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The University of Chicago Undergraduate Law Magazine (ULM) is the College’s premier student-run legal publication. ULM is a pre-professional community committed to the e xploration, analysis, and evaluation of issues pertaining to the law and seeks to demonstrate its role in shaping society’s agency, authority, and attitudes towards life.
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Letter from the Editor
Yesterday, I finished my first notebook. Several half-scrawled notebooks crowd my stationery as a testament to how I struggled to ever reach a final cover. Afraid to squander resources I ought to learn from, I hold myself accountable for absorbing as much knowledge as possible. I fret over how many words in my readings still feel foreign to me as a fourth-year. The fear of falling short—of not advancing as intended within a notebook’s lifetime—paralyzes my progress. Inked along the plum Persianate journal’s gold-foil top edge is the date I decided to break out of this rut: the start of my judicial externship.
At 219 South Dearborn, 1L students sit in on federal court proceedings, gleaning practical skills beyond their Civil Procedure class’ scope. On the docket when I arrived was a drawn-out criminal case with a less-than-ruly pro se litigant taking center stage. Sitting together in the gallery, my co-externs were always kind enough to flag technical errors that were clear as day to someone in law school yet unbeknownst to me.
Backgrounded by peers’ OCI chatter, I spent my first few weeks in the Chicago Court Library—or as I have dubbed it, the Sky Reg— drilling landmark 7th Circuit Cases as much as I worked on assignments. For every federal code I jotted down, I would come across two prerequisite terms to bridge my knowledge gap.
Unlike Hemingway, I do not exact my field notes with the precision he keeps fish weights or directions to local-loved restaurants. Instead, using my trusty purple-hued stationery spread out in contrast with monotone-clad attire, pages became training grounds where I thought through argumentation, shedding the hesitancy of a timid undergraduate “imposter” to become a reliable peer.
Technical knowledge, although crucial, is not what made my time downtown worthwhile (though I did write to the Cornell Legal Information Institute to commend their efforts in democratizing legal literacy). Education’s heart is not one I can capture by copying down definitions from online. It is when I struggle to articulate my takeaway, when I reckon with the raw essence of education and the responsibilities it ascribes.
Sure, I now understand how probation officers incorporate offense levels in a presentence investigation report that will shape a defendant’s criminal history after they enter a guilty plea. No legal jargon or lofty reading vocabulary helped me find the words to memorialize what I intently zeroed in on. His fingers fidgeted, brushing against one another but never defying the handcuffs’ hold, as he repeatedly confirmed his competency to accept the weight of all charges against him.
Why were his hands all I thought of on my Metra ride back into Hyde Park? How could I forget the report’s name, needing to flip back to an old page, yet easily recall his composure without having to reach for my notebook?
As a student in the College, I commend your enthusiasm to investigate every dimension, crevice, and theory of knowledge at our vast disposal, as we encourage ULM writers to do. In our bubble, we must remind one another that developing a point is moot and void without skillful communication.
The pro se litigant from earlier faced a legal lineup who could give the ‘pedigree’ definition a run for Merriam-Webster’s money. Prosecutors took his scrappy, YouTube-sourced litigation skills as an affront to the prowess shared among three clean-cut, double-Ivy certified government attorneys.
In the eyes of the jury, self-represented David quashed knowledgeable Goliath, walking away acquitted on all counts. This is not a commentary—nor a suggestion to take the stand alone. Note: Nothing herein at ULM constitutes legal advice. We are not lawyers… yet! Grant yourself the grace of not knowing everything while embracing the right to grow with the knowledge you gain along the way. Better to sport the badge of a lifelong learner with pride, even strategically speaking, than to let hesitation or pretention snowball faux pauses into a Goliath-level loss.
We at UChicago love theory. It merits repeating that, in practice, remarkable emotional intelligence, delivery, and relatability can outweigh just how much you know. Again, in true Maroon spirit, the law remains a client-facing industry.
Sharpie-ing the final date to close out the first of many notebooks, I take one step up an endless staircase. Progress is no longer a stalled, hung jury but a decisive venture into refining the arguments I have yet to make.
Unsatiated,
Aya Hamza Refounding Editor-in-Chief
THE MASTHEAD MEET
aya hamza editor-in-chief
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LEGAL ANALYSES
“CONSCIENTIOUS OBJECTION?”: ARGUMENTS FOR ABORTION PILL BAN
LACK LEGAL FOUNDATION
Two
years after Dobbs v. Jackson Women’s Health Organization, which ended the constitutional right to abortion, a case regarding national access to abortion pill mifepristone made its way to the Supreme Court in Food and Drug Administration (FDA) v. Alliance for Hippocratic Medicine (AHM), and Danco Laboratories LLC v. AHM
The FDA approved mifepristone in 2000 and gradually loosened restrictions on the drug. Over two decades, the FDA repeatedly affirmed the safety and efficacy of mifepristone with numerous expert examinations and clinical evidence. In 2023, the FDA lifted the Mifepristone Risk Evaluation and Mitigation Strategy (REMS) Program’s in-person dispensing requirement, “allowing mifepristone to be mailed in states that allow medication abortion via telehealth.” After Dobbs, over twenty states have banned abortion to
by VINCENT LI STAFF WRITER
cation increased by about ten percent, now accounting for 63% of abortions in the U.S.
Anti-abortion doctors with membership of the AHM challenged the FDA’s regulatory changes on mifepristone based on the theory of conscientious objection, “the refusal to perform a legal role or responsibility because of personal beliefs.” These doctors expressed frustration about potentially having to treat patients who had complications after taking mifepristone. This type of grievance is exemplified by a hypothetical case that Justice Alito created, where an anti-abortion doctor, the only one on duty in the emergency room, encountered a patient with complications and had to abort a fetus under these circumstances.
This article analyzes two legal issues in this case: (1) whether the AHM has an Article III standing against the FDA, which requires the party bringing the action to identify “concrete harm” resulting from the defendant’s conduct; (2) whether the claimed injury should be remedied through a nation-wide ban of mifepristone.
To establish Article III standing, “the association needs to identify a specific member who is suffering a concrete harm, a cognizable injury that’s non-specu-
lative,” Solicitor General Elizabeth Prelogar wrote. Evidence submitted by the AHM is mainly in the form of doctors’ declarations. These declarations are speculative at best, involving potential emotional challenges of treating complications resulting from taking mifepristone. However, the AHM has not identified a single incident of eminent harm arising from, for example, a situation similar to Justice Alito’s hypothetical case. Without specific individuals harmed by non-speculative injury reasonably associated with the FDA’s regulatory treatment of mifepristone, most judges were skeptical about the existence of Article III standing. Justice Kavanaugh asked, “under federal law, no doctors can be forced against their consciences to perform or assist in an abortion, correct?” The AHM lacks the standing to challenge the FDA’s authority when no doctor would be coerced to take part in an abortion-related medical treatment.
The claimed injury also does not seem to justify the proposed remedy. In Justice Jackson’s words, “there is a significant mismatch in this case between the claimed injury and the remedy that’s being sought.” Federal laws already provide conscientious protection for anti-abortion doctors by exempting them from participating in any abortion-related medical treatments. For example, the Public Health Service Act of 1973, otherwise known as the “Church Amendment,” protects healthcare profes-
THE RWANDA PLAN
Oneof the most contentious debates in the United Kingdom since Brexit has been over the Rwanda Plan, under which illegal immigrants to the UK, including those seeking asylum, would be sent to Rwanda for processing and, conditional upon approval, resettled there. First proposed in 2022 under the premiership of Boris Johnson, it was supposed to take effect that very year until it was blocked by an appeal to the European Court of Human Rights (ECHR). This proved to be particularly controversial as Britain found itself subject to a European institution that it was still treaty-bound to separate from its membership in the European Union, which it exited in 2016.
The ECHR, which first put the brakes on the Rwanda Plan, is in many ways a prototypical European institution, reflecting supranational authority of the sort that Britain sought to escape with Brexit. The ECHR’s injunction prompted a movement within the British right to exit it; a movement that is still very much active, though its prospects have been dented by the likely loss of the incumbent election in the coming election. Along with their challenge in the ECHR, opponents of the Rwanda Plan also sought to work within Britain’s own judiciary to have it struck down. Much like in the ECHR, those challenging the Rwanda Plan found success here, with the Court of Appeals ruling against it in 2023. That very year, the U.K. Supreme Court (UKSC) took up the case and similarly ruled against the Rwanda Plan on the grounds of safety, with the judgment noting that “there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of
by SANJAY SRIVATSAN STAFF WRITER
refoulement to their country of origin if they were removed to Rwanda.”
Rather than finding a destination for migrants that is safer than Rwanda or abandoning the plan in line with the UKSC’s ruling, the British government simply resolved to declare by legislative fiat that Rwanda was, in fact, a safe destination. By passing the Safety of Rwanda (Asylum and Immigration) Bill, they sought to address and overrule the court’s key objection without materially changing any of the facts on the ground that led the court to rule that Rwanda was unsafe.
This bill, controversial as it may have been, was also an attempt by the British Parliament to exercise its constitutional prerogative as the holder of supreme law-making authority in the United Kingdom. The ample ease, both legally and politically, with which Parliament was able to overturn an act of the UKSC also acts as a demonstration of the lack of legitimacy this court has in comparison to its American counterpart, where Congress is far less able, both politically and constitutionally, to challenge the rulings of the Supreme Court. Politically, this distinction is in no small part due to the fact that the UKSC was established in 2009, over two centuries after the American one. In terms of power, it is also a testament to the awesome power of judicial reform that the American Supreme Court wields, which is absent in the United Kingdom, which indeed has only an unwritten constitution.
In surmounting the judicial challenge to the Rwanda Plan, the British government and its majority in the House of Commons faced a challenge within Parliament itself, in the form of the upper and traditionally more conservative house, the House
of Lords. The Commons was thus forced to undergo the long process of overriding the Lords’ prerogative to delay legislation, but upon Prime Minister Sunak’s instance that the Parliament would sit and resolve to pass the plan on April 22, 2024 and after two more rounds of tussling between the Commons and the Lords, the Safety of Rwanda (Asylum and Immigration) Bill was able to finally pass through Parliament and receive Royal Assent on April 25. The fight may be far from over, however, if the ECHR decides to issue further injunctions trying to stop deportations. Although the bill contains provisions that give ministers the prerogative to sidestep injunctions, the ECHR may not take so lightly to such attempts and any resulting tussle between it and the British government may give rise to yet another push within the British right to exit the ECHR. That said, the prospects of Britain leaving the ECHR, and of the Rwanda Plan remaining in force and not rescinded, hinge upon the incumbent British government winning re-election. General elections, however, are less than a year away, and if current polls are any indication, the incumbent Conservative Party government is projected to suffer a heavy defeat. The leader of the Labour Party who is poised to become the nation’s Prime Minister has made it clear that he will move swiftly to rescind the Rwanda Plan. As the United Kingdom heads into a pivotal election, the Rwanda Plan’s fate hangs in the balance, and the long, arduous battle that its supporters have fought may have ultimately been for nought in the likely event of a Labour victory in it.
sionals in federally funded healthcare programs from being discriminated against for declining to perform abortions or sterilizations against their religious or moral beliefs. The facts in this case are covered by federal conscientious protection laws and do not necessitate the sought remedy: a nation-wide ban of mifepristone.
