Law Commons^™

Solomonic Judgments And The International Court Of Justice, Nienke Grossman

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This chapter, in a forthcoming book on legitimacy and international courts, analyzes the impact of Solomonic or "split the baby" judgments on the normative and sociological legitimacy of the International Court of Justice.

Introduction: Legitimacy And International Courts, Harlan Grant Cohen, Andreas Follesdal, Nienke Grossman, Geir Ulfstein

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Legitimacy and International Courts examines the underpinnings of legitimacy, or the justification of the authority, of international courts and tribunals. It brings together an esteemed group of authors, noted for both their expertise in individual courts, tribunals, or other adjudicatory bodies, and their work on legitimacy, effectiveness, and governance more broadly, to consider the legitimacy of international courts from a comparative perspective. Authors explore what strengthens and weakens the legitimacy of various different international courts, while also considering broader theories of international court legitimacy. Some chapters highlight the sociological or normative legitimacy of specific courts or tribunals, while others address …

Achieving Sex-Representative International Court Benches, Nienke Grossman

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Twenty-five years ago, in this Journal, Hilary Charlesworth, Christine Chinkin, and Shelley Wright argued that the structures of international law “privilege men.”1 As shown in Table 1, which summarizes data from a forthcoming article, on nine of twelve international courts of varied size, subject-matter jurisdiction, and global and regional membership, women made up 20 percent or less of the bench in mid 2015.2 On many of these courts, the percentage of women on the bench has stayed constant, vacillated, or even declined over time.3 Women made up a lower percentage of the bench in mid 2015 than in previous years …

Shattering The Glass Ceiling In International Adjudication, Nienke Grossman

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The Article shows that women are found in dramatically low numbers on the benches of the majority of the world’s most important international courts, analyzes the causes of this phenomenon and proposes and evaluates solutions. It establishes that the number of women in the pool of potential judges does not appear to dictate how many women become international judges. It shows, too, that when selection procedures are closed and opaque, and there is no quota or aspirational target for a sex-balanced bench, women obtain international judgeships in disproportionately low numbers. On the other hand, when a quota or aspirational target …

Inclusion To Exclusion: Women In Syria, Catherine Moore, Tarsila Talarico

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This Article will discuss the reasons for the shift from the inclusion of women as active participants in the Syrian revolution to their exclusion and marginalization throughout the conflict and during the recent Geneva Il peace negotiations. It will address how the lack of participation of women in such formal negotiations is hindering the peace process, drawing on the role of women, more generally and historically, in conflict resolution. The Article will provide best practices from prior conflicts and ways in which policymakers can improve participation of women in the peace process in Syria. The reinclusion of Syrian women is …

The Limits Of Judicial Mechanisms For Developing And Enforcing International Environmental Norms: Introductory Remarks, Nienke Grossman, Jacqueline Peel

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International courts and tribunals have played a key role in the development of principles and norms of international environmental law. Over the last two decades, such bodies have been asked to resolve a growing number of disputes that involve environmental issues. The types of issues considered by international courts and tribunals have also expanded in scope and complexity. For instance, disputes concerning environmental matters may involve claims of state responsibility, law of the sea questions, human rights issues, or trade and investment aspects.

The Proposed Damages Directive: The Real Lessons From The United States, Robert H. Lande

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Europeans should be doubly cautious when they study the U.S. experience with private antitrust enforcement. Nevertheless, there are ten specific lessons they can learn. None, however, is consistent with the conventional wisdom in the international competition community that U.S.-style private enforcement has been a disaster. Each should help Europe objectively consider the Commission's proposed Directive concerning private enforcement of Competition law.

Introduction To Intervention Under International Law, Mortimer N.S. Sellers

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The lawfulness or legitimacy of "external" intervention in the "internal" affairs of sovereign states is one of the most basic controversies in modern international law. The question arises in three separate but related forms: When is intervention lawful? When is intervention legitimate? And when should intervention occur? Discussion here will focus on the legal question, but legitimacy, morality, and brutal reality all form and sometimes trump the law. They dictate the parameters within which all legal determinations take place, including the legality of cross-border interventions. By "intervention" I mean any activity by one state or its agents that influences the …

The Game Changer: How The P5 Caused A Paradigm Shift In Norm Diffusion Post-9/11, Catherine Moore

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This Commentary recognizes a policy shift across nations of favoring national security over human rights and argues that smaller states were influenced by the key international decision makers, the Permanent Five Members (P5) of the United Nations Security Council, via norm diffusion. In doing so, it offers an alternative theory for how and why human rights norms have consistently been violated in the pursuit of security. Oppressive regimes have used the term “counterterrorism” or “national security” to justify rights violations because they see larger powers allowing these violations. This Commentary contends that the P5 are responsible for beginning this phenomenon …

The Normative Legitimacy Of International Courts, Nienke Grossman

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This Article’s objective is to spark discussion about the standards by which we judge international courts. Traditional justifications for the authority of international courts are based on outmoded assumptions of their role and impact. State consent and procedural fairness to litigants are insufficient to ground the legitimacy of institutions that may adjudicate the international rights and duties of nonlitigants, deeply affect the interests of nonlitigating stakeholders, and shape the law prospectively. These realities mandate a new approach to the legitimacy of international courts. This Article presents alternative or additional approaches for justifying the authority of international courts rooted in both …

The Bavarian Case For Registering Guns, James Maxeiner

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No abstract provided.

