Volume III, Issue II (Spring 2025)

ULM Undergraduate Law Magazine

IN THIS ISSUE

through the haze: examination of hazing legislation | page 14

green lies, real crimes: why greenwashing deserves legal consequences | page 38

chiraag bains: reform and realizing the promise of democracy in the u.s. | page 54

UNDERGRADUATE LAW MAGAZINE ABOUT

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 exploration, 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.

MASTHEAD & STAFF

Editor-In-Chief

Aya Hamza

Managing Editors

Senior Ryanne Leonard

Junior Ana Estupinan

Executive Editors

Ahmed Ahmed

Divya Mehrotra

Iman Snobar

Style Manager

Austin San Juan

Illustration Manager

Lia Yufei He

Staff Writers

Fimisokan Adesemoye

Isabel Alia Arias

Sebastian Arnal

Alia Bencheqroun

Jack Bourdeaux

Simon Camelo

Kimberly Chavez

Meghan Derby

Cyrah Gayle

Maya Gutierrez

Associate Editors

Elijah Bullie: Two Views

Michelle Du: Opinion

Samuel Espinal Jr: Legal Analysis

Aminah Ghanem: Interviews

Kevin Guo: Upcoming Chicago Policy

Rocio Portal: Upcoming Chicago Policy

Alejandro Sandoval Elizondo: Two Views

Nikulas Soska: Legal Analysis

Héloïse Vatel: Opinion

Jonathan Ji

Devon Jiang

Isabella Kelly

Letom Kpea

Yoo-Bin Kwon

Ashley Lee

Harris Lencz

Jennifer Li

Vincent Li

Jolin Liu

Scarlett Lopez Rodriguez

Social Chair

Lizbeth Herrera-Gomez

Treasurer

Kathryn Fang

Digital Content Managers

Doan Tran

Tejas Shivkumar

Community Relations Manager

Tomas Vallejo

Print Manager

Natalia Girolo

Addison Marshall

Jack Martinez

Samuel Morse

Sara Munshi

Zoe Nelson

Dat Nguyen

Nicole Ochoa

Zoë Parkin

Andrea Pita Mendez

Teddy Pitofsky

Christopher Rodriguez

Leena Sfar

Sanjay Srivatsan

Emberlynn St. Hilaire

Ovia Sundar

Maya Sundararajan

Rivka Tamir

Haley Thomas Ariel Trejo

Aparna Viswanathan

Megan Wei

Oscar Zhang

Letter from the Editor

One thousand, one hundred, and eighty-five days ago, I positioned my laptop screen away from the door at the Philz Coffee on 53rd Street to avoid any familiar passersby’ gaze. Embarrassed, I was toying around on Canva designing a logo for an RSO I eagerly wanted to bring back. In the months prior, I shared my desire with various mentors and advisors, all of whom sternly advised against it. The brunt work required to revive an RSO would not be worth it and would ultimately distract me from my education. Besides, there were other legal RSOs in the University of Chicago sea.

Restless, I could not shake what ULM might have looked like. Too many hours later, I looked at the logo that graces the cover of this sixth issue. I was upset that I liked it. Feeling defeated yet motivated, the imagination of what might be if this were a real thing refused to release me.

Even eleven days before graduation, my heart still jumps when I spot a ULM sticker on a laptop at the Reg or read proud comments from new staff writers’ parents after posting their articles on LinkedIn right after a release. There are no lawyers in my family, but there is a whole lot of grit. Picking me up from middle school, Baba—my father—drilled the tired adage he always did: the importance of “the power of question.” Start off behind or lost. But whether we stay in place is up to us. I have since sought out spaces where I was confident that much of what I yearned to know lay in conversations to be—albeit nervously—had.

Though outside the Core Curriculum, within the walls of Stuart 101, ULM became not a source of distraction but a hallmark of my undergraduate education. Publication cycles that were never long enough kept me alert. Whenever I led an issue’s article ideation session, I never hesitated to ask new and veteran staff what new legal terms, topics, or cases intrigued them. In each “Good Idea Sheets” meeting, I intended to model my – and this magazine’s – commitment to learning by first proudly admitting to not knowing. Every turn of a page upon final layout review taught me something I didn’t even know was to be learned. The privilege—and pressure—of realizing all I knew ULM could be weighed on me each time I saw our logo. The promise I made more than three years ago to ULM’s early supporters and my mentors kept me on track through endless editing sessions, scheduling discussions, and print meetings. I owed it to them to ensure that every student who ever edited, wrote for, or even viewed a ULM article was equipped with the guidance and encouragement necessary to communicate the unique value of their knowledge and opinions effectively. Surely, volume after volume, there were fewer typos, tighter arguments, and broader outreach.

Mama, too, worked to instill moral sense in me at school pickup as early as third grade. She repeated, “Your degree is your weapon.” My friend’s mother substituted for our class once and urged us to focus on the assignment at hand if we hoped to advance to the next grade. I turned back to agree and parrot Mama’s sentiment. The tiger mom I came to know laughed, “Oh, sweetie, it is way too early for that.” Years have melded together. I carry the chattiness in my seat at Coconut Grove Elementary and restless ULM distribution nights in Reynolds Club with me forever, wherever.

With immense gratitude, I share the pride and joy of my time at the University of Chicago with every sentence and student who shaped ULM into the home I will desperately miss, one I will confidently leave in capable hands. As for mine, they look forward to receiving their long-awaited academic armor in a few short days.

For the last time,

Aya Hamza

Refounding

Editor-in-Chief

THE MASTHEAD MEET

aya hamza editor-in-chief

ryanne leonard senior managing editor

ana estupinan junior managing editor

ahmed ahmed executive editor

michelle du associate editor

divya mehrotra executive editor

kevin guo associate editor

elijah bullie associate editor

iman snobar executive editor

nikulas soska associate editor

lia yufei he illustration manager

doan tran digital content manager

alejandro sandoval elizondo associate editor

austin san juan style manager

tejas shivkumar digital content manager

héloïse vatel associate editor

natalia girolo print manager

tomas vallejo community relations manager

rocio portal associate editor

kathryn fang treasurer

aminah ghanem associate editor samuel espinal jr. associate editor

lizbeth herrera gomez social chair

LEGAL ANALYSES

COURTS

VS. CODE: WHAT THE REVERSAL OF CHEVRON DEFERENCE MEANS FOR AI REGULATION

by MAYA SUNDARARAJAN STAFF WRITER

Manypeople who believe that society must rapidly regulate artificial intelligence (AI) have looked to federal agencies like the National Institute of Standards and Technology and the Copyright Office to take action. This makes sense because given the immense scope of possible change that AI may engender, regulating it isn’t just about creating new laws, but about appropriately reinterpreting existing laws in the context of AI. The Biden administration issued a series of executive orders urging agencies to shape new policies that anticipated and appropriately promoted or restricted AI development and use. With the reversal of the deference affirmed in Chevron U.S.A. v. Natural Resources Defense Council, the ability of federal agencies to reinterpret existing laws in our new technological context has been limited. The guardrails around AI and much of what governs this exciting yet unpredictable technology will now be shaped by litigation rather than regulation, delaying what may be considered necessary until long after it is needed.

“Chevron deference” refers to the selective prioritization of federal agencies over judicial bodies when ambiguous laws are being interpreted. The term stems from the precedent set by the case Chevron U.S.A. v. Natural Resources Defense Council, which involved a regulation passed by the Environmental Protection Agency (EPA)

under The Clean Air Act, and favored the EPA’s interpretation of the law.1 Beyond the specifics of the case itself, the decision thus established that courts must defer to agencies if the statute in question is ambiguous and the court finds that the agency’s construction of the statute is reasonable.2

Recently, however, in deciding Loper Bright Enterprises v. Raimondo, the Supreme Court overturned Chevron deference, reasoning that the level of deference afforded to agencies under Chevron was arbitrary, unconstitutional, and in contradiction with the EPA.3

In this new era of post-Chevron deference, courts are no longer required to turn to federal agencies to the extent that they used to. Instead, when deciding whether to consider agency interpretation of ambiguous language, they will use “Skidmore deference,” from the case Skidmore v. Swift & Co. Under Skidmore, the burden on agencies to justify their interpretation is much more stringent than under Chevron, holding agencies to a higher standard of persuasiveness. Justice Kagan’s dissent in Loper Bright Enterprises v. Raimondo stated that “in one fell swoop, the majority today gives itself exclusive power over every

1 Chevron U.S.A., Inc. v. NRDC, Inc., et al., 467 U.S. 837 (1984).

2 Barczewski, Benjamin M. “Chevron Deference: A Primer.” Congress.gov, May 18, 2023. https://www.congress.gov/ crs-product/R44954/.

3 Loper Bright Enterprises et al.v. Raimondo. Secretary of Commerce, et al., 603 U.S. 3 (2024).

open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law.”4

Given the unprecedented speed of progress we are witnessing with AI, federal agencies are the entities best positioned to swiftly respond to and adapt dated statutes that should, but fail to, address the newest and most pressing AI-related issues. Granted, an alternative to regulation and litigation is the passing of new AI legislation. However, the recent razor-thin Republican majority in the House coupled with increasing political polarization has led to legislative gridlock on emerging issues, making timely new AI laws highly unlikely. Further, if new legislation does emerge, some experts believe that the velocity of AI progress could render the legislation outdated by the time it is passed.5 The process of seeking and attaining consensus may also end up favoring legislative focus on the simpler and easier to understand issues such as watermarking AI-generated content rather than more complex yet more important challenges of AI fairness or copyright disputes related to training AI models.

Leaving our AI future in the hands of the courts rather than feder-

CONTINUED ON PAGE 8

4 Loper Bright Enterprises et al.v. Raimondo. Secretary of Commerce, et al., 603 U.S. 84 (2024).

5 Wheeler, Tom. “The three challenges of AI Regulation.” Brookings, June 15, 2023. https://www.brookings.edu/ articles/the-three-challenges-of-ai-regulation/.

WHO’S AFRAID OF ELON MUSK? DOGE’S REFUSAL TO

COMPLY WITH FOIA

TheDepartment of Government Efficiency (DOGE) was established through an executive order at the beginning of President Trump’s second term. According to the order, the purpose of the department is to “[modernize] Federal technology and software to maximize governmental efficiency and productivity.”1 The United States Digital Service (USDS) was refashioned into the United States DOGE Service through this order. USDS was established in 2014 as a technology unit within the Executive Office of the President to improve government technology, such as updating government websites and streamlining federal hiring processes. DOGE, also established in the Office of the President, has been given an even higher level of authority, with the executive order demanding that DOGE have access to “all unclassified agency records, software systems, and IT systems.”2 This includes personal information that was previously held by the USDS.

The Freedom of Information Act (FOIA) guarantees that the information used by government agencies is shared with the general public. This act allows citizens to request access to records from any federal agency, unless the agency falls under one of the nine exemptions, which protect more sensitive material (e.g. national security, personal privacy, internal practices, law enforcement investigations, etc.).

1 White House. “Establishing and Implementing the President’s Department of Government Efficiency.” January 2025. https://www.whitehouse.gov/ presidential-actions/2025/01/establishing-and-implementing-the-presidents-department-of-government-efficiency/.

2 Id.

by ZOE NELSON STAFF WRITER

DOGE does not fall under any of the exemptions listed by FOIA. For the information held by DOGE to be considered an exemption, it would have to qualify as information that could create a serious invasion of privacy (such as attorney-client privilege) or threaten a compelling government interest (such as trade secrets or national security). There is an exemption for financial information, but only if it is confidential or privileged information, not public fi-

“Although executive administrators have stated that Elon Musk is simply a ‘Senior Advisor to the President’ and not in charge of DOGE, based on Trump’s and Musk’s public statements, it seems as though Musk is entirely in charge of DOGE’s operations.”

nances. The government claims that because DOGE is an executive advising board, it does not qualify as an independent agency subject to FOIA. However, the First Amendment Coalition filed a lawsuit against the agency in March to enjoin the agency from withholding these records, declaring that DOGE records are public information under FOIA. The coalition’s complaint alleges that DOGE serves as more than an executive advising committee, and that it wields substantial power and authority completely independent of the president, making

it an agency in its own right. Organizing major cuts to federal funding and freezing foreign aid payments, for example, are not within the scope of authority of a mere advisory committee. It concludes, “[First Amendment Coalition] has a legal right under FOIA to obtain the information it seeks, and there is no legal basis for the denial by USDS [United States DOGE Service] of said right.”3 DOGE might be in direct violation of FOIA if it does not release these records.

Citizen protection regarding information obtained by the government has evolved a lot over the last few decades. FOIA was first passed in 1966 to promote transparency and accountability and to check government power, championed by Democratic representative John E. Moss. Its main objective at the time was to address the overuse of government files marked “confidential” that didn’t need to be private information. However, even after FOIA was passed, there was bureaucratic pushback from government agencies, such as excessive delays and fees. It wasn’t until after the Watergate scandal that Congress really cracked down on FOIA, passing a bill to strengthen judicial oversight of document classification through a process called in camera review.4 This meant that the courts had the power to ensure whether a document was properly classified through a judge reviewing

CONTINUED ON PAGE 9

3 Courthouse News. “MSW Media v. Doge Complaint.” March 2025. https:// www.courthousenews.com/wp-content/uploads/2025/03/msw-media-vdoge-complaint-1.pdf/.

4 National Security Archive. “Veto Battle 30 Years Ago Set Freedom of Information Norms.” November 2004. https://nsarchive2.gwu.edu/NSAEBB/ NSAEBB142/index.htm/.

FROM

al agencies with specialized expertise could have other important ramifications. A judge or jury can hardly be expected to acquire and stay current on the in-depth technical knowledge about AI that can be necessary to shape the right boundaries around this rapidly evolving technology. Unless Congress takes aggressive action to strengthen AI legislation, this creates an environment where there is a lower chance that laws are interpreted in a manner that promotes regulation.

6 Plaintiffs will have an easier time fighting against the regulatory actions of federal agencies,7 and other bodies that propose solutions and advise on

6 Quinn, Kelsey. “How the U.S. Should Regulate AI After the End of Chevron Deference.” New Lines Institute, July 11, 2024. https://newlinesinstitute.org/strategic-technology/ how-the-u-s-should-regulate-artificial-intelligence-after-the-chevron-ruling/.

7 Bullock, Charlie. “What Might the End of Chevron Deference Mean for AI Governance?”. Institute for Law & AI, May 2024. https://law-ai.org/chevron-deference/.

such matters may also exert more caution in their development of regulation because they are more likely to be successfully challenged.8

Chevron’s reversal makes it all the more important that we pay attention to the risks that can arise from unregulated AI. A key issue is of AI alignment, or whether the actions of the new generation of frontier models9 like the large language models (LLMs) that underlie popular tools like ChatGPT and Claude are aligned with what is good for society in order to avoid possible inadvertent AI-made or AI-driven decisions that

8 Gray, Stacey. “Chevron Decision Will Impact Privacy and AI Regulations.” Future of Privacy Forum, June 28, 2024. https://fpf.org/blog/chevron-decision-will-impact-privacy-and-ai-regulations/.

9 Bullock, Charlie, Suzanne Van Arsdale, Mackenzie Arnold, Cullen O’Keefe, and Christoph Winter. “Legal Considerations for Defining ‘Frontier Model.’” Institute for Law & AI, September 2024. https://lawai.org/frontier-model-definitions/.

are at odds with human values or interests.10 Other issues include the possible proliferation of algorithmic bias and a potential lack of AI transparency.11 In our era of frontier models, AI can have unpredictable capabilities that even the developers may not fully understand during the course of their development. The incomplete definition of such frontier models in the legal sphere coupled with the reversal of Chevron compounds their risks — it is now the courts rather than expert federal agencies that may end up defining these systems and resolving the uncertainty regarding how laws which involve AI will be interpreted.

10 Conn, Ariel. Francesca Rossi Interview. Other. Future of Life Institute, January 26, 2017.

11 Sundararajan, Arun. “How Corporate Boards Must Approach AI Governance.” November 01, 2024. https://ssrn.com/ abstract=5016014/.

WHO’S

AFRAID

CONTINUED FROM PAGE 7

OF

ELON MUSK?

the unredacted versions of contested records (to determine whether they were exempt from disclosure).

In Kissinger v. Reporters Committee,5 a 1980 Supreme Court case, the Court delimited the meaning of agency records within FOIA, holding that “While the FOIA makes the ‘Executive Office of the President’ an agency subject to the Act, the legislative history makes it clear that the ‘Executive Office’ does not include the Office of the President.”6 In this case, the FOIA requests were in reference to Kissinger’s telephone conversations while he served as an Assistant to the President for National Security Affairs, which had been recorded by his secretaries and turned into summaries or transcripts. Thus, because the Office of the President was exempted from FOIA, any notes Kissinger had made while serving as Presidential

5 Kissinger v. Reporters Committee, 445 U.S. 136 (1980).

6 Id at 138.

DOGE’S REFUSAL TO COMPLY WITH FOIA

Assistant did not constitute agency records subject to FOIA.

This complicates DOGE’s role as an executive advising committee. Technically, since it is established in the Office of the President, it would be exempt from FOIA requests under this ruling. However, if the First Amendment Coalition is correct, and DOGE acts completely independently of the president, then it is subject to FOIA. Although executive administrators have stated that Elon Musk is simply a “Senior Advisor to the President” and not in charge of DOGE,7 based on Trump’s and Musk’s public statements, it seems as though Musk is entirely in charge of DOGE’s operations. For example, on February 19, Trump stated, “I signed an order creating the Department of Government Efficiency and put a man named Elon Musk in charge.”8 Shortly after,

7 “MSW Media v. Doge Complaint.”

8 Bower, Anna. (@annabower.bsky. social), Bluesky (Feb. 19, 2025 6:11 PM),

on February 26, he stated, “I’m going to ask if it’s possible to have Elon get up first and talk about DOGE… So Elon, if you could get up and explain where you are, how you’re doing, and how much we’re cutting.”9

The implications of this are that Elon Musk, though he appears to be a mere advisor to the president, is likely actually heading up DOGE and all of its operations on his own. This would make DOGE’s refusal to comply with FOIA requests illegal.

at https://bsky.app/profile/annabower. bsky.social/post/3likvkcjnr22h/.

9 Trump: People who didn’t respond to ‘what did you do’ email are on the bubble, Scripps News (Feb. 26, 2025), at https:// www.youtube.com/watch?v=Jd-MlbvYles/.

THE RUBY FRANKE CASE: LEGAL DEVELOPMENTS FOR CHILD INFLUENCER PROTECTIONS

by NICOLE OCHOA STAFF WRITER

In the aftermath of the highly publicized Ruby Franke child abuse case, Utah has joined Illinois and California in passing legislation regulating child influencers, specifically, minors who appear in monetized content created by their parents, often on family vlogging channels.1 Popular on YouTube, Instagram, and TikTok, family vlogging has become one of the most popular social media entertainment genres and often involves parents documenting and broadcasting their children’s daily lives for public consumption. This law, signed by the Utah Governor in March of 2025, takes steps towards protecting minors from monetized digital exposure, addressing the growing legal gap between traditional child labor protections and the rapidly expanding world of influencer media, despite its limited nature with state-level enforcement.

Ruby Franke, a prominent “momfluencer” known for her YouTube channel 8 Passengers, was sentenced up to 30 years in prison after pleading guilty to four counts of aggravated child abuse in early 2024. This case shocked the nation as at the channel’s height, it had 2.3 million subscribers and over 1 billion cumulative views.2 Franke’s early content

1 Laude, Camille. “Family Vlogging and Child Harm: A Need for Nationwide Protection.” American Bar Association. https://www.americanbar.org/content/ dam/aba/publications/Jurimetrics/ spring-2024/family-vlogging-and-childharm-a-need-for-nationwide-protection. pdf/.

2 Giorgis, Hannah. “The Cost of Perfection.” The Atlantic. https://www.theatlantic.com/culture/archive/2025/03/ devil-in-the-family-review-ruby-fran-

showcased routine family moments: morning wake-ups, school drop-offs, and mealtime rituals. However, as the channel gained popularity, the tone and substance of her videos began to shift. Her content began to feature invasive footage that blurred the line between parenting and exploitation. Content included recordings of her children being punished, private discussions about puberty, and even scenes of bra shopping, all presented as family entertainment. This shift in content masked a disturbing escalation in Franke’s parenting tactics. Viewers later learned that she had subjected her children to extreme disciplinary measures, including removing her oldest son’s bed for seven months, withholding meals, canceling holidays like Christmas as punishment, and sending their oldest son to a troubled teens camp. Though Child Protective Services were called to the home in 2020 and 2022,3 no charges were filed at the time. The true extent of the abuse would only come to light years later, underscoring how deeply harm can be concealed under the guise of digital content creation.

When one of her malnourished children escaped and sought help from a neighbor in August 2023,4 the story quickly unraveled. Investigators found evidence that Franke and her ke/682229/.

3 Rivera, Daniella, and Lofton, Shelby. “Concerns about Ruby Franke’s Children Reported to Police, DCFS More than a Year Ago.” https://www.ksl.com/article/50724629/concerns-about-rubyfrankes-children-reported-to-police-dcfsmore-than-a-year-ago/.

4 “Utah vs Franke/Hildebrandt.” Washington County of Utah, Guilty Plea Verdict. February 20, 2024. https://www. washco.utah.gov/departments/attorney/ case-highlights-media/utah-vs-franke-hildebrandt/.

business partner, Jodi Hildebrandt, had subjected multiple children to isolation, food deprivation, and extreme disciplinary measures, some of which had been openly discussed or alluded to on their channel. The case became a grim example of how the pursuit of content and “discipline for the camera” can spiral into abuse, especially when legal oversight fails to keep pace with the influencer economy. In direct response to the growing concerns over child influencers, Ruby Franke’s oldest daughter, Shari Franke, and husband, Kevin Franke, advocated to Utah lawmakers for stronger safeguards to be put in place for child influencers. Shari Franke testified to the Utah Senate that, “When children become stars in their family’s online content, they become child influencers. It is more than just filming your family life and putting it online. It is a full-time job, with employees, business credit cards, managers, and marketing strategies.”5 Following these testimonies, House Bill 322 (H.B. 322) was passed and signed by Governor Spencer Cox, set to take effect May 7, 2025.6 The law defines participation in monetized digital content as a form of labor for minors, aligning them with traditional child performers. If a family earns over $20,000 per calendar year from content featuring their children, at least 15% of the child’s portion must be deposited into a trust account, accessible at age 18. Children also gain

5 “Business and Labor Interim Committee Hearing - October 16, 2024.” Business and Labor Interim Committee. https:// le.utah.gov/av/committeeArchive.jsp?mtgID=19498/.

6 “H.B. 322 Child Actor Regulations Bill.” Utah State Legislature. https://le.utah. gov/~2025/bills/static/HB0322.html/.

“When children become stars in their family’s online content, they become child influencers. It is more than just filming your family life and putting it online. It is a full-time job, with employees, business credit cards, managers, and marketing strategies.”

shari franke’s testimony to the utah senate

the right, upon reaching adulthood, to request the deletion of videos in which they appear. The requirement for the money to be set aside mirrors the structure of the Coogan account system, popular for child stars in movies and television. Named after Jackie Coogan, a child actor in the 1930s who found after he had turned 18, none of his earnings from his previous work were saved, the Coogan Law was established to prevent parents from mismanaging or spending a child performer’s earnings.7 California, New York, Illinois, Louisiana, and New Mexico all require some form of a blocked trust account for child performers. This development follows California’s recent laws AB 18808 and SB 764,9 expanding the Coogan Law

7 “California Child Actor’s Bill Section 6752 - Coogan Law: Full Text.” SAG-AFTRA, accessed May 6, 2025. https:// www.sagaftra.org/membership-benefits/young-performers/coogan-law/coogan-law-full-text/.

8 “AB-1880 Minors: Artistic Employment.” Bill Status - AB-1880 Minors: Artistic Employment., https://leginfo. legislature.ca.gov/faces/billStatusClient. xhtml?bill_id=202320240AB1880/.

9 “SB-764 Minors: Online Platforms.” Bill Status - SB-764 Minors: Online Platforms., https://leginfo.legislature. ca.gov/faces/billStatusClient.xhtml?bill_ id=202320240SB764/.

and redefining what constitutes a content creator.

Unlike traditional media industries, influencer content creation is incredibly decentralized, non-unionized, and driven by self-reporting financials. The law relies heavily on self-reporting and platform compliance. Key areas of ambiguity remain. For example, the statute does not clearly delineate how disputes over income allocation will be resolved, what penalties apply for noncompliance, or whether children are entitled to independent legal counsel in such cases. Also, there are some concerns about “regulatory flight”, the idea that content creators may relocate to less-regulated areas. For example, after California passed its legislation, creators such as The LaBrant Family, Cecily Bauchmann, and Brittany Xavier moved to Tennessee, a state without child influencer protections.10 However, these individual cases do not necessarily indicate a widespread trend. Even marginal reductions in exploitative family content would still represent

10 “‘Bad Influence’ and ‘The Devil in The Family’ Highlight the Dark Side of Kid Influencers.” The New York Times. https:// www.nytimes.com/2025/04/16/arts/ television/kid-influencer-ruby-franke-piper-rockelle.html/.

a meaningful gain in protecting children’s rights.

Ultimately, Utah’s law is a positive legal development that acknowledges the need to regulate children’s participation in monetized digital media. It represents an important recognition that children are not simply “extras” in family content, but workers entitled to protection. As the lines between private family life and public entertainment continue to blur, lawmakers, legal scholars, and child advocates face an urgent challenge: creating a digital rights framework that centers children’s autonomy, privacy, and long-term well-being, not just their earning potential.

DOUBLE DIPS: TWICE AS NICE OR DOUBLE TROUBLE?

by DEVON JIANG STAFF WRITER

You can’t have your cake and eat it too—but maybe you can.

Double-dipping is typically unethical. For instance, claiming the cost of losses from multiple insurers for the same incident is fraud and prosecutable.1 What happens when double-dipping benefits the parties on the other end of the dip? For distressed companies, double-dip transactions present a vital opportunity to raise capital.

When a company no longer has sufficient revenue to pay off its debt, it becomes distressed because it cannot meet its financial obligations. The company wants to avoid prolonging this state before creditors force it into bankruptcy, which causes lost assets and potential liquidation. At Home, a struggling home decor brand, faced this potential scenario and quickly needed cash in 2023.2 By creating a subsidiary company, At Home could take a loan from its subsidiary, which itself would take a loan from creditors, in exchange for an intercompany note. That loan comes from creditors, who now have a direct dip against At Home and a second indirect dip on its subsidiary. In other words, creditors now have two ways to recover their loan in bankruptcy proceedings. Large creditors found this arrangement attractive because it de-

1 See 18 U.S.C. § 1033 (“Whoever… knowingly, with the intent to deceive, makes any false material statement…shall be punished”).

2 See At Home Group Inc. Subsidiary Senior Secured Debt Rating Raised To ‘CCC’ After Error Correction. S&P GLOB. (Oct. 2, 2023) [hereinafter CCC]. https:// disclosure.spglobal.com/ratings/en/ regulatory/article/-/view/type/HTML/ id/3065440/.

creased the risk of not recovering their loan and credited $200 million to the subsidiary despite its parent company being distressed. Their two claims became pari passu (on equal footing) to existing senior loans if they needed to recover loans during bankruptcy. Double-dipping is controversial because it allows creditors to ‘jump the line.’ If a once high-ranking debt— known as a first-lien term loan—now has to share its seniority status with a double-dip creditor, its owner might recover less money during restructuring. In Chapter 11 bankruptcy proceedings, the law also makes clear that creditors are “entitled only to a single satisfaction.”3 At Home, therefore, could not develop a double-dip transaction if it were in Chapter 11 protection; courts would find the arbitrary duplication on a similar liability dubious. Even though double-dip transactions could take place outside Chapter 11 protection, there are other reasons why it may present ethical and legal problems. Bankruptcy courts can “inquire into the validity of any claim”4 and refuse to honor it if it is without lawful existence, made in bad faith, or is inherently unfair.5 Pepper v. Litton, 308 U.S. 295 (1939). By ruling that “substance will not give way to form,” the justices gave the bankruptcy courts flexibility because judges must focus on protecting multiple, often competing, interests.6 When an interested creditor leverages the debtor’s position to gain advantages in bankruptcy proceedings, such an agreement may not be in good faith. The courts can redress this imbalance by subordinat-

ing part of a claim.7

While senior creditors complain that double-dips are not good faith transactions, they may have to accept its existence. Debtors propose it to creditors in good faith for the survival of a company. When At Home needed liquidity, it had a CCC rating from S&P Global Ratings, meaning that At Home was nearly in default.8 Given the low rating, creditors need an attractive return to compensate for the risk. Double-dips helped Redwood Capital Management and other creditors justify extending the maturities of their debt, ultimately preventing At Home from entering Chapter 11.9 Courts prefer parties to find an agreement outside bankruptcy protection in order to avoid selling assets or liquidation, which would be “a disastrous result for…creditors.”10 In re General Motors Corp., 407 B.R. 403 (Bankr. S.D.N.Y. 2009). In the short term, injecting liquidity into a distressed company is in the best interest of mitigating the effects of Chapter 11 bankruptcy. It gives the company more time to relieve its liabilities when no other arrangement is tenable, making it a good faith act under 11 U.S. Code § 1129(a)(3). Existing creditors benefit, too, because they no longer face immediate risk of unrecoverable loans.

Senior creditors may push

7 See 11 U.S.C. § 510(c) (“the court may…subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim”).

8 CCC, supra note 2.

3 11 U.S.C. § 550(d).

4 Pepper v. Litton, 308 U.S. 295 (1939).

5 Id. At 306.

6 Id. At 305.

9 See Frumes, Max. Special Situations Insight: At Home Group Transaction May Be the First Intentional ‘Double-Dip’ Financing; It Won’t Be the Last. CREDITSIGHTS (Jun. 2, 2023). https://know. creditsights.com/special-situations-insight-june-2023/.

