Digital Commons Network^™

Parental Rights: Rhetoric Versus Doctrine, Clare Huntington

University of Chicago Law Review

Professor Josh Gupta-Kagan observes that the Restatement of Children and the Law¹ does not transform the law of child abuse and neglect.² As he contends, this is neither a feature nor a bug.³ It is simply the reality of a restatement, which can only nudge, not reform, the law⁴ I agree with Gupta-Kagan that only political will, not the American Law Institute (ALI), can fix the significant problems with the family regulation system. For advocates and scholars—including both of us—who seek structural and doctrinal change, the ALI has principles projects, and there is a broader ecosystem …

Beyond Home And School, Anne C. Dailey, Laura A. Rosenbury

University of Chicago Law Review

The Restatement’s focus on children in society encourages us to move beyond a merely descriptive project toward a new way of envisioning children’s place in law as full persons in the present. In our view, Part 4 does much more than identify the situations where the law does or should treat children like adult decision- makers. Instead, Part 4 illuminates the possibilities for a new law of the child that understands children as developing persons deeply connected to but also distinct from the adults in their lives. We focus on § 18.11––“Minors’ Right to Gain Access to Information and Other …

Nudging Improvements To The Family Regulation System, Josh Gupta-Kagan

University of Chicago Law Review

The Restatement of Children and the Law features a strong endorsement of parents’ rights to the care, custody, and control of their children because parents’ rights are generally good for children. Building on that foundation, the Restatement’s sections on child neglect and abuse law would resolve several jurisdictional splits in favor of greater protections for family integrity, thus protecting more families against the harms that come from state intervention, especially state separation of parents from children.

But a close read of the Restatement shows that it only goes so far. It is not likely to significantly reduce the wide variation …

Protecting Children's Access To A Sound Basic Education In The Age Of Political Polarization, A Comment On Goodwin Liu And Kristine Bowman's Essays On Children's Education In The Restatement, Emily Buss

University of Chicago Law Review

Justice Goodwin Liu and Professor Kristine Bowman have taken two very different approaches in their essays commenting on the Restatement’s¹ coverage of the law governing children’s education. In Some Thoughts on a Developmental Approach to a Sound Basic Education,² Justice Liu focuses near exclusively on the Restatement’s articulation of the core educational standard, the “sound basic education,” and presses for an expanded application of that standard to children from birth through young adulthood.³ In The New Parents’ Rights Movement, Education, and Equality,⁴ Bowman addresses the entire structure of the educational provisions of the Restatement, which straddle …

Adolescents In The Justice System: A Progress Report On The Restatement Of Children And The Law, Richard J. Bonnie

University of Chicago Law Review

Professor Elizabeth Scott, the chief reporter of the American Law Institute’s (ALI) Restatement of Children and the Law,¹ has often observed that the nation’s widespread commitment to juvenile justice reform in the twenty-first century should be grounded in two premises: (1) the laws and practices of the juvenile justice system must be grounded in and guided by evolving knowledge about adolescent development; and (2) youth-serving institutions, including the justice system, must collaborate to erase substantial racial disparities in intervention, discipline, and punishment.² This Symposium will explore the current draft of the Restatement of Children and the Law with …

De Facto Parents, Legal Parents, And Inchoate Rights, Solangel Maldonado

University of Chicago Law Review

Professor Douglas NeJaime’s Essay Parents in Fact¹ com- mends the Restatement of Children and the Law’s² embrace of the de facto parent doctrine.³ He is somewhat critical, however, of the Restatement’s reference to individuals seeking recognition as de facto parents as “third parties” and its reluctance to recognize de facto parents as legal parents.⁴ He is also skeptical of the Restatement’s requirement that an individual seeking recognition as a de facto parent first show that a legal parent consented to and fostered the individual’s creation of a parent-child relationship with the child.⁵ NeJaime’s observations provide …