International Decisions: Territorial And Maritime Dispute (Nicaragua V. Colombia), Nienke Grossman

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No abstract provided.

Price-Fixing: Hefty Penalties On Big-Biz Cartels Will Provide Level Playing Field To Small Businesses, John M. Connor, Robert H. Lande

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Cartels are illegal in India, as they are almost everywhere. They are subject to heavy fines. Why, then, do businesses frequently try to fix prices? Because doing so usually is profitable. On average cartels raise prices by more than 20%, and probably face less than a 25% chance of being caught and convicted. Based upon a sample of 75 international cartels, the authors calculate that the expected profits from price fixing almost always exceed the penalties. No wonder businesses often try to fix prices.

Consumer Choice As The Best Way To Describe The Goals Of Competition Law, Robert H. Lande

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This article is both a short introduction to the Consumer Choice explanation for Competition Law or Antitrust Law, and also a short advocacy piece suggesting that Consumer Choice is the best way to articulate the goals of European Competition Law and United States Antitrust Law.

This article briefly:

1. defines the consumer choice approach to antitrust or competition law and shows how it differs from other approaches;
2. shows that the antitrust statutes and theories of violation embody a concern for optimal levels of consumer choice;
3. shows that the United States antitrust case law embodies a concern for optimal levels of consumer …

What Useful Role (If Any) Could Legal Positivism Play In The Study Or Advancement Of International Law?, Mortimer N.S. Sellers

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What useful role (if any) could legal positivism play in the study or advancement of international law? For most of those who remember this once fashionable term at all, "international legal positivism" is redolent of the early years of the twentieth century-of Lassa Oppenheim' at best, and at worst of his model, John Austin, who famously denied that international law is or ever could be genuine law at all, "properly so called." 2 "Positive" law in its central and most usual sense is law "set by a sovereign individual or a sovereign body ... to a person or persons in …

Sex On The Bench: Do Women Judges Matter To The Legitimacy Of International Courts?, Nienke Grossman

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This article seeks to advance our understanding of international courts' legitimacy and its relationship to who sits on the bench. It asks whether we should care that few women sit on international court benches. After providing statistics on women's participation on eleven of the world's most important courts and tribunals, the article argues that under-representation of one sex affects normative legitimacy because it endangers impartiality and introduces bias when men and women approach judging differently. Even if men and women do not think differently, a sex un-representative bench harms sociological legitimacy for constituencies who believe they do nonetheless. For groups …

Law – Made In Germany: Global Standort Or Global Standard?, James Maxeiner

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Earlier this year the Federal Ministry of Justice released the second edition of the brochure, Law - Made in Germany. For those readers who do not know the brochure, it is the product of an umbrella group of German professional organizations known as the Bündnis für das deutsche Recht. A purpose of the Bündnis, as stated at its founding in 2008, and of the brochure, is to improve the position of German law in the ― "international competition of legal systems" (internationalen Wettbewerb der Rechtsordnungen). Catalyst for founding of the Bündnis and for publication of Law - Made in Germany …

Thinking Like A Lawyer Abroad: Putting Justice Into Legal Reasoning, James Maxeiner

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Americans are taking new interest in legal reasoning. Thinking Like a Lawyer: A New Introduction to Legal Reasoning by Professor Frederick Schauer suggests why. According to Schauer, American legal methods often require decision-makers “to do something other than the right thing.” There has got to be a better way.

Now comes a book that offers Americans opportunities to look into a world where legal methods help decision-makers do the right thing. According to Reinhard Zippelius in his newly published Introduction to German Legal Methods, German legal methods help decision makers resolve legal problems “in a just and equitable manner.”

This …

Could This Train Make It Through: The Law And Strategy Of The Gold Train Case, Charles Tiefer, Jonathan W. Cuneo, Annie Reiner

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In 1944-45, the Nazis seized personal belongings of the Hungarian Jewish population and dispatched some of the most valuable of them on a train. The United States Army took control of this "Gold Train" and gave reassurances that it would keep the valuables safe. However, the items were plundered by individual soldiers, including officers, and diverted to various uses. After decades of dormancy, a Presidential Commission exposed the facts, but the government still did not right the wrong — until there was litigation.

The "Gold Train" case (Rosner v. United States) represents a measure of justice for the victimized community …

Making Fiction Of Facts In The Israeli Spy Case, Kenneth Lasson, Angelo Codevilla, Lawrence J. Korb, John Loftus

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The authors make the case that Jonathan Pollard, the man convicted of spying for Israel, is again being condemned by new allegations by Martin Peretz in a New Republic article, and by retired Navy Capt. M. E. Bowman. The authors of these new assertions may not know more of the particulars than others in high places who have already publicly supported commuting Pollard's sentence to time served.

