Borders and Boundaries

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Borders and Boundaries
The Gravity of Legal Diffusion
Anu Bradford
Anu Bradford is the Henry L. Moses Professor of Law and International Organization, Co- lumbia Law School.
Adam Chilton
Adam Chilton is a Professor of Law and the Walter Mander Research Scholar, University of Chicago Law School.
Katerina Linos
Katerina Linos is Tragen Professor of Law and Faculty Co-Director, Miller Institute for Global Challenges and the Law, University of California, Berkeley.

For helpful comments, we thank Rose Burnam, Kevin Cope, Stavros Gadinis, William Hubbard, Andreas Kakridis, Aila Matanock, Alison Post, Mara Revkin, Kyle Rozema, Megan Stevenson, and Bartek Woda. We also thank participants at The University of Chicago Legal Forum Symposium in November 2022. We owe special thanks to the over 100 research assistants at Columbia Law School that helped us gather and code the antitrust data we employ in this paper. We gratefully acknowledge the funding by the National Science Foundation that supported the early data gathering effort (see NSF-Law & Social Sciences grants 1228453 & 1228483, awarded in September 2012). The coding was subsequently expanded with the generous support of the Columbia Public Policy Grant: “Does Antitrust Policy Promote Market Performance and Competitiveness?,” awarded in June 2015, and additional financial support from Columbia Law School. We also thank the Russell Baker Scholars Fund and the Hans Zeisel Endowment for Empirical Research in the Law at the University of Chicago for research support. We also thank the Miller Center for Global Challenges and the Law, and the Institute for European Studies, at the University of California at Berkeley, and the DAAD and Jean Monnet Fellowships for their support.

A persistent empirical finding is that bilateral trade between two countries is proportional to the size of their economies and inversely proportional to their geographic distance. We hypothesize that a similar pattern is likely to hold for the diffusion of laws. We specifically argue that countries’ propensity to update their laws to converge with the leading regulator in a given policy area is likely to be proportional to the size of their economies and inversely proportional to their geographic distance. We then empirically test this theory in the area of antitrust and assess countries’ convergence to the world’s leading antitrust regulator: the European Union. Using a modified gravity equation, we find that a country’s economic size is consistently positively correlated with continued legal convergence and that a county’s distance from the European Union is consistently negatively correlated with continued convergence. These results suggest that a modified gravity model may offer a simple model of legal diffusion that does not requiring strong epistemic and empirical assumptions.

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Borders and Boundaries
A New Global Corporate Regulatory Power?: Market Entry as the Basis for Prescriptive Jurisdiction
Rachel Brewster
The Jeffrey and Bettysue Hughes Professor of Law, Duke Law School; Co-Director of the Duke Center for International and Comparative Law.

Please send comments to brewster@duke.edu. Thanks to Brett Crow for excellent research assistance.

The rules of international economic law are changing. In a range of areas, governments are asserting that if a multinational firm touches the state’s market, the state can claim the authority to regulate the firm everywhere. This departure from multilateral economic coordination and towards more unilateral regulatory power over firms’ global operations represents an important shift in international economic policy. We have entered an era where governments are embracing more unilateral tools to resist foreign economic influence and reinvigorating national industrial policies.  This Article examines the political dynamics that lead states to use access to their national markets as the basis for global corporate regulation in the national security and corporate social responsibility (CSR) fields. Specifically, this Article analyzes how market-entry-based global regulations represent an expansive conception of states’ extraterritorial jurisdiction and what constraints there are on states’ exercise of these jurisdictional claims.

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Borders and Boundaries
Deploying Trustworthy AI in the Courtroom: Lessons from Examining Algorithm Bias in Redistricting AI
Wendy K. Tam Cho
Departments of Political Science, Statistics, Mathematics, Computer Science, and Asian American Studies, the College of Law, and the National Center for Supercomputing Applications, University of Illinois at Urbana-Champaign.
Bruce E. Cain
Department of Political Science and Bill Lane Center for the American West, Stanford University.