Justice Alito and Justice Thomas referenced the Comstock Act, a
1873 law that prohibited the U.S. Postal Service from distributing “lewd” materials, including abortion medications. This article makes a speculative comment that while the AHM lacks Article III standing, the case could potentially initiate maneuvers within the court to resurrect the Comstock Act and effectively restrict nation-wide access to abortion pills.
The court expressed primarily
skeptical opinions about AHM’s theories of injury and Article III standing. The decision would have implications to whether the court is justified to question the FDA’s authority in drug regulations, whether access to a prevalent abortion pill would be restricted, and whether the court would join states in actively intervening in abortion questions.
CANTERO V. BANK OF AMERICA AND THE FUTURE OF STATE BANKING REGULATION
by ARYA NAGRAJ STAFF WRITER
Asmuch ire as they have received throughout history—justified and unjustified—banks are critical economic institutions. They enable borrowers to finance their homes, support their businesses, and protect their savings. Their pivotal position as economic facilitators, however, exacerbates the impact of their abusive practices: banks’ predatory lending caused the worst market failure in the 21st century, the Great Recession of 2008, leading to mass unemployment, inequality, and social unrest. As such, regulations on banks are essential in mitigating these market failures and forcing banks to act above board.
Traditionally, the United States has split this regulatory power between the federal government and the state governments in what is called a “dual banking system.” In this system, nationally chartered banks are bound by both sets of regulations, but whenever there’s a conflict between the two, state regulations are “preempted” by federal regulations. Furthermore, a recent federal banking regulation, the Dodd-Frank Act, codified state regulations always be-
ing preempted if such a regulation “prevents or significantly interferes with the exercise by the [nationally chartered] bank of its power.”
But what does “significantly interfere” mean in the context of national banks’ powers, and how is intensity of interference determined? The Supreme Court must contend with these major legal questions in Cantero v. Bank of America (October 2023 term), a case in which a New York state banking regulation on escrow-interest rates has been challenged for allegedly being preempted by the National Bank Act, the law empowering federal banking regulation.
In 2010, Alex Cantero, the plaintiff, purchased a house in New York with a mortgage from Bank of America. His mortgage required him to deposit money into an escrow account, a special bank account used to pay for property taxes and insurance premiums. However, unlike other bank accounts, e.g. checkings and savings accounts, escrow accounts from Bank of America paid no interest to depositors. Given that New York state regulation requires banks
in the state to pay 2% interest on escrow accounts, Alex Cantero sued Bank of America for violating this regulation. In its defense, Bank of America argued that as a nationally chartered bank, this state regulation “significantly interferes with the exercise of [its] power,” and therefore must be preempted by the National Bank Act, which does not require interest payments on escrow accounts.
Both parties have posited conflicting arguments on when a state regulation “significantly interferes” with a national bank. Cantero’s basic argument is that significant interference must be proven by Bank of America using a rigorous, factual assessment, and that if it fails to meet this burden, there exists no justification for preempting the state regulation. In Cantero’s case, his attorneys argue that Bank of America could not prove the modest escrow-interest rate regulation caused significant interference to its activities, and therefore, it must pay the interest.
Bank of America’s attorneys offer a different model, arguing that any exertion of control over the
“Regardless of whether the Supreme Court rules that the Bank of America must pay the escrow-interest rate, it’s important that the Court resist the principles-based reasoning forwarded by Bank of America. . . and instead embrace a factual assessment for what constitutes significant interference.”
pricing of its products was significant interference and that the judgment should be made on this principled basis rather than Cantero’s proposed factual assessment. The courts themselves have been split on which model is valid. In their opinions, the Second Circuit Court of Appeals and the Ninth Circuit Court of Appeals both adopted a principled-based approach akin to Bank of America’s, but arrived at opposite conclusions. On one hand, the Second Circuit sided with Bank of America, stating that the relevant question was “not how much a state law impacts a national bank, but rather whether it purports to ‘control’ the exercise of its powers,” and that because the New York state regulation controlled the price of escrow-interest rates, it was automatically deemed a “significant interference,” and therefore preempted by the federal regulation. On the other hand, the Ninth Circuit sided with Cantero, stating that Congress had already “expresse[d its] view that” 2% interest-on-escrow state regulations do not “significantly interfere with a national bank’s operations,” and therefore, they did not need any factual assessment to determine the lack of
significant interference, allowing the New York state regulation to stand.
During oral arguments, however, some liberal-leaning Supreme Court justices indicated a preference toward Cantero’s factual assessment approach, with Justice Ketanji Brown Jackson grilling Bank of America attorney Lisa Blatt, telling her, “it’s your burden … to show [the New York state regulation] substantially interferes [with Bank of America’s operations]. If your answer is ‘I don’t know what we would show,’ then I guess you lose.” Conservative justices like Brett Kavanaugh and Clarence Thomas, however, align much closer with Bank of America’s proposition, with Kavanaugh comparing an escrow-interest rate to a “tax on a bank” to sell mortgages, which “sounds like significant interference” on principle to him. Regardless of whether the Supreme Court rules that Bank of America must pay the escrow-interest rate, it’s important that the Court resist the principles-based reasoning forwarded by Bank of America and furthered by the Second and Ninth Circuit Courts, and instead embrace a factual assessment for what constitutes significant interference. This
view is supported by Solicitor General Elizabeth Prelogar, who emphasizes the need for “practical inquiry into the degree to which a state law impedes the exercise of national bank powers” and eschews the two circuit courts for grounding their decisions not in factual inquiry, but rather in legal abstractions. Although such an inquiry may be resource intensive and lead to somewhat inconsistent findings across various jurisdictions, the principles-based alternative opens the door to a far worse potential outcome: preempting all substantial state banking regulation, and therefore killing state consumer protection from national banks. Federal banking regulations can be incomplete, and state banking regulations fill in the gaps; without the latter’s help, we risk another Great Recession.
THE EPIC OF ANTITRUST: UNDERSTANDING THE
SIGNIFICANCE OF ANTITRUST
SUITS IN AN EVER-EVOLVING DIGITAL LANDSCAPE
by TEJAS SHIVKUMAR STAFF WRITER
Having moved from companies exercising monopolistic control over physical assets to virtual and intangible assets in the digital realm, the complexity of antitrust suits involving tech monoliths has long surpassed the simply-understood concepts of division of physical and monetary assets. Tech antitrust lawsuits aim to prevent the possible monopolization of tech markets by identifying oppressive business tactics employed by tech companies to asphyxiate competitors and channel customer demand to themselves. With the rapid pace of innovation, the pace of technology-related antitrust cases has picked up similarly in speed.
At the beginning of 2024, alongside ongoing lawsuits against Meta and Amazon, the DOJ alongside 15 other states and D.C. filed an antitrust lawsuit against Apple for its allegedly illegal monopolization of the smartphone market. “Unlawful exclusionary behavior” was cited as one of the primary reasons for the suit. This claim was backed up by evidence to show that the lack of integration with other OS systems on the market gave Apple an illegal monopoly over the smartphone market, capturing over 60% of the US smartphone market and 20.1% of the worldwide smartphone market. Where increased integration with the Apple OS is cited as an exclusionary and illegal monopolistic tactic that Apple employs, many consumers consider such integration as an added benefit that incentivizes them to continue using Apple’s products (rather than being forced to buy them). As such, when looking at the basis of modern
tech antitrust suits, it becomes harder to distinguish between illegal monopolistic acts and shrewd business choices to please current customers.
In 2020, the level of integration (and revenue sharing) that Epic Games had to comply with caused them to reach their breaking point. Epic Games, the developer behind Fortnite, took issue with the ~30% cut of in-app purchases that Apple took when consumers made purchases in Fortnite that were made using App Store and iTunes accounts. According to the statements in Epic Games v. Apple, Tim Sweeney (CEO, Epic Games) believed that a payment method independent of Apple’s App Store “...would allow consumers to pay less for digital products, and allow developers to earn more money.” When Epic Games activated this in-app payment feature on August 13 of 2020, effectively declaring digital war on Apple, Apple was quick to remove Fortnite entirely from the App Store. Apple’s primary claim was that IOS compatibility and Apple’s App Store drove a significant portion of Fortnite’s usership, and that their revenue-sharing model was permissible given the significant role they played in popularizing Fortnite.
The case itself invoked the Sherman Act and the Cartwright Act, the former of making “monopolization, attempted monopolization, or conspiracy or combination to monopolize” illegal, and the latter re-enumerating these tenets. The case brief highlights the two injunctions that Epic Games believes Apple in committed in the proceedings: illegal monopoly maintenance, and tying (selling a service and obligating consumers to also buy another service as a result). While Epic put a fight up in district and appeals
courts, the Supreme Court ultimately rejected the case when it reached the 9th circuit court.
Epic Games v. Apple was part of a larger tech antitrust movement that has made its way to a critical point this year. FTC Chair Lina Khan has been battling an antitrust war on many fronts, but her antitrust cases involving Google and Meta predate her and are still set to be career and market-defining cases. In addition to the DOJ’s recent suit with Apple, antitrust law is playing a large role in how individuals interact with a digitized economy that necessitates the existence of interfacing methods. The tech companies that create hardware and software to enable such interfacing serve as digital gatekeepers, whose products are as essential as gas and electricity for day-today functioning.
In an interview with Jon Stewart on The Daily Show, Lina Khan stated that antitrust laws are vital because “... you don’t want an autocrat of trade in the same way that you don’t want a monarch.” While big tech software and hardware offerings are often positioned as standalone products, the added complication of product tiein (for optimal product and system functionality) and inherent interconnectedness of software and hardware offerings makes tech monopolies incalculable, making it hard for economists to accurately measure monopoly power in a market.
The idea of interconnectedness in digital markets is what Europe’s Digital Markets Act (DMA) aims to address. As stated by the DMA, its main goal is to regulate market “gatekeepers”, which are defined as businesses that have “an entrenched and durable position in the market”, and have “a
“The tech companies that create hardware and software to enable such interfacing serve as digital gatekeepers, whose products are as essential as gas and electricity for day-to-day functioning.”
strong intermediation position, meaning that it links a large user base to a large number of businesses.” In reaction to the DMA, Apple created provisions for the use of alternative app stores, reserving the right to charge a fee of half an euro per download on apps with over 1 million installs.
As seen with the DMA, Apple and Epic’s suit, and the state of tech-related
Antitrust, monopolies are becoming harder to both quantify and control in the digital realm. The software and hardware interfaces we use to interact with the digital economy are becoming harder to ascribe singular control over. With consumers preferring onestop-shop formulation of software and hardware to prevent the need to have arrays of accounts and devices
to perform few tasks, it is increasingly hard to differentiate between good business decisions (favoring customer preferences for integration) and true gatekeeping. The epic of tech antitrust is thus a long one, one whose sections are fraught with ever-evolving situations, and whose end is nowhere near.
