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Defending Home: Toward A Theory Of Community Equity, Deborah N. Archer, Joseph R. Schottenfeld

University of Chicago Law Review

Predominantly Black communities have long been systematically segregated and sequestered, then intentionally sacrificed, to feed the United States’ growth and expansion. The burdens of development—including roads and highways, sewage, communications, and power infrastructure—and efforts to respond to the challenges of climate change, all fall disproportionately on Black communities that rarely receive the benefits of these investments. For neighbors who have built a sense of community, often across generations and in defiance of racist oppression, sacrificing their homes, and the sense of safety and belonging they offer, is a bitter pill.

A central contention of this Essay is that, across a …

Real Laws From Imagined Facts: The Formative Role Of Assumption In Prison Litigation Reform Act Exhaustion Doctrine, Katrina T. Goto

University of Chicago Law Review

In Woodford v. Ngo, the Supreme Court made explicit the judicial assumption that most prisons have effective internal grievance procedures, firmly cementing that assumption within Prison Litigation Reform Act (PLRA) exhaustion doctrine. Reliance on this assumption has contributed to doctrinal rules that map poorly onto the factual realities of prisons and require constant clarification by the Supreme Court. Indeed, the Supreme Court has been called upon twice in the past decade to sort out the mess of doctrinal rules governing PLRA exhaustion, first in Ross v. Blake and again this year in Perttu v. Richards. Examining the Court’s path to …

Necessity In Free Exercise, Brady Earley

University of Chicago Law Review

The Free Exercise Clause is a broadly worded constitutional prohibition against government intrusion on religious exercise. To construct limits, courts have consistently required government officials to demonstrate the necessity of state action burdening religion. Yet government officials regularly fail to produce evidence of necessity, leaving judges to intuit or assume whether necessity exists. This Comment offers a better way. Using a method known as difference-in-differences (DiD), lawmakers can draw upon the experience of existing state laws to enact laws justified with evidence. This Comment demonstrates the value of DiD with a current free exercise controversy involving the Old Order Amish …

Sovereign Power Constitutionalism, Curtis A. Bradley

University of Chicago Law Review

The text of the U.S. Constitution seems to be missing a host of governmental powers that we take for granted, including powers relating to immigration, Indian affairs, acquisition of territory and resources, and the regulation and protection of U.S. citizens abroad. The Supreme Court suggested an explanation for these and other missing powers in its famous 1936 decision, United States v. Curtiss-Wright Export Corp. Upon becoming a nation, the Court contended, the United States automatically acquired powers “equal to the right and power of the other members of the international family”—powers that inhered in the government “as necessary concomitants of …

The Contractualization Of Disability Rights Law, Yaron Covo

University of Chicago Law Review

What body of law determines the content and scope of disability rights in the United States? The conventional wisdom is that the rights of disabled individuals are enshrined in and shaped by an array of civil rights statutes. While this answer is correct, it is incomplete. As this Article shows, U.S. disability rights are also built upon contract law concepts and doctrines. For example, in interpreting disability rights statutes, courts have turned to the parol evidence rule, the duty of good faith, and the doctrines of impossibility, materiality, duress, and mistake. Although not explicitly enumerated in disability rights statutes, these …

Legal Realignment, Richard Re

University of Chicago Law Review

The United States is undergoing a legal realignment, in that salient legal views recently associated with the right are now being espoused by the left, and vice versa. The clearest example involves Chevron deference: a doctrine once championed by conservatives like Justice Antonin Scalia has now been overruled in Loper Bright v. Raimondo—over dissenting votes by all three of the Court’s liberals. Similar points can be made about standing, stare decisis, textualism, positivism, and more. The basic reason for this transformation is straightforward: legal ideologies in power favor discretion, whereas those out of power favor constraint. Conservatives now firmly control …

Complete Preemption Via Historical Evolution, Ryan Jain-Liu

University of Chicago Law Review

Complete preemption is a jurisdictional doctrine that applies when a federal statute so wholly envelops certain state law claims that those claims effectively cease to exist. Aside from an explicit complete preemption hook, the Supreme Court has recognized just one way for a federal statute to completely preempt state law claims: it must provide an exclusive federal remedy and also have a special nature that makes it especially federal. Courts shirk this second prong to their own detriment. One example of complete preemption generating confusion is § 303(i) of the Bankruptcy Code, which provides remedies for involuntary debtors against bad …

Law School Announcements 2025-2026, Law School Announcements Editors

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Compassionate Causation In The Domestic Violence Survivors Justice Act, Zoë Lewis Ewing

