Law Commons^™

Measuring The Art Of International Law, Mary Ellen O’Connell

Chicago Journal of International Law

Social science methodology is a useful adjunct to law, but it cannot replace the humanist ideas that constitute law. Scholars developed social science at the end of the nineteenth century and were soon using it to measure and assess material facts associated with far older intellectual disciplines like law. They have been able to confirm facts about such issues as the origins and impact of law. These studies rely, however, on a humanist definition of the object of the study. Humanist methods reveal that law is the result of transcendent concepts developed through natural law method. By the early twenty-first …

Social Science Research And Reforms Of International Institutions, Weijia Rao

Chicago Journal of International Law

Building on Daniel Abebe, Adam Chilton and Tom Ginsburg’s call for more social science research in international law, this Essay discusses ways in which social science research can be applied to inform reforms of international institutions. In the face of significant challenges to the current international legal order, active reform discussions have been ongoing concerning a number of international institutions. This Essay posits that in developing proposals to reform these international institutions, more attention should be paid to identify the causes of existing problems, which is important in an international setting where decision-making requires the consensus of multiple stakeholders. The …

International Law After Dark: How Legalized Sex Work Can Comport With International And Human Rights Law, Joshua A. Fox

Chicago Journal of International Law

Prostitution is often criminalized, but it should not be. While it is undisputed that criminalization assists in shrinking the sexual service industry and decreasing the prevalence of sex trafficking, countervailing evidence suggests that legal and regulated sex work is far safer for all involved. Indeed, the international law on the subject, which calls for an end to exploitation, violence, and trafficking, does not outlaw sex work in all of its forms. This Comment argues that legal sex work, when regulated adequately, comports with international law and promotes the human rights of sex workers that are curbed when the practice is …

Cured: Proposing A Solution To The Hague Convention’S “Zone Of Disease” Defense, Savannah Mora

Chicago Journal of International Law

Each year, thousands of children are taken from their homes to foreign countries by one of their parents (the “taking parent”) without the consent of their other parent (the “left-behind parent”). This phenomenon is frequently referred to as international child abduction. If both the country from which the child was taken and the country to which the child was taken are signatories to the Hague Convention, the left-behind parent can file a petition for return of the child under the treaty. Recently, in a number of courts around the world, taking parents facing Hague Convention litigation have argued that, because …

The Limits Of International Law Fifteen Years Later, Jack L. Goldsmith, Eric A. Posner

Chicago Journal of International Law

The Limits of International Law received a great deal of criticism when it was published in 2005, but it has aged well. The skeptical, social-scientific methodology that it recommended has become a normal mode of international law scholarship. And the dominant idealistic view of international law that the book criticized is today in shambles, unable to explain the turmoil in international politics. This Essay reflects on the book’s reception and corrects common misperceptions of its arguments

Table Of Contents

Chicago Journal of International Law

No abstract provided.

A Matter Of Personal Choice, Bing Bing Jia

Chicago Journal of International Law

This short Essay is a comment on the Lead Essay of the Symposium. It seeks to make two points from personal observation. First, an approach for study, research, and practice in international law depends on the purpose the work of an international lawyer seeks to serve. Second, in terms of methodology, the social science approach overlaps to some degree with other approaches. The proposition drawn from the two points is that an approach, being individualistic in nature, is a matter of personal choice, unsuitable for general consumption

Rethinking Nudge: An Information-Costs Theory Of Default Rules, Oren Bar-Gill, Omri Ben-Shahar

University of Chicago Law Review

Policy makers and scholars—both lawyers and economists—have long pon-
dered the optimal design of default rules. From the classic works on “mimicking”
defaults for contracts and corporations to the modern rush to set “sticky” default
rules to promote policies as diverse as organ donation, retirement savings, consumer
protection, and data privacy, the optimal design of default rules has featured as a
central regulatory challenge. The key element driving the design is opt-out costs—
how to minimize them, or, alternatively, how to raise them to make the default sticky.
Much of the literature has focused on “mechanical” opt-out costs—the effort people …

