Digital Commons Network^™

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 …

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 …

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 …

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 …

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 …

The Click-And-Commit World Order, Melissa J. Durkee

Chicago Journal of International Law

This Article explores the rise of a new model of global governance: the “click-and-commit world order,” characterized by digitally mediated pledging platforms through which a wide array of actors—states, corporations, cities, NGOs, and individuals—publicly commit to addressing global problems through non-binding promises. In contrast to traditional treaty-making, these pledging platforms offer a decentralized, voluntary framework for international cooperation that relies on public declarations rather than negotiated obligations.

Within the U.N. system, this mode of governance developed within the United Nations Global Compact and the Paris Climate Agreement, where bottom-up pledges were institutionalized within formal and informal international structures. The internet …

From Human Mapping To Machine Embedding: Uncovering Key Legal Drivers And Deterrents Of Isds Filing Frequencies, Sangchul Park

Chicago Journal of International Law

International investment agreements (IIAs), while intended to prop cross-border investment, have faced persistent criticism for potentially undermining the regulatory sovereignty of developing countries. Various mechanisms have been proposed as alternatives to traditional bilateral investment treaty (BIT) models, often with the goal of curbing investor-state dispute settlement (ISDS) filings. While existing research has uncovered the impact of nonlegal factors, such as macroeconomic crises, little has been done to systematically examine how legal provisions in either major model BITs or ISDS reform toolboxes influence ISDS filing patterns. To address this gap, this Article analyzes the interplay between (i) legal texts of 2,148 …

Technology And The Law Of Jus Ante Bellum, Asaf Lubin

Chicago Journal of International Law

The temporal boundaries of the international rules governing military force are myopic. By focusing only on the initiation and conduct of war, the legal dichotomy between Jus Ad Bellum and Jus In Bello fails to address the critical role of peacetime military preparations in shaping future conflicts. Disruptive military technologies, such as artificial intelligence and cyber offensive capabilities, only further underscore this deficiency. During their pre-war development, these technologies embed countless design choices, hardcoding into their software and user interfaces policy rationales, legal interpretations, and value judgments. Once deployed in battle, these choices have the potential to precondition warfighters and …

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: …

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. …

Decentering Property In Fourth Amendment Law, Michael C. Pollack, Matthew J. Tokson

University of Chicago Law Review

For the past several decades, privacy has been the primary conceptual foundation for Fourth Amendment search law. The canonical test for Fourth Amendment searches accordingly looks to whether the government has violated a person’s reasonable expectation of privacy. Yet privacy is no longer the sole determinant of Fourth Amendment protection, as the Supreme Court has recently added a property based test to address cases involving physical intrusions on land or chattel. Further, given the ambiguity of the reasonable expectation of privacy test, a variety of influential judges and scholars have proposed relying primarily, or even exclusively, on property in determining …

Special-Purpose Governments, Conor Clarke, Henry Hansmann

University of Chicago Law Review

When one thinks of government, what comes to mind are familiar generalpurpose entities like states, counties, cities, and townships. But more than half of the ninety thousand governments in the United States are strikingly different: they are “special-purpose” governments that do one thing, such as supply water, fight fire, or pick up the trash. These entities have expanded far more rapidly than any other form of government. Yet they remain understudied, and they present at least two puzzles. First, special-purpose governments are difficult to distinguish from entities that are typically regarded as business organizations—such as consumer cooperatives—and thus underscore the …

The Holistic Theory Of Precedent, Charles F. Capps

University of Chicago Law Review

Standard theories of precedent limit the legal effect of a precedent to cases within the scope of its holding. Yet the widespread use of analogies to precedent in legal reasoning presupposes that precedents have legal implications for cases outside the scope of their holdings. This Article suggests that arguments from analogy to precedent have the currency they do in our legal system because respect for a precedent requires more than treating the precedent’s holding as true: It also requires the judge, for purposes of deciding the case, to update her other beliefs around the assumption that the precedent’s holding is …

Law School Record, Vol. 71, No. 2 (Spring 2025), Law School Record Editors

Law School Record

• Message from the Dean
• Law School Celebrates Ten Cohorts of Rubenstein Scholars
• Criminal and Juvenile Justice Clinic Secures Commutations for Clients
• A Glimpse Into the Rare Book Collection of the D’Angelo Law Library
• With Chevron Deference Ended, What Happens Next?
• Building on Our Strengths
• Three State AG's: One Law School
• Theory in Practice
• Professor Curtis Bradley Discusses his New Book: The Unwritten Constitution of Foreign Affairs
• A Compilation of Other Recently Published Books by Faculty
• Professor Emeritus Bill Landes Reflects on Fifty Years of Teaching
• International Law Programs and Global Perspectives: Two Students Share Their Experiences
• Development News
• Two Alumni …

Central Clearing The U.S. Treasury Market, Yesha Yadav, Joshua Younger

University of Chicago Law Review

The market for Treasury securities represents its own kind of “taproot”—a deep and liquid market for risk-free debt that has anchored an ambitious and creative U.S. dollar economy, while also ensuring the safety and soundness of its financial and monetary system. It has more than quintupled in size over the past. This Essay considers this regulatory response. It focuses on the introduction of mandatory central clearing for most trades in U.S. Treasuries—a proposal seeking to significantly reshape the day-to-day functioning of the Treasury market. Central clearing is a well-established means by which to reduce the risk of loss associated when …

Public Investment As Constitutional Power And Accountability Challenge, Saule T. Omarova, Brian Richardson

University of Chicago Law Review

No abstract provided.

The Constitutional Money Problem, Brian D. Galle, Aziz Z. Huq

University of Chicago Law Review

We consider three aspects of the constitutional status of the U.S. Federal Reserve in this Article. Under the Supreme Court’s contemporary approach to constitutional meaning, there is a surprising degree of doubt about whether key aspects of the Federal Reserve (or the Fed)—its independence from Congress and the President, and even its power to create money—are constitutional. We suggest this is reason to believe the Court’s dominant interpretive approaches generate implausible results, but identify a previously overlooked source of constitutional grounding for the Fed that better supports its authority and structure. We further sketch the potential limits, costs, and benefits …

Regionalism And The Federal Reserve Banks, Kathryn Judge, Lev Menand

University of Chicago Law Review

Regionalism is central to our country’s central banking system. Rather than rely on a single organization to set monetary policy and oversee banks, Congress created a multiplicity of bodies including twelve Federal Reserve Banks (FRBs), each designed to operate in a different part of the country. These FRBs are an early and undertheorized example of how the federal government uses regional bodies to formulate and administer federal policy. When they were first authorized in 1913, their regional character assuaged concerns about centralizing power over the economy. Today, the FRBs continue to play a number of important roles, helping to shape …