Courts and scholars continue to debate the status of customary international law in U.S. courts. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach, however, adequately takes account of the Constitution’s allocation of powers to the federal political branches or the judiciary’s treatment of the law of nations throughout U.S. history. The Constitution’s allocation of specific powers to the federal political branches—such as the powers to recognize foreign nations, declare war, issue letters of marque and reprisal, and make rules governing captures—can only be understood by reference to certain background principles of the law of nations. Many of the Supreme Court’s decisions applying traditional principles derived from the law of nations may plausibly be understood as upholding the Constitution’s allocation of war and foreign relations powers to the political branches of the federal government. In numerous cases, the Court has upheld the rights of foreign sovereigns in ways that respect the political branches’ possession or exercise of these specific constitutional powers. This understanding has potential implications for the ongoing debate over the status of customary international law in U.S. courts. Specifically, it suggests that the modern position is over-inclusive and the revisionist position is under-inclusive of the role of customary international law. The allocation of powers approach—grounded in specific constitutional provisions and supported by numerous Supreme Court cases—suggests that courts should apply the law of nations when necessary to uphold the Constitution’s exclusive allocation of war and foreign relations powers to the federal political branches.
Article
Atrocity, Entitlement, and Personhood
For a generation since Margaret Jane Radin’s classic article
Property and Personhood
, scholars have viewed personhood as a conception of property that affirms autonomy, dignity, and basic civil rights, a progressive alternative to traditional, more economically focused property theories. This Article presents a fundamental challenge to personhood as a progressive approach to property. It shows that personhood claims often derive from violent and other harmful acts committed in the course of acquiring and owning property. This persistent and pervasive connection between personhood and violence—the “atrocity value” in property—upends core assumptions about the American property tradition and complicates the progressive social function of property law. This Article explains why atrocity creates entitlement, drawing from social psychology and accounts of law and violence to show how violence can foster personhood. The Article then explores the deep historical roots of atrocity within the American property tradition, which helped establish an abiding cultural value that encouraged personal identification with property. Finally, the Article surveys how atrocity continues to foster personhood in an array of contexts involving common ownership, exclusion, and use. Ultimately, personhood emerges less as a progressive value in property than as a challenge that the law has had to negotiate. Property law is often successful in promoting progressive and cooperative goals because courts do not attempt to decide cases on the basis of a personhood value in property.
Regulation, Unemployment, and Cost-Benefit Analysis
Regulatory agencies take account of the potential unemployment effects of proposed regulations in an ad hoc, theoretically incorrect way. Current practice is to conduct feasibility analysis, under which the agency predicts the unemployment effects of a proposed regulation, and then declines to regulate (or weakens the proposed regulation) if the unemployment effects exceed an unarticulated threshold, that is, seem “too high.” Agencies do not reveal the threshold, do not explain why certain unemployment effects are excessive, and do not explain how they compare unemployment effects and the net benefits of the regulation. Many agencies also predict unemployment effects incorrectly. The proper approach is for agencies to incorporate unemployment effects into cost-benefit analysis by predicting the amount of unemployment that a regulation will cause and monetizing that amount. Recent economic studies suggest that monetized cost of unemployment is significant, possibly more than $100,000 per worker. If agencies used this figure, there could be significant consequences for a wide variety of regulations.