Law Commons^™

International Law And The Domestic Separation Of Powers, Jean Galbraith

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No abstract provided.

Getting To Rights: Treaty Ratification, Constitutional Convergence, And Human Rights Practice, Zachary Elkins, Tom Ginsburg, Beth A. Simmons

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This Article examines the adoption of rights in national constitutions in the post-World War II period in light of claims of global convergence. Using a comprehensive database on the contents of the world’s constitutions, we observe a qualified convergence on the content of rights. Nearly every single right has increased in prevalence since its introduction, but very few are close to universal. We show that international rights documents, starting with the Universal Declaration of Human Rights, have shaped the rights menu of national constitutions in powerful ways. These covenants appear to coordinate the behavior of domestic drafters, whether or not …

Whose Regulatory Interests? Outsourcing The Treaty Function, Stephen B. Burbank

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In this article I describe the status quo in the area of foreign judgment recognition, with attention to the tension between domestic interests and international cooperation. Precisely because the future of the status quo is in doubt, I then consider current proposals for change, particularly the effort to implement the Hague Choice of Court Convention in the United States. Prominent among the normative questions raised by my account is whose interests, in addition to the litigants’ interests, are at stake – those of the United States, those of the several states, or those of interest groups waving a federal or …

Comparing The Approaches Of The Presidential Candidates, Pierre-Richard Prosper, William W. Burke-White

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This is a panel discussion between Pierre Prosper, attorney at Arent Fox LLP and William Burke White, Deputy Dean at the University of Pennsylvania School of Law, comparing the approaches and priorities of U.S. presidential candidates Barack Obama and Mitt Romney regarding foreign policy.

Price-Fixing: Hefty Penalties On Big-Biz Cartels Will Provide Level Playing Field To Small Businesses, John M. Connor, Robert H. Lande

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Cartels are illegal in India, as they are almost everywhere. They are subject to heavy fines. Why, then, do businesses frequently try to fix prices? Because doing so usually is profitable. On average cartels raise prices by more than 20%, and probably face less than a 25% chance of being caught and convicted. Based upon a sample of 75 international cartels, the authors calculate that the expected profits from price fixing almost always exceed the penalties. No wonder businesses often try to fix prices.

Consumer Choice As The Best Way To Describe The Goals Of Competition Law, Robert H. Lande

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This article is both a short introduction to the Consumer Choice explanation for Competition Law or Antitrust Law, and also a short advocacy piece suggesting that Consumer Choice is the best way to articulate the goals of European Competition Law and United States Antitrust Law.

This article briefly:

1. defines the consumer choice approach to antitrust or competition law and shows how it differs from other approaches;
2. shows that the antitrust statutes and theories of violation embody a concern for optimal levels of consumer choice;
3. shows that the United States antitrust case law embodies a concern for optimal levels of consumer …

Law – Made In Germany: Global Standort Or Global Standard?, James Maxeiner

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Earlier this year the Federal Ministry of Justice released the second edition of the brochure, Law - Made in Germany. For those readers who do not know the brochure, it is the product of an umbrella group of German professional organizations known as the Bündnis für das deutsche Recht. A purpose of the Bündnis, as stated at its founding in 2008, and of the brochure, is to improve the position of German law in the ― "international competition of legal systems" (internationalen Wettbewerb der Rechtsordnungen). Catalyst for founding of the Bündnis and for publication of Law - Made in Germany …

Women's Legal History Symposium Introduction: Making History, Felice J. Batlan

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This essay introduces the Chicago-Kent Symposium on Women's Legal History: A Global Perspective. It seeks to situate the field of women's legal history and to explore what it means to begin writing a transnational women's history which transcends and at times disrupts the nation state. In doing so, it sets forth some of the fundamental premises of women's legal history and points to new ways of writing such histories.

Promises And Perils Of New Global Governance: A Case Of The G20 (With C. Kelly), Sungjoon Cho, Claire R. Kelly

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In the wake of the 2008 financial crisis, a new global governance structure emerged. During and subsequent to the crisis, the G20 arose as a coordinating executive among international governance institutions. It set policy agendas, prioritized initiatives and, working through the Financial Stability Board, drew other governance institutions and networks such as the International Monetary Fund, the Basel Committee on Banking Supervision, the Organization of Economic Cooperation and Development, the World Trade Organization, the International Association of Insurance Supervisors and the International Organization of Securities Commissions to set standards, monitor enforcement and compliance, and aid recovery. Its authority cross-cuts regimes …

The Internet At 20: Evolution Of A Constitution For Cyberspace, Henry H. Perritt Jr.

