Law Commons^™

Corporate Creditors Protection Rights Worldwide: Towards A Convergence Of Strategies, Samuel Biresaw, Mia Rahim, Michael Adams

Chicago Journal of International Law

Companies rely on creditors for funding to operate, making it crucial to have legislative and procedural frameworks that protect the interests of these creditors. This article engages in a comparative analysis of corporate creditors’ protection rights on a global scale, emphasizing the Ethiopian case. The study contends that while countries may adopt distinct approaches to safeguard corporate creditors, and variations may exist in the strictness of rules across different strategies, nations have a universal commitment to implement strategies to ensure adequate protection for creditors’ interests. Notably, the study underlines that, amid the surge in globalization and cross-border commerce, strategies for …

The New Gender Perspective: The Dawn Of Intersectional Autonomy In Women’S Rights, Rosa Celorio

Chicago Journal of International Law

International human rights jurisprudence has increasingly mandated state action which integrates a gender perspective, taking into consideration the discriminatory norms, harmful social practices, stereotypes, and violence that women have and still suffer. A range of supranational bodies have issued case decisions promoting the adoption of gender-sensitive legislation, policies, programs, and the establishment of administration of justice systems well-trained and equipped to address women’s rights violations.

This article discusses how the conception of this gender perspective has evolved over time and is now centered on the pursuit of autonomy for women. Autonomy is presented as a key ingredient to ensure due …

Theorizing Constitutional Change In East Asia, John Gillespie

Chicago Journal of International Law

How do constitutions change in response to social problems? This Article explores why constitutions in three East Asian countries, namely Japan, Indonesia, and China, changed rapidly during times of social crisis and then incrementally evolved during periods of stability. It looks for explanations in historical institutionalism, a novel theory developed to understand the factors that give rise to the creation, persistence, and change of political institutions, such as constitutions. Constitutional change in these East Asian countries is explored by examining constitutionally defined eminent domain powers that enable governments to compulsorily acquire land in the public interest. The Article aims to …

Navigating State Interventions: The Pivotal Role Of Ptas In Modern Trade Conflicts, Andrew D. Mitchell

Chicago Journal of International Law

In international trade, State interventions often challenge the efficacy of traditional antidumping and countervailing measures under the World Trade Organization (WTO) framework. This article examines the limitations of the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing Measures (SCM Agreement) in addressing State interventions, such as export taxes, export bans on raw materials, and non-commercial activities by State-owned enterprises. These interventions pose significant legal and economic challenges in global trade. The article advocates for the potential of preferential trade agreements (PTAs) as practical tools to address these challenges, surpassing traditional legal pathways under the Anti-Dumping Agreement. An analysis of …

Kids, No Phones At The Dinner Table: Analyzing The People’S Republic Of China’S Proposed “Minor Mode” Regulation And An International Right To The Internet, Tucker Craven

Chicago Journal of International Law

Around the world, governments are contemplating taking steps to reverse or mitigate the negative health and developmental effects that come from the increasing amount of time children are spending online and using screens. In 2023, the People’s Republic of China (PRC) released a draft regulation restricting minors’ screen time and internet use, which imposes a significant burden not only on children, but also on technology and internet companies that wish to continue operating in the country. However, the PRC’s proposed minor mode regulation is neither an extreme departure from the types of restrictions neighboring countries in East Asia have imposed …

Subsidiarity And The Best Interests Of The Child, Lindsay Saligman

Chicago Journal of International Law

In the context of adoption, subsidiarity is the principle that children should remain with their birth families whenever possible, and whenever not possible, that in-country placements should take precedence over intercountry adoption. This Comment looks at the specific meaning of subsidiarity in the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. It highlights that the convention does not require intercountry adoption be a last resort, but rather that “due consideration” be given to placements “within the State of origin.” Then, the Comment looks at the domestic law of India, Colombia, and South Korea, three of …

Investor State Dispute Settlement And Net Zero Initiatives: Case Study Of Germany’S Coal Exit Auctions, Raam Tambe

