Law Commons^™

The Red Pill: Critical Race Theory, Ostrich Law, And The 14th Amendment Right To Free And Equal Thought And Dignity, Kindaka J. Sanders

St. Mary's Law Journal

No abstract provided.

Journal Staff

Duke Law Journal

No abstract provided.

"Race-Blind" Redistricting Algorithms, Kayla Swan

Duke Law Journal

Litigants increasingly use algorithmic evidence in redistricting cases, employing a collection of algorithmically generated plans to point out the outlier status of the state’s current plan. But with the Supreme Court’s declaration of a race-blind Equal Protection Clause in Students for Fair Admissions v. Harvard, the constitutionality of these methods as used in racial gerrymandering cases remains uncertain. Other scholars have examined the potential impacts of race blindness as an algorithmic constraint. This Note instead interrogates the practical possibility of race-blind redistricting algorithms and finds the promise of blindness illusory. Rather, requirements to limit racial inputs in redistricting algorithms …

Loper Bright And The Future Of Chevron Deference, Jack M. Beermann

William & Mary Law Review Online

This essay proposes that the Court overrule the Chevron two-step standard of review of agency statutory construction and replace it by reviving deference under the factors announced in the Skidmore case with a twist that preserves Chevron’s greatest virtue: agency freedom to alter its statutory interpretations so long as the agency remains within the zone of reasonable construction. This essay also proposes that the Court clarify the boundary between cases involving statutory construction and cases involving agency policy decisions that are reviewed under the arbitrary and capricious standard articulated in cases such as Motor Vehicles and Overton Park. …

Critical Race Religious Literacy: Exposing The Taproot Of Contemporary Evangelical Attacks On Crt, Robert O. Smith, Aja Y. Martinez

Journal of Critical Race and Ethnic Studies

No abstract provided.

Who’S Afraid Of Being Woke? – Critical Theory As Awakening To Erascism And Other Injustices, Berta E. Hernández-Truyol

Journal of Critical Race and Ethnic Studies

No abstract provided.

“He’S In Jail Now And I Don’T Feel Bad”: Analyzing Sureties’ Decisions To Report Bail Violations, Rachel Schumann, Carolyn Yule

International Journal on Responsibility

The control, supervision, and rehabilitation of criminalized people often falls on the shoulders of non-state agents and organizations. Surety bail releases are a clear embodiment of this trend, as the courts call upon relatives, friends, and employers to supervise the pre-conviction activity of people accused of a crime. According to the law, sureties must report all bail violations to the police; the resulting diffusion of responsibility is said to increase the penal state’s power and control over criminal justice-involved individuals while minimizing reputational risks. Yet how sureties carry out this role in the community remains unexplored. Using data from 36 …

Fording The Stream Of Commerce: What Relatedness Tells Us About Stream Of Commerce Cases, Eric Porterfield

St. Mary's Law Journal

The limit personal jurisdiction has on a court’s authority has long relied on a three-element test: (1) the defendant must have certain minimum contacts with the forum state, (2) the lawsuit must arise out of or be connected to the defendant’s contacts with the forum state, and (3) the exercise of jurisdiction must not offend “traditional notions of fair play and substantial justice.” The Supreme Court of the United States has spoken often about element one—”“minimum contacts.” Many cases detail the nature and quality of a defendant’s conduct that can create the requisite contacts with the forum state to justify …

Public Law 86-272 And The Texas Margin Tax, Marvin J. Williams

St. Mary's Law Journal

No abstract provided.

Cracking Down On Egg Law: Legal Discrepancies Impacting Sales Of Ungraded Eggs In Texas, Parker Benton

St. Mary's Law Journal

No abstract provided.

The Right To Procreate By Nontraditional Methods, Elizabeth Kreager

St. Mary's Law Journal

No abstract provided.

