Law Commons^™

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 …

When Bill Rolls Off: Continuity And Change On Corporate Boards, Adriana Z. Robertson, Peter Cziraki

Coase-Sandor Institute for Law & Economics Research Paper Series

The number of women on public company boards has increased dramatically in recent years. We study where these women directors came from and how they were absorbed. In the past five years, women with board experience obtain significantly more board seats than their male colleagues. Women directors are also more likely to have no previous board experience than men, indicating movement on both the intensive and extensive margin. Adding a woman director is associated with a transitory increase in board size about a third of the time. This increase reverts the following year when an existing director rolls off.

Gender And The Social Structure Of Exclusion In U.S. Corporate Law, Afra Afsharipour, Matthew Jennejohn

University of Chicago Law Review

Law develops through collective effort. A single judge may write a judicial opinion, but only after an (often large) group of lawyers chooses litigation strategies, crafts arguments, and presents their positions. Despite their important role in the legal process, these networks of lawyers are almost uniformly overlooked in legal scholarship—a black box in a discipline otherwise obsessed with institutional detail.

This Article focuses on a particularly crucial way that the structure of professional networks may shape the path of the law. Prior qualitative research suggests that networks are an important source of information, mentoring, and opportunity, and that those social …

Achieving Appropriate Relief For Religious Freedom Violations In Prisons After Tanzin, Bethany Ao

University of Chicago Law Review

In the 1990s, Congress passed the Prisoner Litigation Reform Act (PLRA) to decrease frivolous prisoner litigation. One PLRA provision that was aimed at accomplishing that goal is § 1997e(e), which states that no prisoner can bring a federal civil action for mental or emotional injury without a showing of an accompanying physical injury. This provision has created a circuit split over whether prisoners who suffer a violation of their Free Exercise rights under the First Amendment can re- cover compensatory damages. If the split is left unresolved, it will lead to a troubling lack of uniformity in the law for …

Prosecutors, Race, And The Criminal Pipeline, Hannah Shaffer

University of Chicago Law Review

This Article presents evidence that some state prosecutors use their discretion to reduce racial disparities in criminal sentences. This finding challenges the prevailing view that prosecutors compound disparities. Given prosecutors’ positions as mediators in a sequential system, this Article analyzes how prosecutors respond to disparities they inherit from the past—and interprets their impacts in light of the accumulated disparities that already exist when they first open their case files. Specifically, I estimate how the sentencing penalty for prior convictions differs by defendant race using North Carolina state court records from 2010 to 2019. I find that the increase in the …

New Life For The Unlawful Inclosures Act: Immunizing Corner-Crossers From State Trespass Actionew Life For The Unlawful Inclosures Act: Immunizing Corner-Crossers From State Trespass Actions, Burke Snowden

University of Chicago Law Review

In many parts of the rural western United States, the land is divided into rectangular parcels that alternate between private and public ownership, so as to resemble a checkerboard. Some of those public parcels are “corner-locked,” meaning that they meet other public parcels only at a corner. It is technically not possible to access corner-locked parcels without at least briefly hovering over a private parcel, which constitutes trespass on the private parcel under the ad coelum doctrine.

Since the COVID-19 pandemic has increased demand for outdoor tourism, more people have been endeavoring to reach the public parcels by “corner-crossing” from …

When Federal Courts Remediate Intrastate Redistricting Stalemates: Parsing What Is Owed Deference When State Policies Conflict, Erin Yonchak

University of Chicago Law Review

When partisan politics completely frustrate the efforts of a state to redistrict after a census, federal district courts are tasked with the “unwelcome obligation” of imposing court-ordered electoral maps that meet the federal constitutional one-per- son, one-vote requirement. This Comment terms these cases “intrastate redistricting stalemates,” novelly distinguishing them from other Equal Protection one-person, one-vote cases. In the wake of Moore v. Harper, federal courts may be remediating more intrastate redistricting stalemates than ever if state courts are stripped of their power to impose remedial congressional maps as outside the scope of “ordinary judicial review” permitted under the Elections Clause. …

Law School Announcements 2023-2024, Law School Announcements Editors

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Law School Record, Vol. 70, No. 1 (Fall 2023), Law School Record Editors

Law School Record

• Message from the Dean
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• With Two Generous Gifts, Pavel Malyi, LLM ’95, Promotes the Rule of Law Internationally
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• Graduation 2023
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Vagueness And Federal-State Relations, Joel S. Johnson

University of Chicago Law Review

This Article aims to clarify the content of the void-for-vagueness doctrine and defend its historical pedigree by drawing attention to a fundamental aspect of the Supreme Court’s vagueness decisions—that vagueness analysis significantly depends on whether the law at issue is a federal or state law. That simple distinction has considerable explanatory power. It reveals that the doctrine emerged in the late nineteenth century in response to two simultaneous changes in the legal landscape— first, the availability of Supreme Court due process review of state penal statutes under the Fourteenth Amendment, and second, a significant shift in how state courts construed …

Racial Time, Yuvraj Joshi

University of Chicago Law Review

Racial time describes how inequality shapes people’s experiences and perceptions of time. This Article reviews the multidisciplinary literature on racial time and then demonstrates how Black activists have made claims about time that challenge prevailing norms. While white majorities often view racial justice measures as both too late and too soon, too fast and too long-lasting, Black activists remind us that justice measures are never “well timed” within hegemonic understandings of time. This Article ultimately argues that U.S. law embodies dominant interests in time. By inscribing dominant experiences and expectations of time into law, the Supreme Court enforces unrealistic timelines …

Politics By Other Means: The Jurisprudence Of “Common Good Constitutionalism”, Brian Leiter

University of Chicago Law Review

Professor Adrian Vermeule proposes an alternative to what he sees as the two dominant schools of constitutional interpretation in the United States: originalism and what he usually calls “progressivism”¹ (by which he means what others call “living constitutionalism”² ). Against these approaches, he advocates for what Freudians might call a “return of the repressed”³: a recognition of the extent to which the “classical” natural law tradition’s concern with the “common good” has continued to animate our public law—explicitly for much of our history, he says, and implicitly more recently.

On Vermeule’s proposed alternative, courts (and other …

Droughts Of Compassion: The Enduring Problem With Compassionate Release And How The Sentencing Commission Can Address It, Nathaniel Berry

University of Chicago Law Review

Compassionate release, guided by 18 U.S.C. § 3582(c)(1)(A), allows a district court to reduce a previously imposed criminal sentence if “extraordinary and compelling reasons” warrant a reduction. Congress delegated the task of describing what constitutes an extraordinary and compelling reason to the U.S. Sentencing Commission. Following the passage of the First Step Act of 2018, most circuit courts held the Commission’s policy statement describing extraordinary and compelling reasons inapplicable, and that until the Commission updated its policy statement, courts enjoyed the discretion to determine what circumstances justify compassionate release.

e. Many have celebrated this newfound discretion and its potential to …

Clean Up Your Act: The U.S. Government’S Cercla Liability For Uranium Mines On The Navajo Nation, Michelle David

University of Chicago Law Review

This Comment delves into the Cold War legacy of uranium mining on the Navajo Nation. Today, unremediated hazardous waste from more than five hundred deserted mines has continued to poison the health and lands of the Navajo. This Comment argues that the federal government is ultimately liable for the remediation of these mines under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically, because the federal government held legal title to the mining lands and tightly managed the mining operations, the federal government satisfies CERCLA’s liability regime for “owners” and “operators.” The U.S. government’s liability under CERCLA warrants fuller …

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, …

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 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 …

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 …

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 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.

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 …

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 …

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 …

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 …