Chicago Journal of International Law

This Comment provides a comprehensive legal analysis of the potential investor-state disputes arising from Germany’s groundbreaking Coal Exit Act, which utilizes reverse auctions to phase out coal-fired power plants. The study investigates potential breaches of the Energy Charter Treaty (ECT), focusing on Article 10(1), the fair and equitable treatment clause, and Article 13(1), the expropriation clause. The reverse auction mechanism, when examined under ECT provisions, could be perceived as both a breach of fair and equitable treatment and an unlawful, indirect expropriation, substantially depriving investors of the value of their investments. The analysis also delves into Germany’s possible defenses to …

The Strange Career Of Antisubordination, Justin Driver

University of Chicago Law Review

Constitutional scholars have long construed the Equal Protection Clause as containing two dueling visions: anticlassification and antisubordination. Scholars advancing the first view contend that the Clause prohibits the government from racially classifying people. But scholars promoting the second view argue that racial classifications are permissible—provided that the government does not engage in racial subjugation. On no issue have these competing perspectives clashed more intensely than affirmative action. Where the anticlassification view deems those policies unconstitutional for exhibiting race consciousness, the antisubordination view finds them permissible because they do not racially subjugate anyone. Conventional antisubordination scholars portray the concept’s support for …

Authoritarian Privacy, Mark Jia

University of Chicago Law Review

Privacy laws are traditionally associated with democracy. Yet autocracies increasingly have them. Why do governments that repress their citizens also protect their privacy? This Article answers this question through a study of China. China is a leading autocracy and the architect of a massive surveillance state. But China is also a major player in data protection, having enacted and enforced a number of laws on information privacy. To explain how this came to be, the Article first discusses several top-down objectives often said to motivate China’s privacy laws: advancing its digital economy, expanding its global influence, and protecting its national …

Re-Placing Property, Jessica A. Shoemaker

University of Chicago Law Review

This Article analyzes the complex relationship between property and placemaking. Our most basic property and land tenure choices—including the design of the fee simple itself—shape people-place relations in powerful ways. By unearthing this important relationship between property and placemaking, this Article also reveals how pervasive—but unorganized—claims about place and place attachment already are across a range of modern land conflicts. Because property theory has not been fully transparent about many of these placemaking effects, our property choices often result in outcomes that are unequal, inconsistent, and opaque, prioritizing some existing place relations while ignoring or rejecting others. By building a …

“Federalisms” And Union: The Interbellum Constitution, Annette Gordon-Reed

University of Chicago Law Review

In her latest book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms,¹ Professor Alison LaCroix suggests that the period between 1815 and 1861 in the United States has too often been treated as “the flyover country of constitutional history.”² What was happening on the constitutional front during those years, sandwiched between what is often seen as the true end of the American Revolutionary era—the War of 1812, when the United States fought its last battles with its former colonial overseer, Great Britain³—and the transformative days of the U.S. Civil War when the …

Law School Record, Vol. 70, No. 2 (Spring 2024), Law School Record Editors

Law School Record

• Message from the Dean
• Geoffrey Stone Marks a Half Century Teaching
• Fostering Free Expression
• Modernizing Federal Regulatory Review
• Q&A with Mary Smith, ’91
• The Deans Collection
• Clinic Helps Effectuate $50M Affordable Housing Development
• Around the Law School
• Faculty News : Recent Faculty Books
• Recent Books by Alumni
• Development News
• In Memoriam

The Restatement Of Law On Juveniles’ Adjudicative Competence And Rights In Interrogation: Evidence Of Progress, Thomas Grisso

University of Chicago Law Review

Part 3 of the Restatement of Children and the Law, ¹ “Children in the Justice System,” reflects recent dramatic reform in juvenile law and practice.² The reform recognizes that kids are different, requiring special attention to protecting due process when the justice system must make decisions in delinquency cases.³ The Restatement’s analyses use neuroscientific and psychosocial developmental research that has improved our under- standing of children’s and adolescents’ immature decision-making capacities and psychosocial vulnerability compared to adults.⁴ This developmental perspective has led to extensive reform of laws and practices that seek to better protect juveniles’ due process …

Advancing Racial Justice Through The Restatement Of Children And The Law: The Challenge, The Intent, And The Opportunity, Kristin Henning

University of Chicago Law Review

No abstract provided.

