Digital Commons Network^™

Choice Of Law, The Constitution And Lochner, James Y. Stern

James Y. Stern

No abstract provided.

A Fiduciary Theory Of Jus Cogens, Evan J. Criddle, Evan Fox-Decent

Evan J. Criddle

No abstract provided.

Vertical Power, Michael S. Green

Michael S. Green

Many legal scholars and federal judges - including Justices Ginsburg and Scalia - have implicitly assumed that a state can extend its procedural law solely to federal courts within its borders. To date, however, no one has identified this assumption, much less defended it. Drawing upon an example discussed by Chief Justice Marshall in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), 1 argue that such vertical power does not exist. Not only do states lack a legitimate interest in extending their law vertically, a state's assertion of vertical power would improperly discriminate against federal courts. If state law …

Drones And The Decolonization Of International Law, Markus Gunneflo

Markus Gunneflo

The Supreme "Courts" Of The Roman Empire, C.G. Bateman

C.G. Bateman

Sexual Violence In The Field Of Vision, Sharon Sliwinski

Sharon Sliwinski

Sacrifice And Sovereignty, Mateo Taussig-Rubbo

Mateo Taussig-Rubbo

Published as Chapter 4 in States of Violence: War, Capital Punishment, and Letting Die, Austin Sarat & Jennifer L. Cuthbert, eds.

This Chapter examines a complement to the concept of the state’s monopoly of legitimate violence, what I call a ‘monopoly of sacrifice.’ It describes some of the difficulties the United States government has confronted in authoritatively designating which and whose losses and deaths in the name of the nation are considered transcendent or sacred. Through detailed case studies, it describes a state that uses legal form and policy to construe certain deaths as sacrificial, and others as banal, and …

Did Russian Cyber Interference In The 2016 Election Violate International Law?, Jens David Ohlin

Jens David Ohlin

When it was revealed that the Russian government interfered in the 2016 U.S. presidential election by hacking into the email system of the Democratic National Committee and releasing its emails, international lawyers were divided over whether the cyber-attack violated international law. President Obama seemingly went out of his way to describe the attack as a mere violation of “established international norms of behavior,” though some international lawyers were more willing to describe the cyber-attack as a violation of international law. However, identifying the exact legal norm that was contravened turns out to be harder than it might otherwise appear. To …

Domestic Relations Law: Federal Jurisdiction And State Sovereignty In Perspective, Sharon E. Rush

Sharon E. Rush

Commonly known as the domestic relations exception, the United States Supreme Court's broad disclaimer of federal power over family law matters symbolizes the inherent division of power fundamental to a dual sovereignty. Although the Court announced the disclaimer only in dicta, and no authoritative analysis of its validity exists, federal courts have adamantly declared that the domestic relations exception divests them of jurisdiction over divorce, alimony, and child custody. Within the last twenty years, however, a growing number of federal courts have questioned the validity and contours of the domestic relations exception. This questioning indicates a basic misunderstanding of the …

Brexit And Ip: The Great Unraveling?, Graeme B. Dinwoodie, Rochelle C. Dreyfuss

Graeme B. Dinwoodie

Finding The Sovereign In Sovereign Immunity: Lessons From Bodin, Hobbes, And Rousseau, David Schraub

David Schraub

Beyond Territoriality: The Case Of Transnational Human Rights Litigation, Peer Zumbansen

Peer Zumbansen

Cases for civil damages that have been brought before Western courts by victims of torture and persecution against states officials or corporations, challenge the principles of state sovereignty and jurisdictional competence. While national courts can in cases of serious crimes hear cases that grow out of acts committed in another country, the same is not true for cases for civil compensation. A persisting and rising number of private law cases that attempts to empower disenfranchised victims of crime and abuse, points to the necessity of reconsidering the prevailing procedural and substantial obstacles that govern the so-far unsuccessful civil law suits. …

Sovereignty, Identity, And The Apparatus Of Death, Tawia Baidoe Ansah

Tawia B. Ansah

Ten years after the genocide in Rwanda, the government issued broad new laws outlawing the use of ethnic categories, with a view to uniting all Rwandans under a single Rwandan identity. This self-erasure of ethnic identity is deployed primarily within the borders of the state, to enable reconciliation after the genocide in 1994. Outside the borders, the state deploys ethnic identity as one of the rationales for its cross-border wars (in the Democratic Republic of Congo).

