Volume 89.6 (October 2022) 1369-1654 | The University of Chicago Law Review

Articles

Reducing Prejudice Through Law: Evidence from Experimental Psychology
Sara Emily Burke - Assistant Professor of Psychology, Syracuse University.
Roseanna Sommers - Assistant Professor of Law, University of Michigan.

Can antidiscrimination law effect changes in public attitudes toward minority groups? Could learning, for instance, that employment discrimination against people with clinical depression is legally prohibited cause members of the public to be more accepting toward people with mental health conditions? In this Article, we report the results of a series of experiments that test the effect of inducing the belief that discrimination against a given group is legal (versus illegal) on interpersonal attitudes toward members of that group. We find that learning that discrimination is unlawful does not simply lead people to believe that an employer is more likely to face punishment for discriminatory behavior. It also leads some people to report less prejudicial attitudes and greater feelings of interpersonal warmth toward members of that group. Conversely, when people learn that the law tolerates discrimination against a group, it can license more prejudicial attitudes. Importantly, we demonstrate that individuals vary substantially in the degree to which they view courts as legitimate authorities and that these orientations systematically moderate the degree to which—and even the direction in which—prejudicial attitudes shift in response to legal rules.

The Class Appeal
Adam Zimmerman - Professor of Law, Loyola Law School, Los Angeles.

For a wide variety of claims against the government, the federal courthouse doors are closed to all but those brought by powerful, organized interests. This is because hundreds of laws—colloquially known as “channeling statutes”—require disaffected groups to contest government bodies directly in appellate courts that hear cases individually. In theory, these laws promise quick, consistent, and authoritative legal decisions in appellate courts. In fact, without class actions, government bodies avoid judicial review by selectively avoiding claims brought by some of the most vulnerable people in the administrative state—from veterans and immigrants to coal miners, laborers, and the disabled.

This Article proposes a novel solution: courts of appeals should hear class actions themselves. In so doing, courts high in the judicial hierarchy would continue to authoritatively decide important legal questions involving government institutions while ensuring groups of similar, unrepresented parties finally get their day in court. While appellate class actions might sound like a strange procedural innovation, appellate courts already have the power to do this. Relying on the All Writs Act, appellate courts long ago created ad hoc procedures modeled after class actions to respond to systemic government harm.

This Article is the first to examine nascent experiments with appellate class actions. It shows that, contrary to popular belief, appellate courts can hear class actions, and it explains why they should do so. In cases challenging systemic abuse, this power has become vital not only to level the playing field between the government and the governed but also to protect courts’ core functions in our separation of powers—to hear claims, interpret law, and grant meaningful relief. Without classwide judgments in such cases, courts risk ceding power to the executive branch to decide for itself when judicial decisions limit its own unlawful policies.

Book Reviews

The Visibility Trap - A Book Review on Vice Patrol by Anna Lvovsky. University of Chicago Press, 2021. 346 pages.
Kate Redburn - Academic Fellow at Columbia Law School; J.D.-Ph.D. Candidate (American Legal History), Yale University.

Comments

Academic Freedoms and Misgendered Honorifics in the Classroom
Gabrielle Dohmen - B.S. 2017, University of Notre Dame; J.D. Candidate 2023, The University of Chicago Law School.

In recent years, public universities have promulgated pronoun policies designed to encourage professors and students to respect the pronouns that others use to identify themselves. A professor who does not follow the pronoun policy and instead misgenders a student—or uses gendered words or pronouns that do not match that student’s gender identity—may be disciplined by their university for violating the pronoun policy.

This Comment argues that professorial speech misgendering students in the classroom should not be protected by a professor’s First Amendment right to academic freedom, which traditionally covers teaching and scholarship. The First Amendment protects some exercises of academic freedom by public-university professors and public universities, but the bounds of these protections are not well defined. When a professor violates an official university pronoun policy by purposefully misgendering a student as part of a classroom-management device, a conflict arises between the professor’s individual academic freedom and the university’s institutional academic freedom. This Comment first seeks to situate this type of conflict within the history of academic freedom and the judicial principles that the Supreme Court and lower courts have used to discuss academic freedom. The Comment then argues that courts evaluating a conflict between individual and institutional academic freedoms should rule in favor of whichever exercise of academic freedom ensures that students can fully access the content of the lecture. In the case of misgendering as classroom management, the professor’s exercise of academic freedom harms the misgendered student and makes it difficult for that student to fully engage with the lecture, while the university’s exercise of academic freedom to promulgate a pronoun policy furthers a pedagogical environment in which all students can equally access educational content. Thus, the university’s exercise of academic freedom should override the professor’s in this conflict.

My Body, Your Choice: The Conflict Between Children's Bodily Autonomy and Parental Rights in the Age of Vaccine Resistance
Leigh Johnson - B.A. 2018, Duke University; J.D. Candidate 2023, The University of Chicago Law School.

Across the United States, parents are increasingly refusing to vaccinate their children against harmful childhood diseases. Many of these parents utilize expansive exemptions to school-immunization laws to keep their children unvaccinated. Even as their children become teenagers and develop their own informed opinions about vaccines, most state and local laws provide these minors with no avenue to override their parents’ objections and choose vaccination for themselves. However, this legal landscape may be changing, as creative laws like the District of Columbia’s Minor Consent for Vaccination Amendments Act of 2020 (MCA) have emerged that do allow certain minors to consent to recommended vaccines without parent permission, provided that they can meet an informed-consent standard.

This Comment argues that minors possess a qualified autonomy right to consent to recommended vaccines. It outlines the legal background of this autonomy right by discussing the history of vaccination laws, parental rights, and children’s rights in the United States. It also demonstrates how vaccine-resistant parents could attempt to challenge the exercise of this autonomy right by invoking the protections of highly restrictive religious-freedom laws like the Religious Freedom Restoration Act. Then, this Comment outlines the contours of the autonomy right itself. Finally, this Comment proposes a statutory solution, based in part on the District of Columbia’s MCA, that can vindicate this autonomy right while appropriately including parents in the consent process.