Law Commons^™

Sovereign Wealth Funds And Global Finance, Katharina Pistor

Faculty Scholarship

This chapter focuses on a number of specific sovereign wealth funds (SWFs) whose portfolios indicate strong interests in finance both in their home countries and abroad. It first reviews empirical evidence that shows SWFs having been major investors in Western financial intermediaries for decades. It then considers the organization and governance of SWFs, with particular emphasis on the three main schools of thought as well as the predictions one can derive from them vis-à-vis the behavior of individual actors in the global financial network: economic theories, economic sociology, and political economy. It also presents case studies that “test” these theories …

Re-Construction Of Private Indicators For Public Purposes, Katharina Pistor

Faculty Scholarship

This chapter studies the history of the first generation of indicators of governmental institutional quality. These (international) indicators include labels such as ‘bureaucratic efficiency’ and ‘rule of law.’ This discussion also addresses the argument that it is the reversal, and not the creation, of indicators designed to justify large-scale development policies by leading multilateral agencies that is problematic. This chapter emphasizes the importance of using alternative data sets and making raw data easily available, in order to challenge the present assumptions instead of merely aiming to validate them and the policy choices with which they are associated with.

'Domesticating' The New York Convention: The Impact Of The Federal Arbitration Act, George A. Bermann

Faculty Scholarship

Much as one may try to universalize and even ‘de-nationalize’ international commercial arbitration – whether through Conventions, uniform or model laws or soft law – the phenomenon remains profoundly affected by national law and policy. That is indeed very much one of the leitmotifs of this book.

The incongruities – big and small – between domestic and international arbitration regimes typically present themselves on a purely ad hoc basis; that is to say, in specific and often isolated contexts, as when a particular case in a national court produces a result that looks anomalous from the point of view of …

Navigating Eu Law And The Law Of International Arbitration, George A. Bermann

Faculty Scholarship

The European Union and international arbitration are two robust legal regimes that have managed to develop largely in accordance with their own respective “first principles,” and they have accordingly thrived. This article initially explains why that has been the case.

But the era of parallelism between the regimes has ended, and rather suddenly. This article identifies the two principal fronts on which tensions between EU law and international arbitration law have emerged. Interestingly, both commercial and investment arbitration are implicated.

A first front entails a conflict between the European Court of Justice's (ECJ's) expansive notions of EU public policy and …

A Functional Approach To Targeting And Detention, Monica Hakimi

Faculty Scholarship

The international law governing when states may target to kill or preventively detain nonstate actors is in disarray. This Article puts much of the blame on the method that international law uses to answer that question. The method establishes different standards in four regulatory domains: (1) law enforcement, (2) emergency, (3) armed conflict for civilians, and (4) armed conflict for combatants. Because the legal standards vary, so too may substantive outcomes; decisionmakers must select the correct domain before determining whether targeting or detention is lawful. This Article argues that the "domain method" is practically unworkable and theoretically dubious. Practically, the …

Efficient Enforcement In International Law, Anu Bradford, Omri Ben-Shahar

Faculty Scholarship

Enforcement is a fundamental challenge for international law. Sanctions are costly to impose, difficult to coordinate, and often ineffective at accomplishing their goals. Rewards are likewise costly and domestically unpopular. Thus, efforts to address pressing international problems-such as reversing climate change and coordinating monetary policy-often fall short. This Article offers a novel approach to international enforcement and demonstrates the advantages of such an approach over traditional sanctions or rewards. It develops a mechanism of Reversible Rewards, which combines sticks and carrots in a unique, previously unexplored way. Reversible Rewards require that a sum of money be offered as a reward …

Aedpa Mea Culpa, Larry Yackle

Faculty Scholarship

In this essay, the author contends that the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA] has frustrated both the enforcement of federal rights and legitimate state interests. He lays most of the blame on the Supreme Court's methodology for construing AEDPA's provisions. The Court insists that poorly conceived and drafted provisions must be taken literally, whatever the consequences, and that every provision must be read to change habeas corpus law in some way. This approach has produced unfair, wasteful, and even bizarre results that might have been avoided if the Court had assessed AEDPA more realistically.

Corporate Liability Under Customary International Law, William S. Dodge

Faculty Scholarship

No abstract provided.

Optimizing Liability For Extraterritorial Torts: A Response To Professor Sykes, Chimène Keitner

Faculty Scholarship

No abstract provided.

Measuring, Monitoring, Reporting, And Verifying (Mmrv): Negotiating Trust In Transnational Contracts For Redd,, David Takacs

Faculty Scholarship

No abstract provided.

Constitutional Transformation In The Ecthr: Strasbourg’S Expansive Recourse To External Rules Of International Law, Julian Arato

Faculty Scholarship

No abstract provided.

