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State Regulation And The Necessary And Proper Clause, William Baude

Public Law and Legal Theory Working Papers

The new marijuana federalism is here, but is it here to stay? In this Article, I address that question by way of two related points, a practical one and a technical one, and I ultimately argue that state regulation should have a bigger role in fixing the limits of federal constitutional power. The practical point is that the current regime of state marijuana legalization is unstable, and it is a miracle that it is working as well as it is. Because marijuana remains contraband at the federal level, businesses and lawmakers who invest in responsible legalization at the state level …

Law School Announcements 2014-2015, Law School Announcements Editors

Announcements

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Habeas And The Roberts Court, Aziz Huq

Articles

No abstract provided.

How International Institutions Evolve , Anu Bradford

Chicago Journal of International Law

Economic theory suggests that international institutions cannot simultaneously widen and deepen. There is an inevitable trade-off between the benefits of size and the costs of heterogeneity. Consequently, institutions ought to be either small and deep or, alternativey, large and shallow. Yet in reality, we observe that international institutions embrace new members while concurrently pursuing deeper cooperation. This Article seeks to explain how institutions evolve over time in light of this size/heterogeneity trade-off. It examines the strategic responses of members of institutions to heterogeneity costs and identifies two distinct yet related strategies that allow states to pursue gains from cooperation while …

The Laws Of War And Public Opinion: An Experimental Study, Adam S. Chilton

Coase-Sandor Institute for Law & Economics Research Paper Series

Research examining whether the laws of war change state behavior has produced conflicting results, and limitations of observational studies have stalled progress on the topic. I have conducted a survey experiment to bring new evidence to the debate. I directly test whether a mechanism hypothesized to drive compliance with international law—public opinion—creates pressure to comply with the laws of war. The results provide qualified support to research suggesting that democracies may comply with the laws of war when there is the expectation of reciprocity, and demonstrate the potential of using experimental methods to study the laws of war.

Foreword: What Books On Law Should Be, Richard A. Posner

Articles

No abstract provided.

Habeas And The Roberts Court, Aziz Huq

Public Law and Legal Theory Working Papers

No abstract provided.

Habeas And The Roberts Court, Aziz Z. Huq

University of Chicago Law Review

Postconviction habeas comprises about 7 percent of federal district courts' dockets and between 8 and 20 percent of Supreme Court certiorari work. Scholars of all stripes condemn habeas as an empty "charade" lacking "coherent form." They consequently urge root-and-branch transformation. Resisting that consensus, this Article first advances a descriptive hypothesis: The Roberts Court's habeas jurisprudence is more internally coherent than generally believed—even if its internal logic has to date escaped substantial scholarly scrutiny. That jurisprudence is an instrument for sorting at the front end of litigation between cases warranting either less or more judicial attention. This account suggests that the …

Terrible Tools For Prosecutors: Notes On Senator Leahy's Proposal To 'Fix' Skilling V. United States, Albert W. Alschuler

Public Law and Legal Theory Working Papers

This article examines a proposed legislative response to Skilling v. United States, a response approved by the Senate but never voted on by the House. It argues that federal mail fraud prosecutions disgrace American criminal justice and that amending the

The Shackling Of Incarcerated Pregnant Women: A Human Rights Violation Committed Regularly In The United States, University Of Chicago Law School - Global Human Rights Clinic, Chicago Legal Advocacy For Incarcerated Mothers, Aclu National Prison Project

Global Human Rights Clinic

The international human rights community has repeatedly expressed concern about the shackling of pregnant women deprived of their liberty in the United States. The federal government has adopted an anti-shackling policy and some states have passed laws or policies restricting shackling. Despite these positive developments, shackling of women prisoners continues to occur in violation of U.S. and international law.

Shackling pregnant women increases the substantial medical risks of childbirth. Shackling of pregnant women is a harmful, painful, and demeaning practice that is rarely necessary to preserve safety. Most female prisoners are non-violent offenders, and women who are pregnant, in labor, …

The Habeas Optimist, Lee Kovarsky

University of Chicago Law Review Online

No abstract provided.

Treaty Termination And Historical Gloss, Curtis A. Bradley

Articles

The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …

Have Inter-Judge Sentencing Disparities Increased In An Advisory Guidelines Regime? Evidence From Booker, Crystal S. Yang

Coase-Sandor Institute for Law & Economics Research Paper Series

The Federal Sentencing Guidelines were promulgated in response to concerns of widespread disparities in sentencing. After almost two decades of determinate sentencing, the Guidelines were rendered advisory in United States v. Booker. How has greater judicial discretion affected inter-judge disparities, or differences in sentencing outcomes that are attributable to the mere happenstance of the sentencing judge assigned? This Article utilizes new data covering almost 400,000 criminal defendants linked to sentencing judge to undertake the first national empirical analysis of inter-judge disparities post Booker. The results are striking: inter-judge sentencing disparities have doubled since the Guidelines became advisory. Some of the …

