Law Commons^™

Russia, Ukraine, And The Future World Order, Ingrid W. Brunk, Monica Hakimi

Vanderbilt Law School Faculty Publications

Russia's invasion of Ukraine, initiated on February 24, 2022, is among the most—if not the most—significant shocks to the global order since World War II. This piece assesses the stakes of the invasion for the core principles that lie at the heart of contemporary international law and the world order that it has helped to create. We argue, relying in part on the other contributions to the October 2022 agora on Ukraine in the American Journal of International Law, that however this war ends, it will reshape, in ways large and small, the world we all inhabit.

The Supreme Court And Refugees At The Southern Border: 5 Questions Answered, Karla Mckanders

Vanderbilt Law School Faculty Publications

I sat in a small room in Tijuana, Mexico with a 13-year-old indigenous Mayan Guatemalan girl.

She left Guatemala after a cartel murdered her friend and threatened to rape her. Her mother wanted her to live and believed the only way for her to survive was to send her daughter alone to the U.S., to apply for asylum Now she was alone and stuck in Mexico. Every morning, the Guatemalan girl, along with other asylum seekers, would frantically gather at the Tijuana-U.S. border where they waited to hear their name or their number called so the Mexican government could escort …

Trade And The Separation Of Powers, Timothy Meyer, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I authorities over commercial matters. The second paradigm sees trade law as fundamentally about America’s relationship with foreign countries. Institutionally, under the foreign affairs paradigm, trade law is the province of the President, who speaks for the United States in foreign affairs. While both paradigms have operated throughout American history, the domestic …

International Human Rights Law: An Unexpected Threat To Peace, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

It is a great honor to deliver this lecture in honor of the late Dean Robert F. Boden. I am grateful to all of you for attending. My topic tonight is international law and peace among nations. It may seem a poor fit for a lecture honoring Dean Boden. I did not know him, but I have read that Dean Boden was passionately dedicated to teaching law students about the actual day-to-day practice of law. He believed that law schools should be focused on that sort of professional training—not on policy questions or preparing students to be “architects of society,” …

The Future Of The Federal Common Law Of Foreign Relations, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

The federal common law of foreign relations has been in decline for decades. The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges should displace state law when they conclude that it poses difficulties for U.S. foreign relations. Today, however, customary international law is generally applied based upon the implied intentions of Congress, rather than its free-standing status as federal common law, and judicial evaluation of foreign policy problems has largely been replaced by reliance upon presidential or congressional action, or by standard constitutional …

The Normalization Of Foreign Relations Law, Ganesh Sitaraman, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

The defining feature of foreign relations law is that it is distinct from domestic law. Courts have recognized that foreign affairs are political by their nature and thus unsuited to adjudication, that state and local involvement is inappropriate in foreign affairs, and that the President has the lead role in foreign policymaking. In other words, they have said that foreign relations are exceptional. But foreign relations exceptionalism, "the belief that legal issues arising from foreign relations are functionally, doctrinally, and even methodologically distinct from those arising in domestic policy,” was not always the prevailing view. In the early twentieth century, …

The Supreme Court And The Alien Tort Statute: Kiobel V. Royal Dutch Petroleum Co., Ingrid W. Brunk

Vanderbilt Law School Faculty Publications

Alien Tort Statute litigation has generated a growing number of questions about the the scope of statute, but in Kiobel v. Royal Dutch Petroleum Co. the Supreme Court finally answered one of them: the presumption against extraterritoriality applies to the statute. Going forward, courts may apply a robust version of the presumption, effectively ending ATS litigation as we currently know it. Or, they may not. The Court’s citations to Morrison v. Nat’l Austl. Bank Ltd. suggest the former; some language in the various opinions suggests the latter. This article explores these uncertainties and also discusses additional factors that may be …

The Role Of Courts In "Making" Law In Japan: The Communitarian Conservatism Of Japanese Judges, John O. Haley

Vanderbilt Law School Faculty Publications

Professor Haley is an outstanding international and comparative law scholars, widely credited with having popularized Japanese legal studies in the United States. In 1969, Haley received a fellowship from the University of Washington and was in one of the first classes to graduate from the Asian Law Program, now, the Asian Law Center. After working for several years in law firms in Japan, he joined the law faculty at the University of Washington, where he remained for nearly twenty-six years during which time he directed the Asian and Comparative Law Program. In June 2012, Professor Haley was awarded The Order …