A CENTURY AND A HALF LATER, TRUMP WANTS TO BRING BACK THE PATRONAGE SYSTEM
by JUSTIN POSNER STAFF WRITER
In1881, President James A. Garfield fell dead at the hands of assassin Charles Guiteau, a disgruntled office seeker. Guiteau believed he was owed a consulship in return for favors he had done for Garfield’s election campaign, and was infuriated when his hopes were dashed. In response, congress passed the Pendleton Civil Service Act, which replaced the existing patronage system with a merit-based examination system to determine federal office holders. For the past 150 years, the Pendleton Act has defined the civil service system, providing a consistent method for choosing bureaucrats without the need for corruption or illicit favors. However, in 2020, President Donald Trump signed an executive order with the potential to wipe out the Pendleton guardrails. The order established a new class of civil servants known as “Schedule F” who could be hired or fired at will by the president, and, while the order was rescinded by Joe Biden, Trump hopes to bring
it back if elected in 2024. Trump’s effort presents a serious threat to impartial and apolitical bureaucracy, and, consequently, to the very foundations of American democracy. Trump’s effort to reshape the civil service system is part of his broader “ten point plan to dismantle the deep state,” the supposed web of shady, unelected bureaucrats who Trump claimed bedeviled him and hindered him from achieving policy goals throughout his first term. In the executive order that created schedule F, Trump wrote “ that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for career positions in the Federal service of a confidential, policy-determining, policy-making, or policy-advocating character.” In other words, the order stated that, when necessary, Trump wanted to ignore normal competitive hiring practices for some positions and instead have absolute discretion to choose appointees. The order
claims that its aim is to allow removal of employees “who cannot or will not meet required performance” or consistently show “poor performance.” One might argue that the federal bureaucracy is either more or less effective, but the solution to this problem is not to give the president unlimited authority in selecting civil servants.
Aside from establishing a system of examination to select civil servants, the original Pendleton Act, which has been amended and broadened by subsequent legislation, establishes “that no person in the public service is for that reason under any obligations to contribute to any political fund, or to render any political service, and that he will not be removed or otherwise prejudiced for refusing to do so,” and “that no person in said service has any right to use his official authority or influence to coerce the political action of any person or body.” It is unclear that the Title F plan would be in keeping with
NIL, ANTITRUST, AND THE NEW ERA OF COLLEGE SPORTS: A LEGAL FIGHT FOR ATHLETE EMPOWERMENT
by BRODIE BOJORQUEZ STAFF WRITER
Energy drinks, NFTs, Chipotle, and Beats headphones. What do they all have in common? All are popular avenues through which collegiate athletes are able to profit off of their Name, Image, and Likeness (NIL). Following the Alston decision in 2021, the National Collegiate Athletics Association (NCAA) was forced to abandon their longstanding ban against collegiate athletes profiting off of their own NIL, breaking from their “amateurism” model of collegiate athletics. While many applaud the amendment and the newfound ability for athletes to have control over their NIL that had been denied for so long, some critics argue that enabling athletes to profit off of their NIL diminishes the sincerity of the collegiate game and encourages a “pay-to-play” ethos. In fact, the NCAA recently attempted to ban third-party organizations of universities, or, “boosters”, from meeting with recruits and prospective players, in order to inhibit inducements that incentivize players to join their respective teams. In response, the state of Tennessee filed a preliminary injunction to prevent the enforcement of the NCAA booster ban, which was granted in February 2024 by United States District Court Judge Clifton Corker, who highlighted that “[w]ithout the give and take of a free market, student athletes simply have no knowledge of their true NIL value. It is this suppression of negotiating leverage and the consequential lack of knowledge that harms student athletes.”
Tennessee’s main argument rests
on the fact that restriction of NIL recruitment directly violates antitrust law and impedes the labor market in which athletes are able to understand what their full NIL value and potential is. The NCAA’s booster ban effectively inhibits their ability to do so, and is in direct violation of the Sherman Act, which is the “comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade.” In order to state a claim under the Sherman Act, there must be something inhibiting “commercial activity”; in his memorandum opinion and order, Judge Corker deemed NIL contracts and transactions both “undoubtedly” and “explicitly” of a commercial nature. Though the NCAA has consistently touted and proclaimed collegiate athletics as an “amateurism” model within sports, the Court’s holding characterizes the association as violating antitrust law, reinforcing both the legitimacy and legality of NIL operations within the collegiate sphere.
Aside from validating the legitimacy of the NIL market, the Court’s opinion also highlights the urgent and detrimental anti-competitive consequences of the NCAA’s attempt to ban NIL boosters, collectives, and other groups that help compensate athletes and entice high performing athletes to attend their universities. While the timeline for incoming college athletes to commit to a school can be quite short, especially considering when offers are made and accepted throughout the admissions season, it is even shorter for transfer athletes. For college football players seeking to transfer to a different school, they had a limited
period from April 16, 2024 to April 30, 2024 to make the switch, and an even smaller one for 2025 (April 16 to April 25). Thus, there existed potentially irreparable harm for the prospective transfer athlete, in the event the NCAA ban were to have gone into effect, as athletes seeking to begin or continue profiting from NIL opportunities would be unable to speak with coaches, collectives, and other organizations that would provide ample opportunities for the player to evaluate both their NIL and athletic potential. As Judge Corker noted, “the balance of the equities weighs heavily in favor of Plaintiffs because neither the NCAA nor any other affected individual or entity will face substantial harm with the issuance of an injunction, whereas, as explained above, student-athletes face irreparable harm.” Judge Corker further highlighted that student athletes and their labor “generate massive revenues for the NCAA, its members, and other constituents in the college athletics industry—none of whom would dare accept such anticompetitive restrictions on their ability to negotiate their own rights. Those athletes shouldn’t have to either.”
The college football landscape is an immensely profitable market for both athletes and universities alike, with schools including Notre Dame, Georgia, and the 2024 national champions, Michigan, raking in nearly $250 million dollars in revenue this past year. Numbers of such gargantuan amounts are only possible through the labor of the student-athletes, who attract fans and audiences nationwide, but had never realized any benefit in their pocketbooks until recently. NIL compen-
“From Reggie Bush to Johnny Manziel to Shawne Alston, the NCAA has been under fire for decades, as many consider it to operate as a monopoly within the college sports industry.”
sation allows players to evaluate their own value and quantitative worth for their work on and off the field. While NIL compensation has only been around for less than five years, this tension between the NCAA’s longstanding “amateurism” model of collegiate sports and the burgeoning opportunity athletes have to actual-
ize their worth financially has been a long time coming. From Reggie Bush to Johnny Manziel to Shawne Alston, the NCAA has been under fire for decades, as many consider it to operate as a monopoly within the college sports industry. However, with Courts cracking down on the suppression of free movement
within the collegiate sports market and encouraging the pursuit of fair NIL values for student-athletes, you might be seeing more of your favorite players (who might also be your classmates!) on billboards across the country.
A CENTURY AND A HALF LATER, TRUMP WANTS TO BRING BACK THE PATRONAGE SYSTEM
CONTINUED FROM PAGE 11
these clauses. If Trump, or any other president for that matter, were able to hire and fire civil servants at will, they would effectively be able to force civil servants to support their political campaigns or even take illegal actions by threatening to fire them if they refused. Contrary to Trump’s claim in the executive order that this would make the civil service system better and more efficient, it would, in fact, likely lead to significant problems with the federal bureaucracy.
Moreover, Trump’s actions and campaign statements have made it abundantly clear that title F is part of a broader push to overturn the civil service system and make it more pliable to his will. Trump campaign operatives and previous white house staffers have reportedly compiled a database of over 50,000 federal employees they would consider firing under title F, and are currently working to assemble a list of around 20,000 potential candidates to fill these roles–
currently, the federal government has only 4,000 politically appointed positions. Thus, it is clear that Trump’s move aims not only to create a theoretical framework for presidents to remove ineffective or uncooperative civil servants, but would be the basis for a massive turnover of federal employees that would allow Trump to use executive departments at will.
If enacted, Title F would likely be swiftly challenged in court for violating the Pendleton Act. This did not happen last time because Title F was enacted near the end of Trump’s presidency and quickly rescinded. It is impossible to say for sure how the current court would rule, but given past rulings, it is likely that they would strike down Trump’s attempt to overturn the federal bureaucracy. In general, the court has tended to side with Trump and republicans on hot button issues like abortion or gun control, but has rebuffed their attempts to enact administrative re-
forms regarding more technical issues like electoral law or bureaucratic rules. As title F falls into the latter category, its chances of surviving the Supreme Court likely would not be good. Pundits attempting to predict what would happen in a second Trump term often focus on major public issues, at the risk of ignoring backroom policies like title F. If Trump were to try to expand his power during a second term, he would focus not only on overt changes but on bureaucratic measures like this one that would give him greater authority not just in what policies are enacted but in how they are enforced. The danger is that this will upset the balance of power by drastically expanding Trump’s ability to interpret and define policy to the exclusion of the other branches.
TWO VIEWS
THE AI SIREN SONG
by AHMED AHMED ASSOCIATE EDITOR
From reshaping how instructors grade their classes to being a major sticking point in the largest entertainment labor dispute in almost 20 years, the past year has likely just been a preview of how much artificial intelligence can change things. With every major technology company trying their hand at an interactive AI model, it’s little surprise that some members of the legal profession have turned to AI in hopes of making their work more efficient. Unfortunately, the biggest impact these attempts have had so far is landing a group of New York lawyers in hot water after a botched effort at using ChatGPT resulted in them submitting briefs with outright fabricated information. Contrary to what proponents of using AI in the legal field may say, the reality is that the technology is nowhere near advanced enough to be trusted in the courtroom.
The chief issue with AI is its comically frequent tendency to provide outright incorrect answers to queries. A study by Purdue University found that an outright majority of software engineering questions to ChatGPT prompted incorrect answers, a far worse record than that of Stack Overflow, a forum where users ask and answer questions pertaining to different fields. The aforementioned lawyers who erroneously placed their trust in the site were not just victims of bad
luck. On the contrary, it would be statistically astonishing if their asking ChatGPT more than surface-level questions about any topic elicited no more than a few incorrect answers. AI models like ChatGPT thus fundamentally undermine the integrity of the legal system by subjecting it to the risk that its practitioners are wrong about matters of fact. Having an attorney who is inexperienced or less than knowledgeable about certain matters is of course not ideal, but that matter is made all the worse when said attorney uses tools to make up for his shortcomings that are fundamentally flawed.
What makes this even more insidious is that this risk likely will not apply to all lawyers equally. Though the temptation to make the job less time intensive exists for all members of the profession, it is especially true for the lawyers doing the most to represent the interests of the indigent and marginalized: public defenders. A New York Times report found that public defenders are frequently underpaid and their offices are often understaffed, leaving defendants with no other option but to rely on lawyers who, to put it simply, do not have time for them. A world where AI use among lawyers is regularized would mean the lawyers the most strapped for time — public defenders, and other public interest lawyers whose
paychecks are smaller than bigshot corporate attorneys — are the most likely to use AI as a crutch. Moreover, these are also the lawyers with the fewest resources to verify that all of the information they are providing is entirely true.
Some defenders of AI say these problems can be ameliorated in due time, but it is irrational to throw the baby out with the bathwater and restrict all usage of AI by legal professionals. Given that it is already against ethics rules to provide false information to a court of law, these defenders argue, it is irrational to target AI specifically. This argument, however, is akin to arguing against gun free school zones because homicide is already a felony. The purpose of regulations is not merely to prevent improper behavior but to minimize the risk of said behavior when such minimization doesn’t jeopardize a commensurate benefit.
