Law Commons^™

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 …

Noisy Factors In Law, Adriana Z. Robertson, Pat Akey, Mikhail Simutin

University of Chicago Law Review

For years, academic experts have championed the widespread adoption of the “Fama-French” factors in legal settings. Factor models are commonly used to perform valuations, performance evaluations, and event studies across a wide variety of contexts, many of which rely on data provided by Professor Kenneth French. Yet these data are beset by a problem that the experts themselves did not understand: In a companion article, we documented widespread retroactive changes to French’s factor data. These changes are the result of discretionary changes to the construction of the factors, and they materially affect a broad range of estimates.

In this Article, …

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 …

Financial Stability And Bank Agency Discretion, Christina Parajon Skinner

University of Chicago Law Review

Following the 2008 global financial crisis, new mandates to address “financial stability” and “systemic risk” expanded financial regulators’ discretion considerably. By predicating action upon these terms, the banking agencies took up issues beyond the express terms of their statutory mandates. Given the vagueness of the terms, actions taken on the basis of financial stability could easily evade congressional scrutiny and accompanying accountability. As a result, the pursuit of financial stability goals over the past fifteen years has fueled the perception that a regulatory “expertocracy” governs the field of banking, rather than market forces.

This Essay discusses four areas where financial …

Securities Regulation And Administrative Law In The Roberts Court, David Zaring

University of Chicago Law Review

This Essay compares a judicial revolution that is happening to one that is not. Both the change and the status quo are being managed by the current Supreme Court. That Court has, when it comes to administrative law, shown a capacity to revisit everything. But when it comes to securities regulation, it has resisted change. What is the explanation for this divergent approach between general regulation, which the Court has sought to police, and securities regulation, which the Court has left alone? Some scholars have argued that the Supreme Court is simply uninterested in securities regulation, but the Court now …

How Civil Aiding And Abetting Liability For Terrorist Activities Applies To Social Media Companies—And How It Does Not, Nathaniel Parr

University of Chicago Legal Forum

The 2023 Supreme Court case Twitter v. Taamneh found that defendant social media companies were not liable for aiding and abetting a terrorist attack overseas. The Court alluded to the existence of an alternative set of facts that might alter their analysis or produce a different outcome. This Comment explores those “other contexts” and seeks to identify what factors could produce a successful Justice Against Sponsors of Terrorism Act (JASTA) aiding and abetting claim against a social media company for an act of terrorism overseas. This is difficult, in part, because the framework for aiding and abetting liability provided in …

Taketok: Does A Tiktok Ban Violate The Takings Clause?, Kevin Marien

University of Chicago Legal Forum

No abstract provided.

Seeking The Divine: A Proposed Methodology Of Religion To Resolve Adjudications Over The Nexus Inquiry In Religious Asylum Claims, Saloni S. Jaiswal

University of Chicago Legal Forum

What is religion, and should immigration courts seek to define religion in the context of asylum claims? Under the Immigration and Nationality Act (INA), individuals who have experienced past persecution or fear future persecution because of their religious beliefs can apply for asylum in the United States. Although individuals are afforded these protections under the statutory provisions of the INA, there is a fundamental problem in the way courts have treated religious asylum claims. Rather than holistically considering religion, courts have instead focused on religion’s fragmentary aspects. This fragmentary understanding of religion has contributed to another legal problem among the …

Scrutinizing National Security: A Call For Clear And Convincing Evidence In § 1226(A) Prolonged Detention Cases, Rosie Gruen

University of Chicago Legal Forum

A noncitizen detained under 8 U.S.C. § 1226(a) may be detained indefinitely until her removal order is finalized. Detainees have challenged prolonged detention following a detainee’s bond hearing on Fourteenth Amendment Due Process grounds, leading to a circuit split. Courts generally apply the Mathews test when hearing these challenges, which requires balancing the individual’s liberty at stake against the government’s interest in limiting that liberty. The government’s asserted interests in these cases are frequently grounded in national security arguments, which courts rarely scrutinize. Instead, courts generally give great deference to the way the executive branch characterizes national security concerns, often …

Adjusting Immunity For Unconstitutional Torts, Liam Grah

University of Chicago Legal Forum

Sovereign immunity protects the government from liability arising in suits brought against it by citizens. Though lacking a firm constitutional basis, sovereign immunity has been justified as protecting the public fisc and maintaining the sense of sovereign dignity. The Federal Tort Claims Act (FTCA) broadly waives sovereign immunity for tort claims against the United States. The discretionary function exception maintains immunity for tortious acts committed by employees acting within the valid bounds of their discretion. There is a circuit split about whether the discretionary function exception immunizes tortious conduct that is also unconstitutional. Circuits in the majority side of the …