10 In re General Motors Corp., 407 B.R. 403 (Bankr. S.D.N.Y. 2009).

“While senior creditors complain that double-dips are not good faith transactions, they may have to accept its existence.”

back that multiple parties cannot assert claims on the same loans because it results in a forbidden duplicative recovery scheme.11 Double-dips, though, are different from the rulings against filing restitution damages and preference recovery on the same liability. The two dips collect from different estates—the parent company and its subsidiary—in the same way that a creditor can claim liabilities from two separate loans. In those circumstances, the creditor has the right to assert the full value of its claims.12 The debtor cannot force the lender to consolidate contractually-backed loans unless they recover more than their original loans. Similarly, a double-dip creditor is eligible to secure recovery through two claims. As long as the claims follow state laws and the U.S. code, the courts must honor and consider their underlying contract.13 The debtor can ensure it fulfills legal obligations by making its subsidiary unrestricted or non-guarantor restricted. By establishing either type of subsidiary, the company does not blend double-dip documents with the covenants of ex-

11 See In re Lyondell Chemical Co., 402 B.R. 596 (Bankr. S.D.N.Y. 2018).

12 See Ivanhoe Building & Load Assn. v. Orr, 295 U.S. 243 (1935).

13 See Travelers Casualty & Surety Co. of America v. Pacific Gas & Elec. Co., 549 U.S. 443 (2007).

isting credit documents.

Double-dipping is a novel and increasingly popular maneuver for both debtors and creditors. The practice began two decades ago as a fortuitous observation during the convoluted Lehman Brothers restructuring process.14 Now, distressed companies can engineer these loans as a hail mary to balance their sheets. Wheel Pros— an aftermarket for automotive wheels and accessories—recently became the first company to declare Chapter 11 bankruptcy despite its double-dipping efforts.15 In these restructuring proceedings, the company settled with first-lien term loan holders out of court over their objections. As complaints become more apparent with increasing double-dip transactions, bankruptcy courts should increase scrutiny on this issue. Similar to how debtors pushed the legal boundaries

14 See Declercq, Peter J.M.. Some Lessons Learned from the Lehman Brothers Insolvency – The LBT Notes. INSOL INT’L (2012). https://brownrudnick.com/ wp-content/uploads/2016/12/brown_ rudnick_some_lessons_learned_from_ lehman.pdf/.

15 See Hillier, Sam. ‘Double Dip’ Credit Structure Faces First Restructuring Test With Wheel Pros’ Possible Chapter 11. TRANSACTED (Sept. 6, 2024). https:// www.transacted.io/double-dip-creditstructure-faces-first-restructuring-testwith-wheel-pros-possible-chapter-11/.

with drop-downs,16 non-pro rata uptiers,17 and Texas Two-Step bankruptcies,18 distressed companies will create more complex transactions until the court rules that such innovation becomes unfair. For now, though, double-dipping can yield a mutually beneficial outcome: a direct benefit for debtors and an indirect benefit for every creditor.

16 See Ayotte, Kenneth, and Sully, Christina. J. Crew, Nine West, and the Complexities of Financial Distress. YALE L.J. (Nov. 10, 2021). https://www.yalelawjournal.org/forum/j-crew-nine-west-andthe-complexities-of-financial-distress.

17 See N. Star Debt Holdings L.P. v. Serta Simmons Bedding LLC, No. 652243/2020, 2020 WL3411267 (N.Y. Sup. Ct. June 19, 2020).

18 See Hu, Charlie. Court Rejects Johnson & Johnson’s Use of the “Texas TwoStep” to Tackle Baby Powder Liability. U. CHI. BUS. L. REV. (2023). https://businesslawreview.uchicago.edu/online-archive/ court-rejects-johnson-johnsons-use-texas-two-step-tackle-baby-powder-liability/.

THROUGH THE HAZE: EXAMINATION OF HAZING LEGISLATION

by CYRAH GAYLE STAFF WRITER

Fraternities and sororities are as old as this nation.1 And though the first reported case of hazing in the United States is considered to be in 1838 with the death of John Butler Groves, it is nearly certain that fatal hazing incidents occurred much earlier but were never reported.2 With hazing being a tale as old as time, how will state and federal laws address the fatal consequences of hazing? In this article, I will examine current legislation to better understand the implications that these laws have on the future of fraternity and sorority organizations.

Only two months after former President Joe Biden signed the “Stop Campus Hazing Act” into effect, the unfortunate death of a Southern University student, Caleb Wilson, shook the world of fraternities and sororities once again. The federal act “requires institutions of higher education (IHEs) that participate in federal student aid programs to report hazing incidents” and defines hazing as any intentional, knowing, or reckless act committed by a person (whether individually or in concert with other persons) against another person or persons regardless of the willingness of such other person or persons to participate, that (1) is committed in the course of an initiation into, an affiliation with, or the maintenance of mem-

1 “History of Fraternities/Sororities.” Appalachian State University Fraternity and Student Life. Accessed May 21, 2025. https://fsl.appstate.edu/history-ofgreek-life/.

2 The Doan Law Firm. “History of Fraternity Hazing.” Accessed May 21, 2025. https://www.thedoanlawfirm.com/fraternity-hazing/history-of-fraternity-hazing/.

bership in, a student organization (e.g., a club, athletic team, fraternity, or sorority); and (2) causes or creates a risk, above the reasonable risk encountered in the course of participation in the IHE or the organization, of physical or psychological injury.3

Although an important legislative milestone, the “Stop Campus Hazing Act” has not put a stop to hazing on college campuses, in part, because it remains difficult to enforce. One of the deficiencies of the act is that it places the burden of responsibility on the university, which are often reluctant to chastise its charters due to the financial benefits from the fraternities.

The University of Chicago (UChicago) which boasts of only 21 fraternity and sorority organizations is incomparable to Greek-oriented universities such as the University of Alabama, which is home to over 70 fraternity and sorority organizations.4 If a smaller school like UChicago is tied into the politics of pleasing its Greek-life alumni, how much more so are larger public schools? Ultimately, this significantly decreases the likelihood that universities will hold these organizations responsible. Even if public universities were to hold their schools’ charters responsible, how could punishments

3 Congress.gov. “H.R.5646 - 118th Congress (2023-2024): Stop Campus Hazing Act.” December 23, 2024. https://www. congress.gov/bill/118th-congress/housebill/5646/.

4 “Chapters List.” University of Alabama Division of Student Life, Fraternity and Sorority Life. Accessed May 21, 2025. https://ofsl.sa.ua.edu/chapters-list/; Staff of the Maroon, “Sororities and Fraternities at UChicago.” Chicago Maroon, September 23, 2019. https://chicagomaroon. com/27132/news/greek-life-uchicago/.

be enforced? Most, if not all, national chapters of fraternities and sororities include rulebooks that strictly prohibit the use of hazing. And yet, when this rule is obviously violated, national chapters very rarely face repercussions for their lack of enforcement and their frequent permissiveness of hazing.5

In the case of Caleb Wilson, there is little evidence to suggest that the national chapter faced repercussions for the Southern University charter’s actions. In fact, the only consequence that can be easily located is that the university ordered the fraternity’s chapter to “cease all activities” and has “banned all Greek organizations on campus from taking in any new members at least through the remainder of the academic year.”6

It is apparent that local chapters suffer reputational damage and public backlash when these cases occur, but very rarely do they impact these organizations at the national chapter level, which arguably has the most power to change the dynamics of its local charters. For federal law against hazing to be efficient, it must be proactive (not just a reaction to another unfortunate event) and have an impact on the fraternity and sorority organizations in the local and international chapters. Lives truly depend on it.

5 Marcuccio, Elizabeth and McCollum, Joseph P. “Hazing on College Campuses: Who is Liable?.” 2011. North East Journal of Legal Studies: Vol. 22, Article 2. https:// digitalcommons.fairfield.edu/nealsb/ vol22/iss1/2/.

6 Brown Chau, Nicole. “Caleb Wilson Died after an Alleged Fraternity Hazing Incident. Here’s What We Know.” CBS News, March 13, 2025. https://www. cbsnews.com/news/caleb-wilson-hazing-death-omega-psi-phi/.

“SHAME

MUST CHANGE SIDES”: GISELE PELICOT’S TRIAL AND CALL FOR SHIFT TOWARDS MUTUAL RESPECT

by CHRISTINE LEE STAFF WRITER

CONTENT WARNING: This material contains description of sexual assault and discussion of a court case involving sexual assault and abuse.

WhenGisele Pelicot unexpectedly suffered from memory lapses and lost hair and weight, she believed her husband, Dominique Pelicot, was supporting her by driving her to medical appointments. To her, they were a happy retired couple, living in Mazan, France, after raising three children and working in the Paris region. After specialists could not diagnose the cause of her experiences, her husband insisted she had early symptoms of Alzheimer’s disease. If a security guard had not caught Dominique recording under women’s skirts at a supermarket, an investigation may have never revealed that Dominique was secretly drugging and raping Gisele. Authorities found hundreds of images and videos of Dominique (and other men) sexually assaulting Gisele on Dominique’s hard drive. In the last decade, Dominique drugged and raped Gisele over 200 times, inviting 72 men he met in online chat rooms to their home in Mazan to join him. At the end of 2024, Dominique and 50 other men were on trial for rape. Gisele’s trial against the fifty-one men made it evident that she endured two types of preventable gender-based violence: the physical harm of being violated by so many men initiated by her husband, and the psychic harm of having to relive this violence while fighting for her dignity and autonomy in a public court case.

The sexual violence against Gisele marked an act of immense and irreparable physical harm, but by putting this act in the larger context of French

law and culture, it becomes clear that this extreme outcome does not necessarily represent an anomaly. While Dominique received the highest sentence of twenty years for aggravated rape, many of the other rapists received shorter sentences than prosecutors sought. A few received only suspended sentences, which meant they were put on probation instead, with the possibility of the original sentence being enforced if probation conditions are violated, allowing them to walk free.1 These lenient sentences are the result of the definition of rape in French law, which puts forward no concept of consent.

According to French law, rape is defined as a penetrative act or oral sex act committed on someone using “violence, coercion, threat or surprise.”2 The lack of a concept of consent deprives survivors of sexual assault of a legally defined, foundational understanding of bodily autonomy. Without a shared understanding of consent or recognition of humanity in sexual settings, the #MeToo movement, meant to empower survivors of sexual misconduct, experienced delays and faced fierce backlash in France after gaining initial global recognition in 2017, reflecting a culture that silences the stories of survivors.3 According to

1 Vandoorne, Saskia, Niamh Kennedy, Caroline Baum, Kara Fox, Charlotte Dotto, Eleanor Stubbs, Yukari Schrickel, and Byron Manley. “Interactive: How Dominique Pelicot Organized France’s Worst Sex Crime in a Generation.” CNN, December 17, 2024. https://www.cnn.com/ interactive/2024/12/europe/gisele-pelicot-france-case-messages/.

2 Directorate for Legal and Administrative Information (Prime Minister). “Viol commis sur une personne majeure (Rape of an adult).” August 10, 2023. https:// www.service-public.fr/particuliers/ vosdroits/F1526/.

3 Onishi, Norimitsu. “Powerful Men Fall, One After Another, in France’s Delayed #MeToo.” The New York Times,

France’s Institute of Public Policies, 94% of rapes between 2012 and 2021 were never prosecuted or never came to a trial.4 Without proper accountability, sexual violence becomes accepted and even enabled within society. The 50 men on trial who accepted Dominique’s invitation to come to his home to rape Gisele were not known criminals but ordinary men—people you could pass while buying groceries or stand behind in line for coffee. There is no pattern by age, job, relationship status, or social class. Yet, despite raping the unconscious woman, 36 of the men pleaded not guilty, claiming they were deceived and forced by Dominique because he told them that Gisele was pretending to be asleep. Moreover, not one of these men saw the helpless, drugged woman and sought to help her by leaving and going to the police. Even without the question of accountability, the effects of rape are devastating. As a result of her own experience in regards to the sexual assaults specifically, Gisele says, “I’ve lost ten years of my life,” adding that her life is a “field of ruins.”5 According to The Rape, Abuse & Incest National Network of the United States, 30% of women who survive rape report symptoms of Post Tramatic Stress Disorder nine

CONTINUED ON PAGE 17

April 8, 2021. https://www.nytimes. com/2021/04/08/world/europe/francemetoo-sandra-muller.html.

4 “Le traitement judiciaire des violences sexuelles et conjugales en France.” Institut des Politiques Publiques.” April 3, 2024. https://www.ipp.eu/publication/ le-traitement-judiciaire-des-violences-sexuelles-et-conjugales-en-france/.

5 Linder, Esther. “Victim Recounts ‘scenes of Horror’ as French Trial Is Told Husband Drugged and Raped Her for a Decade.” ABC News, September 6, 2024. https://www.abc.net.au/ news/2024-09-06/french-victim-ofdrugging-and-sexual-assault-speaks-attrial/104318494/.

ARE MILLIONS NOT ENOUGH? PTPA SUES MEN AND WOMEN’S TOURS IN ANTITRUST LAWSUIT

Abigantitrust lawsuit has hit the sport of tennis. The Professional Tennis Players Association (PTPA) has brought forward an antitrust lawsuit against the governing tennis bodies in the United States, the United Kingdom, and the European Union: Association of Tennis Professionals (ATP) Tour, Women’s Tennis Association (WTA) Tour, International Tennis Federation Ltd, and the International Tennis Integrity Agency Ltd.1 Antitrust law is jurisprudence dedicated to fostering fair and competitive markets. In an antitrust lawsuit, the plaintiff argues that the defendant acted in a way that would restrict competition (e.g., a merger and acquisition that could potentially lead to a monopoly being created). That is exactly what the PTPA is arguing: the governing bodies that represent the defendants have made a collective effort to restrict professionally ranked tennis players from competing in tournaments not owned by the governing bodies,2 leading to a considerable loss in income for the affected players.

The antitrust lawsuit brought forward by the PTPA is the first of its kind. The ATP is the global governing body for men’s tennis,3 whereas the WTA serves as the global governing body for women’s tennis.4 One of the

1 Fuller, Russell. “Players v Tennis Tours: What Is the PTPA Lawsuit, What Does It Want and What Happens Next?” BBC Sport, March 19, 2025. https://www. bbc.com/sport/tennis/articles/c78ey959q64o/.

2 Pospisil et al v. ATP Tour, Inc. et al, No. 1:2025cv02207, Complaint. https:// www.ptpaplayers.com/wp-content/ uploads/2025/03/Pospisil-et-al.-v.-ATPTour-Inc.-et-al.-Complaint.pdf/.

3 “About ATP Tour Tennis.” ATP Tour. Accessed May 21, 2025. https://www. atptour.com/en/corporate/about/.

4 “About the WTA.” WTA Tennis. Accessed May 21, 2025. https://www. wtatennis.com/about/.

by SIMON CAMELO STAFF WRITER

complaints holds that both governing bodies essentially force their players to overcompete, given that both governing bodies have certain participation requirements in their respective rulebooks, leading to a strenuous schedule for affected players, and serving as an extra burden is penalties for failing to meet the participation requirements.5

Regarding the appropriate jurisdiction, the Southern District of New York was the legal governing body that received the complaint from the plaintiffs. Therefore, legal precedent exists that can favor both parties. On September 30, 2015, O’Bannon v. National Collegiate Athletic Association (NCAA) was decided. This was the highly awaited lawsuit that allowed collegiate athletes in the United States to be compensated for their likeness and image. In specific, the panel found that the NCAA’s amateurism restriction towards collegiate athletes from receiving compensation on the basis of name, image, and likeness, or NIL, violates Section 1 of the Sherman Act.6 O’Bannon v. NCAA has some overlap with the current lawsuit at hand, as some of the complaints regard unfair prevention of player participation in outside tennis affairs, which restricts the players from utilizing their name to advance themselves, and thus sets up a massive barrier for entry.7 In addition, the governing bodies force the tennis players to sign non-compete contracts and essentially force the tennis players to give up NIL rights.8 However, a key factor in O’Bannon v. NCAA is that the NCAA

5 Pospisil et al v. ATP Tour, ¶177-187.

6 O’Bannon v. NCAA, No. 14-16601 (9th Cir. 2015). https://law.justia.com/ cases/federal/appellate-courts/ca9/1416601/14-16601-2015-09-30.html/.

7 Id.

8 Id.

was not granting NIL compensation as they saw the athletes under their jurisdiction as amateurs. Neither the ATP nor WTA use the same justification for their compensation efforts or scheduling efforts, so drawing parallels for the plaintiff may be a burden to overcome.

This is not the only sport where the athletes involved are complaining due to strenuous schedules. A coalition in Europe, comprised of some of the biggest soccer leagues in the world, filed a lawsuit against FIFA, the main governing body of worldwide soccer, alleging issues with their expansive match schedules.9 Although no legal decision has been made for either lawsuit, one potential implication is a restructuring of athletic contracts. For a sport like soccer, contracts are structured to last a certain amount of time and are valid until the expiration date, or when there is a bilateral agreement to terminate the contract, or when a party involved in the contract has breached the contract in a severe enough way to make the terminating party unable to continue the contractual relationship.10 In a world where the legal conclusion of the regarded lawsuits is in favor of the plaintiffs, this may allow athletes to limit their participation in their respective sporting events. If players are able to decide to play less, then there may be further implications regarding contractual negotiations between sponsors and players

A differentiating factor between ATP Tour and WTA Tour and Ameri-

9 “FIFPRO, Leagues to File Antitrust Suit vs. FIFA.” ESPN. October 11, 2024. https://www.espn.com/soccer/story/_/ id/41736531/fifpro-leagues-file-antitrustsuit-vs-fifa-monday/.

10 Alexandria Union Club v. Juan José Sánchez Maqueda & Antonio Cazorla Reche, award of 26, August 2014.” CAS 2014/A/3463 & 3464, ¶54.

can sporting bodies is the governing size. Leagues such as the National Basketball Association, the National Hockey League, Major League Baseball, and the National Football League are governing bodies over their respective sports, in which most of the teams involved are entirely American, apart from a few teams

“SHAME

that participate from Canada. Therefore, in a hypothetical scenario where the respective player’s association or union were to feel as though an injustice was committed against them, the plaintiff in those hypothetical cases would be able to simply refer to American antitrust laws and labor laws and claim that an injustice

MUST CHANGE SIDES”:

CONTINUED FROM PAGE 15

months after the assault, 33% of women who are raped contemplate suicide, and 13% of women who are raped attempt suicide.6

Aside from the experience of a dehumanizing and annihilating assault, survivors of sexual violence who are able to take their case to court experience trauma from reliving their experience under public scrutiny. The issue of sexual violence embedded in culture extends beyond the act itself to scrutiny of the survivor and lack of access to resources to protect their dignity and health. A closer look into the trial reveals the obstacles and horrors Gisele had to face in order to reclaim her narrative and humanity. The experience of the trial proved to be gruelling, as Gisele says, “I understand why rape victims don’t press charges.”7 Defense lawyers displayed 27 intimate photos of Gisele that exposed her private body parts to the court. They reasoned that the sexually explicit photos of Gisele in Dominique’s invites led them to believe that Gisele was willing to have sex with them.8 In response, Gisele

6 “Victims of Sexual Violence: Statistics.” Rape, Abuse, & Incest National Network (RAINN). https://rainn.org/statistics/victims-sexual-violence/.

7 Clement, Megan. “Opinion: Gisèle Pelicot’s Horrifying Rape Trial Has Changed France.” New York Times. December 19, 2024. https://www.nytimes. com/2024/12/19/opinion/gisele-pelicot-rape-trial.html/.

8 Seckel, Henri. “Plaintiff Comes under Attack at Pelicot Trial: ‘I Under-

was committed under American jurisdiction. However, the lawsuit at hand regards a sole, worldwide governing body over tennis, consisting of players from countries all over the world. Therefore, it can be predicted that one of the main legal questions of this lawsuit is the proper jurisdiction.

GISELE PELICOT’S TRIAL AND CALL FOR. . .

remained defiant, saying “he still should have asked for my consent.”9 When asked about her decision to open her trial to the public at the cost of her privacy, Gisele expressed that she does not regret her decision, refusing to feel shame and protesting patriarchal society for stigmatizing survivors of sexual assault and trivializing their trauma: “I’m also thinking of the unrecognized victims whose stories often remain in the shadows. I want you to know that we share the same struggle.”10 To Gisele, justice would require more than just a guilty verdict. It would mean a cultural and legal paradigm shift toward mutual respect across genders, where there would be preventative measures to minimize gender-based violence from taking place and support systems to preserve dignity in the rare

stand Why Rape Victims Don’t Press Charges.’” Le Monde, September 19, 2024. https://www.lemonde.fr/en/france/ article/2024/09/19/victim-comes-under-attack-at-pelicot-trial-i-understandwhy-rape-victims-don-t-press-charges_6726617_7.html/.

9 Porter, Catherine & Ségolène Le Stradic. “France’s Horrifying Rape Trial Has a Feminist Hero.” New York Times, September 25, 2024. https://www.nytimes.com/2024/09/25/world/europe/ france-rape-trial-gisele-pelicot.html/.

10 Staff of Le Monde with Agence France-Presse (AFP). “Gisèle Pelicot ‘never regretted’ opening French mass rape trial to public.” Le Monde and AFP, December 19, 2024. https://www. lemonde.fr/en/police-and-justice/article/2024/12/19/gisele-pelicot-never-regretted-opening-french-mass-rape-trialto-public_6736257_105.html/.

case that such transgressions did occur. Gisele’s trial serves as a landmark case, strengthening the movement to include consent in French law. Members of the French Parliament Véronique Riotton from President Emmanuel Macron’s Renaissance Party and Marie-Charlotte Garin of the Ecologists Party spearheaded a panel advocating for the inclusion of consent in rape law.11 Fourteen other EU states, including Germany, Sweden, and Spain, already include the notion of consent in their legislation. Moreover, members of Parliament hope to address the culture that serves perpetrators of sexual violence in France. Updating the law is another step in the process toward dismantling a culture that accepts sexual violence. Nonetheless, empowering and supportive communal behaviors such as listening to survivors and providing mental health support are needed to rebuild the culture of justice that Gisele and other feminists envision. Today, Gisele’s face and words have been memorialized in murals on many streets of France as symbols of hope and courage. With more systemic and cultural change, Gisele Pelicot, along with every other survivor, may see justice.

11 Chrisafis, Angelique. “France Needs ‘Clearer’ Rape Laws That Include Consent, Report Finds.” The Guardian, January 21, 2025. https://www.theguardian. com/world/2025/jan/21/france-needsclearer-laws-that-include-consent-reportfinds/.

TWO VIEWS

DO NOT FEAR: CALIFORNIAN CONSUMERS AND DATA ARE IN THE GOOD GRACES OF THE CCPA

by OVIA SUNDAR STAFF WRITER

The California Consumer Privacy Act, or CCPA, is a landmark policy passed in 2018, giving “consumers more control over the personal information that businesses collect… provid[ing] guidance on how to implement the law.”1

Per the bill’s original text, consumers in California with the passage of the CCPA have the right to know how their information is used and shared, to delete their personal information, and to opt out of the sale of said information.2 Businesses are now held to these standards in their use and sale of private information, especially during privacy breaches, with the inclusion of a key private right to action clause that allows consumers to hold data security negligence accountable, among other things.3 Since the CCPA’s inception, various additions have also been made, increasing the bill’s scope and providing consumers with even more protections against the opaque use of their personal information.

The CCPA is particularly unique within the United States. Similar legislation on the global stage in-

1 “California Consumer Privacy Act (CCPA).” State of California Department of Justice Office of the Attorney General. Last modified 2024. https://oag.ca.gov/ privacy/ccpa/.

2 CCPA, State of California Dept. of Justice Office of the Attorney General.

3 Id.

cludes the EU’s GDPR,4 or the General Data Protection Regulation, which regulates the sale, access, and use of personal data by companies inside the EU, as well as those handling the data of EU residents outside of the EU. The CCPA was the first policy in the US to regulate the use and sale of consumers’ data from within the US.

The CCPA passed with a unanimous vote from the California State Legislature. Proving to be a solid foundation for consumer privacy protections, the bill was further amended to add the California Privacy Rights Act, or CPRA,5 in 2020. The CPRA added consumers’ right to change inaccurate personal data that has been collected about them, and also to limit the use and disclosure of their collected personal data, among other things. The CPRA expanded on the CCPA’s foundation to be more comprehensive in its protections and the rights it provided.

Before the passage of the CCPA, consumers had no concrete way to manage the sale and use of their data once companies obtained it. The CCPA sought to change that dynamic. It gave consumers the right to request that companies disclose specific data collected, the category it belongs to, the

4 Wolford, Ben. “What is GDPR, the EU’s new data protection law?” GDPR.edu. https://gdpr.eu/what-is-gdpr/.

5 “CPRA Regulations: Unraveling the California Privacy Rights Act.” Scrut Automation. Last modified 2023.

category of the source from which it is collected, what the company intends to do with the data, why it was collected, and the categories of parties to which the data is shared.

Consumers in California now have the right to access their data. Under the CCPA, companies that have collected a customer’s data within the past year must comply with these requests if made by the consumer. This provides a pivotal opportunity for consumers to have grounds to challenge or question the use of their data, as the data sold is now visible. The demand for data, as well as the types of data collected, has exploded in the past few decades. Data collection and management alone is a multibillion-dollar industry,6 and the increase in personalized online and business experiences means data is becoming increasingly valuable to companies of all kinds.

Per the CCPA, personal data is data that can be “reasonably linked”7 to the consumer. This includes name, contact information, education history, and the like, but also location data, account numbers, browsing history, device IDs, and more. The definition

CONTINUED ON PAGE 20

6 “Data Collection And Labeling Market Trends.” Grand View Research. Last modified 2024. https://www.grandviewresearch.com/industry-analysis/data-collection-labeling-market/.

7 “Definition of Personal Data.” DLA Piper Intelligence. https://www.dlapiperdataprotection.com/?t=definitions&c=US/.

The California Consumer Privacy Act

PROMISE OR PRETENSE: THE CCPA’S STRUGGLES WITH LOW ENGAGEMENT, LEGAL LOOPHOLES,

AND LAX ENFORCEMENT

by JOLIN LIU STAFF WRITER

The California Consumer Privacy Act (CCPA), enacted in 2018 and in effect since 2020, has been widely regarded as a landmark in U.S. privacy legislation. Modeled in part on the European Union’s General Data Protection Regulation (GDPR), the CCPA grants California residents rights to access, delete, and opt out of the sale of their personal data. While the law represents a significant step toward better consumer privacy protections, this essay examines concerns in the law’s real-world implementation—limitations that, if addressed, could strengthen the CCPA and help it better fulfill its original promise.

One of the most pressing issues is the law’s low rate of consumer engagement. According to a 2020 survey by the Interactive Advertising Bureau (IAB), opt-out rates for data “sales” across websites, mobile apps, and connected television platforms ranged from just 1% to 5%.1 Likewise, most companies reported receiving fewer than 100 access or deletion requests per year. Although the number of data subject requests (DSRs) rose by 246% from 2021 to 2023—from 248 to 859 requests per million identities—this growth is relative to an

1 Interactive Advertising Bureau, CCPA Benchmark Survey, November 2020. https://www.iab.com/wp-content/uploads/2020/11/IAB_CCPA_Benchmark_ Survey_Summary_2020-11.pdf/.

already initially negligible base, and its absolute participation rate still remains low at approximately 0.08%.2 This indicates that even now, most consumers either are unaware of their rights or find the process too burdensome to pursue.

In fact, the procedures for submitting data requests can be opaque and discouragingly complex. Users may be required to fill out detailed forms, upload government-issued IDs, or navigate poorly designed interfaces to locate request portals. These barriers are not merely accidental. Businesses have strong incentives to limit data disclosures, as transparency could alarm users or prompt them to withdraw consent, while widespread requests also risk exposing internal practices to competitors.

In a recent university course titled Surveillance Aesthetics: Provocations About Privacy and Security in the Digital Age, co-taught by the Computer Science Department at the University of Chicago and the School of the Art Institute of Chicago, students were asked to restore their digital profile by requesting data from commonly used applications. We were advised to start a month in advance due to expected delays. Navigating company websites to find data request portals

2 Transcend, 2024 Data Privacy Trends Report. https://transcend.io/ research/2024-data-privacy-trends

proved frustrating: options were often hidden deep in menus, labeled inconsistently in different terms, or styled in faint gray text compared to other black, bold tabs. Companies also segmented data into opaque subcategories, making it difficult to know what each contained in advance; therefore, users have to select the subcategories manually one by one in order to receive a fuller version. Moreover, some firms required outdated communication methods, such as fax. Out of nine companies I contacted, only four responded within a month via email. Most entries of the data returned was information already visible in the app, with only a few revealing insights into targeted profiling, tracking of privacy, and digital surveillance. These points of friction appear strategically designed to deter requests or overwhelm users with irrelevant data. This is similar to how users routinely default to accepting lengthy “I agree to the terms” pages. While anecdotal, this experience highlights the broader structural barriers consumers face when attempting to exercise their data rights, which likely contribute to the CCPA’s persistently low engagement with data subject requests.

Another major weakness lies in how companies have reinterpreted the law’s language to avoid compliance. Industry groups such as the

CONTINUED FROM PAGE 18

of personal data itself is wide-reaching, and legislation that keeps up with the ever-expanding term is crucial to meaningful consumer protection. There is also a category of “sensitive personal information,”8 including sexual, race, and gender identity, Social Security Number and password information, genetic and biometric data, online correspondence, and more. This data, in other words, is unique to the consumer’s identity, and is often deeply personal or private. The CCPA’s reintroduction of the consumer as an individual agent with tangible control over their data is crucial when the consumer’s identity is intertwined with the data. Indeed, understanding how consumer data is being used is an important first step for consumers to gain awareness and agency over their information. Consumers also have the right to delete their personal data. This provides a tangential pathway for consumers to directly hold companies accountable, building on the right to access. Consumers now also have the right to direct a business to stop its sale of their personal data. This is another avenue through which consumers can now exert direct control over the sale of their information. This clause treats data as functionally the property of the consumer, and thus something the consumer has agency in the sale of. This framework was not broadly applied to data sales prior to the CCPA, and has forced companies to adjust accordingly. There has been a growing movement among tech policy advocates for policy that treats data as the property9 of the consumer. Property

8 “Definition of Personal Data.”, DLA. 9 Gesser, Avi, and Michelle Adler. “Should Protection of Personal Data Be Regulated Using a Property Model, Rather Than a Privacy Model? Probably Not.” Program on Corporate Compliance and

rights, in the American legal context, have provided a more robust foundation for protections and accountability on the individual front as opposed to privacy rights.

