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The Relevance Of Foreign Examples To Legal Development, John Bell
The Relevance Of Foreign Examples To Legal Development, John Bell
Duke Journal of Comparative & International Law
No abstract provided.
Norm Conflict In International Law: Whither Human Rights?, Marko Milanovic
Norm Conflict In International Law: Whither Human Rights?, Marko Milanovic
Duke Journal of Comparative & International Law
No abstract provided.
Citizenship, Public And Private, Karen Knop
Citizenship, Public And Private, Karen Knop
Law and Contemporary Problems
Knop develops private international law as the private side of citizenship. She shows that although individuals think of citizenship as public, private international law covers some of the same ground. Private international law also harks back to a historical conception of the legal citizen as someone who could sue and be sued, and someone who belonged to a community of shared or common law that was not necessarily a territorial community. She demonstrates that Anglo-Canadian private international law has particular value as private citizenship in a post-9/11 world because its treatment of enemy aliens, illegal immigrants, and members of religious …
Can Might Make Right? The Use Of Force To Impose Democracy And The Arthurian Dilemma In The Modern Era, Scott Thompson
Can Might Make Right? The Use Of Force To Impose Democracy And The Arthurian Dilemma In The Modern Era, Scott Thompson
Law and Contemporary Problems
US President George W. Bush used force to bring the Taliban to its knees and create a fledgling democracy in Afghanistan, then invaded Iraq with the end goal of establishing a democracy there, as well. Meanwhile, presidential hopeful Barack Obama praised those who built democracy's arsenal to vanquish fascism, and who then built a series of alliances and a world order that would ultimately defeat communism, seeming to extol and vindicate the previous US efforts to impose democracy by force. These two leaders' struggles to nail down a definitive answer on whether force should ever be used to impose democracy …
Naturalism In International Adjudication, J. Patrick Kelly
Naturalism In International Adjudication, J. Patrick Kelly
Duke Journal of Comparative & International Law
No abstract provided.
Delegation Success And Policy Failure: Collective Delegation And The Search For Iraqi Weapons Of Mass Destruction, Michael J. Tierney
Delegation Success And Policy Failure: Collective Delegation And The Search For Iraqi Weapons Of Mass Destruction, Michael J. Tierney
Law and Contemporary Problems
Tierney argues that international delegation can have important consequences, even for powerful states. In particular, he contends that the US delegation of inspection authority to United Nations weapons inspectors and to the International Atomic Energy Association after the Gulf War of 1990-91 entailed significant sovereignty costs by affecting the timing and costliness of the subsequent 2003 US invasion of Iraq. Among other things, he notes that the inspectors' independent behavior made it much more difficult for the US to assemble the type of multilateral coalition that would share the costs as it had in the earlier Gulf War. Tierney also …
International Delegation And State Sovereignty, Oona A. Hathaway
International Delegation And State Sovereignty, Oona A. Hathaway
Law and Contemporary Problems
Hathaway rebuts the claim that state sovereignty almost always suffers when states delegate authority to international institutions. Critics of delegation err, she contends, by overemphasizing the costs but losing sight of some of the substantial benefits of cooperation. She considers the challenge to sovereignty posed by international delegation by focusing on recent debates over the influence of international legal commitments on domestic governance.
Odious Debt, Old And New: The Legal Intellectual History Of An Idea, James V. Feinerman
Odious Debt, Old And New: The Legal Intellectual History Of An Idea, James V. Feinerman
Law and Contemporary Problems
In a sense, all debts are odious; that is, to use dictionary definitions, "hateful; disgusting; offensive." Yet insofar as international economic law today is concerned, only a certain few debts can be considered "odious debts" in order to contest and perhaps eventually to repudiate them. Here, Feinerman examines the concepts of odious debt and related international legal phenomena, in both historical and contemporary context, with a view of determining the role that denomination of certain debts as odious may play in the overall process of sovereign debt rescheduling.
Insolvency Principles And The Odious Debt Doctrine: The Missing Link In The Debate, A. Mechele Dickerson
Insolvency Principles And The Odious Debt Doctrine: The Missing Link In The Debate, A. Mechele Dickerson
Law and Contemporary Problems
Politicians as well as many members of the international human-rights community, view the odious debt doctrine as fundamentally unfair that the Iraqi people may be saddled with the debts Saddam Hussein's brutal regime incurred. Furthermore, some in the human-rights community generally argue that rich (creditor) countries have a moral duty or obligation to protect citizens of poor (debtor) countries and that richer nations should forgive the debts of poorer nations to help reduce existing inequalities between developed and developing countries. Here, Dickerson evaluates the doctrine of odious debts using the insolvency framework found in the United States Bankruptcy Code.
