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The Scope Of Evidentiary Review In Constitutional Challenges To Agency Action, Conley K. Hurst

University of Chicago Law Review

When reviewing agency action, the Administrative Procedure Act (APA) instructs courts to “review the whole record or those parts of it cited by a party.” The Supreme Court has interpreted this brief statement as a restriction on the evidentiary scope of judicial review under the APA. Courts may consider only the administrative record compiled by the agency, which includes all materials before the decisionmaker at the time he or she made the decision. The Supreme Court has recognized one exception: plaintiffs may supplement the administrative record if they make a strong showing of bad faith or improper behavior on the …

Law School Announcements 2021-2022, Law School Announcements Editors

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Defining Forced Labor: The Legal Battle To Protect Detained Immigrants From Private Exploitation, Samantha Sherman

University of Chicago Law Review

Privately run immigration detention facilities allegedly profit from a nation-wide system of forced labor. People detained in these for-profit facilities allege that they are compelled to work—often without pay—under threats of solitary confinement, deprivation of basic necessities, and other serious harms. Advocates have challenged these human rights abuses through a series of class action lawsuits under the Trafficking Victims Protection Act (TVPA). The TVPA’s forced labor provision, codified at 18 U.S.C. § 1589, prohibits the use of “labor or services” obtained by force or coercion. If successful, these lawsuits would not only help vindicate the rights of the hundreds of …

Never Ask A Woman Her Wage: The Constitutionality Of Salary-History Bans, Tyler M. Wood

University of Chicago Law Review

For over a half-century, legislatures have struggled to close the pay gap be-tween men and women. Although the gap has shrunk substantially since Congress passed the Equal Pay Act in 1963, in recent years, progress has slowed to a near standstill. Why has the residual gap remained so persistent? Some argue that employers—by asking applicants to reveal their wage histories and then relying on that information to set future wages—have forced women to carry wage discrimination from job to job. Reacting to this argument, some states and cities have provided a simple solution: ban salary-history inquiries.

This Comment addresses whether …

The Pigouvian Constitution, Peter N. Salib

University of Chicago Law Review

How can lawmakers reduce the skyrocketing rate of gun deaths in the United States? How can they stymie the spread of viral fake news stories designed to under-mine our elections? Certain constitutionally protected activities—like owning a gun or speaking online—can generate social harms. Yet when lawmakers enact regulations to reduce those harms, they are regularly struck down as unconstitutional. In-deed, the very laws designed to most aggressively reduce social harms—like total criminal bans—are the least likely to be upheld. As a result, regulators appear stuck with an unpleasant choice—regulate constitutionally or effectively, but not both.

This Article proposes a novel …

China And Comparative International Law: Between Social Science And Critique, Matthew S. Erie

Chicago Journal of International Law

This Essay brings Abebe, Chilton, and Ginsburg’s Lead Essay into conversation with the literature on comparative international law to ask whether the social scientific approach to international law is “international.” In particular, this Essay takes the case of scholarship on international law in China to examine why or why not particular methodological and theoretical perspectives on international law may gain traction in certain jurisdictions’ legal academies. There are a number of linguistic, pedagogic, institutional, and, ultimately, political reasons why the Chinese scholarship that uses social science to understand international law is still nascent. At the same time, critical approaches to …

Deal Protection Devices, Albert H. Choi

University of Chicago Law Review

In mergers and acquisitions transactions, a buyer and a seller will often agree to contractual mechanisms (deal protection devices) to deter third parties from jumping the deal and to compensate a disappointed buyer. With the help of auction theory, this Article analyzes various deal protection devices, while focusing on the two most commonly used mechanisms: match rights and target termination fees. A match right gives the buyer a right to “match” a third party’s offer so as to prevent the third party from snatching the target away, while a termination fee compensates the buyer when a third party acquires the …

Comparative International Law And The Social Science Approach, Emilia Justyna Powell

Chicago Journal of International Law

The social science approach has already contributed and continues to contribute to the study of international law. In particular, research that incorporates the social science approach has provided much insight into reality and day-to-day functioning of international law by going beyond historical and normative description and providing generalizable theories. If based on a sound theoretical framework that is subsequently tested in a rigorous scientific manner, the social science approach allows us to uncover a multiplicity of factors that commingle to shape states’ preferences and actions toward international law. Combining insights provided by analysis of large-N data with qualitative methodology allows …

