Law Commons^™

The Long Arm Of Bostock V. Clayton County: Opening 42 U.S.C. § 1985(3) To Claims Of Anti-Lgbt Discrimination, Jason Hanselman

University of Chicago Law Review

42 U.S.C. § 1985(3) is a Reconstruction-era statute that allows one to recover damages from those that conspire to deprive one of one’s constitutional or statutory rights. In the 1970s, the Supreme Court began requiring a showing of discriminatory animus in order to confer liability under the statute. The lower courts have since found that allegations of discriminatory animus against LGBT folks are insufficient to satisfy the requirement. Most circuits have also held that sex-based discrimination is cognizable under § 1985(3), citing federal law’s condemnation of the practice. Other circuits have found sex-based discrimination cognizable under the statute as well, …

Covenant Control: The Case For Treating Uptier Transactions As A Form Of Corporate Control, Ryan Schloessmann

University of Chicago Law Review

In recent years, uptier transactions have emerged as a novel way for distressed companies to restructure their debt obligations, resulting in unforeseen and inequitable outcomes for investors in corporate debt. Uptier transactions depend on provisions in credit agreements that permit debtholders with a majority stake in a class of debt to make decisions on behalf of all debtholders. Distressed companies take advantage of these provisions by colluding with a majority of debtholders to shift economic value from the remaining debtholders to themselves. As this Comment demonstrates, these transactions are likely to be value destructive and present an issue for capital …

A Gricean Theory Of Expressive Conduct, Richard P. Stillman

University of Chicago Law Review

In Spence v. Washington, the Supreme Court devised a two-part test for determining whether a nonverbal action is expressive conduct protected by the First Amendment. According to the Spence test, a nonverbal action is expressive if and only if: (1) it is intended to communicate a particularized message; and (2) in the circumstances in which the action is performed, the likelihood is great that the message will be understood by observers.

In subsequent cases, however, the Court has made clear that the category of “expressive conduct” embraces a much wider variety of nonverbal behaviors than a literal reading of the …

International Law And The Right To Global Internet Access: Exploring Internet Access As A Human Right Through The Lens Of Iran’S Women-Life-Freedom Movement, Pegah Banihashemi

Chicago Journal of International Law

The speed of digital transformation creates major challenges for understanding and protecting digital technology-based human rights. While the internet may once have been a nice-to-have amenity, as societies become increasingly dependent on digital infrastructure, it has become a prerequisite to access fundamental human rights. Because the protection of internet access as a human right is lacking, individuals remain vulnerable to abuses, particularly by autocratic leaders.

This Essay uses the still-unfolding Iranian Women-Life-Freedom Movement to examine the consequences of internet deprivation. The Iranian regime’s brutal treatment of its citizens sparked widespread protests which were largely coordinated through social media, highlighting the …

The Digital Services Act And The Brussels Effect On Platform Content Moderation, Dawn Carla Nunziato

Chicago Journal of International Law

The EU’s latest regulation of social media platforms—the Digital Services Act (DSA)—will create tension and conflict with the U.S. speech regime applicable to social media platforms. The DSA, like prior EU regulations of social media platforms, will further instantiate the Brussels Effect, whereby EU regulators wield powerful influence on how social media platforms moderate content on the global scale. This is because the DSA’s regulatory regime (with its huge penalties for noncompliance) will incentivize the platforms to skew their global content moderation policies toward the EU’s instead of the U.S.’s balance of speech harms versus benefits. The Act’s incentives for …

The Recent Free Expression Jurisprudence Of The Working Group On Arbitrary Detention, Arthur Traldi

Chicago Journal of International Law

The Working Group on Arbitrary Detention is one of the lesser-known United Nations Special Procedures. While its name does not indicate a focus on freedom of expression, it has defined “arbitrary” detention to encompass detention based on conduct protected under the free expression provisions of Article 19 of the International Covenant on Civil and Political Rights (for States Parties) and the corresponding text of the Universal Declaration of Human Rights. As such, the WGAD can serve as a critical forum for protecting free expression—particularly for individuals whose free expression rights may be violated by states not parties to the ICCPR …

Cracks In The Sandbox: Mobilizing Existing International Legal Tools To Fill Gaps In Sand Mining Regulations, Warren E. Yu

