Law Commons^™

Taking "Great Care": Defining Victims Of Hate Speech Targeting Religious Minorities, Whittney Barth

Chicago Journal of International Law

This Comment explores the intersection of race and religion in cases brought before the Human Rights Committee alleging violations of Article 20(2) of the International Covenant on Civil and Political Rights. This article proposes a positive requirement for states parties to prohibit hate speech. Specifically, the following analysis considers Committee determinations of standing in cases brought by Muslims living in Europe who sought to challenge a state party's response to discriminatory remarks made by public figures. This Comment argues that these determinations, which appear to implicitly endorse a lower threshold for group standing when both race and religion are under …

Presidential Obstruction Of Justice, Daniel Hemel, Eric A. Posner

Articles

No abstract provided.

"Virtual" Disenfranchisement: Cyber Election Meddling In The Grey Zones Of International Law, Michael N. Schmitt

Chicago Journal of International Law

This Article examines remotely conducted election meddling by cyber means in the context of international law and asks whether such cyber operations qualify as "internationally wrongful acts." An internationally wrongful act requires both a breach of a legal obligation owed by one State to another under international law and attribution of the act to the former. The Article considers three possible breaches related to such meddling - violation of the requirement to respect sovereignty, intervention into the internal affairs of another State, and, when the cyber operations are not attributable to the State from which they were launched, breach of …

Quantum Economics, Newtonian Economics, And Law, William Hubbard

Articles

No abstract provided.

National Security, National Origin, And The Constitution: 75 Years After Eo9066, Geoffrey R. Stone

Articles

No abstract provided.

The States' Interest In Federal Procedure, Diego Zambrano

Articles

No abstract provided.

A Simplified “Benefit” Prong For Securedcreditor Surcharges, Matthew Lagrone

University of Chicago Law Review

Who pays the debtor’s expenses that are incurred during the bankruptcy is a common debate. One potential option, especially in small to midsize corporate bankruptcies, is a secured creditor who can be surcharged in accordance with 11 USC § 506(c). Of that section’s three requirements, most litigation concerns the requirement that the expense “benefit” the secured creditor. A split has recently developed between courts, led by the Seventh Circuit in Trim-X, that require the bankruptcy trustee to exclusively intend to benefit the secured creditor and obtain secured-creditor consent and courts, such as the Fifth Circuit in Domistyle, that merely require …

Vindication For Students With Disabilities: Waiving Exhaustion For Unavailable Forms Of Relief After Fry V Napoleon Community Schools, Katherine Bruce

University of Chicago Law Review

The Individuals with Disabilities Education Act (IDEA) is a federal statute that protects the rights of students with disabilities by conferring onto them a substantive right to a free, appropriate public education (FAPE). Under the IDEA, aggrieved parents may demand a “due process hearing,” an administrative process presided over by an impartial hearing officer through which students and families may seek redress for violations of the IDEA. Due process hearings, however, allow only for certain types of relief—notably, money damages are not available under the IDEA. Students with disabilities are also protected under other statutes, including the Americans with Disabilities …

Cost-Benefit Analysis And The Judicial Role, Jonathan S. Masur, Eric A. Posner

University of Chicago Law Review

The two most vilified cases in administrative law are Business Roundtable v Securities and Exchange Commission and Corrosion Proof Fittings v Environmental Protection Agency. In Business Roundtable, the DC Circuit struck down the SEC’s proxy access rule because the agency’s cost-benefit analysis of the regulation, in the court’s view, was defective. In Corrosion Proof Fittings, the Fifth Circuit struck down an EPA regulation of asbestos products on the same grounds. Nearly all scholars who have written about these cases have condemned them. We argue that the courts acted properly. The regulators’ cost-benefit analyses were defective, seriously so; and the courts …

Citizens Of The State, Maeve Glass

University of Chicago Law Review

According to conventional wisdom, state citizenship emerged out of the localism of early America and gave way to national citizenship with the ratification of the Fourteenth Amendment. This Article offers a different account of state citizenship and, with it, new resources for analyzing the Constitution. It argues that far from a primordial category that receded into irrelevance, state citizenship provided a crucial strategic tool in America’s antislavery movement, as abolitionist lawyers used the label of state citizenship to build a coalition with white elites by reframing the issue of slavery from the rights of a black person to the sovereignty …

Picketing In The New Economy, Hiba Hafiz

Articles

No abstract provided.

Righting Categorical Wrongs: A Holistic Solution To Rule 8(A)’S Same-Or-Similarcharacter Prong, Matthew Deates

University of Chicago Law Review

More than half of federal criminal defendants are charged with multiple offenses in a single indictment. These defendants are more likely to be convicted on at least one charge than defendants who receive separate trials for each charge. Joinder has been both lauded for increasing the efficiency of the federal criminal justice system and criticized for unfairly prejudicing criminal defendants. Federal Rules of Criminal Procedure 8(a) and 14 govern the joinder of offenses in the federal system. Rule 8(a) permits offenses of the “same or similar character” to be joined against a single defendant while Rule 14 allows district courts …

Rethinking Family-Court Prosecutors: Elected And Agency Prosecutors And Prosecutorial Discretion In Juvenile Delinquency And Child Protection Cases, Josh Gupta-Kagan

University of Chicago Law Review

Like criminal prosecutors, family-court prosecutors have immense power. Determining which cases to prosecute and which to divert or dismiss goes to the heart of the delinquency system’s balance between punishment and rehabilitation of children and the child protection system’s spectrum of family interventions. For instance, the 1990s shift to prosecute (rather than dismiss or divert) about 10 percent more delinquency cases annually is as significant a development as any other. Yet scholars have not examined the legal structures for these charging decisions or family-court prosecutors’ authority in much depth.

