Digital Commons Network^™

How Racial Politics Led Directly To The Enactment Of The Adoption And Safe Families Act Of 1997 - The Worst Law Affecting Families Ever Enacted By Congress, Martin Guggenheim

Faculty Articles

This Article is part of a celebration of the magnificent work of Dorothy Roberts who, more than any other scholar, has brilliantly demonstrated both the highly destructive qualities of the United States’ family regulation system and its relationship to the country’s legacy of slavery. The most vicious feature of the current family regulation system is the almost routine destruction of families resulting from an overly zealous enforcement of the Adoption and Safe Families Act of 1997, through which the federal government pays states to permanently banish parents from their children and legally sever the parent-child relationship when children have remained …

Lech's Mess With The Tenth Circuit: Why Governmental Entities Are Not Exempt From Paying Just Compensation When They Destroy Property Pursuant To Their Police Powers, Emilio R. Longoria

Faculty Articles

On June 29, 2020, the Supreme Court denied certiorari in Lech v. Jackson, a Tenth Circuit inverse condemnation case, which held that governmental entities are categorically exempt from paying just compensation when they destroy private property pursuant to their police powers. This denial of certiorari cements a highly controversial circuit court holding into our takings jurisprudence the effects of which will be serious and far reaching. This article dissects the Tenth Circuit's opinion in Lech and explains how and why this holding should be revisited. If it is not, we risk losing the protection that the Fifth Amendment's Just Compensation …

Blockchain Emergencies & Open-Source Software Governance: Is "Rough Consensus" A Suicide Pact?, Blockchain Emergencies & Open-Source Software Governance: Is "Rough Consensus" A Suicide Pact?, Angela Walch

Faculty Articles

I am concerned with, "How is Bitcoin run? Who gets to make decisions about Bitcoin? How is Ethereum run? Who gets to make decisions about Ethereum?" I am concerned with the governance of these protocols at the base level. Why does this matter? It matters because these protocols at the base are supporting the whole DeFi structure. All the complexities and different complex financial products that are being built there, they sit on top of these infrastructural base level protocols. I think we need to be aware of how these things work and the systemic risks that they can pose …

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

Meaningless Guarantees: Comment On Mitchell E. Mccloy's “Blind Justice: Virginia's Jury Sentencing Scheme And Impermissible Burdens On A Defendant's Right To A Jury Trial", Alexandra L. Klein

Faculty Articles

Despite the important role that jurors play in the American criminal justice system, jurors are often deprived of critical information that might help them make sense of the law their oaths require them to follow. Such information with regard to sentencing might include the unavailability of parole, geriatric release, sentencing guidelines, or other information that is relevant to determining a defendant's penalty. Withholding information from juries, particularly in sentencing, risks unjust and inequitable sentences. Keeping jurors in the dark perpetuates injustices and undermines public confidence and trust in the justice system.

Mitch McCloy's excellent Note provides a compelling illustration of …

The World Health Organization: A Weak Defender Against Pandemics, Chenglin Liu

Faculty Articles

Why did the World Health Organization (WHO) not act in a timely fashion to declare the coronavirus outbreak a Public Health Emergency of International Concern (PHEIC)? If it had done so, could the United States have heeded the warning and controlled the spread of the virus? Is the WHO's delay a factual cause of the calamities that the United States has suffered? This article addresses these questions. Part I examines the development of the WHO and its governance mechanism, major powers and limits, and past achievements and failures. It also explores how the WHO responded to the COVID-19 pandemic and …

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

Can Prosecutors End Mass Incarceration?, Rachel E. Barkow

Faculty Articles

Emily Bazelon argues in her excellent book, Charged, that “[t]he movement to elect a new kind of prosecutor is the most promising means of reform . . . on the political landscape.” While I share Bazelon’s enthusiasm for prosecutors committed to using empirical evidence to guide their policymaking, instead of reflexively supporting the most punitive policies because those measures traditionally played well with voters, I am less optimistic this new breed of so-called progressive prosecutors will make a significant dent in mass incarceration. In this review, I explain why. Bazelon is right that prosecutors have enormous discretion to decide how …

In Tribute To My Friend, Justice Ruth Bader Ginsburg, Aka “Notorious Rbg”, Harry T. Edwards

Faculty Articles

Tribute by Hon. Harry T. Edwards in memoriam of Justice Ruth Bader Ginsburg.

