Law Commons^™

Prescribing Religion: The Ten Commandments On Classroom Walls, Samuel L. Bray, Nathan S. Chapman, Brent A. Strawn

Public Law and Legal Theory Working Papers

Several states have recently enacted laws requiring the display of the Ten Commandments in public schools. This Article considers the application of the Establishment Clause to these statutes. First, it examines the history of England and its North American colonies to show that a central feature of an established religion was the government’s prescription of particular religious beliefs and practices. Second, it demonstrates that choosing one version of the Ten Commandments to display in public school classrooms necessarily specifies particular religious beliefs. This is in contrast to expressions of generic providentialism that the founders understood the Establishment Clause to permit. …

Slicing Spontaneity, Lee Anne Fennell

Public Law and Legal Theory Working Papers

No abstract provided.

The First Amendment, Federal Employees, And The War On The “Deep State”, Sonja Starr

Public Law and Legal Theory Working Papers

This essay analyzes, from a First Amendment perspective, the second Trump administration’s efforts to align the federal workforce with its ideological preferences. The administration has broad powers to reshape the executive branch’s policy priorities and its messaging. But as I show with examples across the civil, military, and foreign services, it has gone beyond exercising those powers, retaliating against and restricting employees’ protected private speech and incorporating viewpoint- based conditions into hiring. These actions reflect a constitutional vision that stretches existing limits on public employee rights and, for many employees, subordinates those rights entirely when they conflict with purported Article …

Why General Law?, Samuel L. Bray, Christian R. Burset

Public Law and Legal Theory Working Papers

It has been almost a century since the Supreme Court said in Erie, “There is no general federal common law.” But the general law is in the middle of a controversial revival. Instead of siding with the adherents or detractors of general law, this Essay explores why general law emerges, and why it disappears. Three episodes of the emergence of general law are considered: the rise of general law in the late-eighteenth century British Empire, the rise of general law in the early American Republic, and the rise of general law in twenty-first century originalist and textualist scholarship. In each …

The Prehistory Of The Interim Docket, Aditya Bamzai, Samuel L. Bray

Public Law and Legal Theory Working Papers

Did the Supreme Court issue stays of lower court judgments before the modern era? This Essay explores the underappreciated history of the Supreme Court’s issuance of interim relief. As we show, the Supreme Court has relied on a wide variety of statutory and common law authorities to issue stays long before the recent controversies attending the “shadow” or “interim” docket. This history demonstrates that the Court has always had authority to fashion interim relief of some kind. More- over, it supports the conclusion that the Supreme Court’s authority under the All Writs Act exists even when a more specific statutory …

Inter-Agency Coordination, Jennifer Nou

Public Law and Legal Theory Working Papers

Conventional accounts portray agency design as the outcome of congressional and presidential quests for political control. This perspective aligns with administrative law’s preoccupation with agencies’ external constraints. The main unit of analysis from this point of view is the agency, and the central question is how political principals outside of the agency restrain it. In reality, however, agency actors must also abide by controls internal to the agency: how do these mechanisms arise and what explains their design? For their part, legislative and executive specifications invariably leave organizational slack. Agency heads thus possess substantial discretion to impose internal structures and …

Agglomerama, Lee Anne Fennell

Public Law and Legal Theory Working Papers

No abstract provided.

Fee Simple Obsolete, Lee Anne Fennell

Public Law and Legal Theory Working Papers

Urbanization has dramatically altered the way in which land generates and forfeits value. The dominant economic significance of patterns of land use and the opportunity costs of foregone complementarities have made the capacity to reconfigure urban property essential. Yet the architecture of our workhorse tenure form—the fee simple—is ill-suited to meet these challenges. The fee simple grants a perpetual monopoly on a piece of physical space—an ideal strategy when temporal spillovers loom large, interdependence among parcels is low, most value is produced within the four corners of the property, and cross-boundary externalities come in forms that governance strategies can readily …

Redundant Public-Private Enforcement, Zachary D. Clopton

Public Law and Legal Theory Working Papers

Redundancy is a four-letter word. According to courts and scholars, redundant litigation is costly, unfair, and confounding. Modern civil procedure has a (nearly) maximalist preference for centralization, and various rules seek to limit duplicative suits within and across court systems. This seemingly dominant view stands in marked contrast to the reality of the modern regulatory state. Redundant public-private enforcement, in which public and private actors have overlapping authority to enforce the law, is ubiquitous. Redundant enforcement also is noticeably underrepresented in the substantial literature on private and public enforcement, which typically treats government agencies and private attorneys general as substitutes …

What Legal Authority Does The Fed Need During A Financial Crisis?, Eric A. Posner

Public Law and Legal Theory Working Papers

The financial crisis of 2007-2008 exposed gaps in the law that authorizes federal agencies to provide emergency liquidity support. This essay describes the ways in which legal constraints hampered response to the crisis, proposes reforms that would make possible a unified and strong response, and criticizes the Dodd-Frank Act for weakening, rather than strengthening, the crisis-response agencies.

