Digital Commons Network^™

Retooling Sanctions: China’S Challenge To The Liberal International Order, Timothy Webster

Chicago Journal of International Law

Professor Tom Ginsburg has produced yet another classic of transnational law, political science, and international relations. Democracies and International Law yields important insights into the democratic nature of international law but cautions that authoritarian states can apply these very legal technologies for repressive or antidemocratic purposes. Building on Ginsburg’s theories of mimicry and repurposing, this contribution highlights the role of both techniques in the creation of China’s economic sanctions program. On the one hand, China has developed a basic set of tools to impose economic sanctions—a key instrument in the liberal international toolkit—on foreign entities and persons. In so doing, …

Tianxia, Or Another Grossraum? U.S.–China Competition And Paradigm Change In The International Legal Order, Tokujin Matsudaira

Chicago Journal of International Law

In this Essay, I try to provide some clarification on the concept of Tianxia from the perspectives of both classical Chinese philosophy and constitutional theory, which Tom Ginsburg nominated as the source of authoritarian international law. My observation is that a paradigm shift is occurring in the international legal order. Tianxia designates the ideal relationships between states in the Chinese classics. And in the new paradigm, Tianxia is expected to integrate the international society. In that sense, I take Tianxia as a regime-neutral ideotype between democratic/Western and authoritarian/non-Western legal order. However, Chinese engagement with international law has shown a tendency …

Wipo’S Proposed Treatment Of Sacred Traditional Cultural Expressions As A Distinct Form Of Intellectual Property, Alberto Vargas

Chicago Journal of International Law

For the past twenty years, the United Nations’ World Intellectual Property Organization (WIPO) has been working on what could be a major shift in international intellectual property law. WIPO’s work has uniquely focused on intellectual property protection for “traditional cultural expressions” (TCEs), a term which roughly describes a broad conception of indigenous groups’ intellectual property. Most recently, WIPO published its latest proposed Draft Provisions/Articles for the Protection of Traditional Knowledge and Traditional Cultural Expressions, and IP & Genetic Resources. These Draft Provisions propose a tiered rights system in which the owners of sacred TCEs receive more protective rights than the …

Dark Law On The South China Sea, Stephen Cody

Chicago Journal of International Law

In Democracies and International Law, Tom Ginsburg warns of an emerging post-liberal order influenced by powerful authoritarian regimes and new illiberal laws that repurpose global rights, undermine international courts, and expand executive power. Autocrats and kleptocrats embedded in the global economy increasingly appear to use international law to preserve their power, protect norms of non-intervention, and enhance the global stability of autocratic rule. Legalistic autocrats, for example, exploit judicial deference and vague statutory language in national security laws to circumvent checks on their authority. This process, which I call “dark law,” aids in the consolidation of state power and the …

A Mimicry Of International Law Compliance: How The Abusive Interpretation Of International Norms Serves Poland’S Illiberal Regime, Aleksandra Dzięgielewska

Chicago Journal of International Law

In recent years, the instrumental use of international norms to entrench abusive rule has been a strategy increasingly utilized by democratically regressing European states. This pattern is evident in Poland in particular, where captured democratic institutions have attempted to legitimize unconstitutional reforms of the justice system by asserting their consistency with international law. To provide an insight into this illiberal strategy, this Essay uses the concept of mimicry as a framework to study recent judgments by the Polish Constitutional Tribunal. This Essay argues that the Polish Constitutional Tribunal feigns legal compliance by abusively interpreting well-established concepts of international law. The …

Clearview Ai, Tiktok, And The Collection Of Facial Images In International Law, Miriam Kohn

Chicago Journal of International Law

Private companies’ collection of facial images is on the rise globally, which has major implications for both economic development and privacy laws. This Comment uses the facial recognition technology company Clearview AI and the video sharing app TikTok as case studies to examine the problems raised by these practices. After summarizing the relevant legal regimes created by the United Nations (U.N.) and the European Union (E.U.), it applies the E.U. privacy regime to TikTok’s most recent Privacy Policy. The Comment concludes by proposing updates to the E.U. and U.N. privacy regimes to more effectively regulate TikTok’s data collection and analogous …

Democratization’S Discontents: Rediscovering The Virtues Of The Non-Intervention Norm, Brad R. Roth

Chicago Journal of International Law

Post-Cold War triumphalism prompted efforts to transform international law into a tool of democratization, forsaking the international legal order’s former neutrality with respect to the foundations of political legitimacy within states. Yet after three decades, the sources of political legitimacy remain “incorrigibly plural,” and efforts to ascertain “the will of the people” remain beset by indeterminacy. It is time to rediscover international law’s role as a framework of accommodation among bearers of conflicting interests and values, with consequent limits on pro-democratic intervention in the internal affairs of states.