Pivoting to a property-based approach to data protection better centers the consumer. The CCPA is the most recent policy that maps onto the property model the closest. The direct avenues of action it affords consumers effectively render data their property; they have the right to action over it. Ultimately, the CCPA has successfully redefined privacy rights in the Big Tech landscape, benefiting consumers by granting them meaningful control over the sale of their personal information. Several lawsuits applying the CCPA’s multiple facets make this evident. Barnes v. Hanna Andersson and Salesforce10 was born from a data breach that occurred on Salesforce’s Commerce Cloud platform, a platform meant to serve as a one-stop shop for business needs. Hanna Andersson, a children’s clothing store operating through Commerce Cloud, suffered the extraction of payment information and personal data when the platform was hacked. The plaintiff cited the CCPA’s requirement of businesses to maintain security over personal information and data being held as grounds for the case. The case became one of the first after the passing of the CCPA to apply its private right to action, where consumers can hold businesses accountable for their failure to “implement reasonable security measures.”11

Enforcement at NYU School of Law. Last modified 2019.

10 Bernadette Barnes v. Hanna Andersson, LLC. and Salesforce, LLC. (2020). https://www.classaction.org/media/ barnes-v-hanna-andersson-llc-et-al.pdf/.

11 Ridgway, William, Meg Grismer, Dana Holmstrand, John King, and Lisa Zivkov-

It proves to be a key way in which consumers now have broader and more concrete authority over their data. Another lawsuit proving the efficacy of the CCPA is that of Ajay Kirpekar v. Zoom Video Communications Inc. 12 The plaintiff noticed the rollover of their device and other data from Zoom to their social networking sites, such as Facebook, even though they had not yet created a Facebook account. It was argued that this was in violation of the CCPA’s private right to action clause, requiring businesses to maintain security measures, as well as consumers’ rights to stop the sale of their data to third parties. This lawsuit demonstrated that the CCPA provides sufficient legal grounds for consumers to protect themselves from similar data sales occurring without their consent, thereby imposing stricter regulations on business data practices and also granting consumers greater agency.

In the seven years since its passage, the CCPA has redefined the privacy rights and consumer protections landscape of California and the broader nation. It has provided consumers with direct means of advocating for themselves and has held corporations accountable in ways not previously possible. Its numerous applications, including those above, show its necessity and significance as we usher in an age of ever-expanding data collection and usage.

ic. “District Court Rulings Could Signal Expansion of California Consumer Privacy Right of Action.” Skadden. Last modified 2025.

12 Ajay Kirpekar v. Zoom Video Communications (2020). https://www.classaction.org/media/kirpekar-v-zoom-video-communications-inc.pdf/.

PROMISE OR PRETENSE: THE CCPA’S STRUGGLES WITH LOW. . .

CONTINUED FROM PAGE 19

IAB initially claimed that certain data-sharing arrangements, especially for targeted advertising, did not constitute a “sale” under the CCPA if no monetary exchange occurred.3 Their compliance frameworks argued that passing personal data to third-party advertising partners could be categorized as mere “sharing,” exempting it from opt-out requirements.

In addition, to preserve behavioral tracking capabilities under the CCPA restrictions, tech giants like Facebook (Meta) and Google introduced features that contractually reclassified them as “service providers” rather than “businesses” selling data. In 2020, Facebook launched its Limited Data Use (LDU) setting, which limits how Facebook can use Pixel data, restricting it to services provided to the business client, not Facebook itself.4 Similarly, Google’s Restricted Data Processing (RDP) mode narrows its use of personal data to essential functions like ad delivery and fraud detection.5 These tools allow both companies and their partners to continue data collection practices without

3 Californians for Consumer Privacy, Comments on IAB’s Proposed CCPA Framework. https://www.caprivacy.org/ californians-for-consumer-privacy-comments-on-iabs-proposed-ccpa-framework/

4 Molla, Rani. “Facebook is gearing up for a battle with California’s new data privacy law.” Vox. December 17, 2019. https://www.vox.com/recode/2019/12/17/21024366/facebookccpa-pixel-web-tracker/.

5 Hunton Andrews Kurth LLP.

“Google Updates Privacy Terms.” https://www.hunton.com/privacy-and-information-security-law/ google-updates-privacy-terms-to-shiftaway-from-offering-some-services-as-aservice-provider-under-the-ccpa /.

offering opt-out mechanisms, preserving the core functionality of cross-site tracking. While technically compliant with CCPA, it could be argued that such measures weaken the law’s spirit by exploiting definitional loopholes and preserving the infrastructure of cross-site tracking.

Compounding these issues is the sluggish pace and symbolic quality of the CCPA’s current enforcement. The first significant enforcement action under the CCPA, a settlement involving Sephora, occurred two years after violations began. Sephora was fined $1.2 million for failing to disclose its data-selling practices and for ignoring opt-out signals such as the Global Privacy Control.6 While the settlement sent an important signal, the penalty was modest compared to fines under the GDPR and likely insufficient to deter larger companies in the U.S.7 The delay and limited scope of enforcement thus speak to CCPA’s weaknesses in systematic design and deterrence power.

Finally, emerging technologies, particularly generative artificial intelligence (AI), further challenge the CCPA’s efficacy in implementation. These models are trained on massive datasets scraped from the internet, often including sensitive personal data embedded in ways that cannot

6 Office of the Attorney General. “Attorney General Bonta Announces Settlement with Sephora.” August 24, 2022. https://oag.ca.gov/news/press-releases/ attorney-general-bonta-announces-settlement-sephora-part-ongoing-enforcement/.

7 Data Privacy Manager. “20 Biggest GDPR Fines So Far [2025].” https:// dataprivacymanager.net/5-biggest-gdprfines-so-far-2020/.

be easily removed.8 In 2023, a class-action lawsuit, Doe v. GitHub, was filed against GitHub, Microsoft, and OpenAI. The plaintiffs alleged that the companies used copyrighted content without consent to train AI tools like Copilot and Codex.9 Although the current primary claims on it concern intellectual property, the case also raises serious questions about the limits of data control and deletion rights under the CCPA. Once personal data is absorbed into an AI model, it becomes nearly impossible to trace or erase, which directly undermines the rights of deletion and transparency governed by CCPA.

Certainly, the CCPA represents a critical milestone in U.S. data privacy regulation. Its ability to deliver on that promise, however, remains constrained by persistent issues—including low consumer engagement, corporate exploitation of legal loopholes, insufficient enforcement, and the massive yet irreversible AI training phases. Whether the law can rise to meet these challenges remains uncertain, but with continued reform efforts and growing public awareness, there is still hope CCPA will grow into the meaningful safeguard it was originally intended to be.

8 “OpenAI Accused of Privacy Breaches in Massive Lawsuit.” https://promptengineering.org/openai-accused-of-privacy-breaches-in-massive-lawsuit-2/. 9 Doe v. GitHub, Inc., Case No. 22-cv06823-JST, United States District Court, N.D. California. https://cases.justia.com/ federal/district-courts/california/candce/4:2022cv06823/403220/195/0. pdf?ts=1706027438/.

Free Speech Coalition v. Paxton

TEXAS’ ATTEMPT TO AGE-VERIFY

by SARA MUNSHI STAFF WRITER

“Disgust is not a valid basis for restricting expression.”

These words from Justice Scalia, in Brown v. Entertainment Merchants Ass’n,1 reverberate today as the Supreme Court of the United States (SCOTUS) reviews Free Speech Coalition Inc. v. Paxton. This case navigates the boundaries of free speech, privacy, and state power in a digital age. The point of contention in this case is Texas House Bill 1181 (H.B. 1181), a statute requiring websites with “sexual material harmful to minors” to verify user ages before granting access.2 At face value, the law frames itself as one of safeguarding and righteous intent regarding the protection of children. Yet, both logic and precedent show the law’s overreach. It is wanton in its disregard of adult expression, use of surveillance, and it attempts to rewrite decades of First Amendment jurisprudence. H.B. 1181 is an unconstitutional regulation cloaked in paternalism.

Let us first begin with the contested notion of obscenity and what it entails. Obscenity is defined as offensive material, as evaluated by federal and state courts using a three-part test (est. Miller v. California). To fail the test elicits a lack of protection under the First Amendment. The criteria

1 Justia Law. (2025). Brown, et al. v. Entertainment Merchants Assn. et al., 564 U.S. 786 (2011). https://supreme.justia. com/cases/federal/us/564/786/.

2 Golde, K. (2024). Free Speech Coalition, Inc. v. Paxton. SCOTUSblog. https:// www.scotusblog.com/cases/case-files/ free-speech-coalition-inc-v-paxton/.

THE FIRST AMENDMENT

follows three points. First is prurient appeal: whether the average person sees the material as having excessive sexual interest based on community standards. Second is a patently offensive quality: whether material depicts or describes sexual conduct in a clearly offensive way as defined by applicable state law. Third is serious value: whether the work in its entirety “lacks serious literary, artistic, political, or scientific value.”3 Arguably, this is a faulty foundation. While it may be true that overtly offensive materials not only lack benefit and can cause mental and emotional harm, the issue with Texas’ defense of H.B 1181 is that it hinges on more than just obscenity: it instead justifies regulation for broader sexually explicit, non-obscene material so long as minors are involved.

In applying Miller, Texas’ regulation must fail these three standards. First is prurient interest, which must be judged by community standards; yet, what constitutes “communities” is far from clear. Texas assumes a single, statewide moral consensus, but SCOTUS consistently recognises that such standards vary, especially acknowledging Texas’ large size and diverse attitudes. In fact, in Jenkins v. Georgia, the Court reversed a conviction for showing the film Carnal Knowledge.4 The local censorship board in Albany, Georgia banned it under outright “lewdness” under the 1973 SCOTUS obscenity ruling.5 The reversal then

3 LII / Legal Information Institute. (2023). Obscenity. https://www.law. cornell.edu/wex/obscenity/.

4 Justia Law. (2025). Jenkins v. Georgia, 418 U.S. 153 (1974). https://supreme. justia.com/cases/federal/us/418/153/. 5 Cinemaretro.com. (2022). ‘CARNAL

stood on the basis that, despite explicit content, not all portrayal of nudity or sexual activity appeal to prurient interest. Here, Texas offers no evidence that the average Texan—much less the average American—would view the regulated materials in this case as appealing to shameful or morbid interest. We cannot just “know it when we see it.” Without such evidence, there is no basis for finding prurience. Second, is that there is no clear offensive quality in the umbrella of content Texas targets as defined by law. Texas law must narrowly and specifically define what is “patently offensive” as in Miller. In Smith v. United States, SCOTUS emphasized such “patent offensiveness” must be determined by applying precise definitions, not vague or moralistic standards.6 Yet, the statute at hand criminalizes broad categories of sexual material without clear statutory guidance, including works of art, sexual health education, LGBTQ+ discussions, and other protected speech. Hence, it becomes clear Texas’ generalized moral objections do not satisfy the constitutional requirement for specificity. Lastly (3), even material with sexually explicit content enjoy First Amendment protection if it possesses any serious value. Via Pope v. Illinois, value is assessed by an objective, reasonable personal standard, not local community standards.7 Value is

CONTINUED ON PAGE 24

KNOWLEDGE’ REVISITED - Cinema Retro https://cinemaretro.com/index.php?/archives/11895-CARNAL-KNOWLEDGE-REVISITED.html/.

6 SUPREME COURT OF THE UNITED STATES. https://www.supremecourt. gov/opinions/22pdf/21-1576_e29g.pdf/. 7 Justia Law. (2025). Pope v. Illinois, 481 U.S. 497 (1987). https://supreme.justia.

OBSCENITY: APPLYING A MORE RIGOROUS STANDARD

by JACK BOURDEAUX STAFF WRITER

Obscenity has always been a tricky topic for the judiciary, especially when it comes to adjudicating pornography cases, and a case before the Supreme Court of the United States (SCOTUS) this term has the potential to shift the standard for what states are allowed to regulate. At issue in the case, Free Speech Coalition, Inc. v. Paxton, is a Texas law that would require pornographic websites to verify the ages of their users and prevent minors from accessing their content.1 The law, known as House Bill 1181, was supposed to go into effect on September 1, 2023, but a pre-enforcement challenge was brought by the Free Speech Coalition, a sex industry trade association. They claim that the law would infringe on the First Amendment rights to consume pornography by placing an undue burden on protected speech.

Central to this case is the legal definition of obscenity. SCOTUS held in Miller v. California, 413 U.S. 15 (1973), “that obscene material is unprotected by the First Amendment,” but that at the same time, “state statutes designed to regulate obscene materials must be carefully limited” because of “the inherent dangers of… regulat[ing] any form of expression.”2 SCOTUS developed a three-pronged test by which to identify obscenity, holding that “a state offense must…

1 Texas Statutes, Civil Practice and Remedies Code, Title 6: Miscellaneous Provisions, Chapter 129B: Liability for Allowing Minors to Access Pornographic Material. https://statutes.capitol.texas. gov/Docs/CP/htm/CP.129B.htm.

2 Miller v. California, 413 U.S. 15, 23-24 (1973); from the majority opinion by Burger, C. J. (Internal citations omitted.).

be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.”3 In relation to the first prong, SCOTUS held that the basic guideline must be “whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.”4 This means that what speech counts as obscene depends at least in part on the audience. Some pornography could be considered not obscene for adults and would therefore constitute protected speech. That same media might still be obscene for minors because the “contemporary community standards” for minors are different, and render different things obscene.

This line between what is obscene for minors and not obscene for adults has come up in SCOTUS jurisprudence before. SCOTUS ruled in Ginsberg v. New York5 that New York could criminalize the physical sale of pornography to minors; because the content was obscene to minors, it was not protected by the First Amendment, and thus, only the rational basis test was required in evaluating the constitutionality of the law. The state therefore only needed to show that the statute served a legitimate state interest, and that there was a rational connection between that state interest and the statute.

In every case since Ginsberg, however, SCOTUS has used strict scrutiny when evaluating the regula-

3 Id. 24.

4 Id. 24. (Internal quotations omitted.)

5 Ginsberg v. New York, 390 U.S. 629 (1968).

tion of pornography. The reasoning has been that because these laws place a burden on adults’ right to non-obscene sexual content, and because that content constitutes protected speech, the standard for regulation is much higher. The state must show that the law furthers a compelling state interest, and they must demonstrate both that the law is narrowly tailored to serve that interest and that the law uses the least restrictive means to further that interest. At the same time, SCOTUS has never overruled Ginsberg. As far as SCOTUS is concerned, these precedents coexist, despite the fact that they are seemingly contradictory: if a ban on pornography only affects minors, then the rational basis test is used, but if that ban on pornography burdens adults, strict scrutiny is triggered. Given that it’s hard to fathom a restriction that affects only children while placing no burden whatsoever on adults, it seems as if Ginsberg has already been de facto overruled.

If Free Speech Coalition v. Paxton is decided using the rational basis test, it is very unlikely the law will be upheld. If it is decided using strict scrutiny, there’s a good chance it will be struck down. That is to say, if SCOTUS decides that this case is more like Ginsberg, the law will almost definitely stand; if SCOTUS decides that this case is more like those that came after Ginsberg, it most likely will not.

If Ginsberg had been overruled, this would be a relatively easy decision. That being said, Ginsberg is still solid precedent, and there are important differences between it and the subsequent cases that could prove the difference here: first and foremost, the law at issue in Ginsberg was, in effect, a law that mandated carding. Although

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TEXAS’ ATTEMPT TO AGE-VERIFY THE FIRST AMENDMENT

CONTINUED FROM PAGE 22

up to the viewer. What is useless to one may hold deep insight for another. Any materials interacting with sexuality, relationships, gender identity, and similar topics can not, in good faith, be claimed to lack literary or political value. Texas would push for the ban of everything considered offensive from adult erotic podcasts, to sexual health resources, to non-pornographic nude art.8 These are not fringe materials; they are constitutionally protected speech. Texas cannot prove this prong within their definition. As such, any regulation that burdens access to them triggers strict scrutiny (established in Reno v. ACLU,9 Sable Communications v. FCC, 10 Ashcroft v. ACLU).11 Further, Texas urges SCOTUS to apply rational basis review, but this misstates both law and logic. When regulating content based on subject matter—especially when said content is otherwise lawful for adults—it must meet the most rigorous scrutiny. Texas’ attempt to reclassify H.B. 1181 under the permissive umbrella of rational basis is not just unprecedented, it is constitutionally suspect.

A central pillar of Texas’ argument is Ginsberg v. New York, but Ginsberg as a justification cannot bear the weight Texas places upon it. The com/cases/federal/us/481/497/. 8 CNN. (2025). CNN.com - Texas mom faces trial for selling sex toys - Feb. 11, 2004. https://edition.cnn.com/2004/ LAW/02/11/obscenity.trial.reut/. 9 Justia Law. (2025). Reno v. ACLU, 521 U.S. 844 (1997). https://supreme.justia. com/cases/federal/us/521/844/.

10 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA. (n.d.). https:// tile.loc.gov/storage-services/service/ ll/usrep/usrep492/usrep492115/usrep492115.pdf/.

11 Cornell University. (2025). ASHCROFT V. AMERICAN CIVIL LIBERTIES UNION. https://www.law.cornell.edu/ supct/html/03-218.ZS.html/.

Ginsberg case was narrow, criminalizing in person sales of magazines to minors.12 It did not require sellers to maintain databases, log IDs, or facilitate age-gated infrastructure. These are all modern issues the internet has birthed and cannot be applied to with the same logic. Showing someone physical ID cannot be compared to systematic surveillance of readers (and the subsequent burden on adult access). H.B. 1181 requires the upload of ID credentials or interface with third-party verification tools. This is a deep privacy concern. While the state claims data won’t be stored, there is no statutory guarantee.13 How is this anything but a blueprint for online registration of adult viewing habits?

In Americans for Prosperity Foundation v. Bonta, SCOTUS held that compelled disclosure - even if nominally secure - suppresses speech.14 So too here. Adults seeking lawful intimacy, education, or exploration online may simply walk away rather than risk exposure. No eyes follow you when you submit an ID to a real person, but when online databases emerge, it is natural to prefer to avoid the topic altogether. It’s akin to being asked to shout one’s private curiosities into a canyon, without knowing who might hear the echo tomorrow. It becomes potential liability and

12 Justia Law. (2025). Ginsberg v. New York, 390 U.S. 629 (1968). https:// supreme.justia.com/cases/federal/ us/390/629/.

13 EPIC - Electronic Privacy Information Center. (2025). https://epic.org/in-freespeech-coalition-v-paxton-the-supremecourt-should-preserve-legislatures-power-to-protect-kids-online/.

14 SUPREME COURT OF THE UNITED STATES Syllabus AMERICANS FOR PROSPERITY FOUNDATION v. BONTA, ATTORNEY GENERAL OF CALIFORNIA. (2020). https://www.supremecourt.gov/opinions/20pdf/19-251_p86b.pdf/.

arguably not worth the risk. This is constitutional injury in itself. Further, there is a gaping loophole: H.B. 1181 doesn’t prohibit selling this data. Even if sites delete user info after access, the third-party verifiers can, albeit in theory, monetize it. In our age of data breaches and hacks, privacy concern is merited and reasonable.

From a regulatory standpoint, H.B. 1181 is also ineffective. Studies show half of teens (47%) use VPNs, which bypass regional restrictions with ease and quick speed.15 Others borrow parents’ IDs. Not to mention, foreign websites, torrent forums, and decentralised platforms fall outside Texas’ jurisdiction altogether. The law does not and can not do anything to stop actual access. Texas’ assertion only burdens and surveils it. It is also questioned why the government needs to step in at all: it is up to the parent, not the state, to ensure their child views appropriate content. A potential solution may be the promotion of content filtering technology (at the device or ISP level) as SCOTUS endorsed in Ashcroft. This relocates control to the parents without forcing adults to surrender their privacy and personal expression. Yet, Texas has made no effort to pursue less restrictive means, a requirement under strict scrutiny.

So, how does it fail strict scrutiny? H.B. 1181 is both overinclusive and underinclusive. First, it reigns over-inclusivity since it targets entire websites even if a mere one-third of material is harmful to minors. Verbatim, “a commercial entity that knowingly and intentionally publishes or

15 bio, S. full (2025). CNET Survey. That Number Could Rise. Here’s Why. CNET https://www.cnet.com/tech/services-and-software/vpn-survey-2025/ [Accessed 1 May 2025].

“This is not just a fight over porn. The First Amendment’s promise is not reserved for only the comfortable or the polite. It protects the provocative, the unsettling, and even the sexual, so long as it carries meaning, message, or value. . .”

distributes material on an Internet website… more than one-third of which is sexual material harmful to minors, shall use reasonable age verification methods.”16 This then includes the censorship of adult wellness blogs, art archives, podcast platforms, and even digital libraries, even though most of the content is not remotely pornographic. Why would one burn down an entire bookstore just because a single shelf holds words deemed age-inappropriate? It is ridiculous that, in painting with a roller where a fine brush is needed, protected speech is sweeped in a dragnet. For material not even targeted in this case, adults still must verify identity and expose sensitive information. Then, the underinclusive component is evident in the exemption of search engines and social media; the two primary means minors actually encounter explicit

16 Texas Legislature Online (2023). 88(R) HB 1181 - House Committee Report version - Bill Text. https://capitol. texas.gov/tlodocs/88R/billtext/html/ HB01181H.htm/.

content. TikTok itself has a “startling amount of sexual content” which is “too easy [for children] to access.”17 If Texas were genuinely concerned with minors’ access, these are the apps we should target to regulate. Thus, the exemption exposes the law’s viewpoint discrimination. It targets adult content creators, not content access points. Multitudes of material are just as accessible to minors but slip through untouched. This law is not narrowly tailored, nor effective, and not even evenly applied. It is not merely bad policy, but unconstitutional to its core.

This is not just a fight over porn. The First Amendment’s promise is not reserved for only the comfortable or the polite. It protects the provocative, the unsettling, and even

17 PETROVIC, S. (2023). TikTok has a startling amount of sexual content – and it’s way too easy for children to access. https://findanexpert.unimelb.edu.au/ news/72158-tiktok-has-a-startlingamount-of-sexual-content-%E2%80%93and-it%27s-way-too-easy-for-children-toaccess/.

the sexual, so long as it carries meaning, message, or value—and this material does. We must not allow the government to use child safety as a Trojan horse to surveil and suppress adult expression. Ginsberg—a case about magazine sales in the 1960s—cannot, in good faith, be repurposed to justify sweeping digital ID regimes. It is clear Texas asks the law to let moral panic, not jurisprudence, govern speech. Yet, the Constitution demands more: proof, precision, and a respect for liberty at the very least. If H.B. 1181 upholds, it regresses free speech, but not only that: it sets up an infrastructure for constitutional regression under the alias of digital concern.

OBSCENITY: APPLYING A MORE RIGOROUS STANDARD

CONTINUED FROM PAGE 23

it has been adapted for the digital age, the law at issue in Free Speech Coalition is very similar. Neither law amounts to a blanket ban on pornography. On the contrary, the cases after Ginsberg were generally over laws that constituted blanket bans. As it says in the merits brief for the respondent, “these cases…are inapposite [to Ginsberg and Free Speech Coalition] because each involved a law that banned protected speech for all listeners.”6 In Sable Communications of California v. FCC, 492 US 115 (1989), for example, the case was over a ban on all indecent and obscene commercial phone messages.7 Similarly, in Reno v. ACLU, 521 US 844 (1997), the case concerned a 1996 law that criminalized all obscene or indecent transmissions over the internet,8 and in United States v. Playboy Entertainment Group, 529 US 803 (2000), the case concerned a daytime ban on all “sexually-oriented” TV channels.9 The only case that is remotely similar is Ashcroft v. ACLU, 542 US 656 (2004), which concerned a law that required websites to prevent children from accessing pornography.10 In that case, however, it was

6 Brief for Respondents at 25, Free Speech Coalition v. Paxton, (2025).

7 Sable Communications of California v. Federal Communications Commission. Oyez, www.oyez.org/cases/1988/88-515/.

8 Reno v. ACLU. Oyez, www.oyez.org/ cases/1996/96-511/.

9 United States v. Playboy Entertainment Group, Inc. Oyez, www.oyez.org/cases/1999/98-1682/.

10 Ashcroft v. American Civil Liberties Union. Oyez, www.oyez.org/cases/2003/03-218/.

ruled that the age verification software was so rudimentary, and the burden on adult speech was so great that it necessitated review under strict scrutiny. The kind of burden posed in all of these other cases—Sable, Reno, Playboy, and even Ashcroft—obviously trigger strict scrutiny, but the burden on adults’ protected speech in Free Speech Coalition only calls for the rational basis test. It is effectively so similar to Ginsberg, that to call for

“The Texas law at the center of this case may separately be a bad law. There may be a world in which Free Speech rights are absolute, and in that world, H.B. 1181 would be unconstitutional. That is not this world”

strict scrutiny would fly directly in the face of the precedent set by Ginsberg There are those who think Ginsberg should be overturned, of course—Justice William Douglas wrote in his dissent in Ginsberg that while “it is one thing for parents and the religious organizations to be active and involved [in the regulation of pornography]. It is quite a different matter for the state to become implicated as a censor.”11

11 Ginsberg v. New York, 390 U.S. 629, 655 (1968), Douglas, J., dissenting.

He goes on to say in that same dissent that in order for the state to act as a censor in the way that its obscenity jurisprudence would require it to, a constitutional amendment would be required.12 That said, not even the Free Speech Coalition—a porn industry trade organization—advances this argument. In fact, they concede the point, and their entire argument is based on the assumption that obscenity counts as unprotected speech.

The Texas law at the center of this case may separately be a bad law. There may be a world in which Free Speech rights are absolute, and in that world, H.B. 1181 would be unconstitutional. That world is not this world, though, and so, H.B. 1181 is constitutional. Unless the Court overrules Ginsberg, something that neither party has asked it to do, that case provides the controlling precedent. Free Speech Coalition is importantly different from Sable, Reno, and Playboy, and the world in which Ashcroft was decided is importantly different from the world we live in now. The rational basis test applies, and there is no contest either that H.B. 1181 serves a legitimate state interest or that there is a rational connection between the state interest and the law. The law is thus constitutional.

12 Id.

Can AI Systems Claim Patent Rights?

AI PATENT RIGHTS: A PROMPT FOR PLAIGARISM AND MONOPOLY

by JOLIN LIU STAFF WRITER

Recentlegal precedents, including Thaler v. Vidal, reaffirm that only natural persons can be credited as inventors under current U.S. patent law.1 The U.S. Patent and Trademark Office (USPTO) has consistently upheld this principle, maintaining that AI-generated content does not meet the legal criteria for inventorship.2 This essay argues that this legal framework should remain in place, as allowing AI-generated inventions to be patented would introduce substantial challenges related to intellectual property infringement, the erosion of human creativity, and accountability in ownership.

Unavoidable Intellectual Property Infringement and Plagiarism

AI models are trained on vast datasets composed of pre-existing works, making their outputs inherently derivative, especially of human-created materials. Even if AI is deliberately instructed not to copy content, it inadvertently replicates and pieces together fragmented ideas from here and there, thus reflecting patterns found in its training data and leading to inadvertent plagiarism. Identifying

1 Thaler v. Vidal, 43 F.4th 1207, 1210 (Fed. Cir. 2022).

2 de Rassenfosse, Gaétan and Jaffe, Adam B. and Wasserman, Melissa F., “AI-Generated Inventions: Implications for the Patent System.” Southern California Law Review, Forthcoming, U of Texas Law, Legal Studies Research Paper, Available at SSRN: https://ssrn.com/ abstract=4434054 or http://dx.doi. org/10.2139/ssrn.4434054/.

prior art is a critical component of patent examination, but AI systems function as opaque “black boxes,” making it difficult to trace the origins of their outputs. Unlike human inventors, who can cite sources of inspiration and articulate their creative process, AI lacks transparency in how it generates inventions. This is inherently different from human painting from brush, as although humans create AI, we can’t know its inner workings to the level of determining precisely how it produces its output. This opacity complicates the task of patent examiners, who are given the impossible task of reverse-engineering the result of AI generation to determine whether an AI-generated invention is truly novel or merely a trivial recombination of existing knowledge. Without a clear mechanism to assess prior art, the integrity of the patent system is at risk, potentially allowing monopolization of ideas that should remain in other’s rights or the public domain.3

Losing the Human Creativity That Patents Aim to Protect

Patents exist to encourage human ingenuity by rewarding inventors for creating novel and nonobvious solutions to problems. AI-generated inventions challenge this foundational principle because AI operates through statistical modeling and pattern recognition to generate content. While an

3 Abbott, Ryan Benjamin and Rothman, Elizabeth, “Disrupting Creativity: Copyright Law in the Age of Generative Artificial Intelligence.” Fla. L. Rev. Vol. 75, Issue 6, (August 8, 2022). Available at SSRN: https://ssrn.com/abstract=4185327 or http://dx.doi.org/10.2139/ ssrn.4185327/.

AI system may generate an invention that meets patent requirements, its lack of original thought contradicts the fundamental purpose of patent law: to protect and incentivize human contributions to innovation with a temporary monopoly. Legal precedent supports this notion. In Pannu v. Iolab Corp., the court established that an inventor must make a significant intellectual contribution to an invention’s conception.4 Granting patents to AI-generated inventions would erode this principle, reducing patents to mechanical rewards rather than incentives for human creativity. Additionally, if AI can generate patentable inventions without human ingenuity, individual inventors may lose motivation, knowing they must compete against AI-driven invention mills.5 Additionally, enforcing this standard presents an additional implementation challenge. Current detection tools for AI-generated content are inadequate, making it difficult to determine whether an invention incorporates an AI system.6 There is no consensus on whether AI is used in

CONTINUED ON PAGE 24

4 Pannu v. Iolab Corp. 155 F.3d 1344 5 de Rassenfosse, Gaétan and Jaffe, Adam B. and Wasserman, Melissa F. “AI-Generated Inventions: Implications for the Patent System.” Southern California Law Review, Forthcoming, U of Texas Law, Legal Studies Research Paper, Available at SSRN: https://ssrn.com/ abstract=4434054 or http://dx.doi. org/10.2139/ssrn.4434054/.