Qualified Immunity's Boldest Lie, Joanna C. Schwartz

University of Chicago Law Review

Qualified immunity shields government officials from damages liability—even if they have violated plaintiffs’ constitutional rights—so long as they have not violated “clearly established law.” The Supreme Court has explained that water-shed cases describing legal requirements—like Graham v. Connor and Tennessee v. Garner—are alone insufficient to clearly establish the law. Instead, the plaintiff must find prior cases applying Graham and Garner to cases with facts virtually identical to their own case, explaining that such factually analogous cases are necessary to put officers on notice of the illegality of their conduct. But do officers actually know about the facts and holdings of …

The Misunderstood Role Of Reliance In American Pipe Tolling, Jeremy L. Brown

University of Chicago Law Review

The commencement of a class action tolls statutes of limitations for all members of the putative class. This rule, so simply stated by the Supreme Court in American Pipe & Construction Co. v. Utah, has proved complicated in practice. Since American Pipe, lower courts have disagreed about the circumstances under which the tolling rule applies. Though the Court has resolved many of these disagreements, some uncertainties remain. This Comment takes up two of those questions. First, does tolling benefit plaintiffs who sue while class certification is pending? Second, does tolling benefit plaintiffs who opt out of a certified class? My …

Organizational Rights In Times Of Crisis, Adam Chilton, Mila Versteeg

University of Chicago Law Review

As populist leaders gain power around the world, democratic governments retreat, and authoritarian states gain power in the international system,¹ it is critical to find levers of resistance. Professors Adam Chilton and Mila Versteeg’s masterful volume, How Constitutional Rights Matter, offers a timely and provocative answer: let’s look to organizations as potential defenders of rights in challenging times.² In a world in which human rights are widely understood as individual rights, it is high time to theorize about how organizations can help vindicate these individual protections.

The specific thesis Chilton and Versteeg promote is that “some rights, once …

The Corpus And The Critics, Thomas R. Lee, Stephen C. Mouritsen

University of Chicago Law Review

Most any approach to interpretation of the language of law begins with a search for ordinary meaning. Increasingly, judges, scholars, and practitioners are highlighting shortcomings in our means for assessing such meaning. With this in mind, we have proposed the use of the tools of corpus linguistics to take up the task. Our proposals have gained traction but have also seen significant pushback. The search for ordinary meaning poses a series of questions that are amenable to evaluation and analysis using evidence of language usage. And we have proposed to use the tools of corpus linguistics—tools for assessing patterns of …

The Missing Indian Affairs Clause, Lorianne Updike Toler

University of Chicago Law Review

Congressional plenary power over Native Americans sits in direct conflict with tribal sovereignty. Scholarship and case law justifying plenary power run the gamut from finding an expansive preconstitutional federal plenary power over Native Americans to narrowly reading the Indian Commerce Clause to limit congressional power to trade alone. All claim historical legitimacy, but none has been able to explain why the Indian Affairs Clause from the Articles of Confederation failed to appear in the Constitution or, conversely, why the new federal government never limited itself to regulating Indian trade. The combination of the unexplained textual shrinkage and disharmony between text …

Classaction.Gov, Amanda M. Rose

University of Chicago Law Review

This Essay proposes the creation of a federally run class action website and supporting administration (collectively, Classaction.gov) that would both operate a comprehensive research database on class actions and assume many of the notice and claims-processing functions performed by class action claims administrators today. Classaction.gov would bring long-demanded transparency to class actions and, through forces of legitimization and coordination, would substantially increase the rate of consumer participation in class action settlements. It also holds the key to mitigating other problems in class action practice, such as the inefficiencies and potential abuses associated with multiforum litigation, the limited success of the …

Global Impunity: How Police Laws & Policies In The World's Wealthiest Countries Fail International Human Rights Standards, Claudia Flores, Brian Citro, Nino Guruli, Mariana Olaizola, Chelsea Kehrer, Hannah Abrahams

Global Human Rights Clinic

No abstract provided.

