Law Commons^™

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 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 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 …

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 …

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 …

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 …

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.

No Money Allowed, Kimberly D. Krawiec

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.

“Long Covid,” Bodily Systems As Adaaa Major Life Activities, And The Social Model Of Disability, Leslie P. Francis, Michael Ashley Stein

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 …

Managing And Monitoring The Menopausal Body, Naomi R. Cahn, Bridget J. Crawford, Emily Gold Waldman

University of Chicago Legal Forum

This Essay explores how menopausal bodies are managed and monitored in contemporary U.S. culture. The focus is on two distinct aspects of that management and monitoring: menopausal hormone therapy (MHT) and the burgeoning market for technology-driven menopause products and services. While each of these allegedly improves the menopause experience, a closer investigation reveals a more complex interaction of profit motives and traditional notions of gender identity. The Essay identifies problems with current medical and business practices and suggests a role for law in destigmatizing menopause, ensuring availability and safety of MHT, and enhancing privacy for users of menopause-oriented apps and …

Black Masculinity And The Government, Paul Butler

University of Chicago Legal Forum

No abstract provided.

Abortion Experts, Aziza Ahmed

University of Chicago Legal Forum

No abstract provided.

Law School Record, Vol. 69, No. 2 (Spring 2023), Law School Record Editors

Law School Record

• Message from the Dean
• How Disagreement Remade Corporate Law
• “So Deeply Our Hearts Were Allied”
• Clearing a Path for Entrepreneurs
• Teaching and Mentorship That ‘Students Treasure and Universities Celebrate’
• ‘You Get a Toe in the Water’
• Alumni News: Books Published by Alumni in 2022
• Development News
• Alumni in Memoriam

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 …

Labor Market Regulation And Worker Power, Hiba Hafiz, Ioana Marinescu

University of Chicago Law Review

Due to a lack of competition among employers in the labor market, employers have monopsony power, or power to pay workers less than what the workers contribute to the employers’ bottom line. “Worker power” is workers’ ability to obtain higher wages and better working conditions. While the antitrust agencies have just begun developing policy and enforcement strategies to regulate employer monopsony, broader government policies that impact market forces, the formation of labor market institutions, and workers’ voices and exit options also play a defining role in shaping worker power relative to employers. For example, in addition to antitrust enforcement, worker …

Horizontal Collusion And Parallel Wage Setting In Labor Markets, Jonathan S. Masur, Eric A. Posner

University of Chicago Law Review

Horizontal collusion among employers to suppress wages has received almost no attention in the academic literature, in contrast with its more familiar cousin, product-market collusion. The similar economic analysis of labor and product markets might suggest that antitrust should regulate labor and product markets in the same way. But product markets and labor markets do not operate identically: people behave differently as employees and as consumers. Unlike consumers who can switch products relatively easily, employees face significant frictions in changing jobs. Other labor market frictions are created by the pay equity norm and downward nominal wage rigidity. These and related …

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 …