Translating A Cbdc Dollar Into A Constitutional Dollar, Christopher P. Guzelian

St. Mary's Law Journal

The constitutional Dollar was a silver coin. Federal and state paper moneys were

unconstitutional, and gold and copper coins were not Dollars. Consequently, notable

constitutional originalists claim any Dollar not constructed from silver—including the

current widely circulating paper Federal Reserve note—is unconstitutional. But the Dollar

soon may undergo an unprecedented technological metamorphosis: in 2022, the White

House and the Federal Reserve Bank Board of Governors advocated the possible adoption

of a U.S. Central Bank Digital Currency (“CBDC” Dollars). Private commercial

electronic bank credits have been issued for some time, but a CBDC Dollar would be

America’s first electronic government currency. …

Pro Se Litigants In The U.S. Supreme Court: How Do They Fare?, Kyle Persaud

St. Mary's Law Journal

No abstract provided.

With Liberty And Justice For All? The U.S. Internment Of Japanese Peruvians During World War Ii, Catherine T. Meisenheimer Miss

Swarthmore Undergraduate History Journal

After the bombing of Pearl Harbor on December 7, 1941, the United States committed to a policy of interning more than 120,000 Japanese Americans. While Japanese American detention remains the most researched instance of wartime internment, the U.S. incarceration of Japanese Peruvians merits equal attention. The political forces behind Japanese Peruvian internment transcended the more common explanations that haunt so much of literature today. Racism and hysteria played their respective roles in this history of wartime internment, but as the war progressed, other reasons for Japanese internment emerged. On January 4, 1942, the Japanese began interning American civilians in the …

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 …

Multidistrict Litigation & Choice Of Federal Law, Andrew Eller

University of Chicago Legal Forum

Multidistrict litigation (MDL) is a procedural mechanism that consolidates federal civil cases from around the country into one federal district for pre-trial proceedings. Congress enacted MDL by statute in 1968 in response to a substantial influx of cases, and MDL represents a large portion of the federal civil docket today. MDL creates tricky choice of law questions, however, because cases are often filed in one district and then transferred to another through consolidation. Should a judge handling an MDL apply the state and federal law that the original court would apply or should he apply the law of his own …

The Past, Present, And Future Of Humanitarian Parole, Farooq Chaudhry

University of Chicago Legal Forum

The humanitarian parole provision of the Immigration and Nationality Act grants the Attorney General discretion to allow people to enter the United States without an immigrant or non-immigrant visa. Despite the sparse language of the provision establishing parole, it has been used in a wide variety of contexts, ranging from one-time grants of entry into the United States for medical care to the establishment of large-scale programs for entire groups of people. The creation and administration of large-scale parole programs have been the focus of recent lawsuits, placing critical questions on the meaning and scope of the provision before judges. …

Non-Retrogression Without Law, Nicholas O. Stephanopoulos, Eric Mcghee, Christopher Warshaw

University of Chicago Legal Forum

For five straight cycles (the 1970s through the 2010s), Section 5 of the Voting Rights Act dominated redistricting in states covered by the provision. In these states, district plans had to be precleared with federal authorities before they could be implemented. Preclearance was granted only if plans wouldn’t retrogress, that is, reduce minority representation. Thanks to the Supreme Court’s 2013 decision in Shelby County v. Holder, Section 5 is no longer operative. So what happened to minority representation in formerly covered states after Section 5’s protections were withdrawn? This Article is the first to tackle this important question. We examine …

International Borders: Yours, Mine, And Ours, Beth Simmons

University of Chicago Legal Forum

International borders have become divisive issues in international and domestic politics. They have also become sites where the human rights of vulnerable persons have increasingly been documented as at risk. Policies of border hardening in the face of growing human mobility and other external threats—real and imagined—have made international borders focal sites of conflict at many levels. This Article argues that international law can reframe our understanding of bordering, leading to a more constructive approach to border management and greater respect for human rights. Borders are essentially institutions with the potential to settle coordination problems over territory. But of growing …

Borders And Boundaries In Markets: A Sociocognitive Approach For Market Definition And Implications For Antitrust, Elizabeth G. Pontikes