Perhaps in the future, AI won’t be as prone to making severe errors. Until that point is reached however, its usage by lawyers should be legally restricted. Doing so isn’t a matter of excessive risk-aversion — it is simply a matter of ensuring all people receive the competent counsel that is their right.
Should ChatGPT Take the Stand in the Courtroom
COUNSEL CHATGPT-ING CASES?
by KEVIN GUO STAFF WRITER
Matav. Avianca, Inc., 678 F. Supp. 3d 443 (S.D.N.Y. 2023) is a case for the history books. Mata, however, was not groundbreaking in terms of the facts the lawsuit presented; the lawsuit—as opposed to a high-profile challenge to a federal policy, for instance—was filed by someone whose left knee was struck by a metal serving cart during a flight. What was notable about Mata, however, was that it was the first case in which lawyers, quite obviously, used ChatGPT to write their brief—resulting in a host of nonexistent cases being cited, turning the brief into what the judge called “legal gibberish.” Remarkably, the lawyers seemed unaware that ChatGPT was leading them astray, as evidenced by an exchange in which the attorney asked the chatbot, “is varghese [a case ChatGPT invented] a real case,” with ChatGPT confidently responding, “Yes, Varghese v. China Southern Airlines Co Ltd, 925 F.3d 1339 (11th Cir. 2019) is a real case.”
Lifting text from other sources to include in one’s own brief is not new for lawyers. It is far from: is not unusual for attorneys to incorporate significant portions of their colleagues’ briefs into their own, building upon the arguments and language that have proven successful in the past. This tradition allows lawyers to benefit fromleverage the collective knowledge and experience of their peers, crafting compelling cases without starting from scratch each time. AI, however,
has complicated this practice, as some lawyers have begun copying verbatim from language models like ChatGPT. While these tools can sometimes generate coherent and persuasive text, they are also unusually prone to “hallucinations,” where they fabricate information that sounds plausible but is ultimately fictitious, as seen in Mata.
Despite these risks, however, artificial intelligence, if used correctly, can be a helpful tool for lawyers, especially as such AI tools will only become more advanced with time. Indeed, Westlaw has recently incorporated AI-assisted legal research into its product, while Casetext recently introduced CoCounsel, what the company calls “the first AI legal assistant.” Rather than work against technological advancements, lawyers should embrace AI and learn to use it effectively in their practice. By leveraging the power of large language models like ChatGPT, lawyers can more quickly and effectively generate drafts of documents, conduct legal research, and identify relevant case law—thus saving valuble time and resouces while still delivering high-quality work to clients.
Nevertheless, as with lifting text from other briefs, it is up to the submitting lawyer to ensure—and indeed, they have to certify as much—that the content in the brief is accurate. Despite this existing requirement, however, some courts have begun introducing rules that require lawyers to disclose their use of AI and certify
that the generated content has been fact-checked. These rules are superfluous: as David Coale, a lawyer at Lynn Pinker Hurst & Schwegmann, pointed out in a letter to the court, “precisely because citation to ‘fake law’ is such a serious matter, court rules and state ethical standards already prohibit it.” The Institute for Justice echoed this sentiment, stating that lawyers “are already under a professional obligation—which this court possesses the inherent authority to enforce—to provide accurate and fully vetted arguments and citations in their briefing.”
In the end, artificial intelligence can be likened to calculators: they can be enormously helpful to lawyers, but only if they are used correctly and responsibly. Indeed, just as a calculator can help a mathematician solve complex equations more quickly and accurately, AI can help lawyers generate drafts, conduct research, and identify relevant case law more efficiently. But just as a mathematician must still understand the underlying principles and concepts behind the equations they are solving, so too must lawyers understand the legal principles and arguments they are making in their briefs. Ultimately, it is up to individual lawyers to weigh the potential benefits and risks of using AI in their practice—and to ensure that they are using these tools in a way that is consistent with their professional obligations and ethical duties.
OPINION
THE POLITICIZATION OF THE U.S. JUDICIARY: THE ETHICS AND IMPACT OF JUDGE SHOPPING
by NITYA UPADRASTA STAFF WRITER
Judge shopping is the unethical practice of filing cases in districts one knows will be heard by an “ideologically friendly” judge, which increases the odds of a favorable decision, almost to the point of a guarantee. As long as the legal system is vulnerable to judge shopping, case assignment rules can be exploited to allow extremists to decide and influence certain pressing issues of state and national policy. Although liberals, as well as conservatives, use the tactic, liberals experience far less success with the tactic, such as in the attempted judge shopping in an Alabama lawsuit barring transgender care for minors in 2022. Judge shopping primarily serves conservative litigants who can file cases, specifically in the smaller divisions, with only one to two Republican judges, in Texas’ four federal districts such as Amarillo. This enables them to premeditate favorable outcomes on polarizing issues such as abortion, gun control, and immigration.
On March 12, 2024, the U.S. Judicial Conference announced a policy that would require that any lawsuit filed that challenged state or federal laws to be randomly assigned to a federal district judge regardless of the specific, smaller division where the initial filing occurred. This announcement sparked extreme dissatisfaction among Senate Republicans, with Senate Minority Leader Mitch McConnell calling the policy “half-
baked” and an “unforced error” by the Judicial Conference. In return, the Conference clarified that the decision of how to implement this policy was up to each federal district’s discretion. This effectively rid the policy of any legitimate power, as it was no longer a requirement, but instead a mere suggestion. Progressive groups such as the Mexican American Legal Defense and Education Fund and Citizens for Responsibility and Ethics in Washington have written letters to the Conference emphasizing the need for real legislation against judge shopping, and additional oversight by the Conference to enforce uniform administration of justice throughout the country regardless of political leanings. The practice of judge shopping allows the Court to increasingly stray away from its historic role as an impartial arbiter of the law, and The Judicial Conference must take a stricter stance on the matter to prevent this.
There have been many major cases of judge shopping with significant national consequences. In April 2023, Texas federal judge, Matthew Kacsmaryk, ruled to ban the common abortion medication mifepristone nationwide, suspending its over 20-year FDA approval. The lawsuit challenging this FDA approval was strategically filed by anti-abortion activists in the U.S. District Court of Northern Texas to secure a favorable outcome as Judge Kacsmaryk has long been associated with anti-abortion stances, previously working at an anti-contraceptive Christian legal
group. The Texas federal court’s ruling directly conflicts with the state of Washington’s federal court ruling, which ordered that the FDA continue making mifepristone accessible in 17 states and Washington D.C. The Supreme Court took up the case after the Biden administration appealed Kacsmaryk’s ruling. If the Supreme Court upholds his ruling, abortion seekers will have to primarily turn to the drug misoprostol which causes more side effects and is less effective than the mifepristone regimen.
Argued recently in the Supreme Court on March 18, 2024, Murthy v. Minnesota, exemplifying another instance of judge shopping, addresses the role that federal government officials can have in communicating about content development and moderation with social media companies. The Republican plaintiffs, who filed the case in the Monroe division of the U.S. District Court for the Western District of Louisiana alleged that the Biden administration had pressured social media companies to remove certain conservative-leaning content regarding Covid-19 vaccine efficacy and election integrity, violating the First Amendment. Judge Terry Doughty, who was strategically targeted to preside over the case, was chosen due to the plaintiffs’ belief that he would come to a sympathetic ruling as he was appointed by former President Trump and has a track record of ruling against the Biden administration. The Supreme Court has yet to come to a final ruling on this case with crucial implications
We
are currently experiencing a crucial point in American politics, as the youth’s faith in politics has been rapidly diminishing. Judge shopping has dangerous implications for the democratic process of our country.
for national security. If the ruling is upheld, there will be an effect on the government’s ability to coordinate with social media platforms to prevent harmful misinformation such as election falsehoods in the upcoming presidential election and major public health issues.
The U.S. Judicial Conference’s non-binding policy as simply a guidance means that there is no enforcement mechanism to curb judge shopping which undermines the goal of ensuring courts act impartially. Additionally, the policy will be inconsistently applied as district courts have the option of retaining their ideological biases with no threat of punitive action. This non-binding policy put forth by the chief regulatory body of the judiciary neither prevents judge shopping nor effectively functions as a deterrent against judge shopping. As such, Chief U.S. District Judge
of the Northern District of Texas, David Godbey, appointed by former Republican President George W. Bush, wrote in a letter to Senate Majority leader Chuck Schumer, after meeting with the district judges, that “The consensus was not to make any change to our case assignment process at this time.” In making this decision to turn down the Judicial Conference’s policy guidance, he had previously pointed out the “unusual characteristics” of his large district which would cause logistical challenges for randomly assigning civil cases.
We are currently experiencing a crucial point in American politics, as the youth’s faith in politics has been rapidly diminishing. Judge shopping has dangerous implications for the democratic process of our country, allowing judges and specific extremist or interest groups to encroach on
Congressional power by filing cases in districts that align with their political agendas. The politicization of the judiciary in this way must be prevented because it directly undermines public trust in the government. The next step of policy regarding judge shopping should be a mandate barring judge shopping altogether, without leaving it up to individual courts’ discretion. Suppose judge shopping is not barred in a binding, enforceable policy. In that case, the rights of many citizens will be revoked unjustly by way of judicial tyranny, and it could mean even greater restrictions on healthcare access including abortion, LGBTQ+ rights, and immigration.
INTERNET WATCH ASSOCIATION: DIGITAL VIGILANTISM AND THE BODY
by RALPH LAM STAFF WRITER
Should all citizens feel a duty to not only exercise their rights but to actively enforce the law on their terms?
While this question might seem apropos to fictional vigilantism, it is a material concern of Acheson Hotels, LLC v. Laufer, 601 U.S. (2023). This case unfolded against the backdrop of a developing advocacy for disability rights in American social discourse. More institutions and services are adopting the axioms of the Americans with Disabilities Act (ADA) passed in 1990; accommodations for disabled citizens are becoming commonplace. Specifically, Title III of the ADA proscribes discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” To this extent, the Title outlines discrimination as including “a failure to make reasonable modifications” when “necessary to afford . . . services . . . or accommodations to individuals with disabilities.”. Later the Department of Justice instituted the Reservation Rule, which requires hotels to “identify and describe accessible features . . . in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.” 28 CFR §36.302(e) (1)(ii) (2022) (Acheson v. Laufer). Deborah Laufer, herself wheelchair-bound, scours the internet, looking for hotels that fail to meet the Reservation Rule. Although she does not intend to make any kind of booking, she sues any hotel that does not feature disability accommodations informa-
tion on their website, offering “to settle immediately for $10,000 in attorney’s fees and corrective action” (Acheson v. Laufer). The hotels, however, argue that Laufer is not seeking any remedy for herself, but instead is enforcing the law on her own (Clarence Thomas, Acheson v. Laufer). In the instant case, Laufer noticed that the website of the Coast Village Inn failed to include sufficient information about their disability accommodations; thus she sued Coast Village’s owner—Acheson Hotels. Suddenly, Laufer requested that her case against Acheson Hotels be dismissed with prejudice due to her attorney’s misconduct in earlier cases (Acheson v. Laufer).
