Law Commons^™

Journeys Through Space And Time While Reading International Law And The Politics Of History, Found On A Palimpsest, Translated For You, The Reader, Harlan G. Cohen

Scholarly Works

I was invited to a symposium on Anne Orford’s book, International Law and the Politics of History. On my way there, my mind wandered, and I found myself lost in a forest of half-remembered stories and unfinished thoughts. Searching for a way out, this is what I discovered.

Copyright In The Texts Of The Law: Historical Perspectives, Charles Duan

Articles in Law Reviews & Other Academic Journals

Recently, state governments have begun to claim a copyright interest in their official published codes of law, in particular arguing that ancillary materials such as annotations to the statutory text are subject to state-held copyright protection because those materials are not binding commands that carry the force of law. Litigation over this issue and a vigorous policy debate are ongoing.

This article contributes a historical perspective to this ongoing debate over copyright in texts relating to the law. It reviews the history of government production and use of annotations, commentaries, legislative debates, and other related information relevant to the law …

Book Review, Anna Spain Bradley

Publications

No abstract provided.

Book Review, Anna Spain Bradley

Publications

No abstract provided.

Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith

All Faculty Scholarship

Both statutes and treaties are the “supreme law of the land,” and yet quite different practices have developed with respect to their implementation. For statutes, all three branches have embraced the development of administrative law, which allows the executive branch to translate broad statutory directives into enforceable obligations. But for treaties, there is a far more cumbersome process. Unless a treaty provision contains language that courts interpret to be directly enforceable, they will deem it to require implementing legislation from Congress. This Article explores and challenges the perplexing disparity between the administration of statutes and treaties. It shows that the …

Five Decades Of Intellectual Property And Global Development, Peter K. Yu

Faculty Scholarship

The 2016-2017 biennium marks the historical milestones of several major pro-development initiatives relating to intellectual property law and policy. These important milestones include the Intellectual Property Conference of Stockholm in 1967, the adoption of the Declaration on the Right to Development (UNDRD) in 1986 and the establishment of the WIPO Development Agenda in 2007.

On January 1, 2016, the UN Sustainable Development Goals (SDGs) also came into force. Adopted by the UN General Assembly in September 2015, the 2030 Agenda for Sustainable Development featured 17 SDGs and 169 targets. Prominently mentioned in Target 3.b of SDG 3 are the WTO …

The Patent System In Pre-1989 Czechoslovakia, Marketa Trimble

Scholarly Works

The chapter analyzes patent law in Czechoslovakia in the period from 1945 until the end of communist rule in 1989. In addition to reviewing the legislative development of patent law – the laws on the books – the chapter explains the law in action, which includes the application of the law in practice and the attitudes of Czechoslovak society toward inventive activities and patenting. The chapter shows that post-1945 Czechoslovak patent law drew on a highly developed pre-1940 Czechoslovak patent law and practice that was based on the Austrian patent law inherited by Czechoslovakia in 1918 when it split from …

The Invention Of A Human Right: Conscientious Objection At The United Nations, 1947-2011, Jeremy Kessler

Faculty Scholarship

The right of conscientious objection to military service is the most startling of human rights. While human rights generally seek to protect individuals from state power, the right of conscientious objection radically alters the citizen-state relationship, subordinating a state's decisions about national security to the beliefs of the individual citizen. In a world of nation-states jealous of their sovereignty, how did the human right of conscientious objection become an international legal doctrine? By answering that question, this Article both clarifies the legal pedigree of the human right of conscientious objection and sheds new light on the relationship between international human …

Internet Access Rights: A Brief History And Intellectual Origins, Jonathon Penney

Articles, Book Chapters, & Popular Press

If there is anything we have learned from recent protest movements around the world, and the heavy-handed government efforts to block, censor, suspend, and manipulate Internet connectivity, it is that access to the Internet, and its content, is anything but certain, especially when governments feel threatened. Despite these hard truths, the notion that people have a "right" to Internet access gained high-profile international recognition last year. In a report to the United Nations General Assembly in early 2011, Frank La Rue, the UN Special Rapporteur on Freedom of Expression, held that Internet access should be recognized as a "human right". …

Toward A Geopolitics Of The History Of International Law In The Supreme Court – Remarks By Lori F. Damrosch, Lori Fisler Damrosch