Reflections On The University Of Washington's Asian Law Center, John O. Haley

Vanderbilt Law School Faculty Publications

In June 2012, Professor Haley was awarded the Order of the Rising Sun (3rd Class) from the Emperor of Japan for his contribution to the discipline of Japanese law and education to Japanese legal professionals and academics. In honor of this achievement, the University of Washington School of Law and Asian Law Center brought together distinguished scholars and Asian Law Center alumni to discuss the judiciary's increased role in Japan and Asia in two conferences. What follows is Professor Haley's address at the University of Washington School of Law, on October 19, 2012. In this speech, Professor Haley provides a …

The Law Of War In The War Against Terrorism, Michael A. Newton

Vanderbilt Law School Faculty Publications

The struggle to define the contours of the legal regime and to correctly communicate those expectations to the broader audience of civilians is a recurring problem that is integrally related to the current evolution of warfare. Shaping the expectations and perceptions of the political elites who control the contours of the conflict is perhaps equally vital. The paradox is that as the legal regime applicable to the conduct of hostilities has matured over the last century, the legal dimension of conflict has at times overshadowed the armed struggle between adversaries. As a result, the overall military mission will often be …

Constitutional Adjudication In Japan: Context, Structures, And Values, John O. Haley

Vanderbilt Law School Faculty Publications

Judges in Japan share the prevailing communitarian orientation of their society, an orientation that rejects Manichean choices and moral or "scientific" absolutes, but instead relies on their collective and individual perceptions of community values, including the global community, shared by peers. They also, I believe, accept an unstated premise that legislative and administrative decisions reflect a consensus among the participants--not a simple majority. The issue remains as to who participates--who sits at the table--but the political and administrative processes do not routinely require merely fifty-one out of a hundred votes. As a consequence, judges are cautiously conservative. They adhere to …

The Specter Of Sisyphus: Re-Making International Financial Regulation After The Global Financial Crisis, Yesha Yadav

Vanderbilt Law School Faculty Publications

The global financial crisis is forcing a thorough re-evaluation of the international regulatory architecture. The crisis has shown not only the cracks in regulatory oversight, but also a market operation that had long outgrown and outwitted its overseers. This Article has argued that the international financial market may be seen as having its own distinct personality, the recent expansion bringing with it a unique set of regulatory risks. Accordingly, just as with domestic regulatory systems, the regulation of the international financial marketplace ought to be rooted in the legal and economic rationales that have been advanced in support of financial …

The Complementarity Conundrum: Are We Watching Evolution Or Evisceration?, Michael A. Newton

Vanderbilt Law School Faculty Publications

The Rome Statute nowhere defines the term "complementarity, " but the plain text of Article 1 compels the conclusion that the International Criminal Court was intended to supplement the foundation of domestic punishment for violations of international norms rather than supplant domestic prosecutions. The practice of complementarity may well be the fulcrum supporting the Court's long term legitimacy; and this principle is all the more important because it is designed to provide intellectual leverage to move non-States Party towards treaty accession. The Rome Statute curtails sovereign authority by displacing domestic trials only in exceptional circumstances, and it includes detailed procedural …

Reconsidering Reprisals, Michael A. Newton

Vanderbilt Law School Faculty Publications

The prohibition on the use of reprisals is widely regarded as one of the most sacrosanct statements of the jus in bello applicable to the conduct of modern hostilities. The textual formulations are stark and subject to no derogations. Supporters of the bright line ban describe it as a vital bulwark against barbarity. In the words of the International Committee of the Red Cross, the prohibition is absolute, despite the fact that the declarations of key states indicate residual ambiguity over the scope of permissible reprisals, particularly in the context of non-international armed conflicts. Reprisals are a recurring feature of …

Illustrating Illegitimate Lawfare, Michael A. Newton

Vanderbilt Law School Faculty Publications

Lawfare that erodes the good faith application of the laws and customs of warfare is illegitimate and untenable. This essay outlines the contours of such illegitimate lawfare and provides current examples to guide practitioners. Clearly addressing the terminological imprecision in current understandings of lawfare, this essay is intended to help prevent further erosion of the corpus of jus in bello. Words matter, particularly when they are charged with legal significance and purport to convey legal rights and obligations. When purported legal “developments” actually undermine respect for the application and enforcement of humanitarian law, they are illegitimate. Although the laws and …

