Print Archive
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.
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.
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.
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.
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.
It has long been assumed in large, modern, democratic states that the successful practice of democratic politics requires some kind of internal division of the polity into subunits. In the United States, the appropriate methods and justifications for doing so have long been deeply and inconclusively contested. One reason for the intractability of these disputes is that American practices of political self-division are rooted in, and have been largely carried forward from, premodern practices that rested originally on overtly illiberal assumptions and justifications that are difficult or impossible to square with contemporary commitments to philosophical liberalism.
Climate change represents one of the defining global problems of the twenty-first century. The effects of warming have led to mass displacement, more extreme weather events, and degradation of natural habitat.
The notion of an “absolute” First Amendment has been around for generations. Talk of an absolute First Amendment, however, is just that—talk.
Popular discourse in the United States often assumes that it must. Discussions about hate speech or false speech frame harm as the price we pay for freedom.
In Greek mythology, Procrustes was a notorious bandit who would abduct travelers and then offer them a rather macabre form of hospitality.
The First Amendment protects speech from the street corner to the ballot box. With a pervasive fear of governmental suppression and a commitment to strong public discourse, courts have forged the modern First Amendment into a democratic shield.