Petitioner’S Final Observations On The Merits Petition No. 1418-07, Siti Aisah And Others V. United States Of America, Claudia Flores, Mariana Olaizola, Ana Luquerna, Keila Mayberry

Global Human Rights Clinic

No abstract provided.

Remediation In Foreign Bribery Settlements: The Foundations Of A New Approach, Samuel J. Hickey

Chicago Journal of International Law

A handful of nations spearhead the global anti-corruption regime through the transnational enforcement of foreign bribery laws. These laws prohibit corporations with a connection to the enforcing nation from paying or offering bribes to the officials of a foreign nation. Enforcement agencies construe the extraterritorial application of these laws broadly, establishing their global prominence. The most notable example is the United States Department of Justice’s enforcement of the Foreign Corrupt Practices Act of 1977 (FCPA). Enforcement agencies typically resolve investigations against corporations through deferred prosecution agreements and other consensual settlement mechanisms known generally as non-trial resolutions. Fines and penalties paid …

Introductory Remarks: The Roberts Court And The First Amendment: An Introduction, Geoffrey Stone

Articles

No abstract provided.

Symposium: The Roberts Court And Free Speech: Transcript, Michael Cahill, Joel Gora, Geoffrey Stone

Articles

No abstract provided.

The Comparative Constitutional Law Of Presidential Impeachment, Aziz Huq, Tom Ginsburg, David Landau

Articles

No abstract provided.

The Social Science Approach To International Law, Daniel Abebe, Adam Chilton, Tom Ginsburg

Articles

No abstract provided.

Valuation Blunders In The Law Of Eminent Domain, Richard Epstein

Articles

No abstract provided.

Limiting The Pardon Power, Albert W. Alschuler

Articles

Although our government is said to be one of checks and balances, the president’s power “to grant Reprieves and Pardons for Offenses against the United States” appears to be unlimited. In granting this power, the Framers deliberately cast structural safeguards aside. Nevertheless, the presidency of Donald Trump prompted a search for limits. This Article examines: (1) whether a president may pardon crimes that have not yet happened (or announce his intention to do so); (2) whether he may pardon himself; (3) whether he may use pardons to obstruct justice or commit other crimes; (4) whether criminal statutes should be construed …

Chevronizing Around Cost-Benefit Analysis, Jonathan Masur, Eric Posner

Articles

No abstract provided.

The Boundaries Of Normative Law And Economics, Eric Posner

Articles

No abstract provided.

Bankruptcy Shopping: Domestic Venue Races And Global Forum Wars, Anthony Casey, Joshua Macey

Articles

No abstract provided.

Environment, Mobility, And International Law: A New Approach In The Americas, David J. Cantor

Chicago Journal of International Law

The role of international law in regulating international movement in the context of global environment change and hazards remains a topic of intense debate among both legal scholars and practitioners. Yet, as this Article shows, we have largely reached the limits of what existing international law methods and approaches can tell us about the future of the law in this area. By contrast, this Article draws on a detailed regional case study to offer a distinct perspective to that ongoing debate about the role and future of international law. Against the backdrop of emerging patterns of mobility linked to devastating …

The Application Of International Tax Treaties To Digital Services Taxes, Katherine E. Karnosh

Chicago Journal of International Law

As digital services and electronic commerce have become more prevalent aspects of the global economy, there have been concerns over how tax systems will adapt to this change. International tax treaties in particular seem to be outdated and unprepared for the digital economy. Many international tax treaties provide that businesses are to be taxed on their income only in jurisdictions where they have a sufficient physical presence. By establishing their European headquarters and digital servers in countries with low corporate income tax rates (such as Ireland) and then using those headquarters to provide digital services to the rest of Europe, …

Congress's Commissioners, Brian Feinstein, M Henderson

Articles

No abstract provided.

Why Judicial Independence Fails, Aziz Huq

Articles

No abstract provided.