Digital Commons Network^™

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 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 …

On Firms, Sanjukta Paul

University of Chicago Law Review

This Essay is about firms as a type of economic coordination and about how we think about them in relation to other forms of coordination as well as in relation to competition and markets. A prominent stream of thought about firms—which has both strongly influenced contemporary competition law and, more indirectly, served as a support to the fundamental ideas of neoclassical price theory that guide many areas of law and policy—ultimately explains and justifies the centralization of both decision-making rights and flows of income from economic activity on productive efficiency grounds. The Essay makes two simple points, drawing upon and …

Antitrust Worker Protections: The Rule Of Reason Does Not Allow Counting Of Out-Of-Market Benefits, Laura Alexander, Steven C. Salop

University of Chicago Law Review

Anticompetitive conduct toward upstream trading partners may have the effect of benefiting downstream consumers even as the conduct harms the firms’ workers or suppliers. Defendants may attempt to justify their upstream conduct—and may rely on the ancillary restraints doctrine in doing so—on the grounds that the restraints create efficiencies benefitting downstream purchasers, rather than focusing solely on the impact of the restraints on the workers or suppliers in the upstream market. Such balancing of harms against out-of-market benefits achieved by a different group should be rejected by antitrust doctrine generally, and specifically in the case of harms to workers. This …

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 …

Losing Leverage: Employee Replaceability And Labor Market Power, Cynthia Estlund

University of Chicago Law Review

Workers’ labor market power matters enormously to their lives at work and beyond. And most workers have too little of it. This Essay highlights one underappreciated set of factors in the decline of workers’ labor market power and explores policy levers that might help to rebalance the bargaining field. This Essay begins with the fairly self-evident observation that workers’ labor market power is a product in part of the ease with which employers can replace employees. That points to the importance of several trends in the organization and technology of work—including both fissuring and automation—that make it easier for private …

Coercive Rideshare Practices: At The Intersection Of Antitrust And Consumer Protection Law In The Gig Economy, Christopher L. Peterson, Marshall Steinbaum

University of Chicago Law Review

This Essay considers antitrust and consumer protection liability for coercive practices vis-à-vis drivers that are prevalent in the rideshare industry. Resale price maintenance, nonlinear pay practices, withholding data, and conditioning data access on maintaining a minimum acceptance rate all curtail platform competition, sustaining a high-price, tacitly collusive equilibrium among the few incumbents. Moreover, concealing relevant trip data from drivers is both deceptive and unfair when the platforms are in full possession of the relevant facts. In the absence of these coercive practices, customers too would be better off due to platform competition, which would lower average prices by sharpening competition …

Quasi Tripartism: Limits Of Co-Regulation And Sectoral Bargaining In The United States, César F. Rosado Marzán

University of Chicago Law Review

Disproportionate employer power is at least partly responsible for the sharp increase in economic inequality in the United States, which threatens the fabric of the Republic. Workplace law reform could provide workers with an institutional source of power that countervails employer power and compresses inequality. Ideas for workplace law reform include modest ones, such as instituting “co-enforcement,” and more ambitious ones, such as “sectoral bargaining.” According to their adherents, both require tripartite arrangements where capital, labor, and government provide inputs on how to regulate work.

But can the United States, with its liberal market economy typically devoid of meaningful tripartism, …

Privacy And/Or Trade, Anupam Chander, Paul M. Schwartz

University of Chicago Law Review

International privacy and trade law developed together but are now engaged in significant conflict. Current efforts to reconcile the two are likely to fail, and the result for globalization favors the largest international companies able to navigate the regulatory thicket. In a landmark finding, this Article shows that more than sixty countries outside the European Union are now evaluating whether foreign countries have privacy laws that are adequate to receive personal data. This core test for deciding on the permissibility of global data exchanges is currently applied in a nonuniform fashion with ominous results for the data flows that power …

The Independent State Legislature Theory, Federal Courts, And State Law, Carolyn Shapiro

University of Chicago Law Review

During the litigation surrounding the 2020 election, the independent state legislature theory (ISLT) emerged as a potentially crucial factor in the presidential election. The ISLT rests on the Electors and Elections Clauses of the Constitution, which assign decisions about federal elections to state legislatures. Proponents of the ISLT, including Supreme Court Justices, assert that state constitutions’ substantive provisions cannot apply to state election laws governing federal elections; that state courts’ statutory interpretations of such laws must be rigidly textualist and are reviewable, apparently de novo, by federal courts; and/or that delegations of decisionmaking authority to nonlegislative bodies may be limited, …

Stakeholderism Silo Busting, Aneil Kovvali

University of Chicago Law Review

No abstract provided.

Sponsor Control: A New Paradigm For Corporate Reorganization, Vincent S.J. Buccola

University of Chicago Law Review

Bankruptcy scholars have long organized their field around a stylized story, a paradigm, of lender control. When lenders extend credit, the story goes, they insist on the borrower agreeing to strict covenants and granting blanket liens on its assets; then, if the borrower later encounters financial distress, they use their bargained-for rights as prods to steer the company toward a resolution favorable to themselves, whether or not that resolution is value maximizing for the investors as a group. As fruitful as the lender-control heuristic has been, however, it no longer corresponds to reality.

