Law Commons^™

Trademark Law Pluralism, Daniel J. Hemel, Lisa Larrimore

University of Chicago Law Review

In recent years, trademark scholars have come to recognize that the supply of words, sounds, and symbols available to designate new goods and services is an exhaustible resource. In certain sectors, the most common English words and syllables and the most common U.S. surnames are almost all claimed as marks. Some firms have responded by resorting to ever-more-unusual brand names so as to avoid trademark disputes. Scholars have proposed solutions ranging from raising registration fees to narrowing the scope of trademark rights.

In this Article, we frame trademark law’s governance of “linguistic space” as a balancing act between what we …

Never Ask A Woman Her Wage: The Constitutionality Of Salary-History Bans, Tyler M. Wood

University of Chicago Law Review

For over a half-century, legislatures have struggled to close the pay gap be-tween men and women. Although the gap has shrunk substantially since Congress passed the Equal Pay Act in 1963, in recent years, progress has slowed to a near standstill. Why has the residual gap remained so persistent? Some argue that employers—by asking applicants to reveal their wage histories and then relying on that information to set future wages—have forced women to carry wage discrimination from job to job. Reacting to this argument, some states and cities have provided a simple solution: ban salary-history inquiries.

This Comment addresses whether …

Foreword

Chicago Journal of International Law

No abstract provided.

Education’S Deep Roots: Historical Evidence For The Right To A Basic Minimum Education, Caroline A. Veniero

University of Chicago Law Review

For decades, the U.S. Supreme Court has left open the question whether the U.S. Constitution protects a right to some amount of education. While such a right is not specifically enumerated in the Constitution, advocates have long argued for the existence of an implicit, fundamental right to a basic minimum education under the Due Process Clause of the Fourteenth Amendment. Recognition of such a right requires grappling with the Supreme Court’s substantive due process jurisprudence. To be a fundamental right, one requirement is that a proposed right have deep roots in U.S. history and tradition. This Comment examines whether the …

Table Of Contents

Chicago Journal of International Law

No abstract provided.

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

Chicago Journal of International Law

For over a hundred years, scholars have argued that international law should be studied using a “scientific” approach. Throughout the twentieth century, however, the most prominent methods used to study international law primarily consisted of different theoretical and analytical claims about how international law should be developed, interpreted, and critiqued. It is only in the first two decades of the twenty-first century that the conventional social science approach to research—identifying a specific question, developing hypotheses, using a research design to test those hypotheses based on some form of qualitative or quantitative data, and presenting conclusions, all while acknowledging the assumptions …

How Hackers Of Submarine Cables May Be Held Liable Under The Law Of The Sea, Jason Petty

Chicago Journal of International Law

Submarine internet cables play a vital role in the modern economy and transmit almost all global internet connections between countries. These cables, however, are vulnerable to interference or hacking by foreign states who seek to obtain the valuable data that passes through them. Because these cables are located on the high seas, however, no country has legal jurisdiction over large portions of them allowing for any number of states or private actors to hack into them and steal valuable information. This Comment evaluates whether states have any legal recourse under public international law against entities that hack into submarine cables. …

China And Comparative International Law: Between Social Science And Critique, Matthew S. Erie

Chicago Journal of International Law

This Essay brings Abebe, Chilton, and Ginsburg’s Lead Essay into conversation with the literature on comparative international law to ask whether the social scientific approach to international law is “international.” In particular, this Essay takes the case of scholarship on international law in China to examine why or why not particular methodological and theoretical perspectives on international law may gain traction in certain jurisdictions’ legal academies. There are a number of linguistic, pedagogic, institutional, and, ultimately, political reasons why the Chinese scholarship that uses social science to understand international law is still nascent. At the same time, critical approaches to …

Whole Issue

Chicago Journal of International Law

No abstract provided.

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 …

Studying Race In International Law Scholarship Using A Social Science Approach, James Thuo Gathii

Chicago Journal of International Law

This Essay takes up Abebe, Chilton, and Ginsburg’s invitation to use a social science approach to establish or ascertain some facts about international law scholarship in the United States. The specific research question that this Essay seeks to answer is to what extent scholarship has addressed international law’s historical and continuing complicity in producing racial inequality and hierarchy, including slavery, as well as the subjugation and domination of the peoples of the First Nations. To answer this question, this Essay uses the content published in the American Journal of International Law (AJIL) from when it was first published in 1907 …

International Law And Transnational Legal Orders: Permeating Boundaries And Extending Social Science Encounters, Gregory Shaffer, Terence C. Halliday

Chicago Journal of International Law

This Essay elaborates in three ways the call for a renewal of social science approaches to international law advanced by Daniel Abebe, Adam Chilton, and Tom Ginsburg. First, while we affirm the importance of what they call the “scientific method” of hypothesis testing, we argue that it can and must be complemented by several other well-institutionalized social science approaches to international law. Second, we loosen the conventional “internal”/“external” distinction in legal scholarship and make the case that conceptualization and empirics are integral to both approaches. Third, we propose that the full promise of social science approaches to international law can …

Applying The United Nations Trafficking Protocol In The Context Of Climate Change, Mikaila V. Smith

Chicago Journal of International Law

Climate change will increasingly lead to widespread environmental degradation which will in turn spur large-scale vulnerability, displacement, and migration. This phenomenon is now well recognized in the literature, although causal pathways continue to be debated. However, scholars and practitioners have so far largely neglected to examine the related ways in which climate change will significantly impact the scale and scope of global trafficking in persons. This Comment responds to a lack of scholarship on the climate change-human trafficking nexus by exploring the predicted impacts of climate change on human trafficking. In light of these forecasted developments, this Comment argues that …