No More 'Sha Still', Kenneth Lasson

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This op-ed laments the consequences of staying quiet in light of recent national and international events. It takes President Obama to task for blaming Israel for lack of progress in Middle East peace negotiations, as well as Congress for its ineptitude during the recent national debt ceiling negotiations.

Failure Of The Current Anti-Corruption Strategy In Afghanistan, Hugh Barrett Mcclean

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Corruption has come to the forefront in Afghanistan as the United States tries to balance efforts to back anti-corruption strategies while maintaining a positive relationship with the Karzai government. Stalled corruption cases suggest corruption in Afghanistan is systemic and not limited to a particular governing body or official. It is clear that corruption exists in both the upper and lower echelons of Afghan society, and will continue to exist until the U.S.-backed anti-corruption teams are accepted by the Afghan government. The strengthening of key institutions continues to be the recommended international model. As demonstrated in the United States, the integration …

Let My People Go!, Kenneth Lasson

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This short article discusses the continued imprisonment of Jonathan Pollard for spying for Israel, as well as that of Israeli soldier Gilad Shalit, imprisoned by Hamas. Also discussed are the inequalities of the negotiations for their release, leaving Israel and the U.S. in a bad light.

Civilizing American Civil Justice: International Insights, James Maxeiner, Gyooho Lee, Armin Weber

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In 1776, when Americans declared independence from Britain, they also declared their rights. Their declarations of rights count “open courts” as among the best means for constitutional development. Open courts should secure to every man, without regard to wealth, a just remedy for every wrong suffered, according to the law of the land, by fair and speedy procedure.

Since 1776 Americans have invested heavily in creating open courts. They have been disappointed by returns that fall “far short of perfection” (Maurice Rosenberg). They have found reform to be an “unending effort to perfect the imperfect” (Jay Tidmarsh).

That Americans have …

Can Congress Make A President Step Up A War?, Charles Tiefer

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May Congress use its appropriation power to direct the President to step up a war? When Congress uses its spending power for intensifying a war-stepping it up, pressing it more aggressively-against the resistance of a "less hawkish" Commander in Chief, who wins?

This Article posits differences of view in the 2010s toward the Afghanistan war as a way to revisit, generally, the history of constitutional disputes over war-related appropriation riders. Describing the differences in very simplistic terms, a "hawkish" opposition in Congress may gain political strength at any time, such as in 2010 or 2014, not necessarily because of the …

"Consumer Choice" Is Where We Are All Going - So Let's Go Together, Neil W. Averitt, Robert H. Lande, Paul Nihoul

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Globalisation of business makes it important for firms to predict how their behaviour is likely to be treated in the roughly 200 nations that have competition laws. In that context, a crucial question is: are we in a position to develop a common intellectual framework that would give coherence to policy statements made on specific competition related issues and, at the same time, be acceptable, broadly, in a variety of legal systems, not necessarily based on identical assumptions? We believe that the answer is “yes.” A concept is emerging as a possible source of unification for competition policies around the …

Sex Representation On The Bench: Legitimacy And International Criminal Courts, Nienke Grossman

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This essay examines the relationship between legitimacy and the presence of both male and female judges on international criminal court benches. It argues that sex representation – an approximate reflection of the ratio of the sexes in the general population – on the bench is an important contributor to legitimacy of international criminal courts. First, it proposes that sex representation affects normative legitimacy because men and women bring different perspectives to judging. Consequently, without both sexes, adjudication is inherently biased. Second, even if one rejects the proposition that men and women "think differently", sex representation affects sociological legitimacy because sex …

Book Review: The Sword And The Scales: The United States And International Courts And Tribunals, Nienke Grossman

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This is a book review of "The Sword and the Scales: The United States and International Courts and Tribunals," edited by Cesare P. R. Romano (Cambridge Univ. Press, 2010). The book provides in-depth analysis of the relationship between the United States and various of the world's most important international courts and tribunals. The review was written for a forthcoming issue of Climate Law.

Immigration As Invasion: Sovereignty, Security, And The Origins Of The Federal Immigration Power, Matthew Lindsay

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This Article offers a new interpretation of the modern federal immigration power. At the end of the nineteenth century, the Supreme Court and Congress fundamentally transformed the federal government’s authority to regulate immigration, from a species of commercial regulation firmly grounded in Congress’ commerce authority, into a power that was unmoored from the Constitution, derived from the nation’s “inherent sovereignty,” and subject to extraordinary judicial deference. This framework, which is commonly referred to as the “plenary power doctrine,” has stood for more than a century as an anomaly within American public law. The principal legal and rhetorical rationale for the …

Bloodstains On A "Code Of Honor": The Murderous Marginalization Of Women In The Islamic World, Kenneth Lasson

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In the real world of the Twenty-first Century, deep biases against women are prevalent in much of Muslim society. Although there is no explicit approval of honor killing in Islamic law (Sharia), its culture remains fundamentally patriarchal. As unfathomable as it is to Western minds, "honor killing" is a facet of traditional patriarchy, and its condonation can be traced largely to ancient tribal practices. Justifications for it can be found in the codes of Hammurabi and in the family law of the Roman Empire. Unfortunately, honor killings in the Twenty-first Century are not isolated incidents, nor can they be regarded …