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Volume 90.5
The Rise of Nonbinding International Agreements: An Empirical, Comparative, and Normative Analysis
Curtis A. Bradley
Allen M. Singer Professor of Law, University of Chicago Law School.
Jack Goldsmith
Learned Hand Professor, Harvard Law School.
Oona A. Hathaway
Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School.

For excellent research assistance, we thank Josh Asabor, Sofiya Bidochko, Tilly Brooks, Patrick Byxbee, Yilin Chen, Ben Daus-Haberle, Eliane Holmlund, Nina Lin, Simon Jerome, Tori Keller, Ako Ndefo-Haven, Madison Phillips, Allison Rice, Annabel Remudo, Vinay Sriram, Nathan Stull, Danielle Tyukody, and Kaylee Walsh. We also thank Ayoub Ouederni and John Bowers for their outstanding assistance analyzing and presenting the data. We thank the many scholars, lawyers, and government officials from around the world who provided us with insights into the process for making nonbinding agreements. For assistance with the FOIA requests to more than twenty federal agencies and lawsuits against the Departments of State, Defense, and Homeland Security, we thank Arifa Ali, Daniel Betancourt, Charlotte Blatt, Connor Brashear, Jackson Busch, Charles Crain, Rachel Davidson, Kelsey Eberly, Roman Leal, Abby Lemert, Raquel Leslie, Alyssa Resar, Eli Scher-Zagier, David Schulz, Stephen Stich, Sruthi Venkatachalam, Kataeya Wooten, Brianna Yates, and especially Michael Linhorst of the Media Freedom and Information Access Clinic at Yale Law School. We are also grateful to the Yale Law Librarians, especially Lucie Olejnikova and Evelyn Ma. For helpful comments and suggestions, we thank Helmut Aust, Jean Galbraith, Duncan Hollis, Thomas Kleinlein, Tim Meyer, Kal Raustiala, Michael Reisman, Ryan Scoville, David Zaring, and participants in faculty workshops at the University of Chicago Law School, Georgetown University Law Center, Harvard Law School, University of Minnesota Law School, and Yale Law School.

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 been subject to any of the domestic statutory or regulatory requirements that apply to binding agreements. As a result, they have not been centrally monitored or collected within the executive branch, and they have not been systematically reported to Congress or disclosed to the public. Recent legislation addresses this transparency gap to a degree, but substantial gaps remain. This Article focuses on the two most significant forms of nonbinding agreements between U.S. government representatives and their foreign counterparts: (1) joint statements and communiques; and (2) formal nonbinding agreements. After describing these categories and the history of nonbinding agreements and their domestic legal basis, the Article presents the first empirical study of U.S. nonbinding agreements, drawing on two new databases that together include more than three thousand of these agreements. Based on this study, and on a comparative assessment of the practices and reform discussions taking place in other countries, the Article considers the case for additional legal reforms.

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Volume 90.5
Unshackling Cities
Felipe Ford Cole
Assistant Professor of Law, Boston College Law School.

I thank Richard Schragger, Nadav Shoked, Niko Bowie, Jay Butler, K-Sue Park, Sophia Lee, Lee Fennell, Guy Charles, Ajay Mehrotra, Karen Tani, Tim Lovelace, Alison LaCroix, Erik Encarnacion, Jasmine Harris, David Skeel, Dave Hoffman, Raff Donelson, Brittany Farr, and Caitlin DiMartino for helpful feedback on earlier drafts, as well as the participants of the Penn Law's Writer's Bloc(k) Workshop, the Northwestern Pritzker School of Law J.D.-Ph.D. Workshop, and the Law and Society Association 2020 Annual Conference. Hang Nguyen of the State Historical Society of Iowa expertly assisted with tracking down archival materials, and Cade Underwood provided excellent research assistance. All errors are my own.

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 distribution of power, by arguing that local government law also distributes public and private power, between private capital and cities. Correcting the historical misunderstanding helps to show how private power still shackles cities in their efforts to address important challenges.