Sinking Costs To Force Or Deter Settlement, William H. J. Hubbard

Public Law and Legal Theory Working Papers

This paper develops a simple but general model of suit and settlement given symmetric information. Plaintiffs and defendants can choose when and to what extent they sink litigation costs through the use of retainers and detailed pleading. I demonstrate sharp asymmetries in the ability of plaintiffs and defendants to use sunk costs strategically to obtain or deter nuisance-value settlements. The model accounts for the roles of the merits, litigation costs, and bargaining power; incorporates complaints and answers for which parties’ investments in pleading detail are endogenously determined; permits strategic default by the defendant; and nests several existing models of NEV …

Reversing Progress: The Political And Legal Ramifications Of The 2025 Dei Policy Rollback, Bridgette Baldwin

Faculty Scholarship

The year 2025 will mark a significant turning point in the landscape of American civil rights policy, as federal executive orders the Trump administration initiated seek to dismantle longstanding diversity, equity, and inclusion ("DEI") initiatives. Rooted in a historical context of civil rights progress, these orders aim to curtail affirmative action programs, eliminate DEI mandates within federal agencies and contractors, and challenge the legal foundations of inclusive policies across the country. This Article explores the evolving landscape of civil rights and DEI in the United States, examining its historical roots, recent legal and political developments, and ongoing challenges. From landmark …

Beyond Bathrooms: The Far-Reaching Consequences Of Denying Gender Identity In Adams V. School Board Of St. Johns County, Jeffrey Sun, Regina Umpstead Pratel

American University Journal of Gender, Social Policy & the Law

INTRODUCTION: The transgender community continues to face discrimination in United States society, and legal protections are unlikely to change anytime soon. Understanding the broader context of these challenges helps explain why some instances of discrimination in public schools may be overlooked or even supported by public officials. An examination of recent judicial rulings concerning transgender students’ access to restrooms corresponding with their gender identity—situated within the broader convergence of national legal and social developments—provides critical insight into the structural barriers faced by transgender students within the educational system and transgender individuals in society at large. Significantly, the growing visibility of …

Can – And Should – The Un Charter Be Saved?, Steven Ratner

Articles

World leaders from Canada’s Mark Carney to Germany’s Friedrich Merz have announced the demise of the international rules that provided some degree of order to international relations since the Second World War.2 The immediate cause is clear to them and others – a seeming abandonment of international law, and the UN Charter in particular, by the United States government, its chief architect and advocate. The U.S. actions and rhetoric over Venezuela and Iran – wars the United States has started – as well as Greenland and Ukraine seem to have confirmed the worst about the future of international law.

Taxing The Architecture: A Structural Remedy For Disinformation In The Algorithmic Marketplace, Padmakshi Sharma

LL.M. Essays & Theses

This paper argues that the constitutional assumption that truth will prevail over falsehood in the marketplace of ideas has always depended on three structural preconditions. These conditions were: distributive parity for counter-speech, institutional segmentation of the information environment, and epistemic credibility signals that allowed non-expert audiences to distinguish authoritative from non-authoritative sources. Together, these conditions ensured that truth was granted a structural advantage sufficient to offset the harms of falsehood. Social media platforms have destroyed all of these conditions. The destruction is a consequence of an economic model organized around behavioral advertising and engagement maximization, which systematically amplifies disinformation over …

Tax As Curator: Tax Incentives And The Mediation Of Acquisition In Uk Museums, Julia Dalton

MA in Art Business Dissertations

Not provided

Laws, Looting, And Legitimate Trade: The Effectiveness Of The Icc At Prosecuting Cultural Heritage Crimes From An Art Market Perspective, Kassidy Houlihan

MA in Art Business Dissertations

This dissertation is a legal analysis of cultural heritage crime prosecution at the International Criminal Court aimed for art market practitioners. It seeks to evaluate whether the ICC could be an effective means of prosecuting cultural heritage crime in a way that positively effects the art market. It closely reads the Rome Statute to determine how the cultural heritage crimes of looting and intentional destruction of cultural property could be charged at the ICC. It then uses the case studies of Prosecutor v. Al Mahdi and Prosecutor v. Al Hassan, the only two cultural heritage cases at the ICC to …