Water Security In The Wake Of Arizona V. Navajo Nation: How The President’S Emergency Powers Can Provide A Path Forward For The Navajo Nation, Kelly Bridges

University of Chicago Legal Forum

In 2023, the Supreme Court decided Arizona v. Navajo Nation, finding that the United States government does not have an affirmative duty to ensure the Navajo Nation’s water security. The decision offers the Navajo two paths forward for relief: the tribe can either litigate specific water rights claims in the Colorado River Basin or lobby the President and Congress to amend an 1868 treaty, the language of which served as the basis for the holding in Navajo Nation. These paths forward are not without problems. Litigating water rights claims is costly and time-intensive, sometimes taking decades to be decided. As …

“Sportswashing” As A National Security Concern: The Role Of The Committee On Foreign Investment In The United States (Cfius), Luke Bianco

University of Chicago Legal Forum

Throughout United States history, foreign investment has played a key role in stimulating the national economy and supporting domestic businesses. But foreign investment can also imperil national security, such as by enabling an adversary to enhance its own ‘hard power’ capabilities at the expense of our own. The Committee on Foreign Investment in the United States (CFIUS) was created to combat such threats, flagging and preventing deleterious investment when it might pose a national security threat. Today, CFIUS operates pursuant to a flexible statutory scheme. And increasingly, in response to an evolving threat landscape, CFIUS has utilized that broad authority …

Extraction, Retention, And Use: Applying Use-Restrictions To Fourth Amendment Forensic Electronic Device Search Doctrine At The Border, Daniel Vicente Alayo-Matos

University of Chicago Legal Forum

Forensic electronic device searches are a formidable weapon in a border protection agents’ arsenal. Agents download the data from an electronic device and may store it for up to fifteen years, where it can be accessed by thousands Department of Homeland Security (DHS) agents with minimal controls. Annually, agents collect the forensic digital data of over 40,000 international travelers. The border constitutes an exception to typical Fourth Amendment protections against unreasonable searches and seizures, as officials may search individuals crossing the border without a warrant or reasonable suspicion. At least one circuit has held that the Fourth Amendment’s protections pose …

Big Data As A National Security Issue, Paul B. Stephan Iii

University of Chicago Legal Forum

Modern enhancements of data mining have unfolded in a legal near-vacuum. No extant legal system adequately specifies the property rights in the information elements that make up big data. The miners rely on their technical ability to gather and exploit, without waiting to confirm their entitlement to do so. Innovators have tolerated the legal vacuum because, as a practical matter, most potentially valuable information is accessible. Information by its nature implies a sender and a recipient. This sharing relationship necessarily complicates ownership, in particular the power to exclude. At the same time, the capacities that the mining of big data …

Terrorism, Not Treason: The Rise And Fall Of Criminal Charges, Shirin Sinnar

University of Chicago Legal Forum

Two decades into the global war on terror, the United States has a vast legal and institutional architecture for prosecuting "international" terrorism. A sprawling global intelligence network, thousands of informants in U.S. communities, and a highly permissive legal regime feed the prosecution of hundreds of Muslim defendants. Despite this intense state response and the panoply of charges brought, the U. S. government has charged treason in these cases on only one occasion, over fifteen years ago. Given the prominence of treason charges as a response to political violence in earlier eras, commentators have periodically asked why the treason charge has …

Climatizing National Security, Mark Nevitt

University of Chicago Legal Forum

Is climate change a national security issue? Human security? Ecological security? This Article addresses the growing nexus between climate change and various conceptions of security with a particular emphasis on climate change's national security impacts. This Article argues that there is a growing connection between national security and climate change and a corresponding need to address the normative implications of "climatizing national security." This connection can be observed through three lenses: mitigation (reducing greenhouse gas emissions from military and national security sources); adaptation (investing in climate resilient infrastructure in an effort to prepare for climate impacts), and response (addressing climate-exacerbated …

Cultural Heritage And Security Policy, Morag M. Kersel, Patty Gerstenblith

University of Chicago Legal Forum

National security and cultural heritage protection are connected in several ways. Cultural policy as a component of security policy plays a crucial role in promoting social cohesion, diplomatic relations, international cooperation, and regional stability. Instrumental in shaping and promoting national identity, cultural heritage fosters unity among citizens. Safeguarding cultural heritage can contribute to national cohesion and resilience, which are essential components of national security. Caring for culture is not only necessary for maintaining history but also for sustaining economic growth and stability. Protecting and preserving a nation's culture can enhance its international reputation, strengthen diplomatic relations, and promote peaceful cooperation …