Reflections On The Value Of Socio-Legal Approaches To International Economic Law In Africa, Olabisi D. Akinkugbe

Chicago Journal of International Law

In their Lead Essay for the 2021 Chicago Journal of International Law Symposium, Daniel Abebe, Adam Chilton, and Tom Ginsburg offer an account of “the rise of the social science approach to international law, explain the basics of the method, and advocate for its continued adoption.” This Essay critically assesses how and why one might use socio-legally inspired methods (analytical, empirical, and normative) for the study of international economic law (IEL) in Africa. It illustrates the empirical method’s importance in understanding one of the most challenging aspects of the study of IEL in Africa: capturing the data and dynamism of …

Vindicating The Right To Be Heard: Due Process Safeguards Against Government Interference In The Clemency Process, Jay Clayton

University of Chicago Law Review

No abstract provided.

Deal Protection Devices, Albert H. Choi

University of Chicago Law Review

In mergers and acquisitions transactions, a buyer and a seller will often agree to contractual mechanisms (deal protection devices) to deter third parties from jumping the deal and to compensate a disappointed buyer. With the help of auction theory, this Article analyzes various deal protection devices, while focusing on the two most commonly used mechanisms: match rights and target termination fees. A match right gives the buyer a right to “match” a third party’s offer so as to prevent the third party from snatching the target away, while a termination fee compensates the buyer when a third party acquires the …

Esg And Private Ordering, Michal Barzuza, Quinn Curtis, David H. Webber

The University of Chicago Business Law Review

Easterbrook and Fischel’s seminal book The Economic Structure of Corporate Law has taught us the crucial role of markets in shaping the corporate contract. With the rise of ESG, the nature of that contract is changing, but the importance of markets (and of their limitations) is not. In this piece, building on our previous work that traces the remarkable growth of ESG to a shift in demand, primarily, but not solely, among millennials, we discuss the role of markets in shaping ESG, as well as their limitations. The rise of social values, and the increasing willingness of millennials to act …

Federal Rules Of Platform Procedure, Rory Van Loo

University of Chicago Law Review

Tech platforms serve as private courthouses for disputes about speech, lodging, commerce, elections, and reputation. After receiving allegations of defamatory content in top search results, Google must decide between protecting one person’s public image and another's profits or speech. Amazon adjudicates disputes between consumers and third-party merchants about defective or counterfeit items. For many small businesses, layoffs and bankruptcy hang in the balance. This Article begins to uncover the processes that these platforms use to resolve disputes and proposes reforms. Other important businesses that intermediate, such as credit card companies ruling on a disputed charge between a merchant and consumer, …

Removing Interpretative Barnacles: Counterclaims And Civil Forfeiture, Nicholas Hallock

University of Chicago Law Review

Through civil forfeiture, the federal government can take ownership of property merely by proving it “guilty” by a preponderance of the evidence. The government need not formally accuse its owner of any crime. Yet the procedural mechanisms available to a property owner who wishes to contest a forfeiture are limited, complex, and strictly enforced. A creature of admiralty law, civil forfeiture draws on supplemental provisions of the Federal Rules of Civil Procedure with which many lawyers and federal judges are unfamiliar.

This Comment explores an active circuit split and identifies an undertheorized way for property owners to vindicate their rights: …

Herding Schrödinger’S Cats: The Limits Of The Social Science Approach To International Law, Simon Chesterman

Chicago Journal of International Law

The struggle to assert the legitimacy and relevance of international law is integral to its story. Among academics, that tale has seen other lawyers question whether it is “really” law, while scholars of international relations have dismissed it in a bemused footnote. Among politicians, the narrative has been one of efforts to establish international law as more than simply one foreign policy justification among others. The turn to social science offers a double remedy: rigorous methods that will earn the respect of the academy while also demonstrating the discipline’s “real world” impact. This is an elegant answer—to the wrong question. …

On Relating Social Sciences To International Law: Three Perspectives, Yifeng Chen

Chicago Journal of International Law

This Essay offers a critical yet constructive reading of the social science approach to international law. In seeking to frame international legal studies alongside the positivistic social sciences, the social science approach has suffered from important methodological deficiencies. Though appearing to be an objective science, the social science approach requires a scholar to make subjective decisions throughout the research process. A reductionistic social science approach to international law risks consolidating existing inequalities and imperialistic institutions in the name of objective science. A healthy interaction between international law and the social sciences requires enriched conceptions of both international law and the …

Comparative International Law And The Social Science Approach, Emilia Justyna Powell

Chicago Journal of International Law

The social science approach has already contributed and continues to contribute to the study of international law. In particular, research that incorporates the social science approach has provided much insight into reality and day-to-day functioning of international law by going beyond historical and normative description and providing generalizable theories. If based on a sound theoretical framework that is subsequently tested in a rigorous scientific manner, the social science approach allows us to uncover a multiplicity of factors that commingle to shape states’ preferences and actions toward international law. Combining insights provided by analysis of large-N data with qualitative methodology allows …

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 …

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

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

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 …

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 …

Linguistic Minorities With Disabilities And The Right To Native Language Instruction, Carol Zhang

Chicago Journal of International Law

This Comment examines whether international law guarantees for linguistic minorities with disabilities the right to native language instruction. Linguistic minorities with disabilities currently face two challenges: the barriers presented by their disability and the difficulties of learning the majority language. A right to native language instruction would help eliminate this second challenge, removing an obstacle in academic and social development. To determine the existence of such a right, this Comment will first analyze the language rights regime and show that linguistic rights require further evaluation of the specific pragmatic interests involved. Next, this Comment looks at treaty and case law …

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 …

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 …