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Ideation And Innovation In Constitutional Rights, Tom Ginsburg

Articles

This article explores the development of ideas in constitutional design. The point of departure is a perspective of constitutions-as-products, and thus, an examination of the invention, innovation, and an uptake of these products. The article conceptualizes constitutional innovation and distinguishes its manifestations with respect to constitutional products, the process of constitution-making, and in supporting institutions. The last two elements, in line with Schumpeter’s approach to innovation, would seem especially important to constitutional development. The article provides several examples from the area of human rights and argues that innovations tend to be found in situations in which there is strong aversion …

The Bankruptcy Tribunal, Anthony J. Casey, Joshua C. Macey

Coase-Sandor Working Paper Series in Law and Economics

The United States Bankruptcy Code (the Code)¹ and the Federal Arbitration Act (FAA)² are powerful statutory schemes. Each one demands a broad scope of influence and preempts many other fields of law, state and federal. The capacious nature of these statutes creates a challenging tension when they come into conflict. On the one hand, bankruptcy law is in its very essence a collective multiparty dispute resolution procedure that cannot be waived or altered by private contract. On the other hand, the FAA embodies a general federal policy in favor of allowing parties to contract into private dispute resolution …

Law School Record, Vol. 67, No. 2 (Spring 2021), Law School Record Editors

Law School Record

• Message from the Dean
• Power in Numbers
• Colloquia in the Time of Covid-19
• Eight Clerks for Eight Judges
• Building Community and Supporting Each Other
• Professor Martha C. Nussbaum Awarded 2021 Holberg Prize
• Professor Douglas Baird Named Chair of the National Bankruptcy Conference
• Faculty News
• Alumni News
• Development News
• In Memoriam

The Identification Of Customary International Law: Institutional And Methodological Pluralism In U.S. Courts, Noah A. Bialos

Chicago Journal of International Law

It is well established that there is a consensus, two-element approach to the identification of customary international law. Among international courts and organizations, a customary rule is identified based on evidence of a general practice by states, which is accepted as law. Customary international law, however, is also subject to identification at the national level. For centuries, questions regarding the existence and content of customary international rules have arisen in national courts. Given their own institutionalized methods of resolving legal ambiguity, national courts are thus routinely faced with a normative conflict: is the appropriate method for identifying rules of customary …

The Double Movement Of National Origin Discrimination, Aziz Huq

Articles

No abstract provided.

The Persecution Of Stones: War Crimes, Law’S Autonomy And The Co-Optation Of Cultural Heritage, Timothy William Waters

Chicago Journal of International Law

In 1567, a bridge was built over a river in Bosnia—a bridge widely seen as a work of great beauty. In 1993, it was destroyed in a war. What did its destruction mean? Was it a crime—and which one? An assault on culture—and whose? Between 2004 and 2017, a trial held in The Hague sought to answer these questions. The way it did—the assumptions and categories the prosecutors and judges deployed, the choices they made—tells us something important about how law operates and how it appropriates other bodies of knowledge, whether in a now-obscure Balkan conflict or on the battlefields …

Religious And Religiously-Affiliated Actors In International Law : Snapshots Of Collaboration, Whittney Barth

International Program Papers

No abstract provided.

Populist Constitutions, David Landau

University of Chicago Law Review

This Essay draws on recent academic definitions of populism and recent examples of its use in order to show that there is an affinity between populism and widespread constitutional change. It argues that populists use constitutional change to carry out three functions: deconstructing the old institutional order, developing a substantive project rooted in a critique of that order, and consolidating power in the hands of populists. Thus, access to the tools of constitutional change may accentuate both the promise of populism as a corrective to stagnating liberal democracies and the threat that it poses to those constitutional orders. I also …

An Analysis Of The Three Major Cross-Border Insolvency Regimes, Ryan Halimi

International Program Papers

No abstract provided.

