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The Persecution Of Stones: War Crimes, Law’S Autonomy And The Co-Optation Of Cultural Heritage, Timothy William Waters Jun 2019

The Persecution Of Stones: War Crimes, Law’S Autonomy And The Co-Optation Of Cultural Heritage, Timothy William Waters

Chicago Journal of International Law

In 1567, a bridge was built over a river in Bosnia—a bridge widely seen as a work of great beauty. In 1993, it was destroyed in a war. What did its destruction mean? Was it a crime—and which one? An assault on culture—and whose? Between 2004 and 2017, a trial held in The Hague sought to answer these questions. The way it did—the assumptions and categories the prosecutors and judges deployed, the choices they made—tells us something important about how law operates and how it appropriates other bodies of knowledge, whether in a now-obscure Balkan conflict or on the battlefields …


Enforcement Through The Network: The Network Enforcement Act And Article 10 Of The European Convention On Human Rights, Imara Mcmillan Jun 2019

Enforcement Through The Network: The Network Enforcement Act And Article 10 Of The European Convention On Human Rights, Imara Mcmillan

Chicago Journal of International Law

This Comment explores the conflict between state-described freedom of expression and the autonomy of social media companies to regulate content on their platforms through the lens of the Network Enforcement Act, passed by Germany in 2017, and the freedom of expression clause of the European Convention on Human Rights. The Network Enforcement Act, which compels social media companies to monitor and remove content from their sites which violate certain other provisions of German law, has thrust the issues of intermediary autonomy and censorship-byproxy into the spotlight. Proponents of the law support it as a way to ensure that what is …


Waste Not Want Not: Chinese Recyclable Waste Restrictions, Their Global Impact, And Potential U.S. Responses, Colin Parts Jun 2019

Waste Not Want Not: Chinese Recyclable Waste Restrictions, Their Global Impact, And Potential U.S. Responses, Colin Parts

Chicago Journal of International Law

Since 2013 China has introduced increasingly stringent restrictions on imports of recyclables, and those restrictions have severely limited the amount of recyclables allowed into the country. Because China plays such a large role in handling global recycling flows—including waste from the U.S.—these restrictions are likely to have enormous impacts on trade in recyclables over the long term. The restrictions are potentially vulnerable to challenge within the World Trade Organization (WTO), but challenging the restrictions could create many negative impacts and be seen as an action akin to U.S. imperialism by denying China a right to a healthy environment. The domestic …


Closing The Liability Loophole: The Liability Convention And The Future Of Conflict In Space, Trevor Kehrer Jun 2019

Closing The Liability Loophole: The Liability Convention And The Future Of Conflict In Space, Trevor Kehrer

Chicago Journal of International Law

The 21st century has borne witness to an explosion of human activity of all kinds in space; but the rules that govern that activity have failed to keep pace. The extant international liability regime for damage on Earth caused by space objects has a blind spot that the original framers could not have anticipated: an object launched into space by one nation may now come under the control of another nation—or even a private actor—through cyberwarfare. Moreover, the liability regime has another problem: if an incident involving an object in space results in harm on Earth, the Liability Convention does …


Civil Servant Disobedience, Jennifer Nou May 2019

Civil Servant Disobedience, Jennifer Nou

Articles

No abstract provided.


Inversion Aversion, Lee Anne Fennell, Richard H. Mcadams May 2019

Inversion Aversion, Lee Anne Fennell, Richard H. Mcadams

University of Chicago Law Review

No abstract provided.


Enacted Legislative Findings And Purposes, Jarrod Shobe May 2019

Enacted Legislative Findings And Purposes, Jarrod Shobe

University of Chicago Law Review

Statutory interpretation scholarship generally imagines a sharp divide between statutory text and legislative history. This Article shows that scholars have failed to consider the implications of a hybrid type of text that is enacted by Congress and signed by the president, but which looks like legislative history. This text commonly appears at the beginning of a bill under headings such as “Findings” and “Purposes.” This enacted text often provides a detailed rationale for legislation and sets out Congress’s intent and purposes. Notably, it is drafted in plain language by political congressional staff rather than technical drafters, so it may be …


Contents / Editorial May 2019

Contents / Editorial

University of Chicago Law Review

No abstract provided.


