Law Commons^™

Water Diplomacy And Shared Resources Along The United States-Mexico Border, Maria Elena Giner, Gabriel Eckstein

Faculty Scholarship

The United States and Mexico are geographic neighbors with high economic asymmetry, but also a shared history and intense social, cultural, economic, and security relations. Over 15 million people reside along the U.S.-Mexico border and share an environment that includes many watersheds and air basins transcending political boundaries. Pollution impacts on both sides of the border have required a coordinated response at the local, state, and federal level.

At the federal level, a joint institution was created in in 1889 as the International Boundary Commission and later renamed the International Boundary and Water Commission to provide binational solutions to issues …

Intended Injury: Transferred Intent And Reliance In Climate Change Fraud, Wes Henricksen

Faculty Scholarship

No abstract provided.

America's New Covenant With Hong Kong: The Hong Kong Human Rights And Democracy Act Of 2019, Jason Buhi

Faculty Scholarship

No abstract provided.

Corporate Social Responsibility, Casino Capitalism, And The Constitution Of Macau, Jason Buhi

Faculty Scholarship

No abstract provided.

Irena At 10: Post Paris Transitions And Energy Diplomacy Beyond Opec, The Energy Charter Treaty, And The Coronavirus, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

The Evolution Of Offshore: From Tax Havens To Ifcs, Andrew P. Morriss, Charlotte Ku

Faculty Scholarship

Over the past 70 years, many smaller jurisdictions have evolved intro international financial centres (IFCs). Although different in their historic origins and in the financial products and services they offer, IFCs share a common development path. Understanding that evolution can shed light on what the next decade is likely to bring.

Can International Patent Law Help Mitigate Cancer Inequity In Lmics?, Srividhya Ragavan, Amaka Vanni

Faculty Scholarship

Although low- and middle-income countries (LMICs) bear 75% of the cancer burden globally, their available resources to treat cancer constitute less than 5% of global health resources. This inequity makes it imperative to take appropriate measures to treat and prevent cancer in LMICs, which should include consideration of trade and patent policies. This article highlights some impediments to effective use of existing policies to promote access to treatment and prevention measures in LMICs and offers recommendations about next steps.

Does The New York Convention Allow A Non-Party To An Arbitration Agreement To Use Equitable Estoppel To Compel Arbitration?, Robert Jarvis

Faculty Scholarship

No abstract provided.

The Modern Architecture Of Religious Freedom As A Fundamental Right, Peter G. Danchin

Faculty Scholarship

No abstract provided.

The Pandemic Paradox In International Law, Peter G. Danchin, Jeremy Farrall, Shruti Rana, Imogen Saunders

Faculty Scholarship

No abstract provided.

Navigating The Backlash Against Global Law And Institutions, Peter G. Danchin, Jeremy Farrall, Jolyon Ford, Shruti Rana, Imogen Saunders, Daan Verhoeven

Faculty Scholarship

No abstract provided.

Delaware's New Competition, William J. Moon

Faculty Scholarship

According to the standard account in American corporate law, states compete to supply corporate law to American corporations, with Delaware dominating the market. This “competition” metaphor in turn informs some of the most important policy debates in American corporate law.

This Article complicates the standard account, introducing foreign nations as emerging lawmakers that compete with American states in the increasingly globalized market for corporate law. In recent decades, entrepreneurial foreign nations in offshore islands have used permissive corporate governance rules and specialized business courts to attract publicly traded American corporations. Aided in part by a select group of private sector …

Ordinary Tort Litigation In China: Law Versus Practical Justice?, Benjamin L. Liebman

Faculty Scholarship

This essay examines the roles courts play in tort litigation in China, in particular in litigation resulting from death and injury on China’s roads. At first glance traffic accident litigation in China appears to be an area in which courts play minor roles. The police, not courts, are the primary fact-finders. China’s mandatory automobile insurance system has clear guidelines for compensation levels and imposes nearly strict liability in most traffic accident cases. Courts’ roles are, at least in law, largely relegated to calculating damages. Chinese law provides schedules for assessing damages based on average local income levels, and thus outcomes …

The Self-Styled 'Autonomy' Of International Arbitration, George A. Bermann

Faculty Scholarship

Among international legal regimes, international arbitration has traditionally claimed for itself a remarkable degree of autonomy from other international regimes, an autonomy that enables it to enjoy a remarkable measure of self-determination. Its assertions of autonomy take a number of different forms and exhibit considerable resilience. Autonomy does allow international arbitration to develop in accordance with norms that are specific to it, but it also poses challenges that need, even for international arbitration’s own well-being, to be acknowledged and addressed.

