Disaggregating U.S. Interests in International Law

The Constitution is so central to American identity that any concession of external constitutional constraints may constitute a threat to national self-determination. This explains the relative intensity of objections to international norms and institutions thought to compromise constitutional discretion, at least in the absence of countervailing interests

McCain’s Citizenship and Constitutional Method

Many things may obstruct John McCain’s path to the White House, but his citizenship status is not among them. The question of his eligibility, given the circumstances of his birth, has already been resolved. That outcome has been produced by actors outside the courts. . . . If non-judicial actors—including Congress, editorialists, leading members of the bar, and the People themselves—manage to generate a constitutional consensus, there isn’t much that the courts can do about it. In cases such as this one, at least, that seems to be an acceptable method of constitutional determination

Leave for Appeal: Departure as a Requirement for Review of Deportation Orders

In this Article, Mr. Spiro addresses the congressional amendments to the Immigration Naturalization Act meant to combat the legal maneuvers calculated to defeat the execution of deportation orders. The addition of section 106 was meant to prohibit all appeals of deportation orders under which an alien had already departed the United States. The author analyzes the legislative history of the provision and notes that Congress intended to the departure rule to apply even in more egregious cases of INS misbehavior. The author discusses federal circuit law and finds that neither the rule nor its exception best serve the dual objectives of deterring manipulative delay while affording fairness to aliens seeking to challenge the finality of their deportation. To combat the filing of frivolous appeals, the author recommends amending section 106 so that deportation appeals be permitted only from abroad

Resurrecting Missouri v. Holland

This brief essay sketches the constitutional dormancy of Missouri v. Holland and the potential for its activation. The essay first describes how the treatymakers declined the Treaty Power offered them by the Court. In the near century since the ruling, no treaty appears to have depended on the decision for authority. The treatymakers have worked from contrary constitutional premises, establishing a sort of parallel constitutional universe in which the ruling was never handed down. Through these years, Missouri v. Holland has failed accurately to represent prevailing constitutional norms on the question. In other words, arguably, the decision is no longer good law if it ever wa

Constraining Global Corporate Power: A Short Introduction

This Essay sets out three models of institutional constraint of global corporate power. First is private lawmaking, in which the non-state power of firms is countered by the non-state power of civil society organizations. Second are nonlegalized processes under public institutional umbrellas, in which public entities host standards-setting mechanisms. Finally, there is the prospect of fully legalized regimes, the equivalent of global regulation. These models have been emerging bottom-up rather than as part of a grand scheme. After describing the three models, this Essay considers the future of global regimes aimed at constraining corporate conduct. Distinct institutional approaches could persist. Alternatively, there may be a progression toward more robust public regulation at the global level. Power may migrate to something approximating global government, directly regulating corporations and other entities

Citizenship Overreach

This Article examines international law limitations on the ascription of citizenship and national self-definition. The United States is exceptionally generous in its extension of citizenship. Alone among the major developed states, it extends citizenship to almost all persons in its territory at the moment of birth. This birthright citizenship is constitutionally protected under the Fourteenth Amendment. At the same time that it is generous at the front end, U.S. citizenship is sticky at the back. Termination of citizenship on the individual’s part can involve substantial fees. Expatriation is contingent on tax compliance and, in some cases, will implicate the recognition of capital gains