Digital Commons Network^™

The Rise Of Nonbinding International Agreements: An Empirical, Comparative, And Normative Analysis, Curtis A. Bradley, Jack L. Goldsmith, Oona A. Hathaway

University of Chicago Law Review

The treaty process specified in Article II of the Constitution has been dying a slow death for decades, replaced by various forms of “executive agreements.” What is only beginning to be appreciated is the extent to which both treaties and executive agreements are increasingly being overshadowed by another form of international cooperation: nonbinding international agreements. Not only have nonbinding agreements become more prevalent, but many of the most consequential (and often controversial) U.S. international agreements in recent years have been concluded in whole or in significant part as nonbinding agreements. Despite their prevalence and importance, nonbinding agreements have not traditionally …

Insurance Coverage And Induced Infringement: A Threat To Hatch-Waxman’S Skinny Labeling Pathway?, Maya Lorey

University of Chicago Law Review

In the fall of 2020, Amarin Corporation—a brand-name drug company— brought an unprecedented claim in federal court. Instead of just suing a generic manufacturer for inducing infringement of its method patent, as is typical in litigation over skinny label generic drugs, Amarin also added a health insurance company as a defendant. In its complaint, Amarin alleged that Health Net induced infringement under 35 U.S.C. § 271(b) of the Patent Act by charging a lower co-pay for the generic, skinny label version of its brand-name drug. Industry commentators agreed that a finding of liability for Health Net would be a blow …

Unshackling Cities, Felipe Ford Cole

University of Chicago Law Review

Scholars have long demonstrated that cities are constrained by states and the federal government in the exercise of their power. While important, the emphasis on these “vertical” constraints on cities does not account for the “horizontal” constraints on city power from private actors. This Article suggests that the emphasis on vertical constraints on city power is due to a misunderstanding of the history of local government law that describes its sole function as the vertical distribution of power between cities and different levels of government. I revise the history of Dillon’s Rule, the doctrinal cornerstone of local government law’s vertical …

Stating The Obvious: Departmental Policies As Clearly Established Law, Eliana Fleischer

University of Chicago Law Review

Qualified immunity is a judge-made doctrine originally created to shield officers from liability only when they could not have been on notice that their actions were wrongful. In the four decades since the Supreme Court first articulated this justification for qualified immunity, the doctrine has become unmoored from its roots and has expanded to protect officers even in the face of clear evidence that the officers should have known better.

The test for qualified immunity states that officers are immune from liability in the absence of clearly established law that previously condemned their conduct, but the Supreme Court has not …

The Fair Housing Act After Inclusive Communities: Why One-Time Land-Use Decisions Can Still Establish A Disparate Impact, Kate Gehling

University of Chicago Law Review

The Fair Housing Act (FHA) is a civil rights statute that prohibits housing discrimination against several protected classes. One theory of liability under the FHA is disparate impact, in which a plaintiff alleges that the defendant’s policy or practice, although facially neutral, nevertheless has discriminatory effects because it disproportionately negatively affects a protected class. In its 2015 opinion, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., the Supreme Court affirmed that the FHA includes disparate impact liability but also potentially limited its applicability—the Court distinguished between a defendant’s policy and a one-time decision by a defendant, …

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 …

The Fourth Amendment Without Police, Shawn E. Fields

University of Chicago Law Review

What role will the Fourth Amendment play in a world without police? As academics, activists, and lawmakers explore alternatives to traditional law enforcement, it bears asking whether the amendment primarily tasked with regulating police investigations would also regulate postpolice public safety agencies. Surprisingly, the answer is often no. Courts are reluctant to recognize protections from government searches or seizures outside criminal investigations, and they are even more reluctant to require probable cause or a warrant for such conduct. Thus, by removing most public safety functions outside the criminal sphere, abolitionists also move intrusive government conduct outside these traditional strictures and …

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, …

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 …

The Right To Be Forgotten: Google Spain As A Benchmark For Free Speech Versus Privacy?, Kyu Ho Youm, Ahran Park

Chicago Journal of International Law

Since the Court of Justice of the European Union ruled in Google Spain in 2014, the global legal discourse on the “right to be forgotten” (RTBF) has accelerated the RTBF’s establishment as a right to informational privacy. But international courts have varied in their interpretations and applications of the RTBF, with some embracing it and others being wary of balancing the right with freedom of expression. While de-indexing search engine results was the primary method of facilitating the RTBF in Google Spain, this method has not necessarily informed many courts’ RTBF decisions. Instead, international and foreign courts are increasingly finding …

Democracy, Social Media, And Freedom Of Expression: Hate, Lies, And The Search For The Possible Truth, Luís Roberto Barrosoa, Luna Van Brussel Barroso

Chicago Journal of International Law

This Essay is a critical reflection on the impact of the digital revolution and the internet on three topics that shape the contemporary world: democracy, social media, and freedom of expression. Part I establishes historical and conceptual assumptions about constitutional democracy and discusses the role of digital platforms in the current moment of democratic recession. Part II discusses how, while social media platforms have revolutionized interpersonal and social communication and democratized access to knowledge and information, they also have led to an exponential spread of mis- and disinformation, hate speech, and conspiracy theories. Part III proposes a framework that balances …

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 …

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 …

Propaganda For War & International Human Rights Standards, Evelyn Aswad

Chicago Journal of International Law

Shortly after Russia’s illegal invasion of Ukraine in February 2022, the European Union (EU) began suspending Russian state-sponsored media outlets from broadcasting within the EU because they were spreading propaganda for war. The EU also required social media companies to remove user speech containing the banned broadcasts and prohibited search engines from displaying content from those outlets in search results. The EU’s General Court upheld the outlets’ suspension as consistent with both European human rights norms and the United Nations International Covenant on Civil and Political Rights (ICCPR), which contains a mandatory prohibition on propaganda for war in Article 20(1). …

The Digital Services Act And The Eu As The Global Regulator Of The Internet, Ioanna Tourkochoriti

Chicago Journal of International Law

This Essay discusses the Digital Services Act (DSA), the new regulation enacted by the EU to combat hate speech and misinformation online, focusing on the major challenges its application will entail. However sophisticated the DSA might be, major technological challenges to detecting hate speech and misinformation online necessitate further research in implementing the DSA. This Essay also discusses potential conflicts with U.S. law that may arise in the application of the DSA. The gap in regulating the platforms in the U.S. has meant that the platforms adapt to the most stringent standards of regulation existing elsewhere. In 2016, the EU …

International Law, Constitutions, And Electoral Content Moderation: Overcoming Supranational Failures Through Domestic Solutions, Emilio Peluso Neder Meyer, Fabrício Bertini Pasquot Polido

Chicago Journal of International Law

This Essay presents a normative structure for advocating for international soft law standards that can help domestic jurisdictions provide content moderation for election misinformation. Relying on a comparison between the cases of Brazil and the U.S. (both facing recent democratic erosion), this Essay shows how Brazilian courts responded to challenges to democracy and how, in the U.S., content moderation generally depends on private actors. The theoretical analysis presented indicates that transnational and constitutional approaches are required both in the face of the de-territorial characteristics of social media disinformation and also as a prerequisite to conceiving a legitimate approach to private …

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 …

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.

Menstrual Product Deprivation In Prison: A Sex- Neutral Litigation Strategy, Avery Broome

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.

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 …