Neither Here Nor There: Wire Fraud And The False Binary Of Territoriality Under Morrison, Jason Petty

University of Chicago Law Review

No abstract provided.

The Law And Economics Of Animus, Andrew T. Hayashi

University of Chicago Law Review

People sometimes want to harm other people. This truism points to a blind spot in law and economics scholarship, which generally assumes that people are indifferent to the effects of their actions on other people. Diverse areas of the law, such as hate-crime legislation and constitutional equal protection doctrine, reside in this blind spot because they are premised on the existence of animus. I argue that the assumption of indifference unnecessarily limits law and economics analysis and that it is both possible and fruitful to incorporate animus into law and economics. I show that doing so leads to new insights …

Experimental Jurisprudence, Kevin Tobia

University of Chicago Law Review

“Experimental jurisprudence” draws on empirical methods to inform questions typically associated with jurisprudence and legal theory. Scholars in this flourishing movement conduct empirical studies about a variety of legal language and concepts. Despite the movement’s growth, its justification is still opaque. Jurisprudence is the study of deep and longstanding theoretical questions about law’s nature, but “experimental jurisprudence,” it might seem, simply surveys laypeople. This Article elaborates on and defends experimental jurisprudence. Experimental jurisprudence, appropriately understood, is not only consistent with traditional jurisprudence; it is an essential branch of it.

Law School Record, Vol. 68, No. 2 (Spring 2022), Law School Record Editors

Law School Record

• Message from the Dean
• Global Impact
• Teaching Through the Discourse - The Faculty Podcast Experiments
• "There is No Environmental Law Without Environmental Justice"
• Is This What Democracy Looks Like?
• Enriching the Exchange
• Law School Unveils Oil Paining of Earl B. Dickerson, 1920
• Faculty News: Book published by Aziz Huq, Unraveling an American Story
• Faculty News: Book published by Omri Ben-Shahar, What If We Each Had Our Own Laws?
• Alumni News: Books by Alumni Published 2021
• Development News: A Message from the Associate Dean of External Affairs
• Development: Daniel Daeniker, 96: Collective Philanthropy Motivates Peers and Breaks Giving Day Records …

Barbed Wire Fences: The Structural Violence Of Education Law, Latoya Baldwin Clark

University of Chicago Law Review

In this Essay, I argue that, in urban metros like Chicago, poor Black children are victims of not just gun violence but also the structural violence of systemic educational stratification. Structural violence occurs in the context of domination, where poor Black children are marginalized and isolated, vulnerable to lifelong sub-ordination across many domains. Specifically, I argue that U.S. education policy subjects poor Black children to the violence of intergenerational subordination by trapping children behind residential barbed wire fences, starving their schools of necessary resources, and abusively dangling powerless community control.

An Abolitionist Critique Of Violence, Allegra Mcleod

University of Chicago Law Review

The violence experienced by young people of color in the city is multidimensional—both interpersonal and structural. So many of the young have to swallow their rage as they are surveilled in stores and on the streets, as they are targeted by cops for endless stops and frisks, as they are denied jobs, as their schools are closed, and as they are locked in cages by the thousands. For some, the violations and the deprivation turn outward. The instrumental use of violence by some young people becomes a rational adaptive strategy in response to racial and economic oppression. For some of …

The Enduring Neighborhood Effect, Everyday Urban Mobility, And Violence In Chicago, Robert J. Sampson, Brian L. Levy

