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Full-Text Articles in Law
Regulatory Takings In Institutional Context: Beyond The Fear Of Fragmented International Law, Steven R. Ratner
Regulatory Takings In Institutional Context: Beyond The Fear Of Fragmented International Law, Steven R. Ratner
Articles
Claims of regulatory expropriation have been raised in diverse venues adjudicating international investment disputes Although a basic consensus position has emerged on a state's power to affect private property rights without compensation to investors, the legality of such actions will and should depend on the specific regime and institutional context in which they are appraised. A uniform doctrinal answer is thus impossible and undesirable, and many worries about fragmentation of international law are misplaced.
Rethinking Subsidiarity In International Human Rights Adjudication, William M. Carter Jr.
Rethinking Subsidiarity In International Human Rights Adjudication, William M. Carter Jr.
Articles
This article suggests that a re-evaluation of the principle of subsidiarity is in order. While I make no sweeping claims that the principle of subsidiarity is always preferable or always undesirable, I do suggest that a close look at the myriad ways in which subsidiarity applies reveals that it may sometimes impede, rather than advance, the cause it purports to serve: namely, achieving universality of human rights. This article identifies situations where subsidiarity is more likely to diminish human rights protections that it is to advance them and suggests that subsidiarity should be abandoned or minimized in such areas.
Judicial Review And United States Supreme Court Citations To Foreign And International Law, Ronald A. Brand
Judicial Review And United States Supreme Court Citations To Foreign And International Law, Ronald A. Brand
Articles
Recent decisions by the United States Supreme Court and extracurricular discussions between some of the Justices have fueled a debate regarding whether and when it is appropriate for the Court to make reference to foreign law in cases involving the interpretation and application of the United States Constitution. This debate has, to some extent, paralleled the argument over whether the Constitution is best interpreted by looking at the intent of the original drafters - an originalist approach - or by considering it to be a "living" document that must be interpreted to take account of contemporary realities. This article considers …
The Oas And Constitutionalism: Lessons From Recent West African Experience, Stephen J. Schnably
The Oas And Constitutionalism: Lessons From Recent West African Experience, Stephen J. Schnably
Articles
No abstract provided.
Emote Control: The Substitution Of Symbol For Substance In Foreign Policy And International Law, Jules Lobel, George Loewenstein
Emote Control: The Substitution Of Symbol For Substance In Foreign Policy And International Law, Jules Lobel, George Loewenstein
Articles
Historical perspectives, as well as recent work in psychology, converge on the conclusion that human behavior is the product of two or more qualitatively different neural processes that operate according to different principles and often clash with one another. We describe a specific 'dual process' perspective that distinguishes between deliberative and emote control of behavior. We use this framework to shed light on a wide range of legal issues involving foreign policy, terrorism, and international law that are difficult to make sense of in terms of the traditional rational choice perspective. We argue that in these areas, the powerful influence …
Minority Rights, Minority Wrongs, Elena Baylis
Minority Rights, Minority Wrongs, Elena Baylis
Articles
Many of the new democracies established in the last twenty years are severely ethnically divided, with numerous minority groups, languages, and religions. As part of the process of democratization, there has also been an explosion of “national human rights institutions,” that is, independent government agencies whose purpose is to promote enforcement of human rights. But despite the significance of minority concerns to the stability and success of these new democracies, and despite the relevance of minority rights to the mandates of national human rights institutions, a surprisingly limited number of national human rights institutions have directed programs and resources to …
Agora: The United States Constitution And International Law Editors' Introduction, Lori Fisler Damrosh, Bernard H. Oxman
Agora: The United States Constitution And International Law Editors' Introduction, Lori Fisler Damrosh, Bernard H. Oxman
Articles
No abstract provided.
Preventive Detention: Prisoners, Suspected Terrorists And Permanent Emergency, Jules Lobel
Preventive Detention: Prisoners, Suspected Terrorists And Permanent Emergency, Jules Lobel
Articles
Central to the United States government’s strategy after the September 11th attacks has been a shift from punishing unlawful conduct to pre-empting possible or potential dangers. This strategy threatens to undermine fundamental principles of both constitutional law and international law which prohibit certain government action based on mere suspicion or perceived threat. The law normally requires that the government wait until a person or nation has committed or is attempting to commit a criminal act before it may employ force in response. The dangers of a policy of preventive detention have been analyzed from a number of perspectives. Historians have …
Sovereignty: The State, The Individual, And The International Legal System In The Twenty First Century, Ronald A. Brand
Sovereignty: The State, The Individual, And The International Legal System In The Twenty First Century, Ronald A. Brand
Articles
This essay proposes that an understanding of original concepts of sovereignty both helps explain twentieth century developments in international law and provides a proper context for coming changes in the ways in which persons relate to states, states relate to states within the international legal system, and ultimately and most importantly-the way international law affects and applies to persons. The most important developments in international law in the new century are likely not to be in state-state relationships but rather in the status and rights of the person in international law. The twentieth century process of globalization brought us back …
The Mote In Thy Brother’S Eye: A Review Of Human Rights As Politics And Idolatry, William M. Carter Jr.