Chicago Journal of International Law

Sand sustains the foundations of modern economies, but almost nothing exists in the way of global sand regulation and governance. Despite the documented risks posed by rampant, unregulated extraction, a global governance regime is unlikely to emerge any time soon. This Comment argues that possible governance solutions will need to come from what we currently have in the legal toolbox. In other words, existing frameworks, principles, and lessons from case law must be drawn upon and refitted to tackle some of the most salient issues caused by sand mining. This Comment aims to illustrate that even a highly fractured legal …

The Uncertain Judge, Courtney M. Cox

University of Chicago Law Review

The intellectually honest judge faces a very serious problem about which little has been said. It is this: What should a judge do when she knows all the relevant facts, laws, and theories of adjudication, but still remains uncertain about what she ought to do? Such occasions will arise, for whatever her preferred theory about how she ought to decide a given case—what I will call her preferred “jurisprudence”— she may harbor lingering doubts that a competing jurisprudence is correct instead. And sometimes, these competing jurisprudences provide conflicting guidance. When that happens, what should she do?

Drawing on emerging debates …

Beyond States: A Constitutional History Of Territory, Statehood, And Nation-Building, Craig Green

University of Chicago Law Review

The United States has always been more than simply a group of united states. The constitutional history of national union and component states is linked to a third category: federal territory. This Article uses an integrated history of territory, statehood, and union to develop a new framework for analyzing constitutional statehood. Three historical periods are crucial—the Founding Era, the Civil War, and Reconstruction—as times when statehood was especially malleable as a matter of constitutional law. During each of those formative periods, the most important constitutional struggles about statehood and the union involved federal territories.

Conflicts about territories reveal an important …

Taming Wildcat Stablecoins, Gary B. Gorton, Jeffery Y. Zhang

University of Chicago Law Review

Cryptocurrencies, including stablecoins, are all the rage. Investors are exploring ways to profit off of them. Governments are considering ways to regulate them. While the technology underlying cryptocurrencies is new, the economics is centuries old. Oftentimes, lawmakers are so focused on understanding a new technological innovation that they fail to ask what exactly is being created.

In this case, the new technology has recreated circulating private money in the form of stablecoins, which are similar to the banknotes that circulated in many countries during the nineteenth century. The implication is that stablecoin issuers are unregulated banks. Based on lessons learned …

In Defense Of Chapter 11 For Mass Torts, Anthony J. Casey, Joshua C. Macey

University of Chicago Law Review

This Essay argues that bankruptcy proceedings are well-suited to resolving mass tort claims. Mass tort cases create a collective action problem that encourages claimants who are worried about available recoveries to race to the courthouse to collect ahead of others. This race can destroy going concern value and lead to the dismemberment of valuable firms. Coordination among claimants is difficult as each one seeks to maximize its own recoveries. These are the very collective action and holdout problems that bankruptcy proceedings are designed to solve. As such, bankruptcy proceedings are appropriate means of resolving mass torts as long as they …

Don’T Believe Your Eyes: Fighting Deepfaked Nonconsensual Pornography With Tort Law, Moncarol Y. Wang

University of Chicago Legal Forum

No abstract provided.

The Case Against Reason-Based Abortion Bans, Gray Sutton

University of Chicago Legal Forum

No abstract provided.

Reconstructing Embryos: The Legal Ramifications Of Ipsc Technology And The Dickey-Wicker Amendment, Nicholas Riley

University of Chicago Legal Forum

No abstract provided.

Judicial Misreading Of Rluipa’S “Substantial Burden” And Extinguishment Of Inmates’ Bodily Free Exercise, Timothy Kowalczyk

University of Chicago Legal Forum

No abstract provided.

Long Covid And Temporary Conditions As Disabilities Under The Ada, Emily P. King

University of Chicago Legal Forum

No abstract provided.

Fixing The Powerhouse Of The Cell: Challenging The Fda’S Prohibition Of Mitochondrial Replacement Therapy, Kendall Bryant

University of Chicago Legal Forum

No abstract provided.

No Money Allowed, Kimberly D. Krawiec

University of Chicago Legal Forum

No abstract provided.

Involuntary Reproductive Servitude: Forced Pregnancy, Abortion, And The Thirteenth Amendment, Michele Goodwin

University of Chicago Legal Forum

No abstract provided.

“Long Covid,” Bodily Systems As Adaaa Major Life Activities, And The Social Model Of Disability, Leslie P. Francis, Michael Ashley Stein

University of Chicago Legal Forum

No abstract provided.

Borrowed Wombs: On Uterus Transplants And The “Right To Experience Pregnancy”, Glenn Cohen

University of Chicago Legal Forum

No abstract provided.

