law Review

Opioids have been used both medicinally and recreationally since ancient times. While their recreational functions have long since been denounced, their medicinal value remains legitimate. Yet, since the pain management revolution began in the mid-1990s, many Americans have become opioid-dependent—fueling an illicit drug market and costing many lives. The tragedy that is today’s opioid epidemic has prompted robust federal and state legislative and regulatory interventions in both the legal and illicit opioid markets—albeit with mixed success. As these initiatives have been slow to quell the opioid crisis, public nuisance claims have taken center stage. After the Big Tobacco litigation invoked …

Reckless Speech In The Shadow Of The Constitution, Andrew Jensen Kerr

Seton Hall Law Review

No abstract provided.

Don’T Bet On It: Examining State Prohibitions Of “Risk-Free” Language In Sports Betting Advertisements Under Central Hudson, Connor Edge

Seton Hall Law Review

No abstract provided.