Comment On Part 4 Essays: Goodwin And Dailey And Rosenbury, Elizabeth S. Scott

University of Chicago Law Review

Professors Michelle Goodwin and Anne Dailey and President Laura Rosenbury have written two compelling essays on Part 4 of the Restatement of Children and the Law,¹ dealing with Children in Society. Goodwin’s essay, She’s So Exceptional: Rape and Incest Exceptions Post-Dobbs,² focuses on § 19.02 of the Restatement, dealing with the right of minors to reproductive health treatments. This Section was approved by the American Law Institute before the Supreme Court decided Dobbs v. Jackson Women’s Health Organization,³ overturning Roe v. Wade.⁴ In her essay, Goodwin explores the harms that will follow if minors’ right of …

Measuring Clarity In Legal Text, Jonathan H. Choi

University of Chicago Law Review

Legal cases often turn on judgments of textual clarity: when the text is unclear, judges allow extrinsic evidence in contract disputes, consult legislative history in statutory interpretation, and more. Despite this, almost no empirical work considers the nature or prevalence of legal clarity. Scholars and judges who study real-world documents to inform the interpretation of legal text primarily treat unclear text as a research problem to be solved with more data rather than a fundamental feature of language.

This Article makes both theoretical and empirical contributions to the legal concept of textual clarity. It first advances a theory of clarity …

Power And Politics In Original Jurisdiction, Zachary D. Clopton

University of Chicago Law Review

The original jurisdiction of the U.S. Supreme Court is a topic of scholarly interest but little practical significance. The original jurisdiction of state supreme courts is exactly the opposite—it is virtually absent from the scholarly literature but of significant practical importance. For example, dozens of cases related to elections, COVID-19 responses, and abortion were filed in the original jurisdiction of state supreme courts in the last few years. Legislatures also recognize the importance of original jurisdiction, as state legislators have proposed dozens of recent bills to change the scope of original jurisdiction.

This Article offers a comprehensive review of the …

The Neoclassical View Of Corporate Fiduciary Duty Law, Zachary J. Gubler

University of Chicago Law Review

Traditionally, corporate fiduciary duties are said to run to the corporation itself. But what does this mean? Something, this Article argues, that is quite different from what both shareholder and stakeholder value maximization proponents think. Specifically, the argument is that corporate fiduciary duties are owed not to any flesh-and-blood stakeholder, including current shareholders, but rather to a hypothetical permanent investor whose holding period is forever. Like any statement of corporate purpose, this “permanent equity maximization norm” is rooted in an underlying model of the corporation. In this case, the underlying model must be one that sees the corporation as a …

Reconstructing Klein, Helen Hershkoff, Fred Smith, Jr.

University of Chicago Law Review

This Article interrogates the conventional understanding of United States v. Klein, a Reconstruction Era decision that concerned Congress’s effort to remove appellate jurisdiction from the Supreme Court in a lawsuit seeking compensation for abandoned property confiscated by the United States during the Civil War. Scholars often celebrate the decision for protecting judicial independence; so, too, they applaud the decision for shielding property rights against arbitrary legislative action and for preserving executive clemency from legislative encroachment. Absent from all contemporary accounts of Klein is its racialized context: The decision allowed an unelected judiciary to disable Congress from blocking the president’s promiscuous …

Searching For Standing: Are Improper Acquisition Or Threatened Misappropriation Of Trade Secrets Cognizable Injuries Sufficient For Article Iii Standing?, Josh J. Leopold

University of Chicago Law Review

Trade secret litigation is on the rise. Meanwhile, modern standing cases have forced courts and commentators to reevaluate what sorts of legal injuries bring factual injuries with them, such that federal courts can adjudicate them as a “case” or “controversy” under Article III of the Constitution.

his Comment studies the intersection of Article III standing and federal trade secret law. It is the first piece to provide a taxonomy of trade secret violations and factual injuries in the shadow of standing doctrine’s demand for an injury-in-fact. This Comment submits a bold yet plausible claim: Article III standing should be in …