6 Weber-Wulff, Debora., Anohina-Naumeca, Alla., Bjelobaba, Sonja, Foltýnek, Tomáš., Guerrero-Dib, Jean, Popoola, Olumide, Šigut, Petr, & Waddington, Lorna. “Testing of detection tools for AI-generated text.” International Journal for Educational Integrity, 19(1), 2023. Page 2.

MORE THAN A MACHINE: HOW HUMANS PLAY A ROLE IN INVENTIONS

by DEVON JIANG STAFF WRITER

Whenthe U.S. Patent and Trademark Office rejected two applications from Stephen Thaler, which both named an Artificial Intelligence (AI) system as the sole inventor, he challenged it in court. The Federal Circuit unanimously agreed with the government, stating that an inventor must be of “natural persons” under 35 U.S.C. 100(f).1 Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022). Since then, generative AI models have entered the mainstream, democratizing the ability of users and businesses to create inventions. Although the Federal Circuit rejected his reasoning, Thaler raises a valid claim: AI-generated work should belong in intellectual property law. Behind every AI-generated work is an individual who uses the AI model. Furthermore, an individual filing a patent from AI-generated inventions complies with Title 35 of the U.S. Code, which determines patentability.

While an AI model is not a natural person, a natural person must control it for the model to produce an end product. That person who inputs instructions to the AI model satisfies inventorship requirements.2 In Pannu v. Iolab Corp., 3 the Federal Circuit required an inventor to “(1) contribute in some significant manner to the conception,”4 “(2) make a contribution to the claimed invention that is not insignificant in quality,”5 and “(3) do more than merely explain to the real inven-

1 See Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir 20.22)

2 35 U.S.C. § 115

3 155 F.3d 1344 (Fed. Cir. 1998)

4 Id.

5 Id.

tors well-known concepts.”6 A human inputter who satisfies the third prong also satisfies the former two because AI models rely on instructions. GPT4, the most widely used generative AI model, generates responses based on the probability of its response making sense based on its trained data.7, 8 It cannot think of something new independently because it does not possess the capacity for creativity like a human does. Even though generative AI can combine existing data, it needs the human ability to think unpredictably. If an input only defines “well-known concepts,”9 the model simply presents the trained data about those concepts. Thus, human input is paramount for a generative model to produce the final invention. While the individual is not making the product, the Federal Circuit established that making “a contribution to the claimed invention” can occur through describing a conception.10 Because an invention can not happen without human input of an idea, that input alone can make a significant contribution. The jurisdiction of inventorship, hence, falls on the person using the AI model. Like a paintbrush, the AI model serves as

6 Id.

7 See Lingjiao Chen et al., How Is ChatGPT’s Behavior Changing Over Time? HARV. DATA SCI. REV. (Mar. 12, 2024), https://hdsr.mitpress.mit.edu/pub/y95z itmz/release/2#:~:text=GPT%2D4%20 and%20GPT%2D3.5%20are%20the%20 two%20most%20widely,for%20trustworthy%20and%20reliable%20applications/.

8 In GPT-4, the large language model generates text by predicting the most statistically probable next word based on the prompt. OpenAI (2023), GPT-4 Technical Report, ARXIV (May 15, 2023), https:// arxiv.org/abs/2303.08774/.

9 See 155 F.3d 1344 (Fed. Cir. 1998), supra note 3.

10 Blue Gentian, LLC v. Tristar Prods., Inc., 70 F.4th 1351 (Fed. Cir. 2023)

the tool that turns the creativity of the person into reality. Opponents of patenting AI-generated work argue that AI algorithms are not patentable because they cannot determine if AI responses are novel.11 If AI only knows existing data, “the claimed invention as a whole would have been obvious” against the prior art.12 However, novelty is not always an invention that is created from entirely new concepts. The Supreme Court applied originality to the outcome of the work rather than its contents, stating that “[Section 103] refers to the difference between the subject matter sought to be patented and the prior art.”13 An AI model, therefore, can combine existing art to create new art if the area of innovation is different. In Graham v. John Deere Co., the Supreme Court created a framework for Section 103, which includes determining (1) the scope of the prior art, (2) the differences between the prior art and the claimed invention, and (3) whether an ordinary person in the relevant field could innately recreate the invention.14 AI-generated work can meet that level by aggregating existing data in a new combination. For instance, an AI model could present several existing words to the user to generate a sentence. Under the direction of the individual, the AI model can rearrange the words such that the result creates a sentence with a new meaning. The U.S. Patent and Trademark Office may reject a claim if an

CONTINUED ON PAGE 26

11 See 35 U.S.C. § 102 (“A person shall be entitled to a patent unless— (1) the claimed invention was … in public use, on sale, or otherwise available to the public”)

12 35 U.S.C. § 103

13 Graham v. John Deere Co., 383 U.S. 1 (1966)

14 Id. At 17.

AI PATENT RIGHTS: A PROMPT FOR PLAGIARISM AND MONOPOLY

the invention process, let alone the extent of its contribution. As a result, assessing whether humans have made substantial contributions is largely self-reported rather than determined by a clear, objective standard.

Shifting Inventorship Disrupts Accountability in Ownership and Enforcement

If an AI system produces an infringing invention, who is liable? Would companies developing AI models be accountable, or would end users who prompt the AI be responsible? These unresolved legal ambiguities make AI-generated patents impractical under existing legal frameworks.7 Patent law is built on the premise that inventors can be held responsible for their work. Allowing AI to be named as an inventor would require a fundamental restructuring of liability, enforcement, and ownership laws, introducing complexities that could lead to widespread litigation and regulatory

7 Schuster, W. Michael. “Artificial intelligence and Patent Ownership.” Wash. & Lee Law. Review, 2019.

uncertainty.

The Monopolization of Innovation by Large Tech Companies

AI development is already concentrated among a few major corporations with vast computational resources. If these companies can patent AI-generated inventions, they could further consolidate control over technological advancements, limiting opportunities for independent inventors and smaller firms. The ability to secure patents on AI-generated inventions would grant dominant firms exclusive rights to vast swaths of innovation, exacerbating the existing unequal playing field. Such monopolization contradicts the patent system’s goal of promoting broad-based innovation and fair competition.8

Until these challenges are structurally addressed through legislative reforms and technological advancements in AI detection, AI-generated inventions should remain

8 Burk, D. L. “AI patents and the self-assembling machine.” Minnesota Law. Review, 2020. Headnotes, 105, 301.

unpatentable. Unresolved issues surrounding ownership, accountability, and prior art detection create significant legal and practical uncertainties. Without clear guidelines to assess AI’s role in the inventive process and mechanisms to prevent monopolization by large corporations, allowing AI-generated patents would erode innovation’s accessibility and fairness. Upholding the current framework ensures that the patent system continues to serve its primary function—protecting and incentivizing genuine human creativity while maintaining legal clarity and equitable competition in technological advancement.

MORE THAN A MACHINE: HOW HUMANS PLAY A ROLE IN INVENTIONS

CONTINUED FROM PAGE 23

ordinary skilled person could easily combine existing elements.15 However, the user would be responsible for creating an unexpected combination. The AI model can nonetheless still generate inventions by making nonobvious rearrangements. Although engineers train AI models on existing information, AI-generated inventions

15 See KSR Int’l Co. v. Teleflex INC., 550 U.S. 398 (2007).

develop through a process similar to their human-centered counterparts— synthesizing and recombining existing systems. Intellectual property laws, at its heart, are about promoting innovation. With immense processing power and widespread distribution, AI models could upend this incentive. How can the government enforce intellectual property laws when AI is widely

accessible? Should patents require inventors to be more involved in AI-generated creations? Even though inventors can currently patent AI-generated inventions, innovation would benefit from increased legal clarity on the burgeoning application of AI.

OPINION

THE FIRST AMENDMENT DOES NOT TAKE SIDES, EVEN IF THE GOVERNMENT TRIES TO

by ISABEL ALIA ARIAS STAFF WRITER

“Conform—or we cut your funding…” That’s the Trump administration’s latest approach to campus politics at elite private universities. It’s both unconstitutional and dangerously destabilizing for our democratic society. The threats to withhold billions in federal funding from institutions like Columbia and Harvard are justified by the administration under antisemitic concerns, but they are coupled with ideological demands, such as requiring universities to restructure their Middle Eastern Studies departments and to reform admissions and hiring practices. These actions are not purely administrative measures, but rather calculated attempts to weaponize the federal purse against dissenting voices in higher education. The demands extend into academic programming, admissions policies, and campus protest protocols. These ultimatums ignore due process and constitutional precedent. The government’s disregard for due process is perhaps most disturbing as it shows a federal government willing to punish educational institutions for failing to conform to its political narrative. When academic freedom becomes conditional on political loyalty, we are no longer debating alternative viewpoints but facing a direct assault on one of the most fundamental liberties enshrined in the American democratic tradition. Trump is playing his cards, and it’s clear: he is willing to do whatever it takes to force academia into ideological compliance. This isn’t

just a culture war—it’s a First Amendment crisis.

Academic freedom in private institutions is not a new privilege but a constitutional principle deeply rooted in our legal history. During the Cold War, the federal government cracked down on ideologies it deemed “subversive,” notably Marxism. In that era, academic institutions became battlegrounds for the right to freedom of expression, and two landmark Supreme Court cases—Sweezy v. New Hampshire (1957) and Keyishian v. Board of Regents (1967) cemented the legal protections universities enjoy under the First Amendment.

In Sweezy, the New Hampshire attorney general attempted to interrogate Paul Sweezy, a Marxist economist, about the content of a lecture he delivered at the University of New Hampshire, using the state’s Subversive Activities Act of 1951. When Sweezy refused, he was held in contempt. The Court ruled in Sweezy’s favor and held that the due process clause of the Fourteenth Amendment prohibits the state from interfering with intellectual inquiry without compelling justification. In a powerful concurring opinion, Justice Frankfurter warned against such government overreach, writing that a free society depends on “free universities,” and that this means “the exclusion of governmental intervention in the intellectual life of a university.”1

A decade later, in Keyishian, the Court expanded this protection by striking down vague, loyalty-based

1 Sweezy v. New Hampshire, 354 U.S. 234 (1957).

restrictions on academic employment. In his majority opinion, Justice Brennan famously wrote, “Safeguarding academic freedom. . . is a special concern of the First Amendment.”2 Laws or government actions that chill academic speech, especially those rooted in political ideology, must meet the strictest level of constitutional scrutiny. Sweezy and Keyishian establish that government efforts to control the intellectual direction of universities are not just objectionable but unconstitutional. We should hold our government accountable to the standard cemented in these decisions because without it, we risk losing the very foundation of a free society.

It is important to recognize that the political climate surrounding these mid-20th century Supreme Court decisions is similar to the one we face now. In many ways, today’s climate is more dangerous, as the motivations guiding the past court decisions like Sweezy are even more vague than before. These government actions are increasingly framed in politically charged language about “national security,” such as broad appeals to patriotism that can obscure the government’s true motivations. This kind of rhetoric often masks partisan or ideological goals, making it difficult to separate legitimate security concerns from politically motivated actions. This masks the government’s true intentions, which erodes public trust in the government.

CONTINUED ON PAGE 36

2 Keyishian v. Board of Regents, 385 U.S. 589 (1967).

DON’T THROW THE CONSUMER WELFARE STANDARD OUT! FIX IT!

by VINCENT LI STAFF WRITER

Since the 1980s, United States antitrust law has relied on the “consumer welfare standard” (CWS) to evaluate the competitive effects of business transactions: a transaction is anticompetitive if it could result in harm to consumers, such as a price increase or quantity decrease. The CWS is a departure from the Brandeisian approach in the olden days of antitrust after WWII, when courts’ common bête noire was any business “too big” or any industry “too consolidated.”1 However, during the past decade, a counterrevolution against the CWS emerged in response to the rise of Big Tech and industry consolidation. At the forefront of this movement are the “Neo-Brandeisians,” who advocate for a return to fighting “bigness” and criticize the CWS as a pathological legal standard that leads to underenforcement.

Despite a pervasive populist sentiment to dethrone the CWS as the guiding principle in antitrust,2 I argue that while a better version of the CWS is needed, no other standard is better in guiding the court to make consistent and economically sane decisions. Specifically, I will address two attacks on the CWS: (1) it leads to antitrust underenforcement because it only cares about price and quantity, and (2) it does not allow antitrust law to

1 Lambert, T. A., & Cooper, T. (2024). Neo-Brandeisianism’s Democracy Paradox. Regulation, Winter 2023–2024, 28–34.

2 Vaheesan, S. (2019). The Profound Nonsense of Consumer Welfare Antitrust. The Antitrust Bulletin, 64(4), 479–494. https://doi. org/10.1177/0003603X19875036/.

address problems that are not solely economic, such as political power of corporations and inequality.

Criticism of the CWS’s overemphasis on price and quantity comes from a misunderstanding of the CWS as only operationalizable in the following manner: a transaction is only anti-competitive if it could result in a price increase or quantity decrease. In other words, critics of the CWS cannot possibly imagine another dimension of welfare besides a short-run, transaction-specific price and output analysis. Mischaracterizing the CWS makes critics’ jobs easier as they can start pointing out any other measure of “welfare” not covered by this formulation: What about the monopsony power that results in a wage decrease? What about serial acquisition that only starts to affect price and output after multiple transactions?

Market conditions, economic theories, and jurisprudence develop at different rates, with jurisprudence typically lagging the most. Admittedly, the current application of the CWS is often limited to a price and quantity analysis due to the sticky influence of the archaic Chicago school of economics.3 However, other dimensions of “welfare” could easily fit into the core idea of the CWS, where “customers of commerce” more broadly defined become the beneficiaries of antitrust enforcement. Economists today (including those at the University of Chicago) have supplied new theories that better address contemporary antitrust challenges compared to the traditional Chicagoan theories from the 1970s: novel definitions of “cost”

3 Hovenkamp, H. J., & Scott Morton, F. (2020). Framing the Chicago School of Antitrust Analysis. All Faculty Scholarship. 2113.

to consumers in the context of search engines, models for price-fixing with algorithmic pricing, and more 4

Therefore, critics who claim that the CWS cannot keep up with the ever-changing economic conditions fail to recognize that what they demand ultimately amounts to reformulations of the same principle voiced by the CWS: antitrust should focus on providing people better and more stuff at lower costs! Instead of putting the CWS to rest, antitrust reform should involve urging the court to apply the CWS differently by replacing the “old school” economic theories with new tools.

In addition to economic criticisms of the CWS, some critics also advocate for an antitrust regime that permeates the civil, social, and political spheres. This group of “hipster” critics have unrealistic expectations about what antitrust can achieve in practice.5 Neo-Brandeisians propose extending antitrust to address non-economic problems such as democratic erosion and inequality, without defining a limit of antitrust reach. Antitrust as a “cure-all” prescription that extends beyond maintaining an efficient market results in a psychedelic vision of the court, where an omnipotent judge must magically balance the potential societal costs and benefits of a business transaction by (1) clearly defining what is “socially beneficial,” (2) looking into two future worlds where the transaction occurred or did not occur, and (3) picking a scenario that is “better.”

CONTINUED ON PAGE 37

4 Allensworth, R. H. (2025). Long-Term Consumer Welfare. Vanderbilt Law Research Paper No. 5133539.

5 Radic, L., & Petit, N. (2024). The Superiority of the Consumer Welfare Standard. EUI Working Paper LAW 2024/20.

BEAUTY AS A BATTLEGROUND: TRUMP EXECUTIVE ORDER WEAPONIZES FEDERAL ARCHITECTURE

by AUSTIN SAN JUAN STYLE MANAGER

Thenew executive order, “Promoting Beautiful Federal Civic Architecture”, carries a deceivingly benign title.1 Its seeming innocuousness is confounded by the order’s date: January 20, 2025, the very first day of Donald Trump’s second term. Why was it deemed a priority to state the obvious: that architecture ought to be beautiful? What importance does architecture carry for the goals of the new Trump administration? What aspect of previous precedent was inadequate to ensure the promotion of beautiful federal architecture?

In the 2025 executive order, the Trump administration directs the General Services Administration (GSA) to

1 The White House. “Promoting Beautiful Federal Civic Architecture,” January 21, 2025. https://www.whitehouse.gov/ presidential-actions/2025/01/promoting-beautiful-federal-civic-architecture/.

re-recognize a previous order from President Trump’s first administration, Executive Order 13967. The 2020 order was peculiar: it reads simultaneously as a polemic (this is not so unusual) and as a treatise on architecture. In particular, the object of the order’s polemic is “federal architecture [that] has become a discordant mixture of classical and modernist designs.”2 In terms of policy, the order commands the GSA, an executive agency entirely beholden to the president, to exclusively commission works of Neoclassical architecture, while also mandating that renovations to pre-existing buildings take a Neoclassical form. The intended result is to

2 The White House. “Executive Order on Promoting Beautiful Federal Civic Architecture,” December 21, 2020, The White House. https://trumpwhitehouse. archives.gov/presidential-actions/executive-order-promoting-beautiful-federal-civic-architecture/.

require federal buildings be designed in the Greek-inspired style used by the Founding Fathers in their initial plans for Washington, D.C. While at first glance, this order seems to merely be an aesthetic prescription, architectural theory invariably understands architecture as a vessel of ideology.3 Thus, the crux of the executive order is that it seeks to confine the ideological horizons of a mode of culture—in this case, architecture. In restricting an expression of ideology, the order catapults itself into tension with the First Amendment; and in seeking to modify pre-existing structures, the order clashes with established cultural heritage law such as the National Historic Preservation Act of 1966. Therefore, this particular order demands the public’s attention for the way it reflects the current administration’s assault on the fundamental American ideals of enterprise and free expression.

3 Mako, Vladimir. Architecture and Ideology. 1st ed, Cambridge Scholars Publishing, 2014. Pg. 5.

| illustration by haley thomas

“The call for federal architecture to ‘command respect’ represents a bad faith attempt to use the rhetoric of American ideals to forward an

authoritarian agenda, while abandoning the true American ideals of enterprise and free expression employed by Moynihan.”

The Trump administration has consistently displayed contempt towards the progressive bend of culture, to the extent of being widely characterized as spurring a culture war.4 The administration has accordingly made it a stated priority to reconfigure American culture,5 of which one of its chosen battlegrounds is arts and culture organizations. Artists and other cultural workers can readily supply examples of the Trump administration disrupting their already precarious place in society: the cancellation of millions of National Endowment for the Arts (NEA) grants;6 the purging of the Kennedy Center for the Arts’ entire board of trustees;7 and an overhaul of the Smithsonian Institute’s historiographic methods.8 The common denominator of these presi-

4 Horton, Adrian. “Culture Wars: Trump’s Takeover of Arts Is Straight from the Dictator Playbook.” The Guardian, February 22, 2025, sec. US news. https:// www.theguardian.com/culture/2025/ feb/22/trump-administration-arts/. 5 The White House. “The Trump-Vance Administration Priorities.” Accessed May 20, 2025. https://www.whitehouse.gov/ issues/.

6 Italie, Hillel. “National Endowment for the Arts Cuts off Funding, Pushes for Staff Resignations.” AP News, May 5, 2025. https://apnews.com/article/national-endowment-arts-grants-resign-rescinded-d001ce166f50de965b6a226f5d5a672a/.

7 Haberman, Shawn McCreeshMaggie, and Javier C. Hernández. “Trump Says He Will Dismiss Kennedy Center Board Members and Install Himself as Chair.” The New York Times, February 7, 2025, sec. U.S. https://www.nytimes.com/2025/02/07/ us/politics/trump-kennedy-center.html/.

8 Remnick, David. “At the Smithsonian, Donald Trump Takes Aim at History.” The New Yorker, April 6, 2025. https://www. newyorker.com/magazine/2025/04/14/ at-the-smithsonian-donald-trump-takesaim-at-history/.

dential orders is that they transcend aesthetic matters of taste and indeed carry the shared aim of reorienting these organizations’ ideological foundations.

In the realm of federal architecture, the current standard calls upon the GSA to employ architecture as a marker of independent American thought. This standard–which is reflected in the GSA’s Guiding Principles–was first expressed during the Kennedy administration by political theorist Daniel Patrick Moynihan, in a report to a congressional committee on federal buildings. In his directive to Congress, Moynihan wrote that federal architecture should align with fundamental American ideals, such as “enterprise, vigor, and stability.”9 Moynihan used these fundamental American ideals, especially enterprise and the associated value of free speech, to emphasize that the government should never impose any specific architectural style. In his words, “The development of an official style must be avoided. Design must flow from the architectural profession to the Government, and not vice versa.”10 This directive was popularly understood as a robust policy framework from which the GSA could guide its operations; the official policy lay untouched for over 60 years. The Trump administration, for the first time in presidential history, critiqued both the implementation of these principles and the ideals advanced by Moynihan. In place of the

9 United States. Executive Office of the President. Ad Hoc Committee on Federal Office Space. “Report to the President by the Ad Hoc Committee on Federal Office Space,“ 1963. Digital Public Library of America.

10 Id.

Moynihan-GSA principles, the current administration advanced their own set of goals, which plainly reflects the administration’s project of unsettling the foundations of American civic life. In particular, the Trump administration writes that: “Care must be taken to ensure that all federal building designs command respect of the general public for their beauty and visual embodiment of America’s ideals [sic].”11 The call for federal architecture to “command respect” represents a bad faith attempt to use the rhetoric of American ideals to forward an authoritarian agenda, while abandoning the true American ideals of enterprise and free expression employed by Moynihan.

Fundamental American ideals derive from the Declaration of Independence and the Bill of Rights, which jointly outline specific rights and protections to which Americans are entitled.12 From their anti-imperial historical roots, it is self-evident that these founding documents were crafted to specifically oppose authoritarian tyranny. Ironically, not only do the United States’ foundational documents contradict the current administration’s premises, but so too does the original intent of American neoclassical architecture. The founders chose it as a style that embraced the rationality they felt was missing in the authoritar-

CONTINUED ON PAGE 37

11 See fn. 1.

12 National Constitution Center. “From Jefferson to Brandeis: The First Amendment, the Declaration, and the Constitution.” Accessed May 20, 2025. https:// constitutioncenter.org/go/firstamendment/.

CONTINUED FROM PAGE 32

The Department of Education’s letter to Harvard claimed to be motivated by concerns of antisemitism on Harvard’s campus due to Palestinian protests, which they argue constitute a civil rights violation. Harvard acknowledges this concern and has worked in the past year to implement a task force dedicated to addressing these concerns. However, it is clear that these concerns are not the true motivations behind this letter. The letter begins by declaring that an “investment is not an entitlement,” and then states a sweeping list of demands that overstep the bounds of legitimate government oversight. The letter sets a condition: funding will only continue “if Harvard fosters the kind of environment that produces intellectual creativity and scholarly rigor.”3 But this raises a fundamental question—what about Harvard’s current environment fails to meet that standard? The phrase “kind of environment” is intentionally vague and designed to obscure the political motivations, not genuine academic concerns, driving these demands. One demand calls for an external audit of the faculty for “viewpoint diversity.” But what does “viewpoint diversity” mean, and who decides whether the university currently lacks it? The implication is that faculty who do not align with a particular ideological stance are unacceptable. Perhaps the most egregious demand is the audit of academic departments accused of fueling antisemitic harassment—departments that include, but are not

3 Gruenbaum, Josh, Sean R. Keveney, and Thomas E. Wheeler to Dr. Alan M. Garber and Penny Pritzker. Letter Sent to Harvard 2025-04-11. Harvard University. April 11, 2025. https://www.harvard.edu/ research-funding/wp-content/uploads/ sites/16/2025/04/Letter-Sent-to-Harvard-2025-04-11.pdf/.

limited to, the Middle Eastern Studies Department and the Harvard Law School’s International Human Rights Clinic. These are not neutral audits but targeted political attacks aimed at reshaping university discourse. These departments are not being targeted for direct involvement in campus protests, but for their ideological positions that might conflict with the government’s position. In the current political climate, where criticism of certain policies is increasingly equated with hostility or extremism, the mere existence of academic programs that explore human rights or Middle Eastern politics is framed as inherently suspect.

The letter concludes by claiming that these reforms will help Harvard return to its “original mission of innovative research and academic excellence.” But again, who gets to define what that excellence looks like? What, specifically, is the excellence that Harvard is supposedly missing? These vague claims mask a deeply political effort to remake academic institutions to promote the current administration’s positions, such as rolling back DEI initiatives and punishing pro-Palestine speech. The legal precedent is not ambiguous. Federal funding is not a political weapon. It is a lifeline that enables universities to produce cutting-edge research that benefits all Americans. Holding it hostage to enforce conformity is dangerous, as highlighted by Harvard’s response.

Since receiving the letter, Harvard and its legal team issued a powerful response—one that underscores just how high the stakes have become. The university acknowledged the steps it has already taken, and is committed to continue to address antisemitism in the past year. However, the government can not ignore the constitutional

freedoms long afforded to private institutions. In a striking assertion of its rights, Harvard declared that it would “not surrender its independence or relinquish its constitutional rights,” and made clear that it would not allow itself to be taken over by the federal government.4 The response was more than just a legal rebuttal—it was a reminder of what universities represent in a democratic society. Universities foster a space of inquiry, dissent, and dialogue. The administration’s reaction to Harvard’s response has been as troubling as the original letter. While officials now claim the demands were sent “by mistake,” federal funds remain frozen.5 Even if these demands are not enforced, the act of issuing them alone represents a massive rupture in the tradition of academic freedom that has long protected higher education. This is not just about Harvard. It’s about a government willing to threaten the intellectual independence of any institution that challenges its preferred narrative.

Education, combined with the discourse it cultivates, is the bedrock of a free society. It is where dissent is not only allowed but expected. These recent actions from the Trump administration are not about protecting civil rights but power and control. By demanding ideological loyalty and threatening universities with financial pun-

4 Burck, William A., and Robert K. Hur to Josh Gruenbaum, Sean R. Keveney, and Thomas E. Wheeler. Harvard Response 2025-04-14. Harvard University. April 14, 2025. https://www.harvard. edu/research-funding/wp-content/ uploads/sites/16/2025/04/Harvard-Response-2025-04-14.pdf/.

5 Rappeport, Alan. “Trump Administration Sent Letter of Demands to Harvard University in Error.” New York Times, April 18, 2025. https://www.nytimes. com/2025/04/18/business/trump-harvard-letter-mistake.html/.

“Academic

freedom should not be a luxury. It is a constitutional right, and it must be defended—especially when it is under attack from the very institutions meant to protect it.”

ishment, the government is attempting to recast academia as a partisan institution instead of a place of open inquiry. We cannot forget that just a month ago, Columbia received a similar list of demands—and unlike Harvard, it complied. Columbia’s

compliance under the weight of political pressure is a reminder of what happens when institutions are backed into a corner. This is not a dispute between two institutions but a crisis that calls into question the foundation that holds our democracy together. Aca-

demic freedom should not be a luxury. It is a constitutional right, and it must be defended—especially when it is under attack from the very institutions meant to protect it.

DON’T THROW THE CONSUMER WELFARE STANDARD OUT! FIX IT!

CONTINUED FROM PAGE 33

While far from perfect, the CWS enables the court to make consistent decisions and businesses to understand the legal boundaries of commerce. The CWS saves judicial decision-making from the embarrass-

ment of repeatedly coming up with a new definition of “competition” on a whim and abandoning stare decisis. Instead, the consumer welfare standard ties down the Statues of Daedalus with a flexible yet clear principle: does

this business transaction incentivize any deviation from making more and better stuff at a lower cost?

BEAUTY AS A BATTLEGROUND: TRUMP EXECUTIVE ORDER WEAPONIZES. . .

CONTINUED FROM PAGE 35

ian king’s rule.13 Since 2020, legal and architectural scholars have sounded the alarm about the authoritarian bend of Trump’s recently restored executive order. In a 2021 article, attorney and cultural critic Jessica Rizzo expressed her apprehension to these actions on First Amendment terms: “The order was troubling in that it proposed an official style that would have amounted to a censorship regime….it would have deprived many architects and other interested parties of their First Amendment rights.”14 Similarly, architectural histo-

13 Allen, Michael R. “PLATFORM: Trumpism, Neoclassicism, and Architecture as Propaganda.” PLATFORM, May 17, 2021. https://www.platformspace.net/ home/trumpism-neoclassicism-and-architecture-as-propaganda.

14 Rizzo, Jessica. Federal Architecture and First Amendment Limits, 16 Wash.

rian Michael R. Allen characterized the order as follows: “a malignant authoritarian edict: a limit on the public imagination of civic buildings that…limits citizenship, cultural diversity, social consciousness, and artistic expression.” While perhaps heavy-handed, these scholarly critiques nevertheless correctly diagnose the manner in which the Trump administration’s policy places limits on independent expression, contradicting the American ideals they seek to promote.

The 2025 memorandum “Promoting Beautiful Federal Architecture” reflects the Trump administration’s culture wars. Beginning with the order’s desire to “command respect” from the

J. L. Tech. & Arts 47 (2021). Available at: https://digitalcommons.law.uw.edu/wjlta/vol16/iss2/3

American public, the executive order discloses the administration’s neglect of anti-tyrannical American ideals. Furthermore, recognizing the ideological expression expressed in architecture reveals the fact that this issue is deeper than just rhetoric. At hand in the executive order and its opposition to the GSA Guiding Principles is a conflict over the independence of the American public. While the previous principles promoted plurality, regional specificity, and intellectual erudition, the Trump administration’s new architecture policy should be viewed as a bad faith attempt to define American identity by invoking false historicism and controllable uniformity.