Odious, Not Debt, Anna Gelpern
Odious, Not Debt, Anna Gelpern
Law and Contemporary Problems
The US invasion of Iraq in 2003 revived public and academic debate about a wobbly old doctrine of international law: the Doctrine of Odious Debt. This doctrine allows governments to disavow debts incurred by their predecessors without the consent of or benefit for the people, provided creditors knew of the taint. It has roots in nineteenth century jostles over colonial possessions. However, for the past eighty years, Odious Debt's rhetorical appeal has vastly outstripped its "legal vitality." Here, Gelpern argues that the Doctrine of Odious Debt frames the problem of odious debt in a way that excludes a large number, …
Odious Debt, Odious Credit, Economic Development, And Democratization, Tom Ginsburg, Thomas S. Ulen
Odious Debt, Odious Credit, Economic Development, And Democratization, Tom Ginsburg, Thomas S. Ulen
Law and Contemporary Problems
When a country signs an international treaty, it is not the government but the state that is bound, and the obligation will stand until a subsequent government formally exits the treaty. Exit is presumed to be costly: a government that "repudiates" earlier treaty obligations will suffer reputational harm in its international relations. Moreover, this general background norm of international law applies as well to debt: a government can announce that it is renouncing debt, but it will suffer severe reputational harm in the debt marketplace, much as a government that repudiates public international law obligations suffers a reputational harm. Here, …
Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray
Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray
Law and Contemporary Problems
Several issues relating to odious debt and contemporary efforts to expand the odious debt doctrine to cover all debts of odious regimes are maddeningly complex, implicating difficult issues in areas ranging from the international law of state succession to the law of commercial paper--itself a source of biannual trauma for thousands of bar aspirants. However, the scope of the debate as it has been developed in the literature is too narrow and, therefore, the questions posed too simple. In particular, any analysis of odious debt must account for issues that inhere to transitions and transitional justice. Here, Gray make some …
The Institutionalist Implications Of An Odious Debt Doctrine, Paul B. Stephan
The Institutionalist Implications Of An Odious Debt Doctrine, Paul B. Stephan
Law and Contemporary Problems
Sovereigns incur debts, and creditors look to the law to hold sovereigns to their obligations. In legal terms, the question is whether to recognize and define an odious debt defense through a treaty or national legislative acts, on the one hand, or through the decisions of authoritative dispute-settlement bodies, whether international arbitral organs or domestic courts. Moreover, others may think that odious debt doctrine as a means can optimize the social welfare generated by sovereign-debt contracts. Here, Stephan examines the social welfare in the economic sense but attacks the problem from a different direction and concludes that no satisfactory mechanism …
Renegotiating The Odious Debt Doctrine, Tai-Heng Cheng
Renegotiating The Odious Debt Doctrine, Tai-Heng Cheng
Law and Contemporary Problems
Following the United States' invasion and subsequent occupation of Iraq,' the US government argued that the successor government in Iraq was not responsible for Iraq's Saddam-era debt under the purported doctrine of odious-regime debt. This purported doctrine apparently excused--by operation of law--all successor regimes from repaying debts that were incurred by oppressive predecessor regimes. Here, Cheng presents three-part response regarding the purported rule that oppressive debts of a predecessor government do not bind its successor.
Sovereigns, Trustees, Guardians: Private-Law Concepts And The Limits Of Legitimate State Power, Jedediah Purdy, Kimberly Fielding
Sovereigns, Trustees, Guardians: Private-Law Concepts And The Limits Of Legitimate State Power, Jedediah Purdy, Kimberly Fielding
Law and Contemporary Problems
One major tradition of understanding the powers and duties of sovereigns has particular relevance to arguments for revival and refurbishment of the odious debt doctrine. Here, Purdy and Fielding survey the critical role of private-law concepts in the development of this tradition. In this account, the state is a constructed and purposive legal actor, composed of a set of powers assigned by its subjects for the pursuit of certain human interests and bound by the obligation to secure and respect those interests. Moreover, they narrate that if there are inherent powers in a sovereign, they are only those that are …
Law, Ethics, And International Finance, Lee C. Buchheit
Law, Ethics, And International Finance, Lee C. Buchheit
Law and Contemporary Problems
Cross-border financial flows can have dramatic effects on the recipients of the money--for good or for ill. This is particularly true in countries whose economies and capital markets are underdeveloped. Moreover, ethical questions about who should receive cross-border financing, in what amounts, for what purposes, and on what conditions have long engaged the attention of international financial institutions such as World Bank, the International Monetary Fund, and the regional development banks. Here, Buchheit analyzes a difficult area where law and ethics have not yet found a happy coexistence--the problem of odious debts.
A Critique Of The Odious Debt Doctrine, Albert H. Choi, Eric A. Posner
A Critique Of The Odious Debt Doctrine, Albert H. Choi, Eric A. Posner
Law and Contemporary Problems
Choi and Posner indicate that it is unclear whether the doctrine will improve the welfare of the population that might be subject to a dictatorship in terms of the odious debt doctrine. The traditional backward-looking defense of the odious debt doctrine, which suggests that the doctrine is costless because it releases a suffering population from an unjust debt, is seriously incomplete. Although in specific cases the benefits of loan sanctions may exceed the costs, the defenders of the doctrine have not made the empirical case that the net benefits are sufficiently high in the aggregate as to warrant routine application …
Reflections On Transatlantic Approaches To International Law, John B. Bellinger Iii
Reflections On Transatlantic Approaches To International Law, John B. Bellinger Iii
Duke Journal of Comparative & International Law
No abstract provided.