Regardless of Laufer’s request for dismissal, her prosecutorial habits have left an indelible mark on the legal circuits in the form of an unanswered question: do other individuals like Laufer have standing? And, more specifically, what might be the consequences of the precedent set by Laufer’s cases? Looking at the objects of Laufer’s attention—here, Acheson—might help.
Acheson has not provided sufficient disability accommodations information that does not necessitate ill intent; analyzing a counterexample, Heart of Atlanta Motel, Inc. v. United States, demonstrates this lack of malice. Heart of Atlanta Motel refused to provide 216 rooms to African Americans, despite the 1964 Civil Rights Act prohibiting such behavior; the motel’s owner, Moreton Rolleston, cited the Commerce Clause to argue that Congress could not exercise such broad sweeping authority over his own business. Here, Rolleston is openly exhibiting a bias against African Americans; this case is a robust example of a service discriminating against a specific population
segment. Acheson’s conduct—or lack thereof—in no way resembles that of Rolleston. Passivity is not inherently intentional.
There is, however, a precedent for the government to regulate content issued by commercial entities. In Turner Broadcasting System, Inc. v. FCC, Congress demonstrated a compelling government interest in having cable television providers dedicate certain amounts of screen time to over-the-air broadcasting stations; the goal was to prevent cable companies from completely swallowing up the local stations while competing for viewership. Given that the ADA is legislation that itself seeks to reinforce disability rights, enforcing the act appears to be a compelling government interest. In that sense, Acheson does have the responsibility to provide sufficient information about their accommodations.
Although the outcome of having disability rights reinforced and represented is positive, we have to consider the context in which this outcome was achieved. First, Laufer chose to press charges. Second, failing to publish information is different from expressly discriminating against those who have disabilities. The current legal milieu is suffused with broad interpretations and re-interpretations of legal precedents. These re-interpretations, like that of Roe v. Wade, can lead to infringement of bodily rights and other fundamental liberties. Acheson v. Laufer has the potential to allocate a dangerous amount of power to state legislative bodies. Moreover, it creates an opening for states—or even the federal government—to quash the liberties fundamental to this nation.
THE GOP’S LATEST TOOL FOR IMMIGRATION REFORM AMIDST FEDERAL INACTION: E-VERIFY
by ISABEL ALIA ARIAS STAFF WRITER
TheGOP is facing a major roadblock in their efforts to regulate immigration due to their lack of Senate majority and the current Biden administration. Despite being stalled in passing federal immigration legislation, the GOP has attempted to regulate immigration through alternative means. Most notably, they shifted to state-level legislation in Texas. The Texas law (currently tied up in court) authorizes state and local law enforcement to detain and deter individuals who enter the US without authorization. This law serves as a model that many other Republican-dominant states want to follow. However, its constitutionality is in question, with the Biden administration arguing that border policing is within the federal jurisdiction. The law is predicted to be ruled unconstitutional, removing other tools for the GOP to control the border. Meanwhile, states like Arizona, Iowa, and West Virginia are exploring other constitutional avenues to discourage immigration. E-Verify has been most successful in restricting illegal immigrants’ access to the labor market.
In these states, proposed bills aim to mandate the increased use of the federal E-Verify system. This voluntary system was established under a 1996 immigration bill and it cross-references an employee’s employment paperwork against the social security database. The purpose of the system is to identify illegal immigrants and deter them from pursuing employment. Currently, only federal government agencies and companies with federal contracts are authorized to use it. Among public or private employers,
only ten states mandate its use for private companies, often with exceptions for small businesses and independent contractors.
In 2008, Arizona was one of the few states to mandate E-Verify for all businesses though penalties were typically limited to the government revoking business licenses temporarily, and enforcement actions have been rare with only two times being registered. The current GOP-sponsored bill in Arizona represents a significant expansion of the E-Verify system. It proposes making violations a felony with fines up to $10,000 and broadening the screening requirements for most independent contractors and small businesses. The bill is, constitutional which leaves a tool for the GOP to regulate to some extent illegal immigration. Ben Tomas, the speaker of the Arizona House of Representatives, argues that the purpose of the bill is not to make business difficult in Arizona but “to make sure that it is at least as fair as possible”. Tomas’s claims of fairness have not resonated with business interests, as the bill faces opposition from business owners.
Business owners argue that their primary focus should be on finding and hiring the right workers, rather than being burdened with the responsibility of enforcing immigration laws. In Arizona they highlighted concerns about the contracting provisions of the bill, citing vague language which would require businesses to track the legal status of any contractor or subcontractor, regardless of the scale of their involvement. Additionally, there have been doubts about the effectiveness of the E-Verify Program. The
system has mistakenly flagged people, with records estimating 57,000 people erroneously identified as undocumented. The National Immigration Forum argues that this figure is likely underestimated because recording such an error requires employers to know that they can contest a false positive.
However, there are not only concerns about its effectiveness in terms of deterring undocumented workers from the workforce but also its potential to create economic loss for businesses. A Southern Economic Journal study suggested that E-Verify often meant more employment and higher wages among Mexican-born citizens who were US citizens but with no significant benefit for white Americans. Also, the use of E-Verify is specifically detrimental to industries that rely on undocumented labor like the agriculture industry. According to the United States Department of Agriculture, about 40 percent of all farmworkers in the US are undocumented. This program would lead to the ineligibility of all these workers, leaving producers scrambling to find labor. In the latest report released by USDA in 2023, the top 5 states in agriculture production were California, Iowa, Nebraska, Texas, and Illinois. Three out of the five states represent red states and even beyond the top 5 states, the majority of the states are Republican-dominant states. The effects of this program could be detrimental to these states. Mike McCloskey, the CEO of Select Milk Producers, said that without these laborers there would be a shortage of workers in the industry. John Walt Boatright, Director of Government Affairs at the American Farm
THE LEFT’S DEMOCRACY DILEMMA
by JOSHUA ENEBO STAFF WRITER
Anyone paying attention to headlines coming from The New York Times, Jacobin, or The Atlantic in the past five years knows what the ultimate threat to American democracy looks like. It is the rightwing populist clad in MAGA merchandise, wielding an American flag, screaming obscenities at the “libs” who are responsible for the many failures of our institutions. Liberals and progressives alike have correctly identified that a second Trump term, ushered in by folks who look like the caricature above, is an existential threat to American and global democracy. Conversations with anyone left of center these days involve sneering remarks against the monstrous “rightwing populists,” using the term as derogatorily as it can be invoked. To be clear, there is more than a little truth to those critiques. However, taking stock of the left’s position on these populists yields a pretty glaring issue. One begins to see that part of the disdain for the MAGA Republicans is animated by more than just the fear of the right. The left has a democracy problem, in that it is fearful of it.
How could this be? Even a half glance at progressive legal literature these days will yield a plethora of references to “democracy” or “democratization” of various institutions. The left has cabined itself as the party of democracy, an argument the right hardly contests these days. We rightfully wish to democratize everything from workplaces to classrooms. It seems that popular sovereignty truly reigns supreme until it looks a certain way: the riots of January 6th. It does seem that whether it be the Tea
Party or Trump voters, the left’s faith in democracy waned rather quickly. Buying into democracy would allow them to overcome the polarization we hate so much, it is only by disengaging from movements that polarization worsens. But they are the fascists, the party of autocracy, we tell ourselves. To be clear, they are, but the reasons why they are reveals an institutional failure on the part of the left and a missed opportunity to reclaim its 20th-century gusto.
If you could go back and ask any committed New Deal Roosevelt-ite where their truly historic political bread was buttered, they would point to lower to middle-class white labor. As employment and wages were on a seemingly unbreakable trajectory to the moon, the demand bolstering Keynesian policies that the Depression-era populists voted for seemed to have won. If you asked Donald Trump privately where he believes his political pull lies, or indeed nearly any political scientist, they will point to the same population in the same handful of states. One could fill libraries with literature examining the shift of this demographic rightward, but regardless of which explanation one prefers for the initial shift, a pattern emerges for their present disposition. Among various other causes, an institutional failure of our economic system left wide swaths of people unemployed, poor, and angry. The left has argued, persuasively and correctly, that the policies of the neoliberals are primarily the cause of the economic position of these voters. Yet, despite the cries from their ivory towers, the populists put on their right-wing caps and voted for the orange face of wealth, status, and elitism. That, at least, part of the rise
of populism was economic grievance towards an economy the Republican Party constructed less than fifty years ago should have been political ammunition, not poison, for the left. This is at the root of the democracy dilemma for the left: they want “democracy without populism” because they fear the masses as the neoliberal capital owners do. The left has become a movement of the bourgeois to some extent. The well-meaning bourgeois in many instances, but suspicious of a movement that otherwise should have brought in an FDR descendant, not Trump.
The left of the early 20th century would not have made this same mistake. It was primarily the organization of the masses, in the wake of the Great Depression, that led to a record-setting four straight election victories for King Roosevelt himself. We reflect on this period as the closest we got to a socially democratic welfare state, with an expansive government injecting demand into the economy until it was bursting at the seams with employment. This brings us back to the 21st century. Why did the Great Recession not do the same? The political contours of the left had changed. The party itself, as with all political parties, has always been a party of elites. But this effect was supercharged by neoliberalism. It infected the Democratic Party, the logic of capitalism wearing on the democratic tendencies of the left. Once the party of government employment programs, it is now the party of the neoliberal agency apparatus, defending technocracy until it inevitably falls to the very voters the left should have tried to bring into its fold. The right-wing populists are revolting against the government, the elites,
This is at the root of the democracy dilemma for the left: they want “democracy without populism” because they fear the masses as the neoliberal capital owners
the corporations, and the establishment right, all of which are legacies of neoliberalism that defeated the left forty years ago. This is the democratic revolution that academics predicted would be embedded in the logic of neoliberalism, only the left is too neoliberal to capitalize. The fear of the masses truly pervades all. You might be appropriately wondering what is democratic about a movement that is explicitly racist, exclusionary, and authoritarian. Whether or not movements like this are inherently anti-democratic is not yet settled, and in some case studies, right-wing populism is not quite as synonymous with authoritarianism as the left paints it as. However, in the American case, it does seem that the movement poses a direct threat to democracy. I believe it does, and Trump
as a figure has done tangible damage to democracy. The point is not that the left is wrong in assessing January 6th as problematic. It is that the left has failed to grasp the democratic roots of the movement. At its core, it is a movement based on the economic and political failure of the neoliberals, and a movement attempting to upend that system in favor of one that represents the disaffected better. It is a democratic rejection of neoliberalism. I will be the first to say that upon that foundation an unappealing structure has been erected. I am in no way disputing the real damage that the movement will do to democracy, but a small part of the reason for that is that those who constitute Trump’s voter base could hardly feel represented by a Democratic party that had increasingly turned neolib-
do.
eral. So yes, the left has a democracy problem. Suppose revolutionary democratization of epistemological resistance is a needed recourse for those disaffected by capitalism. In that case, we can at least attempt to see the democratic foundations of the right-wing populist movement or the Tea Party movement before it. It has led to a facially incoherent view of democracy, one that sings its praises when it agrees with us on the left, and one that rejects it when we are afraid of what it may do. This is in no way unique to American leftists, and undeniably preferable to being overtly anti-democratic as the right has increasingly become, but seeing that inconsistency is critical to do damage control on a moment that should have been a boon for the American left.