GREEN LIES, REAL CRIMES: WHY GREENWASHING DESERVES LEGAL CONSEQUENCES

by MEGAN WEI STAFF WRITER

Asconcerns over climate change have intensified in recent decades, environmental sustainability has shifted from a niche value to a powerful market force. In response, companies have rushed to rebrand themselves as environmentally responsible, often promoting carbon neutrality and ethical sourcing. However, much of this branding prioritizes image over impact, raising questions about what “sustainability” truly means. This disconnect has fueled greenwashing: the practice of misleading consumers by exaggerating or fabricating a company’s environmental efforts. Without adopting meaningful environmentally friendly practices, many corporations instead use sustainability rhetoric to boost their reputation and profit from public environmental concerns. A 2021 European Commission study found that in 42% of cases, “authorities had reason to believe” that the sustainability claim in question ‘may be’ false or deceptive.”1 Despite its scale, greenwashing continues to remain a legal gray area. On a global scale, environmental misrepresentation is rarely prosecuted and often treated as a public relations issue, unlike financial or health-related fraud. This lack of oversight allows companies to exploit vague Environmental, Social, and Governance (ESG) language, profiting from consumer trust while avoiding scrutiny. Without binding definitions and enforcement mechanisms around greenwashing, the law enables system-

1 European Commission. “Half of Green Claims Lack Evidence, According to New Commission Study.” News release, January 28, 2021. https://ec.europa. eu/commission/presscorner/detail/en/ ip_21_269/.

ic dishonesty under the appearance of sustainability.

Greenwashing is not just a marketing issue but a deliberate strategy of misleading the public that delays real environmental progress. As sustainability becomes more important to consumers, companies increasingly use vague labels like “eco-friendly,” “natural,” and “carbon neutral” to appear responsible without making substantial changes. These terms often lack clear definitions and independent verification, giving companies room to make sweeping claims without accountability. Shell offers a striking example of this duplicity. In April 2025, it announced plans to expand its liquefied natural gas (LNG) operations by 20–30% by 2030, directly contradicting the International Energy Agency’s recommendation that no new fossil fuel projects be launched to meet global net-zero goals.2 Meanwhile, Shell markets its LNG operations as “carbon neutral” using widely discredited offsets from forest projects in China; many of these projects were either already completed or would have occurred without Shell’s involvement, providing little to no real emissions reduction.

3 H&M’s “Conscious Collection” reflects a similar strategy of promoting a facade of

2 ShareAction. “Challenging Shell to Explain Its Plans to Expand Fossil Fuel Projects.” April 17, 2025. https://shareaction.org/news/were-challenging-shellto-explain-its-plans-to-expand-fossil-fuelprojects/.

3 Ye, Ruiqi. “Shell’s Scandal in China Highlights the Greenwashing and Climate Risks of Carbon Offset Credits.” Greenpeace East Asia, April 23, 2025. https://www.greenpeace.org/eastasia/ blog/7910/shells-scandal-in-china-highlights-the-greenwashing-and-climaterisks-of-carbon-offset-credits/.

environmental sustainability. The Netherlands Authority for Consumers and Markets (ACM) found that H&M used terms like “Conscious” and “Conscious Choice” without clarifying what those terms meant or providing evidence of environmental benefits.4 Although the company agreed to revise its product labels and remove specific sustainability claims, it faced no formal penalties.5 Cases like this reveal a broader pattern in which greenwashing allows companies to avoid real change, hide harmful practices, and continue benefiting from consumer trust. They highlight how current regulations fall short of addressing greenwashing in any meaningful way. Greenwashing also creates an uneven playing field where businesses that genuinely commit to sustainability are often overshadowed. In a competitive marketplace crowded with misleading claims, genuine honesty may not be rewarded; superficial marketing becomes the easier and more profitable strategy. One reason greenwashing continues is the lack of strong, enforceable legal standards. In the United States, the Federal Trade Commission (FTC) prohibits deceptive marketing under Section 5 of the FTC Act and offers guidance through its Green Guides, which outline how companies should support environmental claims like “recyclable” or “carbon neutral” with

4 Reinhold, Kirsten. “The Stores: H&M and Decathlon Were Reprimanded for Misleading Information on Sustainability.” The Spin Off, September 14, 2022.

5 Netherlands Authority for Consumers and Markets. Decision of the Netherlands Authority for Consumers and Markets within the Meaning of Section 12h of the Establishment Act of the Netherlands Authority for Consumers and Markets. August 19, 2022. https://www.acm.nl/system/files/ documents/commitment-decision-hm. pdf/.

“Greenwashing is more than misleading marketing. It is a form of consumer fraud that undermines environmental progress and erodes public trust.”

specific, clearly qualified, scientific evidence.6 They also warn against vague or broad terms, such as simply labeling a product “eco-friendly” without explanation.7 However, these guidelines are not legally binding, and enforcement is rare. In the European Union, the Unfair Commercial Practices Directive prohibits misleading environmental claims, and the upcoming Green Claims Directive is designed to require companies to support their sustainability claims with credible, third-party evidence.8 But even with these policies in place, enforcement within the EU is inconsistent, and vague or exaggerated claims often go unchecked. At the heart of the issue is that terms like “eco-friendly” and “sustainable” still lack clear legal definitions, allowing companies significant latitude to shape their messaging without meaningful oversight. Unlike financial or health-related fraud, which typically results in formal investigations and penalties, greenwashing is still treated primarily as a reputational issue and not a legal one.

To move beyond performative sustainability, greenwashing must be treated not as a branding issue but as a form of fraud. Building a legal framework that holds corporations account-

6 Federal Trade Commission. Guides for the Use of Environmental Marketing Claims. https://www.ftc.gov/sites/default/files/attachments/press-releases/ ftc-issues-revised-green-guides/greenguides.pdf/.

7 Federal Trade Commission. “Green Guides.” 2012.

8 European Commission. “Questions and Answers on European Green Claims.” March 21, 2023. https://ec.europa.eu/ commission/presscorner/detail/en/qanda_23_1693/.

able for misleading environmental claims is essential if we are to protect consumers and make real progress on climate goals. This begins with establishing legally binding definitions for commonly used terms like “sustainable” and “carbon neutral.” Without clear standards, companies will continue to exploit ambiguity to shape their image rather than change their practices. Equally important is requiring third-party verification for environmental claims, which can be modeled off of how financial statements are audited for accuracy. Independent oversight is essential to ensure that sustainability claims are grounded in fact rather than marketing. When companies repeatedly or seriously mislead the public, the consequences should be clear and enforceable—whether through fines, product recalls, or even criminal charges in the most severe cases. Accountability should match the scale of the harm. This legal framework requires that regulatory bodies have the authority to investigate and step in when greenwashing occurs. Just as financial markets depend on agencies like the Securities and Exchange Com mission (SEC) to maintain transpar ency and trust, environmental claims deserve similar oversight. A dedicated institution should track corporate sus tainability messaging, verify claims, and take enforcement action when companies cross the line. These reforms would not only protect consumers from deception but also help raise the bar for corporate envi ronmental responsibility across the board. Greenwashing is more

than misleading marketing. It is a form of consumer fraud that undermines environmental progress and erodes public trust. As long as companies can manipulate sustainability language without consequences, meaningful climate action will remain out of reach. While much of the conversation around greenwashing focuses on its ethical or environmental implications, the more urgent problem lies in its legal invisibility. We already hold companies accountable for financial fraud, deceptive food labeling, and false health claims. Environmental marketing should be held to the same standard. If corporate sustainability is going to be taken seriously, we need laws that treat greenwashing as not just a public relations tactic, but as a serious legal violation. This would involve establishing clear definitions, requiring third-party verification, and enforcing consequences when companies mislead the public. Without these reforms, going green will continue to be a branding exercise rather than a commitment to environmental responsibility. Real

WHY UNCONDITIONAL BAILOUTS ARE LEGALLY AND ECONOMICALLY NECESSARY

by KATHRYN FANG TREASURER

In times of financial instability and systemic interdependence, strict conditions on state bailouts–often justified by moral concerns–undermine their purpose of preserving economic stability and institutional integrity. This article argues that unconditional bailouts, when paired with robust mechanisms of ex-post accountability, are not only legally permissible but economically imperative. The notion that relief must be constrained in advance of crisis response presumes a clarity of circumstance and predictability of consequence that rarely exist in real-time economic emergencies. It is in the immediacy of response, free of front-loaded restrictions, that bailouts can avert systemic collapse. Setting strict conditions, while theoretically protective, obstructs the agility required to contain economic catastrophe. Thus, a principled, good faith defense of unconditional bailouts necessitates a reevaluation of prevailing assumptions surrounding legal permissibility, economic prudence, and the best course of action for risk mitigation.

Fundamentally, the structural principles underlying U.S. financial law provide strong support for the case for unconditional bailouts. Both statutory and judicial frameworks provide for a discretionary, responsive model of economic governance, particularly in moments of acute financial destabilization. Under Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the federal government is authorized to intervene decisively in the liquidation of systemically vital financial in-

stitutions.1 The statute establishes an “Orderly Liquidation Authority” that intentionally limits procedural delays in favor of immediate stabilization. While subsequent audits and reporting mechanisms are mandated, the law deliberately privileges real-time responsiveness over front-end conditionality.

Similarly, the Federal Reserve Act, particularly Section 13(3), permits the Federal Reserve to extend emergency credit in “unusual and exigent circumstances” to entities not ordinarily eligible for such assistance.2 Crucially, this provision does not prescribe advance Congressional approval of terms or limitations, but rather, delegates judgment to the discretion of the Board of Governors. This design is not an oversight, but a reflection of the foundational premise that market failures often unfold faster than legislative or administrative bodies can react. The Supreme Court, too, has affirmed this understanding. In Collins v. Yellen (2021), the Court upheld the statutory structure governing the Federal Housing Finance Agency’s management of Fannie Mae and Freddie Mac during their conservatorship.3 Although the decision was primarily predicated upon separation-of-powers concerns, the majority nonetheless affirmed the legality of broad agency

1 Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010). https:// www.govinfo.gov/content/pkg/PLAW111publ203/pdf/PLAW-111publ203.pdf/.

2 Federal Reserve Act § 13(3), 12 U.S.C. § 343 (2021). https://www.law.cornell. edu/uscode/text/12/343/.

3 Collins v. Yellen, 141 S. Ct. 1761 (2021). https://www.supremecourt.gov/opinions/20pdf/19-422_9olb.pdf/.

discretion during crisis governance. Implicit in this holding is a deference to executive and administrative judgment during financial crises in which the judicial second-guessing of bailout structures taken in good faith could potentially be destabilizing.

The economic justification for unconditional bailouts sees them not as rewards for failure, but as systemic insurance against cascading collapse. In this view, the function of a bailout is akin to a firebreak—an immediate, decisive action designed to halt the spread of panic and act as a restorative agent for rapid recovery. Conditional bailouts, by contrast, often introduce bureaucratic friction and political negotiation at the very moment decisiveness is most essential, acting as an obstacle during circumstances demanding immediate resolution. This dynamic was clearly illustrated in the 2008 global financial crisis. The Troubled Asset Relief Program (TARP), initially constrained by a politically imposed architecture of conditionality and oversight, failed to arrest panic until broader guarantees, such as the Federal Deposit Insurance Corporation’s expansion of deposit insurance coverage, were issued unconditionally.4 Nobel Laureate Douglas Diamond and former Federal Reserve Chair Ben Bernanke have both noted that delay in response, particularly when linked to political contention over conditions, significantly amplified market volatility.5 Here, it was only when

4 SIGTARP. Quarterly Report to Congress (Washington, DC: Office of the Special Inspector General for the Troubled Asset Relief Program, 2023). https:// www.sigtarp.gov/Quarterly%20Reports/ April_30_2023_Report_to_Congress. pdf/.

5 Bernanke, Ben S. The Federal Reserve and the Financial Crisis (Princeton, NJ: Princeton University Press, 2013);

“The notion that relief must be constrained in advance of crisis response presumes a clarity of circumstance and predictability of consequence that rarely exist in real-time economic emergencies.”

the government moved beyond conditional aid and extended its support that confidence began to return.

Furthermore, the International Monetary Fund (IMF) has similarly embraced a pragmatic pivot toward unconditionality in critical moments. In 2024, amid the threat of sovereign default and economic freefall in Argentina, the IMF extended a $44 billion support package absent preconditions.6 Though controversial, the move underscored a broader institutional shift where conditionality, while useful in long-term structural adjustment, often defeats the objective of immediate stabilization. These cases reveal how stabilization may often need to precede reform, wherein any inversion of this sequence risks undermining both stability and reform.

One of the most persistent critiques of unconditional bailouts is the argument that they produce moral hazard. The argument follows that by removing the threat of failure, bailouts incentivize future recklessness. While not without merit, this critique is largely overstated in the context of modern regulatory environments. As Harvard Law Professor Mark Roe contends, moral hazard is a structur-

Douglas W. Diamond and Philip H. Dybvig, “Bank Runs, Deposit Insurance, and Liquidity.” Journal of Political Economy 91, no. 3 (1983): 401–419, https://www. jstor.org/stable/1837095/.

6 International Monetary Fund. “IMF Executive Board Approves $44 Billion Flexible Credit Line Arrangement for Argentina.” IMF Press Release, March 15, 2024. https://www.imf.org/en/News/ Articles/2024/03/15/pr2467-argentina-imf-executive-board-approves-44-billion-flexible-credit-line/.

al feature of any system premised on economic interdependence.7 The relevant question is not whether it exists, but whether it can be managed through ex-post enforcement rather than unwieldy ex-ante constraint. Indeed, the contemporary regulatory landscape provides an extensive toolkit for accountability. Mechanisms such as real-time financial reporting, congressional oversight (e.g., the Special Inspector General for TARP, or SIGTARP),8 and audits by the Government Accountability Office (GAO) and the Congressional Budget Office (CBO) offer robust avenues for retrospective scrutiny.9 In the case of AIG, often cited as a classic example of bailout excess, the Treasury ultimately recovered its investment with interest. In this instance, the failure was not in the provision of unconditional aid, but in the initial absence of a coherent framework for post-hoc regulatory enforcement.

Moreover, California’s Medicaid crisis in the early 2010s offers a salient example of the benefits of unconditional intervention. Faced with escalating healthcare costs and a severe budget shortfall, the state risked the

7 Roe, Mark J. “The Derivatives Market’s Payment Priorities as Financial Crisis Accelerator.” Stanford Law Review 63, no. 3 (2011): 539–590. https://review. law.stanford.edu/wp-content/uploads/ sites/3/2011/03/63-Stan-L-Rev-539. pdf/.

8 SIGTARP. Quarterly Report to Congress.

9 U.S. Government Accountability Office (GAO). Federal Pandemic Response: Lessons Learned for Future Emergency Preparedness (Washington, DC: Government Accountability Office, 2022). https://www.gao.gov/assets/gao-22105291.pdf/.

collapse of its Medicaid program—an outcome that would have endangered millions of low-income residents. Federal assistance was extended without preconditions, prioritizing immediate program preservation over structural reform. This choice was met with political criticism, particularly from fiscal conservatives who argued for attached mandates on cost reduction and privatization. Yet, the decision to provide unconditional aid enabled the state to stabilize its healthcare infrastructure, preserving institutional continuity and ensuring uninterrupted care. In the aftermath, California voluntarily adopted a series of cost-saving reforms and administrative efficiencies. Conditionality may produce compliance, but unconditional support cultivates capacity. One cannot reform what no longer exists.

Unconditional bailouts–strategically designed as temporary suspensions of market conventions to address crisis demands–are grounded in legal statutes and judicial precedent that emphasize discretion and flexibility. The unconditionality offers flexibility by serving as vital instruments of economic risk absorption to prevent systemic collapse. Collapse should be followed not by preemptive constraints but by refined post-crisis enforcement mechanisms. To demand certainty of outcome in advance of intervention is to ask law and economics to perform clairvoyance, whereas in practice, fiscal responsibility is most pragmatically expressed through responsiveness first and diligent regulation second.

TRUMP PALMS THE POWER OF THE PURSE

by ULM STAFF WRITER

Afewmonths after his return to the presidency, Donald Trump’s administration implemented sweeping foreign tariffs, altering foundational U.S. trade policy and global economic dynamics. Although President Trump stated that the tariffs were intended to protect American industries and increase U.S. national wealth, they simultaneously risked destabilizing international supply chains, inflating production costs worldwide, and provoking retaliatory measures from key trading partners. Domestically, the administration’s tariffs, especially those targeting China, are projected to heavily burden American consumers, producers, and workers, all while increasing inflation. Although these measures aimed to revive a tradition of U.S.-based manufacturing, they ultimately increased costs for domestic businesses and contributed to rising inflation. Internationally, the imposition of these tariffs strained diplomatic ties, escalating trade tensions with major allies and rivals alike. For example, following Trump’s first round of tariffs on Canada, Prime Minister Mark Carney has characterized the old U.S.-Canada relationship as “over.”1 Nations such as China, the European Union, and Canada have since responded with their own tariffs, further exacerbating disputes and weakening multilateral trade frameworks. Diplomatic statements from the U.S. Department of State and the Chinese Ministry of Foreign Affairs reveal an increasingly tense power dynamic be-

1 Timotija, Filip. “Mark Carney on Trump Tariffs: Old Canada-US Relationship Is ’over’.” The Hill, March 27, 2025. https://thehill.com/policy/international/5218631-mark-carney-on-trump-tariffs-old-canada-us-relationship-is-over/.

tween the two countries as a result. The presidential authority to unilaterally impose tariffs was not originally a constitutional power. Under Article I, Section 8 of the U.S. Constitution, Congress alone grants the power to “levy and collect Taxes, Duties, Imposts and Excises.”2 Historically, this meant that all decisions regarding tariffs were under exclusive legislative control. However, with the Reciprocal Trade Agreements Act of 1934, Congress began to delegate tariff-setting authority to the executive branch, permitting the president to modify trade barriers without returning to Congress for approval. This shift was backed legally by Field v. Clark (1892), in which the Supreme Court ruled that the president could exercise tariff-related powers so long as Congress had laid out clear standards and the president’s role was limited to executing the will of Congress.3 Later statutes, such as Section 232 of the Trade Expansion Act of 1962 and Section 301 of the Trade Act of 1974, further expanded presidential authority by permitting the executive branch to impose tariffs for reasons related to national security or unfair foreign trade practices. Congress defended such delegations as necessary to maintain flexibility in an increasingly global and fast-paced economic environment and to consolidate foreign economic policy in the hands of the president. Nevertheless, the legal basis for this delegation remains controversial. Arguably, such expansions of authority violate the non-delegation doctrine, which prohibits Congress from transferring core legislative responsibilities to other branches with-

2 Constitution of the United States, art. 1, sec. 8.

3 Field v. Clark, 143 U.S. 649, 1892.

out proper guidance. The courts have generally upheld these delegations as long as Congress can still provide a constitutional basis. Congress, however, retains the constitutional authority to reverse or restrict powers it has previously delegated. A historical example of such a reversal occurred after the enactment of the McKinley Tariff Act of 1890. According to the U.S. House of Representatives, the law granted the president discretionary authority to impose duties on items such as sugar and coffee if he deemed foreign tariffs to be “reciprocally unequal and unreasonable.”4 Although this delegation was upheld in Field v. Clark, it generated significant political backlash. Many Americans viewed the law as favoring wealthy industrialists, contributing to a massive electoral defeat for Republicans in the 1890 midterms. In response, Congress reasserted control over trade policy with the Underwood Tariff Act of 1913, which significantly reduced tariff rates and eliminated the executive’s discretionary authority under the 1890 law. This legislative shift marked a return to a more centralized, congressionally-controlled trade policy and serves as precedent that Congress can—and has—reversed course on previously delegated tariff powers.

Therefore, although the intentions behind Trump’s tariff policy were to increase U.S. national wealth and decrease national debt, the consequences it has created pose catastrophic effects for domestic consumers. And Congress has the responsibility to intervene or even reverse the policy. The precedent set by the reversal of the McKinley Tariff Act demonstrates that Congress has both the constitu4 “The McKinley Tariff of 1890,” U.S. House of Representatives.

“Although these measures aimed to revive a tradition of U.S.-based manufacturing, they ultimately increased costs for domestic businesses and contributed to rising inflation.”

tional authority and historical justification to reclaim legislative control when delegated powers result in economic or political instability. As tariffs increasingly burden American house-

holds, suppress consumer spending, and strain international alliances, congressional inaction is a political failure and a constitutional abdication. Reasserting legislative authority over tariff

policy is not only consistent with the structure of separation of powers, but also essential to restoring accountability, ensuring economic stability, and preventing executive overreach.

DISMANTLING THE DEPARTMENT OF EDUCATION OR DISMANTLING EQUITY?

by KIMBERLY CHAVEZ STAFF WRITER

President Donald Trump may be many things. But above all, he is certainly a man of his word, making him a dangerous actor for the future of the United States and its students. Since taking office, Trump has vowed to abolish the Department of Education (DoE), representing Republican sentiment against federal oversight. Despite needing congressional approval, Trump has made good on that promise by taking steps toward dismantling the smallest Cabinet-level department. On March 20, 2025, Trump signed an executive order removing federal control over education and “provid[ing] children and their families opportunity to escape a system that is failing them.”1

But who, exactly, is this department failing? The Department has certainly not failed white, middle-class families, who are fully capable of providing resources for their children. The DoE has also succeeded in

1 Trump, Donald. “Improving Education Outcomes by Empowering Parents, States, and Communities – The White House.” The White House, March 20, 2025.

bridging the educational achievement gap for marginalized students. So, is the DoE really failing, or will the decision to eliminate it be the true failure? Trump’s plans to dismantle the DoE will fail the very students it was put in place to help, specifically low-income children, students of color, and those with disabilities.

Since its inception in 1979 under the Carter Administration, the DoE has been a target for Republicans.2 President Jimmy Carter’s primary aim was to call attention to the federal government’s role in education, holding them accountable while still leaving states with control. He explained that the “[p]rimary responsibility for education should rest with those states, localities, and private institutions that have made our nation’s educational system the best in the world, but the Federal Government has for too long failed to play its own supporting role in education as effectively as it could.”3 Since then, the De-

2 Balingit, Moriah, Chris Megerian, and Bill Barrow. “Trump’s Call to Dismantle Education Department Shows Republican Rightward Lurch and His Grip on GOP.” AP News, March 21, 2025.

3 Carter, Jimmy. “Department of Education Organization Act Statement on Signing S. 210 Into Law.” The American

partment has provided critical financial aid, enforced civil rights laws, and worked to close achievement gaps. Despite the Department’s dedication to equitable education, Ronald Reagan’s presidential campaign called for abolishing the DoE a year later, as he saw federal involvement as reverse discrimination and affirmative action.4 Under the guise of arguing that decisions about education should be made at the local level, Reagan’s attacks on the DoE thwarted racial integration in schools. Eventually departing from these efforts, Republicans remained committed to eliminating a crucial department, one that provides a step forward for disadvantaged students.

Already acting to shrink the DoE, Trump has instructed Education Secretary Linda McMahon to “take all necessary steps to facilitate the closure of the DoE and return authority over education to the states and local communities while ensuring the effective and uninterrupted delivery of services, programs, and benefits on which Americans rely.”

5 While

CONTINUED ON PAGE 45

Presidency Project, October 17, 1979.

4 See fn. 2.

5 See fn. 1.

HANDS OFF 2025: A HIDDEN PROTEST

by ADDISON MARSHALL STAFF WRITER

Since Donald Trump’s inauguration on January 20, 2025, millions of Americans have marched in the streets to oppose mass deportations, education budget cuts, new censorship directives, and rollbacks of civil and environmental protections.1 At the same time, several social media algorithms have been adjusted to deprioritize protest content, and public officials have threatened organizers with legal consequences. Undocumented immigrants now fear that joining a rally could cost them their place in this country. Under these conditions of digital shadow-banning and real-world intimidation, speaking out feels more dangerous than ever.

On April 5, 2025, the Hands Off movement erupted nationwide. Organizers reported more than 1,300 simultaneous rallies in every state, from the National Mall in Washington, D.C., to rural county courthouses in the Midwest.2 Participants united against mass firings at the Department of Government Efficiency, cuts to Social Security and veterans’ benefits, immigration raids, and rollbacks on LGBTQ and environmental protections.3 Activists carried signs reading “Hands off our rights” and “Stop the billionaire takeover,” directly challenging President Trump and his advisor, Elon Musk.

1 Lowell, Hugo, Joan E Greve, Joseph Gedeon, David Smith, Robert Tait, Rachel Leingang, Lauren Gambino and Sam Levine. “Tracking Trump – everything that’s happened in the president’s first 100 days.” The Guardian, April 29, 2025.

2 Kim, Juliana. “Nationwide ‘Hands Off!’ protests erupt against Trump and Musk.” NPR, April 5, 2025.

3 Associated Press. “Protesters tee off against Trump and Musk in ‘Hands Off!’ rallies across the U.S.” Politico, April 5, 2025.

Hands Off 2025 proved remarkable not only for its coast-to-coast reach but also for its sheer diversity of participants. In Boston and Portland, organized labor groups led marches; on college campuses, students linked arms around admin buildings; in small towns from Cedar Rapids to Chattanooga, neighbors gathered in town squares. Demonstrators in Los Angeles donned dinosaur and shark costumes to mock corporate power, and in Miami, hundreds rallied on Ocean Drive beneath rainbow banners. Reuters photographers captured protesters chanting, “Restore democracy” and waving placards that read, “Shut up, Elon.”4

Despite its unprecedented scale, Hands Off 2025 barely registered on mainstream television. Evening news programs offered only brief late-night mentions before shifting to entertainment headlines. Cable news devoted a few token minutes before quickly moving on to lighter subjects. On Instagram and Facebook, live streams of local marches were buried under algorithmic feeds favoring celebrity posts and sponsored content. Even Twitter searches for #HandsOff2025 returned political memes rather than raw footage of people braving rain and snow to protest. If the largest protest of the year can vanish so easily, what chance do smaller grassroots efforts have under this administration? The Guardian noted that while the Women’s March in 2017 dominated headlines, the Hands Off rallies drew millions yet faded almost without a trace.5

If massive street rallies are not

4 “47 signs from the anti-Trump Hands Off! protests” rallies across the U.S.” Reuters, April 6, 2025.

5 Leingang, Rachel. “Trump 100 days: after tepid start, protest movements –and Democrats – find footing.” The Guardian, April 30, 2025.

newsworthy, what is? The Guardian argues that protest movements often go underreported precisely because their impact unfolds gradually rather than in a single dramatic moment. Hands Off 2025 is a prime example of a mass action dismissed by media outlets for lacking immediate, quantifiable results, even though such efforts frequently shape public discourse and policy over time.6 A PBS Newshour segment aired footage of crowded streets in Boston and Washington, but even that online video has garnered fewer than 200,000 views, a fraction of the millions of eyes on political attack ads or celebrity gossip.7

The consequences of this information divestment extend far beyond the protesters themselves. To test public awareness, I polled 25 University of Chicago students, most majoring in Political Science or Public Policy, and found that only two had heard of the April 5 demonstrations, even though marches took place just blocks from campus. Tomorrow’s voters may learn about Supreme Court nominations or presidential debates through trending TikTok challenges but remain oblivious to the largest coordinated protest of the year. When full-scale demonstrations like Hands Off 2025 are omitted from our collective memory, our national discourse becomes dangerously narrow, shaped by algorithms and editorial decisions rather than by citizens’ lived experiences.

The risks of speaking out have escalated dramatically. In May 2025, the Trump administration rolled out a new self-deportation incentive offering

6 Svirnovskiy, Gregory. “Elon Musk says DOGE needs to endure amid hints that he’ll step away.” Politico, May 1, 2025.

7 Elassar, Alaa, Shania Shelton and Mina Allen, “‘Hands Off!’ protesters across US rally against President Donald Trump and Elon Musk.” CNN, April 6, 2025.

a $1,000 stipend and travel assistance to undocumented immigrants who use the CBP Home app to return to their home countries.8 At the same time, immigration agents have increased their presence around protest sites, questioning foreign students about their visa status and, in some cases, detaining them for attending rallies.9 One international student told me she was stopped on her way to a march and asked repeatedly for her passport and I-20 form. Another learned

8 Hesson, Ted. “US offers $1,000 stipend to encourage migrants to self-deport.” Reuters, May 5, 2025.

9 Fadel, Leila, Taylor Haney, Arezou Rezvani, Kyle Gallego-Mackie. “‘Citizenship won’t save you’: Free speech advocates say student arrests should worry all.” NPR, April 8, 2025.

that her work visa could be revoked simply for holding a sign. If the price of dissent is deportation or legal jeopardy, then the constitutional guarantee of free speech is meaningless.

Our democracy depends on the free exchange of ideas and on citizens’ ability to witness and report on public events. To break through the information blackout, we must become our own reporters. Share on-the-ground video clips and photo galleries on social feeds. Write detailed accounts in local newsletters or neighborhood listservs. Support independent and student-run publications that refuse to look away. Lobby your representatives to require public broadcasters to carry unedited protest coverage. In community centers and

cafes, post flyers with QR codes linking to firsthand testimonials and reliable reporting.

Hands Off 2025 demonstrated that millions are willing to stand up for their fundamental rights, despite the threat of punishment or erasure. If we allow that collective courage to be buried by algorithms and editorial desks, we abandon our responsibility as citizens. Amplify voices from your city or town, and insist that history remember April 5, 2025, not as a footnote but as a turning point, a protest that made history in all 50 states.

DISMANTLING THE DEPARTMENT OF EDUCATION OR DISMANTLING EQUITY?

CONTINUED FROM PAGE 43

the Trump administration promises to preserve the Department’s critical function through other avenues that cut federal involvement, such as diverting crucial resources to other departments and providing families with block grants, such decentralization will impact students of color, low-income families, and students with disabilities. Schooling in America has long functioned as a “white good,” one that upholds white, middle-class advantage, and Trump’s efforts vow to uphold that sentiment.