Seizure Or Due Process? Section 1983 Enforcement Against Pretrial Detention Caused By Fabricated Evidence, Jorge Pereira

University of Chicago Law Review

Can an individual who was held in pretrial detention but not criminally convicted as a result of fabricated evidence raise a due process claim under 42 U.S.C. § 1983? The answer is unclear. In 2017, the Supreme Court in Manuel v. City of Joliet held that claims for unlawful pretrial detention are governed by the Fourth Amendment. Since then, the Seventh Circuit has asserted that the Fourth Amendment is the only source of redress under § 1983 for wrongful pretrial detention caused by fabricated evidence. By contrast, several circuits have opined that Manuel does not foreclose the possibility that individuals …

Closing A Loophole In Exchange Act Enforcement: A Framework For Assessing The Enforceability Of Delaware Forum Selection Bylaws In The Context Of Derivative § 14(A) Claims, Amanda K. Williams

University of Chicago Law Review

Over the past decade, a growing number of Delaware corporations have adopted forum selection bylaws. These bylaws often require that all derivative claims against a company’s officers or directors be resolved in Delaware state courts. But what happens when a shareholder brings a derivative claim that Delaware courts do not have jurisdiction to adjudicate?

This issue arises when Delaware forum selection bylaws are applied to derivative claims arising under § 14(a) of the Securities and Exchange Act of 1934, because the Exchange Act instructs that only federal courts may resolve such claims. In this context, Delaware corporations may seek to …

Undefined “Ground”: Form Or Substance In Pto Estoppel, Tanvi Antoo

University of Chicago Law Review

This Comment seeks to resolve a dispute among district courts on how to interpret the term “ground” in 35 U.S.C. § 315(e)(2), the America Invents Act’s (AIA) estoppel provision. The question of whether a party that asserts a printed publication or patent in an inter partes review (IPR) proceeding is estopped from asserting real- world prior art, such as a device, in a later civil action under § 315(e)(2) has resulted in a district court split. Some courts have construed the estoppel provision narrowly, reasoning that because a physical object like a device is not something that could have been …

Decarcerating Immigrant Detainee Medical Care: A Path To Doctrinal Redemption, Kieran Dosanjh

University of Chicago Law Review

Government detention is a quid pro quo: the government may deprive persons of their physical liberty, but in exchange, it owes them a level of care. The critical question is, how much care does the Constitution require the government to provide? In a series of federal judicial decisions (collectively, the detainee medical care doctrine), courts have found that the Constitution requires different standards of care for different classes of government detainees. These courts’ standard of care for immigrant detainees is erroneous. Modern U.S. immigration detention’s descriptive resemblance to criminal confinement has prompted courts to (wrongly) find that immigrant detainees are …

Achieving Appropriate Relief For Religious Freedom Violations In Prisons After Tanzin, Bethany Ao

University of Chicago Law Review

In the 1990s, Congress passed the Prisoner Litigation Reform Act (PLRA) to decrease frivolous prisoner litigation. One PLRA provision that was aimed at accomplishing that goal is § 1997e(e), which states that no prisoner can bring a federal civil action for mental or emotional injury without a showing of an accompanying physical injury. This provision has created a circuit split over whether prisoners who suffer a violation of their Free Exercise rights under the First Amendment can re- cover compensatory damages. If the split is left unresolved, it will lead to a troubling lack of uniformity in the law for …

New Life For The Unlawful Inclosures Act: Immunizing Corner-Crossers From State Trespass Actionew Life For The Unlawful Inclosures Act: Immunizing Corner-Crossers From State Trespass Actions, Burke Snowden

University of Chicago Law Review

In many parts of the rural western United States, the land is divided into rectangular parcels that alternate between private and public ownership, so as to resemble a checkerboard. Some of those public parcels are “corner-locked,” meaning that they meet other public parcels only at a corner. It is technically not possible to access corner-locked parcels without at least briefly hovering over a private parcel, which constitutes trespass on the private parcel under the ad coelum doctrine.

