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Articles 1 - 30 of 41
Full-Text Articles in Law
Anti-Carceral Human Rights Advocacy, Chi Adanna Mgbako, Nate Johnson, Vivienne Bang Brown, Megan Cheah, Kimya Zahedi
Anti-Carceral Human Rights Advocacy, Chi Adanna Mgbako, Nate Johnson, Vivienne Bang Brown, Megan Cheah, Kimya Zahedi
Faculty Scholarship
The theory of carceral abolition entered the mainstream during the 2020 global protests for Black lives. Abolition calls for divestment from carceral institutions like police and prisons in favor of the expansion of social and economic programs that ensure public safety and nurture community well-being. Although there is little scholarship explicitly linking abolition to international human rights, there are scholars and advocates who implicitly echo abolitionist theories by critiquing the international human rights regime's overreliance on criminal law. These critics argue that relying on carceral institutions to address impunity for human rights abuses and promote gender justice does little to …
Introduction To The Symposium On Feminist Approaches To International Law Thirty Years On: Still Alienating Oscar?, Catherine Powell, Adrien K. Wing
Introduction To The Symposium On Feminist Approaches To International Law Thirty Years On: Still Alienating Oscar?, Catherine Powell, Adrien K. Wing
Faculty Scholarship
No abstract provided.
Soft And Hard Strategies: The Role Of Business In The Crafting Of International Commercial Law, Susan Block-Lieb
Soft And Hard Strategies: The Role Of Business In The Crafting Of International Commercial Law, Susan Block-Lieb
Faculty Scholarship
Part I returns to the classic definition of hard international law initially put forward by Kenneth Abbott and Duncan Snidal and related IR scholars and analyzes existing commercial law treaties in light of this definition. It concludes that virtually none of these commercial law treaties constitute “hard” international law because nearly all commercial law treaties rely on national courts for enforcement. But Abbott and Snidal’s focus on the extent to which international law is legalized—and especially the extent to which it is enforced by international actors—may matter less with commercial than other more public international lawmaking. This is because the …
China After The Reform Era, Carl F. Minzner
China After The Reform Era, Carl F. Minzner
Faculty Scholarship
China’s reform era is ending. Core factors that characterized it – political stability, ideological openness, and rapid economic growth – are unraveling. In part, this is the result of Beijing’s steadfast refusal to contemplate fundamental political reform. Since the early 1990s, this has fueled the rise of entrenched interests within the Communist Party itself. It has also contributed to the systematic underdevelopment of institutions of governance among state and society at large. Now, to address looming problems confronting the nation, Chinese leaders are progressively cannibalizing institutional norms and practices that have formed the bedrock of the regime's stability in the …
Less Is More In International Private Law, Susan Block-Lieb, Terence C. Halliday
Less Is More In International Private Law, Susan Block-Lieb, Terence C. Halliday
Faculty Scholarship
No abstract provided.
Legitimacy And Expertise In Global Internet Governance, Olivier Sylvain
Legitimacy And Expertise In Global Internet Governance, Olivier Sylvain
Faculty Scholarship
Over the course of the past decade or so, attention among Internet policymakers and scholars has shifted gradually from substantive design principles to the structure of Internet governance. The Internet Corporation for Assigning Names and Numbers in particular now faces a new skepticism about its legitimacy to administer the essential Internet Assigned Numbers Authority function. ICANN has responded to these doubts by proposing a series of major governance reforms that would bring nation-states more into the organization's decisionmaking. After all, transnational governance institutions in other substantive areas privilege nation-states as a matter of course. This Symposium Essay shows that these …
Legal Reform In The Xi Jinping Era, Carl F. Minzner
Legal Reform In The Xi Jinping Era, Carl F. Minzner
Faculty Scholarship
In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The plenum decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This article attempts to do three things: (1) analyze how and why China’s …
Turnaround: Reflections On The Present Day Influence Of Negotiations On International Bankruptcy At The Fifth Session Of The Hague Conference On Private International Law In 1925, Susan Block-Lieb
Faculty Scholarship
In 1925, the British government sent a delegation to the Fifth Session of the Hague Conference on Private International Law. The Hague Conference had met sporadically since 1893,1 but this was the first time the British government sent a delegation to The Hague to discuss the possibility of a diplomatic convention to reach international agreement on uniform rules on what continental Europeans called “private international law” — matters of jurisdiction, applicable law and procedure. The British delegation held limited authority from the Home Office: it could participate only in deliberations on a possible convention on bankruptcy law, and then only …
The Law Of War And The Responsibility To Protect Civilians: A Reinterpretation, Thomas H. Lee
The Law Of War And The Responsibility To Protect Civilians: A Reinterpretation, Thomas H. Lee
Faculty Scholarship