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This Article looks back over the Internet’s first twenty years, highlighting the crucial legal decisions by the executive, legislative, and judicial branches that have led to the Internet’s success, and which now frame its constitution. I participated in many of these decisions and wrote more than a dozen law review articles and reports suggesting directions for public policy and law. This Article uses this foundation to consider the future, focusing on major legal controversies, the resolution of which will define the Internet’s third decade—either strengthening or undermining its constitution.

Vertical Dimensions In The Quality Of Law, Bartram Brown

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No abstract provided.

Thinking Like A Lawyer Abroad: Putting Justice Into Legal Reasoning, James Maxeiner

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Americans are taking new interest in legal reasoning. Thinking Like a Lawyer: A New Introduction to Legal Reasoning by Professor Frederick Schauer suggests why. According to Schauer, American legal methods often require decision-makers “to do something other than the right thing.” There has got to be a better way.

Now comes a book that offers Americans opportunities to look into a world where legal methods help decision-makers do the right thing. According to Reinhard Zippelius in his newly published Introduction to German Legal Methods, German legal methods help decision makers resolve legal problems “in a just and equitable manner.”

This …

Could This Train Make It Through: The Law And Strategy Of The Gold Train Case, Charles Tiefer, Jonathan W. Cuneo, Annie Reiner

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In 1944-45, the Nazis seized personal belongings of the Hungarian Jewish population and dispatched some of the most valuable of them on a train. The United States Army took control of this "Gold Train" and gave reassurances that it would keep the valuables safe. However, the items were plundered by individual soldiers, including officers, and diverted to various uses. After decades of dormancy, a Presidential Commission exposed the facts, but the government still did not right the wrong — until there was litigation.

The "Gold Train" case (Rosner v. United States) represents a measure of justice for the victimized community …

The Hierarchy That Wasn’T There: Elevating “Usage” To Its Rightful Position For Contracts Governed By The Cisg, William P. Johnson

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Under domestic U.S. sales law, usage of trade is relevant in ascertaining the meaning of an agreement, and it can be used to supplement, qualify, or explain an agreement. However, usage of trade may not be used under domestic U.S. sales law to contradict a written agreement. Moreover, any course of performance or course of dealing between the parties will prevail over inconsistent usage of trade. The United Nations Convention on Contracts for the International Sale of Goods, or CISG, similarly provides for consideration of usage to establish the terms of the agreement between the parties, as well as to …

Shifting Public Health Priorities And The Global Effort To Prevent A Bird Flu Pandemic, Robert Gatter

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Global strategy to control highly pathogenic avian influenza (HPAI) has changed dramatically since 2003 when it was first reported that a confirmed bird flu jumped the species barrier to infect a human in Hong Kong. Evidence of this shift in priorities in the global fight against HPAI can be found most clearly in program funding trends. In late 2008 and into 2009, financial commitments from international donors for all HPAI programs dropped significantly. Meanwhile, within HPAI programs, funding shifted substantially away from animal biosecurity projects and into human response and preparedness work. This Article examines three reasons for this shift …

What Useful Role (If Any) Could Legal Positivism Play In The Study Or Advancement Of International Law?, Mortimer N.S. Sellers

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What useful role (if any) could legal positivism play in the study or advancement of international law? For most of those who remember this once fashionable term at all, "international legal positivism" is redolent of the early years of the twentieth century-of Lassa Oppenheim' at best, and at worst of his model, John Austin, who famously denied that international law is or ever could be genuine law at all, "properly so called." 2 "Positive" law in its central and most usual sense is law "set by a sovereign individual or a sovereign body ... to a person or persons in …

Sex On The Bench: Do Women Judges Matter To The Legitimacy Of International Courts?, Nienke Grossman

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This article seeks to advance our understanding of international courts' legitimacy and its relationship to who sits on the bench. It asks whether we should care that few women sit on international court benches. After providing statistics on women's participation on eleven of the world's most important courts and tribunals, the article argues that under-representation of one sex affects normative legitimacy because it endangers impartiality and introduces bias when men and women approach judging differently. Even if men and women do not think differently, a sex un-representative bench harms sociological legitimacy for constituencies who believe they do nonetheless. For groups …

Prospective Advice And Consent, Jean Galbraith

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No abstract provided.

International Civil Litigation In U.S. Courts: Becoming A Paper Tiger?, Stephen B. Burbank

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No abstract provided.