Faster Fashion: The Piracy Paradox And Its Perils, Kal Raustiala, Christopher J. Sprigman

Faculty Articles

Fashion today is faster than ever and knockoffs more common, but fashion copying is nothing new. For over a century the fashion industry has bemoaned the ubiquity and ease of copying. Writing in 1916, one industry observer explained the problem: Despite “the expense of thousands of dollars to create a design…copies appeared within forty-eight hours. The only recourse was multiplicity and rapidity of design at such frequent intervals that competitors would lag behind.” Copyists could not be defeated in the marketplace or in court. They could only be outraced. The story is unchanged today. Seeking to explain how the fashion …

Proximate Cause Untangled, Mark A. Geistfeld

Faculty Articles

The many facets of tort liability are filtered through the requirement of proximate cause, which has made the element confusing and the source of considerable controversy. Is proximate cause properly determined by the directness test or the foreseeability test, each of which has been both widely adopted and roundly criticized? Is there any defensible conception of a direct cause? Is foreseeability an adequately determinate method for limiting liability? If so, is foreseeability relevant to duty, to proximate cause, or to both elements? Disagreement about all these matters stems from the failure to fully untangle the role of proximate cause across …

Federalism And Federal Rights Minimalism: Overlooked Effects On State Court Education Litigation In Wisconsin, Helen Hershkoff, Nathan D. Yaffe

Faculty Articles

In 1973, the U.S. Supreme Court in San Antonio Independent School District v. Rodriguez held that education is not a fundamental right under the Fourteenth Amendment and that the Equal Protection Clause did not bar the state of Texas from using a system of school funding that produced radically unequal educational opportunities for students in low-wealth communities relative to those in more affluent districts. Federal defeat is said to have incentivized advocates seeking to improve and equalize public schooling to turn in their litigation efforts from federal court to state courts and from the Federal Constitution to state constitutions, which …

Birth Rights And Birth Wrongs Through A Common Law Lens: Why The No Liability Regime Is Likely To Endure, Richard A. Epstein

Faculty Articles

A saga in four parts: Dov Fox’s recent book, the aptly named Birth Rights and Wrongs, is, as its title suggests, a study of the stark conflicts that arise in the highly contested area of reproductive rights. Fox makes the powerful case that the legal protection of reproductive rights, in all their protean forms, is systematically under-protected relative to two key benchmarks: the standards of ordinary decency, and social expectations. In my view, he has an acute awareness of these failures. But his greatest strength is also his greatest weakness, as he systematically ignores the great successes wrought through the …

Assessing The Rights To Water And Sanitation: Between Institutionalization And Radicalization, Margaret L. Satterthwaite

Faculty Articles

In the past two decades, the human rights to water and sanitation have emerged, matured, and taken their place at the center of discussions about rights, sustainable development, global health, and climate change. While there was early hope that these rights—especially the right to water—would provide a strong basis for rejecting the commodification of essential services spurred by neoliberalism, as they were institutionalized, the rights to water and sanitation have in many places been tamed, if not neutralized. However, while the human rights framework concerning water and sanitation has accommodated powerful economic imperatives, it still holds promise as a vehicle …

Professor, Please Help Me Pass The Bar Exam: #Nextgenbar2026, Melissa Bezanson Shultz

Faculty Articles

Beginning in 2026, law school graduates will be sitting for a bar exam-the so-called NexGen bar exam-that is both substantively and structurally different from the one administered across the country since most attorneys can remember-the so-called "existing bar exam" – and since the founding of the National Conference of Bar Examiner (NCBE), in 1931.

Unfortunately, the legal academy is not known as agile; to the contrary, it is often viewed as an institution steeped in tradition, rites of passage, and deliberation. While its reliability and measured approach have certainly contributed to its success and stability since the founding of the …

The Aoc In The Age Of Covid - Pandemic Preparedness Planning In The Federal Courts, Zoe Niesel

Faculty Articles

The 2020 COVID-19 pandemic created a crisis for American society—and the federal courts were not exempt. Court facilities came to a grinding halt, cases were postponed, and judiciary employees adopted work-from-home practices. Having court operations impacted by a pandemic was not a new phenomenon, but the size, scope, and technological lift of the COVID-19 pandemic was certainly unique.