THE GOP’S LATEST TOOL FOR IMMIGRATION REFORM AMIDST FEDERAL
INACTION
Bureau Federation, claims that labor shortages are a significant impediment to the expansion of U.S. agriculture. He asserts that before implementing an E-Verify mandate, Congress should prioritize addressing these shortages and developing a strategy to modernize the guest worker program.
Despite the questions about the effectiveness of the program and its potential economic implications, the GOP seems not only willing but empowered to implement this policy. E-Verify carries a significant amount of economic implications depriving
industries of workers and making the act of conducting business more costly by forcing employers to act as immigrant officials. A policy they are willing to pursue despite it representing a major break from the GOP platform. The party’s claim to not only protect but also promote economic growth is so apparently inconsistent with the GOP platform. Even if the GOP attempts to frame this policy as economic protection, it can not hide the inherent contractionary economic measure that E-Verify is. As the debate over immigration policy con-
tinues, the implications of E-Verify mandates for both workers and businesses remain uncertain. What is clear, however, is that the issue is far from resolved, and the tensions between immigration enforcement and economic interests are likely to persist for some time to come for the Republican party without Senate Control.
RIGHT TO ORGANIZE?: THE DILEMMA OF LABOR LEGISLATION
by HAYES WHORTON STAFF WRITER
The latest chapter of the struggle between capital and labor in the United States is taking place over the National Labor Relations Act (NLRA). Several large employers such as Amazon, Starbucks, Trader Joe’s, and SpaceX are challenging the constitutionality of the National Labor Relations Board (NLRB), the institution which was created by the NLRA and acts as its primary enforcer. This challenge to the NLRA takes place against the backdrop of a workplace struggle within multiple of these firms by their employees to unionize, with some of these firms being accused of union-busting. The accusations that these firms are union-busting is likely true, and there’s no doubt that their challenge to the NLRA is motivated by their personal interest in preventing a successful union drive; however, supporters of the labor movement, including the administration of the self-described “most pro-union president in American history,” liberals and progressives, and labor organizers themselves have and will inevitably continue to decry this attempt as an assault on the labor movement, when in fact this challenge presents a historic opportunity to reckon with the largely neglected prospect that the passage of the NLRA was a strategic mistake and represented a setback of the labor movement.
The NLRA, or the Wagner Act, was passed in 1935 as part of the large package of New Deal legislation; New Deal Coalition leader Senator Robert Wagner (D-NY) hoped to establish closer ties with organized labor and was frequently an advocate of the labor movement in government. Up to
that point, the labor movement had been exceptionally violent and explosive: historians Philip Taft and Philip Ross claimed that the United States “has had the bloodiest and most violent labor history of any industrial nation in the world” (“American Labor Violence,” Violence in America). The NLRA was intended to address this long-standing conflict as an element of New Dealers’ project of empowering the state to address the social crisis which the Great Depression initiated. The act created the NLRB to oversee the process by which workers decide (by their newly established legal right) to be represented in collective bargaining by a labor organization, as well as to enforce the rules set by the NLRB regarding collective bargaining.
There are two outstanding concerns about the capacity of the NLRA to strengthen the labor movement. The first is that the mechanism of government recognition via the NLRB creates a new means for the state to determine what course the labor movement takes. The first is that the NLRA split the labor movement into two segments by withholding legal recognition to collective bargaining units of independent contractors, farm workers, domestic workers, and government employees, all groups which have struggled to avoid being left behind in the movement, undercutting any claim to the sort of universal representation of society which has politically legitimated the labor movement for many, and in this capacity inhibits organizing in the style of historically notable groups. One such group is the Knights of Labor, who engaged in independent civil-social organizing, which figures such as Sean KB and the National Labor Federation have observed no longer exist, partly
due to the intrusion of the state into deliberative civil society. The second concern, stemming from this point, is that the subsumption of all private social activity and independent social organizing under the purview of the state has given the state power over the tactics that the labor movement takes up. These restrictions primarily came in the Labor Management Relations Act, or Taft-Hartley Act, of 1947, an amendment to the NLRA which banned unfair labor practices such as jurisdictional strikes, political strikes, wildcat strikes, and secondary boycotts, all of which had proven effective historically. Ire towards the Taft-Hartley Act is common, but the recognition that this limitation was only enabled by the NLRA is uncommon.
In the early 20th century, many progressives hoped to see the labor movement hemmed in, believing it was too “narrowly self-interested” to embody the interests of the public (“Counterfeit Liberty”). Today, after the rise and fall of a global Marxist movement which placed the working class as the vanguard of society, as well as the dearth of labor organizing which coincided with the neoliberal era, the natural inclination of progressives is to uncritically uphold the necessity of a revived labor movement, and thus to oppose the corporate attack on labor law. More interesting is the burgeoning pro-labor Right, embodied presently by Senator Josh Hawley and the intellectual milieu being fostered by publications such as Compact Magazine; however, they are even less likely to support the overhaul of the NLRA (Hawley recently defended the NLRB’s ruling that Amazon qualifies as a joint employer) both because their conservative ideology includes the state as central to arbiting
Does labor
represent a group of individuals united by geography and career,
or does it represent
society as a whole, and what ends will it set itself in light of this answer?
civil society, and because conservatives have often been accused of hating the poor when they criticize the specific role of various state apparatuses which apparently benefit the undertrodden (nota bene that Milton Friedman, for example, was as concerned with the welfare of the working class as any leftwing intellectual), so a Hawley figure opposing the NLRA on pro-labor
grounds could easily play into a narrative about Republicans hating the working class.
The difference between the left and right conception of the labor movement may in some way be related to the historical battle within the labor movement between its own self-conception as representative of society versus as a large interest group.
Does labor represent a group of individuals united by geography and career, or does it represent society as a whole, and what ends will it set itself in light of this answer? And accordingly, does labor require the right to organize, or does it demand the freedom to organize?
THE OBAMA CENTER WILL BE GOOD FOR THE SOUTH SIDE
by DANIEL KIND STAFF WRITER
For the past two and a half years, South Siders have watched the Obama Presidential Center rise in Jackson Park and along with it, a tide of anticipation and concern. Construction is a common sight in Chicago but a development like this is unique in its scale and implications for locals. For many, the Obama Foundation’s $830 million dollar investment into a sprawling complex mere minutes from where the former President was a lecturer at UChicago Law, has the potential to be a watershed moment for the future of development in the South Side. While the Center promises substantial benefits, it also requires a careful examination of how these changes will impact the existing community. Ultimately though, the Obama Center will do more good for the neighborhoods it impacts than harm.
First, the Obama Presidential Center is poised to create numerous job opportunities, deliberately prioritizing minority workers in its
construction phase. This approach directly targets economic disparities, providing not only jobs but also a model for inclusive hiring practices that other projects could emulate. Yet, the very scale and prestige of the Center also drive up local property values, posing a real risk of displacing long-time residents. In response, the city and the project planners are taking active steps to counteract potential negative impacts. The Community Benefits Agreement is a robust attempt to ensure that housing remains affordable on city-owned land surrounding the development. Coupled with the investment of approximately $9.5 million for housing rehabilitation, these are tangible efforts aimed at preserving the community’s demographic makeup and preventing displacement.
Along with the project comes significant infrastructure enhancements, including the widening of Stony Island Avenue and the development of new public spaces. These are meant to be essential upgrades to improve daily life and ensure the Center integrates smoothly into the
community’s rhythm. The planned grand walkway linking the Center to the Museum of Science and Industry is a strategic move to knit the Center into the cultural fabric of the city, making it a hub of activity that invites community interaction and engagement.
The construction process’s attention to the impact of these changes symbolizes the commitment to making the South Side a destination for Chicagoans seeking culture, education, and recreation. The challenge lies in ensuring these new amenities serve the existing residents as much as they attract new visitors and potential residents. Figures from the Obama Foundation itself estimate “an economic impact of $2.1 billion during the construction period and first ten years of operations, with $339 million in economic impact and 1,407 direct, indirect and induced jobs created during construction.” Furthermore, the Center’s design and cultural offerings reflect a deep commitment to community and progress. It is undeniable that the
Yet, the true success of the Obama Presidential Center will be measured by its integration into the daily lives of South Side residents. It must evolve beyond being a monument to become a central, active participant in the community.
election of Barack Obama as the first Black president in American history inspired millions of people and had a profound impact on the zeitgeist of the late 2000s and 2010s. By incorporating elements such as quotes from Obama’s speeches and a design that symbolizes unity, the project stakes a claim as a beacon of inspiration and civic engagement. The Center aims to go beyond an architectural achievement, acting instead as a living resource that offers ongoing programs and events which resonate with local interests and needs.
Yet, the true success of the Obama Presidential Center will be measured
by its integration into the daily lives of South Side residents. It must evolve beyond being a monument to become a central, active participant in the community. This means hosting events, workshops, and programs that are not only accessible but also relevant to the residents’ aspirations and challenges.
Regardless of how one feels, the Obama Presidential Center is set to transform Chicago’s South Side; along with it comes the promise of economic growth, cultural enrichment, and social progress. However, the effectiveness of this transformation will depend on the project’s
ability to genuinely engage with and benefit the existing community. As the Center takes shape, it must remain a collaborative effort between the planners and the South Side residents, ensuring that it serves as a true catalyst for positive change and not just a symbol of displacement. The ongoing dialogue between the community and the developers will be crucial in steering the project towards a future where it stands as a true community asset for decades to come.
chicago
INTERVIEWS
KATJA BOTCHKAREVA:
IN DETENTION CENTERS
by MICHELLE DU STAFF WRITER
Imagine being ushered into surgery with no understanding of the upcoming procedure. When Katja Botchkareva – an immigration lawyer – called her client for a regular checkin, her client happened to be in this exact situation in the hospital. Katja’s client picked up the phone, terrified, and begged Katja to translate for her. She could not communicate with the surgical staff around her, as no one around her spoke Spanish, the language she spoke. She did not understand what the surgery was for. Lack of informed consent in medical procedures is just one reason why medical advocacy is absolutely crucial.
According to the National Center for Medical-Legal Partnership (NCMLP), medical-legal partnerships (MLPs) “integrate the unique expertise of lawyers into health care settings to help clinicians, case managers, and social workers address structural problems at the root of so many health inequities.” A prominent example of medical providers and lawyers collaborating to provide care was Boston Medical Center’s partnership with Greater Boston Legal Services. In 1993, Boston Medical Center noticed that pediatric asthma patients were not responding to medical treatments. Their healthcare team discovered that the source of these recurring medical issues was mold in patients’ apartments, as their landlords refused to comply with sanitary codes. Boston Medical Center then partnered with
BRIDGING MEDICAL AND LEGAL CARE
Greater Boston Legal Services, who advocated on behalf of the patients.
Health does not only concern biology. It is an intersection of social, legal, and economic factors. By offering wraparound services that integrate these social determinants of health into legal services, medical-legal partnerships are healthcare and legal services delivery models that provide safety nets for clients.
