Law Commons^™

Three Grotian Theories Of Humanitarian Intervention, Evan J. Criddle

Evan J. Criddle

This Article explores three theories of humanitarian intervention that appear in, or are inspired by, the writings of Hugo Grotius. One theory asserts that natural law authorizes all states to punish violations of the law of nations, irrespective of where or against whom the violations occur, to preserve the integrity of international law. A second theory, which also appears in Grotius’s writings, proposes that states may intervene as temporary legal guardians for peoples who have suffered intolerable cruelties at the hands of their own state. Each of these theories has fallen out of fashion today based on skepticism about their …

When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle

Evan J. Criddle

No abstract provided.

The Method In Fiduciary Law's Mixed Messages, Evan J. Criddle

Evan J. Criddle

No abstract provided.

The Vienna Convention On The Law Of Treaties In U.S. Treaty Interpretation, Evan J. Criddle

Evan J. Criddle

No abstract provided.

Standing For Human Rights Abroad, Evan J. Criddle

Evan J. Criddle

When may states impose coercive measures such as asset freezes, trade embargos, and investment restrictions to protect the human rights of foreign nationals abroad? Drawing inspiration from Hugo Grotius’s guardianship account of humanitarian intervention, this Article offers a new theory of states’ standing to enforce human rights abroad: under some circumstances, international law authorizes states to impose countermeasures as fiduciary representatives, asserting the human rights of oppressed foreign peoples for the benefit of those peoples. The fiduciary theory explains why all states may use countermeasures to vindicate the human rights of foreign nationals abroad despite the fact that they do …

Mending Holes In The Rule Of (Administrative) Law, Evan J. Criddle

Evan J. Criddle

No abstract provided.

Proportionality In Counterinsurgency: A Relational Theory, Evan J. Criddle

Evan J. Criddle

At a time when the United States has undertaken high-stakes counterinsurgency campaigns in at least three countries (Afghanistan, Iraq, and Pakistan) while offering support to insurgents in a fourth (Libya), it is striking that the international legal standards governing the use of force in counterinsurgency remain unsettled and deeply controversial. Some authorities have endorsed norms from international humanitarian law as lex specialis, while others have emphasized international human rights as minimum standards of care for counterinsurgency operations. This Article addresses the growing friction between international human rights and humanitarian law in counterinsurgency by developing a relational theory of the use …

The Fiduciary Constitution Of Human Rights, Evan Fox-Decent, Evan J. Criddle

Evan J. Criddle

We argue that human rights are best conceived as norms arising from a fiduciary relationship that exists between states (or statelike actors) and the citizens and noncitizens subject to their power. These norms draw on a Kantian conception of moral personhood, protecting agents from instrumentalization and domination. They do not, however, exist in the abstract as timeless natural rights. Instead, they are correlates of the state’s fiduciary duty to provide equal security under the rule of law, a duty that flows from the state’s institutional assumption of irresistible sovereign powers.

Protecting Human Rights During Emergencies: Delegation, Derogation, And Deference, Evan J. Criddle

Evan J. Criddle

Leading human rights treaties permit states as a temporary measure to suspend a variety of human rights guarantees during national crises. This chapter argues that human rights derogation is best justified as a temporary mechanism for empowering states to protect human rights, rather than as a device for enabling national authorities to advance their own interests in a manner that compromises human rights protection. Human rights treaties use broad legal standards to entrust states with responsibility for deciding what measures are best calculated to maximize human right protection during emergencies. For this delegation of authority to operate effectively, international tribunals …

The Constitution Of Agency Statutory Interpretation, Evan J. Criddle

Evan J. Criddle

No abstract provided.

Interest-Balancing Vs. Fiduciary Duty: Two Models For National Security Law, Evan Fox-Decent, Evan J. Criddle

Evan J. Criddle

No abstract provided.

Keeping The Promise Of Public Fiduciary Theory: A Reply To Leib And Galoob, Evan J. Criddle, Evan Fox-Decent

Evan J. Criddle

No abstract provided.

Liberty In Loyalty: A Republican Theory Of Fiduciary Law, Evan J. Criddle

Evan J. Criddle

Conventional wisdom holds that the fiduciary duty of loyalty is a prophylactic rule that serves to deter and redress harmful opportunism. This idea can be traced back to the dawn of modern fiduciary law in England and the United States, and it has inspired generations of legal scholars to attempt to explain and justify the duty of loyalty from an economic perspective. Nonetheless, this Article argues that the conventional account of fiduciary loyalty should be abandoned because it does not adequately explain or justify fiduciary law’s core features.