Against this background, this Article examines the history and future of pandemic preparedness planning in the federal court system and seeks to capture some of the lessons learned from initial federal court transitions to pandemic operations in 2020. The Article begins by …

Abolishing The Communications Decency Act Might Sanitize "Political Biased," "Digitally Polluted," And "Dangerously Toxic" Social Media? - Judicial And Statistical Guidance From Federal-Preemption, Safe-Harbor And Rights-Preservation Decisions, Willy E. Rice

Faculty Articles

Sitting and former U.S. Presidents, as well as members of the general public, financial, political and educational institutions, use social media. Yet, an overwhelming majority of users, content creators, parents, "conservatives," "progressives," Democrats, and Republicans distrust social media owners. Some critics allege that owners "digitally pollute" platforms by encouraging users to post "corrosive, dangerous, toxic, and illegal content." Other critics assert that service providers' purportedly objective content moderation algorithms are biased-discriminating irrationally on the basis of users' political association, ideology, socioeconomic status, gender, and ethnicity. Republicans and Democrats have crafted roughly twenty bills on this matter. In theory, the enacted …

Model Rule 8.4(G) And The Profession's Core Values Problem, Michael Ariens

Faculty Articles

Model Rule 8.4(g) declares it misconduct for a lawyer to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." The American Bar Association (ABA) adopted the rule in 2016, in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA's statement of its mission.

A …

Police Use Of Force Laws In Texas, Gerald S. Reamey

Faculty Articles

At the heart of calls for police reform lie use of force laws. While policing agencies adopt and enforce their own policies regarding when and how force may be used by officers of those agencies, state laws rarely define the uniform limits under which officers operate. Policing in the United States is highly fractured; of the hundreds of law enforcement agencies operating, most are autonomous, and they determine the policies under which they operate, including those for use of force. They also decide whether and how to investigate violations of internal policies, as well as the punishment that will be …

“Rule Of Inclusion" Confusion, Dora Klein

Faculty Articles

Some rules of evidence are complex. The federal rules governing the admissibility of hearsay statements,' for example, include at least forty different provisions. Numerous judges and scholars have commented on the complexity of the hearsay rules. Not all rules of evidence are complex, however. For example, the federal rules governing the admissibility of character evidence are relatively straightforward: evidence that is offered for the purpose of proving character is inadmissible, subject to a few well-defined exceptions. Despite this relative straightforwardness, many of the federal circuit courts of appeals have overlaid the rules regarding character evidence particularly Rule 404(b)--with unnecessary interpretive …

The Beginning Of The End: Abolishing Capital Punishment In Virginia, Alexandra L. Klein

Faculty Articles

When thinking about the history of capital punishment in the United States, I suspect that the average person is likely to identify Texas as the state that has played the most significant role in the death penalty. The state of Texas has killed more than five hundred people in executions since the Supreme Court approved of states' modified capital punishment schemes in 1976. By contrast, Virginia has executed 113 people since 1976.

But Virginia has played a significant role in the history of capital punishment. After all, the first recorded execution in Colonial America took place in 1608 at Jamestown, …

The Citation Of Unpublished Cases In The Wake Of Covid-19, Michael L. Smith

Faculty Articles

California's Rules of Court prohibit the citation of unpublished state court opinions. Courts and litigants, however, may still cite unpublished federal opinions and rulings and unpublished opinions from other states' courts. This may result in problems, such as limiting courts' and parties' authorities to a skewed sample set, and the covert importation of inapplicable, stricter federal court pleading standards in state court cases. COVID-19 was a stress-test that brought the problems with California's citation rules into focus. The pandemic led to a flood of claims for pandemic-related business interruptions by insured business owners against their insurance companies. While state courts …

If You Don't Care, Who Will?, Chad J. Pomeroy

Faculty Articles

As a property law professor, I have lately found myself thinking a lot about privacy rights. Initially, the two topics (property and privacy) perhaps do not seem closely related, but I think they are—or, at least, I think the tie between the two is becoming much more pronounced and important, as modern life becomes ever more techno-centric. specifically, I think that privacy rights are, at this point, essentially an outgrowth of property rights. That is, one's right to privacy is dependent on what we traditionally view as one's property rights. At least, I think this is the current state of …

