Law Commons^™

Justice Without Power: Yemen And The Global Legal System, Amulya Vadapalli

Michigan Law Review

The war in Yemen has remained the world’s worst humanitarian crisis since 2015, and yet it is shockingly invisible. The global legal system fails to offer a clear avenue through which the Yemeni people can hold the state actors responsible for their harm accountable. This Note analyzes international legal mechanisms for vindicating war crimes and human rights abuses perpetrated in Yemen. Through the lens of Yemen’s humanitarian crisis, it highlights gaps in the global legal structure, proposes alternative accountability processes, and uses a variety of sources—including interviews with practitioners and Arabic language legal scholarship—to explicate a victim-centered transitional justice process …

Making Sense Of Customary International Law, Monica Hakimi

Michigan Law Review

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 conceptual baggage that is …

Why Should We Care About International Law?, Monica Hakimi

Michigan Law Review

Review of Harold Hongju Koh's The Trump Administration and International Law.

Promises Unfulfilled: How Investment Arbitration Tribunals Mishandle Corruption Claims And Undermine International Development, Andrew T. Bulovsky

Michigan Law Review

In recent years, the investment-arbitration and anti-corruption regimes have been in tension. Investment tribunals have jurisdiction to arbitrate disputes between investors and host states under international treaties that provide substantive protections for private investments. But these tribunals will typically decline to exercise jurisdiction over a dispute if the host state asserts that corruption tainted the investment. When tribunals close their doors to ag-grieved investors, tribunals increase the risks for investors and thus raise the cost of international investment. At the same time, the decision to decline jurisdiction creates a perverse incentive for host states to turn a blind eye to …

Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith

Michigan Law Review

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 …

Thick Law, Thin Justice, Patrick Macklem

Michigan Law Review

Review of The Thin Justice of International Law: A Moral Reckoning of the Law of Nations by Steven R. Ratner.

Congress's International Legal Discourse, Kevin L. Cope

Michigan Law Review

Despite Congress’s important role in enforcing U.S. international law obligations, the relevant existing literature largely ignores the branch. This omission may stem partly from the belief, common among both academics and lawyers, that Congress is generally unsympathetic to or ignorant of international law. Under this conventional wisdom, members of Congress would rarely if ever imply that international law norms should impact otherwise desirable domestic legislation. Using an original dataset comprising thirty years of legislative histories of pertinent federal statutes, this Article questions and tests that view. The evidence refutes the conventional wisdom. It shows instead that, in legislative debates over …

War Is Governance: Explaining The Logic Of The Laws Of War From A Principal-Agent Perspective, Eyal Benvenisti, Amichai Cohen

Michigan Law Review

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other’s capabilities commit to and obey rules designed to limit their choice of targets, weapons, and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side’s answers withstand close scrutiny. In this Article, we develop an alternative explanation that is based on the principal–agent model of domestic governance. …

Efficient Breach Of International Law: Optimal Remedies, 'Legalized Noncompliance,' And Related Issues, Eric A. Posner, Alan O. Sykes

Michigan Law Review

In much of the scholarly literature on international law, there is a tendency to condemn violations of the law and to leave it at that. If all violations of international law were indeed undesirable, this tendency would be unobjectionable. We argue in this Article, however that a variety of circumstances arise under which violations of international law are desirable from an economic standpoint. The reasons why are much the same as the reasons why nonperformance of private contracts is sometimes desirable- the concept of "efficient breach," familiar to modern students of contract law, has direct applicability to international law. As …

Infusing Due Process And The Principle Of Legality Into Contempt Proceedings Before The International Criminal Tribunal For The Former Yugoslavia Ad The International Criminal Tribunal For Rwanda, Gwendolyn Stamper

Michigan Law Review

Contempt proceedings before the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda suffer from two procedural defects: the hearings run afoul of the principle of legality and fail to afford calibrated procedural protection for accused contemnors. First, this Note contends that these two tribunals properly rely on their inherent powers to codify procedural rules for contempt proceedings. However the tribunals' inherent power to prosecute contempt does not allow the courts to punish contemptuous conduct that has not been explicitly proscribed. Such a prosecution contravenes the principle of legality, which provides that criminal responsibility may …