Since the COVID-19 pandemic has increased demand for outdoor tourism, more people have been endeavoring to reach the public parcels by “corner-crossing” from …

When Federal Courts Remediate Intrastate Redistricting Stalemates: Parsing What Is Owed Deference When State Policies Conflict, Erin Yonchak

University of Chicago Law Review

When partisan politics completely frustrate the efforts of a state to redistrict after a census, federal district courts are tasked with the “unwelcome obligation” of imposing court-ordered electoral maps that meet the federal constitutional one-per- son, one-vote requirement. This Comment terms these cases “intrastate redistricting stalemates,” novelly distinguishing them from other Equal Protection one-person, one-vote cases. In the wake of Moore v. Harper, federal courts may be remediating more intrastate redistricting stalemates than ever if state courts are stripped of their power to impose remedial congressional maps as outside the scope of “ordinary judicial review” permitted under the Elections Clause. …

Vagueness And Federal-State Relations, Joel S. Johnson

University of Chicago Law Review

This Article aims to clarify the content of the void-for-vagueness doctrine and defend its historical pedigree by drawing attention to a fundamental aspect of the Supreme Court’s vagueness decisions—that vagueness analysis significantly depends on whether the law at issue is a federal or state law. That simple distinction has considerable explanatory power. It reveals that the doctrine emerged in the late nineteenth century in response to two simultaneous changes in the legal landscape— first, the availability of Supreme Court due process review of state penal statutes under the Fourteenth Amendment, and second, a significant shift in how state courts construed …

Racial Time, Yuvraj Joshi

University of Chicago Law Review

Racial time describes how inequality shapes people’s experiences and perceptions of time. This Article reviews the multidisciplinary literature on racial time and then demonstrates how Black activists have made claims about time that challenge prevailing norms. While white majorities often view racial justice measures as both too late and too soon, too fast and too long-lasting, Black activists remind us that justice measures are never “well timed” within hegemonic understandings of time. This Article ultimately argues that U.S. law embodies dominant interests in time. By inscribing dominant experiences and expectations of time into law, the Supreme Court enforces unrealistic timelines …

Politics By Other Means: The Jurisprudence Of “Common Good Constitutionalism”, Brian Leiter

University of Chicago Law Review

Professor Adrian Vermeule proposes an alternative to what he sees as the two dominant schools of constitutional interpretation in the United States: originalism and what he usually calls “progressivism”¹ (by which he means what others call “living constitutionalism”² ). Against these approaches, he advocates for what Freudians might call a “return of the repressed”³: a recognition of the extent to which the “classical” natural law tradition’s concern with the “common good” has continued to animate our public law—explicitly for much of our history, he says, and implicitly more recently.

On Vermeule’s proposed alternative, courts (and other …

Droughts Of Compassion: The Enduring Problem With Compassionate Release And How The Sentencing Commission Can Address It, Nathaniel Berry

University of Chicago Law Review

Compassionate release, guided by 18 U.S.C. § 3582(c)(1)(A), allows a district court to reduce a previously imposed criminal sentence if “extraordinary and compelling reasons” warrant a reduction. Congress delegated the task of describing what constitutes an extraordinary and compelling reason to the U.S. Sentencing Commission. Following the passage of the First Step Act of 2018, most circuit courts held the Commission’s policy statement describing extraordinary and compelling reasons inapplicable, and that until the Commission updated its policy statement, courts enjoyed the discretion to determine what circumstances justify compassionate release.

e. Many have celebrated this newfound discretion and its potential to …

The Rise Of Nonbinding International Agreements: An Empirical, Comparative, And Normative Analysis, Curtis A. Bradley, Jack L. Goldsmith, Oona A. Hathaway

University of Chicago Law Review

The treaty process specified in Article II of the Constitution has been dying a slow death for decades, replaced by various forms of “executive agreements.” What is only beginning to be appreciated is the extent to which both treaties and executive agreements are increasingly being overshadowed by another form of international cooperation: nonbinding international agreements. Not only have nonbinding agreements become more prevalent, but many of the most consequential (and often controversial) U.S. international agreements in recent years have been concluded in whole or in significant part as nonbinding agreements. Despite their prevalence and importance, nonbinding agreements have not traditionally …