The Failure Of Mixed-Motives Jurisprudence, Andrew Verstein May 2019

The Failure Of Mixed-Motives Jurisprudence, Andrew Verstein

University of Chicago Law Review

Because legal determinations often turn on motive, and motives are often complex, courts must decide what to do about mixed motives. For example, a boss might fire someone both for lawful reasons relating to job performance and also because of illegal prejudice. Increasingly, courts evaluate such cases under a “ButFor standard,” which finds for the plaintiff only if the defendant would have acted differently but for the bad motive. Put another way, the defendant loses unless the bad motive made some kind of causal difference in outcomes. While this approach is intuitive, I argue that the But-For standard is problematic. …


Testing For Trademark Dilution In Court And The Lab, Barton Beebe, Roy Germano, Christopher J. Sprigman, Joel H. Steckel May 2019

Testing For Trademark Dilution In Court And The Lab, Barton Beebe, Roy Germano, Christopher J. Sprigman, Joel H. Steckel

University of Chicago Law Review

Federal courts are currently split, even within particular districts, on the basic question of what a plaintiff must show to establish that a defendant’s conduct constitutes trademark dilution by blurring. Federal trademark law defines “dilution by blurring” as “association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark.” In construing this statutory language, a majority of courts have held that to establish blurring, a plaintiff need only show that consumers associate the defendant’s mark with the plaintiff’s famous mark. These courts appear to assume that to the …


Disparate Impact, Unified Law, Nicholas Stephanopoulos Apr 2019

Disparate Impact, Unified Law, Nicholas Stephanopoulos

Articles

No abstract provided.


Patents, Property, And Prospectivity, Jonathan Masur, Adam Mortara Apr 2019

Patents, Property, And Prospectivity, Jonathan Masur, Adam Mortara

Articles

No abstract provided.


Assessing The Empirical Upside Of Personalized Criminal Procedure, Matthew B. Kugler, Lior Strahilevitz Apr 2019

Assessing The Empirical Upside Of Personalized Criminal Procedure, Matthew B. Kugler, Lior Strahilevitz

Articles

No abstract provided.


Norming In Administrative Law, Jonathan Masur, Eric A. Posner Apr 2019

Norming In Administrative Law, Jonathan Masur, Eric A. Posner

Articles

No abstract provided.


Not Such A Fixed Star After All: West Virginia State Board Of Education V. Barnette, And The Changing Meaning Of The First Amendment Right Not To Speak, Genevieve Lakier Apr 2019

Not Such A Fixed Star After All: West Virginia State Board Of Education V. Barnette, And The Changing Meaning Of The First Amendment Right Not To Speak, Genevieve Lakier

Articles

No abstract provided.


The Living Constitution And Moral Progress: A Comment On Professor Young’S Boden Lecture, David A. Strauss Apr 2019

The Living Constitution And Moral Progress: A Comment On Professor Young’S Boden Lecture, David A. Strauss

Articles

No abstract provided.


Racial Equity In Algorithmic Criminal Justice, Aziz Huq Mar 2019

Racial Equity In Algorithmic Criminal Justice, Aziz Huq

Articles

No abstract provided.


Segregation By Citizenship, Emma Kaufman Mar 2019

Segregation By Citizenship, Emma Kaufman

Articles

No abstract provided.


A Framework For The New Personalization Of Law, Anthony Casey, Anthony Niblett Mar 2019

A Framework For The New Personalization Of Law, Anthony Casey, Anthony Niblett

Articles

No abstract provided.


From Catalonia To California: Secession In Constitutional Law, Tom Ginsburg, Mila Versteeg Mar 2019

From Catalonia To California: Secession In Constitutional Law, Tom Ginsburg, Mila Versteeg

Articles

No abstract provided.


Big Data And Discrimination, Talia B. Gillis, Jann L. Spiess Mar 2019

Big Data And Discrimination, Talia B. Gillis, Jann L. Spiess

University of Chicago Law Review

The ability to distinguish between people in setting the price of credit is often constrained by legal rules that aim to prevent discrimination. These legal requirements have developed focusing on human decision-making contexts, and so their effectiveness is challenged as pricing increasingly relies on intelligent algorithms that extract information from big data. In this Essay, we bring together existing legal requirements with the structure of machine-learning decision-making in order to identify tensions between old law and new methods and lay the ground for legal solutions. We argue that, while automated pricing rules provide increased transparency, their complexity also limits the …


Personalizing Precommitment, Lee Anne Fennell Mar 2019

Personalizing Precommitment, Lee Anne Fennell

University of Chicago Law Review

This Essay examines the potential for law to facilitate tailored precommitments to help people address self-control problems. This flavor of personalized law is unique in that it is voluntarily chosen and self-administered. There are practical and normative limits on the degree to which people can bind themselves in ways that they cannot later escape, but law can offer mechanisms that would help people design and implement flexible precommitments. Research suggests two potential lines for innovation. First, partitioning access to resources may constrain consumption in contexts from dieting to saving, even when the partitions can be unilaterally broken. Second, the chunkiness …


Algorithmic Fair Use, Dan L. Burk Mar 2019

Algorithmic Fair Use, Dan L. Burk

University of Chicago Law Review

Legal governance and regulation are becoming increasingly reliant on data collection and algorithmic data processing. In the area of copyright, online protection of digitized works is frequently mediated by algorithmic enforcement systems intended to purge illicit content and limit the liability of YouTube, Facebook, and other content platforms. But unauthorized content is not necessarily illicit content. Many unauthorized digital postings may claim legitimacy under statutory exceptions like the legal balancing standard known as fair use. Such exceptions exist to ameliorate the negative effects of copyright on public discourse, personal enrichment, and artistic creativity. Consequently, it may seem desirable to incorporate …