University of Chicago Law Review

A longstanding tradition of research linking neighborhood disadvantage to higher rates of violence is based on the characteristics of where people reside. This Essay argues that we need to look beyond residential neighborhoods to consider flows of movement throughout the wider metropolis. Our basic premise is that a neighborhood’s well-being depends not only on its own socioeconomic conditions but also on the conditions of neighborhoods that its residents visit and are visited by—connections that form through networks of everyday urban mobility. Based on the analysis of large-scale urban-mobility data, we find that while residents of both advantaged and disadvantaged neighborhoods …

Identifying And Measuring Excessive And Discriminatory Policing, Alex Chohlas-Wood,, Marissa Gerchick, Sharad Goel, Aziz Z. Huq, Amy Shoemaker, Ravi Shroff, Keniel Yao

University of Chicago Law Review

We describe and apply three empirical approaches to identify superfluous police activity, unjustified racially disparate impacts, and limits to regulatory interventions. First, using cost-benefit analysis, we show that traffic and pedestrian stops in Nashville and New York City disproportionately impacted communities of color without achieving their stated public-safety goals. Second, we address a long-standing problem in discrimination research by presenting an empirical approach for identifying “similarly situated” individuals and, in so doing, quantify potentially unjustified disparities in stop policies in New York City and Chicago. Finally, taking a holistic view of police contact in Chicago and Philadelphia, we show that …

Racially Territorial Policing In Black Neighborhoods, Elise C. Boddie

University of Chicago Law Review

This Essay explores police practices that marginalize Black people by limiting their freedom of movement across the spaces of Black neighborhoods. In an earlier article, I theorized “racial territoriality” as a form of discrimination that “excludes people of color from—or marginalizes them within—racialized White spaces that have a racially exclusive history, practice, and/or reputation.” In this Essay, I consider how my theory of racial territoriality could apply to policing. It offers an ac-count of how police not only criminalize Black people but also criminalize Black spaces, ostensibly justifying them—and the people who live in or frequent them—as “natural” targets for …

Cities, Preemption, And The Statutory Second Amendment, Joseph Blocher

University of Chicago Law Review

Although the Second Amendment tends to dominate the discussion about legal limits on gun regulation, nothing has done more to shape the state of urban gun law than state preemption laws, which fully or partially limit cities’ ability to regulate guns at the local level. The goals of this short Essay are to shed light on this “Statutory Second Amendment” and to provide a basic framework for evaluating it.

Toward Livelihood Insurance, Michael Abramowicz

University of Chicago Legal Forum

No abstract provided.

Ballot Access And The Role Of Diligence During An Election-Year Pandemic, Lauren Spungen

University of Chicago Legal Forum

No abstract provided.

Covid-19: Isolating The Problems In Privacy Protection For Individuals With Substance Use Disorder, Kimberly Johnson

University of Chicago Legal Forum

No abstract provided.

The Idea’S Stay-Put Provision: A Staple Of Pandemic Iep Litigation?, Natalie Granda

University of Chicago Legal Forum

No abstract provided.

Protecting Mixed-Status Families: Equal Protection Analysis Of The Dual Social Security Number Requirement, Nena Gallegos

University of Chicago Legal Forum

No abstract provided.

Economic Shutdown And Commercial Rent In Chapter 11, George Colligan

University of Chicago Legal Forum

No abstract provided.

Comity, Coronavirus, And Interstate Travel Restrictions, Timothy Carey

University of Chicago Legal Forum

No abstract provided.

Scrambling The New Sanitationist Synthesis: Civil Liberties And Public Health In The Age Of Covid-19, John Fabian Witt

University of Chicago Legal Forum

No abstract provided.

The Validity Of Tribal Checkpoints In South Dakota To Curb The Spread Of Covid-19, Ann E. Tweedy

University of Chicago Legal Forum

No abstract provided.

Lochner Under Lockdown, Eugene Kontorovich

University of Chicago Legal Forum

No abstract provided.

Four Futures For U.S. Pandemic Policy, Daniel Hemel

University of Chicago Legal Forum

No abstract provided.

The Need For The Tort Law Necessity Defense In Intellectual Property Law, Yaniv Heled, Ana Santos Rutschman, Liza Vertinsky

University of Chicago Legal Forum

No abstract provided.

Wills Formalities In A Post-Pandemic World: A Research Agenda, Bridget J. Crawford, Kelly Purser, Tina Cockburn

University of Chicago Legal Forum

No abstract provided.