The normative foundations of fiduciary loyalty come into sharper focus when viewed …

Human Rights, Emergencies, And The Rule Of Law, Evan J. Criddle, Evan Fox-Decent

Evan J. Criddle

This article illuminates the normative basis for international law’s regulation of public emergencies by arguing that human rights are best conceived as norms arising from a fiduciary relationship between states (or state-like actors) and persons subject to their power. States bear a fiduciary duty to guarantee subjects’ secure and equal freedom, a duty that flows from their institutional assumption of sovereign powers. The fiduciary theory disarms Carl Schmitt’s critique of constitutionalism by explaining how emergency powers can be reconciled with the rule of law.

Fiduciary Foundations Of Administrative Law, Evan J. Criddle

Evan J. Criddle

An enduring challenge for administrative law is the tension between the ideal of democratic policymaking and the ubiquity of bureaucratic discretion. This Article seeks to reframe the problem of agency discretion by outlining an interpretivist model of administrative law based on the concept of fiduciary obligation in private legal relations such as agency, trust, and corporation. Administrative law, like private fiduciary law, increasingly relies upon a tripartite framework of entrustment, residual control, and fiduciary duty to demarcate a domain of bounded agency discretion. To minimize the risk that agencies will abuse their entrusted discretion through opportunism or carelessness, administrative law …

Deriving Peremptory Norms From Sovereignty, Evan J. Criddle, Evan Fox-Decent

Evan J. Criddle

No abstract provided.

Humanitarian Financial Intervention, Evan J. Criddle

Evan J. Criddle

Over the past several decades, states have used international asset freezes with increasing frequency as a mechanism for promoting human rights abroad. Yet the international law governing this mechanism, which I refer to as ‘humanitarian financial intervention’, remains fragmented. This article offers the first systematic legal analysis of humanitarian financial intervention. It identifies six humanitarian purposes that states may pursue through asset freezes: preserving foreign assets from misappropriation, incapacitating foreign states or foreign nationals, coercing foreign states or foreign nationals to forsake abusive practices, compensating victims, ameliorating humanitarian crises through humanitarian aid or postconflict reconstruction, and punishing human rights violators. …

Fiduciary Administration: Rethinking Popular Representation In Agency Rulemaking, Evan J. Criddle

Evan J. Criddle

Do administrative agencies undermine popular sovereignty when they make federal law? Over the last several decades, some scholars have argued that rulemaking by unelected agency officials imperils popular sovereignty and that federal law should resolve the apparent tension between regulatory practice and democratic principle by allowing the President to serve as a proxy for the "will of the people" in the administrative state. According to this view, placing federal rulemaking power firmly within the President's managerial control would advance popular preferences throughout the federal system.

This conventional wisdom is misguided. As political scientists have long recognized, the electorate's relative disengagement …

Customary Constraints On The Use Of Force: Article 51 With An American Accent, William C. Banks, Evan J. Criddle

Evan J. Criddle

This article, prepared for the symposium on ‘The Future of Restrictivist Scholarship on the Use of Force’, examines the current trajectory of restrictivist scholarship in the United States. In contrast to their counterparts in continental Europe, American restrictivists tend to devote less energy to defending narrow constructions of theUNCharter. Instead, they generally focus on legal constraints outside the Charter’s text, including customary norms and general principles of law such as necessity, proportionality, deliberative rationality, and robust evidentiary burdens. The article considers how these features of the American restrictivist tradition reflect distinctive characteristics of American legal culture, and it explores the …

Against Methodological Stare Decisis, Evan J. Criddle, Glen Staszewski

Evan J. Criddle

Should federal courts give stare decisis effect to statutory interpretation methodology? Although a growing number of legal scholars have answered this question in the affirmative, this Essay makes the case against methodological stare decisis. Drawing on recent empirical studies of Congress’s expectations regarding statutory interpretation, we show that existing knowledge of Congress’s expectations is insufficient to settle on one consistent approach to statutory interpretation. Moreover, Congress has almost certainly changed its expectations over time, and this raises serious problems for methodological stare decisis from the perspective of faithful-agency theories. We argue further that many theories and doctrines of statutory interpretation …

Chevron's Consensus, Evan J. Criddle

Evan J. Criddle

No abstract provided.

A Fiduciary Theory Of Jus Cogens, Evan J. Criddle, Evan Fox-Decent

Evan J. Criddle

No abstract provided.

Chevron Deference And Treaty Interpretation, Evan J. Criddle

Evan J. Criddle

No abstract provided.

Book Review Of The Riddle Of All Constitutions: International Law, Democracy, And The Critique Of Ideology, Evan J. Criddle

Evan J. Criddle

No abstract provided.