University of Chicago Law Review

This Comment evaluates the implementation of the Domestic Violence Survivors Justice Act (DVSJA), a New York law passed in 2019 to provide shortened sentencing ranges for domestic violence survivors convicted of crimes. It identifies an inconsistency in sentencing courts’ application of the law’s causation standard, which requires that a petitioner’s experience of domestic violence be a “significant contributing factor” to their criminal conduct. Some courts interpret the prong narrowly, while others apply a broad causation standard. This Comment argues that courts should opt for the latter approach and consider causation in the DVSJA satisfied if domestic violence was “sufficiently significant …

Necessary Developments: Calibrating The Fair Housing Act’S Reasonable Accommodation Provision, Ben Griswold

University of Chicago Law Review

The Fair Housing Act prohibits denying people with disabilities “reasonable accommodations.” But courts have long split over how to interpret this provision. At the center of the divide is the statutory requirement that an accommodation be “necessary to afford . . . equal opportunity to use and enjoy a dwelling.” Courts diverge over whether the statute imposes a strict-necessity standard, requiring that an accommodation be truly indispensable, or a lenient-necessity standard, requiring only that the requested accommodation ameliorate the plaintiff’s disability.

Rather than pick one interpretation, this Comment suggests that courts should tailor the necessity standard they employ to the …

Law School Record, Vol. 72, No. 1 (Fall 2025), Law School Record Editors

Law School Record

• Message from the Dean
• How the Law School is Incorporating AI into the Curriculum
• Café D'Angelo Builds Community One Cold Brew at a Time
• Adam Chilton Becomes Dean
• The Corporate Speech Dilemma
• Theory in Practice
• Counselors of Crypto
• Asked & Answered - Richard Robbins, '91 Director of Applied AI
• Seven Alumni Begin Clerkships for Supreme Court Justices
• Professor John Rappaport Discusses his New Criminal Law Casebook
• Two New Faculty Members Join the Law School
• Other Faculty News and Recognition's
• The Law School Launches the Dean's Fellow Program
• Meet the Class of 2028 (by the numbers)
• Development News
• In Memoriam
• Giving …

The Splintering Of American Public Law, Marco Basile

University of Chicago Law Review

Constitutional tradition has never mattered more for arguing about what the Constitution means. Yet the very idea of a constitutional tradition presents a shape-shifting target. Rather than an entirely distinct body of law, early U.S. constitutional law mixed and blurred with the law of nations in a broader category of “public law” that, unlike other forms of law, sought to govern the sovereign state itself through not only legal institutions but also political structures and actors outside courts.

This Article argues that U.S. constitutional law and international law diverged after the Civil War when courts came to apply them differently …

In Search Of A Judicial Taking, Coby Goldberg

University of Chicago Law Review

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Supreme Court held that the Takings Clause applies to the judiciary as it does to any government actor. In the more than fifteen years since, none of the sixty courts to consider judicial takings claims have found a judicial taking. This Comment provides the only comprehensive analysis of the judicial takings case law since Stop the Beach in order to determine why no court has found a judicial taking. Based on this analysis of the case law, this Comment suggests that finding a judicial taking …

Leveraging The Federal Trust Responsibility To Safeguard Net Neutrality On Tribal Lands, Morgan O. Schaack

University of Chicago Law Review

The internet plays a crucial role in modern life, but equal access to it is not guaranteed. This inequality is only starker since the recent overruling of the Chevron doctrine that afforded agencies deference in their interpretation of statutes and the second Trump administration’s hostility toward net neutrality––a policy that prevents internet service providers from charging more money for access to faster internet while slowing other users’ access. For those living on tribal lands, rescission of net neutrality policies has unique implications due to the federal government’s trust responsibility to American Indians.

The trust responsibility is a long-standing and deeply …

Eliminating The Malice Requirement For Fourth Amendment Malicious Prosecution Plaintiffs, Sabrina Huang

University of Chicago Law Review

Someone who has been wrongfully prosecuted in violation of their Fourth Amendment rights can sue a government actor, such as a police officer, for malicious prosecution under 42 U.S.C. § 1983. Malicious prosecution arises when a government actor initiates a criminal case without probable cause, the prosecution leads to the accused’s seizure, and the accused is ultimately not convicted. Fourth Amendment malicious prosecution claims are critical to holding officers and prosecutors accountable for misconduct. Official misconduct is common: more than half of the people exonerated since 1989 were incarcerated due in part to misconduct by the police or prosecutors.