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 …

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 …

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 …

Parents In Fact, Douglas Nejaime

University of Chicago Law Review

The Restatement of Children and the Law, protects a child’s relationship with a T“de facto parent”—a person who has “established a bonded and dependent relationship with the child that is parental in nature.” De facto parent doctrines are part of a broader category of functional parent doctrines that extend parental rights to an individual who has developed a parent-child relationship and acted as a parent to the child. Application of the de facto parent doctrine depends on a conclusion that the person formed a parental relationship, and yet debate remains over whether the person is a parent or merely a …

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 …

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 …

She's So Exceptional: Rape And Incest Exceptions Post-Dobbs, Michele Goodwin

University of Chicago Law Review

No abstract provided.

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 …

The New Parents' Rights Movement, Education, And Equality, Kristine L. Bowman

University of Chicago Law Review

No abstract provided.

Some Thoughts On A Developmental Approach To A Sound Basic Education, Goodwin Liu

University of Chicago Law Review

No abstract provided.

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 …

The Illusion Of Public Space: Enforcement Of Anti-Camping Ordinances Against Individuals Experiencing Homelessness, Peer Marie Oppenheimer

University of Chicago Legal Forum

In response to the growing homelessness problem, many state and local governments have developed anti-camping ordinances that criminalize the act of sleeping on public property. Anti-camping laws can devastate individuals experiencing homelessness, especially when alternative resources, such as shelters, are not easily accessible. This Comment addresses the extent to which municipalities may enforce anti-camping ordinances against individuals experiencing homelessness who have no alternative to sleeping in public without violating the Eighth Amendment. As municipal regulation and judicial interpretation narrow the scope of permissible use of publicly owned areas, this raises the question of to what extent, and to whom, public …

Knock And Talks: Faithfully Applying Social Norms To Prevent Unconstitutional Police Intrusion Upon The Home, Alexander Newman

University of Chicago Legal Forum

A “knock and talk” is a common police practice involving an officer approaching a home and knocking on the front door to speak with a resident. The knock and talk is a long-recognized exception to the Fourth Amendment’s warrant requirement, making it a powerful police tool to access constitutionally protected areas of the home. But courts have struggled to define the limits of a knock and talk. For example, when police officers knock and receive no answer, can they remain standing at the door, or even roam to other parts of the home?

The Supreme Court grounds the practice in …

Defunding Cities: Reconsidering The Fiscal Sanctioning Measures Of State Punitive Preemption Statutes, Eliza Martin

University of Chicago Legal Forum

In an effort to deter and punish cities for passing ordinances that conflict with state priorities, states are utilizing a new form of legislative power: punitive preemption. It is generally considered a legitimate use of state power to utilize statutes to preempt local measures and ordinances deemed inconsistent with state policy. State legislatures, however, are attaching punitive mechanisms to preemption legislation that, in the event of local noncompliance, create criminal and civil liability for local officials, provide removal mechanisms for elected officials, and allow for the fiscal sanctioning of local governments.

This Comment considers whether local governments are legally protected …

The Dysfunctional “Functional Equivalent” Standard: Regulations Of Groundwater Discharges Since County Of Maui V. Hawaii Wildlife Fund, Ellie Maltby

University of Chicago Legal Forum

The distinction between “groundwater” and “navigable waters” has long created legal disputes. The most recent Supreme Court decision to grapple with the boundary between groundwater and navigable waters is County of Maui v. Hawaii Wildlife Fund. Section 301(a) of the Clean Water Act (CWA) prohibits the discharge of any pollutant into navigable waters without a National Pollutant Discharge Elimination System (NPDES) permit. The question in County of Maui is whether the CWA applies to pollutants that travel from a point source through groundwater, before entering navigable waters. The Supreme Court held that the CWA requires a permit when the discharge …

Domestic Terror Across State Lines: A Failed Federal Framework, Sophia Houdaigui

University of Chicago Legal Forum

As white supremacist violence has substantially increased over the last two decades, calls to combat associated attacks have intensified. This Comment outlines the impact of the events of September 11, 2001 on domestic and international terrorism policy, contextualizing the subsequent invocation of international terrorism charges at significantly higher rates than those of domestic terrorism. It introduces the lack of a general criminal statute prohibiting acts of terrorism and discusses the issues associated with the varying definitions of domestic terrorism employed by the federal government.

Due to the lack of common terminology in referencing domestic terrorism, a number of white supremacists …