Law Commons^™

Hiding In Plain Sight: An Ilo Convention On Labor Standards In Global Supply Chains, James J. Brudney

Chicago Journal of International Law

This Article proposes a solution to the primary challenge currently confronting governments, employers, and workers under international labor law: how to promote and protect decent labor conditions in global supply chains (GSCs).

The Article begins by summarizing why existing public law and private law approaches have failed to meet this challenge over several decades. It describes the shortcomings of law and practice in developing countries as well as the weakness of corporate social responsibility (CSR), including the most ambitious version of CSR, the U.N. Guiding Principles on Business and Human Rights. It then analyzes the problems with recent national laws …

Discursive Constitutionalism, Ngoc Son Bui

Chicago Journal of International Law

“Constitutionalism” has been contentiously debated at national and international levels. This Article develops the concept of discursive constitutionalism, defined as the construction of constitutionalism through public discourse. It theorizes about four elements (ideas, actors, actions, and spaces) and the constructive logic of discursive constitutionalism. Public constitutionalist discourse can be shaped by the existing relations of political power. At the same time, it can constrain the political monopoly of constitutional thinking, shape the design of institutions to limit political power, and prevent the arbitrary use of political power in practice. This study provides an explanatory account of three models of discursive …

Accounting For The Selfish State: Human Rights, Reproductive Equality, And Global Regulation Of Gestational Surrogacy, Claudia Flores

Chicago Journal of International Law

Gestational surrogacy is a relatively new method of procreation made possible by advances in assisted reproductive technology (ART). In gestational surrogacy, a woman (gestational carrier) gestates a fetus that is often biologically unrelated to her on behalf of a third party. While this form of procreation has often been celebrated for allowing infertile and fertility-challenged persons to parent biological offspring, it has also prompted a series of complex human rights-related debates. Inconsistent and extreme state responses to gestational surrogacy have led to myriad tragedies: states have arrested gestational carriers, forced carriers to raise children born through the process, denied individuals …

Applying Derivative United Nations Immunity To Humanitarian Ngos, Tori Keller

Chicago Journal of International Law

United Nations (U.N.) privileges and immunities, enshrined in the Convention on Privileges and Immunities, protect U.N. personnel from legal proceedings and facilitate U.N. missions in volatile contexts. Today, non-governmental organizations (NGOs) are essential providers of emergency humanitarian assistance in some of the most dangerous states. Even though some NGOs work under U.N. funding agreements, they lack the protective immunities of the U.N. This Comment assesses the bases for U.N. immunity and the similar concept of derivative sovereign immunity, whereby sovereign governments extend their immunity to quasigovernment entities and private contractors. It argues that derivative immunity from states is based on …

It’S Raining Rockets: Heightening State Liability For Space Pollution, Sraavya Poonuganti

Chicago Journal of International Law

The uptick in outer space exploration activity by spacefaring nations has resulted in the increased proliferation of space debris orbiting Earth and reentering its atmosphere. The current liability regime, which was enacted as a result of the U.S.–Soviet Union space race in the 1960s and ’70s, is ill-equipped to mitigate and deter such proliferation. Without proactive measures, the space debris buildup could escalate into the Kessler Syndrome, a proposed scenario in which space exploration, and its corresponding benefits, may be rendered infeasible due to the extreme risk of high-impact space object collisions. This Comment first analyzes existing proposals for amending …

Law School Announcement 2023-2024, Law School Announcements Editors

Announcements

• Officers and Faculty
• The Law School - History
• Programs of Instruction
• Curriculum
• Student Activities and Organizations
• Funds and Endowments

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). …

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 …

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 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 …

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

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 …

The Honeypot Stings Back: Entrapment In The Age Of Cybercrime And A Proposed Pathway Forward, Renée N. Girard

Chicago Journal of International Law

Cybercrime’s transnational nature has rendered conventional methods of domestic policing ineffective. The international community must cooperate to combat cross-border cybercriminals. Law enforcement efforts to respond to the threat through cyber sting operations call into question the degree to which individuals are protected by the entrapment defense. There is disagreement in the international community about the validity of the defense. The lack of consensus threatens effective law enforcement cooperation in responding to cybercrime, posing a global security risk. Furthermore, if countries with dissimilar entrapment rights cooperate to share data and carry out cyber stings, there is a heightened risk of the …

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 …

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 Future Of International Law Freedom Of Journalism: A Transitional Justice Framework, Edward L. Carter

Chicago Journal of International Law

The overwhelming majority of digital and physical attacks on journalists are done with impunity. This results in lower-quality journalism, less scrutiny of government, and less healthy societies and democracies. The international human rights law concept of transitional justice could bolster collective will and inform legal mechanisms to combat such impunity. Judges and investigators in several recent cases of attacks on journalists have invoked transitional justice concepts, including truth-telling, criminal investigations and prosecutions, reparations, and institutional reforms to guarantee non-recurrence. These mechanisms should be fully implemented to protect journalism at local, national, and international levels.

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 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 …

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 …

Regulatory Trading, David A. Weisbach

University of Chicago Law Review

Regulatory trading systems, such as the SO2 cap-and-trade system, are ubiquitous in environmental and natural resources law. In addition to cap-and-trade systems for pollutants such as SO2, NOx, and CO2, environmental and natural resources law uses trading in areas such as endangered species, water quality, wetlands, vehicle mileage, and forestry and farming practices. Trading, however, is rarely used as a regulatory approach in other areas of law. This Article seeks to identify the reasons for this dichotomy. To understand the dichotomy, the Article examines the uses of trading in environmental and natural resources law, where it has been successful, and …

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 …

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, …

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 …

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 …

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 …

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.