Federal Rules Of Platform Procedure, Rory Van Loo

University of Chicago Law Review

Tech platforms serve as private courthouses for disputes about speech, lodging, commerce, elections, and reputation. After receiving allegations of defamatory content in top search results, Google must decide between protecting one person’s public image and another's profits or speech. Amazon adjudicates disputes between consumers and third-party merchants about defective or counterfeit items. For many small businesses, layoffs and bankruptcy hang in the balance. This Article begins to uncover the processes that these platforms use to resolve disputes and proposes reforms. Other important businesses that intermediate, such as credit card companies ruling on a disputed charge between a merchant and consumer, …

Vindicating The Right To Be Heard: Due Process Safeguards Against Government Interference In The Clemency Process, Jay Clayton

University of Chicago Law Review

No abstract provided.

Removing Interpretative Barnacles: Counterclaims And Civil Forfeiture, Nicholas Hallock

University of Chicago Law Review

Through civil forfeiture, the federal government can take ownership of property merely by proving it “guilty” by a preponderance of the evidence. The government need not formally accuse its owner of any crime. Yet the procedural mechanisms available to a property owner who wishes to contest a forfeiture are limited, complex, and strictly enforced. A creature of admiralty law, civil forfeiture draws on supplemental provisions of the Federal Rules of Civil Procedure with which many lawyers and federal judges are unfamiliar.

This Comment explores an active circuit split and identifies an undertheorized way for property owners to vindicate their rights: …

Education’S Deep Roots: Historical Evidence For The Right To A Basic Minimum Education, Caroline A. Veniero

University of Chicago Law Review

For decades, the U.S. Supreme Court has left open the question whether the U.S. Constitution protects a right to some amount of education. While such a right is not specifically enumerated in the Constitution, advocates have long argued for the existence of an implicit, fundamental right to a basic minimum education under the Due Process Clause of the Fourteenth Amendment. Recognition of such a right requires grappling with the Supreme Court’s substantive due process jurisprudence. To be a fundamental right, one requirement is that a proposed right have deep roots in U.S. history and tradition. This Comment examines whether the …

Measuring The Art Of International Law, Mary Ellen O’Connell

Chicago Journal of International Law

Social science methodology is a useful adjunct to law, but it cannot replace the humanist ideas that constitute law. Scholars developed social science at the end of the nineteenth century and were soon using it to measure and assess material facts associated with far older intellectual disciplines like law. They have been able to confirm facts about such issues as the origins and impact of law. These studies rely, however, on a humanist definition of the object of the study. Humanist methods reveal that law is the result of transcendent concepts developed through natural law method. By the early twenty-first …

Studying Race In International Law Scholarship Using A Social Science Approach, James Thuo Gathii

Chicago Journal of International Law

This Essay takes up Abebe, Chilton, and Ginsburg’s invitation to use a social science approach to establish or ascertain some facts about international law scholarship in the United States. The specific research question that this Essay seeks to answer is to what extent scholarship has addressed international law’s historical and continuing complicity in producing racial inequality and hierarchy, including slavery, as well as the subjugation and domination of the peoples of the First Nations. To answer this question, this Essay uses the content published in the American Journal of International Law (AJIL) from when it was first published in 1907 …

The Limits Of International Law Fifteen Years Later, Jack L. Goldsmith, Eric A. Posner

Chicago Journal of International Law

The Limits of International Law received a great deal of criticism when it was published in 2005, but it has aged well. The skeptical, social-scientific methodology that it recommended has become a normal mode of international law scholarship. And the dominant idealistic view of international law that the book criticized is today in shambles, unable to explain the turmoil in international politics. This Essay reflects on the book’s reception and corrects common misperceptions of its arguments

Applying The United Nations Trafficking Protocol In The Context Of Climate Change, Mikaila V. Smith

Chicago Journal of International Law

Climate change will increasingly lead to widespread environmental degradation which will in turn spur large-scale vulnerability, displacement, and migration. This phenomenon is now well recognized in the literature, although causal pathways continue to be debated. However, scholars and practitioners have so far largely neglected to examine the related ways in which climate change will significantly impact the scale and scope of global trafficking in persons. This Comment responds to a lack of scholarship on the climate change-human trafficking nexus by exploring the predicted impacts of climate change on human trafficking. In light of these forecasted developments, this Comment argues that …

