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Volume 93.7
Erie and the Constitution’s Constraints on General Law
Anthony J. Bellia Jr.
O’Toole Professor of Constitutional Law, Notre Dame Law School.

We thank Will Baude, Tricia Bellia, Sam Bray, Christian Burset, Jud Campbell, Bill Dodge, Abbe Gluck, Tara Grove, Randy Kozel, John Manning, Darrell Miller, Todd Peterson, Jeff Pojanowski, Steve Sachs, Jon Siegel, Ed Swaine, and Ernie Young forinsightful comments and questions. We also thank participants in the conference on Fundamentals and Frontiers of Federalism hosted by Texas A&M Center on the Structural Constitution and the conference on Erie’s Future and General Common Law Revivalism held at the University of Chicago for helpful discussions.

Bradford R. Clark
William Cranch Research Professor of Law, George Washington University Law School.

We thank Will Baude, Tricia Bellia, Sam Bray, Christian Burset, Jud Campbell, Bill Dodge, Abbe Gluck, Tara Grove, Randy Kozel, John Manning, Darrell Miller, Todd Peterson, Jeff Pojanowski, Steve Sachs, Jon Siegel, Ed Swaine, and Ernie Young forinsightful comments and questions. We also thank participants in the conference on Fundamentals and Frontiers of Federalism hosted by Texas A&M Center on the Structural Constitution and the conference on Erie’s Future and General Common Law Revivalism held at the University of Chicago for helpful discussions.

The Constitution made the federal government's ability to displace state law contingent on compliance with specific structural and procedural safeguards. Federal courts, therefore, possess no freestanding authority to displace governing state law absent a contrary—and valid—source of supreme law. This structural limitation, however, does not forbid judicial application of general law in all circumstances. From the Founding, federal courts applied traditional branches of the law of nations when state law adopted them, Congress authorized their use, or the Constitution’s structure required their application. Recent calls to revive general common law conflate these traditional, limited uses of general law with broader categories of unwritten law that early federal courts did not apply without proper federal or state authorization. By treating general law as a freestanding source of judicial authority to displace state law, such proposals risk intruding on the residual authority of the states and circumventing the exclusive lawmaking procedures required to adopt all forms of supreme federal law.

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Volume 93.7
The Hole in the Global Minimum Tax
Adam Kern
Assistant Professor of Law, University of San Diego School of Law.

For helpful comments and suggestions, I thank Joe Bankman, Kim Clausing, Wei Cui, Michael Devereux, Rocco Femia, Miranda Fleischer, David Gamage, Daniel Hemel, Mindy Herzfeld, Natalie Jacewicz, David Kamin, Mitchell Kane, Rebecca Kysar, Shelly Layser, Brian Lynn, Peter Merrill, Alex Raskolnikov, Blaine Saito, David Schizer, Dan Shaviro, Heydon Wardell-Burrus, and audiences at Stanford, Columbia, Oxford, Missouri, Ohio State, the University of San Diego, and the National Tax Association. I also thank Sasha Nuñez for outstanding research assistance. Disclosure: During 2023 and 2024, I served as a policy advisor in the Office of Tax Policy of the U.S. Department of the Treasury, where I worked on regulations that implement the U.S. corporate alternative minimum tax. This Article relies only on public materials. It also reflects my own views and not those of the U.S. government or any entity within it.

The global minimum tax is often praised for its promise to restrain harmful tax competition. But the effects of the global minimum tax are more nuanced than is commonly understood. This Article shows that the global minimum tax raises a trade-off between two kinds of tax competition: competition for profit and competition for investment. It also provides suggestive evidence that the costs of intensifying competition for investment could be substantial. Specific reforms are proposed that could preserve the benefits of the global minimum tax while mitigating its harms.

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Volume 93.7
Deference, Disagreement, and Higher-Order Evidence In Judicial Reasoning
Gregory Antill
Associate Professor of Law, University of Connecticut School of Law; J.D. Yale Law School; Ph.D. UCLA Department of Philosophy.

Earlier drafts of this material were presented to audiences at Villanova Law School, UConn Law School, Columbia Law School, and at the Theorizing The Judicial Process Conference at Yale Law School. Thanks to everyone who commented on those occasions. This Essay has benefited enormously from conversations and written comments from Amin Afrouzi, Andrew Coan, Michael Dorf, Josh Chafetz, Josh Fischman, Josh Galperin, Emily Gold Waldman, James Hicks, Dan Kahan, Jody Kraus, Marin Levy, Tyler Lindley, Isaiah Ogren, Robert Post, Kate Redburn, Shalev Roisman, Oren Tamir, Tom Tyler, and Gideon Yaffe.

This Essay considers the question of when a judge on a multimember tribunal should defer to the judgments of their colleagues when deciding a case. It has been common wisdom until recently that a judge’s duty is to “consider a case by his or her own lights.” Over the past decade, however, this familiar view has come under sustained critique. This Essay argues (1) that a strong epistemic case can be made that, in contexts like that of a judicial tribunal, where judges have access to the underlying reasoning behind the judgments of those with whom they disagree, it is rationally appropriate to ignore higher-order evidence consisting in the fact of disagreement and (2) that even if higher-order evidence did provide epistemic reasons to defer, judges would still have distinctively legal, role-based obligations to ignore such higher-order evidence when deciding a case, grounded in the difference between the nature of legal reasons and epistemic reasons.