This Article introduces a new interpretive paradigm …

“Contrary To Law”: Determining The Scope Of Qualifying Predicate Offenses For 18 U.S.C. § 545, Arjun Prakash

University of Chicago Law Review

This Comment seeks to resolve an ongoing dispute among courts regarding the correct interpretation of “contrary to law” in 18 U.S.C. § 545, a statute that criminalizes the unlawful importation of goods. In particular, courts disagree about whether “contrary to law” includes administrative regulatory viol ations, which would massively expand the applicability of § 545’s severe criminal penalties.

This Comment argues that analyzing previous versions of § 545 and applying canons of statutory interpretation provide support for a narrow interpretation of the statute. But these lines of analysis do not definitively establish that this interpretation is correct. As a result, …

Against Bankruptcy Exceptionalism, Jonathan M. Seymour

University of Chicago Law Review

Bankruptcy courts conceive of their mission differently than other courts do. For the Supreme Court, bankruptcy cases are ordinary statutory cases to be resolved “clearly and predictably using well established principles of statutory interpretation.” Many bankruptcy judges, though, believe that bankruptcy courts serve a distinctive mission for which ordinary adjudicative methods do not suffice. Often, that mission is characterized using the language of equity. Judges and commentators alike have observed that among the most spoken words in the bankruptcy courts are: “the bankruptcy court is a court of equity.” Others have contended that bankruptcy necessitates “creativity and flexibility,” pursuant to …

Here’S Your Number, Now Please Wait In Line: The Asylum Backlog, Federal Court Litigation, And Artificial Intelligence In Agency Adjudication, Youssef Mohamed

University of Chicago Law Review

Asylum seekers are individuals who flee to other countries to find sanctuary from the persecution suffered within the borders of their home countries. The U.N. High Commissioner for Refugees estimated that by mid-2021 there were nearly 4.4 million individuals actively seeking asylum worldwide, and the most recent data available surprisingly suggest that the United States granted asylum to only 31,429 persons in 2020.

The asylum system that is with us today was created when Congress enacted the Refugee Act with the goal of “respond[ing] to the urgent needs of persons subject to persecution in their homelands” and “provid[ing] a permanent …

State Policy In Federal Courts: Stabilizing The Burford Abstention Doctrine, Virginia Robinson

University of Chicago Law Review

The federal abstention doctrines govern the narrow circumstances under which a district court can decline to hear a case even though it has proper jurisdiction. One of those doctrines—Burford abstention—has generated a morass of confusion over when it applies and what goals it is meant to achieve. To find a way out of the morass, this Comment looks at contemporaneous developments in doctrines of federal court review—and at the procedural history of Burford itself—to pinpoint the precise problem that Burford abstention was created to solve. It argues that the Burford Court was wary of federal courts exercising jurisdiction in cases …

The Right To Exclude: People, Animals, And Pollution, Ariana Vaisey

University of Chicago Law Review

The Supreme Court has deemed the right to exclude one of the most fundamental property rights. Accordingly, the Court has offered the right to exclude heightened protection under the Takings Clause. However, the Court has left significant uncertainty about the scope of the right to exclude that is protected under takings doctrine. For instance, does the Takings Clause require compensation if the government, pursuant to the Comprehensive Environmental Response and Liability Act (CERCLA), requires a landowner to house another party’s pollutants?

This Comment draws from property theory and analytical jurisprudence to offer a new approach to takings analyses concerning the …

Property Versus Antidiscrimination: Examining The Impacts Of Cedar Point Nursery V. Hassid On The Fair Housing Act, Amy Liang

University of Chicago Law Review

The Fair Housing Act is a groundbreaking federal law enacted in 1968 during the civil rights movement. Reflecting a policy judgment that the public’s interest in eliminating housing discrimination outweighs a prejudicial landlord’s property right to exclude, it prohibits landlords from rejecting tenants on a discriminatory basis. However, as the Act’s promises remain in the process of fulfillment, the Supreme Court’s 2021 decision in Cedar Point Nursery v. Hassid has placed it into unprecedented danger: by holding that a regulation authorizing temporary occupations of private property constituted a per se taking that requires compensation under the Takings Clause, Cedar Point …

The Joint Venture Exception In The International Silver Platter Doctrine: Variability And Devaluation Of Cooperation, Jacqueline Pecaro

University of Chicago Law Review

This Comment examines the joint venture exception in the international silver platter doctrine in the context of the use of wiretaps in federal narcotics cases. Under the international silver platter doctrine, evidence obtained through searches (like wiretaps) by foreign law enforcement on foreign soil and under foreign law is admissible in U.S. courts. The joint venture exception qualifies the international silver platter doctrine: if participation by U.S. law enforcement in a wiretap by foreign law enforcement on foreign soil constitutes a joint venture, then evidence obtained from the search is admissible only if the wiretap was reasonable under the Fourth …

The Improvised Implementation Of Executive Agreements, Kathleen Claussen

University of Chicago Law Review

Implementation is at the core of lawmaking in our divided government. A rich literature covers the waterfront with respect to agencies’ implementation of legislative mandates, and another equally robust line of scholarship considers Congress’s implementation of treaties. Missing from those discussions, however, is another area of implementation central to U.S. foreign relations: the implementation of transnational regulatory agreements.

