International Law

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Article
Volume 92.6
The Splintering of American Public Law
Marco Basile
Assistant Professor, Boston College Law School.

For feedback and suggestions at various stages of this project, I thank David Barron, Mary Sarah Bilder, Nikolas Bowie, Richard Chen, Noah Feldman, Idriss Fofana, Barry Friedman, Jack Goldsmith, Daniel Hulsebosch, Mark Jia, Michael Klarman, Chris Mirasola, and Susannah Barton Tobin. This project also benefitted from workshops with faculty at Boston College Law School, University of Chicago Law School, Cornell Law School, Harvard Law School, Loyola Law School, New York University School of Law, Notre Dame Law School, University of San Diego School of Law, Seattle University School of Law, University of Texas School of Law, University of Southern California Gould School of Law, and Washington University School of Law. I am also grateful to Emma Svoboda and Elaine Tsui for research assistance and to the members of the University of Chicago Law Review for their hard work editing the manuscript.

This Article by Marco Basile argues that U.S. constitutional law and international law diverged after the Civil War when courts came to apply them differently against the state as the United States consolidated a continental nation-state. On one hand, the Supreme Court came to assert authority over constitutional law more aggressively in the context of gutting Reconstruction in the South. At the same time, the Court stepped back from international law in deference to Congress as the United States conquered territories and peoples in the West. The simultaneous rise of judicial supremacy as to constitutional law and of judicial deference as to international law recast constitutional law as more “legal” than political and international law as more “political” than legal. By recovering the earlier understanding of public law, this Article challenges how we construct constitutional traditions from the past. The Article ultimately invites us to reimagine a more integrated public law today.

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Essay
A Blueprint for Protecting U.S. Companies from Unfair Competition Fueled by Forced Labor
T. Markus Funk
Markus is a litigation and white collar partner at White & Case. A former federal prosecutor (Chicago) and conflict-deployed State Department lawyer (Kosovo), he set up the first supply chain compliance practice at an AmLaw100 law firm, taught law school classes on trafficking in supply chain compliance, and authored "From Baksheesh to Bribery: Understanding the Global Fight Against Corruption and Graft."
The Hon. Virginia M. Kendall
Judge Kendall is the Chief Judge for the Northern District of Illinois. She has taught law at institutions including Yale Law School and currently teaches a class on human trafficking, supply chain law, and public corruption at the University of Chicago School of Law. She has written extensively on the U.S. and transnational impact of bribery and corruption.

In today’s competitive global economy, U.S. companies upholding strict labor and human rights standards increasingly face unfair competition from foreign firms that exploit forced labor. In this Essay, we argue that this exploitation is not just a grave human rights crisis but also a serious market distortion that disadvantages ethical businesses in the United States and elsewhere.
This Essay outlines a strategic approach to confront this unfairly uneven playing field. Beyond simply deploying the existing legal tools, we propose a unified federal enforcement strategy and smarter trade agreements with enforceable labor standards. We also propose affirmative incentives, including procurement preferences and legal safe harbors, for companies that invest in ethical sourcing. The final component to the integrated strategy we propose is greater investment in traceability technologies and public-private partnerships to identify and root out forced labor deep within supply chains. Ultimately, we outline a forward-looking blueprint to ensure fair and competitive markets for U.S. businesses, ones that reward integrity and drive a global race to the top in labor practices. Economic competitiveness and human dignity, we argue, must be pursued together, not treated as competing priorities.

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Book review
Volume 92.3
The Geopolitics of Digital Regulation
Aziz Z. Huq
Frank and Bernice J. Greenberg Professor of Law, The University of Chicago Law School, supported by the Frank J. Cicero fund.

Thanks to Uven Chong for research assistance. Anu Bradford offered gracious, insightful, and generous comments on a draft that strikes to be fair, if critical, of her work. For her careful engagement, I am respectfully and deeply grateful. Editors of the University of Chicago Law Review, including Helen Zhao, Daniella Apodaca, and Nathan Hensley, did excellent work on the text.

Contemporary regulation of new digital technologies by nation-states unfolds under a darkening shadow of geopolitical competition. Three recent monographs offer illuminating and complementary maps of these geopolitical conflicts. Folding together insights from all three books opens up a new, more perspicacious understanding of geopolitical dynamics. This perspective, informed by all three books under consideration here, suggests grounds for skepticism about the emergence of a deep regulatory equilibrium centered on the emerging slate of European laws. The area of overlap will be strictly limited to less important questions by growing bipolar geostrategic conflict between the United States and China. Ambitions for global regulatory convergence when it comes to new digital technology, therefore, should be modest.

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Essay
Catching Wizard Spider: How a New U.N. Cybercrime Treaty Can Address Ransomware Attacks from Russia and Beyond
Katherine M. Koza
Katherine M. Koza is a J.D. Candidate at the University of Chicago Law School, Class of 2023, and the Executive Comments Editor of the Chicago Journal of International Law.

I thank the editors and staff of the University of Chicago Law Review, especially Matthew Makowski, Anson Fung, and Annie Kors. I also thank the Chicago Journal of International Law, especially Carol Zhang, Clare M. Chiodini, Michael Morgan, Keila Mayberry, and Amber Symone Stewart. I am grateful to my faculty advisor, Professor Aziz Huq, my international law professor, Professor Mary Ellen O’Connell, and the University of Chicago’s excellent international law librarian, Lyonette Louis-Jacques. I thank the American Society of International Law, International Courts and Tribunals Working Group for the opportunity to present a draft of this paper at the 2022 Works-In-Progress Conference. Finally, I thank my family for their constant love.