Peace Through Law? The Failure Of A Noble Experiment, Robert J. Delahunty, John C. Yoo

Michigan Law Review

Ever since its publication in 1929, Erich Maria Remarque's All Quiet on the Western Front has been regarded as a landmark of antiwar literature. Appearing a decade after the end of the First World War, the novel became a literary sensation almost overnight. Within a year of publication, it had been translated into twenty languages, including Chinese, and by April 1930, sales for twelve of the twenty editions stood at 2.5 million. Remarque was reputed to have the largest readership in the world. Hollywood took note, and an equally successful film appeared in 1930. The success of the novel was …

Rational Choice, Reputation, And Human Rights Treaties, Alex Geisinger, Michael Ashley Stein

Michigan Law Review

Part I of this Review sets forth Guzman's general theory of international law with specific consideration of the way reputation influences state behavior. Part II then tests Guzman's overarching thesis by applying it to human rights treaties and concludes that explaining states' entry into human rights treaties requires a broader conception of reputation than Rational Choice allows.

Don't Cross The Streams: Past And Present Overstatement Of Customary International Law In Connection With Conventional Fair And Equitable Treatment Obligations, Theodore Kill

Michigan Law Review

The obligation to provide fair and equitable treatment to foreign investors and investments has existed as a concept of international economic law at least since the 1919 Covenant of the League of Nations. The fair and equitable treatment provision is a key protection contained in the vast majority of modern bilateral investment treaties. Tribunals adjudicating alleged breaches of these fair and equitable treatment provisions have not arrived at a uniform interpretation of the term. As a threshold issue, however each tribunal must address the question of whether a state's obligations under a given treaty's fair and equitable treatment provision will …

International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Brunk Wuerth

Michigan Law Review

The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This Article analyzes why the Commander in Chief Clause is difficult and argues that international law helps resolve some of the problems that the Clause presents. Because of weaknesses in originalist analysis, changes over time, and lack of judicial competence in military matters, the Court and commentators have relied on second-order interpretive norms like congressional authorization and executive branch practice in interpreting the …

Transnational Networks And International Criminal Justice, Jenia Iontcheva Turner

Michigan Law Review

The theory of transgovernmental networks describes how government officials make law and policy on issues of global concern by coordinating informally across borders, without legal or official sanction. Scholars have argued that this sort of coordination is useful in many different areas of cross-border regulation, including banking, antitrust, environmental protection, and securities law. One area to which the theory has not yet been applied is international criminal law. For a number of reasons, until recently, international criminal law had not generated the same transgovernmental networks that have emerged in other fields. With few exceptions, international criminal law had been enforced …

Pluralizing International Criminal Justice, Mark A. Drumbl

Michigan Law Review

From Nuremberg to The Hague scours the institutions of international criminal justice in order to examine their legitimacy and effectiveness. This collection of essays is edited by Philippe Sands, an eminent authority on public international law and professor at University College London. The five essays derive from an equal number of public lectures held in London between April and June 2002. The essays - concise and in places informal - carefully avoid legalese and arcania. Taken together, they cover an impressive spectrum of issues. Read individually, however, each essay is ordered around one or two well-tailored themes, thereby ensuring analytic …

The New Imperialism: Violence, Norms, And The "Rule Of Law", Rosa Ehrenreich Brooks

Michigan Law Review

The past decade has seen a surge in American and international efforts to promote "the rule of law" around the globe, especially in postcrisis and transitional societies. The World Bank and multinational corporations want the rule of law, since the sanctity of private property and the enforcement of contracts are critical to modern conceptions of the free market. Human-rights advocates want the rule of law since due process and judicial checks on executive power are regarded as essential prerequisites to the protection of substantive human rights. In the wake of September 11, international and national-security experts also want to promote …