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Volume 90.5
Stating the Obvious: Departmental Policies as Clearly Established Law
Eliana Fleischer
B.A. 2016, University of Richmond; J.D. Candidate 2024, The University of Chicago Law School.

I would like to thank Professor Adam Davidson for his tremendous guidance and advice. Thank you to all the editors and staff of the University of Chicago Law Review who provided thoughtful feedback, with a special thank you to Jacqueline Pecaro, Gabrielle Zook, Kate Gehling, Dylan Salzman, and Bethany Ao. Finally, I have to thank my greatest supporter and first reader, Julie Fleischer.

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 defined exactly what “clearly established law” means. In a set of conflicting cases, the Court has both repudiated the consideration of departmental policies as clearly established law and, subsequently, cited departmental policies as evidence of clearly established law. As a result of this ambiguity, lower courts have been inconsistent—even within circuits—about whether departmental policies count as clearly established law. This Comment addresses this gap in the doctrine by proposing a solution that ameliorates the legal fiction at the heart of the clearly-established-law inquiry. Using Hope v. Pelzer’s obviousness exception to the clearly-established-law requirement, this Comment proposes incorporating departmental policies into the qualified immunity doctrine as an objective measure for determining when an officer’s rights violation was obvious.

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Volume 90.5
The Fair Housing Act After Inclusive Communities: Why One-Time Land-Use Decisions Can Still Establish a Disparate Impact
Kate Gehling
A.B. 2019, Harvard College; J.D. Candidate 2024, The University of Chicago Law School.

I would like to thank Professors Jeff Leslie and Lee Anne Fennell, as well as the editors and staff of the University of Chicago Law Review, for their thoughtful advice and feedback.

This Comment argues that one-time land-use decisions should not be categorically excluded from disparate impact liability under the FHA for three reasons. First, one-time employment decisions may serve as the basis for disparate impact liability under two analogous civil rights statutes—Title VII and the Age Discrimination in Employment Act—indicating that the same is true for one-time land-use decisions under the FHA. Second, the distinction between a policy and a one-time decision is untenable and provides little guidance for courts. Third, seminal appellate court cases which first established disparate impact liability under the FHA involved one-time land-use decisions, indicating that such decisions constitute the heartland of disparate impact theory. The Comment concludes by providing further clarity about which particular one-time land-use decisions should enable litigants to establish successful disparate impact claims.

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Volume 90.5
Insurance Coverage and Induced Infringement: A Threat to Hatch-Waxman's Skinny Labeling Pathway?
Maya Lorey
B.A. 2018, Stanford University; J.D. Candidate 2024, The University of Chicago Law School.

I would like to thank Professor Jonathan Masur for his invaluable advice and encouragement; Matthew Makowski for posing the question that started it all; Eleanor Brock and Rachel Smith for their unwavering support and keen insight; and my incredible editorial team, Lauren Dunn and Kate Gehling, for their commitment to this piece.

Using Amarin Pharma, Inc. v. Hikma Pharmaceuticals USA Inc. as a jumping off point, this Comment is the first piece of legal scholarship to examine whether, and under what circumstances, health insurers can induce infringement of a method patent by providing preferential coverage of a skinny label generic when it is distributed for a patented drug indication. An evaluation of this question requires examining the standard of causation in induced infringement cases, a subject that has received startlingly little judicial or scholarly inquiry. This Comment argues that the Delaware district court’s decision in Amarin was based on an improper theory of causation that assumed insurance companies have a duty to prevent infringement. It then establishes that the proper counterfactual baseline for evaluating inducement claims against insurers reveals that insurance companies are rarely the but-for cause of infringement in the skinny label context. Ultimately, the Comment demonstrates that adopting a loss of chance theory of the injury in future cases would force courts to conduct often-ignored causation analysis and ensure that a finding of inducement corresponds with a proportionate damages award.

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Volume 90.4
The Fourth Amendment Without Police
Shawn E. Fields
Assistant Professor of Law, Campbell University School of Law.