Insurance Coverage And Induced Infringement: A Threat To Hatch-Waxman’S Skinny Labeling Pathway?, Maya Lorey

University of Chicago Law Review

In the fall of 2020, Amarin Corporation—a brand-name drug company— brought an unprecedented claim in federal court. Instead of just suing a generic manufacturer for inducing infringement of its method patent, as is typical in litigation over skinny label generic drugs, Amarin also added a health insurance company as a defendant. In its complaint, Amarin alleged that Health Net induced infringement under 35 U.S.C. § 271(b) of the Patent Act by charging a lower co-pay for the generic, skinny label version of its brand-name drug. Industry commentators agreed that a finding of liability for Health Net would be a blow …

Unshackling Cities, Felipe Ford Cole

University of Chicago Law Review

Scholars have long demonstrated that cities are constrained by states and the federal government in the exercise of their power. While important, the emphasis on these “vertical” constraints on cities does not account for the “horizontal” constraints on city power from private actors. This Article suggests that the emphasis on vertical constraints on city power is due to a misunderstanding of the history of local government law that describes its sole function as the vertical distribution of power between cities and different levels of government. I revise the history of Dillon’s Rule, the doctrinal cornerstone of local government law’s vertical …

Stating The Obvious: Departmental Policies As Clearly Established Law, Eliana Fleischer

University of Chicago Law Review

Qualified immunity is a judge-made doctrine originally created to shield officers from liability only when they could not have been on notice that their actions were wrongful. In the four decades since the Supreme Court first articulated this justification for qualified immunity, the doctrine has become unmoored from its roots and has expanded to protect officers even in the face of clear evidence that the officers should have known better.

The test for qualified immunity states that officers are immune from liability in the absence of clearly established law that previously condemned their conduct, but the Supreme Court has not …

The Fair Housing Act After Inclusive Communities: Why One-Time Land-Use Decisions Can Still Establish A Disparate Impact, Kate Gehling

University of Chicago Law Review

The Fair Housing Act (FHA) is a civil rights statute that prohibits housing discrimination against several protected classes. One theory of liability under the FHA is disparate impact, in which a plaintiff alleges that the defendant’s policy or practice, although facially neutral, nevertheless has discriminatory effects because it disproportionately negatively affects a protected class. In its 2015 opinion, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., the Supreme Court affirmed that the FHA includes disparate impact liability but also potentially limited its applicability—the Court distinguished between a defendant’s policy and a one-time decision by a defendant, …

Covenant Control: The Case For Treating Uptier Transactions As A Form Of Corporate Control, Ryan Schloessmann

University of Chicago Law Review

In recent years, uptier transactions have emerged as a novel way for distressed companies to restructure their debt obligations, resulting in unforeseen and inequitable outcomes for investors in corporate debt. Uptier transactions depend on provisions in credit agreements that permit debtholders with a majority stake in a class of debt to make decisions on behalf of all debtholders. Distressed companies take advantage of these provisions by colluding with a majority of debtholders to shift economic value from the remaining debtholders to themselves. As this Comment demonstrates, these transactions are likely to be value destructive and present an issue for capital …

The Fourth Amendment Without Police, Shawn E. Fields

University of Chicago Law Review

What role will the Fourth Amendment play in a world without police? As academics, activists, and lawmakers explore alternatives to traditional law enforcement, it bears asking whether the amendment primarily tasked with regulating police investigations would also regulate postpolice public safety agencies. Surprisingly, the answer is often no. Courts are reluctant to recognize protections from government searches or seizures outside criminal investigations, and they are even more reluctant to require probable cause or a warrant for such conduct. Thus, by removing most public safety functions outside the criminal sphere, abolitionists also move intrusive government conduct outside these traditional strictures and …