Seeing Those We’Ve Rendered Invisible – A Clarion Call For Criminal Justice, Stephen E. Henderson, Jordan Thomas

Faculty Articles

Jonathan Rapping, Gideon’s Promise: A Public Defender Movement to Transform Criminal Justice (Beacon Press 2020) In this brief review, we situate Rapping’s work among those demanding criminal justice reform, praise an unrelated bonus, and propose a friendly amendment to nudge his vision over the finish line of justice. It will not be enough to provide newly enabled and supported public defenders to those our systems consider indigent. We ought to provide them to us all.

Uncertain Risk, Science Experiments, And The Courts, Eric E. Johnson

Faculty Articles

Legal scholarship has looked at problems of uncertainty--"unknown unknowns"--in a variety of contexts, from financial regulation to national security. This Article, however, focuses on uncertain risk in what may be its most challenging arena: experimental scientific research. Notably, this context imposes a key conceptual hurdle. In other arenas, law and regulation can work to lessen uncertainty. But with science-experiment risk, uncertainty cannot be sidestepped, since going beyond the current state of human knowledge is the whole point of experimental research. Moreover, science-experiment risk involves the highest possible stakes, since future experiments could plausibly lead to global catastrophe, even human extinction. …

"The" Rule: Modernizing The Potent, But Overlooked, Rule Of Witness Sequestration, Daniel J. Capra, Liesa L. Richter

Faculty Articles

Starting with its illustration in the Apocrypha and continuing into the modern day both in courtrooms and in ubiquitous criminal procedurals, one evidence rule has proven so powerful that it has become known as "THE" Rule of Evidence. The rule of witness sequestrationdemands that multiple witnesses to the same events be examined separately from one another to prevent them from, consciously or subconsciously, tailoring their testimony to ensure that it remains consistent. Witness sequestration is conceptually simplistic and famously mighty. Yet, this bedrock protection against inaccurate trial testimony is imperiled by conflicting interpretations of Federal Rule of Evidence 615, the …

May The Odds Be Ever In Your Favor: How The Tax Cuts And Jobs Act Fortified The Great Wealth Divide, Phyllis C. Taite

Faculty Articles

No abstract provided.

Four Futures For U.S. Pandemic Policy, Daniel J. Hemel

Faculty Articles

The COVID-19 pandemic is probably not the last time that a new and deadly infectious disease will sweep the planet. What can the United States do to improve its chances of averting large-scale loss of life the next time? This essay—prepared for The University of Chicago Legal Forum’s symposium issue on “Law for the Next Pandemic”—envisions four “futures” for the United States’ pandemic response and considers the advantages and drawbacks of each. One approach, the Mass Surveillance strategy, relies on widespread population monitoring, rigorous contact tracing, and enforced isolation of the infected. That strategy has enabled several East and Southeast …

Keeping The Compact Clause Irrelevant, Roderick M. Hills Jr.

Faculty Articles

This Essay is a lightly edited version of Professor Hills’ remarks at the Federalist Society’s Panel, “The Compact Clause,” held on March 14, 2020 and in dialogue with Eugene B. Meyer and Professors Jonathan H. Adler and Michael S. Greve. I want to say a few words, some sounding in law and some sounding in policy, about why I think the Compact Clause should continue to be, as it has always been, ignored by all relevant constitutional actors. That is not to say we should not acknowledge the Compact Clause is in the Constitution, but we should treat that Clause …

The Essential Role Of Empirical Analysis In Developing Law And Economics Theory, Jennifer H. Arlen

Faculty Articles

Throughout its history, the development of theoretical law and economics has depended on, and been shaped by, empirical analyses of law. Theoretical law and economics scholars cannot draw persuasive positive or normative conclusions about legal rules unless the models employed accurately capture the factors affecting people’s responses to legal rules. Models thus must accurately describe decision-makers’ decision-making environment, available choices, and decision-making processes. Empirical analysis plays a vital role in theoretical scholars’ ability to develop such models. Empirical analyses can improve theoretical models by testing the predictions of models; refuted theoretical predictions regularly spur lead theoreticians to revise and improve …