The Mote In Thy Brother’S Eye: A Review Of Human Rights As Politics And Idolatry, William M. Carter Jr.
Articles
Michael Ignatieffs provocatively titled collection of essays, Human Rights As Politics and Idolatry [hereinafter Human Rights], is a careful examination of the theoretical underpinnings and contradictions in the area of human rights. At bottom, both of his primary essays, Human Rights As Politics and Human Rights As Idolatry, make a claim that is perhaps contrary to the instincts of human rights thinkers and activists: namely, that international human rights can best be philosophically justified and effectively applied to the extent that they strive for minimal ism. Human rights activists generally argue for the opposite conclusion: that international human rights be …
The Law Of Peoples. By John Rawls. Cambridge, London: Harvard University Press, 1999. (Book Review), Patrick O. Gudridge
The Law Of Peoples. By John Rawls. Cambridge, London: Harvard University Press, 1999. (Book Review), Patrick O. Gudridge
Articles
No abstract provided.
Complementary Agreements And Compulsory Jurisdiction, Bernard H. Oxman
Complementary Agreements And Compulsory Jurisdiction, Bernard H. Oxman
Articles
No abstract provided.
Uni-State Lawyers And Multinational Practice: Dealing With International, Transnational, And Foreign Law, Ronald A. Brand
Uni-State Lawyers And Multinational Practice: Dealing With International, Transnational, And Foreign Law, Ronald A. Brand
Articles
This article addresses how a lawyer may ethically engage in a transnational practice given the current structure of state-by-state bar admission. Part II examines the ethical pitfalls of a transnational practice, including an examination of applicable APA Model Rules of Professional Conduct. This section also addresses different tests for determining whether a lawyer has committed the unauthorized practice of law. Part III makes use of examples to illustrate the legal framework for determining whether a lawyer has committed the unauthorized practice of law. In Part IV, the author concludes by making suggestions for how to better address the ethical dilemma …
Benign Hegemony? Kosovo And Article 2(4) Of The U.N. Charter, Jules Lobel
Benign Hegemony? Kosovo And Article 2(4) Of The U.N. Charter, Jules Lobel
Articles
The 1999 U.S.-led, NATO-assisted air strike against Yugoslavia has been extolled by some as leading to the creation of a new rule of international law permitting nations to undertake forceful humanitarian intervention where the Security Council cannot act. This view posits the United States as a benevolent hegemon militarily intervening in certain circumstances in defense of such universal values as the protection of human rights. This article challenges that view. NATO's Kosovo intervention does not represent a benign hegemony introducing a new rule of international law. Rather, the United States, freed from Cold War competition with a rival superpower, is …
Alejandre V. Republic Of Cuba [Cuban Liability For Shooting Down Civil Aircraft], Stephen J. Schnably
Alejandre V. Republic Of Cuba [Cuban Liability For Shooting Down Civil Aircraft], Stephen J. Schnably
Articles
No abstract provided.
Observations On The Interpretation And Application Of Article 43 Of Unclos With Particular Reference To The Straits Of Malacca And Singapore, Bernard H. Oxman
Observations On The Interpretation And Application Of Article 43 Of Unclos With Particular Reference To The Straits Of Malacca And Singapore, Bernard H. Oxman
Articles
No abstract provided.
External Sovereignty And International Law, Ronald A. Brand
External Sovereignty And International Law, Ronald A. Brand
Articles
This essay addresses the need to redefine current notions of sovereignty. It returns to earlier concepts of subjects joining to receive the benefits of peace and security provided by the sovereign. It diverges from most contemporary commentary by avoiding what has become traditional second-tier social contract analysis. In place of a social contract of states, this redefinition of sovereignty recognizes that international law in the twentieth century has developed direct links between the individual and international law. The trend toward democracy as an international law norm further supports discarding notions of a two-tiered social contract relationship between the individual and …
On Terrorism: Reflections On Violence And The Outlaw, Ileana Porras
On Terrorism: Reflections On Violence And The Outlaw, Ileana Porras
Articles
No abstract provided.
Exchange Loss Damages And The Uniform Foreign-Money Claims Act: The Emperor Hasn't All His Clothes, Ronald A. Brand
Exchange Loss Damages And The Uniform Foreign-Money Claims Act: The Emperor Hasn't All His Clothes, Ronald A. Brand
Articles
In 1989, the National Conference of Commissioners on Uniform State Laws approved a new Uniform Foreign-Money Claims Act. This Act is designed to change and clarify the law regarding judgments on obligations denominated in a foreign currency. It does so by recognizing that old rules preventing judgment in a foreign currency - developed in times of a strong dollar - are inappropriate. Unfortunately, in seeking fairness for plaintiffs when the U.S. dollar is weak, the Act replaces rigid old rules with stiff new rules that fail to address the basic issue of appropriate damages for exchange rate losses. While the …