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Articles 1 - 5 of 5
Full-Text Articles in Law
Beyond The Article I Horizon: Congress’S Enumerated Powers And Universal Jurisdiction Over Drug Crimes, Eugene Kontorovich
Beyond The Article I Horizon: Congress’S Enumerated Powers And Universal Jurisdiction Over Drug Crimes, Eugene Kontorovich
Faculty Working Papers
This paper explores the Article I limits faced by Congress in exercising universal jurisdiction (UJ) – that is, regulating extraterritorial conduct by foreigners with no affect on or connection the U.S. While UJ is becoming increasingly popular in Europe for the punishment of human rights offenses, Congress's primary use of UJ today is under the Maritime Drug Law Enforcement Act. This obscure law allows the U.S. to punish for violating U.S. drug laws foreign defendants on foreign vessels in international waters. The MDLEA's UJ provisions raise fundamental questions about the source and extent of Congress's constitutional power to regulate purely …
Forum Shopping And The Infrastructure Of Federalism., James E. Pfander
Forum Shopping And The Infrastructure Of Federalism., James E. Pfander
Faculty Working Papers
The recent effort of environmentalists and others to secure progressive social change at the state level enacts a familiar ritual in the history of American federalism. Political actors who have found their initiatives blunted at the national level have often turned to the states. With the ebb and flow of political power between two parties over time, arguments about the relative authority of federal and state governments display far more expediency than principle, far more mutability than predictability. States may be more or less progressive than the national government, depending in good measure on the temper of the times and …
Is International Law Coercive?, Anthony D'Amato
Is International Law Coercive?, Anthony D'Amato
Faculty Working Papers
Can international law be enforced against a state? Against a superpower? Various current theories answer in the negative: dualism, consent, domestication, soft law, the New Haven school, and exceptionalism. But this Article claims that international law is enforced all the time by unilateral or multilateral reprisals. The stability of international law over time is a function of the successful working of the reprisal system. In sum, international law is a coercive order.
Why Is International Law Binding?, Anthony D'Amato
Why Is International Law Binding?, Anthony D'Amato
Faculty Working Papers
Many writers believe that international law is precatory but not "binding" in the way domestic law is binding. Since international law derives from the practice of states, how is it that what states do becomes what they must do? How do we get bindingness or normativity out of empirical fact? We have to avoid the Humean fallacy of attempting to derive an ought from an is. Yet we can find in nature at least one norm that is compelling: the norm of survival. This norm is hardwired into our brains through evolution. It is also hardwired into the international legal …
Courting Genocide: The Unintended Effects Of Humanitarian Intervention, Jide Nzelibe
Courting Genocide: The Unintended Effects Of Humanitarian Intervention, Jide Nzelibe
Faculty Working Papers
Invoking memories and imagery from the Holocaust and other German atrocities during World War II, many contemporary commentators and politicians believe that the international community has an affirmative obligation to deter and incapacitate perpetrators of humanitarian atrocities. Today, the received wisdom is that a legalistic approach, which combines humanitarian interventions with international criminal prosecutions targeting perpetrators, will help realize the post-World War II vision of making atrocities a crime of the past. This Article argues, in contrast, that humanitarian interventions are often likely to create unintended, and sometimes perverse, incentives among both the victims and perpetrators of atrocities. The problem …