This Article shows how family-court prosecutors’ roles have never been fully …

Table Of Contents

University of Chicago Law Review

No abstract provided.

Defining Flight Risk, Lauryn P. Gouldin

University of Chicago Law Review

Our illogical and too-well-traveled paths to pretrial detention have created staggering costs for defendants who spend unnecessary time in pretrial detention and for taxpayers who fund a broken system. These problems remain recalcitrant even as a third generation of reform efforts makes impressive headway. They are likely to remain so until judges, attorneys, legislators, and scholars address a fundamental definitional problem: the collapsing of very different types of behavior that result in failures to appear in court into a single, undifferentiated category of nonappearance risk. That single category muddies critical distinctions that this Article’s new taxonomy of pretrial nonappearance risks …

Courts, Congress, And The Conduct Of Foreign Relations, Kristen E. Eichensehr

University of Chicago Law Review

In the US constitutional system, the president generally conducts foreign relations. But not always. In recent years, the courts and Congress have repeatedly taken steps to interact directly with foreign governments. Nonexecutive conduct of foreign relations occurs when the courts or Congress engage in or take actions that result in the opening of a direct channel of official communications between the US nonexecutive branch and a foreign executive branch. Nonexecutive conduct of foreign relations raises serious constitutional questions, but to date there is no clear rubric for analyzing the constitutionality of the judiciary’s or Congress’s actions. Moreover, nonexecutive conduct of …

Democratic Erosion And The Courts: Comparative Perspectives, Aziz Huq

Articles

No abstract provided.

Procedural Flexibility In Three Dimensions, Ronen Avraham, William Hubbard, Itay E. Lipschits

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Procedural Flexibility In Three Dimensions, Ronen Avraham, William Hubbard, Itay E. Lipschits

Public Law and Legal Theory Working Papers

No abstract provided.

The Living Anti-Injunction Act, Daniel Hemel

Articles

No abstract provided.

Political Discrimination In The Law Review Selection Process, Adam S. Chilton, Jonathan Masur, Kyle Rozema

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Accountability Claims In Constitutional Law, Nicholas Stephanopoulos

Articles

No abstract provided.

The Coming Demise Of Liberal Constitutionalism?, Aziz Huq, Tom Ginsburg, Mila Versteeg

Articles

No abstract provided.

Courts’ Limited Ability To Protect Constitutional Rights, Adam S. Chilton, Mila Versteeg

Articles

No abstract provided.

Autocratic Legalism, Kim L. Scheppele

University of Chicago Law Review

Buried within the general phenomenon of democratic decline is a set of cases in which charismatic new leaders are elected by democratic publics and then use their electoral mandates to dismantle by law the constitutional systems they inherited. These leaders aim to consolidate power and to remain in office indefinitely, eventually eliminating the ability of democratic publics to exercise their basic democratic rights, to hold leaders accountable, and to change their leaders peacefully. Because these “legalistic autocrats” deploy the law to achieve their aims, impending autocracy may not be evident at the start. But we can learn to spot the …

Constitutionalism And The American Imperial Imagination, Aziz Rana

University of Chicago Law Review

Constitutionalism as a legal technology for structuring state power has spread around the world over the last century, as a practice and also as an ideal often linking the institutions of the state to commitments relating to political liberalism and free markets. Yet there is growing evidence that illiberal forms of constitutionalism may now be on the rise internationally. Some of the countervailing forces (economic crisis, national security threats, populism) that may limit the appeal and spread of liberal constitutionalism have been identified in the comparative-law literature as key drivers of this phenomenon. This Essay turns to a different explanation: …

Against Constitutional Excess: Tocquevillian Reflections On International Investment Law, David Schneiderman

University of Chicago Law Review

Contributing to democratic malaise in operative democracies are transnational constitution-like commitments, such as those found in international investment law. Among its constraints, citizens are legally discouraged from initiating policy innovations that will upset investment expectations. Yet, one of the great virtues of democratic society, according to Alexis de Tocqueville, is the capacity of people to change their minds: an ability to repair mistakes. Though the threat of continual legislative innovation resulted in costly instability, it served as a catalyst for an energetic public and private life. So as to tame the threat of intemperate change, Tocqueville looked to the guiding …

Populist Constitutions, David Landau

University of Chicago Law Review

This Essay draws on recent academic definitions of populism and recent examples of its use in order to show that there is an affinity between populism and widespread constitutional change. It argues that populists use constitutional change to carry out three functions: deconstructing the old institutional order, developing a substantive project rooted in a critique of that order, and consolidating power in the hands of populists. Thus, access to the tools of constitutional change may accentuate both the promise of populism as a corrective to stagnating liberal democracies and the threat that it poses to those constitutional orders. I also …

Democracy’S Deficits, Samuel Issacharoff

University of Chicago Law Review

Barely a quarter century after the collapse of the Soviet empire, democracy has entered an intense period of public scrutiny. The election of President Donald Trump and the Brexit vote are dramatic moments in a populist uprising against the postwar political consensus of liberal rule. But they are also signposts in a process long in the making, yet perhaps not fully appreciated until the intense electoral upheavals of recent years. The current moment is defined by distrust of the institutional order of democracy and, more fundamentally, of the idea that there is a tomorrow and that the losers of today …

The Coming Demise Of Liberal Constitutionalism?, Tom Ginsburg, Aziz Huq, Mila Versteeg

University of Chicago Law Review

No abstract provided.