Deploying trustworthy AI is an increasingly pressing and common concern. In a court of law, the challenges are exacerbated by the confluence of a general lack of expertise in the judiciary and the rapid speed of techno-logical advancement. We discuss the obstacles to trustworthy AI in the courtroom through a discussion that focuses on the legal landscape sur-rounding electoral redistricting. We focus on two particular issues, data bi-as and a lack of domain knowledge, and discuss how they may lead to problematic legal decisions. We conclude with a discussion of the separate but complementary roles of technology and human deliberation. We em-phasize that political fairness is a philosophical and political concept that must be conceived of through human consensus building, a process that is distinct from algorithm development.

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Borders and Boundaries
Borders that Bend
César Cuauhtémoc García Hernández
Gregory H. Williams Chair in Civil Rights and Civil Liberties and Professor of Law, Ohio State University.

Special thanks to Lauren Hamlett for excellent assistance.

Borders do not exist. They are made and remade. At every step, the law creates, moves, reforms, reproduces, and reinforces the border. Focusing on the boundary that México and the United States share, this essay critiques the U.S. Supreme Court’s privileging of the sovereign prerogative to control access to the nation’s territory. In their efforts to control movement across and near the border, legal doctrine permits Executive officials to deviate from ordinary legal constraints on the use of violence. This creates a modern version of the sovereign that Carl Schmitt described a century ago: extra-constitutional in origin and subject to law only on its own terms. Urging an end to the law of border exceptionalism, the essay argues that the Schmittian sovereignty that exists in the borderlands is neither justified by the facts on the ground nor required by the very legal principles that the Supreme Court points to.

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Borders and Boundaries
The Border’s Migration
Nicole Hallett
Clinical Professor of Law, University of Chicago Law School.

I would like to thank the members of The University of Chicago Legal Forum and attendees of the Legal Forum’s Fall 2022 Symposium for their insight and commentary on this essay.

The border has never played a larger role in the American psyche than it does today, and yet it has never been less legally significant. Today, a non-citizen’s place of residence tells you less about what rights and privileges they enjoy than it ever has in the past. The border has migrated inward, affecting many aspects of non-citizens’ lives in the United States. The divergence between the physical and legal border is no accident. Instead, it is a policy response to the perceived loss of control over the physical border. But the physical border remains porous despite these legal changes. People keep migrating even as we continue to draw boundaries within communities, homes, and workplaces far away from the border. This paper explores how U.S. law has evolved to render the border superfluous, even as its symbolic importance has grown, and how it might further evolve in the future.

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Borders and Boundaries
Cross-Border Inflfluencers: Democracy and Externalities
Saul Levmore
William B. Graham Distinguished Service Professor, The University of Chicago Law School.

This Article explores the fact that United States law permits domestic cross-border political influences while restricting foreign interference in elections. It tries to show that the law is inconsistent in trying to balance its faith in democracy (in a given jurisdiction) with its concern for externalities. Laws forbidding all cross-border attempts to influence politics would seem to reflect the view that decision-making processes across a border should be respected rather than subject to interference, assuming that the other jurisdiction is reasonably democratic. The analysis explores, and offers examples of, the interaction between a faith in democracy and the consideration of externalities, such as cross-border pollution. 

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Borders and Boundaries
The Neglected Value of Effective Government
Richard H. Pildes
Sudler Family Professor of Constitutional Law, New York University School of Law.

This is a somewhat modified version of a forthcoming book chapter in THE ELECTION LAW HANDBOOK (Eugene Mazo ed. 2024), which also draws on work in Richard H. Pildes, Political Fragmentation in the Democracies of the West, 37 BYU J. PUB. L. 209 (2023). For comments, I owe thanks to Richard Briffault, James Gardner, Tabatha Abu El-Haj, and Gene Mazo. For research assistance, thanks go to Philip Lockwood-Bean, Will Goncher, Pieter Brower, and Jonathan Wampler.

Democratic systems inevitably seek to reflect and realize a range of values. But democratic and legal theory in recent decades have given too little attention and weight to the value and importance of delivering effective government. Much of democratic theory and legal scholarship on democracy focuses on values such as political equality, fair representation, democratic deliberation, political partic- ipation, and individual rights, among other values. But less weight is given to the capacity of government to deliver effectively on the issues citizens care about most urgently.