Legitimate Interpretation – Or Legitimate Adjudication?, Thomas W. Merrill

Faculty Scholarship

Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better fit between theory and practice. …

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less …

Insulating A Wto Investment Facilitation Framework From Isds, George A. Bermann, N. Jansen Calamita, Manjiao Chi, Karl P. Sauvant

Faculty Scholarship

The authors identify several ways in which a WTO investment facilitation framework for development can be insulated from investor-state dispute settlement provisions in international investment agreements, and suggest specific formulations in this respect.

To Ab Or Not To Ab?: Dispute Settlement In Wto Reform, Bernard M. Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent debates on the operation of the WTO’s dispute resolution mechanism have focused primarily on the Appellate Body (AB). We argue that this neglects the first-order issue confronting the rules-based trading system: sustaining the principle of de-politicized conflict resolution that is reflected in the negative consensus rule for adoption of dispute settlement findings. Improving the quality of the work of panels by appointing a roster of full-time professional adjudicators, complemented by reforms to WTO working practices that reduce incentives to resort to formal dispute settlement, can resolve the main issues that led to the AB crisis. Effective, coherent, and consistent …

Making Sense Of The Arbitrator’S Ruling In Ds 316 Ec And Certain Member States – Measures Affecting Trade In Large Civil Aircraft (Article 22.6-Ec): A Jigsaw Puzzle With (At Least) A Couple Missing Pieces, Petros C. Mavroidis, Kamal Saggi

Faculty Scholarship

“The U.S. won a $7.5 Billion award from the World Trade Organization against the European Union, who has for many years treated the USA very badly on Trade due to Tariffs, Trade Barriers, and more. This case going on for years, a nice victory”, tweeted President Trump’s on October 3, 2019. The United States (US) won not only the highest amount of retaliation ever adjudicated in the history of the WTO but also an ongoing right to retaliate on an annual basis until such time as the EU had complied by either removing the subsidies it granted Airbus or somehow …

Strengthening The U.S.-Japan Alliance: Pathways For Bridging Law And Policy, Columbia Law School, 2020, Nobuhisa Ishizuka, Masahiro Kurosaki, Matthew C. Waxman

Faculty Scholarship

During the three years leading up to this year ’s 60th anniversary of the signing of the 1960 U.S.-Japan Security Treaty, a series of workshops were held under the joint sponsorship of Columbia Law School’s Center for Japanese Legal Studies and the National Defense Academy of Japan’s Center for Global Security. Bringing together experts in international law and political science primarily from the United States and Japan, the workshops examined how differing approaches to use of force and understandings of individual and collective self-defense in the two countries might adversely affect their alliance.

The workshop participants explored the underlying causes …

Intellectual Property Law And Redressive Autonomy, Shyamkrishna Balganesh

Faculty Scholarship

Intellectual property law remains a body of private law, but for reasons that transcend its reliance on ideas and concepts from the common law of property and tort. This essay argues that the connection between forms of intellectual property law and private law is rooted in a form of autonomy that characterizes private law regimes — known as “redressive autonomy.” It shows how a strong commitment to redressive autonomy undergirds the unique right–duty structure of intellectual property, informs intellectual property’s central doctrines, and injects an additional layer of normative complexity into its functioning.