Fourth …

Constitutional Rights As Protected Reasons, Stephanie Hall Barclay

University of Chicago Law Review

This Article proposes and defends a new theoretical model of constitutional rights. Virtually all the prevailing theories about constitutional rights envision, at some level, judges balancing the importance of various individual rights against the importance of other societal goods in tension with those rights. These theories also generally hold out the judiciary as the primary guardian of these rights, whereas the other political branches are often viewed as fulfilling a role of interfering with (or protecting) rights only as much as the judiciary will allow. This Article explains why the existing accounts of constitutional rights are either incoherent or incomplete. …

The Amended Statute, Jesse M. Cross

University of Chicago Law Review

We live in a republic of amended statutes. In each Congress, our laws are amended tens of thousands of times. Individual statutes make amendments that number in the thousands. As a result, the amended statute has become the central democratic text of our age—a remarkable development for a type of document unknown at the Founding. Yet the amended statute has been relegated to an after-thought in legal theory. This is incredible neglect for an essential source of modern law—one that anchors innumerable rights in U.S. society.

This Article demonstrates that, instead, the amended statute belongs at the center of public …

On Frand-Ly Terms: Examining The Role Of Juries In Standard-Essential Patent Disputes, Marta Krason

University of Chicago Law Review

Modern society relies on interconnected technologies, and interoperability has become crucial for meeting consumer expectations. Technology standards have emerged to ensure compatibility and interoperability across products. Once an industry selects a standard as the default for consumers and businesses, industry players begin to adapt it, often phasing out alternative—sometimes even superior— technologies. Holders of patents covering technology standards, known as standard- essential patents (SEPs), control the rights to an invention with no commercially viable alternative or that cannot be designed around while still complying with a standard. This gives SEP holders significant leverage in licensing negotiations

Standards development organizations (SDOs) …

Looking For The Public In Public Law, Nikhil Menezes, David E. Pozen

University of Chicago Law Review

The “public” is everywhere and nowhere in contemporary public law. Everywhere, in that the term is constantly invoked to justify and explain existing arrangements. Nowhere, in that serious attempts to identify a relevant public and elicit its input are few and far between. Scholars and officials depict the U.S. public as playing myriad roles in governance—checking, guiding, approving, repudiating—without offering an account of how public preferences are formed or how they exercise influence on questions of interest.

This Article seeks to identify and call attention to the foundational dilemmas underlying this disconnect, to clarify their normative contours and intellectual history, …

Large Language Models And International Law, Ashley Deeks, Duncan Hollis

Chicago Journal of International Law

Large Language Models (LLMs) have the potential to transform public international lawyering in at least five ways: (i) helping to identify the contents of international law; (ii) interpreting existing international law; (iii) formulating and drafting proposals for new legal instruments or negotiating positions; (iv) assessing the international legality of specific acts; and (v) collating and distilling large datasets for international courts, tribunals, and treaty bodies.

This Article uses two case studies to show how LLMs may work in international legal practice. First, it uses LLMs to identify whether particular behavioral expectations rise to the level of customary international law. In …

The Rise Of Big Data And The Law Of Armed Conflict, Laura A. Dickinson

Chicago Journal of International Law

Big data—extremely large quantities of information and the analytics used to process it—is now crucial to the way militaries operate on the battlefield. Data is used to run weapons systems, analyze intelligence, procure and deploy personnel, evaluate battlefield conditions, detain prisoners, and more. And not only is data increasingly being used on the battlefield, but operations targeting adversaries’ data—to acquire it, delete and destroy it, or distort or poison it—are becoming increasingly important as well. Beyond the battlefield, big data lies at the epicenter of adversarial activities below the armed conflict threshold. Because data is the fuel of artificial intelligence …

Interpretation As Creation: Article Vi Of The Outer Space Treaty, Charles Stotler

Chicago Journal of International Law

From the launch of Sputnik I in 1957 to proposals for In-Space Servicing, Assembly and Manufacturing (ISAM) and new lunar activities such as resource utilization, advancing technology has always been a driving factor in the creation of space law. From a legal-historical perspective, the notion of law as creation should be contextualized in a broader legal-philosophical transition that began with the rise of positivism. Article VI of the Outer Space Treaty orbits unsteadily between international obligations and national implementation measures, rendering significant States’ understandings of those provisions. Our understanding of Article VI turns on perhaps the most creative legal endeavor: …

Battlefield Evidence In The Age Of Artificial Intelligence-Enabled Warfare, Winthrop Wells

Chicago Journal of International Law

A number of emerging technologies increasingly prevalent on contemporary battlefields—notably unmanned autonomous systems (UAS) and various military applications of artificial intelligence (AI)—are working a sea change in the way that wars are fought. These technological developments also carry major implications for the investigation and prosecution of serious crimes committed in armed conflict, including for an under-examined yet potentially valuable form of evidence: information and material collected or obtained by military forces themselves.