The Law Of Unintended Consequences: The 2015 E.U. Insolvency Regulation And Employee Claims In Cross-Border Insolvencies, Joshua W. Eastby

Chicago Journal of International Law

The European Union recently amended its Regulation on insolvency proceedings to implement lessons learned during the previous iteration’s lifespan. However, its interaction with the E.U.’s Guarantee Mandate leads to unintended consequences in cross-border insolvencies that can frustrate the animating principles of both laws. This Comment argues for a dynamic approach to Member States’ guarantee funds under the Guarantee Mandate that will pay employee claims according to national law, rather than allowing the claim to be governed wholly by the law of the State administering the insolvency proceedings. This change will eliminate the disparate impact that changing substantive law can have …

What The Marriage Equality Cases Tell Us About Voter Id, Ellen D. Katz

University of Chicago Legal Forum

No abstract provided.

Voters As Fiduciaries, Edward B. Foley

University of Chicago Legal Forum

No abstract provided.

Rethinking Proxies For Disadvantage In Higher Education: A First Generation Students' Project, Tomiko Brown-Nagin

University of Chicago Legal Forum

No abstract provided.

Debating Pbs: Public Broadcasting And The Power To Exclude Political Candidates From Televised Debates, Erick Howard

University of Chicago Legal Forum

No abstract provided.

We The Peoples: The Global Origins Of Constitutional Preambles, Tom Ginsburg, Daniel Rockmore, Nick Foti

Articles

No abstract provided.

Free Trade And Free Immigration: Why Domestic Competitive Injury Should Never Influence Government Policy, Richard A. Epstein

Articles

No abstract provided.

'We The Peoples': The Global Origins Of Constitutional Preambles, Tom Ginsburg, Nick Foti, Daniel Rockmore

Coase-Sandor Working Paper Series in Law and Economics

No abstract provided.

'We The Peoples': The Global Origins Of Constitutional Preambles, Tom Ginsburg, Nick Foti, Daniel Rockmore

Public Law and Legal Theory Working Papers

No abstract provided.

Free Trade And Free Immigration: Why Domestic Competitive Injury Should Never Influence Government Policy, Richard A. Epstein

University of Chicago Law Review

No abstract provided.

Current Problems And Trends In The Administration Of Transnational Insolvencies Involving Enterprise Groups: The Mixed Record Of Protocols, The Uncitral Model Insolvency Law, And The Eu Insolvency Regulation, Anthony V. Sexton

Chicago Journal of International Law

That commerce has become international in scope is a fact known to all in the legal community. Many large companies now have operating subsidiaries in a large number of countries, and those countries have radically different legal regimes. The law of insolvency is no different; indeed, the differences in legal regimes are of particular import as insolvency law is largely driven by jurisdictions' policy preferences on the relationship between debtors and creditors. But when international enterprise groups go bust, domestic bankruptcy law is incapable of handling the private international law issues that are implicated. While there have been efforts in …

Mandatory Versus Default Rules: How Can Customary International Law Be Improved?, Curtis A. Bradley, Mitu Gulati

Articles

Although customary international law (CIL) has historically been one of the principal forms of international law, it is plagued by debates and uncertainties about its proper sources, its content, its usefulness, and its normative attractiveness.¹ While some of these debates and uncertainties are longstanding, they have intensified in recent years, in part because of the rise of multilateral treaty-making, which allows nations collectively to negotiate and codify broad areas of international law instead of relying on unwritten custom. Moreover, it has become increasingly apparent that CIL is structurally unable to address many of the world’s most pressing problems, such …

Universal Exceptionalism In International Law, Anu Bradford, Eric A. Posner

Articles

A trope of international law scholarship is that the United States is an "exceptionalist" nation, one that takes a distinctive (frequently hostile, unilateralist, or hypocritical) stance toward international law. However, all major powers are similarly "exceptionalist," in the sense that they take distinctive approaches to international law that reflect their values and interests. We illustrate these arguments with discussions of China, the European Union, and the United States. Charges of international-law exceptionalism betray an undefended assumption that one particular view of international law (for scholars, usually the European view) is universally valid.