Introduction: The Roles Of The Restatements In U.S. Foreign Relations Law, Paul B. Stephan, Sarah H. Cleveland

Faculty Scholarship

This introductory chapter serves as a foreword for the volume. It sketches the history of past restatements and the evolution of the latest one. The first (confusingly called Second) Restatement of the Foreign Relations Law of the United States brought widespread attention to the term “foreign relations law.” It staunchly defended the proposition that foreign relations, no matter how imbued with discretion and prerogative, still must rest on law. The Third Restatement, prepared during a period of what to many seemed constitutional retrenchment and a loosening of judicial supervision over public life, offered a robust defense of the proposition that, …

Why Should We Care About International Law?, Monica Hakimi

Faculty Scholarship

International lawyers are used to having their discipline dismissed. A conspicuous strand of thought in U.S. foreign policy circles — known as realist — posits that international law does not matter. Realists of course recognize that states and other global actors speak the language of international law. But they view this discourse as cheap talk or epiphenomenal. They contend that state decisions on the international plane are animated not by the dictates of international law but by material interests and power. States act consistently with international law insofar as they have independent reasons for acting that way. If those reasons …

Making Sense Of Customary International Law, Monica Hakimi

Faculty Scholarship

This Article addresses a longstanding puzzle about customary international law (CIL): How can it be, at once, so central to the practice of international law — routinely invoked and applied in a broad range of settings — and the source of such persistent confusion and derision? The centrality of CIL suggests that, for the many people who use it, it is not only comprehensible but worthwhile. They presumably use it for a reason. But then, what accounts for all the muddle and disdain?

The Article argues that the problem lies less in the everyday operation of CIL than in the …

Stakeholder Preferences And Priorities For The Next Wto Director General, Matteo Fiorini, Bernard Hoekman, Petros C. Mavroidis, Douglas Nelson, Robert Wolfe

Faculty Scholarship

The WTO is looking for a new Director-General (DG). What does the trade community think is needed? This paper reports on the results of an expert survey undertaken as part of a research project on global trade governance at the European University Institute to solicit views on what WTO members and the international trade community consider the most important attributes of candidates for the position, as well as views on the substantive policy and institutional reform priorities confronting the WTO – and thus the new DG. The results suggest strong support for someone with managerial and political experience, and a …

Minimum And Maximum Protection Under International Copyright Treaties, Jane C. Ginsburg

Faculty Scholarship

This Comment addresses minimum and maximum substantive international protections set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the maxima have generally received less attention. It first discusses the general structure of the Berne Convention, TRIPS, and the WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.

The Footprint Of The Chinese Petro-Dragon: The Future Of Investment Law In Transboundary Resources, Guillermo J. Garcia Sanchez

Faculty Scholarship

Chinese offshore investments in the oil and gas sector around the world are on the rise. Like dragons roaming the seas trying to dominate the tides, Chinese state-owned companies are particularly eager to bid for oil fields in maritime borderlines. The article tells the story of how Chinese state-owned companies are over paying for oil on the US-Mexico boundary to gather experience on how China’s global competitors handle resource development conflicts. My argument is that Chinese participation in transboundary field development fits within a long-term strategy to master international legal regimes. The presence of these petro-dragons in borderlines is an …

Cyberattacks And The Constitution, Matthew C. Waxman

Faculty Scholarship

Contrary to popular view, cyberattacks alone are rarely exercises of constitutional war powers – and they might never be. They are often instead best understood as exercises of other powers pertaining to nonwar military, foreign affairs, intelligence, and foreign commerce, for example. Although this more fine-grained, fact-specific conception of cyberattacks leaves room for broad executive leeway in some contexts, it also contains a strong constitutional basis for legislative regulation of cyber operations.

Presidential Use Of Force In East Asia: American Constitutional Law And The U.S.-Japan Alliance, Matthew C. Waxman

Faculty Scholarship

The U.S. Constitution’s allocation of military authority has adapted over time to major shifts in American power and grand strategy. This paper explains, with a focus on U.S. military actions in East Asia and possible scenarios of special joint concern to the United States and Japan, that the president in practice wields tremendous power and discretion in using military force. Although formal, legal checks on the president’s use of force rarely come into play, Congress nevertheless retains some political power to influence presidential decision-making. The president’s powers are also constrained by interagency processes within the executive branch, and alliance relations …

Some Issues On The Law Of Direct Damages (Us And Uk), Victor P. Goldberg

Faculty Scholarship

When a contract is breached, both U.S. and U.K. law provide that the non-breaching party should be made whole. The Uniform Commercial Code (“UCC”) provides that “[t]he remedies provided by this Act shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed.” The English version, going back to Robinson v. Harman, is “that where a party sustains a loss by reason of breach of contract, he is, so far as money can do it, to be placed in the same situation, with …