Such “battlefield evidence” poses various legal and practical challenges. Yet it can play an important role in justice and accountability processes, in which it addresses the longstanding obstacle …

Satellite Infrastructures And Law In The Making Of Planetary Knowledge, Benedict Kingsbury, Yirong Sun

Chicago Journal of International Law

Imaginations of Planet Earth as-a-whole—that is, Earth conceived in planetary terms by wide publics—have been shaped over several decades by the growing capabilities of artificial Earth satellites to image the whole Earth, to specify all locations, and to integrate the Earth’s diverse orbital space with everyday human activities. Different Earth orbits are becoming more densely used, more securitized, more intensely managed from Earth, and more integral to activities on Earth.

This Article focuses on two categories of satellite systems that contribute directly to planetary knowledge, Global Navigation Satellite Systems (GNSS) and Earth Observation Satellite Systems (EOSS). GNSS and EOSS have …

Two Terribles: A Day Without Space And Ai Enabled Synthetic Biological Weapons A Warning Order, James E. Baker

Chicago Journal of International Law

A day without space, a term used to describe the loss or destruction of America’s space assets, and the potential generation of novel biological threats using AI and synthetic biology present catastrophic and potentially existential threats to U.S. security in a way that nuclear weapons did before and continue to do so today. Yet they have not received the level of attention from national security lawyers or commentators they warrant. This article describes the threats. It describes the current and inchoate nature of the law to address these threats. And it makes initial recommendations to policymakers and lawyers about how …

Distinction, Proportionality, And Precautions In Attacks At Sea In The New Era Of The Law Of Naval Warfare, James Kraska

Chicago Journal of International Law

China has upset the security balance in East Asia through the development of a long- range strike complex composed of anti-ship ballistic missiles, drones and cruise missiles, and hypersonic missiles that put U.S. naval fleets at risk. Beijing’s innovative approach to sea control through the projection of power from land-based fires highlights three important differences between the law applicable to naval warfare and the law of armed conflict (LOAC) as it is implemented on land.1 These legal distinctions are subtle in law, but they shape concrete choices available to naval commanders and could determine the outcome of war at sea. …

Contract Or Prison, S. R. Blanchard

University of Chicago Law Review

Critics of the criminal enforcement system have condemned the expansion and privatization of electronic monitoring, criminal diversion, parole, and probation. But the astonishing perversion of contract involved in these new practices has gone unnoticed. Governments are turning to “offender-funded” programs that empower firms to contract with people who are suspected of or have been convicted of crimes— and whose alternative to agreeing to these contracts is prosecution or incarceration. Though incarceration-alternative (IA) contracting is sometimes framed as humane, historical and current context illuminates its coercive nature. IA contracting must be examined under classical contract theory and in light of the …

Identifiable To Whom? Clarifying Biometric Privacy Rights In Illinois And Beyond, Hana Ferrero

University of Chicago Law Review

Illinois’s Biometric Information Privacy Act (BIPA) is the country’s most powerful law governing biometric data—data generated from an individual’s biological characteristics, like fingerprints and voiceprints. Over the past decade, BIPA garnered a reputation as an exceptionally plaintiff-friendly statute. But from 2023 to 2024, the Illinois legislature, Illinois Supreme Court, and Ninth Circuit Court of Appeals all sided with BIPA defendants, largely for the first time. Most significantly, in Zellmer v. Meta Platforms, Inc., the Ninth Circuit dismissed the plaintiff’s BIPA claim because the face scan collected by the defendant could not be used to identify him.

It is unclear whether …

Technology And The Unique Challenges Of Applying Law To The Realm Of Outer Space And Space Activities, F.G. Von Der Dunk

Chicago Journal of International Law

For better or worse, technology at heart is—except to the extent that artificial intelligence fundamentally becomes involved—not so much a creator as a facilitator and enhancer of human acts, actions and activities, allowing them to become more effective, less costly, or sometimes even just merely feasible. Perhaps nowhere that is more pertinent then when it comes to human activities in outer space, which are still overwhelmingly conducted remotely and hence crucially dependent on technology. Given that “the law” has always been geared to address humans and their acts, actions, and activities, this gives rise to a rather special approach to …

Digital Investigations Of Systematic And Conflict-Related Sexual Violence: Practice And Possibilities, Alexa Koenig

Chicago Journal of International Law

This article discusses a new guide that has been developed to support the responsible use of digital open-source information to investigate systematic and conflict-related sexual violence (SCRSV). Drafted by the Institute for International Criminal Investigations and the Human Rights Center at UC Berkeley School of Law, the just-published pilot version of the Open- Source Practitioner’s Guide to the Murad Code aims to minimize the risks and maximize the potential for digital investigations into SCRSV. Part I of this article opens with a brief history of accountability for SCRSV, touching on the need to strengthen SCRSV investigations and providing a brief …