A Transformational Agenda For National Security, Maryam Jamshidi

University of Chicago Legal Forum

Past efforts to "reimagine" national security in legal scholarship have largely avoided systematic engagement with the foundational assumptions and presumptions of the field. Challenging and critiquing those assumptions is, however, necessary to producing scholarly work that reimagines, rather than reproduces, status quo approaches to U.S. national security. This Article presents an agenda for reimagining national security through legal scholarship, which is premised on the view that challenging the national security status quo should be part of those efforts. In doing so, this agenda explores seven premises central to how U.S. national security is currently conceived of, practiced, and implemented. Moving …

Addressing Ip And Technology Challenges To Pandemic Protection: A Need For Global Coordination To Promote National Security, Cynthia M. Ho

University of Chicago Legal Forum

This Article argues that effective national security mandates protection against the spread of infectious diseases, which requires addressing intellectual property (IP) and technology obstacles. Without modification, IP laws can bar the manufacture of needed treatments by anyone besides the IP owner and its licensees. Although there was some recognition during the COVID-19 pandemic that existing IP laws should be modified, there was strong resistance not only by IP-owning companies, but also by individual countries that impeded the ability to manufacture needed vaccines during the height of the pandemic.

Many global leaders have recognized that future pandemics are inevitable and that …

Deepfakes In Court: How Judges Can Proactively Manage Alleged Ai-Generated Material In National Security Cases, Abhishek Dalal, Chongyang Gao, Hon. Paul W. Grimm, Maura R. Grossman, Daniel W. Linna Jr., Chiara Pulice, V.S. Subrahmanian, Hon. John Tunheim

University of Chicago Legal Forum

Dall-E. ChatGPT GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI-generated and not real and, second, that other evidence is genuine but alleged to be fabricated. Technologies designed to detect AI-generated content have proven to be unreliable, …

Resilience For A Digital Age, Danielle Keats Citron, Kristen E. Eichensehr

University of Chicago Legal Forum

A resilience agenda is an essential part of protecting national security in a digital age. Digital technologies impact nearly all aspects of everyday life, from communications and medical care to electricity and government services. Societal reliance on digital tools should be paired with efforts to secure societal resilience. A resilience agenda involves preparing for, adapting to, withstanding, and recovering from disruptions in ways that advance societal interests, goals, and values. Emphasizing resilience offers several benefits: 1) Resilience is threat agnostic or at least relatively threat neutral; 2) its inward focus emphasizes actions under the control of a targeted country, rather …

War Powers And The Return Of Major Power Conflict, Scott R. Anderson

University of Chicago Legal Forum

The United States is, by many accounts, facing a renewed risk of major power conflict. This Article considers what the reemergence of this risk may mean for the executive branch's operational understanding of constitutional war powers, specifically as they relate to the use of military force. After outlining the relationship between U.S. strategic concerns and executive branch legal interpretations and reviewing the most recent historical parallel the Truman administration's reconsideration of war powers in the early Cold War it examines three aspects of the executive branch's current understanding for tensions with the strategic demands of major power conflict: the anticipated …

Anchoring Digital Sovereignty, Vivek Krishnamurthy

Chicago Journal of International Law

For a quarter-century, a consensus has prevailed that territorial sovereignty applies online as it does offline. Since practically all the Internet’s infrastructure and its billions of users reside on the territory of states, conventional wisdom holds that sovereignty must extend to cyberspace. Such accounts ignore how people experience cyberspace as a distinctive place, and how current international law lacks safeguards to prevent states from exercising their sovereignty to splinter the Internet into a set of national networks. Territorial sovereignty is also hard to square with pledges by the world’s democracies to keep the Internet free, open, and global; yet it …

Captured Innovation: Technology Monopoly Response To Transformational Development, Reed Showalter, Laura Edelson

The University of Chicago Business Law Review

This Article examines how monopoly power warps incentives to innovate within the largest tech companies across history. Technology monopolies face competing incentives: to innovate and to maintain the status quo. As the center of their market, monopolists have resources and capacity to generate tremendous disruptive innovation. However, disruptive innovation serves only to threaten to destabilize the profitable market structure that a monopolist sits atop. We find that technology monopolists do not fail to innovate, but that they instead restrict that innovation from being released to the market or release the innovation in a diminished way, yoked to the existing technology …