Climate Change Governance: Boundaries And Leakage, Michael P. Vandenbergh, Mark A. Cohen

Vanderbilt Law School Faculty Publications

This article provides a critical missing piece to the global climate change governance puzzle: how to create incentives for the major developing countries to reduce carbon emissions. The major developing countries are projected to account for 80% of the global emissions growth over the next several decades, and substantial reductions in the risk of catastrophic climate change will not be possible without a change in this emissions path. Yet the global climate governance measures proposed to date have not succeeded and may be locking in disincentives as carbon-intensive production shifts from developed to developing countries. A multi-pronged governance approach will …

Locating The International Interest In Intranational Cultural Property Disputes, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

This Article considers the extent to which there may be an international interest in how intranational disputes over cultural property are settled. Drawing on the norms underlying recent global scrutiny of states’ destruction of cultural objects located within their own territory, I identify two factors that may justify internationalizing otherwise domestic conflicts over cultural property: discriminatory intent and harm to cultural diversity. I argue that where neither of these concerns is implicated, the international community should pursue a policy of non-intervention, both because local authorities are likely to be more competent adjudicators and because eliciting a global referendum on cultural …

Exceptional Engagement: Protocol I And A World United Against Terrorism, Michael A. Newton

Vanderbilt Law School Faculty Publications

This article challenges the prevailing view that U.S. "exceptionalism" provides the strongest narrative for the U.S. rejection of Additional Protocol I to the 1949 Geneva Conventions. The United States chose not to adopt the Protocol in the face of intensive international criticism because of its policy conclusions that the text contained overly expansive provisions resulting from politicized pressure to accord protection to terrorists who elected to conduct hostile military operations outside the established legal framework. The United States concluded that the commingling of the regime criminalizing terrorist acts with the jus in bello rules of humanitarian law would be untenable …

Soft Law As Delegation, Timothy Meyer

Vanderbilt Law School Faculty Publications

This article examines one of the most important trends in international legal governance since the end of the Second World War: the rise of "soft law," or legally non-binding instruments. Scholars studying the design of international agreements have long puzzled over why states use soft law. The decision to make an agreement or obligation legally binding is within the control of the states negotiating the content of the legal obligations. Basic contract theory predicts that parties to a contract would want their agreement to be as credible as possible, to ensure optimal incentives to perform. It is therefore odd that …

Of Clusters And Assumptions: Innovation As Part Of A Full Trips Implementation, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Because TRIPS introduced a high(er) level of intellectual property protection in a number of developing countries, it provides an opportunity to examine the impact of the introduction of (property) rights on a variety of intangibles in legal systems from which those rights were absent. One question is whether, and if so how, 18th century European rules, updated in concert with other Western nations until 1989, can be successfully integrated into the social, cultural, economic and legal fabric of dozens of developing nations, and how success is measured in that context. TRIPS also allows us to consider the impact of high(er) …

Of Silos And Constellations: Comparing Notions Of Originality In Copyright Law, Daniel J. Gervais, Elizabeth F. Judge

Vanderbilt Law School Faculty Publications

Originality is a central theme in the efforts to understand human evolution, thinking, innovation, and creativity. Artists strive to be "original," however the term is understood by each of them. It is also one of the major concepts in copyright law. This paper considers the evolution of the notion of originality since 2002 (when one of the coauthors published an article entitled Feist Goes Global: A Comparative Analysis Of The Notion Of Originality In Copyright Law) and continues the analysis, in particular whether the notion of "creative choices," which seems to have substantial normative heft in several jurisdictions, is optimal …

Climate Change: The China Problem, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

The central problem confronting climate change scholars and policymakers is how to create incentives for China and the United States to make prompt, large emissions reductions. China recently surpassed the United States as the largest greenhouse gas emitter, and its projected future emissions far outstrip those of any other nation. Although the United States has been the largest emitter for years, China's emissions have enabled critics in the United States to argue that domestic reductions will be ineffective and will transfer jobs to China. These two aspects of the China Problem, Chinese emissions and their influence on the political process …