Katja witnessed the power of medical-legal partnerships when she worked for New York Lawyers for Public Interest’s Medical Providers Network (MPN), which connects people in immigration detention centers with serious health needs and their immigration attorneys to medical providers. This model served as a proof-of-concept for Katja as she embarked as a Skadden Fellow on her fellowship project at the Amica Center for Immigrant Rights (formerly Capital Area Immigrants’ Rights Coalition, CAIR). Amica Center is a legal services nonprofit operating in the DC-Maryland-Virginia area, focusing on serving noncitizens and defending people in immigration detention. Katja works as a direct services lawyer with the Detained Adults Program, providing legal services for residents of the tri-state area who end up detained at any of the region’s detention centers, including the two remaining detention centers in the DC metropolitan area: Farmville Detention Center and Caroline Detention Facility. She
fights cases to their logical conclusion, whether that be release from a detention center or stopping deportation. Katja regularly works with medical students and doctors to review medical records in order to advance immigration cases and advocate for client medical needs.
In addition to medical abuse and neglect in detention centers, Katja points to detention as an adverse determinant of health in itself. That is because detention amounts to:
“Being trapped in an environment surrounded by hostile people in positions of authority who do not speak your language, who do not care for you as a human being, or for your rights … to be[ing] subjected to proceedings where … if the outcome is adverse, you’re going to be deported to a place where you’re going to get killed.”
As a result, detention centers are breeding grounds for trauma and psychological decompensation. Most, if not all of Katja’s clients, experience some form of psychological decompensation, including clinical levels of depression, suicidal ideation, anxiety, and post-traumatic stress disorder.
Distrust is a symptom of the inevitable power imbalance between authority figures and detainees in detention centers. Katja argues that “human beings were not designed to be contained in a container. Human beings are absolutely terrible at taking care of people in a custodial setting, no matter how good their intentions may be.” This chronic breakdown of trust extends to medical providers. In fact,
“Being trapped in an environment surrounded by hostile people in positions of authority who do not speak your language, who do not care for you as a human being, or for your rights”
detention center officials often cite past noncompliance with prescribed medical care – a result of detainees’ distrust in the detained medical system – to withhold life-saving care to detainees. In addition, simple requests for medication like Tylenol are not immediately available for detainees in the way that they would be outside a detention center.
Another dark side of detention centers is the fact that they operate, in some ways, outside the legal purview of the protections one might expect from the US Constitution. Courts have repeatedly held that detention is not a form of punishment. Thus, those impacted by immigration detention are not extended the same rights and protections as those subject to criminal punishment, including a state-appointed free lawyer and strict, constitutional regulation of prison conditions. Detainees are stripped of their humanity, setting the stage for abuse, neglect, and psychological decompensation. Katja emphasizes that if you cease to see people as people, it’s inevitable that abuses occur.
Beyond life in detention centers, difficulty obtaining work per-
katja botchkareva immigration lawyer
mits among asylum-seekers is an often overlooked social determinant of health and a source of stress and hardship. Work permits unlock access to better-paying jobs with benefits, protections, and safer conditions. Katja remarks that some of her clients working without permits “...worked 7 days a week, 14 hours a day of hard manual labor, with no alternative. Their bodies were physically breaking … their backs were breaking, their legs were breaking…” Having a work permit is a life-changer; without a work permit, on top of existing power imbalances between employers and employees, employers can hold the threat of calling immigration over the heads of undocumented individuals. Obtaining work permits and the accompanying employment protections can drastically affect clients’ health outcomes.
In Georgia’s Irwin County Detention Center, women detainees were subjected to non-consensual, excessive, and unnecessary gynecological procedures. Katja was part of a coalition that worked with these women. Even when the women achieved the legal victory of being released from detention, Katja would follow up with
them and discover that they were still in need of medical care to address the consequences of the medical abuse and neglect they had experienced in detention: “I remember talking to a woman and… she needed a doctor. The lack of collaboration between lawyers and doctors is devastating.”
Medical advocacy is a part of defending clients’ dignity and humanity in the face of structural obstacles, in line with the broader goal of getting clients to safety. As defenders of vulnerable clients, lawyers must diligently advocate for clients’ well-being, which extends into their health. It is imperative that legal services be integrated with medical advocacy to promote health justice and holistic legal aid.
SUSAN CURRY: DIRECTOR OF PUBLIC SERVICE
AND PRO BONO’S PATH FROM BIG LAW TO PUBLIC INTEREST LAW
by ELIJAH BULLIE STAFF WRITER
“The truthful answer as to why I went to law school is an answer I hate to hear today from students,” said Susan Curry, Senior Director of Public Service and Pro Bono at the University of Chicago Law School. After graduating from Canisius University in the 1980s with an English degree, Curry felt there were two options for a student like her: find a PhD program or apply to law school. She decided to follow in her older sister’s footsteps and enroll in the University of Notre Dame Law School. Curry described her entrance into law school as a navigational challenge. Like many
other students in the first generation of their family to attend law school, Curry was in the dark about the diversity of career paths available to lawyers.
Since December 2010, Susan Curry has guided UChicago law students through their career journeys as a leader on the career services team. Curry’s unique background informs her insight into career trajectories in law. A former associate at Gardner, Carton, & Douglas, she left Big Law to pursue a career in the nonprofit sector. During her time advocating at the Better Government Association, the Illinois Guardianship & Advocacy Commission, and the AIDS Legal Council of Chicago, Curry also achieved her master’s degree in public policy from
the University of Minnesota’s Humphrey Institute of Public Affairs. This experience led her to become the Executive Director of the Public Interest Law Initiative (PILI) in Chicago, an umbrella organization servicing dozens of public interest law agencies in the Chicago region.
Curry’s first-hand experience riding the big law pipeline before breaking away gives her a unique perspective on the allure of flashy recruiters that target her students. “It’s tempting. They’re in your face all the time. These law firms have the resources to be in law schools like this one.” Curry describes an increasingly rapid on-campus recruitment effort by big law firms hunting for talent. Firms
“Once I got into law school, I did what so many students did at the time: I got onto that Big Law conveyor belt. And it’s that impulse that I’m trying to tell students about now at UChicago.”
susan curry
professor of law at university of chicago law school
with staff dedicated to contacting top prospects within weeks of a 1L’s matriculation. Curry describes these big law summer associate positions being offered to students “right out of the box” before nonprofits and government agencies have even outlined their budgets for the next year.
Curry explained the two factors that make the path to big law so appealing: convenience and money. “It’s a lot more work to get a job in the public sector that pays much much less,” she said. In her experience, big law is not the major driver for law school applicants. In a recent meeting with students admitted to the class of
2027, Curry asked students to raise their hands if they intended to pursue public interest law— every single one raised their hand. “I know they’re gonna do that ‘cause I read their essays and they’re talking about civil rights, environmental law, and immigration rights: nobody is writing about asset-backed lending. They wanna be public interest lawyers! But we know that something happens to them while they’re in law school and that something is big law and it’s money.”
Curry admitted that students who choose to pursue big law are making a salient choice; “I don’t think students should feel guilty about choosing big
law.” But she explained that when a student rides the conveyor belt to a large firm, they commit to one destiny, locked out from other paths that may arise. Curry gushed about the breadth of social issues, listing over a dozen different specialties in public interest law ranging from antitrust to zoning. “Once you start in public interest work it’s hard to focus on just one societal issue. You can be a specialist, but your approach will always be that of a generalist looking at the holistic problem. I tell my students public interest law is everything.”
JUDGE VIRGINIA M. KENDALL:
HUMAN TRAFFICKING ‘S LINK TO PUBLIC CORRUPTION
by KHRISTIAN BASS STAFF WRITER
In the shadows of international diplomacy and legal discourse lies a grim reality often whispered but rarely confronted head-on. Yet, in the face of this darkness, one figure stands as a beacon of illumination: Judge Virginia M. Kendall. Renowned for her illustrious career as both a federal prosecutor and a distinguished judge at U.S. District Court for the Northern District of Illinois, Judge Kendall’s journey into the heart of legal justice began long before her 2006 appointment to the bench. With a decade spent in Chicago’s Public Corruption Unit and a seat on the U.S. Attorney General’s Advisory Panel, she honed her expertise in unraveling complex webs of injustice, particularly those ensnaring victims in the insidious grip of human trafficking. Beyond her courtroom duties, Judge Kendall’s influence extends far and wide, bridging continents to educate and empower legal minds on the intricacies of combating this global scourge.
Human Trafficking and the Link to Public Corruption is a class that Judge Kendall teaches during the Winter Quarter at the University of Chicago Law School. The class that ULM attended was structured around the case Rantsev v. Cyprus and Russia, an exemplary case on international human trafficking and country responses. In general, these cases are accompanied by discussions that are held for students to relate to the Palermo Protocol, a document by the UN that defines human trafficking and expands detection mechanisms for exploitation that comes alongside
human trafficking which has been approved by 181 parties worldwide as of February 23, 2023. This is to understand how the different topics of class are classified in international law and to show how corruption is intertwined with human trafficking as defined by the Palermo Protocol. The class that ULM attended was centered around the Rantsev case. The case concerns Oxana Rantsev, a 21-year-old Russian woman traveled to Cyprus as she had heard of a work opportunity in which she could get an “artiste” visa allowing for work in Cyprus as a barmaid, musician, among other occupations, with Rantsev believing that she would be working at a cabaret in a non-sexual capacity. Upon arrival in Limassol, her visa was taken and handed to the police, and she learned from other women that this was not the case as she was here to work in a North Cypriot community as a prostitute, something that she had not signed up for. Wishing to leave as soon as possible, Rantsev went to the police station. Rather than helping her to escape from Cyprus, Rantsev was detained alongside the documentation she needed to leave Cyprus by the police, with the police then contacting Rantsev’s employers who had trafficked her to pick her up. Without being given a visa or means to escape, Rantsev was taken by the traffickers, and the day afterward Rantsev was found deceased after falling out of the apartment window of the traffickers. With further investigation, the Cypriot authorities found that the cause of death was an accident rather than
any criminal wrongdoing. Word of this eventually reached Rantsev’s father and Mr. Rantsev quickly demanded a further autopsy. When this was denied by Cyprus, Mr. Rantsev hired an international lawyer to sue Cyprus and Russia for violating Rantsev’s rights, as the nations were not assisting Rantsev get to the bottom of the situation that was in all likelihood one of human trafficking. The results of this case were that due to both countries not trying to find out exactly what happened they were fined, which was an amount that was not large but wrongdoing placed in countries from an international body is rare so this was still a big deal.
Overall, this segment of the class showcased a deep dive into what it means for human trafficking to be linked to public corruption. In this case, the link between public corruption is clear as Rantsev went to the police looking for an escape. Still, they just provided her with a way back to the human traffickers that she hoped to get away from, with no ability to work anywhere else in the country. This was also expounded upon by Judge Kendall when she showed her real-world experience with the case. After this case had concluded, Judge Kendall went to Cyprus in order to train judges so that this problem of human trafficking could be met with proper justice and the system of public corruption could break down. This took multiple attempts, but some serious progress was later made when Judge Kendall talked through judges and prosecutors about how one would feel during police testimony as well as the generally stressful
JUDGE M. KENDALL: HUMAN TRAFFICKING’S LINK TO PUBLIC CORRUPTION
CONTINUED FROM PAGE 29
process, which helped them see and then begin to prosecute some who were within the human trafficking chain.
