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Law School Record, Vol. 71, No. 1 (Fall 2024), Law School Record Editors

Law School Record

• Message from the Dean
• The Law School celebrates its annual Hooding and Diploma Ceremony
• Coase-Sandor Institute celebrates a milestone
• Judith Wright Fellowship marks an anniversary
• Jenner & Block Supreme and Appellate Clinic Scores a victory
• Exoneration Project secures three key wins
• AI and the Law
• In the Sports Arena
• Theory in Practice
• Professor Alison LaCroix discusses her new book
• The Law School welcomes three new faculty members
• Professor Farah Peterson wins a prestigious award
• Students discuss their summer experiences
• Development News
• Reunion highlights
• In Memoriam
• Giving Back: Vanessa Countryman,'05

Twin Inadequacies In The Ftc’S Recent Biometrics Policy Statement, John Burroughs

The University of Chicago Business Law Review

In the spring of 2023, the FTC released a policy statement addressing biometric information and technologies using or purporting to use such information. The policy statement contains a remarkably broad definition of “biometric information” and describes a variety of business practices that could violate § 5 of the Federal Trade Commission Act by being either “deceptive” or “unfair.” In spite of the policy statement’s comprehensiveness, however, it has two substantial inadequacies. First, the policy statement’s definition of “biometric information” is overly broad and will introduce unnecessary legal uncertainty for businesses by encompassing items not commonly thought of as “biometric information …

State Telemedicine Abortion Restrictions And The Dormant Commerce Clause, Laura Hu

University of Chicago Law Review

Telemedicine abortions allow women to meet virtually with abortion providers and receive abortion medication through the mail, all without ever leaving their homes. This development could be instrumental in facilitating access to abortion care for women living in abortion-restrictive states after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. However, many abortion-restrictive states have moved to restrict remote abortion care and impose legal liability on out-of-state telemedicine abortion providers.

This Comment outlines a novel argument that these state restrictions on telemedicine abortions violate the Dormant Commerce Clause, which prohibits state regulation that discriminates against or unduly burdens …

Mutually Assured Democracy: Cooperating Under The Compact Clause To Combat Partisan Gerrymandering, Samuel P. Leroy

University of Chicago Law Review

No abstract provided.

Political Freedom And Economic Constraints: The Political Setting For The Problem Of Twelve, John C. Coates

The University of Chicago Business Law Review

This essay outlines foundations of the current moment facing corporations and politics, which I have characterized as a new “problem of twelve”—that is, the concentration of power in the hands of a small number of index and private equity fund sponsors.1 Through the middle of the twentieth century, public companies dominated the U.S. economy and government. They owed their dominance to having been socially legitimated coming out of the Great Depression, a legitimation built on their affirmative war efforts and on the negative constraints of securities law, progressive taxation, labor unions, and operational regulation. From 1970 on, however, they changed …

The Power To Shape The “Political”, Amanda Shanor

The University of Chicago Business Law Review

The role of corporations in American life has become the focus of intense public and scholarly debate. How do corporations influence political outcomes? What norms or laws should structure corporate political participation? And who should decide what political interventions corporations make? These are vitally important questions that bear on how to deal with the pressing challenges of social media, money in politics, polarization, autocratic threats, and the influence of consolidated capital on governmental and democratic decision-making.

Most conversations about the role of corporations in politics, however, assume a definition of “political.” This key term is commonly taken for granted or …

Kalven For Corporations: Should For-Profit Corporations Adopt Public Statement Policies?, Anthony J. Casey, Tom Ginsburg

The University of Chicago Business Law Review

In the last few years, corporations have been called upon to take public positions on myriad issues unconnected to core business concerns. Demands for public statements may arise from various stakeholders, as well as from the general public and the media. Sometimes such statements are uncontroversial, but other times, firms find themselves in a no-win position, in which both silence and voice will offend some core constituency. Crafting meaningful public-facing statements becomes a major challenge.