Rethinking Contract Practice And Law In Japan, John O. Haley

Vanderbilt Law School Faculty Publications

This article explores "the Japanese advantage" in the enforcement of ex ante contract commitments in comparison with the United States, arguing that ostensible convergence of Japanese and United States contract practice in on-going business relationships is based on very different assumptions and conditions. Writing in the early 1960s Takeyoshi KaWashima in Japan and Stewart Macaulay in the United States described prevailing views and practices related to business agreements. Their respective observations indicated a tendency in both countries to avoid formal, legally enforceable contacts. For over four decades scholars on both sides of the Pacific have tended view these observations as …

Making Copyright Whole: A Principled Approach To Copyright Exceptions And Limitations, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This Article suggests a path to develop a principled conceptualization for copyright of limitations and exceptions at the international level. The paper argues that, normatively, copyright has always sought to reflect a balance between protection and access. It demonstrates that this balance was present to the minds of the negotiators of the 1886 Berne Convention for the Protection of Literary and Artistic Works and may have been somewhat overlooked in revisions of the Convention. It was ultimately replaced by a three-step test designed to restrict the ability of individual legislators to create limitations and exceptions. The article also considers the …

The Iraqi High Criminal Court: Controversy And Contributions, Michael A. Newton

Vanderbilt Law School Faculty Publications

The Iraqi High Criminal Court established to prosecute Saddam Hussein and other leading Ba’athists is one of the most visible of the current efforts to establish criminal accountability for violations of international norms. Juxtaposed against other tribunals, the High Criminal Court has provoked worldwide debate over its processes and its prospects for returning societal stability founded on respect for human rights and the rule of law to Iraq. This article explores in detail the legal basis for the formation of the High Criminal Court under the law of occupation. It addresses the relationship between the Iraqi model of prosecuting crimes …

The Iraqi Special Tribunal: A Human Rights Perspective, Michael A. Newton

Vanderbilt Law School Faculty Publications

The creation of the Iraqi Special Tribunal in December 2003 by Iraqi authorities who were at the time under the legal occupation of the Coalition Provisional Authority marked the emergence of a new form of internationalized domestic tribunals. The Iraqis succeeded in incorporating the full range of modern crimes into their domestic codes alongside some carefully selected domestic offenses, while amending domestic procedural law in some key ways to align the process with established international law related to the provision of full and fair trials. The subsequent investigations and the beginning of trial proceedings generated major debates about the legitimacy …

Waging War: Japan's Constitutional Constraints, John O. Haley

Vanderbilt Law School Faculty Publications

Both electoral results and public opinion polls have long revealed what most observers have viewed as a paradox if not a contradiction. By significant majorities, the Japanese people appear to oppose any revision of article 9, but support the SDF and their deployment with legislative sanction. The seemingly antithetical aspects of these views can be reconciled if one accepts the proposition that the public is willing to allow an armed force but only within parameters that are still ill-defined. So long as article 9 remains, the government is constrained by the need for legislative approval and at least potential judicial …

The Purpose Of Copyright Law In Canada, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

IN THREE RECENT CASES, the Supreme Court of Canada provided several pieces of the Canadian copyright policy puzzle. We now know that the economic purpose of copyright law is instrumentalist in nature, namely, to ensure the orderly production and distribution of, and access to, works of art and intellect. The Court added that copyright can not enter carelessly into the private sphere of individual users. By targeting end-users in recent lawsuits, copyright holders have also found out that it is difficult to enforce a right that has not been properly internalized. After reviewing the Supreme Court trilogy of cases, the …

International Criminal Law Aspects Of The War Against Terrorism, Michael A. Newton

Vanderbilt Law School Faculty Publications

The debates about forums and processes for prosecuting those accused of terrorist acts have resonated across the globe since September 11, 2001. Discussion is likely to intensify in this regard in preparation for the International Criminal Court Review Conference in 2009. The proper disposition of criminal cases against terrorists is linked to the deeper disputes regarding the applicability of the established frameworks for regulating conflicts and the status of those who have no lawful right to wage war, yet choose to conduct hostilities against sovereign states. This article assesses the established frameworks for addressing transnational terrorist acts in which the …