Law Commons^™

In Search Of A Judicial Taking, Coby Goldberg

University of Chicago Law Review

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Supreme Court held that the Takings Clause applies to the judiciary as it does to any government actor. In the more than fifteen years since, none of the sixty courts to consider judicial takings claims have found a judicial taking. This Comment provides the only comprehensive analysis of the judicial takings case law since Stop the Beach in order to determine why no court has found a judicial taking. Based on this analysis of the case law, this Comment suggests that finding a judicial taking …

Leveraging The Federal Trust Responsibility To Safeguard Net Neutrality On Tribal Lands, Morgan O. Schaack

University of Chicago Law Review

The internet plays a crucial role in modern life, but equal access to it is not guaranteed. This inequality is only starker since the recent overruling of the Chevron doctrine that afforded agencies deference in their interpretation of statutes and the second Trump administration’s hostility toward net neutrality––a policy that prevents internet service providers from charging more money for access to faster internet while slowing other users’ access. For those living on tribal lands, rescission of net neutrality policies has unique implications due to the federal government’s trust responsibility to American Indians.

The trust responsibility is a long-standing and deeply …

Eliminating The Malice Requirement For Fourth Amendment Malicious Prosecution Plaintiffs, Sabrina Huang

University of Chicago Law Review

Someone who has been wrongfully prosecuted in violation of their Fourth Amendment rights can sue a government actor, such as a police officer, for malicious prosecution under 42 U.S.C. § 1983. Malicious prosecution arises when a government actor initiates a criminal case without probable cause, the prosecution leads to the accused’s seizure, and the accused is ultimately not convicted. Fourth Amendment malicious prosecution claims are critical to holding officers and prosecutors accountable for misconduct. Official misconduct is common: more than half of the people exonerated since 1989 were incarcerated due in part to misconduct by the police or prosecutors.

Fourth …

Constitutional Rights As Protected Reasons, Stephanie Hall Barclay

University of Chicago Law Review

This Article proposes and defends a new theoretical model of constitutional rights. Virtually all the prevailing theories about constitutional rights envision, at some level, judges balancing the importance of various individual rights against the importance of other societal goods in tension with those rights. These theories also generally hold out the judiciary as the primary guardian of these rights, whereas the other political branches are often viewed as fulfilling a role of interfering with (or protecting) rights only as much as the judiciary will allow. This Article explains why the existing accounts of constitutional rights are either incoherent or incomplete. …

The Amended Statute, Jesse M. Cross

University of Chicago Law Review

We live in a republic of amended statutes. In each Congress, our laws are amended tens of thousands of times. Individual statutes make amendments that number in the thousands. As a result, the amended statute has become the central democratic text of our age—a remarkable development for a type of document unknown at the Founding. Yet the amended statute has been relegated to an after-thought in legal theory. This is incredible neglect for an essential source of modern law—one that anchors innumerable rights in U.S. society.

This Article demonstrates that, instead, the amended statute belongs at the center of public …

On Frand-Ly Terms: Examining The Role Of Juries In Standard-Essential Patent Disputes, Marta Krason

University of Chicago Law Review

Modern society relies on interconnected technologies, and interoperability has become crucial for meeting consumer expectations. Technology standards have emerged to ensure compatibility and interoperability across products. Once an industry selects a standard as the default for consumers and businesses, industry players begin to adapt it, often phasing out alternative—sometimes even superior— technologies. Holders of patents covering technology standards, known as standard- essential patents (SEPs), control the rights to an invention with no commercially viable alternative or that cannot be designed around while still complying with a standard. This gives SEP holders significant leverage in licensing negotiations

Standards development organizations (SDOs) …

Looking For The Public In Public Law, Nikhil Menezes, David E. Pozen

University of Chicago Law Review

The “public” is everywhere and nowhere in contemporary public law. Everywhere, in that the term is constantly invoked to justify and explain existing arrangements. Nowhere, in that serious attempts to identify a relevant public and elicit its input are few and far between. Scholars and officials depict the U.S. public as playing myriad roles in governance—checking, guiding, approving, repudiating—without offering an account of how public preferences are formed or how they exercise influence on questions of interest.

This Article seeks to identify and call attention to the foundational dilemmas underlying this disconnect, to clarify their normative contours and intellectual history, …

Large Language Models And International Law, Ashley Deeks, Duncan Hollis

Chicago Journal of International Law

Large Language Models (LLMs) have the potential to transform public international lawyering in at least five ways: (i) helping to identify the contents of international law; (ii) interpreting existing international law; (iii) formulating and drafting proposals for new legal instruments or negotiating positions; (iv) assessing the international legality of specific acts; and (v) collating and distilling large datasets for international courts, tribunals, and treaty bodies.