On Relating Social Sciences To International Law: Three Perspectives, Yifeng Chen

Chicago Journal of International Law

This Essay offers a critical yet constructive reading of the social science approach to international law. In seeking to frame international legal studies alongside the positivistic social sciences, the social science approach has suffered from important methodological deficiencies. Though appearing to be an objective science, the social science approach requires a scholar to make subjective decisions throughout the research process. A reductionistic social science approach to international law risks consolidating existing inequalities and imperialistic institutions in the name of objective science. A healthy interaction between international law and the social sciences requires enriched conceptions of both international law and the …

Reflections On The Value Of Socio-Legal Approaches To International Economic Law In Africa, Olabisi D. Akinkugbe

Chicago Journal of International Law

In their Lead Essay for the 2021 Chicago Journal of International Law Symposium, Daniel Abebe, Adam Chilton, and Tom Ginsburg offer an account of “the rise of the social science approach to international law, explain the basics of the method, and advocate for its continued adoption.” This Essay critically assesses how and why one might use socio-legally inspired methods (analytical, empirical, and normative) for the study of international economic law (IEL) in Africa. It illustrates the empirical method’s importance in understanding one of the most challenging aspects of the study of IEL in Africa: capturing the data and dynamism of …

Herding Schrödinger’S Cats: The Limits Of The Social Science Approach To International Law, Simon Chesterman

Chicago Journal of International Law

The struggle to assert the legitimacy and relevance of international law is integral to its story. Among academics, that tale has seen other lawyers question whether it is “really” law, while scholars of international relations have dismissed it in a bemused footnote. Among politicians, the narrative has been one of efforts to establish international law as more than simply one foreign policy justification among others. The turn to social science offers a double remedy: rigorous methods that will earn the respect of the academy while also demonstrating the discipline’s “real world” impact. This is an elegant answer—to the wrong question. …

Social Science Research And Reforms Of International Institutions, Weijia Rao

Chicago Journal of International Law

Building on Daniel Abebe, Adam Chilton and Tom Ginsburg’s call for more social science research in international law, this Essay discusses ways in which social science research can be applied to inform reforms of international institutions. In the face of significant challenges to the current international legal order, active reform discussions have been ongoing concerning a number of international institutions. This Essay posits that in developing proposals to reform these international institutions, more attention should be paid to identify the causes of existing problems, which is important in an international setting where decision-making requires the consensus of multiple stakeholders. The …

Cured: Proposing A Solution To The Hague Convention’S “Zone Of Disease” Defense, Savannah Mora

Chicago Journal of International Law

Each year, thousands of children are taken from their homes to foreign countries by one of their parents (the “taking parent”) without the consent of their other parent (the “left-behind parent”). This phenomenon is frequently referred to as international child abduction. If both the country from which the child was taken and the country to which the child was taken are signatories to the Hague Convention, the left-behind parent can file a petition for return of the child under the treaty. Recently, in a number of courts around the world, taking parents facing Hague Convention litigation have argued that, because …

How Hackers Of Submarine Cables May Be Held Liable Under The Law Of The Sea, Jason Petty

Chicago Journal of International Law

Submarine internet cables play a vital role in the modern economy and transmit almost all global internet connections between countries. These cables, however, are vulnerable to interference or hacking by foreign states who seek to obtain the valuable data that passes through them. Because these cables are located on the high seas, however, no country has legal jurisdiction over large portions of them allowing for any number of states or private actors to hack into them and steal valuable information. This Comment evaluates whether states have any legal recourse under public international law against entities that hack into submarine cables. …

Linguistic Minorities With Disabilities And The Right To Native Language Instruction, Carol Zhang

Chicago Journal of International Law

This Comment examines whether international law guarantees for linguistic minorities with disabilities the right to native language instruction. Linguistic minorities with disabilities currently face two challenges: the barriers presented by their disability and the difficulties of learning the majority language. A right to native language instruction would help eliminate this second challenge, removing an obstacle in academic and social development. To determine the existence of such a right, this Comment will first analyze the language rights regime and show that linguistic rights require further evaluation of the specific pragmatic interests involved. Next, this Comment looks at treaty and case law …