This Article examines how federal agencies have harnessed far-reaching discretion from Congress on whether and how to implement thousands of international agreements. Agencies regularly implement agreements by relying on a self-developed menu of options, much like they do in the domestic regulatory …

Jurisdiction As Power, Ryan C. Williams

University of Chicago Law Review

For centuries, courts and legal commentators defined “jurisdiction” by reference to a court’s “power.” A court that lacked jurisdiction, under this conception, simply lacked the ability to bind the parties, and its resulting rulings could therefore be regarded by both litigants and later courts as void and of no legal effect. But in the middle decades of the twentieth century, the Supreme Court and other U.S. courts strongly embraced the so-called bootstrap doctrine—a distinctive branch of preclusion law that severely limits the ability to collaterally attack a judgment based on a claimed lack of jurisdiction. Because the bootstrap doctrine effectively …

Toward A Centralized Hatch-Waxman Venue, Matthew Makowski

University of Chicago Law Review

Pharmaceutical litigation often begins when a generic drug company files an application to have its generic drug approved by the FDA. That application is received by the FDA in the District of Maryland. To “submit” it is a statutory act of patent infringement under the Hatch-Waxman Act. Establishing venue in subsequent Hatch-Waxman litigation can be complex because HatchWaxman litigation often involves simultaneous and independent lawsuits against many generic applicants. A Hatch-Waxman plaintiff might reasonably attempt to consolidate litigation in a single district court; Hatch-Waxman defendants might reasonably resist consolidation in the plaintiff’s preferred venue. Recent Supreme Court and Federal Circuit …

Academic Freedom And Misgendered Honorifics In The Classroom, Gabrielle Dohmen

University of Chicago Law Review

In recent years, public universities have promulgated pronoun policies designed to encourage professors and students to respect the pronouns that others use to identify themselves. A professor who does not follow the pronoun policy and instead misgenders a student—or uses gendered words or pronouns that do not match that student’s gender identity—may be disciplined by their university for violating the pronoun policy.

This Comment argues that professorial speech misgendering students in the classroom should not be protected by a professor’s First Amendment right to academic freedom, which traditionally covers teaching and scholarship. The First Amendment protects some exercises of academic …

The Class Appeal, Adam S. Zimmerman

University of Chicago Law Review

For a wide variety of claims against the government, the federal courthouse doors are closed to all but those brought by powerful, organized interests. This is because hundreds of laws—colloquially known as “channeling statutes”—require disaffected groups to contest government bodies directly in appellate courts that hear cases individually. In theory, these laws promise quick, consistent, and authoritative legal decisions in appellate courts. In fact, without class actions, government bodies avoid judicial review by selectively avoiding claims brought by some of the most vulnerable people in the administrative state—from veterans and immigrants to coal miners, laborers, and the disabled.

This Article …

The Visibility Trap, Kate Redburn

University of Chicago Law Review

In August 2021, the Indiana Court of Appeals prohibited a transgender teenage boy (H.S.) from changing the gender marker on his birth certificate. Because he was fifteen at the time, his parents had filed the petition on his behalf.¹ As his parents testified, changing the gender marker on a young trans person’s birth certificate is more than a formality. It makes it possible for them to obtain a passport and driver’s license that match their identity, helping to avoid incongruities in gender regulation that can run the gambit from confusing to dangerous.²

The appellate panel was split. Legally …

Pretrial Detention By A Preponderance: The Constitutional And Interpretive Shortcomings Of The Flight-Risk Standard, Jaden M. Lessnick

University of Chicago Law Review

Pretrial detention seriously restricts the physical liberty of presumptively innocent people who have yet to be tried and convicted. The Bail Reform Act (BRA) imposes several procedural requirements that must be satisfied before a judge can order the pretrial detention of a federal defendant. At a detention hearing, the BRA allows a judge to order the pretrial detention of an arrestee who poses either a danger to the community or a flight risk. The BRA states unequivocally that a finding of dangerousness must be supported by clear and convincing evidence, but the statute is silent as to the evidentiary standard …

What’S The Use?: Interpreting The Term “Uses” In The Aggravated Identity Theft Provision, Shang-Chi Andrew Liu

University of Chicago Law Review

The Identity Theft Penalty Enhancement Act (ITPEA) increases penalties for crimes that involve the unlawful use of another person’s identifying information. A subsection of the ITPEA—the aggravated identity theft provision—imposes a mandatory two-year sentencing enhancement on a defendant who “uses” a means of identification of another person during and in relation to a predicate felony. Currently, federal circuit courts disagree about whether the term “uses” in the statute is ambiguous and whether the rule of lenity should consequently apply to narrow its reach. On the one hand, courts that have held the statute to be ambiguous apply the rule of …