Tradition As Justification: The Case Of Opposite-Sex Marriage, Kim Forde-Mazrui

University of Chicago Law Review

A central point of contention in the national debate over same-sex marriage is the importance of preserving tradition. That debate also features prominently in constitutional litigation over bans on same-sex marriage. Opponents of such bans argue that tradition is an illegitimate justification for the bans, while defenders of traditional marriage contend that tradition is not only a legitimate justification, but is in fact sufficiently important to withstand heightened judicial scrutiny. This Article assesses tradition as a justification for laws challenged on equal protection grounds, with a focus on laws that limit marriage to opposite-sex couples. The Article makes two main …

Regionalism, Geography, And The International Legal Imagination, Carl Landauer

Chicago Journal of International Law

Despite international law's identity as focused on spatial relations, it has long been dominated by a temporal, narrative imagination. This article argues for an increased spatial conception of international law, but one that is also culturally and temporally enriched. It begins with a section called "Regionalism without the Region," which describes how efforts at emphasizing the region in international law are often empty of regional content-that is, of true locality. Then, in a section on "GlobaliZation without the Globe," the article describes how globaliZation studies have focused on globaliZation as a process-that is, on the "ization" rather than the "globe" …

Sexual Orientation, Discrimination, And The Universal Declaration Of Human Rights, Sharon Yecies

Chicago Journal of International Law

Like many governing bodies today, the United Nations is facing the question of whether laws that discriminate on the basis of sexual orientation are legitimate. In particular, there is a current debate in the United Nations about whether Article 2 of the Universal Declaration of Human Rights (UDHR) (providing protection against discrimination on the basis of among other things, race, color, sex, national origin, or "other status") protects against discrimination on the basis of sexual orientation. This Comment will discuss the importance of this question in the UN today, and analyze whether protection based on sexual orientation is included in …

Amending Constituting Identity, Rosalind Dixon

Public Law and Legal Theory Working Papers

Constitutional amendment procedures can create constitutional change in two ways: by providing evidence of popular support for constitutional change, and by changing the textual basis for subsequent acts of constitutional interpretation. Both mechanisms have clearly also succeeded, in various countries, in creating changes in the domain of constitutional identity. The question the essay investigates is whether there is nonetheless something peculiar about this domain that makes it especially difficult to succeed in using both these amendment mechanisms, simultaneously, in the quest for constitutional change. To explore this question, the essay draws on two distinct attempts to “amend” constitutional identity in …

Agency Design And Distributive Politics, Jacob Gersen, Christopher R. Berry

Coase-Sandor Working Paper Series in Law and Economics

This paper targets the intersection of two generally distinct literatures: political control of administrative agencies and distributive politics. Based on a comprehensive database of federal spending that tracks allocations from each agency to each congressional district for every year from 1984 through 2007, we analyze the responsiveness of agency spending decisions to presidential and congressional influences. Our research design uses district-by-agency fixed effects to identify the effects of a district's political characteristics on agency spending allocations. Because most agencies distribute federal funds, we are able to provide empirical evidence about the relationship between structural features of administrative agencies and the …

Agency Design And Distributive Politics, Jacob Gersen, Christopher R. Berry

Public Law and Legal Theory Working Papers

This paper targets the intersection of two generally distinct literatures: political control of administrative agencies and distributive politics. Based on a comprehensive database of federal spending that tracks allocations from each agency to each congressional district for every year from 1984 through 2007, we analyze the responsiveness of agency spending decisions to presidential and congressional influences. Our research design uses district-by-agency fixed effects to identify the effects of a district’s political characteristics on agency spending allocations. Because most agencies distribute federal funds, we are able to provide empirical evidence about the relationship between structural features of administrative agencies and the …

Eastphalia As A Return To Westphalia, Tom Ginsburg

Public Law and Legal Theory Working Papers

No abstract provided.

Universal Exceptionalism In International Law, Eric A. Posner, Anu Bradford

Public Law and Legal Theory Working Papers

A trope of international law scholarship is that the United States is an “exceptionalist” nation, one that takes a distinctive (frequently hostile, unilateralist, or hypocritical) stance toward international law. However, all major powers are similarly “exceptionalist,” in the sense that they take distinctive approaches to international law that reflect their values and interests. We illustrate these arguments with discussions of China, the European Union, and the United States. Charges of international-law exceptionalism betray an undefended assumption that one particular view of international law (for scholars, usually the European view) is universally valid.