International Law And Transnational Legal Orders: Permeating Boundaries And Extending Social Science Encounters, Gregory Shaffer, Terence C. Halliday

Chicago Journal of International Law

This Essay elaborates in three ways the call for a renewal of social science approaches to international law advanced by Daniel Abebe, Adam Chilton, and Tom Ginsburg. First, while we affirm the importance of what they call the “scientific method” of hypothesis testing, we argue that it can and must be complemented by several other well-institutionalized social science approaches to international law. Second, we loosen the conventional “internal”/“external” distinction in legal scholarship and make the case that conceptualization and empirics are integral to both approaches. Third, we propose that the full promise of social science approaches to international law can …

Rethinking Nudge: An Information-Costs Theory Of Default Rules, Oren Bar-Gill, Omri Ben-Shahar

University of Chicago Law Review

Policy makers and scholars—both lawyers and economists—have long pon-
dered the optimal design of default rules. From the classic works on “mimicking”
defaults for contracts and corporations to the modern rush to set “sticky” default
rules to promote policies as diverse as organ donation, retirement savings, consumer
protection, and data privacy, the optimal design of default rules has featured as a
central regulatory challenge. The key element driving the design is opt-out costs—
how to minimize them, or, alternatively, how to raise them to make the default sticky.
Much of the literature has focused on “mechanical” opt-out costs—the effort people …

Qualified Immunity's Boldest Lie, Joanna C. Schwartz

University of Chicago Law Review

Qualified immunity shields government officials from damages liability—even if they have violated plaintiffs’ constitutional rights—so long as they have not violated “clearly established law.” The Supreme Court has explained that water-shed cases describing legal requirements—like Graham v. Connor and Tennessee v. Garner—are alone insufficient to clearly establish the law. Instead, the plaintiff must find prior cases applying Graham and Garner to cases with facts virtually identical to their own case, explaining that such factually analogous cases are necessary to put officers on notice of the illegality of their conduct. But do officers actually know about the facts and holdings of …

Organizational Rights In Times Of Crisis, Adam Chilton, Mila Versteeg

University of Chicago Law Review

As populist leaders gain power around the world, democratic governments retreat, and authoritarian states gain power in the international system,¹ it is critical to find levers of resistance. Professors Adam Chilton and Mila Versteeg’s masterful volume, How Constitutional Rights Matter, offers a timely and provocative answer: let’s look to organizations as potential defenders of rights in challenging times.² In a world in which human rights are widely understood as individual rights, it is high time to theorize about how organizations can help vindicate these individual protections.

The specific thesis Chilton and Versteeg promote is that “some rights, once …

Law School Record, Vol. 67, No. 2 (Spring 2021), Law School Record Editors

Law School Record

• Message from the Dean
• Power in Numbers
• Colloquia in the Time of Covid-19
• Eight Clerks for Eight Judges
• Building Community and Supporting Each Other
• Professor Martha C. Nussbaum Awarded 2021 Holberg Prize
• Professor Douglas Baird Named Chair of the National Bankruptcy Conference
• Faculty News
• Alumni News
• Development News
• In Memoriam

The Corpus And The Critics, Thomas R. Lee, Stephen C. Mouritsen

University of Chicago Law Review

Most any approach to interpretation of the language of law begins with a search for ordinary meaning. Increasingly, judges, scholars, and practitioners are highlighting shortcomings in our means for assessing such meaning. With this in mind, we have proposed the use of the tools of corpus linguistics to take up the task. Our proposals have gained traction but have also seen significant pushback. The search for ordinary meaning poses a series of questions that are amenable to evaluation and analysis using evidence of language usage. And we have proposed to use the tools of corpus linguistics—tools for assessing patterns of …

Competing Algorithms For Law: Sentencing, Admissions, And Employment, Saul Levmore, Frank Fagan

University of Chicago Law Review

Algorithms have found their way into courtrooms, college admission committees, and human resource departments. While defendants and other disappointed parties have challenged the use of algorithms on the basis of due process or similar objections, it should be expected that they will also challenge their accuracy and attempt to present algorithms of their own in order to contest the decisions of judges and other authorities. The problem with this approach is that people who can transparently see why they have been algorithmically denied rights or resources can manipulate an algorithm by retrofitting data. Demands for full algorithmic transparency by policy …