The Concept Of Sovereign Equality Of States In International Law, Alex Ansong

Alex Ansong

A Case Ill Suited For Judgment: Constructing 'A Sovereign Access To The Sea' In The Atacama Desert, Christopher Rossi

christopher robert rossi

Abstract: In 2015, the International Court of Justice ruled that Bolivia’s claim against Chile could proceed to the merit stage, setting up this Article’s discussion of perhaps the most intractable border dispute in South American history – Bolivia’s attempt to reclaim from Chile a ‘sovereign access to the Pacific Ocean’. This Article investigates the international law and deeply commingled regional history pertaining to the Atacama Desert region, the hyperarid yet resource-rich region through which Bolivia seeks to secure its long-lost access to the sea. Investigating the factual circumstances (effectivités), the post-colonial international legal principle of uti possidetis …

Beyond Territoriality: The Case Of Transnational Human Rights Litigation, Peer Zumbansen

Peer Zumbansen

Cases for civil damages that have been brought before Western courts by victims of torture and persecution against states officials or corporations, challenge the principles of state sovereignty and jurisdictional competence. While national courts can in cases of serious crimes hear cases that grow out of acts committed in another country, the same is not true for cases for civil compensation. A persisting and rising number of private law cases that attempts to empower disenfranchised victims of crime and abuse, points to the necessity of reconsidering the prevailing procedural and substantial obstacles that govern the so-far unsuccessful civil law suits. …

Sovereignty And The Aboriginal Nations Of Rupert's Land, Kent Mcneil

Kent McNeil

Where the rights of the Aboriginal peoples of Canada are concerned, history and law are inseparable. Lawyers working on Aboriginal claims ignore history at their peril. But the converse is also true - historians whose work involves the Aboriginal peoples cannot afford to disregard law. Nowhere is this more apparent than in Rupert's Land, out of which the province of Manitoba was at least partially created. Solutions to lingering questions of sovereignty, territorial boundaries, jurisdiction, title to land, and so on, all must be sought in the middle ground where law and history overlap. In this article, we will venture …

Constitutional Principles In Substantive Criminal Law, Benjamin L. Berger

Benjamin L. Berger

Since Milsom’s famous dismissal of the “miserable history of crime in England,” criminal law has undergone a revolution in constitutional significance. The rise of rights constitutionalism as the heart of the modern liberal rule of law has given criminal law a new life in which it is subject to substantial justice-based innovation through appeal to the internal and basic norms of the legal system itself. Far from the marginal and exceptional status once ascribed to it by Milsom, this chapter argues that criminal law is now best understood and approached as a species of constitutional reflection. Substantive criminal law has …

The Changing Character Of Sovereignty In International Law And International Relations, Winston P. Nagan, Craig Hammer

Winston P Nagan

This Article makes observations on the concept of sovereignty; we suggest that the concept be studied using the contextual mapping method articulated by the New Haven School of jurisprudence. We observe tension in applying the concept to developing and developed states, and explore the possibility that sovereignty can be abused. We propose state typologies to explore the concept further and to scrutinize the accommodations of authority and control.

Globalized Citizenship: Sovereignty, Security And Soul, Berta E. Hernández-Truyol

Berta E. Hernández-Truyol

Human rights law has redefined the concepts of sovereignty and citizenship. Just as transnationalization has weakened the hegemony of the political elites (corporate economic elites and domestic ruling classes) by strengthening citizenship claims of all persons, so, too, a globalized citizenship grounded on a human rights model will strengthen personhood by denationalizing states' claims on individuals' rights. The human rights narrative has been imagined, crafted and delivered by Northern/Western powers--the hegemon--however, for the human rights model to be of utility to the globalized citizen project, it must be reconstituted with an antisubordination agenda. It must include the voices of the …

Succession By Estoppel: Hong Kong's Succession To The Iccpr, Peter K. Yu

Peter K. Yu

No abstract provided.