The Rule Of (Administrative) Law In International Law, David Dyzenhaus
The Rule Of (Administrative) Law In International Law, David Dyzenhaus
Law and Contemporary Problems
No abstract provided.
European Administrative Proceedings, Sabino Cassese
European Administrative Proceedings, Sabino Cassese
Law and Contemporary Problems
Cassese discusses the third strategy of administrative integration, mixed or composite proceedings in which both Community and national authorities participate. Cassese analyzes how the common element takes root in the national part of the proceeding, what the national and supranational parts consist of, and the extent to which they remain distinct or appear instead as a single unit.
Administrative Proceedings Involving European Agencies, Edoardo Chiti
Administrative Proceedings Involving European Agencies, Edoardo Chiti
Law and Contemporary Problems
Chiti reconstructs the peculiar features of proceedings involving European agencies by analyzing the relevant positive law, administrative practice, and case law. This is to ascertain, in part, what is distinctive about these proceedings, as compared to the other procedural models that are progressively emerging in the Community legal order.
The Future And Past Of U.S. Foreign Relations Law, Martin S. Flaherty
The Future And Past Of U.S. Foreign Relations Law, Martin S. Flaherty
Law and Contemporary Problems
The increasing role that the US plays in the world can only mean a correspondingly greater role for foreign affairs law in the US legal community. The Supreme Court has recently cited international and comparative law materials to a striking, and all but unprecedented, degree.
Disaggregating U.S. Interests In International Law, Peter J. Spiro
Disaggregating U.S. Interests In International Law, Peter J. Spiro
Law and Contemporary Problems
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.
International Law, International Relations Theory, And Preemptive War: The Vitality Of Sovereign Equality Today, Thomas H. Lee
International Law, International Relations Theory, And Preemptive War: The Vitality Of Sovereign Equality Today, Thomas H. Lee
Law and Contemporary Problems
The norm of sovereign equality in international law is so resolutely canonical that its precise meaning, origins, and justifications are rarely examined. Whatever the general merits of the norm, its retention seems fairly open to question when one sovereign state appears supremely unequal among 191 states in terms of military power.
“Bad Cop” Diplomacy & Preemption: An Analysis Of International Law And Politics Governing Weapons Proliferation, Blake Klein
“Bad Cop” Diplomacy & Preemption: An Analysis Of International Law And Politics Governing Weapons Proliferation, Blake Klein
Duke Journal of Comparative & International Law
No abstract provided.
International Law And Weapons Of Mass Destruction: End Of The Arms Control Approach?, David P. Fidler
International Law And Weapons Of Mass Destruction: End Of The Arms Control Approach?, David P. Fidler
Duke Journal of Comparative & International Law
No abstract provided.
Dynamic Content: The Strategic Contingency Of International Law, Randall H. Cook
Dynamic Content: The Strategic Contingency Of International Law, Randall H. Cook
Duke Journal of Comparative & International Law
No abstract provided.
The Treaty Of Nice: Arming The Courts To Defend A European Bill Of Rights?, Liz Heffernan
The Treaty Of Nice: Arming The Courts To Defend A European Bill Of Rights?, Liz Heffernan
Law and Contemporary Problems
In Dec 2000, the European heads of government, meeting in Nice France, took several momentous steps in the constitutional development of the EU. Potentially, the Nice Summit will mark a major milepost on the road to a European bill of rights. Assuming the member states ultimately enact remedial measures, including judicial protection, the transition may prove no less influential than the adoption of the Bill of Rights in the US.
Situating Liberalism In Transnational Legal Space, Don Suh
Situating Liberalism In Transnational Legal Space, Don Suh
Duke Journal of Comparative & International Law
No abstract provided.
Miranda’S Final Frontier—The International Arena: A Critical Analysis Of United States V. Bin Laden, And A Proposal For A New Miranda Exception Abroad, Mark A. Godsey
Duke Law Journal
In recent years, the FBI and other federal law enforcement agencies have greatly expanded their presence abroad, investigating everything from narcotics trade and Internet fraud schemes to terrorism. Where this law enforcement activity includes custodial interrogation of non-American citizens abroad, must American law enforcement officials provide Miranda warnings to such suspects? In 2001 in United States v. Bin Laden, a federal district court held that the Fifth Amendment's privilege against self-incrimination applies to non-American citizens interrogated abroad, thus requiring Miranda warnings in this context. This Article criticizes the Bin Laden court's strict application of Miranda and suggests that Miranda should …