The New Leviathan, Dennis Patterson

Michigan Law Review

Reputation in any field is an elusive phenomenon: part notoriety, part honor, part fame, part critical assessment. Even in legal scholarship it has an uneven, unpredictable quality. It is hard to imagine a book by a law professor that has had more immediate impact on world leaders than Philip Bobbitt's The Shield of Achilles. Much of the national-security strategy devised by the U.S. administration after the September 11 attacks expresses ideas Bobbitt conceived long before; and from a different point on the political spectrum is the Archbishop of Canterbury, whose televised nationwide address in January explicitly took the book as …

Who Cares About Courts? Creating A Constitutency For Judicial Independence In Africa, Mary L. Dudziak

Michigan Law Review

While American scholars and judges generally assume that it is beneficial to insulate courts from politics, Jennifer Widner offers a contrasting perspective from another region of the world. In Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa, Widner examines the role of courts and judicial review in democratization in Africa. She focuses on the role of one judge, a man who would see himself as embodying a role in Tanzania similar to that of Chief Justice John Marshall in the United States. Francis Nyalali, Chief Justice of the High Court of Tanzania, worked …

More Process Than Peace: Legitimacy, Compliance, And The Oslo Accords, Orde F. Kittrie

Michigan Law Review

The 21st century has inherited a number of bloody and long-unresolved intranational conflicts, including those in Kashmir, Northern Ireland, Burundi, Cyprus, Colombia, the Congo, the Philippines, and the Holy Land. Negotiated efforts to resolve these conflicts through legally binding peace settlements have been attempted from time to time, but without lasting success. Numerous negotiators' memoirs, political science books, and historians' tomes have been devoted to the subject of peace negotiations. But relatively little has been written about peace negotiations from a legal perspective. In particular, the legal literature contains virtually no discussion of what in the contents of a bilateral …

American Racial Jusice On Trial - Again: African American Reparations, Human Rights, And The War On Terror, Eric K. Yamamoto, Susan K. Serrano, Michelle Natividad Rodriguez

Michigan Law Review

Much has been written recently on African American reparations and reparations movements worldwide, both in the popular press and scholarly publications. Indeed, the expanding volume of writing underscores the impact on the public psyche of movements for reparations for historic injustice. Some of that writing has highlighted the legal obstacles faced by proponents of reparations lawsuits, particularly a judicial system that focuses on individual (and not group-based) claims and tends to squeeze even major social controversies into the narrow litigative paradigm of a two-person auto collision (requiring proof of standing, duty, breach, causation, and direct injury). Other writings detail the …

A Little Rebellion Now And Then Is A Good Thing, James Forman Jr.

Michigan Law Review

What do George Washington and Eldridge Cleaver have in common? Or John Brown and Mahatma Gandhi? The Stern Gang and the Palestine Liberation Organization? Jefferson Davis and Eugene Debs? In Rebels with a Cause: The Minds and Morality of Political Offenders, Nicholas Kittrie says they are all political offenders - men and women who, "professing loyalty to a divine or higher law, to the call of individual conscience, or to the imperatives of some perceived public good, have challenged the legitimacy and authority of the institutions of their governments" (p. 6). Kittrie sets out to study the whole lot: "Civil …

Those Who Remember The Past May Not Be Condemned To Repeat It, Stephan Landsman

Michigan Law Review

In The Hague, Slobodan Milosevic is on trial for crimes committed in Bosnia, Kosovo and Croatia; in Arusha, Tanzania, Jean Paul Akayasu, a Rwandan bourgmestre, was convicted of genocide; in London, Augusto Pinochet was detained and adjudged amenable to an arrest warrant issued by a Spanish magistrate for acts of torture carried out in Chile; in Belgium, a Hutu Roman Catholic former mother superior was convicted of complicity in the Rwandan genocide; and in Rome a treaty was signed commencing the process that will result in the creation of the International Criminal Court ("ICC"). All these events underscore the startling …