Globalization And Structure, Julian Ku, John Yoo

John C Yoo

No abstract provided.

The European Constitution And Its Implications For China, Xingzhong Yu

Xingzhong Yu

The European Constitution is significant not only for the European Union, but also for a developing constitutional system like that of China. The EU constitutional practice may have positive implications on China's constitutional theory and practice. In the wake of the European constitutional achievement, Chinese constitutional scholars need to re-examine their long-held conviction in the indispensable role of the state in constitutional formation and imagination. The EU experience may have provided China with valuable insights and ways to deal with its inherited ethnic problems and improve its institutions on regional autonomy for ethnic minorities. China's own constitutional experiment in Hong …

Political Community In Carl Schmitt's International Legal Thinking, Markus Gunneflo

Markus Gunneflo

Cultural Conflicts, Annelise Riles

Annelise Riles

Riles show how contemporary anthropological insights into the character of cultural difference and cultural fragmentation can reframe conflict-of-laws analysis in productive ways. Taking up the example of the treatment of Native American sovereignty in US courts, she argues that a theory of conflict of laws as a discipline devoted to addressing the problem of cultural conflict is more doctrinally illuminating than the mainstream view of conflict of laws as political conflict. Riles suggests that the general dissatisfaction with conflicts as a field in the United States, and its failure to live up to tits larger promise, may stem in part …

Pax Arabica?: Provisional Sovereignty And Intervention In The Arab Uprisings, Asli Bâli, Aziz Rana

Aziz Rana

No abstract provided.

Who Is The "Sovereign" In Sovereign Debt?: Reinterpreting A Rule-Of-Law Framework From The Early Twentieth Century, Odette Lienau

Odette Lienau

Combining legal interpretation with political science analysis, this Article highlights the competing "statist" and "popular" conceptions of sovereignty at stake in sovereign debt issues. It argues that these two dominant approaches do not exhaust the offerings of intellectual history and considers an alternative approach that emerged in the early twentieth century and may be of relevance again today. The Article contends that U.S. Chief Justice Taft's foundational 1923 "Tinoco" decision, which grounds the current approach to sovereign governmental recognition, has been misinterpreted to support a purely statist or absolutist conception of sovereignty. It argues that a proper interpretation presents an …

Sovereignty And Cooperation In Regional Pacific Tuna Fisheries Management: Politics, Economics, Conservation And The Vessel Day Scheme, Quentin A. Hanich, Hannah Parris, Ben M. Tsamenyi

Quentin Hanich

No abstract provided.

Fisheries Jurisdiction Under The Law Of The Sea Convention: Rights And Obligations In Maritime Zones Under The Sovereignty Of Coastal States, Martin Tsamenyi, Quentin Hanich

Quentin Hanich

International fisheries governance contains no specific provisions detailing States' rights and obligations in respect of fisheries in maritime zones classified as falling under the sovereignty of coastal States, namely: internal waters, archipelagic waters and territorial seas. Using a case-study of the Western and Central Pacific Fisheries Commission, this article demonstrates that there is still a gap in international fisheries governance relating to fisheries in 'waters under sovereignty' which requires remedying, and concludes by providing some possible management options to fill the gap.

The Catholic Church, Human Rights, And Democracy: Convergence And Conflict With The Modern State, Paolo G. Carozza, Daniel Philpott

Paolo G. Carozza

This book chapter traces the history of the Catholic Church's relationship to the modern state, focusing on the idea of sovereignty and the development of human rights and democracy. It argues that the Catholic Church's relationship to human rights and democracy in the modern world can only be understood as reflective of both a historical convergence and a persistent tension and ambivalence. The first part argues for this dual theme in the development of Catholic doctrine, where today, as over the past several centuries, the Church's conception of the common good yields both an embrace of human rights and democracy …