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Piracy And Due Process, Andrew Kent
Piracy And Due Process, Andrew Kent
Michigan Journal of International Law
This article explores in depth the law of nations, English domestic law, and English government practice from the late medieval period through the eighteenth century, and the U.S. constitutional law and government practice during the Founding and antebellum periods. I conclude that Chapman’s claims about due process and piracy suppression are incorrect. Both Parliament and the U.S. Congress; both the Crown and its counselors and U.S Presidents and their advisers; both the Royal Navy and the U.S. Navy; and commentators both English and American believed that (1) pirates on the high seas could lawfully be subject to extrajudicial killing, but …
Irrational War And Constitutional Design: A Reply To Professors Nzelibe And Yoo, Paul F. Diehl, Tom Ginsburg
Irrational War And Constitutional Design: A Reply To Professors Nzelibe And Yoo, Paul F. Diehl, Tom Ginsburg
Michigan Journal of International Law
This Reply proceeds as follows. Part I outlines the argument of the Nzelibe and Yoo paper. Part II considers their principal-agent analysis in the context of the American political system. Part III elaborates on the "democratic peace" literature, demonstrating that it does not support the conclusions that they draw. Part IV addresses the argument that we are in a new strategic situation, such that old rules ought not apply. Part V concludes.
Article 9 Of The Constitution Of Japan And The Use Of Procedural And Substantive Heuristics For Consensus, Mark A. Chinen
Article 9 Of The Constitution Of Japan And The Use Of Procedural And Substantive Heuristics For Consensus, Mark A. Chinen
Michigan Journal of International Law
This Article’s purpose is to examine the revision debates through the lens of recent scholarship on constitutional decisionmaking to see what lessons might be drawn about constitutionalism in Japan and elsewhere. In Part I, the author discusses Article 9's text and interpretation and focus on three controversies: first, Japan's ability to use force to defend itself and the related issue of the constitutionality of the Japan Self Defense Force (SDF); second, Japan's ability to engage in collective self-defense, which impacts the state's security relationship with the United States under the U.S.-Japan Mutual Security Agreement; and finally, Japan's ability to participate …
Worth Doing Well- The Improvable European Union Constitution, Stephen C. Sieberson
Worth Doing Well- The Improvable European Union Constitution, Stephen C. Sieberson
Michigan Journal of International Law
As background for this critique of the Constitution, Part II of this Article provides a brief overview of the existing EU Treaties, their shortcomings, and the political processes that culminated in the creation of the new Constitution. Of particular interest are certain goals articulated for the new document, such as the desire to replace the complex Treaties with a simpler, more approachable instrument. Part III is a summary of the Constitution's textual content, details that are necessary to illuminate the analysis that follows. Part IV offers a critical review of the awkward manner in which the Constitution is organized. In …
Customary International Law And Human Rights Treaties Are Law Of The United States, Jordan J. Paust
Customary International Law And Human Rights Treaties Are Law Of The United States, Jordan J. Paust
Michigan Journal of International Law
The Founders clearly expected that the customary law of nations was binding, was supreme law, created (among others) private rights and duties, and would be applicable in United States federal courts. For example, at the time of the formation of the Constitution John Jay had written: "Under the national government… the laws of nations, will always be expounded in one sense… [and there is] wisdom… in committing such questions to the jurisdiction and judgment of courts appointed by and responsible only to one national government...” In 1792, the supremacy of the customary law of nations within the United States was …
Law And Religion In Israel And Iran: How The Integration Of Secular And Spiritual Laws Affects Human Rights And The Potential For Violence, S. I. Strong
Michigan Journal of International Law
Part I of this article provides a brief sketch of the principles of the two majority religions at issue in this discussion and an overview of the history of both Israel and Iran. It explains why each nation has chosen to structure itself as it has and why the imposition of U.S.-style secularism would be an inappropriate method of dealing with the religio-legal conflict in the two societies. Part II compares the fundamental or constitutional laws of the two nations by analyzing the provisions, policies, and practices most influenced by religion. After identifying and analyzing the laws themselves in Part …
The Meaning Of "Advice And Consent": The Senate's Constitutional Role In Treatymaking, Howard R. Sklamberg
The Meaning Of "Advice And Consent": The Senate's Constitutional Role In Treatymaking, Howard R. Sklamberg
Michigan Journal of International Law
This article analyzes the role that the Constitution assigns to the Senate in treatymaking and the implications of this role on the relationship between the President and the Senate. Part I examines the meaning of "advice and consent" in the Treaty Clause. It discusses the origins of the phrase "advice and consent," the history of the drafting of the Treaty Clause, and the implications of the Framers' decision to include the Treaty Clause in Article II of the Constitution.
Publish And Perish: Congress's Effort To Snip Snepp (Before And Afsa), Michael J. Glennon
Publish And Perish: Congress's Effort To Snip Snepp (Before And Afsa), Michael J. Glennon
Michigan Journal of International Law
Over three million present and former federal employees, of the Executive as well as the Congress, are parties to so-called "pre-publication review agreements," which require that they submit any writings on topics related to their employment for Executive review prior to publication. In Section 630 of the Omnibus Continuing Resolution for Fiscal Year 1988, Congress attempted to restrict the use of funds to implement or enforce certain of those agreements. On May 27, 1988, however, the United States District Court for the District of Columbia, in American Foreign Service Association v. Garfinkel ("AFSA "), struck that section down, …
Models For A Gorbachev Constitution Of The U.S.S.R., John N. Hazard
Models For A Gorbachev Constitution Of The U.S.S.R., John N. Hazard
Michigan Journal of International Law
Western Sovietologists were startled when Secretary General Mikhail S. Gorbachev set his craftsmen to work in the Summer of 1988 to prepare a revised structure for the Union of Soviet Socialist Republics ("U.S.S.R."). While some hint of what was to come had been given by publications prior to the 19th Communist Party Conference, and while some of these appeared in the theses to be debated at the Conference, Westerners expected little more than a call from the tribune for change in attitudes. Basic State structures established by Leonid Brezhnev in his 1977 Constitution had not previously been questioned. Critics levelled …
Treaties In A Constitutional Democracy, Louis Henkin
Treaties In A Constitutional Democracy, Louis Henkin
Michigan Journal of International Law
This essay is an adaptation of one of the Cooley Lectures delivered at the University of Michigan Law School, Nov. 14-16, 1988, on the theme "Constitutionalism, Democracy and Foreign Affairs," due to be published by Columbia University Press in 1990.
Isolationism Or Deference? The Alien Tort Claims Act And The Separation Of Powers, Victor A. Pappalardo
Isolationism Or Deference? The Alien Tort Claims Act And The Separation Of Powers, Victor A. Pappalardo
Michigan Journal of International Law
This Note examines the rationales behind Filartiga and other cases which have had the opportunity to pass upon its holding, notably the holdings in Tel-Oren v. Libyan Arab Republic and Forti v. Suarez- Mason. It then focuses on the validity of these rationales with respect to the constitutional separation of powers scheme. In so doing, it analyzes Filartiga's conclusions in light of the act of state and political question doctrines, two closely interrelated doctrines which have been at the forefront of the separation of powers criticisms of Filartiga. This Note concludes by suggesting that a clear case exists …