Critics argue that the Department shouldn’t be funded because it doesn’t participate in teaching. Yet, its 2024 fiscal year budget of $268 billion only composes 4% of the federal budget.6 Republicans continue to advocate for the state to reclaim jurisdiction of educational decisions,

6 USAFacts. “What Does the Department of Education Do?” Accessed May 20, 2025.

but many such decisions are already in their hands. Vital choices about curriculum, graduation, and enrollment requirements are at the states’ behest. The DoE primarily enforces equitable access, an essential aspect to education that states have failed to address alone.

In 2024, the DoE provided a $18.8 billion grant to schools with significant numbers of “educationally disadvantaged students,” a $15.5 billion grant for special education programs for students with disabilities, and $33 billion in the form of Pell Grants, providing grants to need-based first-time college students.7

With the DoE slashed, where does this leave the millions of students who rely on these programs for opportunity, equity, and support? Trump’s major cutbacks will not decentralize power. Rather, they will re-centralize

7 “What the Data Says about the U.S. Department of Education.” Pew Research Center. Accessed May 20, 2025.

privilege. Additionally. Trump and the Republican party have voiced concerns over a “radical woke agenda” that they believe to have indoctrinated students, attacking education programs focused on diversity, equity, and inclusion.

This plan is part of a larger political agenda that jeopardizes the future of students by stripping resources away from those who need them the most and serving those already in power. Not only does this deny students the opportunity to succeed academically, it also limits their upward mobility. Abolishing the DoE and redistributing its power to the states is a direct attack on a system created to support marginalized students and communities.

CAPITAL PUNISHMENT AND CAPITAL POWER: THE CASE OF LUIGI MANGIONE

by LEENA SFAR STAFF WRITER

American justice often speaks in the language of power, not fairness. When federal prosecutors announced their intention of seeking the death penalty for Luigi Mangione in United States v. Luigi Nicholas Mangione, we witnessed what was not only a murder case, but something far more revealing: a man who, despite his wealth and elite education, tried to pose a threat to class structures upholding the American political and economic order. While mass shooters and serial killers have routinely evaded capital punishment, Mangione, accused of assassinating a healthcare executive and seeking to dismantle corporate control, has become a rare white-collared, white-skinned, Ivy League-educated man whom the state has been keen to execute. The question begs “why?”

This case is not concerned so much with who is being punished, so much as why. Beyond race or income, this has become an interesting case of what happens when one, regardless of background, aims to strike the heart of capitalist institutions. We should not feign blindness to the American justice system’s delineation between what it views as crime and rebellion. It has long acted along the lines of this distinction, and when these individuals are charged with threatening class power, the punishment is grave and severe.

This phenomenon, unfortunate as is, is not historically unprecedented in the slightest. Between the years of 1956 and 1971, the United States Federal Bureau of Investigation (FBI) conducted a series of covert

and illegal projects for the purpose of surveilling, infiltrating, destabilizing, and even violently sabotaging political movements that they perceived as subversive to America’s national interests.1 This series of projects became known as COINTELPRO, and it included a set of targets which they sought to “neutralize” (assassinate).2

Among its most well-known targets was Dr. Martin Luther King Jr. himself, who was especially brought to federal attention soon after his March for Jobs and Freedom, which demanded an increased federal minimum wage, the addition of social programs for the unemployed, the expansion of the Fair Labor Standards Act, among other civil demands. After the fact and under the pressure of FBI Director John Hoover, the assistant director of COINTELPRO said in confidence, “In the light of King’s powerful demagogic speech. . .We must mark him now if we have not done so before, as the most dangerous Negro of the future in this nation from the standpoint of communism, the Negro, and national security.” Less than a year later, the FBI would author and send the infamous FBI-King letter,3

1 Hoerl, Kristen, and Erin Ortiz. 2015. “Organizational Secrecy and the FBI’s COINTELPRO–Black Nationalist Hate Groups Program, 1967-1971.” Management Communication Quarterly 29 (4): 590–615. https://doi. org/10.1177/0893318915597302/.

2 Melgar Adalid, Mario. 2012. “Enemies, a History of the FBI. Tim Weiner, Nueva York, Random House, 2012, 537 Pp.” Cuestiones Constitucionales Revista Mexicana de Derecho Constitucional 1 (27). https://doi.org/10.22201/ iij.24484881e.2012.27.6013/.

3 Gage, Beverly. 2014. “What an Uncensored Letter to M.L.K. Reveals.” The New York Times, November 11, 2014, sec. Magazine. https://www.nytimes. com/2014/11/16/magazine/what-an-uncensored-letter-to-mlk-reveals.html/.

allegedly meant to blackmail Dr. King into committing suicide. In coming years, the FBI would sedate and subsequently brutally assassinate Fred Hampton, and other infamously revolutionary activists who sought to disrupt class hierarchy in America.4 Notably, COINTELPRO also aided in the dismantling of The Young Patriots, a working-class, revolutionary movement formed by impoverished Appalachians working in Chicago.

Luigi Mangione was not impoverished, nor Black, and although this article not at all aims to glorify or venerate his actions, he had expressed a vehement critique of the American healthcare system in his manifesto, labeling industry executives as “parasites” as he underscored the disparity between the United States’ exorbitant healthcare expenditures and its relatively low life expectancy. He attributed this incongruity to systemic greed and corruption within the industry. This move distinguishes his case from other instances of mass violence perpetrated by his white counterparts. Individuals such as Nikolas Cruz and James Holmes, mass shooters of the last decade, were not subjected to capital punishment, despite the heinous nature of their crimes.5 The divergence in the prosecutorial approaches raises critical questions about the factors influencing the application of the death penalty in this case.

4 Ogbar, Jeffrey O.G. 2017. “The FBI’s War on Civil Rights Leaders.” The Daily Beast. January 16, 2017. https://www. thedailybeast.com/the-fbis-war-on-civilrights-leaders/.

5 Wright, Kristin. 2025. “Luigi Mangione’s Case Marks a Shift in Politics of the Death Penalty in the U.S.” NPR. April 25, 2025. https://www.npr. org/2025/04/25/g-s1-62736/luigi-mangione-death-penalty-white-house-capital-punishment/.

“Mangione’s prosecution suggests that the death penalty in this context serves not merely as retribution for the act of murder, but as a symbolic act of containment: a deterrent for those who might challenge corporate class dominance.”

It appears, then, that when an individual’s actions are interpreted not simply as criminal, but as ideologically subversive (and particularly in ways that confront entrenched economic structures), the state responds with severity. Mangione’s prosecution suggests that the death penalty in this context serves not merely as retribution for the act of murder, but as a symbolic act of containment: a deterrent for those who might chal-

lenge corporate class dominance. His case is not an aberration, but a continuation of a historical pattern. From COINTELPRO’s surveillance and sabotage of movements seeking racial and economic justice, to the state’s calculated violence against figures like Dr. Martin Luther King Jr. and Fred Hampton, American institutions have repeatedly responded to perceived threats to the class order with force and finality. That this pattern should

now surface in the case of a wealthy, white, Ivy League graduate only reinforces the point: it is not always who you are, but what you threaten that determines the weight of the law. This distinction American justice draws between crime and rebellion is not just semantic. It is the line that marks who may be punished, and who must be silenced.

INTERVIEWS

IMMIGRATION, LAW, AND SOCIETY: OUTSIDE THE CLASSROOM WITH ANGELA GARCIA

by FIMISOKAN ADESEMOYE STAFF WRITER

On the first day of his second term, President Donald Trump signed into effect ten executive orders in attempts to crack down on illegal immigration. This is the latest in a slew of reforms in the past half century, continuously shifting the contemporary landscape. The current administration’s attempts to completely reform immigration follow in the footsteps of many changes before that marginalize an indispensable group within the United States.

I recently took a course at the University of Chicago entitled “Immigration, Law, and Society” where I learned about past legislation and its effects on the immigrant population. Taught by Dr. Angela Garcia, it focused on the intersections of the legal and societal views of immigration and how the two influence one another. It was my pleasure to meet with her again and discuss the arising changes to views on immigration and its enforcement.

Garcia takes a more nuanced approach to the similarities of present and past legislation, arguing that US policy has “long oscillated between inclusion and exclusion,” motivated by the rationale of the current political climate. She emphasized the framing of racial groups as threats, and that this polarizing rhetoric is currently “more visible, amplified by social media.” The use of technology further supports a surveillance state by en-

abling the government to monitor its residents and their behaviors through new advancements.

A more salient difference is the “externalization of enforcement,” which she describes as collaboration with countries of origin to stop migrants from entering the U.S. Partnering to solve this presumed problem has not been without complications. Recently, Kilmar Abrego Garcia was incorrectly deported to a maximum security prison, el Centro de Confinamiento del Terrorismo (CECOT). The Supreme Court requested that his return be facilitated, but the present presidential administration has refused to do so. Dr. Garcia argues that the deportation of immigrants to this prison “is not standard practice and opens the door to serious human rights, legal, and geopolitical concerns.” She highlights the lack of due process for these deportees accompanying the human rights violations, overcrowding, and lack of transparency from CECOT. This novel practice will inevitably have implications on both domestic and foreign policy. The insufficient treatment of foreign nationals through rhetoric and deportation can only weaken ties to various nations. Combined with prevalent economic uncertainty from tariffs, it will diminish U.S. power globally. Garcia argues that the incorrect deportation demonstrates “intensified tensions” between the executive and judi-

cial branches as the executive branch disregarding court rulings to continue deportations shows potential for undermining judicial authority. This vulnerability could have significant ramifications for our system of governance and raises considerations for the expansion of this disregard into other spheres.

The current instability in immigration practices will have lasting effects on the everyday lives of immigrants across the United States, undocumented or not. As developed in her scholarly work, Garcia mentions that legal passing (a method of presenting oneself to avoid detection as not fully legal) is more necessary in hostile environments. These behaviors are shaped by an individual’s legal consciousness (how people understand and engage with the law), and that mindset is developed by the policies of their environment. The more anti-immigration views are emphasized and deportations prioritized, the more consciousnesses will be shaped by fear, uncertainty, and government distrust. She posits that this cannot be stopped by dwelling in sanctuary jurisdictions; instead, this change will “intensify the need for legal passing as a survival strategy while simultaneously reinforcing a sense of ‘illegality’ as a permanent condition, heightening the toll of undocumented life.”

For many, what Garcia has mentioned is irrelevant. They prefer that fearful state, as is suggested by

FINDING IMPARTIALITY IN A VOID

by TEDDY PITOFSKY STAFF WRITER

My interviewee, who I will refer to as TPJ (for the Potential Juror), was summoned to appear as a juror in The People of the State of New York v. Donald J. Trump, in which the then-former president was charged criminally with falsifying business records to conceal payments to a pornographic film actress. In any case involving a celebrity, it can be difficult to find jurors who have no prior knowledge or biases that would prevent them from being impartial, as well as jurors who would not be overwhelmed by participating in such a controversial and high-profile case. Having participated in the jury selection process, however, TPJ left confident that it produced an unbiased jury that could fairly judge the case. Given the odd circumstances of the case, there were several notable distinctions in the jury selection process. Upon entering the courtroom for the first time, TPJ saw the judge, the lawyers for both sides, and the then-former President of the United States, who appeared, entirely unsurprisingly, to be unhappy about being a criminal defendant at trial. Unlike in most jury selection processes, in which judges normally resist efforts by potential jurors to avoid jury service, TPJ recalls the judge telling the prospective jurors that they could leave for any reason or no reason and that they would still be credited with fulfilling their jury service. Having some familiarity with how jury service usually works from prior jury experiences, TPJ understood that this was unusual, and noted that it served the interest of excluding jurors who believed they were too biased or too unnerved to serve.

TPJ did not seek to be excused, understanding the significance of the case and the need for unbiased,

fair, strong jurors. TPJ understood the unusual nature and importance of the case, but also noted that the point was emphasized by the fact that no other juries were being seated in the courthouse for the duration of the selection process, which created a heavy atmosphere in the courthouse.

As the jury selection process proceeded, TPJ became increasingly comfortable that it was executed in a manner that ensured a fair process. According to TPJ, the way the judge and the lawyers interacted with the potential jurors filled the courtroom “with a sense of importance and duty that obliterated prejudice.” Additionally, although the jurors were identified only by assigned numbers in court to protect their identities, the parties knew their names and were able to do background checks, which seemed to involve internet and social media searches. This allowed both sides to ask informed questions of many of the jurors, and the discussions that ensued, which explored potential biases, reinforced the need for jurors to remain entirely open-minded and decide the case only on the evidence and the law. Many of the questions in the voir dire, or preliminary examination, process seemed largely typical. The question, “Do you have any opinions about the defendant?” only feels uncommon when it is asked about a former president. While some potential jurors responded that they supported or admired the former president, many more responded with negative views about him or policies pursued during his administration. TPJ noted the surreal quality of observing the former president, someone of immense power, sitting stoically as a parade of strangers just a few feet away publicly attacked his character. TPJ recalls some of the hypothetical questions proposed, such as:

“If you walk into the kitchen and there is a step stool in front of the cabinet, the cookie jar is lying on its side on the counter, the cookies are spilled on the counter, and your young daughter has crumbs on her shirt, are you somebody who is comfortable drawing a logical conclusion from the evidence before you?” TPJ noted a pattern in which anyone who responded to such questions by saying the evidence was only circumstantial and not definitive, or who expressed strong political engagement or bias, was not selected for the jury. Based on this line of questioning, TPJ concluded that both the prosecution and defense had a limited number of vetoes, which they used to remove jurors clearly biased against them. Thus, while the lawyers’ goal clearly wasn’t to find impartial jurors, because both sides clearly aimed to eliminate any jurors biased against them, TPJ felt confident that most, if not all, partial juror candidates were eliminated from the final pool. Though it seemed impossible that such a contentious case could have an unbiased group of jurors, TPJ felt extremely confident that not only the selected jurors, but most of the final candidates would have been impartial in the trial. They said “following the process of the proceedings, there was a sense of importance and duty that obliterated prejudice.” This surprised me given that TPJ has strong political leanings, and yet they were extremely confident that, had they been picked, they would have been an impartial juror. They felt that the extensive selection process, and thorough background checks removed any clearly biased jurors, and that the intense atmosphere of the courthouse instilled an intense sense of justice in the hearts of them and their fellow candidates that would have prevented any possibility of bias.

PROFESSOR OMRI BEN-SHAHAR: ON THE PROSPECT OF PERSONALIZED LAW

by HARRIS LENCZ STAFF WRITER

For hundreds of years, equality before the law has been a foundational principle of Western liberal democracy. College students across the United States learn the importance of this concept from its origins in ancient Greek philosophy to its applications in American founding documents and modern courtrooms.

But what if total and blind equality before the law actually facilitates the inequities in society that it is designed to eradicate? Our laws work according to a one-size-fits-all model, and perhaps this fails to appreciate the many ways in which we are each unique individuals with key differences. Could a viable alternative be a personalized approach to law, in which laws are tailored to individuals based on data that is gathered about them using the latest AI technologies? Could this help make society more fair, or would it lead only to a Big Brother-esque dystopian nightmare?

This question has sparked great debate among legal scholars. ULM is honored to have spoken with one of the debate’s most prominent thinkers: Omri Ben-Shahar, Leo and Eileen Herzel Distinguished Professor of Law and Kearney Director of the Coase-Sandor Institute for Law and Economics here at the University of Chicago. Professor Ben-Shahar was kind enough to share key takeaways with us from his groundbreaking book Personalized Law: Different Rules for Different People (2022, co-authored by Ariel Porat).1

1 Ben-Shahar, Omri. Personalized Law: Different Rules for Different People. Chi-

First and foremost, Professor Ben-Shahar is not naive to the reality that some might be skeptical at first of the very idea of ‘personalized law.’ He does not shy away from this but embraces it. Indeed, he begins his book by acknowledging several reasons why personalized law is alarming: 1) “it gives the government immense data about citizens”; 2) “it threatens [the liberal tenet of] equality before the law”; 3) “it might destroy social coordination”; 4) “legal treatments depend on individual characteristics… which could be manipulated; and 5) “it delegates rule-making to non-human devices.”2 In addition, Professor Ben-Shahar is careful to clarify that his book is not intended to directly advocate for personalized law nor serve as a “manual for reform.”3 Rather, he stresses that his aim is to explore the potential promises of and problems with such an idea. Thus, his work should be read in the spirit of intellectual inquiry.

In his book, Professor Ben-Shahar reminds us that personalized treatment already exists in other professional fields, like medicine. He invokes the wise words of Hippocrates, the ancient Greek physician who is considered the father of medicine in the West: “‘It is more important to know what sort of person has a disease than to know what sort of disease a person has.’”4 Why not extend this logic to law? After all, “a legal norm calibrated for the ‘reasonable person’ can be replaced by a multitude of per-

cago: University of Chicago Law School, 2022.

2 Id. 9-10.

3 Id. 12.

4 Id. 19.

sonalized rules, each person with their own ‘reasonable you’ standard.”5 This could result in several benefits: “better drivers would be free to drive faster, more skilled doctors would be held to higher standards of care, vulnerable employees would receive stronger protections… and each borrower would be entitled to a personalized loan disclosure tailored to their specific concerns and delivered in a format fitting their mental capacity.”6

Professor Ben-Shahar elaborates on this last example regarding loan disclosures in our interview, explaining how personalized law in this domain could promote social justice by helping poor and uneducated citizens. Currently, disclosure forms are identical for everyone. But those who lack financial literacy and cannot afford an adviser will not be able to fill it out as well as those who have greater means. In effect, Professor Ben-Shahar says, they will end up with less protection. Treating people alike when they are not alike in an important way is only “but a caricature of equality and justice.”7 Professor Ben-Shahar illustrates the problem further by reference to a quote from the prolific French writer Anatole France that mockingly laments how the “‘majestic equality [of the law] forbids [both] the rich and the poor [from being able] to sleep under the bridges… beg in the streets… and steal bread.’”8 The implication here is that a law that is identical for two groups of drastically different circumstances will work to the advantage of those who hardly

5 Id. 1.

6 Id.

7 Id. 123.

8 Id.

“A legal norm calibrated for the ‘reasonable person’ can be replaced by a multitude of personalized rules, each person with their own ‘reasonable you’ standard.”

professor omri ben-shahar leo and eileen herzel distinguished professor of law at the university of chicago law school

need it at the expense of those who are restricted by it. Personalized law, then, could be a solution that helps to mitigate the unequal impact or outcome seen in such situations.

However, Professor Ben-Shahar mentions a limitation that has become more clear to him in recent years: the difficulty in obtaining reliable data about an individual from which an algorithm could produce the appropriate laws. In his book, Professor Ben-Shahar suggests that data could be gathered about people from their social media profiles. But now, he is more skeptical about the accuracy of this data, since recent studies have shown that there is often a discrepancy between how people present online versus how they are in reality.

For many people, Professor Ben-Shahar explains, social media is “a manifestation of the more impulsive, irresponsible, thoughtless” side of their personality and is not representative of their more “deliberate, thoughtful, and prudent” self in day-to-day life. It would be a mistake, then, for an algorithm to use data from the former to predict behavior in the latter and, in turn, output a personalized law for an individual based on that behavior. Thus, Professor Ben-Shahar stresses the importance of good data collection for the efficacy of personalized law. In general, he anticipates that personalized law will be increasingly ready for implementation as data science techniques and AI technologies grow more sophisticated and trustworthy.

There is no doubt much to look forward to. Readers interested in this exciting topic would do well to read Professor Ben-Shahar’s book. And for those interested in learning even more, ULM asked Professor Ben-Shahar if he had any additional book recommendations besides his own. He appreciates our question but does not find it so pressing. He responds with a smile: “I think that we have to divorce ourselves from the belief that one-size-fits-all recommendations have any value,” he says. “What’s important should be what’s important to you, not what’s important to the average unknown person.”

IMMIGRATION, LAW, AND SOCIETY: OUTSIDE THE CLASSROOM WITH. . .

CONTINUED FROM PAGE 48

many politicians and vicious media sources. They don’t care that racialized immigration sentiments appear to be propelling the country towards ultimate exclusion policies, like the historic Chinese Exclusion Act. What they fail to consider is the effect these efforts could have on those outside the intended group. Immigrants on the path to obtaining permanent status or family to undocumented immigrants will also live their lives differently in the face of more restrictive policies. In

another vein, the workforce will suffer a strain from the absence of numerous laborers. Many of those individuals are also contributing members of our economy, purchasing goods and services within the nation and paying taxes on the income they earn here. At this time, the United States must employ an interdisciplinary approach to properly address concerns surrounding immigration and develop a policy that supports both native and foreign born residents. This will

ultimately advance U.S. interests by bolstering our economy - through their labor force participation, purchasing power, and tax contributions - and by strengthening our position in a global hierarchy. For this reason, it is crucial to heed the words of experts like Dr. Garcia across various fields, as their advanced understanding of historical approaches and shifts enables them to effectively advise on future strategies and their implications.

REDESIGNING A BROKEN STATE:

ZAID AL-ALI ON SYRIA’S CONSTITUTIONAL CROSSROADS

by APARNA VISWANATHAN STAFF WRITER

After over a decade of civil war, Syria faces a precarious constitutional future. The fall of the Ba’athist regime in Damascus has given rise to an interim government under Hay’at Tahrir al-Sham (HTS), which, in late 2024, adopted a new constitutional declaration. The five-year interim document, which mandates a Muslim president and consolidates executive power, has raised alarms among observers who fear it mirrors the authoritarian tendencies of Syria’s past. Amid continued territorial fragmentation, human rights concerns, and economic instability, questions remain about building a legal framework that might support a meaningful transition to peace and democratic governance.

For Zaid Al-Ali, a leading constitutional development scholar and Visiting Research Scholar at Princeton’s Liechtenstein Institute on Self-Determination, these developments are part of a troubling pattern. “They had a presidential system, and what they’re tending toward in the current circumstances is to just maintain that presidential system with a different person in charge,” he said. “That system basically doesn’t work… It creates a lot of space for whoever happens to be the president to reestablish a dictatorship really quickly and very, very easily.”

Al-Ali has spent the last two decades advising constitutional processes in fragile states across the Middle East and North Africa. His legal career began in commercial arbitration, but after the U.S. invasion of Iraq, where both of his parents are from, he shifted focus. “It became immediately

obvious to me that I wanted to be involved in some way,” he said. That involvement led him to the United Nations Assistance Mission for Iraq, and later to constitutional advisory roles in Libya, Tunisia, Egypt, and Yemen. What makes Syria’s case especially difficult, he argues, is that the interim constitution lacks the institutional safeguards needed to navigate a volatile transition. The provisional parliament established by the new regime may seem democratic, but it is complicated by the decidedly non-democratic nature of Syrian political actors and parties. This issue is compounded by the interim constitution’s lack of internal legitimacy due to its failure to address minority group rights and regional autonomy. “They feel upset that their languages weren’t recognized. Their local rights weren’t recognized. Their rights to autonomy or self-determination weren’t recognized either. So a lot of them have reacted by rejecting the text,” he says. While discussions have begun regarding how to reconstitute Syria’s territory, the paths forward are politically and logistically fraught.“The first category is to reestablish a centralized system around Damascus… that doesn’t really seem feasible. The other category is to establish a federal system or at least a system that provides significant authority for local authorities. The problem is that Damascus isn’t willing to support that outcome. Neither is Turkey.” Without compromise, Al-Ali warns that regional disintegration could become permanent. International recognition adds another layer of tension. HTS is

officially designated as a terrorist organization by the United States and the European Union. Yet, it has recently gained diplomatic visibility in a geopolitical calculation by the U.S. and other actors to counter Russian influence in Syria, which has long supported the Assad regime. “It’s really hard to understand how you can have the U.S. and the EU say they are terrorists… and nevertheless, they are the legitimate, internationally recognized government of Syria,” Al-Ali notes. “The question of recognition is basically very political.”

Al-Ali emphasizes the legal and political risks of the transition from an interim to a permanent constitution. He highlights two long-term approaches to constitutional development in the long run: the ‘Big Bang’ model where the permanent constitution is implemented all at once after an interim period, or an incremental method where components are enacted over time. “If they’re planning to adopt the ‘Big Bang’ approach, there’s a huge risk because it could take a lot longer than they’re expecting and things could deteriorate in the meantime,” Al-Ali points out. “The second approach also comes with its own set of risks…it makes it really difficult to think of a holistic arrangement that includes everything.”

However, Al-Ali warns that even the best-designed constitution means little without parallel progress on justice, security, and the economy. “Even if everything is done correctly… if the economic situation and security in the country doesn’t stabilize…it’ll be tantamount to rearranging deck chairs on the Titanic.”

BRIDGING THEORY AND PRACTICE:

PROFESSOR TONY CASEY ON LAW AND FINANCE

by JONATHAN JI STAFF WRITER

Professor Tony Casey’s work sits at the intersection of legal theory, financial markets, and institutional design. At the University of Chicago Law School, where he teaches courses in bankruptcy law, Professor Casey studies how legal systems interact with economic complexity. His interest in these questions draws on both his academic and professional experience. Before entering academia, Professor Casey clerked for Chief Judge Joel M. Flaum of the U.S. Court of Appeals for the Seventh Circuit and practiced at Wachtell, Lipton, Rosen & Katz and Kirkland & Ellis LLP, focusing on corporate bankruptcy and complex litigation.

“I came to academics indirectly,” Professor Casey explains. “Some people go to law school knowing they want to be a professor or get a PhD… I practiced for about seven years before I decided to move into academics.” Still, during his time as a practicing lawyer, he often felt drawn to the academic rigor of legal studies at university. “I missed my law school days,” he says, “and the ability to just think about things till you figure them out or till you’re exhausted. Whereas in practice, we had to move on. The case is [on] going.”

Despite the shift away from private legal practice, real-world application remains at the center of his teaching at the UChicago Law School. “Theory is very important– you want to motivate the theory,” he said, “here’s why it’s academically interesting, here’s the model of the problem—but what do lawyers do with this? Why does a client care about it?”

This belief in practical academia is evident in his work beyond the class-

room at the Center on Law and Finance, which he founded in 2019 and now leads as Faculty Director. The Center provides a space for interdisciplinary research on the legal structures that support and shape financial markets, facilitating dialogue between academics, judges, regulators, and industry professionals.

“I’ve always thought of [academia] as a two-way street,” Professor Casey says. “In corporate bankruptcy, the judges and the lawyers and the academics are well connected. But in other areas, not as much. And so the Center of Law and Finance is taking a broad view of legal financial issues and saying, we want to connect academic ideas and put them out so the world knows about them.”

The Center’s work to connect legal academics and practitioners is especially important, Professor Casey explains, especially in financial law, where year after year, the space is always changing and economic uncertainty often surrounds cases. Regarding bankruptcy law, his area of expertise, Professor Casey said, “the main reason we have bankruptcy law is that bargaining is costly and contracting is incomplete,” he says. “You just can’t write the perfect contract. And people have incentives to… try to use [the gaps] to their advantage. Bankruptcy law deals with that problem.”

Professor Casey’s analysis extends into newer areas of financial innovation, including cryptocurrency. “The weird thing about crypto in my mind is the pitch was, we’ll get rid of banks and intermediaries and we’ll create these one-to-one transactions,” he says. “And it’s the opposite, right? You had all these

exchanges come into existence and these wallets come about. And what you did was you created new intermediaries.”

Rather than decentralizing finance, Professor Casey argues, crypto has reconstructed the old institutional patterns of traditional banking. “If you go back to the early 1900s or late 1800s, it was what people were talking about with banks,” he explains. “You were reinventing banks and then had to re-regulate banks.” Making the rules legible rather than preventing risk was at the core of the regulatory measures. “I think we’re in a world where it won’t be a decentralized financial system in the way that the early talk was,” he says. “It’s just an alternate financial system with different types of intermediaries that there’s a value in regulating. But I do think the most important thing is to get regulation that is predictable and has some visibility to the players.”

Beyond the University of Chicago, Professor Casey’s work has earned him recognition within the broader legal and financial communities. He is a fellow of the American College of Bankruptcy and a member of the National Bankruptcy Conference. He has also served as a visiting professor at Harvard Law School, the National University of Singapore, and the Hebrew University of Jerusalem.

Despite the breadth of his teaching and research, the questions that animate Professor Casey’s work remain consistent: how do legal institutions respond to financial complexity, and what happens when they fall short? “You’re never at the level where everyone’s figured everything out in bankruptcy or finance law,” he says. “There’s just new problems every year… and for me, that’s been super fun about the area.”

CHIRAAG BAINS: REFORM

AND REALIZING THE PROMISE OF DEMOCRACY IN THE U.S.

by MICHELLE DU ASSOCIATE EDITOR

Chiraag Bains has worn many hats throughout his career as a civil servant, from serving as Senior Counsel to the Assistant Attorney General of the U.S. Department of Justice Civil Rights Division to Director of Legal Strategies at the nonprofit Demos, and more recently, Deputy Assistant to the President and Deputy Director of the Domestic Policy Council at the White House during the Biden administration. When describing the throughline between his various roles throughout his career, Bains states, “I believe deeply in using government as a tool for good in people’s lives, and so I’ve spent a significant portion of my time in government.” The thread that connects all his work is his dedication to promoting equal opportunity and fairness, rooted in a patriotic commitment to the founding principles of the United States—despite also recognizing that the nation has never lived up to these principles of liberty and equality. Bains notes that the path to bridging the gap between the abstract principles of the founding documents and lived reality has never been smooth or linear. Nevertheless, Bains has dedicated his career to actualizing and promoting equitable and inclusive democracy, leveraging a wide array of methods that range from litigation strategy to base building. He explains the importance of collective action, stating that “when we’ve made forward progress, it’s only been through the concerted effort of the people.”