Faculty Scholarship

I am pleased to have been one of the contributors to the forthcoming volume that provides the occasion for the present panel.' David Sloss and his co-editors, William Dodge and Michael Ramsey, deserve congratulations for coming up with a concept for a much-needed research project, for assembling a group of scholars from different disciplines, for organizing an authors' conference that was a model of collaborative interaction, and for exemplary editing of the papers. The volume examines an astounding number of cases involving international law at the Supreme Court and should become an indispensable reference for lawyers, scholars, and judges. The …

Historical American Perspectives On International Law, Harlan G. Cohen

Scholarly Works

The United States’ relationship with international law, although oft-discussed, is poorly understood. Depictions of the relationship are often little more than caricatures. Depending on when the caricature is drawn, the United States may be a longstanding “champion” of international law, an “exceptionalist” defender of American values, or a hypocritical opponent of international governance. Many traditional histories do little to complicate these views. Focused primarily on foreign affairs law and constitutional war powers, these histories highlight moments of tension between the United States and international law. Missing from these histories of American diplomacy and warcraft, foreign affairs caselaw and doctrinal development …

Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich

Faculty Working Papers

This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting …

John Paul Stevens, Human Rights Judge, Diane Marie Amann

Scholarly Works

This article explores the nature and origins of Supreme Court Justice John Paul Stevens' engagement with international and foreign law and norms. It first discusses Stevens' pivotal role in the revived use of such norms to aid constitutional interpretation, as well as 1990s opinions testing the extent to which constitutional protections reach beyond the water's edge and 2004 opinions on post-September 11 detention. It then turns to mid-century experiences that appear to have contributed to Stevens' willingness to consult foreign context. The article reveals that as a code breaker Stevens played a role in the downing of the Japanese general …

Standard Terms Contracting In The Global Electronic Age: European Alternatives, James Maxeiner

All Faculty Scholarship

This article examines American, European Union and German standard terms laws from an American perspective. It considers not only current law, but significant aspects of the development of these bodies of law. It sets out general issues involved in standard terms laws and summarizes American law. It notes the origin of American concepts in Europe and examines standard terms in the struggle over revision of the Uniform Commercial Code. It looks at the law of the European Union and its origin in the consumer movement. It considers in detail the law of one Member State as an example, that of …

Curtailing Tax Treaty Overrides: A Call To Action, Anthony C. Infanti

Articles

During the past 25 years, Congress has with increasing frequency enacted legislation that is intended to override inconsistent provisions in U.S. tax treaties. These legislative overrides are harmful, and have been decried by our treaty partners, members of the executive branch, and commentators.

Until now, commentators have generally devoted themselves to describing and deploring legislative overrides of tax treaties, and have done no more than repeatedly call on Congress to cease enacting such legislation. Congress has ignored these pleas, and has continued to enact legislative overrides with impunity.

Given this background, the essay calls on commentators to cease pleading with …

Competing Frameworks For Assessing Contemporary Holocaust-Era Claims, Vivian Grosswald Curran

Articles

There are many angles from which to perceive the contemporary holocaust-era claims. In 1997, Time magazine quoted Elie Wiesel as saying that, [i]f all the money in all the Swiss banks were turned over, it would not bring back the life of one Jewish child. But the money is a symbol. It is part of the story. If you suppress any part of the story, it comes back later, with force and violence.

Wiesel touches on two perspectives: first, what has been described as litigating the holocaust, with all that that implies about the law's questionable capacity to adjudicate issues …

Security For A Commercial Loan: Historical & International Perspectives, Edward A. Tomlinson

Faculty Scholarship

No abstract provided.

The Native Hawaiian People And International Human Rights Law: Toward A Remedy For Past And Continuing Wrongs, S. James Anaya

Publications

No abstract provided.

Competing Demands For The Colorado River, David H. Getches

Publications

No abstract provided.

War Crimes And Vietnam: The "Nuremberg Defense" And The Military Service Resister, Anthony D'Amato, Harvey . L. Gould, Larry D. Woods

Faculty Working Papers

We have attempted to establish first that the international laws of warfare are part of American law, and have argued that these laws, when taken as prohibitions of specific methods of waging war, are a practical and effective means of controlling unnecessary suffering and destruction. Second, we have analyzed these laws as they apply to treatment of prisoners of war, aerial bombardment of nonmilitary targets, and chemical and biological warfare, and have marshalled a portion of the available evidence that American forces commit war crimes in Vietnam. Third, we have discussed the defenses of tu quoque, reprisal, military necessity, superior …