‘Prov[Ing] What You Already Know’: The Overreliance On Medical Evidence In Adjudicating Ontario Disability Support Program Applications, Alison Imrie

Journal of Law and Social Policy

The Ontario Disability Support Program (ODSP) relies heavily on medical evidence when adjudicating applications. In doing so, it positions healthcare providers as the undisputed experts on applicants’ disabilities. This poses particular challenges for applicants with under-recognized or misunderstood medical conditions like Myalgic Encelphalomyelitis/Chronic Fatigue Syndrome (ME/CFS), who may struggle to obtain adequate medical care and thus adequate medical evidence for the purpose of ODSP applications. Through qualitative interviews with five individuals with ME/CFS who applied for ODSP, this paper illuminates the particular challenges faced by those with ME/CFS and other under-recognized disabilities in the ODSP application process. Drawing on literature …

Teaching Evolution After Kennedy And Mahmoud, Alexander Gouzoules

Faculty Publications

One of the longest running disputes at the intersection of education law and the First Amendment has involved conflict over evolutionary biology in American public schools. Through a century of nearly continuous litigation, creationist legislation and parental demands to exempt students from science instruction have been constrained by longstanding First Amendment doctrines.

That settlement is now unraveling. In Kennedy v. Bremerton School District, the Supreme Court abandoned its prior approach to the Establishment Clause in favor of a history-and-tradition analysis that is ill-suited to questions about modern scientific education. And in Mahmoud v. Taylor, the Court held that students' compulsory …

Investigation Expenses, Ryan Vacca

Faculty Publications

Misappropriating trade secrets is usually done in secret. After all, those taking another’s trade secret in violation of state and federal law rarely openly tout their misdeeds. As a result, trade secret owners do not always immediately realize that their trade secret has been misappropriated and must spend significant resources investigating whether misappropriation has occurred and, if so, by whom and to what extent.

An important question frequently arising over the last several years but overlooked in the scholarly literature is whether a trade secret owner’s investigation expenses are recoverable as “actual loss” under state and federal trade secret laws. …

Artificial Intelligence, Judicial Evolution, And Insurance, Renee Henson

Faculty Publications

AI-driven platforms have the potential to inflict traditional injuries in new ways. Proprietary algorithms trained on large volumes of personal data can cause mental, emotional, and sometimes physical injuries via conversational exchanges, harmful content recommendations, and the promotion of extremist content. This "algorithmic liability" fundamentally challenges existing legal doctrines and statutory protections, thereby exposing deficiencies in current insurance coverage frameworks. 

Historically, courts dismissed algorithmic liability claims early in litigation, invoking Section 230 immunity and First Amendment protections, and resisted classifying algorithmic tools as "products" for the purposes of products liability law. Recent jurisprudence, however, signals a critical turning point. On …

Campbell At 30: A Retrospective Appreciation, Michael W. Carroll, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

This Article traces the intellectual history of copyright law’s fair use doctrine at the Supreme Court from its first encounter with fair use to its landmark decision slightly more than three decades ago in Campbell v. Acuff-Rose Music, Inc. Campbell provided courts with a coherent, user-centered theory for applying the four statutory fair use factors provided under 17 U.S.C. § 107, a standard the Court recently ratified in Google LLC v. Oracle Am., Inc. and Andy Warhol Foundation for the Visual Arts v. Goldsmith. As one of three related articles, this Article advances two principal claims to contribute to …

From Myers To Slaughter: A Brief Theory Of The Constitutionalization Of Secondary Sources, Dana Neacsu, Paul D. Callister

Faculty Works

For more than two centuries, American constitutional adjudication has relied upon secondary sources. Yet constitutional theory has almost entirely ignored them. Originalism debates constitutional text. Living constitutionalism debates constitutional evolution. Theories of precedent debate judicial authority. None asks a more fundamental question: What role do secondary sources play in constitutional adjudication? This Article argues that the answer has fundamentally changed in the last 100 of years. Chief Justice William Howard Taft's opinion in Myers v. United States (1926) marked a constitutional revolution by transforming secondary authorities from explanatory materials into evidence of constitutional continuity. Exactly one century later, Chief Justice …

We Need More Picketts, Heather Elliott

Wyoming Law Review

We live in polarized times. Many people make assumptions about those that they perceive as being on “the other side” of the political spectrum. But C.J. Box’s heroic character, Joe Pickett, does not. He treats everyone he meets as a whole person and is accepting of differences (at least until someone proves to be a bad guy, in which case “things might get western”). Furthermore, Joe takes reasonable and moderate positions on almost every difficulty he faces. That includes the Endangered Species Act, which lies at the heart of the first Joe Pickett book, Open Season.

