The University of Chicago Law School Faculty Blog

David Souter, Human Rights Justice

In her profile of Justice David Souter in the New York Times this weekend, Linda Greenhouse notes that Justice Souter only crossed the Atlantic twice, once for his Rhodes Scholarship at Oxford, and the second time for an Oxford reunion. But for a judge who had spent such little time abroad, he certainly demonstrated concern (shall I dare say "empathy"?) for those beyond our shores. This was made clear in his decision in Sosa v. Alvarez-Machain, a case handed down on the last day of the Court's October 2003 term.

Sosa was the Court's first full engagement with the Alien Tort Statute (ATS), which formed but one sentence in the Federal Judiciary Act of 1789: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."

Diseases and National Borders

As the spread of swine flu has taught us yet again, today’s problems cannot be contained by national borders.

But even if we admit that our problems are global, perhaps we might still insist on purely local solutions. That is the argument of David Brooks this morning. In his provocative New York Times column “Globalism Goes Viral,” Brooks argues that rather than an “infrastructure of international cooperation,” a “decentralized” response is best.

Brooks begins his argument by contrasting the swift response of Mexican and American local authorities to the swine flu outbreak with his vision of the “globalist” alternative:

“If the response were coordinated by a global agency, those local officials would not be so empowered. Power would be wielded by officials from nations that are far away and emotionally aloof from ground zero. The institution would have to poll its members, negotiate internal differences and proceed, as all multinationals do, at the pace of the most recalcitrant stragglers.”

This so-called “globalist” alternative is certainly not the one promoted by the international lawyers I know. The “infrastructure of international cooperation” does not imply subservience to a dictator in Geneva. Rather it requires coordinating our responses so that, inter alia, (1) states share information with each other; (2) states continue commerce with each other, and do not exploit health fears for protectionist reasons; (3) states take steps before crises to improve their capacity to respond to such crises; and (4) experts from around the world collect and analyze data from around the world and offer measured responses to contain the crisis.

Student Blogger - "Glocalization" - a Third Way for Regulating Global Services?

France sues Yahoo for permitting Nazi memorabilia to be sold on its auctions accessible in France. Strict libel law in the UK gives a forum for suits against foreign parties - either chilling speech or vindicating important interests, depending on your point of view. The US Congress tries to block access to offshore gambling sites. China builds a new, digital Great Firewall.

These examples of the challenges of regulation in a global, networked economy are familiar to even the most casual observers. A lot has been written about them, in the mass media, in blogs, and in law reviews. But nobody has figured out a solution, or really even clearly identified the problem. Many think the Internet (the main vehicle for this global services trade) should be mostly if not fully free of regulation, others think regulation is necessary but harmonization is needed, and most everybody opposes the Chinese approach (though Australia has recently made moves toward creating its own barriers to net traffic).

Professor Anupam Chander offered a partial solution to these problems at this week's Works in Progress (WiP) talk at the Law School, presenting parts of a forthcoming book (The Electronic Silk Road, Yale University Press) on the subject. More on his proposal and responses to it below the fold.

What Can Corporate Law Teach Constitutional Law?

In 2003, I argued in the Yale Law Journal that constitutional law can learn much from corporate law with respect to the protection of minorities.  The Yale Law Journal has now revisited my argument in Minorities, Shareholder and Otherwise, by inviting three leading scholars--Steve Bainbridge, Richard Delgado, and Kevin Johnson to comment on the piece.  I introduce this online symposium and also respond to the comments. 

The Yale Law Journal has now published an online symposium on my paper through its Pocket Part, with an introduction and a response by me. 

Financial Crisis Double Feature

Like most everyone else, the Law School faculty are talking about the current financial crisis and governments' attempts to resolve it. So we've combined last week's scheduled Faculty Podcast with this week's scheduled Open Minds podcast to bring you two recent faculty panels about the bailout plan. The first, recorded on October 9th and sponsored by the Federalist Society, featured Douglas Baird, Anupam Chander, Rosalind Dixon, and M. Todd Henderson. The second, recorded on October 15th, was sponsored by the Law School Democrats and Law School Republicans and included  Randy Picker, Douglas Baird, M. Todd Henderson, and the GSB's John Cochrane (you can also read a summary of the panel here).

Crowdsourcing Obama's Exams

Like Britney Spears and Paris Hilton, Barack Obama’s past has been laid bare for Internet gawkers everywhere. But that may be where any similarity ends.

Instead of Inside Edition and Perez Hilton, Obama has been scrutinized by the New York Times and legal eagles Akhil Amar, Randy Barnett, John Eastman, and Pam Karlan. Fortunately for Obama, the past under review has received largely glowing reviews.

The precise target of the scrutiny is Obama’s 1994 syllabus for a seminar and, more strikingly, his late Nineties through early 2000s exams and model answers for constitutional law.

The blogosphere is alight with commentary on Obama’s course materials and what this reveals about Obama.

I don’t want to focus on the quality of those papers and what they allow us to predict about Obama today, but rather on what this story reveals about (1) the New York Times and the way news is processed and received in the Web 2.0 era; and (2) the precariousness of our privacy today.