In June 2022, a Russian-linked ransomware group attacked the Costa Rican government, targeting over twenty-seven agencies and sending Costa Rica’s healthcare system “into a spiral.”

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Essay
Privacy Peg, Trade Hole: Why We (Still) Shouldn’t Put Data Privacy in Trade Law
Kristina Irion
Kristina Irion is Associate Professor at the Institute for Information Law (IViR) at the University of Amsterdam.
Margot E. Kaminski
Margot E. Kaminski is Associate Professor of Law at Colorado Law School and Director of the Privacy Initiative at Silicon Flatirons.
Svetlana Yakovleva
Svetlana Yakovleva is a Postdoctoral Researcher at the Institute for Information Law (IViR), University of Amsterdam, Adjunct Professor of Law at Benjamin N. Cardozo School of Law, and Senior Legal Adviser at De Brauw Blackstone Westbroek (Amsterdam).

Authors are listed in alphabetical order and contributed equally.

A Response to Profs. Anupam Chander & Paul Schwartz’s Privacy and/or Trade.

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Essay
Ditch the Directives and Make Like California: The Path to Improved Conditions for E.U. Farm Animals Does Not Begin in Brussels
Joaquin Gonzalez
Joaquin Gonzalez is a J.D. Candidate at the University of Chicago Law School, Class of 2023.

He thanks Delaney Prunty, Mike Morgan, Annie Kors, Matt Makowski, Benjamin Klein, and the University of Chicago Law Review Online team.

The European Union is not doing enough to protect farm animal welfare—at least, so say animal rights activists and their fellow travelers.

Online
Essay
Expecting the Unexpected: Moore v. British Airways and Defining an Accident Under the Montreal Convention
Kelsey Roberts
Kelsey Roberts is a J.D. Candidate at the University of Chicago Law School, Class of 2024.

She thanks Benjamin Klein, Matthew Makowski, Annie Kors, and the University of Chicago Law Review Online team. She also thanks her parents for their support and for listening to her ramble on about the law.

When a passenger suffers injuries on an international flight, any claim for damages against the airline must be brought under the Montreal Convention, a multilateral treaty governing the liability of air carriers.

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Essay
Not My Cup of Special Tea: An Extradited Defendant’s Standing to Challenge American Prosecution Under The Specialty Doctrine
Caitlan M. Sussman
Caitlan M. Sussman is a J.D. Candidate at the University of Chicago Law School, Class of 2022. She received her B.A., summa cum laude, from Cornell University in 2016.

The author would like to thank the members of the Law Review’s Online Team for their invaluable comments and edits. She would also like to thank her family for their unconditional support.

When British authorities dragged Julian Assange out of the Ecuadorian embassy in London in April 2019, the Australian-born founder of the whistleblowing platform, WikiLeaks, was no stranger to displacement.

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Article
Volume 89.1
Foreign Dictators in U.S. Court
Diego A. Zambrano
Associate Professor, Stanford Law School.

This Article received an honorable mention in the national 2021 Association of American Law Schools Scholarly Papers Competition, awarded on a blind basis by a committee of established scholars. For thoughtful comments and conversations, I thank Pam Bookman, Curtis Bradley, John Coyle, William Dodge, Robin Effron, Maggie Gardner, Tom Ginsburg, Manuel Gómez, Aziz Huq, Erik Jensen, Chimène Keitner, Michael McConnell, David Sklansky, Beth Van Schaack, Allen Weiner, Ingrid Wuerth, and participants at the Junior International Law Scholars Association conference. I am most grateful to Mackenzie Austin and Chris Meyer for invaluable research assistance and also thank Alice Bishop, Nitisha Baronia, and Mathew Simkovits for their help.

The Foreign Sovereign Immunities Act, the court-created “act of state” doctrine, and other common-law immunities shield foreign officials and governments from most lawsuits. For instance, courts have dismissed claims against China, Cuba, Venezuela, and Russia over allegations of torture, detentions, and election interference. Yet foreign governments have unfettered access to U.S. courts as plaintiffs. And foreign dictatorships—including Russia, China, Turkey, and Venezuela—have leveraged this access to harass political dissidents, critics, and even newspapers in the United States. These doctrines create an asymmetry at the heart of this Article: foreign dictators and their proxies can access our courts as plaintiffs to harass their opponents, but their regimes are, in turn, immune from lawsuits here. This Article exposes that asymmetry and argues that U.S. courts and Congress should make it harder for foreign dictators to abuse our legal system.

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Essay
Federal Grand Juries’ Supremacy Over Foreign Data Privacy Laws
Alexander C. Meade
Alexander C. Meade is a Member of The University of Chicago Law Review and a J.D. Candidate in the University of Chicago Law School Class of 2022. He received his B.A. from the University of Pennsylvania in 2016.

He would like to thank Meghan Holloway, Matthew D. Reade, Nathan T. Tschepik, and Chloe M. Zagrodzky for their invaluable feedback.

Data privacy has been at the forefront of recent foreign-policy conversations.