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Super Suprynowicz: Fertility Fraud and Noncognizable Wrongful Birth and Wrongful Life Claims
Meredith Jenkins
B.S., Honors B.A., 2024, University of Utah; J.D. Candidate, 2027, The University of Chicago Law School.

I would like to thank Professor Thomas Miles and the members of The University of Chicago Law Review for their helpful comments and suggestions.

Numerous states have adopted judge-made or statutory bans on tort claims for wrongful birth or wrongful life. Paradigmatically, these bans have prevented plaintiffs from recovering for allegations that a physician’s negligence in diagnosing a fetus’s abnormality denied the parents the opportunity to obtain an abortion, resulting in the birth of the plaintiff or the plaintiff’s child. Courts are now confronting a new question: whether these bans bar recovery for a plaintiff’s allegations of fertility fraud. While courts have split on whether bans on wrongful birth and wrongful life cover these claims, the Connecticut Supreme Court, in Suprynowicz v. Tohan, provided a new framework for distinguishing fertility fraud allegations from these bans. This Comment weighs in on this recent development in the law, arguing that other states could draw on Suprynowicz’s framework to permit recovery for fertility fraud. Furthermore, this Comment investigates whether statutory bans apply to fertility fraud allegations, an inquiry that depends on statutory interpretation.

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Waiving the Impossible: Rethinking Appellate Waiver Enforcement When Supervening Authority Renders Convictions Void
Iris Wu Zimmer
B.A. 2021, New York University; J.D. Candidate 2027, The University of Chicago Law School.

I would like to thank Professors Sonja Starr and Omri Ben-Shahar, and many editors of The University of Chicago Law Review—especially Amanda Van Dyck, Daniel Marquina, and Adrianne Kehne—for their thoughtful advice and tireless assistance with this piece.

Federal courts are split on whether collateral-attack waivers bar challenges when subsequent binding authority clarifies that a defendant’s charged conduct was never criminal. This Comment argues that waivers embedded in constitutionally defective pleas cannot insulate void convictions from review. Under Bousley and Rivers, authoritative clarifications of criminal statutes reveal what the law always meant, rendering the original plea unknowing and invalid. Contract law principles independently support the same result. This Comment proposes a three-part test to identify when waivers are unenforceable, preserving plea bargaining efficiency while ensuring that no one remains imprisoned for lawful conduct.

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The Perils of Poor Penmanship: A D.C. Circuit Fight Demonstrates the Urgency of Electronic Union Elections
Noah Levine
J.D. Candidate at the University of Chicago Law School, Class of 2025.

He thanks the University of Chicago Law Review Online team for their careful feedback.

The legibility of handwriting is on the decline. Thankfully, calligraphy carries low stakes in a digital age. Why write something down when it can be typed instead? Yet, there is still one near-universal fragment of writing that must often be done by hand: the signature. While usually a formality, so long as signatures are done by hand, they can be second-guessed, threatening a generation untrained in cursive. This Essay highlights a recent incident in which a union representation election hinged on the legibility of one employee’s signature.

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The Objective Observer Test and Racial Bias in Civil Jury Trials: The Washington State Approach
Derek Willie
J.D. Candidate at the University of Chicago Law School, Class of 2025.

He thanks the University of Chicago Law Review Online team.

Is it OK for courts to think about race when they decide whether to bar certain arguments from being made, because they think those arguments could rely on stereotypes or otherwise play on the jury’s racial biases? For the Washington Supreme Court, the answer is yes—in fact, courts have a duty to consider race in making these evidentiary decisions. Rather than statements or arguments that are made with a clearly racist intent, the Washington Supreme Court’s idea of “racially biased arguments” is far more capacious: it includes “dog whistles,” or superficially harmless comments that have the effect of operating on a jury’s implicit biases.

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Textualism and Progressive Social Movements
Katie Eyer
Professor of Law, Rutgers Law School.

Many thanks to Tara Leigh Grove, Eric Fish, and Logan Everett Sawyer for helpful feedback on this project. Maya Lorey, Alexandra Webb, and Erin Yonchak of the University of Chicago Law Review Online provided excellent editorial suggestions and assistance.

Should progressive movement lawyers avoid making textualist arguments? This Essay suggests that the answer is no. While there may be good reasons for movement lawyers to eschew arguments associated with their ideological opponents, none of those reasons apply to the embrace of textualist arguments by progressive movements today. Indeed, the time may be especially ripe for progressive social movements to make increased use of textualist legal arguments.

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Liberalism, Dependence, and . . . Admiralty
Edward A. Hartnett
Richard J. Hughes Professor of Constitutional and Public Law and Service, Seton Hall University School of Law.

Liberal political and legal theory posit a world of autonomous individuals, each pursuing their own chosen ends, linked to each other by one or more agreements. But this is not how most of us experience most of our lives. This Essay seeks to open a conversation about resources in our legal history and culture that work from different assumptions—and might perhaps be a source of inspiration—by pointing to one such resource: admiralty.