This Article uses two case studies to show how LLMs may work in international legal practice. First, it uses LLMs to identify whether particular behavioral expectations rise to the level of customary international law. In …

The Rise Of Big Data And The Law Of Armed Conflict, Laura A. Dickinson

Chicago Journal of International Law

Big data—extremely large quantities of information and the analytics used to process it—is now crucial to the way militaries operate on the battlefield. Data is used to run weapons systems, analyze intelligence, procure and deploy personnel, evaluate battlefield conditions, detain prisoners, and more. And not only is data increasingly being used on the battlefield, but operations targeting adversaries’ data—to acquire it, delete and destroy it, or distort or poison it—are becoming increasingly important as well. Beyond the battlefield, big data lies at the epicenter of adversarial activities below the armed conflict threshold. Because data is the fuel of artificial intelligence …

Interpretation As Creation: Article Vi Of The Outer Space Treaty, Charles Stotler

Chicago Journal of International Law

From the launch of Sputnik I in 1957 to proposals for In-Space Servicing, Assembly and Manufacturing (ISAM) and new lunar activities such as resource utilization, advancing technology has always been a driving factor in the creation of space law. From a legal-historical perspective, the notion of law as creation should be contextualized in a broader legal-philosophical transition that began with the rise of positivism. Article VI of the Outer Space Treaty orbits unsteadily between international obligations and national implementation measures, rendering significant States’ understandings of those provisions. Our understanding of Article VI turns on perhaps the most creative legal endeavor: …

Digital Evidence: Facilitating What And For Whom?, Rebecca Hamilton, Adebayo Okeowo

Chicago Journal of International Law

The emergence of user-generated evidence has revolutionized how atrocities and human rights violations are documented globally. Since 2011, when Syrian human rights defenders began documenting atrocities on their smartphones, a professional field has emerged around the collection, authentication, and preservation of digital evidence. However, this professionalization has created unintended consequences, as expertise and verification power shifted away from frontline communities to Global North institutions. This Article examines this tension through two case studies: the Rohingya Genocide Archive, and Nigeria's #EndSARS movement. These examples demonstrate both the power of locally-informed evidence collection and the challenges when verification skills remain concentrated among …

Battlefield Evidence In The Age Of Artificial Intelligence-Enabled Warfare, Winthrop Wells

Chicago Journal of International Law

A number of emerging technologies increasingly prevalent on contemporary battlefields—notably unmanned autonomous systems (UAS) and various military applications of artificial intelligence (AI)—are working a sea change in the way that wars are fought. These technological developments also carry major implications for the investigation and prosecution of serious crimes committed in armed conflict, including for an under-examined yet potentially valuable form of evidence: information and material collected or obtained by military forces themselves.

Such “battlefield evidence” poses various legal and practical challenges. Yet it can play an important role in justice and accountability processes, in which it addresses the longstanding obstacle …

Satellite Infrastructures And Law In The Making Of Planetary Knowledge, Benedict Kingsbury, Yirong Sun

Chicago Journal of International Law

Imaginations of Planet Earth as-a-whole—that is, Earth conceived in planetary terms by wide publics—have been shaped over several decades by the growing capabilities of artificial Earth satellites to image the whole Earth, to specify all locations, and to integrate the Earth’s diverse orbital space with everyday human activities. Different Earth orbits are becoming more densely used, more securitized, more intensely managed from Earth, and more integral to activities on Earth.

This Article focuses on two categories of satellite systems that contribute directly to planetary knowledge, Global Navigation Satellite Systems (GNSS) and Earth Observation Satellite Systems (EOSS). GNSS and EOSS have …

The Law Of Armed Conflict – In The Dark, Laurie R. Blank

Chicago Journal of International Law

In a potential future peer-on-peer or near peer conflict, the technological capabilities that are both taken for granted and a source of military superiority will be an immediate and high- value target. Global navigation and positioning systems, satellite imaging, precision guidance, instantaneous communication, and much more— the adversary will seek to shut down these capabilities. Turning off the technology, or fighting “in the dark,” presents complex operational and tactical challenges of navigation, logistics, communication, command and control, coordination, and targeting, to name just a few. However, executing military operations in such a technology-deprived environment also requires the application and implementation …

Two Terribles: A Day Without Space And Ai Enabled Synthetic Biological Weapons A Warning Order, James E. Baker

Chicago Journal of International Law

A day without space, a term used to describe the loss or destruction of America’s space assets, and the potential generation of novel biological threats using AI and synthetic biology present catastrophic and potentially existential threats to U.S. security in a way that nuclear weapons did before and continue to do so today. Yet they have not received the level of attention from national security lawyers or commentators they warrant. This article describes the threats. It describes the current and inchoate nature of the law to address these threats. And it makes initial recommendations to policymakers and lawyers about how …

Distinction, Proportionality, And Precautions In Attacks At Sea In The New Era Of The Law Of Naval Warfare, James Kraska