In this Article, …

Reclaiming Homeowner Wealth: A Conversation With Barry, Fried, And Hatfield, Prentiss Cox

Articles

Homeowners in the United States pay residential real estate brokers commission rates that are about twice as high as the commission charges by brokers in comparable countries. Given the enormous size of the residential home sale market—both in aggregate terms and as a percentage of wealth owned by the average homeowner—this cost discrepancy results in U.S. homeowners transferring tens of billions of dollars each year to brokers that would be saved in a more competitive and fair market. In Et Tu, Agent? Commission-Based Steering in Residential Real Estate (“Et Tu?”), Jordan M. Barry, Will Fried, and John William Hatfield provide …

International Declaration On Gender Apartheid And Its Destructive Consequences, Georges Abi-Saab, Belquis Ahmadi, Hala Alkarib, Waheeda Amien, Penelope Andrews, Zainah Anwar, Marzia Babakarkhail, Cecilia Bailliet, Manizha Bakhtari, Karima Bennoune, Laurence Boisson De Chazournes, Roya Boroumand, Terry Boullata, Charlotte Bunch, Rebecca J. Cook, Roberta Clarke, Radhika Coomaraswamy, Suraya Dalil, Wesahl Domingo, Shirin Ebadi, Yakin Ertük, Alda Facio, Stephanie Farrior, Hannah Garry, James Thuo Gathii, Richard Goldstone, Pablo De Greiff, Mozn Hassan, Yoko Hayashi, Helena Kennedy, Sisi Khampepe, Fawzia Koofi, Viviana Krsticevic, Joanna Lewis, Marina Mahathir, Haanya Malik, Elham Manea, Gay J. Mcdougall, Juan E. Méndez, Davood Moradian, Denis Mukwege, Nadia Murad, Elizabeth Odio Benito, Thandi Orleyn, Mikiko Otani, Tamana Zaryab Paryani, Pragna Patel, Fausto Pocar, Javaid Rehman, Mary Robinson, Kenneth Roth, Albie Sachs, Mariam Safi, Gita Sahgal, Sima Samar, Habiba Sarabi, Fatou Sou, Leigh Toomey, Melanne Verveer, Zarqa Yaftali, Ganna Yudkivska

Other Publications

The Declaration is the result of an 18-month process of global consultation with leading experts, including a series of virtual consultations with women human rights defenders (WHRDs) from Afghanistan in spring 2025 and an in-person convening of United Nations (UN) experts, Afghan and South African WHRDs, civil society representatives, and international law experts at the University of Michigan Law School in September 2025.

This effort builds on the precedent of other experts’ declarations, signed on to by leading international legal and human rights experts, which were very influential in developing a human rights jurisprudence on a range of issues, and …

Expanding Astrobiology: The Case For A Lunar Biorepository, Mary Hagedorn, Lynne R. Parenti, Robert A. Craddock, Pierre Comizzoli, Paula Mabee, Bonnie Meinke, Susan Wolf, John C. Bischof, Rebecca D. Sandlin, Shannon N. Tessier, Mahmet Toner, Baptiste Journaux, Robert Ambrose, Garret Fitzpatrick

Articles

Earth’s resources are essential to support an expanding presence beyond the planet. Yet global conflicts, environmental change, and natural disasters threaten ecosystems and biodiversity, putting the integrity of Earth’s ecosystems and its resources at risk. These converging challenges underscore the urgency to develop innovative strategies to conserve Earth’s biodiversity. Astrobiology—seeking to understand life’s origins, limits, and potential beyond Earth—plays a central role in this effort, helping to preserve Earth’s species while also providing critical assets to explore and work in space. A Lunar Biorepository was proposed to hold cryopreserved samples from among the most critical species on Earth. Here, we …

Abortion On The Move: Navigating The Fractured Reproductive Healthcare Landscape, Kim D. Ricardo

UIC Law Open Access Faculty Scholarship

No abstract provided.

Advanced Magic In Illinois: Amendments To The Illinois Rules Of Professional Conduct And The Confusion Over How To Handle Flat Fees Paid In Advance, Alberto Bernabe

UIC Law Open Access Faculty Scholarship

No abstract provided.

From Copper To Ashes: Violations Of The Right To A Healthy Environment And Health In Tsumeb, Namibia, Sarah Dávila A.

UIC Law Open Access Faculty Scholarship

No abstract provided.