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Crucial Role Of The States And Private International Law Treaties: A Model For Accommodating Globalization, The, Julian G. Ku

Missouri Law Review

This brief essay highlights the central and important role that state governments play in the development and integration of private international law treaties into the United States legal system. States play this central role even though, as some of the papers in this symposium have concluded, there are few, if any, constitutional constraints on the ability of the federal government to sign, ratify, and implement treaties that would displace state law. The primacy of states in the integration of private international law, this essay argues, points the way to a model of accommodation of other kinds of treaties affecting traditional …

Federalism And Horizontality In International Human Rights , Margaret E. Mcguinness

Missouri Law Review

The advent of the international human rights system is one of the many changes to international law since the time Missouri v. Holland was decided. As other contributions to this symposium note, one of the challenging federalism questions raised by Holland in this new era is the effect of international human rights treaties and emerging customary international human rights law on U.S. states. And just as the creation of the international human rights regime has affected domestic analysis of federalism, the international human rights system has itself adjusted to the processes of federalism. The human rights regime is largely structured …

Foreign Affairs, International Law, And The New Federalism: Lessons From Coordination, Robert B. Ahdieh

Missouri Law Review

Even after the departure of two of its most prominent advocates - Chief Justice William Rehnquist and Justice Sandra Day O'Connor - the federalism revolution initiated by the Supreme Court almost twenty years ago continues its onward advance. If recent court decisions and congressional legislation are any indication, in fact, it may have reached a new beachhead in the realm of foreign affairs and international law. The emerging federalism in foreign affairs and international law is of a distinct form, however, with distinct implications for the relationship of sub-national, national, and international institutions and interests. This article draws on the …

Federalism And International Law Through The Lens Of Legal Pluralism, Paul Schiff Berman

Missouri Law Review

In this brief Essay, then, I wish to engage in a thought experiment by looking at both federalism and international law through a pluralist rather than a sovereigntist lens. First, I summarize the pluralist literature and some of its core insights and suggest that scholars interested in international law (and its relationship with domestic law) would do well to consider this literature. Second, I provide a few examples of jurisdictional redundancy operating in the transnational, international, and federalist realm and show how the existence of multiple fora can both empower voices that might otherwise be silenced and effect changes of …

Foreword, Margaret E. Mcguinness

Missouri Law Review

Columbia, Missouri is a fitting venue at which to continue the conversation about Missouri v. Holland and explore the intersection of law-making at the international, national and sub-national levels. This symposium revisits the debate over national and local control over foreign affairs and brings together the constitutional doctrinal discussion and accounts of the globalization of regulation that consider the complexity of influences operating within and between multiple systems of law. Both the factual background of Holland (primarily a case about environmental regulation) and the doctrinal context in which it arose (a Supreme Court poised to move toward constitutional endorsement of …

What Story Got Wrong - Federalism, Localist Opportunism And International Law, Paul B. Stephan

Missouri Law Review

I first explain the theoretical underpinning of the argument against the inevitability of localist opportunism. I then illustrate the general theory with three examples where the international obligations of the United States can be met without the strong federal supervision that Story deemed necessary and that latter-day nationalists embrace. I first discuss the body of law that was the subject of Swift v. Tyson, namely the rules governing negotiable instruments. Story thought that developing a federal common law was necessary to thwart idiosyncratic, and presumably opportunistic, state decisions. Yet both before and after the overthrow of Swift v. Tyson in …

Internationalism Of American Federalism: Missouri And Holland, The, Judith Resnik

Missouri Law Review

This Earl F. Nelson Lecture, given at the University of Missouri School of Law's Symposium, Return to Missouri v. Holland: Federalism and International Law, developed from and overlaps with a series of articles including Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs), 50 ARIZ. L. REV. 709 (2008) (with Joshua Civin and Joseph Frueh); Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: "The Political Safeguards'" ofAggregate Translocal Actions, 156 U. PA. L. REv. 1929 (2008); Law as Affiliation: "Foreign " Law, Democratic Federalism, and the …

Habeas Corpus, Constructive Custody And The Future Of Federal Jurisdiction After Munaf, Karen Shafrir

University of Miami International and Comparative Law Review

In 2004-05, two American Citizens, Shaqir Omar and Mohamed Munaf were separately arrested in Iraq and placed in the Camp Cropper Military Facility, pending adjudication. Both prisoners filed writs of habeas corpus in the United States District Court for the District of Columbia. The primary issue that the lower courts grappled with was whether or not the courts had jurisdiction to hear the petitions. After various appeals, the United States Supreme Court concluded that the federal courts did have jurisdiction to entertain the habeas petitions but that the petitions would fail on the merits. This paper argues that the standard …

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 …

Victims And Promise Of Remedies: International Law Fairytale Gone Bad, Sanja Djajic

San Diego International Law Journal

The aim of this Article is to examine such developments and the current availability of remedies for human rights violations in general. The Author will also examine the appropriateness of such remedies and opportunities to pursue them. The Article starts by identifying remedies in international law. This is followed by a case study and analysis of attempts by several national judiciaries to grapple with remedies prescribed by international law, against the background of international and national remedies. In the course of examining the reasons for an inadequate remedial structure, the Article will focus on several national cases. They will illustrate …

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 …

Human Trafficking: Addressing The International Criminal Industry In The Backyard, Sarah King

University of Miami International and Comparative Law Review

Human trafficking is a modern phenomenon with ancient roots; it is a degrading institution that generates billions of dollars annually; it is an international problem that sits in our own backyards. Because human trafficking raises, among many issues, questions of international law, human rights violations, global economic concerns and matters related to organized crime, a discussion on human trafficking could take many forms. This paper will attempt define human trafficking in a modern context; discuss the interplay between international, national, and state specific human trafficking laws; and provide analysis on where we need to go as part of an international …

Naturalism In International Adjudication, J. Patrick Kelly

Duke Journal of Comparative & International Law

No abstract provided.