Chicago Journal of International Law

China has upset the security balance in East Asia through the development of a long- range strike complex composed of anti-ship ballistic missiles, drones and cruise missiles, and hypersonic missiles that put U.S. naval fleets at risk. Beijing’s innovative approach to sea control through the projection of power from land-based fires highlights three important differences between the law applicable to naval warfare and the law of armed conflict (LOAC) as it is implemented on land.1 These legal distinctions are subtle in law, but they shape concrete choices available to naval commanders and could determine the outcome of war at sea. …

Trademarking Terroir: Geographical Indications As A Form Of Cultural Property In The U.S.-Eu Trade War, Sara Evans

Chicago Journal of International Law

Geographical indications (GIs) designating wines, spirits, and agricultural products have been the subject of a trade war between the U.S. and EU for several decades. The American legal regime often denies European producers exclusive rights to use GIs in the American market because U.S. authorities consider many European terms generic. As a result, EU regulators are reluctant to protect American designations of origin in the European market. Little progress has been made toward reaching a consensus about which terms should be protected and how they should be protected in transatlantic trade.

Economics has been the dominant lens through which the …

Contract Or Prison, S. R. Blanchard

University of Chicago Law Review

Critics of the criminal enforcement system have condemned the expansion and privatization of electronic monitoring, criminal diversion, parole, and probation. But the astonishing perversion of contract involved in these new practices has gone unnoticed. Governments are turning to “offender-funded” programs that empower firms to contract with people who are suspected of or have been convicted of crimes— and whose alternative to agreeing to these contracts is prosecution or incarceration. Though incarceration-alternative (IA) contracting is sometimes framed as humane, historical and current context illuminates its coercive nature. IA contracting must be examined under classical contract theory and in light of the …

Transparency Without Teeth: An Empirical Understanding Of Data Broker Regulation, Elijah Greisz

University of Chicago Law Review

It is no secret that data has taken over the modern economy, and it is unsurprising that governments have begun acting in response. Perceiving mismatched bargaining power between firms and consumers—and certain externalities resulting from the massive quantities of data being collected by firms about those consumers— many state legislatures have passed generally applicable data privacy statutes. These laws give consumers certain rights to control the data they distribute in everyday commerce. Such regulations follow an “interaction model,” whereby consumers can exercise their rights by interacting with data-possessing firms.

But there is a key player that complicates this scheme: the …

Injury Equity: The Rise Of Future Stakes Settlements, Margaret Schaack

University of Chicago Law Review

In a changing environment in which class action defendants are turning to aggressive strategies to contain the cost of lawsuits, including using bankruptcy proceedings to limit their liability, plaintiffs’ attorneys are fighting back by seeking new ways to recover damages from illiquid and functionally judgment-proof companies. The latest development is the “future stakes settlement,” unveiled in the agreement to end a privacy law class action lawsuit against the startup Clearview AI. Under this novel mechanism, a defendant grants a privately traded equity stake to the class in exchange for a release of all claims

Future stakes settlements, though similar to …

Identifiable To Whom? Clarifying Biometric Privacy Rights In Illinois And Beyond, Hana Ferrero

University of Chicago Law Review

Illinois’s Biometric Information Privacy Act (BIPA) is the country’s most powerful law governing biometric data—data generated from an individual’s biological characteristics, like fingerprints and voiceprints. Over the past decade, BIPA garnered a reputation as an exceptionally plaintiff-friendly statute. But from 2023 to 2024, the Illinois legislature, Illinois Supreme Court, and Ninth Circuit Court of Appeals all sided with BIPA defendants, largely for the first time. Most significantly, in Zellmer v. Meta Platforms, Inc., the Ninth Circuit dismissed the plaintiff’s BIPA claim because the face scan collected by the defendant could not be used to identify him.

It is unclear whether …

Technology And The Unique Challenges Of Applying Law To The Realm Of Outer Space And Space Activities, F.G. Von Der Dunk

Chicago Journal of International Law

For better or worse, technology at heart is—except to the extent that artificial intelligence fundamentally becomes involved—not so much a creator as a facilitator and enhancer of human acts, actions and activities, allowing them to become more effective, less costly, or sometimes even just merely feasible. Perhaps nowhere that is more pertinent then when it comes to human activities in outer space, which are still overwhelmingly conducted remotely and hence crucially dependent on technology. Given that “the law” has always been geared to address humans and their acts, actions, and activities, this gives rise to a rather special approach to …

Digital Investigations Of Systematic And Conflict-Related Sexual Violence: Practice And Possibilities, Alexa Koenig