Bains first started his career as a prosecutor in the Civil Rights Division of the U.S. Department of Justice, holding individuals accountable in contexts such as police abuse, correctional officer

misconduct, and hate crimes. This work primarily sought to bring justice to an individual victim or community, as in the case of a hate crime like cross burning. After this role, Bains moved to the front office of the Civil Rights Division, where he helped supervise investigations into police departments and prosecutors’ offices for patterns of misconduct, such as excessive force or repeated failure to protect from harm in prisons. He recounted patterns of misconduct that often emerged from high-level policy choices, as opposed to an isolated bad actor’s decision: “They’re the result of a policy choice. . .often in the command structure in the police or prison context, or even in the civilian policy-making apparatus . . . A mayor or a city council decides, ‘here’s what we’re going to do,’ and then demands that of the police department.” He points to zero tolerance and broken windows policing as examples of policies that have led to excessive force and patterns of discrimination.

After the 2014 police shooting and killing of Michael Brown in Ferguson, Missouri, Bains was instrumental in crafting the groundbreaking Ferguson Report, outlining systematic patterns of racial bias in vehicle stops, citations, arrests, use of force, and violations of due process rights in the courts.1 Bains remarks that despite the Department concluding that there lacked a basis to prosecute the officer who shot Brown, the Report corroborated and validated the feelings of community members and street protestors: anger

1 United States Department of Justice Civil Rights Division. Investigation of the Ferguson Police Department. March 4, 2015.

and pain from years of systematic abuse, wealth extraction, and racial discrimination by the criminal justice system. From these findings, Bains’ team produced a letter providing legal guidance to state and local courts across the US, created a grant program to stimulate innovations that prevent the criminalization of poverty, and held convenings to bring together stakeholders ranging from city attorneys to advocates and police. Inspired by the systems-level impact of the Ferguson Report that resonated with the lived experience of marginalized communities, Bains continues to expand his democracy-building toolkit—and subsequently, his impact—to include methods beyond litigation: “I now think about a broader set of tools: litigation, regulation, communication strategies, movement building strategies are all needed in order to build a just and inclusive society.”

Bains points to a contrast between the sociopolitical climate during the criminal justice reform movements of 2014 and 2020 and the political climate stemming from the anti-democratic actions of the current administration. For example, Bains notes that 2014 and 2020 were time periods when individuals and communities were willing to grapple with tough questions surrounding justice and crime, as opposed to engaging in fear-based politics. In contrast, Bains asserts that in the current political climate, “the executive is following a very traditional and actually supercharged kind of law-and-order, tough-on-crime, arrests-and-incarceration-based model, as well as deportation, given the focus on immigration.” Exacerbated by extreme executive aggrandizement, the Trump administration’s fear-based approach to crime has

“…it’s ultimately going to be for us, the people…we’re going to have to stand together in the streets and stand up for the founding principles of this nation and say, no, we do believe in democracy.”

chiraag bains

civil rights attorney, former deputy director of the domestic policy council at the white house

proliferated into other sectors of society, such as education. Bains claims, “This is the most autocratic presidency, certainly during my lifetime, and probably during the course of American history.” Consequently, Bains says this political moment is different from any other in his lifetime in terms of challenging the strength of American democracy and forcing Americans to proactively engage in pro-democratic movement-building.

Democracy is an iterative process, one that requires active engagement. As such, Bains views this moment as crucial for organizing and real courage: “It is not a moment to shrink to the sidelines and be silent.” The Trump administration, in unprecedented moves, is consolidating power with little congressional opposition, demonizing courts, dismantling federal agencies, seizing up federal funds, and punishing free expression in universities and nonprofits—without respecting legal processes. Taken together, these actions

paint a stark image extending beyond isolated orders: the Trump administration is aiming to (re)define the very values of this country and democracy as it is currently understood. Institutions in civil society, from universities that foster free inquiry to well-resourced law firms that fight America’s legal battles, serve as bulwarks of democracy. Bains maintains that it is not the time for these pillars of civil society to bow down to pressure from the Trump administration. Since the political moment is not “politics as usual,” Bains believes that collective action, or “people power,” is the most effective way to fight anti-democratic forces. It is up to the everyday American to use any legal, policy, and movement-building tools at their disposal to offer an alternative vision of social and economic policy in the US. Through avenues such as public demonstrations, elections, nonprofits, and base-building organizations, Bains states, “It’s ultimately going to

be for us, the people. . . . we’re going to have to stand together in the streets and stand up for the founding principles of this nation and say, no, we do believe in democracy.”

While Bains recognizes that the moment is demoralizing and dark for many Americans, he remains staunchly committed to building a country that works for everyone. He rejects apathy and passivity, saying that this moment should be a time of active flowering— of ideas, initiatives, and ambitions for the nation. He declares, “I can imagine a world where nobody lives in poverty, everyone has housing, [and] everyone can reach their full potential . . . [where] we don’t have people being attacked because of the color of their skin or their sexual orientation. . .[where] we’re not demonizing transgender Americans and stripping them of their rights, where. . .we build fairness into all of our social policy, and economic policy as well . . . I can imagine that world.”

REDESIGNING A BROKEN STATE: ZAID AL-ALI ON SYRIA’S CONSTITUTIONAL. . .

CONTINUED FROM PAGE 52

Al-Ali’s experience underscores that the work of constitutional reform is often a difficult undertaking in the face of structural dysfunction that renders progress slow and uncertain. “You keep on trying and trying, and there are no successes after a long period of time,” he reflected. “It’s like either 20 million people are better off, or you have worked for a whole year,

and no one’s even noticed that you’ve done anything.”

Still, he remains committed to the work. “You have to hold that hope,” he said. “There’s only one way to learn to do this type of thing, and that’s by doing. And the only way to do it is to get into the deep of it and start getting involved.”

As Syria’s legal architecture

takes shape, Al-Ali’s insights remind us that the constitutional process is deeply entangled with fraught political, economic, and territorial fractures. Still, his work demonstrates that even in the face of uncertainty and slow progress, the dedication to reforming legal systems can still lay the groundwork for meaningful change.

UPCOMING CHICAGO

HB 2337’S NEW CHAPTER FOR SPECIAL EDUCATION IN ILLINOIS

by SAMUEL MORSE STAFF WRITER

In April 2025, the Illinois General Assembly advanced House Bill 2337 (HB2337), a reform aimed at safeguarding the rights of students with disabilities in special education disputes.1 HB2337 amends the article on children with disabilities in the Illinois School Code, targeting settlement agreements that require families to waive their future rights to a Free Appropriate Public Education (FAPE).2 These rights include ongoing access to individualized educational supports, specialized instruction, and necessary related services tailored to evolving educational needs. These waivers, often concealed in legal boilerplate, prevent families from addressing future unmet educational requirements. HB2337 explicitly prohibits such prospective waivers by rendering them unenforceable in administrative hearings or court proceedings, reinforcing Illinois’ commitment to equitable special education practices and positioning Chicago Public Schools (CPS) to lead by example.3

Federal law has guaranteed individualized education for students

1 H.B. 2337, 104th Gen. Assemb., Reg. Sess. (Ill. 2025). https://www.ilga.gov/ legislation/BillStatus.asp?DocTypeID=HB&DocNum=2337&GAID=18&SessionID=114&LegID=159993/.

2 Id.

3 Id.; Corey H. v. Bd. of Educ., 995 F. Supp. 900 (N.D. Ill. 1998). https://law.justia.com/cases/federal/district-courts/ FSupp/995/900/1598469/.

with disabilities since the Education for All Handicapped Children Act of 1975, later codified as the Individuals with Disabilities Education Act (IDEA).4 IDEA mandates Individualized Education Programs (IEPs) to ensure FAPE in the least restrictive environment.5 Yet implementation has consistently fallen short nationwide. Resource disparities, inadequate training, and administrative bottlenecks frequently hinder full compliance.6 Consequently, districts often resolve disputes through settlements, providing parents immediate relief, but at the expense of waiving critical future rights.7

Although waivers remain permissible under federal law, advocates, notably Equip for Equality and Access Living, argue they exploit power imbalances between districts and families.8 Districts possess signif-

4 Education for All Handicapped Children Act. Pub. L. No. 94-142, 89 Stat. 773 (1975). https://www.govinfo.gov/ content/pkg/STATUTE-89/pdf/STATUTE-89-Pg773.pdf/.

5 Individuals with Disabilities Education Act (IDEA). 20 U.S.C. § 1414 (2018). https://sites.ed.gov/idea/statuteregulations/.

6 U.S. Gov’t Accountability Off. GAO20-448 (2020). https://www.gao.gov/ products/gao-20-448/.

7 See generally Equip for Equality. Special Education. https://www.equipforequality.org/issues/special-education/ (providing resources and advocacy information for parents navigating special education services in Illinois).

8 See Access Living. Education Policy Work. https://www.accessliving.org/

icant legal resources, leaving parents, who often lack legal representation, at a disadvantage. Families may unknowingly surrender long-term protections for urgent, short-term services.9

HB2337 addresses these inequities, prohibiting preemptive waivers of educational rights. The bill explicitly states that settlements cannot include provisions waiving future FAPE claims; any such waiver would become legally void in Illinois administrative hearings and courts.10 HB2337 permits targeted settlements addressing specific issues but prohibits broad clauses shielding districts indefinitely. The legislation responds to alarming practices, including Illinois districts seeking waivers spanning five or ten years into a student’s educational future.11

The bill has rapidly garnered significant bipartisan support, highlighting widespread consensus on its necessity. Introduced by Representative Laura Faver Dias in January 2025, it swiftly gained bipartisan co-sponsorship.12 Following unanimous approval (13–0) in the House Education Policy Committee, HB2337 also passed the full House with a 113–0

CONTINUED ON PAGE 58

defending-our-rights/education/ (providing information on Access Living’s efforts to protect the rights of students with disabilities and improve special education services in Chicago and Illinois).

9 Equip for Equality, supra note 7.

10 H.B. 2337, supra note 1.

11 Id.; Equip for Equality, supra note 7.

12 H.B. 2337 Bill Status, supra note 1.

CHICAGO POLICY

SB3463: PROVISIONS AND EFFECTS ON CHICAGO RESIDENTS

by JACK MARTINEZ STAFF WRITER

Within the criminal justice system, youth offenders represent a significant number of cases. In the course of a year, the United States Justice system processes over 2.5 juvenile arrests for crimes as small as vandalism and as large as murder.1 As a result, it is estimated that 8-10% of American youths interact with the justice system in a calendar year.2 Each of these interactions comes with paperwork, including arrest reports, court filings, convictions, and sentencing recommendations, all of which go on a juvenile’s record. These records can have devastating effects on the future opportunities of juvenile offenders, often limiting their ability to find jobs,3 re-enter school,4 or access necessary mental

1 Steinberg, Laurence, He Len Chung, and Michelle Little. “Reentry of Young Offenders from the Justice System: A Developmental Perspective.” Youth violence and juvenile justice, January 1, 2004. https://pmc.ncbi.nlm.nih.gov/ articles/PMC2813457/.

2 Id.

3 Golan, Limor, Rong Hai, and Hayley Wabiszewski, “The Impact of Juvenile Conviction on Human Capital and Labor Market Outcomes.” Federal Reserve Bank of St. Louis, September 17, 2024. https://www.stlouisfed.org/ publications/review/2022/01/14/ the-impact-of-juvenile-conviction-on-human-capital-and-labor-market-outcomes?utm_source=chatgpt. com/.

4 “Back on track: Supporting youth reentry from out-of- ...” accessed May 14, 2025, https://www.prisonpolicy.org/

health treatments.5 However, a new Illinois law aims to reduce the stigma related to youth incarceration. Senate Bill 3463 (SB3463), recently passed by the Illinois legislature, mandates the mass expungement of juvenile criminal records on a mass scale.

SB3463 has two main provisions, each of which aim to ease the expungement process for juvenile offenders. First, the bill requires that all interaction with law enforcement, documented or otherwise, be wiped from a juvenile’s record if no criminal charges were filed.6 This means that documentation of probable cause investigations, search warrants, and even arrest records will be automatically wiped from a child’s record, provided they were not charged with a crime after the incident.7 This represents a significant shift in Illinois judicial policy. Although juvenile offenders were formerly eligible to petition to have this information wiped from their records, SB3463 newly mandates that the state erase these records immediately and automatically.

Additionally, the bill establishes an automatic expungement scans/sp/CC_youthreentryfall09report. pdf/.

5 Id.

6 State House Illinois. “SB3463.” Illinois General Assembly - full text of SB3463, accessed May 14, 2025. https://www. ilga.gov/legislation/fulltext.asp?DocName=&SessionId=112&GA=103&DocTypeId=SB&DocNum=3463&GAID=17& LegID=153128&SpecSess=&Session=/.

7 Id.

process for juveniles who were found delinquent (the juvenile equivalent of a conviction) of a crime.8 The bill creates a waiting period where, two years after an offender has served their sentence, they become immediately eligible for an expungement.9 Once the two year waiting period is satisfied, the law mandates that the court must automatically schedule a hearing to expunge the charges. The law also ensures that, even if the juvenile does not appear in court on the scheduled day of their hearing, their record will still be expunged.10 Although this process only applies to those offenders who commit crimes smaller than Class 2 felonies, such as burglary and arson, which carry a sentence of 3-7 years in prison,11 it represents a massive shift in judicial policy nonetheless. Again, the automatic nature of the expungement is entirely novel to the state of Illinois: whereas former offenders had to attend tedious hearings in order to expunge their convictions, current offenders simply need to satisfy SB3463’s waiting period to have the charges wiped from their record. Although SB3463 became law at the beginning of 2025, its effects are still unknown. Inmate advocacy organizations claim that the

CONTINUED ON PAGE 59

8 Id.

9 Id.

10 Id.

11 “DuPage Office.” Dolci & Weiland, accessed May 14, 2025. https://www. dolciandweiland.com/class-two-felony.

HB 2337’S NEW CHAPTER FOR SPECIAL EDUCATION IN ILLINOIS

vote in April.13 Currently, HB2337 awaits Senate approval, championed by Senator Dave Koehler. Given the broad legislative support, its passage appears highly probable.14

As Illinois’ largest district, serving over 50,000 students with disabilities, Chicago Public Schools (CPS) holds unique significance in HB2337’s implementation.15 CPS has historically faced scrutiny for its special education practices, notably through the landmark 1992 federal court decision in Corey H. v. Board of Education, which documented severe systemic deficiencies,16 including significant delays in evaluating students, failure to provide timely and appropriate Individualized Education Programs (IEPs), inadequate training for special education staff, and persistent classroom overcrowding. While CPS has since made measurable progress by expanding inclusive practices, hiring specialized staff, and enhancing procedural safeguards, systemic inequities persist, reinforcing the need for HB2337’s protective measures.

Upon enactment, CPS will

13 Id.

14 Id.

15 Corey H., 995 F. Supp. at 903.

need to reevaluate settlement practices, revising agreement templates and negotiation strategies to align with HB2337. Although CPS has not publicly opposed the bill, it has not proactively announced any procedural adjustments.17 Immediate policy revisions and staff training will become necessary. Effective implementation could position CPS as a statewide model for fair, transparent, and rights-centered special education practices.18

Beyond Illinois, HB2337 aligns with a broader national shift toward rights-based educational reforms. Although limited geographically, the bill may influence advocacy and policy initiatives in other states confronting waiver-based settlements. HB2337’s emphasis on enduring educational protections signals a more profound philosophical shift by reaffirming FAPE as a civil right rather than a negotiable administrative convenience.

Critics argue that restricting

17 Chalkbeat Chicago. CPS Declines Comment on Pending Special Education Legislation (Apr. 2025). https://www. chalkbeat.org/chicago/2025/03/28/ illinois-lawmakers-bill-special-education-waivers/.

19 Equip for Equality, supra note 7; Access Living, supra note 8. CONTINUED FROM PAGE 56

waivers might discourage districts from efficiently settling disputes. Advocates counter that fairness, transparency, and the protection of students’ rights must take precedence over administrative convenience.19 Prioritizing expediency risks perpetuating systemic inequities such as disparities in resource allocation, uneven access to qualified special education professionals, delayed evaluations, and inconsistent provision of specialized services— inequities that the IDEA was explicitly designed to dismantle. By safeguarding students against future waivers, HB2337 addresses a critical legal blind spot: the vulnerability of students’ long-term educational rights in settlements. The legislation exemplifies Illinois’ evolving commitment to disability justice by prioritizing enduring protections over short-term administrative convenience. Effective implementation, particularly in districts like CPS, will reinforce nearly half a century of federal disability education law, positioning Illinois as a national exemplar of equitable special education practices.

16 Id.

18 Equip for Equality, supra note 7.

SB

3463: PROVISIONS AND EFFECTS ON CHICAGO RESIDENTS

16 See fn. 12. CONTINUED FROM PAGE 57

new expungement process has made the juvenile justice system more equitable. They argue that, because juveniles often struggled to access legal resources, the automatic nature of the expungements ensure that each juvenile offender can rid themselves of past mistakes and move on with the work of reintegrating into society.12 While it is true that juvenile offenders have struggled to access legal resources,13 there is little evidence yet to show whether the new system has led to an influx of newly rehabilitated juvenile offenders. The expungement process is decentralized, and no statewide data exists to show the number of expungements, let alone to assess how former offenders’ lives have been impacted by the new law. Furthermore, with the law having been in effect for about four months at the time

12 Naomioverstreet. “SB 3463 Streamlines Expungement for Juveniles in Illinois.” JDP, August 27, 2024. https://www. jdp.com/blog/sb-3463-streamlines-expungement-for-juveniles-in-illinois/.

13 See fn. 4.

of this writing, the bill’s long term effects have yet to be realized.14

Similarly, the recent implementation of this provision has had an unknown effect on prosecutors’ offices. Across the country, including in Illinois, prosecutors often base sentencing recommendations on a number of factors, including an individual’s past criminal record.15 If juvenile records are being wiped, it may become difficult for prosecutors to make informed sentencing recommendations. However, supporters of the bill argue that the two year waiting period for expungement allows for prosecutors to accurately classify offenders as ‘re-

14 See fn. 6.

15 “Prosecutorial Influence on Federal Sentencing Outcomes.” Leppard Law - Top Rated Orlando DUI Lawyers & Criminal Attorneys in Orlando, accessed May 14, 2025. https://leppardlaw.com/ federal/sentencing/prosecutorial-influence-on-federal-sentencing-outcomes/#:~:text=A%20federal%20 prosecutor%20plays%20a,plea%20 bargains%20and%20charge%20selections/.

cidivists’ rather than truly reformed criminals.16 With only four months of fragmented data to study, the bill’s effects remain unclear; but prosecutors offices have yet to lodge widespread concerns about the program. Though, even without the statistics, it’s likely this bill will be a much needed change to an ailing criminal justice system. Allowing juveniles a fresh start, especially after they’ve served their sentences and become rehabilitated, is a significant step towards leveling the playing field for all citizens, regardless of past mistakes.

BETWEEN SHELTER AND THE STATE: DECRIMINALIZATION OF HOMELESSNESS IN ILLINOIS

by HALEY THOMAS STAFF WRITER

House Bill 1429 (HB1429), known as the Bill of Rights for Homeless People, was introduced January 16, 2025 by Representative Kevin John Olickal.1 The bill prohibits state and local governments from creating or enforcing policies that criminalize people experiencing unsheltered homelessness for occupying or engaging in life-sustaining activities on public property. The bill defines “life-sustaining activities” broadly to include “moving, resting, sitting, standing, lying down, sleeping, protecting oneself from the elements, eating, drinking, and storing personal property as needed to shelter oneself.”2 The primary goal of HB1429 is to decriminalize public displays of homelessness for the nearly 26,000 people who experience unsheltered homelessness each night in Illinois.3 To fully understand the bill’s significance, it is important to consider the broader context of growing efforts to criminalize homelessness and heightened public fears about safety.

If enacted, the bill would require law officials to make good faith

1 Hecke, Tim. 2025. “New Law Would Ban Fines, Criminal Penalties for Homeless People Occupying Public Land - CWB Chicago.” CWB Chicago. April 2025. https://cwbchicago.com/2025/04/newlaw-would-ban-fines-criminal-penaltiesfor-homeless-people-occupying-publicland.html/.

2 “Illinois General Assembly - Bill Status for HB1429.” 2025. Ilga.gov. 2025. https://www.ilga.gov/legislation/BillStatus.asp?DocTypeID=HB&DocNum=1429&GAID=18&SessionID=114&LegID=157430/.

3 “IDHS: Ending Homelessness.” State. il.us. 2021. https://www.dhs.state.il.us/ page.aspx?item=138512/.

efforts to refer individuals to shelter services or provide resources to address their housing needs, rather than resorting to force, and to keep public land readily accessible for use by unsheltered individuals. Most significantly, this means they cannot prevent people from sleeping or occupying any public areas, nor destroy campsites without sufficient warning. This bill would protect the tens of thousands of people experiencing homelessness from legal interference and affirm their right to occupy public spaces. While this may seem like an insignificant shift, the statistical realities demonstrate its gravity. Out of the affected homeless population, over 25% have been arrested for activities directly related to homelessness.4 If passed, this rate would overtime become 0%, and even reduce the 15% of Illinois jail populations arrested during an unsheltered state.5 Evidently, HB1429 would be monumental in the dismantling of the cycle of recidivism perpetuated by criminalized homelessness.

While there have been overall and localized strides to alleviate the homelessness crisis, like the Home Illinois initiative launched in 2024, these have focused predominantly on expanding housing programs aimed at getting people off the streets, rather than protecting those already there.6 However, this prior oversight of decriminalizing homelessness is largely consistent with local trends. Through-

4 “Illinois Bill Makes History, Highlights….” n.d. Vera Institute of Justice. https://www.vera.org/news/illinois-bill-makes-history-highlights-criminalization-to-homelessness-pipeline/.

5 Id. at 4.

6 “IDHS: Home Illinois, Illinois’ Plan to Prevent and End Homelessness.” State. il.us. 2016. https://www.dhs.state.il.us/ page.aspx?item=145344/.

out Illinois, more than 25 communities have strengthened ordinances that criminalize homelessness, including the community of Peoria, Illinois’ 8th largest town.7 In this environment, HB1429 stands out as the first statewide bill of its kind protecting those living on streets in their current state. As a result, it has sparked significant backlash, particularly from conservative lawmakers. Led by Republican Representative John Cabello, opponents argue that the bill’s language, particularly around “life-sustaining activities” and “public property,” is dangerously vague.8 They fear it would allow unhoused individuals to occupy any public space, including areas outside storefronts, schools, and other sensitive locations without restriction. While unsheltered people often have no safe place to go once shelters are full, critics question whether unrestricted occupation of public spaces is the right solution. Some even raise concerns that the broad definitions could extend to activities like public bathing or expand squatter rights, which may put public health and safety at risk. For this reason, it is unclear if HB1429 would actually alleviate the homelessness crisis as it is an imposition of negative rights without positive legal obligations to provide housing or services. That is, the government is not

7 Hall, Nicholis. 2024. “In Peoria, like Many Other Illinois Towns, Being Homeless Is Now a Crime.” People’s World. November 22, 2024. https://peoplesworld. org/article/in-peoria-like-many-otherillinois-towns-being-homeless-is-now-acrime/.

8 Barker, Catrina. 2025. “Illinois Bill to Protect Homeless from Fines Faces Law Enforcement Backlash.” The Center Square. March 28, 2025. https:// www.thecentersquare.com/illinois/ article_d6d70244-7ab1-428a-b4db0ede1cf66345.html/.

“HB 1429 would be monumental in the dismantling of the cycle of recidivism perpetuated by criminalized homelessness.”

legally obligated to make any efforts to alleviate homelessness, they are only prevented from arresting those experiencing homelessness. From this perspective, critics argue that expanding shelters and affordable housing would better address homelessness than HB1429’s approach.

The national legal landscape also sheds light on HB1429’s stakes. The 2024 U.S. Supreme Court case, City of Grants Pass v. Johnson, highlighted the growing legal hostility toward homelessness. In that case, the Court ruled that the Eighth Amendment’s ban on cruel and unusual punishment does not prevent local governments from enforcing criminal penalties against people for sleeping outdoors.9 The ruling strengthened the legal basis for criminalizing homelessness—a trend HB1429 seeks to reverse by explicitly prohibiting criminalization of life-sustaining activities on public property. While Grants Pass did not outlaw state protections for homeless people, it reinforced local authorities’ ability to impose harsh restrictions. In this sense, HB1429 directly challenges the current momentum toward local criminalization, but Illinois is not alone in this effort.

9 City of Grants Pass v. Johnson, 603 U.S. (2024).

Rhode Island and Connecticut have already adopted similar legislation that protects unhoused individuals’ rights to engage in life-sustaining activities.10 The different precedents contextualizing this bill furthers the question of local autonomy and state protections for homelessness. Overall, HB1429 presents a crucial opportunity to support the tens of thousands of unhoused individuals across Illinois. Decriminalizing public displays of homelessness could help break the cycle of incarceration and promote successful reentry into society. Illinois, and particularly Chicago, faces urgent needs to better support its growing unsheltered population. Yet, whether HB1429 will fulfill this promise depends heavily on how its language is interpreted and enforced. Depending on how officials define “life-sustaining activities” and how rigorously they uphold the bill’s protections, the law could either create critical new opportunities for unhoused individuals to find stability or, as critics fear, lead to overcrowded and poorly regulated public spaces. Because the bill’s future impact remains

10 Casino, Bruce, et al. “From Wrongs to Rights: The Case for Homeless Bill of Rights Legislation.” National Law Center on Homelessness & Poverty.

uncertain, refining its language and specifying implementation guidelines could strengthen its effectiveness and address public concerns. Clarifying and expanding the protections within HB1429 may not only safeguard the rights of unhoused individuals but also open pathways to long-term reductions in homelessness. But this alone will not solve the affordable housing crisis which facilitates such high levels of homelessness. In addition, further expansions of other programs designating funding construction of housing will be necessary to better Illinois’ current situation, and give those lacking shelter a place to live so they are not left permanently, but legally, unhoused.

BEYOND BABCOCK: SB 3649 AND THE FIGHT TO PROTECT WORKERS FROM EMPLOYER PRESSURE

by ZOE PARKIN STAFF WRITER

Captive-audience meetings are frequently used by employers as a tool to discourage union activity, often mandating them under the threat of workplace retaliation. In these meetings, employers may express dislike of unions, disseminate anti-union propaganda, and reinforce misinformation. Senate Bill 3649 (SB3649) would give workers “protections from mandatory participation in employer-sponsored meetings if the meeting is designed to communicate an employer’s position on religious or political matters.”1 Secondly, it protects workers who do not attend these meetings, preventing their subjection “to intimidation tactics, acts of retaliation, discipline, or discharge from their employer.”2 Proponents argue that this bill is a positive step in the fight for workers’ rights, as the meetings infringe on the employees’ free speech and are inherently coercive, spreading fear and misinformation. Detractors dispute the constitutional validity of laws preventing captive-audience meetings, claiming that restricting employer speech based on content violates the First Amendment. However, captive-audience meetings maintain a more murky legal presence than either critics or proponents of SB3649 present.

The National Labor Relations Act of 1935 marked the beginning of the legal recognition of workers’ rights to unionize. In the following decades, the ability for employees to send a representative for collective bargaining, strike, and seek justice for perceived workplace

1 Illinois General Assembly. Senate Bill 3649, 103rd General Assembly, introduced January 19, 2024.

2 Id.

discrimination was guaranteed by the Supreme Court. In order for employers to retain some control over union practices, the Court ruled employers could attempt to restrict union activity through tactics that did not “handicap” employee organization in Babcock v. Wilcox Co., 77 NLRB 577 (1956).3 This Supreme Court precedent was clarified further by the National Labor Relations Board in subsequent rulings, and employer-led meetings have remained legal, despite the fact that these meetings are recognized by both employers and employees alike as a tool to suppress union activity, which is illegal by other means. Additionally, SB3649 may be preempted by federal labor law. Section 8(c) of the National Labor Relations Act precludes using an employer’s expression of their opinion as evidence of an unfair labor practice.4 This is to maintain the employer’s First Amendment right to free speech.5 Undoubtedly, the purported issue with captive-audience meetings is their content, as employers expressing anti-union views is the reason for their main purpose. As a result, SB3649’s critics posit that the restriction of these meetings conflicts directly with Section 8(c) by prohibiting employers’ expression of opinion. In fact, the Illinois Policy Institute filed a complaint in the United States District Court for the Northern District of Illinois, attempting to block SB3649 from going into effect on First Amendment grounds.6 In Illinois Policy Institute v. Flanagan,

3 Babcock & Wilcox Co., 77 NLRB 577 (1956).

4 National Labor Relations Act of 1935, 29 U.S.C. §§ 151–169 (1935).

5 National Labor Relations Act § 8(c), 29 U.S.C. § 158(c) (1935).

6 Illinois Policy Institute v. Flanagan, United States District Court for the Northern District of Illinois, filed August 8, 2024.

the Institute seeks “preliminary and permanent injunctive relief against the Illinois Department of Labor—the agency charged with enforcing the Act.”7 A decision is still being rendered.

On November 13, 2024, the National Labor Relations Board (NLRB) created new standards for employers, forbidding mandatory meetings and employers from expressing any opinion on unions, positive or negative.8 This decision was challenged, and is currently pending before the United States Court of Appeals for the Eleventh Circuit. The Trump administration, however, has seemingly nullified the NLRB decision. The memo concerning captive audience meetings, GC Memo 22-04, was recently nullified by GC 25-05, issued by the NLRB’s new General Counsel.9 GC 2505 served to nullify over a dozen Bidenera policies; however, the memo alone does not overturn the NLRB decision; a ruling by the Eleventh Circuit will be required for that.

The federal restructuring and revision of the NLRB has created an uncertain state for the legality of captive-audience meetings. In Illinois, Illinois Policy Institute v. Flanagan awaits a decision, and the fate of employer-mandated meetings remains unclear. If the court allows SB3649 to stand, Illinois workers can expect to be protected from retaliation if they do not choose to attend these meetings, although they will still be allowed to take place, and employers may

7 Id. at 2.

8 National Labor Relations Board, Office of the General Counsel. General Counsel Memo 22-04: Captive Audience and Mandatory Meetings, April 7, 2022. https://www.nlrb.gov/guidance/memos/.

9 National Labor Relations Board, Office of the General Counsel. General Counsel Memo 25-05. https://www.nlrb. gov/guidance/memos/.