Donorsexuality After Dobbs, Mary Anne Case

University of Chicago Legal Forum

For the better part of a century, the United States Supreme Court has issued a series of decisions, “the underlying premise of [which is] that the Constitution protects ‘the right of the individual . . . to be free from unwarranted governmental intrusion into . . . the decision whether to bear or beget a child.’”¹ The most controversial line of such decisions, protecting from “unwarranted governmental intrusion” an individual’s right to choose to terminate a pregnancy through abortion, ² has been decisively overruled.³ The same conservative justices who have eliminated abortion rights have for the entirety of …

Bringing Up The Bodies, Bennett Capers

University of Chicago Legal Forum

Allow me to begin with a scene from one of my favorite novels of the last twenty years. The novel is Hilary Mantel’s Bring Up the Bodies, ¹ the second in her award-winning trilogy of historical novels about Thomas Cromwell and King Henry VIII.²

By the start of Bring Up the Bodies, King Henry VIII has had his first marriage annulled and is now married to Anne Boleyn. Indeed, Anne Boleyn is pregnant, and the king is optimistic about a male heir. But the king already has eyes on Jane Seymour, and when Anne Boleyn miscarries, the king is …

Managing And Monitoring The Menopausal Body, Naomi R. Cahn, Bridget J. Crawford, Emily Gold Waldman

University of Chicago Legal Forum

This Essay explores how menopausal bodies are managed and monitored in contemporary U.S. culture. The focus is on two distinct aspects of that management and monitoring: menopausal hormone therapy (MHT) and the burgeoning market for technology-driven menopause products and services. While each of these allegedly improves the menopause experience, a closer investigation reveals a more complex interaction of profit motives and traditional notions of gender identity. The Essay identifies problems with current medical and business practices and suggests a role for law in destigmatizing menopause, ensuring availability and safety of MHT, and enhancing privacy for users of menopause-oriented apps and …

Black Masculinity And The Government, Paul Butler

University of Chicago Legal Forum

No abstract provided.

Abortion Experts, Aziza Ahmed

University of Chicago Legal Forum

No abstract provided.

Law School Record, Vol. 69, No. 2 (Spring 2023), Law School Record Editors

Law School Record

• Message from the Dean
• How Disagreement Remade Corporate Law
• “So Deeply Our Hearts Were Allied”
• Clearing a Path for Entrepreneurs
• Teaching and Mentorship That ‘Students Treasure and Universities Celebrate’
• ‘You Get a Toe in the Water’
• Alumni News: Books Published by Alumni in 2022
• Development News
• Alumni in Memoriam

Labor Market Regulation And Worker Power, Hiba Hafiz, Ioana Marinescu

University of Chicago Law Review

Due to a lack of competition among employers in the labor market, employers have monopsony power, or power to pay workers less than what the workers contribute to the employers’ bottom line. “Worker power” is workers’ ability to obtain higher wages and better working conditions. While the antitrust agencies have just begun developing policy and enforcement strategies to regulate employer monopsony, broader government policies that impact market forces, the formation of labor market institutions, and workers’ voices and exit options also play a defining role in shaping worker power relative to employers. For example, in addition to antitrust enforcement, worker …

Worker Welfare And Antitrust, Herbert Hovenkamp

University of Chicago Law Review

The field of antitrust and labor has gone through a profound change in orientation. For the great bulk of its history, labor was viewed by antitrust enforcers as a competitive threat. The debate over antitrust and labor was framed around whether there should be a labor “immunity” from the antitrust laws. In just the last decade, however, the orientation has flipped. Most new writing views labor as a target of anticompetitive restraints imposed by employers. Antitrust is increasingly concerned with protecting labor rather than challenging its conduct.

Antitrust interest in labor markets is properly focused on two things. The smaller …

Restructuring American Antitrust Law: Institutionalist Economics And The Antitrust Labor Immunity, 1890–1940s, Laura Phillips-Sawyer

University of Chicago Law Review

Labor unions and their leaders were cast as the perennial antitrust defendants for the first fifty years of federal antitrust law, and this historic imbalance fostered a movement in economic scholarship and labor activism to restructure American antitrust law. The progressive liberal-institutionalist movement in economics played an important role in legitimizing trade unions by recasting them, not as anticompetitive cartels, but rather as a necessary corollary to the growing market power of industrial firms. Louis Brandeis, the litigator and future jurist, drew from institutionalists’ work to support antitrust reform. He argued that antitrust law was not necessarily anathema to the …