In this article, we ask whether these corporations should adopt some form of express upfront policy on when they will and when they will not …

How Did Corporations Get Stuck In Politics And Can They Escape?, Jill E. Fisch, Jeff Schwartz

The University of Chicago Business Law Review

Corporations have always been involved in politics, but today is different. They are taking public positions, either directly or indirectly, on contested political and social issues unrelated to their businesses. In contrast to the conventional wisdom, we argue that this practice, which we term “corporate political posturing,” is problematic. First, it is of dubious value to the corporation and its stakeholders. Corporate political posturing often backfires, it does so unpredictably and potentially catastrophically, and it is particularly susceptible to agency costs. Second, it is harmful to society. The fundamental problem is that corporations are institutionally ill-equipped to take center stage …

Corporate Participation In Social Debates, Anna Toniolo

The University of Chicago Business Law Review

Corporations are increasingly wading into social and political matters that are unrelated to their business operations. This Paper empirically investigates corporate participation in social debates through the corporate response to Dobbs, the Supreme Court’s decision overturning the constitutional right to abortion.

First, the Paper identifies and examines the public companies that reacted to the reversal of Roe v. Wade (“Reacting Companies”). Only a few corporations reacted. On the one side, they tend to be large, with sizeable workforces, concentrated in consumer-facing and tech industries, and headquartered in states with no restrictions on abortion rights. On the other side, they tend …

The Surprising Survival—So Far—Of The Corporate Contribution Ban, Richard Briffault

The University of Chicago Business Law Review

No abstract provided.

Lawbreaking As Lawmaking, Michael S. Kang

The University of Chicago Business Law Review

No abstract provided.

Nonprofit Corporations & Politics: The Entity/Coordination Tension, Lloyd Hitoshi Mayer

The University of Chicago Business Law Review

Federal tax law treats separate nonprofit corporations as distinct legal entities for almost all purposes, in common with most other areas of law. With respect to political activity, this means that one nonprofit corporation’s lobbying or election-related actions are generally not attributed to another nonprofit corporation. This is the case even if the two entities have overlapping or even identical boards of directors. It is also the case even if the two entities collaborate regarding their respective activities and share employees, facilities, outside vendors, and other resources, as long as the entities reasonably allocate the costs for those shared resources. …

Free Markets And Free Speech: Understanding The Limits Of The Noerr-Pennington Doctrine, Mitsoo K. Patel

The University of Chicago Business Law Review

Based in First Amendment principles, the Noerr-Pennington doctrine immunizes parties petitioning the government from antitrust liability, even when such petitioning may be considered anticompetitive. Within the doctrine exists a narrower “sham exception” which eliminates Noerr-Pennington antitrust immunity when petitions are merely shams meant to interfere with a competitor’s business. The Supreme Court has examined the sham exception in two cases which have produced differing standards for when and how to apply it. As a result, circuit courts have had to grapple with this uncertainty and a circuit split has developed as they have disagreed on the proper approach to applying …

Balancing Interests In The Separation Of Powers, Shalev Gad Roisman

University of Chicago Law Review

There are two conventional methods for resolving separation of powers disputes: formalism and functionalism. Although both approaches have been around for decades, neither has proven capable of resolving the difficult separation of powers disputes that actually arise today. Such disputes—including over statutory removal restrictions, recognition, conduct of diplomacy, and executive privilege—do not involve instances where one branch is trying to exercise the other’s exclusive power, as formalism posits. Nor is it clear how one could measure, or evaluate the effect of any one dispute on, the general balance of powers between the branches that functionalism seeks to maintain. Instead, difficult …

Weak-Willed Legislatures And Statutory Interpretation, Helen Zhao

University of Chicago Law Review

Not all statutes are created equal. Contributing to the literature on “super statutes,” I suggest that an analogy to the philosophical concept of weakness of will can illuminate circumstances under which some statutes ought to stand above others. Analogizing to philosopher Richard Holton’s account of weak will, I develop an account in which some statutes express long-term commitments, are intended to foreclose future deliberation, and enact reasons into the law. Such statutes have the status of what Holton calls “resolutions.” Like an individual resolving to stop eating meat, yet finding themself unable to resist, Congress can be weak willed when …

Legitimizing Agencies, Brian D. Feinstein

University of Chicago Law Review

The project of bolstering the administrative state’s perceived legitimacy is central to administrative law. To enhance agencies’ legitimacy with the public, generations of judges and scholars have variously called for changes designed to insulate technocrats from political influence, involve interested members of the public, and subject agencies to greater political control. Despite the pitch of debate in elite legal circles, however, little is known about the views of ordinary citizens—the very people whose beliefs constitute popular legitimacy.