Two seemingly unrelated crises implicating the law of war and the responsibility to protect civilians have arisen in recent years. In 2013, the United States considered military intervention without United Nations (“U.N.”) Security Council preapproval in Syria after discovering that the government had exterminated its own people with chemical agents. In 2014, Russia sent troops into Crimea, a part of Ukraine, to protect ethnic Russians that Russia claimed were in danger after a political coup in the country. In both cases, the military acts contemplated or undertaken were of dubious legality, albeit under different rubrics. This Article aims to show …
Whose Trojan Horse? The Dynamics Of Resistance Against Ifrs, Martin Gelter, Zehra Kavame Eroglu
Whose Trojan Horse? The Dynamics Of Resistance Against Ifrs, Martin Gelter, Zehra Kavame Eroglu
Faculty Scholarship
The introduction of International Financial Reporting Standards (“IFRS”) has been debated in the United States since at least the accounting scandals of the early 2000s. While publicly traded firms around the world are increasingly switching to IFRS, often because they are required to do so by law or by their stock exchange, the Securities Exchange Com-mission (“SEC”) seems to have become more reticent in recent years. Only foreign issuers have been permitted to use IFRS in the United States since 2007. By contrast, the EU has mandated the use of IFRS in the consolidated financial statements of publicly traded firms …
Who Governs? Delegations In Global Trade Lawmaking, Terence C. Halliday, Josh Pacewicz, Susan Block-Lieb
Who Governs? Delegations In Global Trade Lawmaking, Terence C. Halliday, Josh Pacewicz, Susan Block-Lieb
Faculty Scholarship
Who governs international trade law regimes? Although this question has attracted much research for global regulatory regimes, very little is known about international trade law organizations which function as global legislatures. This paper focuses on hitherto invisible attributes of the inner core of global legislators - the state and non-state delegations and delegations that create global norms for private international trade law through the most prominent global trade legislature, the United Nations Commission on International Trade Law (UNCITRAL). Based on ten years of fieldwork, extensive interviews, and unique data on delegation attendance and participation in UNCITRAL’s Working Group on Insolvency, …
The Chevron-Ecuador Dispute, Forum Non Conveniens, And The Problem Of Ex Ante Inadequacy, Howard M. Erichson
The Chevron-Ecuador Dispute, Forum Non Conveniens, And The Problem Of Ex Ante Inadequacy, Howard M. Erichson
Faculty Scholarship
These opening lines from Chevron's website of "facts about Chevron and Texaco in Ecuador" refer to the latest salvo in a long-running environmental dispute concerning a Texaco subsidiary's Ecuadorian oil-drilling activities. Chevron resisted enforcement in the United States of an Ecuadorian court's $18 billion judgment, and the plaintiffs are seeking to enforce the judgment against Chevron in various courts around the world. Chevron's account suggests that the plaintiffs' lawyers are engaged in improper forum-shopping. The plaintiffs'lawyers, according to Chevron, ought to pursue enforcement of the judgment in the United States.
Trademark Cosmopolitanism, Sonia K. Katyal
Trademark Cosmopolitanism, Sonia K. Katyal
Faculty Scholarship
The world of global trademarks can be characterized in terms of three major shifts: first, a shift from national to global branding strategies; second, a shift from national and regional systems to harmonized international regimes governing trademark law; and third, a concurrent shift from local to transnational social movements that challenge branding and other corporate practices. The rise of transnational brands brings with it an attendant series of legal shifts in trademark law. Long considered the stepchild of intellectual property law, today, trademark law has morphed into a powerful global legal phenomenon, revealing a foundational shift from national and regional …
Supranational? Federal? Intergovernmental? The Governmental Structure Of The European Union After The Treaty Of Lisbon, Roger J. Goebel
Supranational? Federal? Intergovernmental? The Governmental Structure Of The European Union After The Treaty Of Lisbon, Roger J. Goebel
Faculty Scholarship
The goal of this article is to provide an overview of the progressive augmentation of the supranational character of the governmental structure of the initial EEC, gradually evolving into the present European Union, particularly as a consequence of revisions to the constituent Treaties. Part I of this article presents the European Commission, the initial institution whose structure and operations have always been markedly supranational in character and which has always been dedicated to the promotion of supranational goals. Part II examines the Council of Ministers, the political institution that is intrinsically intergovernmental in character, but whose operational role in the …
International Law And Institutions And The American Constitution In War And Peace, Thomas H. Lee
International Law And Institutions And The American Constitution In War And Peace, Thomas H. Lee
Faculty Scholarship
This Article describes how international law and institutions are not necessarily incompatible with U.S. sovereign interests today and how they were historically accepted as valid inputs to interpreting and implementing the Constitution during the founding and infancy of the United States and through the Civil War.
China At The Tipping Point? The Tum Against Legal Reform, Carl F. Minzner
China At The Tipping Point? The Tum Against Legal Reform, Carl F. Minzner
Faculty Scholarship
No abstract provided.