A Tea Party At The Hague?, Stephen B. Burbank

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In this article, I consider the prospects for and impediments to judicial cooperation with the United States. I do so by describing a personal journey that began more than twenty years ago when I first taught and wrote about international civil litigation. An important part of my journey has involved studying the role that the United States has played, and can usefully play, in fostering judicial cooperation, including through judgment recognition and enforcement. The journey continues but, today, finds me a weary traveler, more worried than ever about the politics and practice of international procedural lawmaking in the United States. …

Making Fiction Of Facts In The Israeli Spy Case, Kenneth Lasson, Angelo Codevilla, Lawrence J. Korb, John Loftus

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The authors make the case that Jonathan Pollard, the man convicted of spying for Israel, is again being condemned by new allegations by Martin Peretz in a New Republic article, and by retired Navy Capt. M. E. Bowman. The authors of these new assertions may not know more of the particulars than others in high places who have already publicly supported commuting Pollard's sentence to time served.

No More 'Sha Still', Kenneth Lasson

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This op-ed laments the consequences of staying quiet in light of recent national and international events. It takes President Obama to task for blaming Israel for lack of progress in Middle East peace negotiations, as well as Congress for its ineptitude during the recent national debt ceiling negotiations.

Failure Of The Current Anti-Corruption Strategy In Afghanistan, Hugh Barrett Mcclean

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Corruption has come to the forefront in Afghanistan as the United States tries to balance efforts to back anti-corruption strategies while maintaining a positive relationship with the Karzai government. Stalled corruption cases suggest corruption in Afghanistan is systemic and not limited to a particular governing body or official. It is clear that corruption exists in both the upper and lower echelons of Afghan society, and will continue to exist until the U.S.-backed anti-corruption teams are accepted by the Afghan government. The strengthening of key institutions continues to be the recommended international model. As demonstrated in the United States, the integration …

Let My People Go!, Kenneth Lasson

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This short article discusses the continued imprisonment of Jonathan Pollard for spying for Israel, as well as that of Israeli soldier Gilad Shalit, imprisoned by Hamas. Also discussed are the inequalities of the negotiations for their release, leaving Israel and the U.S. in a bad light.

Are Institutions And Empiricism Enough? A Review Of Allen Buchanan, Human Rights, Legitimacy, And The Use Of Force, Matthew J. Lister

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Legal philosophers have given relatively little attention to international law in comparison to other topics, and philosophers working on international or global justice have not taken international law as a primary focus, either. Allen Buchanan’s recent work is arguably the most important exception to these trends. For over a decade he has devoted significant time and philosophical skill to questions central to international law, and has tied these concerns to related issues of global justice more generally. In what follows I review Buchanan’s new collection of essays, Human Rights, Legitimacy, and the Use of Force, paying special attention to …

Civilizing American Civil Justice: International Insights, James Maxeiner, Gyooho Lee, Armin Weber

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In 1776, when Americans declared independence from Britain, they also declared their rights. Their declarations of rights count “open courts” as among the best means for constitutional development. Open courts should secure to every man, without regard to wealth, a just remedy for every wrong suffered, according to the law of the land, by fair and speedy procedure.

Since 1776 Americans have invested heavily in creating open courts. They have been disappointed by returns that fall “far short of perfection” (Maurice Rosenberg). They have found reform to be an “unending effort to perfect the imperfect” (Jay Tidmarsh).

That Americans have …

Can Congress Make A President Step Up A War?, Charles Tiefer

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May Congress use its appropriation power to direct the President to step up a war? When Congress uses its spending power for intensifying a war-stepping it up, pressing it more aggressively-against the resistance of a "less hawkish" Commander in Chief, who wins?

This Article posits differences of view in the 2010s toward the Afghanistan war as a way to revisit, generally, the history of constitutional disputes over war-related appropriation riders. Describing the differences in very simplistic terms, a "hawkish" opposition in Congress may gain political strength at any time, such as in 2010 or 2014, not necessarily because of the …

International Criminal Law: Nature, Origins And A Few Key Issues, Bartram Brown

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The purpose of international criminal law is to establish the criminal responsibility of individuals for international crimes. Public international law is traditionally focused on the rights and obligations of states, and thus is not particularly well suited to this task. It has adapted through a long and slow historical process, drawing upon multiple sources. Many of the chapters in this Handbook explore to some extent the historical development of international criminal law. I will not attempt to summarize that history in detail, but a few historical observations here will help to explain how international criminal law emerged from its sources …

"Consumer Choice" Is Where We Are All Going - So Let's Go Together, Neil W. Averitt, Robert H. Lande, Paul Nihoul

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Globalisation of business makes it important for firms to predict how their behaviour is likely to be treated in the roughly 200 nations that have competition laws. In that context, a crucial question is: are we in a position to develop a common intellectual framework that would give coherence to policy statements made on specific competition related issues and, at the same time, be acceptable, broadly, in a variety of legal systems, not necessarily based on identical assumptions? We believe that the answer is “yes.” A concept is emerging as a possible source of unification for competition policies around the …

The Legitimating Role Of Consent In International Law, Matthew J. Lister

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According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in international law is a contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but …