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Borders and Boundaries
Borders and Boundaries in Markets: A Sociocognitive Approach for Market Defifinition and Implications for Antitrust
Elizabeth G. Pontikes
Associate Professor of Management, University of California, Davis Graduate School of Management.

Categorical distinctions are foundational to firm competition and regulation. Yet, market categories are notoriously difficult to define. The question of how to delineate markets is well-worn in the antitrust literature but is now the focus of a growing sociocognitive literature in strategy and organizational sociology.1 Histor- ically, there has been little cross-pollination between these research areas. More integration, however, may be increasingly important in modern markets, where change is rapid, new technologies are key differentiators in many traditional in- dustries, and platform competition is on the rise. In this paper, I introduce recent theoretical and empirical advances in sociocognitive research on categories in mar- kets. I describe a theoretical model that incorporates the probabilistic nature of how people categorize, ambiguity in category boundaries, and that multiple audi- ences are relevant in most markets. Empirically, researchers employ a range of approaches to represent these aspects of market definition, from qualitative stud- ies, to surveys, to computational approaches that leverage recent advances in ma- chine learning applied to large corpora of text. I discuss key implications from this theoretical model and how they might inform market definition in antitrust.

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Borders and Boundaries
International Borders: Yours, Mine, and Ours
Beth Simmons
Andrea Mitchell University Professor of Law in Law, Political Science, and Business Ethics, University of Pennsylvania.

I thank Eyal Benvenisti, Angus Corbett, Jeffrey Dunoff, Jean Galbraith, and Gideon Parchomovsky following for careful reads and comments, and a Penn Carey Law Faculty incubator for helpful discussion on this topic. All errors are my own.

International borders have become divisive issues in international and domestic politics. They have also become sites where the human rights of vulnerable persons have increasingly been documented as at risk. Policies of border harden- ing in the face of growing human mobility and other external threats—real and imagined—have made international borders focal sites of conflict at many levels. This Article argues that international law can reframe our understanding of bordering, leading to a more constructive approach to border management and greater respect for human rights. Borders are essentially institutions with the po- tential to settle coordination problems over territory. But of growing importance, they are also relational institutions that often have drastic effects on social and economic interactions. Their relational aspects require governance, for which international law has developed the law of neighborliness. In turn, the law of neighborliness requires, among other things, respect for mutually agreed cove- nants between sovereign states. Borders should not be presumed to pose inherent national security risks. Indeed, the presumption should be reversed: borders create zones where the need and obligation for friendly cooperation, including policies aimed at human rights protections, is at its highest.

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Borders and Boundaries
Non-Retrogression Without Law
Nicholas O. Stephanopoulos
Kirkland & Ellis Professor of Law, Harvard Law School.
Eric McGhee
Senior Fellow, Public Policy Institute of California.
Christopher Warshaw
Associate Professor of Political Science, George Washington University.

For five straight cycles (the 1970s through the 2010s), Section 5 of the Voting Rights Act dominated redistricting in states covered by the provision. In these states, district plans had to be precleared with federal authorities before they could be implemented. Preclearance was granted only if plans wouldn’t retrogress, that is, reduce minority representation. Thanks to the Supreme Court’s 2013 decision in Shelby County v. Holder, Section 5 is no longer operative. So what happened to minority representation in formerly covered states after Section 5’s protections were withdrawn? This Article is the first to tackle this important question. We examine all states’ district plans before and after the 2020 round of redistricting at the congressional, state senate, and state house levels. Our primary finding is that there was little retrogression in formerly covered states. In sum, the number of minority ability districts in these states actually rose slightly. We also show that formerly covered states were largely indistinguishable from formerly uncovered states in terms of retrogression. If anything, states unaffected by Shelby County retrogressed marginally more than did states impacted by the ruling. Lastly, we begin to probe some of the factors that might explain this surprising pattern. One possible explanation is the status quo bias of many mapmakers, which is reflected in their tendency to keep minority representation constant. Another potential driver is many line-drawers’ reluctance to use retrogression as a partisan weapon. This reluctance is evident in the similar records of all redistricting authorities with respect to retrogression, as well as in the absence of any relationship between retrogression and change in plans’ partisan performance.

