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Severing Unconstitutional Amendments
James Durling
Yale Law School, JD Candidate, 2018
E. Garrett West
Yale Law School, JD Candidate, 2018

Thanks to John Brinkerhoff, Abbe Gluck, Ted Lee, Daryl Levinson, Scott Levy, and Mike Showalter for helpful comments and conversations. Thanks also to the careful editors at the University of Chicago Law Review. All errors are our own.

Constitutional Law
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85.3
Rethinking Family-Court Prosecutors: Elected and Agency Prosecutors and Prosecutorial Discretion in Juvenile Delinquency and Child Protection Cases
Josh Gupta-Kagan
Assistant Professor of Law, University of South Carolina School of Law

The author would like to thank Albertina Antognini, Annette Appell, Elizabeth Chambliss, Martin Guggenheim, Avni Gupta-Kagan, Clare Huntington, Cortney Lollar, Adrian Smith, Robin Walker-Sterling, and participants in a faculty workshop at the University of Kentucky College of Law and Duke Law School’s 2015 conference on civil rights, “The Present and Future of Civil Rights Movements: Race and Reform in 21st Century America,” for thoughtful comments on earlier drafts. The author would like to thank Joni Gerrity for excellent research assistance.

The law and the academy have long recognized criminal prosecutors’ immense power, especially the power to determine which cases to prosecute and which not to. Less attention has been focused on related issues in juvenile delinquency and child protection cases litigated in state family courts.
Children and Families Criminal Law
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85.3
Defining Flight Risk
Lauryn P. Gouldin
Associate Professor, Syracuse University College of Law; JD, New York University School of Law; AB, Princeton University

I thank the Criminal Justice Section of the Association of American Law Schools for honoring this work as the First Runner-Up in the 2017 Junior Scholars Paper Competition. For their thoughtful comments and feedback, I am grateful to Laura Appleman, Shima Baradaran Baughman, Todd Berger, Keith Bybee, Michael Cahill, Nicolas Commandeur, Jessica Eaglin, Nicole Smith Futrell, Cynthia Godsoe, Russell Gold, Nina Kohn, Corinna Lain, Kate Levine, Sandy Mayson, Janet Moore, Lauren Ouziel, Ellen Podgor, Anna Roberts, Laurent Sacharoff, Tim Schnacke, Jocelyn Simonson, Cora True-Frost, and Sam Wiseman. Thank you also to the participants in the NYC Markelloquium at Brooklyn Law School; the participants in the 2016 AALS Hot Topics program, “Responding to the Money Bail Crisis”; the participants in CrimFest 2016 at Cardozo Law School; and the participants in the Junior Scholars Criminal Justice Roundtable at Brooklyn Law School and St. John’s University School of Law. With much appreciation also to Hillary Anderson, S. Alex Berlucchi, Jordan Charnetsky, Irem Karacal, David Katz, Amy Rhinehardt, and Erin Shea for outstanding research assistance. I am also indebted to Kyle Jorstad, Pat Ward, Carly Gibbs, John McAdams, Eian Katz, and the other editors of The University of Chicago Law Review for their insightful suggestions.

The number of low-risk defendants who spend time in pretrial detention in this country is staggering: “Every year, more than 11 million people move through America’s 3,100 local jails, many on low-level, non-violent misdemeanors.”

Criminal Defense
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85.3
Courts, Congress, and the Conduct of Foreign Relations
Kristen E. Eichensehr
Assistant Professor, UCLA School of Law

For their generous engagement with this project, I am grateful to Aslı Bâli, Will Baude, Curt Bradley, Sam Bray, Josh Chafetz, Zach Clopton, Stephen Gardbaum, Carole Goldberg, Robert Goldstein, Jon Michaels, Kal Raustiala, Richard Re, Ryan Scoville, Shirin Sinnar, Stephen Vladeck, the editors of The University of Chicago Law Review, and participants in the Junior Faculty Federal Courts Workshop, Southern California International Law Scholars Workshop, and UCLA School of Law Summer Works-in-Progress Workshop. Andrew Brown, Nicholas Garver, Danielle Hesse, and Joshua Ostrer provided excellent research assistance.

In the US constitutional system, the executive branch generally conducts foreign relations. But in recent years, the nonexecutive branches—the judiciary and Congress—have challenged the exclusivity of the president’s authority to conduct foreign relations by opening direct channels of communication with foreign governments’ executive branches.

Courts International Law
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85.2
Courts’ Limited Ability to Protect Constitutional Rights
Adam S. Chilton
Assistant Professor of Law and Walter Ma nder Research Scholar, The University of Chicago Law School
Mila Versteeg
Professor of Law, University of Virgin ia School of Law
In October 2015, Poland’s newly elected conservative government moved swiftly to neutralize the country’s Constitutional Tribunal.
Constitutional Law Courts
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85.2
The Coming Demise of Liberal Constitutionalism?
Tom Ginsburg
Leo Spitz Professor of International Law and Ludwig and Hilde Wolf Research Scholar, The University of Chicago Law School
Aziz Z. Huq
Frank and Bernice J. Greenberg Professor of Law, The University of Chicago Law School.
Mila Versteeg
Class of 1941 Research Professor of Law, University of Virgina School of Law

In the wake of World War II, liberal constitutionalism emerged as a default design choice for political systems across Europe and North America. It then diffused more widely across the globe as a whole.

Constitutional Law
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85.1
Sticky Regulations
Aaron L. Nielson
Associate Professor, J. Reuben Clark Law School, Brigham Young University

The author thanks Stephanie Bair, Jim Brau, Emily Bremer, Brigham Daniels, Daniel Hemel, David Moore, Carolina Núñez, Jarrod Shobe, Paul Stancil, Lisa Grow Sun, Christopher Walker, the participants in the 2017 Center for the Study of the Administrative State’s Research Roundtable on Rethinking Due Process and accompanying public policy conference held at the Antonin Scalia Law School, George Mason University, and the participants in the 2016 Rocky Mountain Junior Scholars Forum held at the S.J. Quinney College of Law, University of Utah. Michael A. Stevens provided helpful research assistance. Financial support was provided by Brigham Young University and the Center for the Study of the Administrative State.

Modern administrative law is often said to present a dilemma.

Administrative Law Behavioral Economics
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85.1
Institutional Loyalties in Constitutional Law
David Fontana
Associate Professor of Law, George Washington University

Our thanks to Michael Abramowicz, Joseph Blocher, Mary Anne Case, Justin Driver, Alison LaCroix, Jonathan Masur, Jon Michaels, Douglas NeJaime, Martha Nussbaum, David Pozen, David Schleicher, Paul Schied, Naomi Schoenbaum, Micah Schwartzman, Michael Selmi, Ganesh Sitaraman, Lior Strahilevitz, and Laura Weinrib for thoughtful comments and suggestions. Lael Weinberger, Brent Cooper, and other editors at the Review also supplied useful critical thoughts. We also received helpful feedback from workshops at the George Washington Law School and the University of Chicago Law School. Support for one of us (Huq) was supplied by the Frank J. Cicero, Jr. Fund. Our errors are our responsibility alone.

Aziz Z. Huq
Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School

The Constitution’s separation of powers implies the existence of three distinct and separate branches.

Constitutional Law Institutional Design Separation of Powers

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