This Article provides evidence of Americans’ actual views concerning what features contribute to agencies’ perceived legitimacy. It presents the results of a set …

Effective Removal Of Article Iii Judges: Case Suspensions And The Constitutional Limits Of Judicial Self-Policing, Jack Brake

University of Chicago Law Review

Under the Judicial Conduct and Disability Act of 1980 (JCDA), it falls to federal judges in each circuit to investigate and redress complaints about their col- leagues’ behavior. A controversial provision of the Act authorizes the temporary suspension of misbehaving judges from new case assignments. Judges suspended under the Act—most recently, Judge Pauline Newman in the Federal Circuit—have argued that this amounts to effectively removing them from office without impeachment, violating constitutional protections of judicial tenure and independence. No court has invalidated a suspension on this basis so far. Yet courts have reserved the question taken up here, namely whether …

The Information Costs Of Exclusion, Jonathan Sarnoff

University of Chicago Law Review

The appropriate scope of the right to exclude is among the most contentious topics in property theory: while some defend direct state regulations that override owners’ right to exclude unwanted uses from their property, others defend greater deference to owners’ authority, implemented by stringent enforcement of the right to exclude. In recent years, scholars who favor exclusion have developed novel arguments to support it by focusing on the information costs of property. Because every- one must respect property rights, those rights must be simple enough for everyone to understand their content. And the right to exclude, which requires everyone to …

Deciphering The "Traditional Property Interests" Test For Property-Based Mail And Wire Fraud, Grant Delaune

University of Chicago Law Review

The mail and wire fraud statutes are the “first line of defense” against fraudulent activities. Adaptable and broadly written, they are go-to tools in the white- collar prosecutor’s arsenal. But this flexibility has also raised concern about their expansive and indeterminate scope—leading the Supreme Court to eliminate certain honest-services theories of fraud and limit property-based theories of fraud to the protection of “traditional property interests.”

Unfortunately, the vagueness of the traditional property interests test has resulted in a confusing morass of inconsistent judgments. With limited guidance from the Supreme Court on how to conduct such an inquiry, lower courts have …

The Finality Of Reinstated Orders Of Removal Under 8 U.S.C. § 1252, Jonah Klausner

University of Chicago Law Review

Federal law authorizes the reinstatement of a prior removal order when a noncitizen “reenter[s] the United States without authorization after having already been removed.” It further provides an “expedited process” for doing so, denying to such noncitizens the right to contest before an immigration judge their removability or inadmissibility. The question whether a noncitizen is removable is thus definitively settled immediately upon reinstatement. But the question to where the noncitizen will be removed is less certain. This is because noncitizens subject to reinstated orders of removal retain the right to pursue “withholding-only” relief, which precludes removal to the noncitizen’s home …

Theorizing Constitutional Change In East Asia, John Gillespie

Chicago Journal of International Law

How do constitutions change in response to social problems? This Article explores why constitutions in three East Asian countries, namely Japan, Indonesia, and China, changed rapidly during times of social crisis and then incrementally evolved during periods of stability. It looks for explanations in historical institutionalism, a novel theory developed to understand the factors that give rise to the creation, persistence, and change of political institutions, such as constitutions. Constitutional change in these East Asian countries is explored by examining constitutionally defined eminent domain powers that enable governments to compulsorily acquire land in the public interest. The Article aims to …

The New Gender Perspective: The Dawn Of Intersectional Autonomy In Women’S Rights, Rosa Celorio

Chicago Journal of International Law

International human rights jurisprudence has increasingly mandated state action which integrates a gender perspective, taking into consideration the discriminatory norms, harmful social practices, stereotypes, and violence that women have and still suffer. A range of supranational bodies have issued case decisions promoting the adoption of gender-sensitive legislation, policies, programs, and the establishment of administration of justice systems well-trained and equipped to address women’s rights violations.

This article discusses how the conception of this gender perspective has evolved over time and is now centered on the pursuit of autonomy for women. Autonomy is presented as a key ingredient to ensure due …

Navigating State Interventions: The Pivotal Role Of Ptas In Modern Trade Conflicts, Andrew D. Mitchell

Chicago Journal of International Law

In international trade, State interventions often challenge the efficacy of traditional antidumping and countervailing measures under the World Trade Organization (WTO) framework. This article examines the limitations of the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing Measures (SCM Agreement) in addressing State interventions, such as export taxes, export bans on raw materials, and non-commercial activities by State-owned enterprises. These interventions pose significant legal and economic challenges in global trade. The article advocates for the potential of preferential trade agreements (PTAs) as practical tools to address these challenges, surpassing traditional legal pathways under the Anti-Dumping Agreement. An analysis of …