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Borders and Boundaries
The Past, Present, and Future of Humanitarian Parole
Farooq Chaudhry
B.A., University of Illinois at Chicago, 2018; J.D. Candidate, The University of Chicago Law School, 2024.

My sincere gratitude and thanks to Professor Nicole Hallett for her support, feedback, and insights; Eliza Martin, Paige Petrashko, and the Legal Forum staff for their diligent work and help throughout the process; and my parents for their never-ending support. Alhamdulilah ‘ala kulli haal.

The humanitarian parole provision of the Immigration and Nationality Act grants the Attorney General discretion to allow people to enter the United States without an immigrant or non-immigrant visa. Despite the sparse language of the provision establishing parole, it has been used in a wide variety of contexts, ranging from one-time grants of entry into the United States for medical care to the establishment of large-scale programs for entire groups of people. The creation and administration of large-scale parole programs have been the focus of recent lawsuits, placing critical questions on the meaning and scope of the provision before judges. This Comment aims to provide a historical overview of humanitarian parole and evaluate controversies and lawsuits challenging large-scale parole programs. Ultimately, it argues that large-scale parole programs play a crucial role in our immigration system, and their creation is a legitimate, legal use of the provision. It ends by making a recommendation on how to amend the parole statute to formally authorize large-scale programs.

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Borders and Boundaries
Multidistrict Litigation & Choice of Federal Law
Andrew Eller
B.A., The University of Chicago, 2021; J.D. Candidate, The University of Chicago Law School, 2024.

I would like to thank Professor William Hubbard, whose extensive wisdom in the world of civil procedure was essential in the development of this Comment. I would also like to thank all the editors on the Legal Forum for their tireless work on this and all our pieces.

Multidistrict litigation (MDL) is a procedural mechanism that consolidates federal civil cases from around the country into one federal district for pre-trial proceedings. Congress enacted MDL by statute in 1968 in response to a substantial influx of cases, and MDL represents a large portion of the federal civil docket today. MDL creates tricky choice of law questions, however, because cases are often filed in one district and then transferred to another through consolidation. Should a judge handling an MDL apply the state and federal law that the original court would apply or should he apply the law of his own district? This Comment argues that the MDL court should apply the federal law of the original, transferor court because such a rule would protect plaintiff autonomy and limit inconsistencies once cases are remanded back to their original district for trial.

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Borders and Boundaries
Domestic Terror Across State Lines: A Failed Federal Framework
Sophia Houdaigui
B.A., Barnard College of Columbia University, 2021; J.D. Candidate, The University of Chicago Law School, 2024.

I would like to express my sincere gratitude to Professor Sarah Konsky for her invaluable guidance on this Comment and to Professor Saul Levmore for encouraging me to consider different prospectives. My appreciation extends to the editors and staff of the Legal Forum, with a special thank you to Paige Petrashko, Nick Riley, Eliza Martin, and Ellie Maltby for their support and insightful feedback.

As white supremacist violence has substantially increased over the last two decades, calls to combat associated attacks have intensified. This Comment outlines the impact of the events of September 11, 2001 on domestic and international terrorism policy, contextualizing the subsequent invocation of international terrorism charges at significantly higher rates than those of domestic terrorism. It introduces the lack of a general criminal statute prohibiting acts of terrorism and discusses the issues associated with the varying definitions of domestic terrorism employed by the federal government.

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Borders and Boundaries
The Dysfunctional “Functional Equivalent” Standard: Regulations of Groundwater Discharges Since County of Maui v. Hawaii Wildlife Fund
Ellie Maltby
B.A., Carleton College, 2020; J.D. Candidate, The University of Chicago Law School, 2024.