Moving Beyond Markets And Minimalism: Democracy In The Era Of Globalization, Richard Burchill

Human Rights & Human Welfare

A review of:

Democracy as Human Rights: Freedom and Equality in the Age of Globalization by Michael Goodhart. London: Routledge, 2005.

The Un-Exceptionalism Of U.S. Exceptionalism, Sabrina Safrin

Vanderbilt Journal of Transnational Law

This Article challenges the prevailing view that the United States acts exceptionally by examining the insufficiently considered legal exceptionalism of other countries. It puts U.S. exceptionalism in perspective by identifying European exceptionalism as well as noting developing country exceptionalism, pointing to the exceptional rules sought by the European Union and by developing countries in numerous international agreements and institutions. It argues that most nations seek different international rules for themselves when they perceive themselves to have an exceptional need. Indeed, in cases of exceptional need, numerous countries believe themselves entitled to exceptional legal accommodation and may even perceive other countries' …

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 …

Emerging International Law Constraints On Constitutional Structure And Revision: A Preliminary Appraisal, Stephen J. Schnably

University of Miami Law Review

No abstract provided.

Religious Extremism And International Legal Norms: Perfidy, Preemption, And Irrationality, Louis Rene Beres

Case Western Reserve Journal of International Law

No abstract provided.

Looking Beyond The Dabhol Debacle: Examining Its Causes And Understanding Its Lessons, Preeti Kundra

Vanderbilt Journal of Transnational Law

This Note analyzes foreign direct investment in India, looking into the investment troubles surrounding the Dabhol power project, India's largest foreign investment project to date. After providing an introduction to the mechanics of project finance and a backdrop to the Dabhol power project, the Note considers whether the Indian government's actions, specifically the use of the Indian legal system, constituted "total expropriation" and violations of international law. Additionally, this Note considers what systemic changes India can make in order to create a more investment-friendly environment in the post-Dabhol context.

Bottom-Up Lawmaking: The Private Origins Of Transnational Law, Janet Koven Levit

Indiana Journal of Global Legal Studies

This article introduces one way in which the private sector makes law- bottom-up transnational lawmaking. While this article explores one example in depth- the Berne Union's regulation of export credit insurance- it concludes that bottom-up lawmaking peppers our legal landscape in a profound and largely unacknowledged way. More specifically, this article discusses how the private sector engages in international lawmaking and contemplates the normative implications of privatized transnational lawmaking.

Democracy and the Transnational Private Sector, Symposium. Indiana University School of Law – Bloomington, April 12-13, 2007.

International Myopia: Hamdan's Shortcut To "Victory", Michael W. Lewis

University of Richmond Law Review

No abstract provided.

"Federalizing" Immigration Law: International Law As A Limitation On Congress's Power To Legislate In The Field Of Immigration, Shayana Kadidal

Fordham Law Review

No abstract provided.

The Role Of International Bodies In Influencing U.S. Policy To End Violence Against Women, Lenora M. Lapidus

Fordham Law Review

No abstract provided.

Keynote Address, A Community Of Reason And Rights, Harold Hongju Koh, William Michael Treanor

Fordham Law Review

No abstract provided.

Medellin's Clear Statement Rule: A Solution For International Delegations, Julian G. Ku

Fordham Law Review

No abstract provided.

Does Medellin Matter?, Janet Koven Levit

Fordham Law Review

No abstract provided.

Lower Courts And Constitutional Comparativism, Roger P. Alford

Fordham Law Review

No abstract provided.

Humanity Law: A New Interpretive Lens On The International Sphere, Ruti Teitel

Fordham Law Review

No abstract provided.

Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible?, Michael P. Scharf

Washington and Lee Law Review

This Article examines whether there should be exceptions to the international exclusionary rule for evidence obtained by torture, and if so, how those exceptions should be crafted to avoid abuse. Rather than explore the question in the hotly debated milieu of terrorist prosecutions, this Article analyzes and critiques three possible exceptions to the torture evidence exclusionary rule in the context of whether the newly established U.N. Cambodia Genocide Tribunal should admit evidence of the Khmer Rouge command structure that came from interrogation sessions at the infamous Tuol Sleng torture facility: (1) that the exclusionary rule should not apply to evidence …

International Law's Mixed Heritage: A Common/Civil Law Jurisdiction, Colin B. Picker

Vanderbilt Journal of Transnational Law

This Article provides the first application of the emerging mixed jurisdiction jurisprudence to a comparative analysis of international law. Such a comparative law analysis is important today as the growth and increasing vitality of international juridical, administrative and legislative institutions is placing demands on international law not previously experienced. International law is unsure where to look for help in coping with these new stresses. In significant part this isolation can be attributed to a general view among international law scholars that international law is sui generis, and hence there is little to be gained from national legal systems. This Article …