I am grateful for conversations and discussion at the 2021 Southeastern Association of Law Schools Conference, at which I received helpful input from Cynthia Alkon, Mitch Crusto, Raff Donelson, Jancy Hoeffel, Nicole Iannarone, Christopher Lund, Carla Reyes, Daniel Schaffa, Kate Sneddon, Neil Sobol, Scott Sundby, Anna VanCleave, and Howard Wasserman. I also received enormously helpful comments and feedback from Dwight Aarons, Kristen Bell, Zac Bolitho, Bobbi Jo Boyd, Marcus Gadson, Tony Ghiotto, Noël Harlow, Orin Kerr, Cortney Lollar, and Gustavo Ribeiro. All errors are my own.

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 guardrails. This Article provides the first sustained evaluation of the Fourth Amendment’s limited role in a postpolice world and examines the implications of this reality.

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Volume 90.4
Regulatory Trading
David A. Weisbach
Walter J. Blum Professor of Law, University of Chicago Law School.

Send comments to d-weisbach@uchicago.edu. I am thankful for Jen Nou and Mark Templeton for discussions and the many valuable comments from workshops at the University of Chicago Law School and Washington University Law School. Special thanks to Richard Sandor for allowing me to participate in his class at the University of Chicago Law School, The Law and Economics of Natural Resource Markets.

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 where problems have arisen, including hot spots problems, environmental justice problems, measurement problems, and moral problems with the use of markets. It then considers the possibility of trading in six nonenvironmental areas of law to see whether trading can be helpful, and if not, why not.

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Volume 90.4
The Long Arm of Bostock v. Clayton County: Opening 42 U.S.C. § 1985(3) to Claims of Anti-LGBT Discrimination
Jason Hanselman
B.A. 2020, Marquette University; J.D. Candidate 2024, The University of Chicago Law School.

Many thanks to the staff and editors of the University of Chicago Law Review for their incisive feedback on previous drafts.

This Comment argues that Justice Gorsuch’s opinion is not merely relevant for the scope of Title VII but also has ramifications for the scope of § 1985(3) because it gives rise to three key propositions: (1) federal law now condemns anti-LGBT discrimination, affording special protections to LGBT folks; (2) discrimination against LGBT folks necessarily constitutes discrimination on the basis of sex; and (3) legislative history should only be used if the relevant statute is genuinely ambiguous. Justice Gorsuch has thus provided LGBT plaintiffs with a master key, suggesting arguments tailored to each circuit’s position on sex-based discrimination, such that any circuit should permit LGBT folks to use § 1985(3) in the wake of Bostock.

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Volume 90.4
Covenant Control: The Case for Treating Uptier Transactions as a Form of Corporate Control
Ryan Schloessmann
B.A. 2017, Carleton College; J.D. Candidate 2024, The University of Chicago Law School.

I would like to thank Professors Douglas Baird, Vincent Buccola, and Tony Casey, and the editors and staff of the University of Chicago Law Review for their thoughtful advice and insight.

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 markets. Unfortunately, the contractual solutions available to debtholders to prevent uptier transactions either are insufficient or impose substantial costs on parties.

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Volume 90.4
A Gricean Theory of Expressive Conduct
Richard P. Stillman
B.A. 2011, Swarthmore College; Ph.D. 2021, The Graduate Center, City University of New York; J.D. Candidate 2024, The University of Chicago Law School.

I would like to thank Professor Geoffrey Stone for his guidance and supervision. Special thanks are also due to the editors and staff of the University of Chicago Law Review for improving this Comment through their incisive and thoughtful feedback.

This Comment addresses how courts should decide whether non-verbal conduct is “speech” within the meaning of the First Amendment. In Spence v. Washington, the Supreme Court devised a two-part test for determining whether non-verbal conduct is expressive, which has subsequently become known as the “Spence test.” In its subsequent cases, however, the Court has made clear that the category of “expressive conduct” includes a wider variety of non-verbal behaviors than a literal reading of the Spence test would suggest. Drawing on the work of twentieth-century philosopher Paul Grice, this Comment proposes a two-part test that captures the expressive character of this wider variety of behaviors, and demonstrates how lower courts might employ the test either as a replacement for, or as a supplement to, the Spence test.