Chicago Journal of International Law

This article discusses a new guide that has been developed to support the responsible use of digital open-source information to investigate systematic and conflict-related sexual violence (SCRSV). Drafted by the Institute for International Criminal Investigations and the Human Rights Center at UC Berkeley School of Law, the just-published pilot version of the Open- Source Practitioner’s Guide to the Murad Code aims to minimize the risks and maximize the potential for digital investigations into SCRSV. Part I of this article opens with a brief history of accountability for SCRSV, touching on the need to strengthen SCRSV investigations and providing a brief …

The Click-And-Commit World Order, Melissa J. Durkee

Chicago Journal of International Law

This Article explores the rise of a new model of global governance: the “click-and-commit world order,” characterized by digitally mediated pledging platforms through which a wide array of actors—states, corporations, cities, NGOs, and individuals—publicly commit to addressing global problems through non-binding promises. In contrast to traditional treaty-making, these pledging platforms offer a decentralized, voluntary framework for international cooperation that relies on public declarations rather than negotiated obligations.

Within the U.N. system, this mode of governance developed within the United Nations Global Compact and the Paris Climate Agreement, where bottom-up pledges were institutionalized within formal and informal international structures. The internet …

From Human Mapping To Machine Embedding: Uncovering Key Legal Drivers And Deterrents Of Isds Filing Frequencies, Sangchul Park

Chicago Journal of International Law

International investment agreements (IIAs), while intended to prop cross-border investment, have faced persistent criticism for potentially undermining the regulatory sovereignty of developing countries. Various mechanisms have been proposed as alternatives to traditional bilateral investment treaty (BIT) models, often with the goal of curbing investor-state dispute settlement (ISDS) filings. While existing research has uncovered the impact of nonlegal factors, such as macroeconomic crises, little has been done to systematically examine how legal provisions in either major model BITs or ISDS reform toolboxes influence ISDS filing patterns. To address this gap, this Article analyzes the interplay between (i) legal texts of 2,148 …

Revolutions In Justice: Advancing The Rome Statute System To Fight Impunity In Future Wars, Lindsay Freeman

Chicago Journal of International Law

The modern system of international criminal justice, which was born out of World War II and built in its current form during the early 1990s, is both revolutionary and a relic. The ideals, innovation, and vision that created the international legal order were ground-breaking at the time but have failed to evolve at a pace that ensures its relevance and efficacy. The challenges we face today are drastically different from those in the period in which the framework was conceived, the institutions were formed, and the laws were drafted. While these changes have been incremental over several decades, technological advances …

Technology And The Law Of Jus Ante Bellum, Asaf Lubin

Chicago Journal of International Law

The temporal boundaries of the international rules governing military force are myopic. By focusing only on the initiation and conduct of war, the legal dichotomy between Jus Ad Bellum and Jus In Bello fails to address the critical role of peacetime military preparations in shaping future conflicts. Disruptive military technologies, such as artificial intelligence and cyber offensive capabilities, only further underscore this deficiency. During their pre-war development, these technologies embed countless design choices, hardcoding into their software and user interfaces policy rationales, legal interpretations, and value judgments. Once deployed in battle, these choices have the potential to precondition warfighters and …

The Reign Of Cerberus: International Law And Technological Innovation, Paul B. Stephan

Chicago Journal of International Law

This Essay sketches an informal theory of the impact of technological change on international economics, and hence international relations expressed as international law. The theory points to a policy trilemma, something that I call Cerberus in a perhaps futile attempt at an arresting metaphor. The Essay uses the trilemma to illuminate the general trends in technology policy we see playing out in China, Europe, and the United States. It argues that we have the privilege of witnessing an ongoing natural experiment in optimal technology regulation and legal policy, with no guarantee as to which approach will prevail.

Of course, like …

Interplanetary Risk Regulation, Jonathan B. Wiener, Charles (Chase) Hamilton

Chicago Journal of International Law

Space exploration promises new opportunities but also new risks. After centuries of national settlements and international conflicts on Earth, and the Cold War era of two great power states racing to the Moon, today we see a rapidly proliferating arena of actors, both governmental and non-governmental, undertaking bold new ventures off-Earth while posing an array of new risks. These multiple activities, actors, and risks raise the prospects of regulatory gaps, costs, conflicts, and complexities that warrant reconsideration and renovation of legacy legal regimes such as the international space law agreements. New approaches are needed, beyond current national and international law, …

The Geopolitics Of Digital Regulation, Aziz Z. Huq

University of Chicago Law Review

Contemporary regulation of new digital technologies by nation-states unfolds under a darkening shadow of geopolitical competition. The United States government operates simultaneously in a domestic political environment dominated by oligopolistic firms competing to expand, and in an international political environment wherein it competes against other sovereign nations by cultivating and deploying digital technological capacities for geostrategic economic and military ends. Thanks to the ensuing burst of crosscutting pressures, both national and supranational regulation can take on surprisingly reticulated, even baroque or perverse, forms.

Three recent monographs offer illuminating and complementary maps of these geopolitical conflicts and the national responses to …