Conflict Minerals And The Law Of Pillage, Patrick J. Keenan

Chicago Journal of International Law

The illicit exploitation of natural resources-often called conflict minerals-has been associated with some of the worst violence in the past half-century, especially in the Democratic Republic of the Congo. Prosecutors and scholars have struggled to develop legal tools to adequately hold accountable those who have been responsible for the exploitation of civilians and resources in conflict. The most common legal tool, the crime of pillage, has been inadequate because it has been applied only to discrete, relatively small episodes of theft. As important as it has been, the episodic theory is of limited utility when applied to what have been …

Bringing The Guilty To Justice: Can The Icc Be Self-Enforcing?, Nada Ali

Chicago Journal of International Law

Even though the International Criminal Court was instituted with the express goal of ending impunity, its lack of enforcement powers threatens to undermine its credibility as well as the effective administration of international criminal justice. While proponents of the court are content to rely on questionable means of enforcement such as military interventions, ICC skeptics are adamant that granting amnesties will ensure the removal of dictators from power. But, could there be a median solution between the extremes of at-any-cost accountability and outright exemption from punishment? Game theoretic analysis of the ICC offers a glimmer of hope for the effective …

Standing For The Structural Constitution, Aziz Huq

Public Law and Legal Theory Working Papers

No abstract provided.

Standing For The Structural Constitution, Aziz Huq

Articles

No abstract provided.

Law School Announcements 2013-2014, Law School Announcements Editors

Announcements

• Officers and Faculty
• The Law School - History
• Programs of Instruction
• Curriculum
• Student Activities and Organizations
• Funds and Endowments

Francis Lieber And The Modern Law Of War (Reviewing Lincoln's Code: The Laws Of War In American History By John Fabian Witt), Paul Finkelman

University of Chicago Law Review

No abstract provided.

Mock Trials And Real Justices And Judges, Richard A. Posner

Articles

No abstract provided.

Navigating Conflicts In Cyberspace: Legal Lessons From The History Of War At Sea, Jeremy Rabkin, Ariel Rabkin

Chicago Journal of International Law

Despite mounting concern about cyber attacks, the United States has been hesitant to embrace retaliatory cyber strikes in its overall defense strategy. Part of the hesitation seems to reflect concerns about limits imposed by the law of armed conflict. But analysts who invoke today's law of armed conflict forget that war on the seas has always followed different rules. The historic practice of naval war is a much better guide to reasonable tactics and necessary limits for conflict in cyberspace. Cyber conflict should be open-as naval war has been-to hostile measures short of war, to attacks on enemy commerce, to …

Well-Being Analysis Vs. Cost-Benefit Analysis, Jonathan Masur, John Bronsteen, Christopher Buccafusco

Articles

Cost-benefit analysis (CBA) is the primary tool used by policymakers to inform administrative decisionmaking. Yet its methodology of converting preferences (often hypothetical ones) into dollar figures, then using those dollar figures as proxies for quality of life, creates significant systemic errors. These problems have been lamented by many scholars, and recent calls have gone out from world leaders and prominent economists to find an alternative analytical device that would measure quality of life more directly. This Article proposes well-being analysis (WBA) as that alternative. Relying on data from studies in the field of hedonic psychology that track people's actual experience …

The Hidden Costs Of Terrorist Watch Lists, Anya Bernstein

Articles

No abstract provided.

Plan, Do, Reflect: Clinical Teaching At The Law School, Meredith Heagney

The University of Chicago Law School Record

No abstract provided.

Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Huq

Articles

No abstract provided.

Policing Immigration, Thomas J. Miles, Adam B. Cox

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Women In Prison In Argentina: Causes, Conditions, And Consequences, University Of Chicago Law School - Global Human Rights Clinic, Defensoría General De La Nación Argentina, Cornell Law School - International Human Rights Clinic, Cornell Law School - Avon Global Center For Women And Justice

Global Human Rights Clinic

In many countries around the world, including Argentina, the number of women who are deprived of their liberty has risen over time and has increased disproportionately in comparison to male prisoners. In Argentina, the number of female prisoners within the federal system increased 193%, while the male population rose 111% from 1990 to 2012. Nonetheless, little research has been done to understand why there has been such a dramatic increase in women’s incarceration. At the same time, international and domestic laws governing prisons and prison policies and practices have traditionally been designed for men. In 2010, however, the United Nations …

Remaining Silent After Salinas, Brandon L. Garrett

University of Chicago Law Review Online

No abstract provided.

Lafler And Frye: Two Small Band-Aids For A Festering Wound, Albert Alschuler

Articles

No abstract provided.

Instrumental And Noninstrumental Theories Of Tort Law, Richard A. Posner

Articles

No abstract provided.