University of Chicago Legal Forum

Categorical distinctions are foundational to firm competition and regulation. Yet, market categories are notoriously difficult to define. The question of how to delineate markets is well-worn in the antitrust literature but is now the focus of a growing sociocognitive literature in strategy and organizational sociology.1 Historically, there has been little cross-pollination between these research areas. More integration, however, may be increasingly important in modern markets, where change is rapid, new technologies are key differentiators in many traditional industries, and platform competition is on the rise. In this paper, I introduce recent theoretical and empirical advances in sociocognitive research on categories …

The Neglected Value Of Effective Government, Richard H. Pildes

University of Chicago Legal Forum

Democratic systems inevitably seek to reflect and realize a range of values. But democratic and legal theory in recent decades have given too little attention and weight to the value and importance of delivering effective government. Much of democratic theory and legal scholarship on democracy focuses on values such as political equality, fair representation, democratic deliberation, political participation, and individual rights, among other values. But less weight is given to the capacity of government to deliver effectively on the issues citizens care about most urgently.

Yet a defining feature of—and threat to—democracy in recent years is the perceived failure of …

Cross-Border Influencers: Democracy And Externalities, Saul Levmore

University of Chicago Legal Forum

This Article explores the fact that United States law permits domestic crossborder political influences while restricting foreign interference in elections. It tries to show that the law is inconsistent in trying to balance its faith in democracy (in a given jurisdiction) with its concern for externalities. Laws forbidding all cross-border attempts to influence politics would seem to reflect the view that decision-making processes across a border should be respected rather than subject to interference, assuming that the other jurisdiction is reasonably democratic. The analysis explores, and offers examples of, the interaction between a faith in democracy and the consideration of …

The Border’S Migration, Nicole Hallett

University of Chicago Legal Forum

The border has never played a larger role in the American psyche than it does today, and yet it has never been less legally significant. Today, a noncitizen’s place of residence tells you less about what rights and privileges they enjoy than it ever has in the past. The border has migrated inward, affecting many aspects of non-citizens’ lives in the United States. The divergence between the physical and legal border is no accident. Instead, it is a policy response to the perceived loss of control over the physical border. But the physical border remains porous despite these legal changes. …

Borders That Bend, César Cuauhtémoc García Hernández

University of Chicago Legal Forum

Borders do not exist. They are made and remade. At every step, the law creates, moves, reforms, reproduces, and reinforces the border. Focusing on the boundary that México and the United States share, this essay critiques the U.S. Supreme Court’s privileging of the sovereign prerogative to control access to the nation’s territory. In their efforts to control movement across and near the border, legal doctrine permits Executive officials to deviate from ordinary legal constraints on the use of violence. This creates a modern version of the sovereign that Carl Schmitt described a century ago: extra-constitutional in origin and subject to …

Deploying Trustworthy Ai In The Courtroom: Lessons From Examining Algorithm Bias In Redistricting Ai, Wendy K. Tam Cho, Bruce E. Cain

University of Chicago Legal Forum

Deploying trustworthy AI is an increasingly pressing and common concern. In a court of law, the challenges are exacerbated by the confluence of a general lack of expertise in the judiciary and the rapid speed of technological advancement. We discuss the obstacles to trustworthy AI in the courtroom through a discussion that focuses on the legal landscape surrounding electoral redistricting. We focus on two particular issues, data bias and a lack of domain knowledge, and discuss how they may lead to problematic legal decisions. We conclude with a discussion of the separate but complementary roles of technology and human deliberation. …

A New Global Corporate Regulatory Power?: Market Entry As The Basis For Prescriptive Jurisdiction, Rachel Brewster

University of Chicago Legal Forum

The rules of international economic law are changing. In a range of areas, governments are asserting that if a multinational firm touches the state’s market, the state can claim the authority to regulate the firm everywhere. This departure from multilateral economic coordination and towards more unilateral regulatory power over firms’ global operations represents an important shift in international economic policy. We have entered an era where governments are embracing more unilateral tools to resist foreign economic influence and reinvigorating national industrial policies. This Article examines the political dynamics that lead states to use access to their national markets as the …