Democratic Justice In Transition, Marion Smiley

Michigan Law Review

Ruti Teitel's Transitional Justice and Ian Shapiro's Democratic Justice come out of very different academic traditions. But they both develop a view of justice that might loosely be called pragmatic by virtue of its treatment of justice as a value that is simultaneously grounded in practice and powerful in bringing about social and political change. Moreover, they both use this shared pragmatic view of justice to provide us with two things that are of great importance to the study of transitional justice and democracy in general. The first is an explanatory framework for understanding how legal institutions and claims about …

Ever The Twain Shall Meet, Fred S. Mcchesney

Michigan Law Review

Instinctively, corruption is deplorable. Nobody likes private citizens paying governmental officials for special favors. Few have deplored corruption longer or in greater detail than economist Susan Rose-Ackerman. In Corruption and Government, Professor Rose-Ackerman discusses how corruption starts ("causes"), why it is bad ("consequences"), and how to stop it ("reform"), principally from an economic perspective. Professor Rose-Ackerman's interest in corruption derives partly from her outside work with international agencies, especially time spent at the World Bank - "a transformative experience" (p. xi). Her twenty-two page bibliography ranges across sources in economics and politics, plus many documents from the World Bank and …

Individualism In The Age Of Internationalism, Alyson Cole

Michigan Law Review

In the brief conclusion to The Empowered Self: Law and Society in the Age of Individualism, Thomas M. Franck asserts that he cannot satisfactorily summarize his book's argument. Even if it were achievable, he clarifies, he would not engage in such an endeavor, since it would "preempt the reader's autonomy and subvert his or her individual rights" (p. 278). That the author himself rejects the desirability of doing what reviewers generally do (i.e., condense and inevitably simplify complex tomes) is perhaps a somewhat awkward way to commence a discussion of his book. Nevertheless, this comment illustrates the extent to which …

"An Eye Single For Righteousness", Mark Sidel

Michigan Law Review

In an era in which American internationalism has once again met American empire on the field of law and politics, Henry Wallace's life and work are instructive. Wallace, one of the great internationalists of his era, was Secretary of Agriculture, Secretary of Commerce, Vice President under Franklin D. Roosevelt, the 1948 presidential nominee of the Progressive Party, and founder of Pioneer Hy-Bred, for decades the world's dominant hybrid seed company (pp. 82, 90). John Culver and John Hyde's new biography of Wallace brings this life before a newer generation of Americans concerned with America's place in the law and political …

Laws As Treaties?: The Constitutionality Of Congressional-Executive Agreements, John C. Yoo

Michigan Law Review

Only twice in the last century, in 1919 with the Treaty of Versailles, and two years ago with the comprehensive Nuclear Test-Ban Treaty, has the Senate rejected a significant treaty sought by the President. In both cases, the international agreement received support from a majority of the Senators, but failed to reach the two-thirds supermajority required by Article II, Section 2, of the Constitution. The failure of the Versailles Treaty resulted in a shattering defeat for President Wilson's vision of a new world order, based on collective security and led by the United States. Rejection of the Test-Ban Treaty amounted …

The Treaty Power And American Federalism, Part Ii, Curtis A. Bradley

Michigan Law Review

In an article published in this Review two years ago, I described and critiqued what I called the "nationalist view" of the treaty power. Under this view, the national government has the constitutional power to enter into treaties, and thereby create binding national law by virtue of the Supremacy Clause, without regard to either subject matter or federalism limitations. This view is reflected in the writings of a number of prominent foreign affairs law scholars, as well as in the American Law Institute's Restatement (Third) of Foreign Relations Law of the United States. In my article, I argued that this …

International Bankruptcy: In Defense Of Universalism, Andrew T. Guzman

Michigan Law Review

The globalization of business activity is rightfully celebrated as one of the triumphs of the second half of the twentieth century. The benefits stemming from the globalization of commerce are substantial, but international transactions also bring with them important challenges for the world's legal systems. Traditionally, national governments could focus on their domestic economies without undue attention to international issues. Today, however, a country's policymakers must respond to the growth in international business activity with appropriate legal changes. Failure to do so will cause their legal regimes to fall further and further out of step with the needs of the …