THE FUTURE IS OURS: HOW “WE WILL CHICAGO” IS REIMAGINING THE CITY

by LETOM KPEA STAFF WRITER

“WeWill Chicago”1 is a citywide framework that establishes more than 40 strategic goals and 150 policy objectives, spanning eight interrelated areas of urban life. Started in 2022, the initiative is a collection of development goals and a transformative reconstruction of urbanization—one that places equity, sustainability, and public engagement at the center. The development of the plan began through a collaborative effort involving city residents, neighborhood organizations, and local leaders. Over the course of two years, more than 240 participants from diverse communities met regularly to identify priorities, share lived experiences, and shape draft goals and ideas. The process was deeply participatory: over 11,000 residents contributed through in-person and online surveys, webinars, public meetings, and community events, all organized to capture the full range of perspectives across Chicago’s 77 neighborhoods. Each of its eight focus areas—ranging from housing to arts and culture, public health, education, and environmental resilience— has been shaped by local knowledge and designed to reflect the actual conditions and aspirations of Chicagoans. The goal is to create a more equitable and livable city for all residents, especially those on the South and West Sides, where decades of disinvestment have contributed to stark disparities in health, education, income, and safety.2

1 “We Will Chicago: Citywide Framework Plan.” SB Friedman Development Advisors. https://sbfriedman.com/ project/we-will-chicago-citywide-framework-plan/.

2 “We Will Chicago: An Instrument for Equity.” The Chicago Community Trust. https://www.cct.org/stories/we-will-chi-

The plan proposes meaningful changes that could have long-term effects across the city. Affordable housing is expected to expand through new zoning practices and protections against displacement. Health outcomes could improve with increased access to mental health services, trauma-informed care, and community wellness programs.3 Transportation infrastructure may become more inclusive and climate-resilient, while educational access will be broadened through the expansion of lifelong learning opportunities and support for adult and immigrant learners. Public space, culture, and civic life are also central to the plan, which calls for investment in local arts, inclusive policy making, and renewed trust between residents and government.4 These changes have the potential to not only improve individual quality of life, but to reshape the fabric of entire neighborhoods. Through collaborative efforts from community service groups, business organizations, and city management as well as a large monetary grant from the Chicago Community Trust organization.5 The allocation of $15000 to 10 organizations will assist them in starting phase 3 of the citywide planning effort.

The implications of “We Will Chicago” go beyond the city’s borders. Few urban plans in the United States have been this ambitious in scope while remaining grounded in grassroots input and principles of equity. If the plan is implemented effectively and equitably, cago-an-instrument-for-equity/.

3 Id.

4 We Will Chicago: Citywide Framework Plan.” SB Friedman Development Advisors, https://sbfriedman.com/project/we-willchicago-citywide-framework-plan/.

5 The Chicago Community Trust Awards $150,000 to We Will Chicago Partners. http://cct.org/.

it could serve as a national model for comprehensive city planning, especially for other large cities grappling with racial and economic divisions. It shows that transformative change is possible when planning is participatory, intersectional, and grounded in community values. This new model of governance, focused on long-term resilience rather than short-term fixes, could influence policy frameworks in other metropolitan areas. At its core, “We Will Chicago” represents a reinvestment in the idea of planning as a public good. It connects directly to the city’s planning legacy, including the 1966 Chicago Plan, while also acknowledging that today’s challenges require new tools, new voices, and new forms of collaboration. For a city as complex and divided as Chicago, this initiative is not just a strategy—it is a statement of values. The next phase of the plan involves turning goals into action: forming a new steering committee, developing racial equity and budget action plans, launching artist engagement programs, and refining land use and zoning regulations.6 These steps will be critical in ensuring the plan’s success and accountability. If implemented effectively, the long-term impact could be transformative. Chicago’s neighborhoods could become more equitable, its communities more resilient, and its civic institutions more responsive. The framework laid out by “We Will Chicago” provides a path toward a more just and sustainable future. For the first time in decades, the city is not just planning for growth, but planning for fairness, belonging, and shared prosperity.

6 See fn. 4.

BRIDGING THE DIGITAL DIVIDE: CHICAGO’S PURSUIT OF DIGITAL EQUITY

by ASHLEY LEE STAFF WRITER

Inan increasingly digitized world, internet access is no longer a luxury—it is a necessity. Yet, for tens of thousands of Chicagoans, high-speed internet, basic digital literacy, and affordable devices remain frustratingly out of reach.1 In response to this persistent divide, the City of Chicago has taken ambitious steps to address digital inequity through its Digital Equity Plan and, more recently, launching a Neighborhood Broadband Request for Proposals (RFP).2 These initiatives, backed by substantial public investment and community partnerships, offer a promising framework for building a more inclusive digital future.

The statistics underscore the urgency: over 172,000 households in Chicago still lack internet access at home, and nearly 92,000 do not own a single internet-connected device.3 The burden of this digital exclusion falls disproportionately on communities of color, particularly on the South and West Sides, where median household incomes fall well below the city average.4 In these neighborhoods, digital disconnection exacerbates existing disparities in education, employment, healthcare, and civic participation.

To address these systemic issues, the city formed the Chicago Digital Equity Council in 2022, bringing

1 City of Chicago. Digital Equity Plan 2023. https://www.chicago.gov/content/ dam/city/sites/digital-equity-council/ pdf/Digital-Equity-Plan-2023.pdf/, at 8.

2 City of Chicago. Neighborhood Broadband RFP. Digital Equity Council. https://www.chicago.gov/city/en/sites/ digital-equity-council/home/neighborhood-broadband-rfp.html/.

3 City of Chicago, Digital Equity Plan 2023, 6.

4 Id. at 8.

together local government, community-based organizations, researchers, and residents. The Council’s first major deliverable—the 2023 Digital Equity Plan—outlined a multipronged strategy to increase internet access, improve digital literacy, and expand device availability.5 The plan also emphasized the importance of centering community voices and leveraging neighborhood institutions to bridge the gap.

Since then, the city has made measurable progress. A citywide outreach campaign helped enroll over 212,000 households in the federal Affordable Connectivity Program (ACP) before its sunset in June 2024.6 Through the “Chicago Device Pledge,” thousands of refurbished computers and tablets have been distributed to residents in need.7 Additionally, the launch of the Digital Equity Portal has helped centralize information about available resources and services.8 Free public WiFi installations in city parks and the expansion of digital skills training programs further reflect the city’s commitment to closing the digital divide from multiple angles.

The latest and perhaps most ambitious development is the Neighborhood Broadband RFP, announced in late 2024. With $50 million in funding, the RFP targets the 25 least-connected community areas in Chicago.9 The goal is straightforward: provide high-speed, affordable broadband access to up to 130,000 households. But

5 Id. at 6.

6 City of Chicago. Final Progress Report for Chicago Digital Equity Plan. https:// www.chicago.gov/content/dam/city/ sites/digital-equity-council/pdf/Final-Progress-Report-for-Chicago-Digital-Equity-Plan.pdf/, at 4.

7 Id. at 7.

8 Id. at 3.

9 City of Chicago. Neighborhood Broadband RFP.

the approach is notably innovative. Rather than favoring large telecoms, the city is prioritizing proposals from community-based service providers, municipal networks, and public-private partnerships that demonstrate a longterm commitment to digital equity.

Proposals must meet several criteria, including symmetrical speeds of at least 100 Mbps, monthly costs under $30, and concrete plans for multilingual outreach, device distribution, and digital skills training.10 The city is also encouraging providers to focus on Multi-Dwelling Units (MDUs), which often house low-income residents but are systematically overlooked in traditional broadband expansion efforts. If successful, the RFP could serve as a national model for localized, equity-driven broadband infrastructure.

Of course, challenges remain. The end of the ACP has created new affordability concerns, and sustaining these efforts will require continued investment and political will. Moreover, legal and policy complexities around infrastructure, competition, and public funding will inevitably shape how these programs unfold. As Chicago navigates these issues, its Digital Equity Plan and Broadband RFP offer valuable insights into how cities can operationalize digital justice at a local level.

Ultimately, digital equity is about more than just getting people online. It is about ensuring that every resident, regardless of zip code or income level, has the tools to participate fully in modern life. Chicago’s strategy is far from perfect, but its emphasis on community collaboration, systemic investment, and targeted interventions is a meaningful step toward a more connected and equitable city.

10 Id.

GAME CHANGER: NIL COMPENSATION FOR ILLINOIS ATHLETES

by YOO-BIN KWON STAFF WRITER

In the most recent update of the ever-growing field of college sports, Illinois lawmakers have introduced House Bill 0307—a sweeping proposal that would allow public universities to directly pay student athletes for their Name, Image, and Likeness (NIL), which has become an increasingly popular recruiting tactic for schools to draw the best young athletes from around the country. It also enhances privacy protections for these deals, shielding athletes from disclosing their financial arrangements. Supporters argue it’s a bold step to protect athletes and elevate Illinois schools’ competitiveness. But a closer look reveals the bill may do more harm than good, especially for the average athlete.

On its surface, HB 0307 appears to be a progressive evolution of NIL reform. Since the NCAA approved the NIL system in 2021,1 much of the activity has been dominated by private deals, often brokered by independent NIL collectives, which has given institutions little power to oversee and manage such agreements.2 The Illinois bill attempts to centralize and streamline these arrangements, placing more control in the hands of schools. Proponents believe this could offer stronger protections to athletes,

1 “What Is Nil? NCAA Name, Image, Likeness Rule Explained.” NCSA College Recruiting, April 8, 2025. https://www. ncsasports.org/name-image-likeness.

2 Moody, Josh. “Two Years in, Nil Is Fueling Chaos in College Athletics.” Inside Higher Ed | Higher Education News, Events and Jobs. Accessed May 5, 2025. https://www.insidehighered.com/ news/students/athletics/2023/06/07/ two-years-nil-fueling-chaos-college-athletics.

giving them clear contracts and ensuring they’re not exploited by third-party agents or shady collectives.

Additionally, the bill would allow Illinois schools to directly compete with powerhouse programs like Texas, Duke, Miami, or Ohio State, where top athletes often land six- or even seven-figure NIL deals.3 By facilitating donations and centralizing NIL administration, HB 0307 could help Illinois schools retain and recruit top talent—particularly critical in revenue-driving sports like football and basketball.

Despite its noble intentions, however, HB 0307 risks replicating some of the worst dynamics in professional sports. First, by allowing schools to handle NIL funds and offer direct compensation, the system would likely prioritize star athletes in marquee sports—those who generate revenue and headlines. This “star bias” could result in most funds being funneled toward a handful of athletes while the majority see little to no benefit. And while HB 0307 includes privacy protections, increased secrecy around deals would make it harder to track fairness and avoid such “star bias” from occurring. If Illinois tries to mirror these models, it could create friction within athletic departments and contribute to a broader imbalance on campus. Already, student-athletes in non-revenue sports often struggle for recognition and resources—this bill could exacerbate that divide. Moreover, the bill includes incentives for donors contributing to NIL funds. While this may increase

3 Cunningham, Nate. “Highest Paid College Athletes via Nil Deals.” SI, March 7, 2025. https://www.si.com/college-basketball/highest-paid-college-athletes-vianil-deals/.

funding, it also risks redirecting alumni and booster support away from academic programs or general athletics and into star-focused NIL pools. Universities already face budget constraints; funneling donations into NIL rather than scholarships or facilities may worsen financial strain.

In conclusion, HB 0307 lays out an ambitious vision for modernizing college athlete compensation in Illinois, but it sidesteps several critical issues. Although the bill may offer a short-term competitive boost for schools lagging behind in college sports recruitment, it risks replicating the structural flaws seen in other states’ NIL systems. Rather than rushing to mirror these models, lawmakers should focus on crafting a more sustainable and equitable framework— one that protects all student-athletes and ensures NIL reform strengthens, rather than compromises, the integrity of college sports.

CHALLENGING THE ILLINOIS TRUST ACT: THE BATTLE BETWEEN STATE AND FEDERAL AUTHORITY

by DOAN TRAN DIGITAL CONTENT MANAGER

In2017, Governor J.B. Pritzker signed the Illinois Trust Act which protects individuals in Illinois from facing detainment from local officials under the request of federal ICE agents. On top of the Trust Act, Chicago has embraced its historical roots as a “Welcoming City” towards newcomers coming into the city.1 However, the TRUST Act and other local laws in the United States built in to protect migrants are facing pushback and threats under the Trump administration.

In Section 15 of the Illinois Trust Act, the explicit expectations of the legislation are clearly highlighted. Part B of Section 15 (5 ILCS 805/15) states that “a law enforcement agency or law enforcement official shall not stop, arrest, search, detain, or continue to detain a person solely based on an individual’s citizenship or immigration status” which demonstrates Illinois’ tolerance of immigrants/refugees and the dedication of the state and the larger Chicago metropolitan area to protecting these individuals.2 Because of this act, local law enforcement agencies cannot aid in the enforcement of the United States’ immigration laws. This part of the legislation details the various ways in which local officers cannot interfere with the lives of migrants. Further, Illinois keeps tabs on the immigrants, refugees, and asylum speakers coming in but chooses to not enforce disciplinary measures. Rather than turning a blind eye to these arrivals, the Illinois Trust Act gives a blanket of

1 “Home.” www.chicago.gov/city/en/ sites/texas-new-arrivals/home.html/. 2 Ilga.gov, 2022. www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3818/.

protection to these individuals. In Sec. 20 (5 ILCS 805/25), the Act highlights the reporting requirements of officers that violate this act. However, even under the detailed reporting requirements for detainment or questioning without a warrant, the legislation still writes that “law enforcement agencies shall not include names or other personally identifying information in any reports required under this Section.”3 The first priority of the Illinois Trust Act is to protect residents under all circumstances. Due to Illinois’ stance on protection, Texas has been “[sending] buses of asylum seekers to Chicago” which accounts for 49,000 immigrants/refugees to Chicago since 2022.4 While the city has faced challenges in the past with the influx of refugees and asylum seekers including increasing homelessness encampments and the inability to obtain employment, Chicago is struggling now more than ever to handle its refugees and migrants following a 22 page lawsuit from the Trump administration against the Trust Act.5

On February 6th, 2025, the Department of Justice filed a lawsuit with its newly appointed Attorney General Pam Bondi. Along with the Trust Act, this lawsuit also threatens the Way Forward Act, Chicago’s Welcoming City Act, and the Cook County Ordinance 11-O-73.

Although significant, this lawsuit is not the first time in U.S. legal history that local enforcement has been challenged by federal immigration laws. During the first Trump adminis-

3 Id.

4 See fn. 1.

5 MJE. “Chicago’s Immigration Crisis –Michigan Journal of Economics.” University of Michigan. 22 October 2024. sites. lsa.umich.edu/mje/2024/10/22/chicagos-immigration-crisis/.

tration, the state of California sought out the Edward Byrne Memorial Justice Assistance Grant from the federal government in order to support law enforcement. However, the Attorney General at the time, Jeff Sessions, put more conditions in place that stated grant recipients “could not publicly disclose sensitive federal law-enforcement information… to harbor aliens in violations of federal law” which is a non-disclosure policy that would assist federal authority in immigration reinforcement.6 Later, the California Values Act (SB 54) was signed to ensure that no local enforcement in the state of California could assist the federal government with immigration enforcement. In response to this act, Attorney General Sessions filed a lawsuit stating that the California Values Act “interferes with federal immigration authorities’ ability to carry out their responsibilities under federal law” in a very similar logic that the current Trump administration is using to sue the city of Chicago today.7

In the end, the Court in the Ninth Circuit that the California Values Act abided by the constitution. The court put forth that local governance had the constitutional right in deciding how to engage with federal law, specifically with immigration regulation. This decision hinged on the Tenth Amendment which protects state level rights over federal authority. This case’s outcome set an important

CONTINUED ON PAGE 68

6 “City and County of San Francisco v. Sessions.” Quimbee, 28 June 2021. www. quimbee.com/cases/city-and-county-ofsan-francisco-v-sessions. Accessed 18 Apr. 2025.

7 ACLU. “California Values Act (SB 54).” ACLU of Southern California, 10 June 2019. www.aclusocal.org/en/know-yourrights/california-values-act-sb-54/.

CHALLENGES AND ADVANTAGES OF ALDERMANIC PREROGATIVE IN CHICAGO

by SEBASTIAN ARNAL STAFF WRITER

Chicago’s local governance and development has long been shaped, ironically, by the largely unwritten rule of aldermanic prerogative. Aldermanic prerogative essentially amounts to an agreement among the aldermen of Chicago to give vetoing power to an alderman over zoning and permit decisions within their given ward.1 This practice has historically granted all 50 of the City Council’s aldermen effective ward-level control over developments that require City Council approval. Nowadays, the tradition continues to invoke both criticism and support after its centuries-long lifetime.

As has been pointed out by Lionel Barrow of Abundant Housing Illinois, aldermanic prerogative is largely a remnant of machine politics in Chicago dating back to the 19th century.2 Aldermen were given power on things such as zoning variances, tree-cutting, alley cleaning, permits for driveways, and building conversions in their ward in exchange for acting in line with their party’s committeeman. As very local representatives, aldermen were responsive as immediately identifiable targets for their residents’ grievances, but also held a great amount of power themselves. Over time, though, the extremes of this system have faded away with mayoral reforms. In 1955, the older Mayor Daley standardized the process

1 Brown, Mark. “Aldermanic privilege steeped in power, politics — and prejudice, critics contend.” Chicago Sun-Times, November 15, 2018.

2 Barrow, Lionel. “The long road out of prerogative.” A City That Works, Substack, January 30, 2025. https://citythatworks. substack.com/p/the-long-road-out-ofprerogative/.

for a zoning variance. In the late ‘90s, a city-wide 311 service was introduced for requesting city services. Mayor Rahm Emmanuel moved garbage collection to a grid system and Mayor Johnson has done something similar with tree trimming. Nonetheless, aldermanic prerogative survives today as zoning and permit decisions require City Council approval and aldermen continue to observe the controversial tradition.

Aldermanic prerogative draws controversy partly because of its connection to Chicago’s history of political corruption. Aldermen, holding a considerable amount of power over zoning approvals and permits, and property owners, desiring some given zoning approval or permit, are perfectly positioned for a quid pro quo. Sure enough, many aldermen who have been part of Chicago’s history of political corruption engaged in extortion and solicitation of bribes on the basis of their aldermanic prerogative powers.3 The most recent high-profile case involved Ed Burke, the longest serving alderman in the history of Chicago. Burke was convicted of directing property owners who needed his help to hire his law firm specializing in tax appeals.4 Nonetheless, many current analysts are optimistic for a less corrupt Chicago. Post-Burke, aldermen can no longer hold outside jobs as tax attorneys or lobbyists and conflict-of-interest disclosure requirements have been beefed up. The city also now has one of the country’s most robust Offices of

3 “A Look At Chicago’s Corrupt Aldermen Through The Years.” CBS News Chicago, January 3, 2019. https://www. cbsnews.com/chicago/news/alderman-burke-chicago-city-hall-corruption/. 4 Cherone, Heather, and Matt Masterson. “Ex-Ald. Ed Burke Found Guilty of Racketeering, Bribery, Attempted Extortion in Landmark Trial.”

the Inspector General, charged, in part, with investigating allegations of wrongdoing by the City Council.5 While these changes are certainly no guarantee of a corruption-free City Council, especially when aldermanic prerogative seems almost designed for corruption, they do represent real reason for hope.

Another persistent point of criticism is the use of aldermanic prerogative to block affordable housing development in majority-white, affluent neighborhoods. In fact, the U.S. Department of Housing and Urban Development (HUD) has asked Mayor Johnson’s administration to engage in discussions over a department investigation into the role of aldermanic prerogative in blocking, deterring or downsizing affordable housing proposals. HUD’s analysis reportedly indicated this power limited availability of affordable housing, perpetuated segregation and effectuated racist opposition to affordable housing.6 One can imagine that the negative flip side to a democratically receptive alderperson with considerable development power is that they would be made to effectuate the NIMBYist and racist concerns of their wealthy, white constituents.

However, despite credible concerns that aldermanic prerogative empowers segregation and corruption,7

CONTINUED ON PAGE 68

5 “Power Begets Corruption on the City Council.” University of Chicago Center for Effective Government, published April 3, 2023. https://effectivegov.uchicago.edu/ news/power-begets-corruption-on-thecity-council/.

6 “Concerns Regarding CAFHA, et al. v. City of Chicago, Case No. 05-19-38866/9.” WTTW, accessed May 2, 2025.

7 Barrow, Lionel. “The long road out of prerogative.” The Editorial Board. “Editorial: Mayor Johnson is picking a fight with Lincoln Park no matter what he says.” Chicago Tribune, June 21, 2024.

CHALLENGING THE ILLINOIS TRUST ACT: THE BATTLE BETWEEN STATE AND. . .

CONTINUED FROM PAGE 66

precedent for California’s immigration policies.

Currently, the Trump administration is following the same legal strategy against Chicago and broader Illinois. In both cases, the main point of contention is if the local policies around immigration preempt federal immigration regulation. However, similar to how the Ninth Circuit upheld the state policies in California, this case in Illinois hinges on similar principles. How does the balance of power work between federal and state governance? What role does the Tenth Amendment play in these cases? The outcome of this Illinois case relies on answers to

these questions.

If this upcoming Illinois case follows the outcome of the California case in the first Trump administration, the precedent for state autonomy over the federal government would remain. On the other hand, if the federal government overrides, a new precedent could be set to allow for greater federal law enforcement over state law, specifically on issues such as immigration. Whatever the outcome may be, the ongoing case will influence a national debate over the role of local authority in enforcing federal immigration law. Despite legal pushback from the current administration, Illinois

must protect its core values of welcoming immigrants. As a place known historically for protecting its immigrants, Illinois, specifically Chicago, must learn to balance the influx of immigrants with stress on the public infrastructure. Illinois must adapt policies to better accommodate its infrastructure for immigrants to ensure that the immigrant population is not overwhelmed by housing demand, unemployment, etc. The state needs to balance upholding its welcoming policies with addressing the growing challenges faced by immigrants uprooting to a new country.

CHALLENGES AND ADVANTAGES OF ALDERMANIC PREROGATIVE IN CHICAGO

CONTINUED FROM PAGE 67

many are not quite ready to give it up.8 It seems that aldermanic prerogative provides too good an opportunity for democratic representation.9 Some have pointed out its potential has been used by some aldermen to actually boost affordable housing development in their wards.10 Reforms to the practice may suggest centralization and some form of dilution of aldermanic power,11 but they usually try to maintain the same level of accountability and responsiveness that

8 Kapp-Klote, H. “What is Aldermanic Prerogative?: the Good, the Bad, and the Complicated.” Medium, May 14, 2019.

9 Wlaz, Kate, Marisa Novara, and Patricia Fron. “Aldermanic prerogative is the grease that oils the machine.” Chicago Tribune, May 31, 2019.

10 Kapp-Klote, H. “UNDER FIRE, ALDERMANIC PREROGATIVE IS TURNED TO DEMOCRATIC ENDS.” Shelterforce, January 17, 2020.

11 “Unfettered Aldermanic Prerogative.” Metropolitan Planning Council, accessed May 13, 2025. https://metroplanning.org/ resources/unfettered-aldermanic-prerogative/.

makes aldermanic prerogative special. All offer some version of the sentiment expressed during Mayor Lightfoot’s administration that aldermen should have a voice, but not a veto.12

How exactly this will be accomplished is up in the air, but one thing is for sure. Whatever methods of reform may come, they will require the avid support of Chicago’s mayor. Only rarely has aldermanic prerogative been broken with, but it has always been the result of a persistent mayor. When the City Council approved affordable housing development in the 41st Ward against the wishes of its Ald. Anthony Napolitano, it did so at the behest of Mayor Lightfoot. The words of Napolitano to his fellow aldermen at the time explain the rarity of the event: “[W]hile you’re advocating for a great cause, you’re taking away your right to decide what

12 Rebik, Dana. “Here’s the full text of Chicago Mayor Lori Lightfoot’s inauguration speech.” WGN9, May 20, 2019.

happens in your ward tomorrow.”

13 Because aldermanic prerogative remains a custom that predicates aldermanic power on aldermanic conformity, the move from veto to voice will require a strong-willed and well-supported mayor to back the cause. Thus far, it appears Mayor Johnson is not eager to pick such a fight,14 but that is what is necessary to realize the potential of aldermanic prerogative as a tool of local governance.

13 Spielman, Fran. “City Council strikes a blow to aldermanic prerogative over zoning.” Chicago Sun-Times, December 15, 2021.

14 Cherone, Heather. “As Ald. Walter Burnett Takes Control of City Council’s Zoning Committee, Aldermanic Prerogative Takes Center Stage.” WTTW, October 8, 2024. https://news.wttw. com/2024/10/08/ald-walter-burnett-takes-control-city-council-s-zoning-committee-aldermanic-prerogative/.

| cover illustration by lia yufei he

TEEN TAKEOVER IN CHICAGO PROMPTS MAYOR TO ENFORCE CITYWIDE CURFEW

by SCARLETT LOPEZ RODRIGUEZ STAFF WRITER

On March 9, 2025, a 46-year-old woman was shot in the arm near the AMC River East movie theatre while visiting Chicago with her son.1 Just weeks later, a 15-year-old boy was shot in the leg near the intersection of Columbus Drive and Illinois Street. These events have reignited debates over youth curfews in the city, pushing city officials to revisit curfew laws. The curfew policies have evolved: most notably, in 2022, city officials enacted a permanent 10 p.m. curfew for teens under the age of 17, following a series of shootings and crimes in the downtown area.2 However, due to a recent spike in shootings during “teen takeover” gatherings of young people at places like neighborhoods or parks— with some leading to violence—Alderman Brian Hopkins has revived a push for a mandatory 8 p.m. youth curfew inside Downtown’s Central Business District3 to curb youth violence and improve public safety.4 Mayor Brandon Johnson, however, was not supportive of the implementation of a curfew, and there was not enough support in the City Council for such a proposal. As a result, there is now only a discretionary curfew, giving police the authority to impose a curfew anywhere or anytime.

1 Clark, John. “Chicago Considers Allowing Police to Impose Emergency Curfew to Curb Teen Takeovers.” MyStateline, WTVO News, April 17, 2025.

2 Mercado, Melody. “New Curfew Proposal Would Let Chicago Police Declare a Curfew Anytime, Anywhere in City.” Block Club Chicago, April 17, 2025.

3 Ahern, Mary Ann, Rose Schmidt, and NBC Chicago Staff. “Chicago ‘teen Takeover’ Response Includes Geofencing Rideshares, Officials Say.” NBC Chicago, April 15, 2025.

4 Id.

Under such a discretionary curfew, at least 30 minutes before the curfew begins, police would give a verbal warning informing unaccompanied minors who are in a mass gathering that they must return home.5 Those who are found in violation of this new policy would be subject to a fine of up to $500 or community service. However, anyone who violates the curfew three times within 12 months would be subject to three times the maximum fine. As part of the response to teen takeovers, Chicago police have begun requesting that rideshare companies, like Uber and Lyft, “geofence” rides from areas where the teen takeovers are taking place.6 This was done after recent concerns from city officials who have seen trends in SUVs arriving with 15 teens in areas with teen takeovers, and reflects a broader shift to using technology to reduce the accessibility of teen gatherings around the city.

While many support the city’s response to public safety, others worry that the implementation of a curfew may discourage young people of color from actively participating in advocacy events. Civil rights attorney and National Lawyers Guild member Amanda Yarusso is concerned about the potential impact on young people of color and what it means for youth participation in First Amendment activities, such as protests.7 Such enforcement of an earlier curfew may also disproportionately target young

5 Id.

6 Id.

7 Hill, Tonia. “Downtown Curfew Proposal May Violate the Rights of Chicago Youth, Legal Advocates Say • the TRIIBE.”

The TRiiBE, April 17, 2025.

people of color who may “look suspicious” based on racial stereotypes. Alexandra Block, a representative from the American Civil Liberties Union, believes curfews haven’t worked for decades, and the current curfew has not solved any problems. Instead, it will send a message to young people of color that they are not wanted downtown.8 On the other hand, others favor the current curfew to enhance public safety in the city. Deborah Gershbin of the Streeterville Organization of Active Residents, which has put its support behind the proposed earlier curfew, believes there are exceptions for young people who work, but for them to gather in hundreds is unacceptable.9

Given the differing views on an earlier curfew, considering alternative options may lead to more effective solutions. Tio Hardiman, president of Violence Interrupters, called for the city to open 24-hour community centers that provide teens safe places for mass gatherings.10 Instead of forcing young people out of areas in the city, community centers will offer safe and supervised areas for teenagers to enjoy time with their friends, reducing police enforcement due to large gatherings. However, a statement released by the Chicago Police Department noted that while they “encourage everyone to enjoy all that our city has to

8 Schutz, Paris. “New Ordinance Would Give Chicago Police Power to Enforce Temporary Curfews.” FOX 32 Chicago, April 16, 2025.

9 Schmidt, Rose, Randy Gyllenhaal, and NBC Chicago Staff. “Compromise Could Bring New Kind of Curfew to Chicago Streets This Summer.” NBC Chicago, April 16, 2025.

10 Staff, NBC Chicago, and Charlie Wojciechowski. “Some Call for Change to Chicago Curfew after Hundreds of Teens Took over Downtown Street.” NBC Chicago, March 31, 2025.

“Instead of forcing young people out of areas in the city, community centers will offer safe and supervised areas for teenagers to enjoy time with their friends.”

offer,” they “will not tolerate reckless criminal action.”11 While this stance emphasizes taking measures toward public safety, it outweighs the deeper 11 Id.

issues at play, such as disproportionately targeting young people from marginalized communities. Although a curfew may offer a temporary fix to teen takeovers, a long-term solution will require city officials to listen to

youth voices and implement policies that promote safety and ensure equity among young people of color in Chicago.

ULM is a Registered Student Organization at the University of Chicago under the Center for Leadership and Involvement’s purview. Our active status is in keeping with policies adherent to established procedural standards. ULM operates under no-prior review. The opinions expressed in the magazine are not necessarily those of the University of Chicago. ulm.rso.uchicago.edu