This showcases the core component that Judge Kendall brings to this class, which is that she is very active in this field, and in helping to make change within the link from public corruption to human trafficking. When I asked her about her experience about bringing public corruption to the conversation of human
trafficking she was passionate about how important it is to her that every bit of human trafficking is discussed, especially something like its link to public corruption that so easily goes unattended. When viewing the passion, experience, and knowledge that Judge Kendall puts into this subject, it is very easy to see why Human Trafficking and the Link to Public Corruption was such an eye-opening class even though ULM only attended one. When taught in this way, this
less-than-obvious connection shines through and opens the eye in a way that can only be done by Judge Kendall’s masterful knowledge of this part of the law.
chicago cultural center | cover illustration by lia yufei he
UPCOMING CHICAGO
CHICAGO FINALLY MANAGES TO ERASE CPD’S GANG DATABASE
by SEBASTIAN ARNAL STAFF WRITER
The Chicago Police Department’s plans for a new system for tracking gang members and membership in Chicago have been struck down this past September by The Community Commission for Public Safety and Accountability. The commission voted unanimously against plans for a new gang database system in Chicago, effectively “erasing” CPD’s gang database. This represents merely the latest develop ment in a years-long push and pull between Chicago’s community ac tivists, local politicians, and law en forcement regarding police systems for tracking gang membership. The history of the CPD’s gang database has often revealed such a database to be more harmful than helpful. Many of the major concerns from community activists were embodied in a 2017 lawsuit filed by the MacArthur Justice Center concerning Wilmer Catalan-Ramirez. Catalan-Ramirez, after having been living in the U.S. for 10 years, was partially paralyzed after having been a bystander in a drive-by shooting. He was also, unbeknownst to him, a gang member, according to CPD. In a unique exception to Chicago’s sanctuary city policies, this informa tion was shared with Immigration and Customs Enforcement (ICE) of-
ficials who arrested him while in his home. Catalan-Ramirez filed suit saying his “liberty [had] been deprived based on false evidence used against him that he could not challenge.” Later scrutiny would reveal that Catalan-Ramirez had actually been listed by different sources in the department as a member of both the Satan Disciples and Latin Saints, two rival street gangs. These designations were the result of a traffic stop in Satan Disciples territory and having been seen loitering in Latin Saint ter -
ritory back in 2015. As a result of the lawsuit, CPD would end up issuing a letter saying “CPD cannot verify that Mr. Catalan-Ramirez is a gang member.” This particular case, although it occurred all the way back when Rahm Emanuel was still mayor, embodies many of the criticisms from community activist groups like the MacArthur Justice Center and the Erase the Database coalition that would continue to build for years as community members and politicians worked to eventually successfully
As a scathing report from the Public Safety Section of the City of Chicago’s Office of Inspector General (OIG) would point out in 2019, the department’s gang membership record-keeping was more an amorphous network of forms and sources than one centralized database. The department kept track of gang-affiliation in a data warehouse called the Citizen and Law Enforcement Analysis and Reporting (CLEAR) system. The report found CPD had collected information “in at least 18 different forms, records, and systems of records in the
As was also very consequential for people like Catalan-Ramirez, CPD’s gang-related information was shared with over 500 external agencies, including
CHICAGO POLICY
PROPOSALS FOR COMPROMISE ON CHICAGO’S MANSION TAX
by NIKULAS SOSKA STAFF WRITER
Recently, Chicago Mayor Brandon Johnson, as a part of his “Bring Chicago Home” platform, proposed a new Real Estate Transfer Tax (otherwise known as the Mansion Tax). The Mansion Tax, which aims to gradually raise the real estate transfer tax on properties over $1 million and lower the transfer tax on properties lower than $1 million, has been a highly complicated and polarized proposal. On one side, supporters view the Mansion Tax as a vital means to generate tax revenue for improving homeless assistance programs. Meanwhile, opponents view it as just another tax hike that will burden the middle class. While both views have their merits, the future of the Chicago Mansion Tax appears bleak. When the Mansion Tax was featured in Illinois’ most recent general primary for a referendum, it was rejected by voters with a margin of 53.2% compared to 46.8% in favor. Nonetheless, there is still hope for compromise that could salvage the Chicago Mansion tax, and offer a path forward for both sides to find common ground and address the pressing issue of homelessness in Chicago.
To grasp what a compromise between these two divided sides would look like, it is’s important to understand the legality of real estate transfer taxes, as well as the legal history and
challenges surrounding the Chicago Mansion Tax. Illinois has a graduated state transfer tax with a local rate option. This means that the state sets a baseline transfer tax rate that applies uniformly across the state. However, local municipalities have the option to impose their transfer tax at a different rate than the state. In the case of the Chicago Mansion tax, properties valued at less than $1 million would see a reduction in the transfer tax rate from 0.75% to 0.60%. Yet for properties sold between $1 million and $1.5 million, the transfer tax would increase to 2%, nearly triple the current rate. Properties sold for $1.5 million or more would face a transfer tax of 3%, four times the current rate.
According to Illinois state law, a municipality such as Cook County can only modify this rate through a referendum. This is why last November, the City Council voted to add the Mansion tax, as a referendum, on the 2024 Illinois Primary Election. However, the constitutionality of the referendum was challenged in early February of this year on the basis that the referendumit was a form of “log rolling”. This practice involves bundling unpopular legislation with more appealing proposals to garner broader support. Opponents of the referendum argued that the fundamental purpose of the Mansion Tax would be obscured by the inclusion of a tax cut on properties valued below $1 million. Despite this challenge, the ruling was soon
overturned by the Illinois Appellate Court, which held that a court can only interpret and apply laws once they become laws. In other words, the Judiciary functions as interpreters, not lawmakers. This legal history provides useful legal parameters and boundaries for which both sides would need to operate, should there be a compromise in the future.
In terms of economics, an analysis done by the University of Chicago’s Harris School of Public Policy, concluded revenue increases of “approximately $160M per year on average, using the 2013 - 2022 period as a baseline…roughly $40M from residential properties and an increase of $120M for non-residential properties. The increase in revenue from residential properties will primarily arise from an increase in rents at units which are valued at least $1 million”. The Mansion Tax undoubtedly generates significant tax revenue that could benefit the Chicagoland area. However, given its size, the rent increases as well as where the tax revenue would be directed, are the two primary concerns for Chicago Natives. As to the first concern, many folks believe this tax could drive businesses away from the city. Also, there are concerns that tax hikes may exacerbate homelessness rather than alleviate it, since it could lead to rent hikes, particularly in apartment buildings affected by higher real estate transfer taxes. Overall, there is fear that low-
ICE. This was an exception that ran counter to Chicago’s “sanctuary city” identity. But this would also come to have consequences for people other than immigrants, as a later 2018 lawsuit from the MacArthur Justice Center would allege. The lawsuit alleged people who were incorrectly designated as gang members were fired from their jobs, denied concealed carry licenses necessary for work and put on house arrest as a result of this information-sharing. As was also evident from Catalan-Ramirez’s story, there was no system for alerting a person when they had been designated a gang member or how they could appeal such a designation. The lawsuit furthermore alleged this information could end up staying on the books indefinitely, resulting in continued police harassment of many reformed ex-gang members. When analyzed all together, the system also seemed to disproportionately target people like Catalan-Ramirez. A ProPublica report on files from the CLEAR system showed 70% of the people in the database were black and 25% were Hispanic. However, the database’s most glaring problem, one that compounded the adverse effects of its
many other flaws, was its basic penchant for inaccuracies. As has already been pointed out, someone could inadvertently end up designated as a gang member for something as simple as a traffic stop within a particular gang’s known territory. These loose requirements for membership verification were reflected in the ages of Chicago’s supposed gang membership, with the database listing people as young as 7 years old and 90 others as 117 years old or older.
The recent proposal for a revamped system, introduced during Lori Lightfoot’s mayoral tenure, looked to address some of these major flaws. The new system aimed to centralize gang-related information and create stricter guidelines for who could be designated a gang member. It would not have given information access to ICE, but would still have provided stricter access to other external agencies. It also would have been regularly updated, removing people after five years of no contact with law enforcement. People would also have the option of appealing the designation to the police board.
However, as many critics pointed out, it would not have alerted any-
one to their designation as a gang member, requiring them to go to their local police station to find out. The president of the Community Commission for Public Safety and Accountability, Anthony Driver, also pointed out that the checks and balances of the new system was a series of verifications by other officers working within the same district, creating a system wherein the police police the police. Most importantly for many community activists, there doesn’t seem to be any advantage to maintaining a system that has only proven to cause harm. Xanat Sobrevilla, of Organized Communities Against Deportations, and Sheila Bedi, a clinical law professor involved in the mentioned 2018 MacArthur lawsuit, have both argued these systems for collecting gang information have not demonstrated any real utility, but have repeatedly brought harm for many Chicago community members. In completing a campaign promise of Chicago’s current mayor, Brandon Johnson, this final push for the erasure of CPD’s gang database hopefully caps off Chicago’s bumbling and harmful use of a gang database.
er-income individuals, who are more likely to rent, may struggle further to afford housing and secure employment. As to the second concern, tax bills almost always face high levels of scrutiny, because taxpayers who bear the increased burden want to know that their money is directed toward programs and projects that serve society’s broader interests. Simply put, individuals are skeptical of the government, especially when it comes to the allocation of their hard-earned money through tax bills.
In light of these seemingly irreconcilable issues, a compromise is still possible. The first step to reaching said compromise involves revising the Chicago Mansion tax to include exceptions for vulnerable populations. Specifically, exemptions for landlords who rent out residential properties in low-income areas. This measure would address the issue of increased rent for low-income renters. Other states that have implemented transfer taxes with these sorts of exemptions, like New Jersey and Ohio, have done so with great success. Chicago has already implemented certain transfer tax exemptions on vulnerable populations. For instance, senior citizens
are offered refunds for the transit portion of transfer taxes if they lived on their property for over a year. Similar exemptions could be extended to landlords of residential properties in low-income neighborhoods. Likewise, the Mansion tax could be revised to include exemptions for vulnerable properties. This would have the same effect as exemptions for vulnerable populations.
Another revision that would allow both sides to reach a compromise, is to dedicate the tax revenue generated from the Mansion tax to a specific project. Currently, the Chicago Mansion tax has the broad aspiration of supporting homeless assistance programs. The city could address much of the skepticism by creating a specific and unique project that would allow taxpayers to know where their tax dollars are going. For example, the city could establish a dedicated fund to support affordable housing initiatives or community development projects in underserved neighborhoods. This would provide transparency and assurance to taxpayers regarding the direct impact of their contributions. Also, perhaps, the state of Illinois could step in and
mandate that any tax revenue collected from the Mansion tax be directed toward housing assistance programs. These reforms, collectively, provide transparency as to how the funds are being used and allow taxpayers to hold the city accountable. More importantly, they serve as a compromise between supporters and opponents of the Chicago Mansion tax, by creating a more balanced approach to addressing both fiscal and socioeconomic concerns within the city.
chicago cultural center | cover illustration by lia yufei he
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