My sincere thanks to Professor Joshua Macey for his thoughtful feedback and insights. I would also like to thank Sophia Houdaigui, Eliza Martin, and the rest of the Legal Forum staff for the guidance, support, and laughs they provided me throughout the Comment writing process.

The distinction between “groundwater” and “navigable waters” has long created legal disputes. The most recent Supreme Court decision to grapple with the boundary between groundwater and navigable waters is County of Maui v. Hawaii Wildlife Fund. Section 301(a) of the Clean Water Act (CWA) prohibits the discharge of any pollutant into navigable waters without a National Pollutant Discharge Elimination System (NPDES) permit. The question in County of Maui is whether the CWA applies to pollutants that travel from a point source through groundwater, before entering navigable waters. The Supreme Court held that the CWA requires a permit when the discharge is the “functional equivalent” of a direct discharge. However, the Court did not define “functional equivalent” and instead provided a list of seven factors for lower courts to evaluate on a case-by-case basis.

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Borders and Boundaries
Defunding Cities: Reconsidering the Fiscal Sanctioning Measures of State Punitive Preemption Statutes
Eliza Martin
B.A., Rice University, 2019; J.D. Candidate, The University of Chicago Law School, 2024.

I would like to thank Professors Dhammika Dharmapala and Lee Fennell for their guidance, and the Legal Forum Staff, particularly Paige Petrashko, Nicholas Riley, Sophia Houdaigui, and Ellie Maltby, for their feedback. Finally, thank you to Texas State Representative Donna Howard and her 87th Legislative Session staff for their work that inspired my interest in this topic.

In an effort to deter and punish cities for passing ordinances that conflict with state priorities, states are utilizing a new form of legislative power: punitive preemption. It is generally considered a legitimate use of state power to utilize statutes to preempt local measures and ordinances deemed inconsistent with state policy. State legislatures, however, are attaching punitive mechanisms to preemption legislation that, in the event of local noncompliance, create criminal and civil liability for local officials, provide removal mechanisms for elected officials, and allow for the fiscal sanctioning of local governments.

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Borders and Boundaries
The Illusion of Public Space: Enforcement of Anti-Camping Ordinances Against Individuals Experiencing Homelessness
Peer Marie Oppenheimer
B.A., Cornell University, December 2020; J.D. Candidate, The University of Chicago Law School, 2024.

My sincerest thanks to the staff of The University of Chicago Legal Forum and Professor Jeff Leslie for making this Comment possible. I would also like to thank Lord John Bird for deepening my understanding of the issues that affect individuals experiencing homelessness.

In response to the growing homelessness problem, many state and local governments have developed anti-camping ordinances that criminalize the act of sleeping on public property. Anti-camping laws can devastate individuals experiencing homelessness, especially when alternative resources, such as shelters, are not easily accessible. This Comment addresses the extent to which municipalities may enforce anti-camping ordinances against individuals experiencing homelessness who have no alternative to sleeping in public without violating the Eighth Amendment. As municipal regulation and judicial interpretation narrow the scope of permissible use of publicly owned areas, this raises the question of to what extent, and to whom, public space is actually accessible. To best safeguard public spaces, protect individuals experiencing homelessness, and avoid the risks that a narrow interpretation may create, this Comment argues that courts should interpret Ninth Circuit precedent surrounding homelessness broadly and take into account individual complexities on a case-by-case basis.

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Borders and Boundaries
Knock and Talks: Faithfully Applying Social Norms to Prevent Unconstitutional Police Intrusion upon the Home
Alexander Newman
B.A., Washington University in St. Louis, 2020; J.D. Candidate, The University of Chicago Law School, 2024.

I would like to thank Professor Judith Miller for her thoughtful feedback and guidance, as well as the previous and current staff of The University of Chicago Legal Forum for their support.

A “knock and talk” is a common police practice involving an officer approaching a home and knocking on the front door to speak with a resident. The knock and talk is a long-recognized exception to the Fourth Amendment’s warrant requirement, making it a powerful police tool to access constitutionally protected areas of the home. But courts have struggled to define the limits of a knock and talk. For example, when police officers knock and receive no answer, can they remain standing at the door, or even roam to other parts of the home?