Making A Voluntary Greek Debt Exchange Work, Mitu Gulati, Jeromin Zettelmeyer

Faculty Scholarship

Within the next couple of months, the Greek government, is supposed to persuade private creditors holding about EUR 200bn in its bonds to voluntarily exchange their existing bonds for new bonds that pay roughly 50 percent less. This may work with large creditors whose failure to participate in a debt exchange could trigger a Greek default, but may not persuade smaller creditors, who will be told that their claims will continue to be fully serviced if they do not participate in the exchange. This paper proposes an approach to dealing with this free rider problem that exploits the fact that …

Flexibility In International Agreements, Laurence R. Helfer

Faculty Scholarship

This chapter is a contribution to the forthcoming edited volume INTERNATIONAL LAW AND INTERNATIONAL RELATIONS: TAKING STOCK (Jeffrey Dunoff & Mark A. Pollack eds., Cambridge University Press 2012). The chapter provides an overview of flexibility mechanisms in international agreements and the role of such mechanisms in promoting or inhibiting international cooperation. Part I reviews the many flexibility devices available to treaty makers. It divides these tools into two broad categories: formal mechanisms (such as reservations, escape clauses, and withdrawal provisions) and informal practices (such as auto-interpretation, nonparticipation, and noncompliance). Part II reviews the international law and international relations scholarship on …

Transplanting The European Court Of Justice: The Experience Of The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter, Osvaldo Saldias

Faculty Scholarship

Although there is an extensive literature on domestic legal transplants, far less is known about the transplantation of supranational judicial bodies. The Andean Tribunal of Justice (ATJ) is one of eleven copies of the European Court of Justice (ECJ), and the third most active international court. This article considers the origins and evolution of the ATJ as a transplanted judicial institution. It first reviews the literatures on legal transplants, neofunctionalist theory, and the spread of European ideas and institutions, explaining how the intersection of these literatures informs the study of supranational judicial transplants. The article next explains why the Andean …

Treaty Signature, Curtis A. Bradley

Faculty Scholarship

This chapter is a contribution to The Oxford Guide to Treaties (Duncan Hollis, ed., Oxford University Press, forthcoming 2012). Under international law, in order for a State to become a party to a treaty, it must express its consent to be bound by the treaty. Such consent can be expressed in a variety of ways, including through signature of the treaty by a proper representative of the State. Under modern treaty practice, however, States often express their consent to be bound by a separate act of ratification that is carried out after signature. When a treaty is subject to discretionary …

Jurisdiction And Choice Of Law In International Antitrust Law - A Us Perspective, Ralf Michaels, Hannah L. Buxbaum

Faculty Scholarship

No abstract provided.

The Organization For Economic Cooperation And Development’S Role In International Law, James Salzman

Faculty Scholarship

The Organization for Economic Cooperation and Development (OECD) has played, and continues to play, an important and largely unrecognized role as a lawmaking body. The OECD occupies a unique space in the international lawmaking field, in large part because it was not established with lawmaking as a priority. In a small number of cases, however, it has played a significant role in crafting the emerging architecture of global governance. Case studies of the hazardous waste trade, the Bribery Convention, and the OECD Guidelines for Multinational Enterprises are presented to demonstrate a clear pattern. A topic of major concern arises on …

Qui Tam: Is False Claims Law A Model For International Law?, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Codifying Custom, Timothy Meyer

Faculty Scholarship

Codifying decentralized forms of law, such as the common law and customary law, has been a cornerstone of the positivist turn in legal theory since at least the nineteenth century. Commentators laud codification’s purported virtues, including systematizing, centralizing, and clarifying the law. These attributes are thought to increase the general welfare of those subject to legal rules, and therefore to justify and explain codification. The codification literature, however, overlooks codification’s distributive consequences. In so doing, the literature misses the primary motive for codification: to define legal rules in a way that advantages individual codifying institutions, regardless of how codification affects …

Terminating Treaties, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

Attorney General Bradford’S Opinion And The Alien Tort Statute, Curtis A. Bradley

Faculty Scholarship

In debates over the scope of the Alien Tort Statute (ATS), one historical document has played an especially prominent role. This document is a short opinion by U.S. Attorney General William Bradford, issued in the summer of 1795, concerning the involvement of U.S. citizens in an attack by a French fleet on a British colony in Sierra Leone. Numerous academic articles, judicial opinions, and litigation briefs have invoked the Bradford opinion, for a variety of propositions, and the opinion was discussed by both sides in the oral argument before the Supreme Court in the first hearing in the pending ATS …

The Evolution Of Contractual Terms In Sovereign Bonds, Stephen J. Choi, Mitu Gulati, Eric A. Posner

Faculty Scholarship

In reaction to defaults on sovereign debt contracts, issuers and creditors have strengthened the terms in sovereign debt contracts that enable creditors to enforce their debts judicially and that enable sovereigns to restructure their debts. These apparently contradictory approaches reflect attempts to solve an incomplete contracting problem in which debtors need to be forced to repay debts in good states of the world; debtors need to be granted partial relief from debt payments in bad states; debtors may attempt to exploit divisions among creditors in order to opportunistically reduce their debt burden; debtors may engage in excessively risky activities using …

The Evolution Of Law And Policy For Cia Targeted Killing, Afsheen John Radsan

Faculty Scholarship

Many critiques of the Central Intelligence Agency’s alleged use of killer drones depend on law that does not bind the United States or on contestable applications of uncertain facts to vague law. While acknowledging a blurry line between law and policy, we continue to develop a due process for targeted killing. In the real world, intelligence is sometimes faulty, mistakes occur, and peaceful civilians are at risk. International humanitarian law, which applies during armed conflicts, demands very little in the way of process beyond the admonition to take feasible precautions. Even so, the intelligence-driven nature of targeted killing, and the …