Privatizing Personalized Law, Andrew Verstein Mar 2019

Privatizing Personalized Law, Andrew Verstein

University of Chicago Law Review

In recent years, scholars have devoted increasing attention to the prospect of personalized law. The bulk of the literature has so far concerned whether to personalize any law and, if so, what substantive changes should be instantiated through personalization. Comparatively little discussion has gone to the authorship of personalized laws. Who will make personalized laws? Who will enforce them? In this Essay, I propose we consider the who in the personalization debate. Specifically, I identify the policy considerations that bear on the optimal maker or enforcer of personalized law. To put it another way, my Essay begins where most of …


Toward The Personalization Of Copyright Law, Adi Libson, Gideon Parchomovsky Mar 2019

Toward The Personalization Of Copyright Law, Adi Libson, Gideon Parchomovsky

University of Chicago Law Review

In this Essay, we provide a blueprint for personalizing copyright law in order to reduce the deadweight loss that stems from its universal application to all users, including those who would not have paid for it. We demonstrate how big data can help identify inframarginal users, who would not pay for copyrighted content, and we explain how copyright liability and remedies should be modified in such cases.


Assessing The Empirical Upside Of Personalized Criminal Procedure, Matthew B. Kugler, Lior Jacob Strahilevitz Mar 2019

Assessing The Empirical Upside Of Personalized Criminal Procedure, Matthew B. Kugler, Lior Jacob Strahilevitz

University of Chicago Law Review

Though personalization of law is often viewed as a new idea, pockets of criminal procedure already tolerate it. Many courts have held that Miranda warnings must be tailored when read to juveniles or people with limited English proficiency; a suspect’s age is necessarily part of the judicial calculus when determining whether the police’s questioning of her is a custodial interrogation; and some state courts consider a person’s demographic characteristics when deciding whether they have consented to a search. The question before us now is whether society should go further. Should the law of criminal procedure pay more attention to individual …


The Chilling Effect Of Governance-By-Data On Data Markets, Niva Elkin-Koren, Michal S. Gal Mar 2019

The Chilling Effect Of Governance-By-Data On Data Markets, Niva Elkin-Koren, Michal S. Gal

University of Chicago Law Review

Big data has become an important resource not only for commerce but also for governance. Governance-by-data seeks to take advantage of the bulk of data collected by private firms to make law enforcement more efficient. It can take many forms, including setting enforcement priorities, affecting methods of proof, and even changing the content of legal norms. For instance, car manufacturers can use real-time data on the driving habits of drivers to learn how their cars respond to different driving patterns. If shared with the government, the same data can be used to enforce speed limits or even to craft personalized …


Neuroscience And The Personalization Of Criminal Law, Deborah W. Denno Mar 2019

Neuroscience And The Personalization Of Criminal Law, Deborah W. Denno

University of Chicago Law Review

While objective standards of reasonableness permeate most legal disciplines, criminal law has trended toward personalization since the 1960s, when the Model Penal Code introduced conceptions of mental states based on Freudian psychoanalytic theory. Today, advancements in neuroscience offer previously inconceivable insights into living brain structures and damage. This Essay contends that a criminal justice system that uses personalizing neuroscientific evidence will yield better outcomes. This Essay contributes two unique tools to the personalized law debate. First are the results of my two-decade-long Neuroscience Study, in which I have compiled eight hundred criminal cases that addressed neuroscientific evidence in any capacity. …


A Framework For The New Personalization Of Law, Anthony Casey, Anthony Niblett Mar 2019

A Framework For The New Personalization Of Law, Anthony Casey, Anthony Niblett

University of Chicago Law Review

Law has always strived for accurate contextualization, but only with recent technological advances in data processing and communication has this goal become meaningfully achievable at the personal level. While the other essays in this Symposium explore the costs and benefits of personalizing particular areas of law, we present a general framework for thinking about the new personalization of law. We identify two fundamental questions that every personalization project must address: First, how do lawmakers set the objective of a personalized law? Second, how is the content of a personalized law communicated to the citizens who must follow it? We explore …


Implementing Personalized Law: Personalized Disclosures In Consumer Law And Data Privacy Law, Christoph Busch Mar 2019

Implementing Personalized Law: Personalized Disclosures In Consumer Law And Data Privacy Law, Christoph Busch

University of Chicago Law Review

This Essay explores how the rise of big data and algorithm-based regulation could fundamentally change the design and structure of disclosure mandates in consumer law and privacy law. Impersonal information duties and standardized notices could be replaced by granular legal norms that provide personalized disclosures based on the personal preferences and informational needs of an individual. This Essay makes several contributions to the emerging debate about personalized law. First, it shows how information technology can be implemented for tailoring disclosures in consumer law and privacy law in order to take into account actor heterogeneity. Second, it argues that personalized disclosures …