Kids, No Phones At The Dinner Table: Analyzing The People’S Republic Of China’S Proposed “Minor Mode” Regulation And An International Right To The Internet, Tucker Craven

Chicago Journal of International Law

Around the world, governments are contemplating taking steps to reverse or mitigate the negative health and developmental effects that come from the increasing amount of time children are spending online and using screens. In 2023, the People’s Republic of China (PRC) released a draft regulation restricting minors’ screen time and internet use, which imposes a significant burden not only on children, but also on technology and internet companies that wish to continue operating in the country. However, the PRC’s proposed minor mode regulation is neither an extreme departure from the types of restrictions neighboring countries in East Asia have imposed …

Subsidiarity And The Best Interests Of The Child, Lindsay Saligman

Chicago Journal of International Law

In the context of adoption, subsidiarity is the principle that children should remain with their birth families whenever possible, and whenever not possible, that in-country placements should take precedence over intercountry adoption. This Comment looks at the specific meaning of subsidiarity in the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. It highlights that the convention does not require intercountry adoption be a last resort, but rather that “due consideration” be given to placements “within the State of origin.” Then, the Comment looks at the domestic law of India, Colombia, and South Korea, three of …

Investor State Dispute Settlement And Net Zero Initiatives: Case Study Of Germany’S Coal Exit Auctions, Raam Tambe

Chicago Journal of International Law

This Comment provides a comprehensive legal analysis of the potential investor-state disputes arising from Germany’s groundbreaking Coal Exit Act, which utilizes reverse auctions to phase out coal-fired power plants. The study investigates potential breaches of the Energy Charter Treaty (ECT), focusing on Article 10(1), the fair and equitable treatment clause, and Article 13(1), the expropriation clause. The reverse auction mechanism, when examined under ECT provisions, could be perceived as both a breach of fair and equitable treatment and an unlawful, indirect expropriation, substantially depriving investors of the value of their investments. The analysis also delves into Germany’s possible defenses to …

Authoritarian Privacy, Mark Jia

University of Chicago Law Review

Privacy laws are traditionally associated with democracy. Yet autocracies increasingly have them. Why do governments that repress their citizens also protect their privacy? This Article answers this question through a study of China. China is a leading autocracy and the architect of a massive surveillance state. But China is also a major player in data protection, having enacted and enforced a number of laws on information privacy. To explain how this came to be, the Article first discusses several top-down objectives often said to motivate China’s privacy laws: advancing its digital economy, expanding its global influence, and protecting its national …

The Strange Career Of Antisubordination, Justin Driver

University of Chicago Law Review

Constitutional scholars have long construed the Equal Protection Clause as containing two dueling visions: anticlassification and antisubordination. Scholars advancing the first view contend that the Clause prohibits the government from racially classifying people. But scholars promoting the second view argue that racial classifications are permissible—provided that the government does not engage in racial subjugation. On no issue have these competing perspectives clashed more intensely than affirmative action. Where the anticlassification view deems those policies unconstitutional for exhibiting race consciousness, the antisubordination view finds them permissible because they do not racially subjugate anyone. Conventional antisubordination scholars portray the concept’s support for …

“Federalisms” And Union: The Interbellum Constitution, Annette Gordon-Reed

University of Chicago Law Review

In her latest book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms,¹ Professor Alison LaCroix suggests that the period between 1815 and 1861 in the United States has too often been treated as “the flyover country of constitutional history.”² What was happening on the constitutional front during those years, sandwiched between what is often seen as the true end of the American Revolutionary era—the War of 1812, when the United States fought its last battles with its former colonial overseer, Great Britain³—and the transformative days of the U.S. Civil War when the …

Re-Placing Property, Jessica A. Shoemaker

University of Chicago Law Review

This Article analyzes the complex relationship between property and placemaking. Our most basic property and land tenure choices—including the design of the fee simple itself—shape people-place relations in powerful ways. By unearthing this important relationship between property and placemaking, this Article also reveals how pervasive—but unorganized—claims about place and place attachment already are across a range of modern land conflicts. Because property theory has not been fully transparent about many of these placemaking effects, our property choices often result in outcomes that are unequal, inconsistent, and opaque, prioritizing some existing place relations while ignoring or rejecting others. By building a …