Is Europe Headed Down The Primrose Path With Mandatory Mediation, Jacqueline Nolan-Haley
Is Europe Headed Down The Primrose Path With Mandatory Mediation, Jacqueline Nolan-Haley
Faculty Scholarship
No abstract provided.
Libya: A Multilateral Constitutional Moment?, Catherine Powell
Libya: A Multilateral Constitutional Moment?, Catherine Powell
Faculty Scholarship
The Libya intervention of 2011 marked the first time that the UN Security Council invoked the “responsibility to protect” principle (RtoP) to authorize use of force by UN member states. In this comment the author argues that the Security Council’s invocation of RtoP in the midst of the Libyan crisis significantly deepens the broader, ongoing transformation in the international law system’s approach to sovereignty and civilian protection. This transformation away from the traditional Westphalian notion of sovereignty has been unfolding for decades, but the Libyan case represents a further normative shift from sovereignty as a right to sovereignty as a …
Evaluating The Palestinians’ Claimed Right Of Return, Andrew Kent
Evaluating The Palestinians’ Claimed Right Of Return, Andrew Kent
Faculty Scholarship
This Article takes on a question at the heart of the longstanding Israeli-Palestinian dispute: did Israel violate international law during the conflict of 1947-49 either by expelling Palestinian civilians or by subsequently refusing to repatriate Palestinian refugees? Palestinians have claimed that Israel engaged in illegal ethnic cleansing, and that international law provides a "right of return" for the refugees displaced during what they call al-Nakbah (the catastrophe). Israel has disagreed, blaming Arab aggression and unilateral decisions by Arab inhabitants for the refugees' flight, and asserting that international law provides no right of the refugees to return to Israel. Each side …
Tinkering With Torture In The Aftermath Of Hamdan: Testing The Relationship Between Internationalism And Constitutionalism , Catherine Powell
Tinkering With Torture In The Aftermath Of Hamdan: Testing The Relationship Between Internationalism And Constitutionalism , Catherine Powell
Faculty Scholarship
Bridging international and constitutional law scholarship, the author examines the question of torture in light of democratic values. The focus in this article is on the international prohibition on torture as this norm was addressed through the political process in the aftermath of Hamdan v. Rumsfeld. Responding to charges that the international torture prohibition -- and international law generally -- poses irreconcilable challenges for democracy and our constitutional framework, the author contends that by promoting respect for fundamental rights and for minorities and outsiders, international law actually facilitates a broad conception of democracy and constitutionalism. She takes on the question …
Constraining Dominant Shareholders' Self-Dealing: The Legal Framework In France, Germany, And Italy , Pierre-Henri Conac, Luca Enriques, Martin Gelter
Constraining Dominant Shareholders' Self-Dealing: The Legal Framework In France, Germany, And Italy , Pierre-Henri Conac, Luca Enriques, Martin Gelter
Faculty Scholarship
All jurisdictions supply corporations with legal tools to prevent or punish asset diversion by those, whether managers or dominant shareholders, who are in control. As previous research has shown, these rules, doctrines and remedies are far from uniform across jurisdictions, possibly leading to significant differences in the degree of investor protection they provide. Comparative research in this field is wrought with difficulty. It is tempting to compare corporate laws by taking one benchmark jurisdiction, typically the US, and to assess the quality of other corporate law systems depending on how much they replicate some prominent features. We take a different …
Congress’S Under-Appreciated Power To Define And Punish Offenses Against The Law Of Nations, Andrew Kent
Congress’S Under-Appreciated Power To Define And Punish Offenses Against The Law Of Nations, Andrew Kent
Faculty Scholarship
Perhaps no Article I power of Congress is less understood than the power to define and punish . . . Offences against the Law of Nations. There are few scholarly works about the Clause; Congress, the Supreme Court, and the Executive Branch have seldom interpreted the Clause, and even then they have done so in a cursory and contradictory manner. Relying on textual analysis and Founding-era history and political theory to read the Clause in a different mannner than previous commentators, this Article seeks to rescue the Clause from obscurity and thereby enrich current foreign affairs debates. Not only is …
Safe-Conduct Theory Of The Alien Tort Statute, The, Thomas H. Lee
Safe-Conduct Theory Of The Alien Tort Statute, The, Thomas H. Lee
Faculty Scholarship
In this Article, Professor Lee introduces a novel explanation of the Alien Tort Statute (ATS) - a founding-era enactment that has achieved modern prominence as a vehicle for international human rights litigation. He demonstrates how the statute was intended to address violations of something called a "safe conduct" - a sovereign promise of safety to aliens from injury to their persons and property. The safe-conduct theory advances a new modern role for the ATS to redress torts committed by private actors - including aliens - with a U.S. sovereign nexus, and not for international law violations committed by anyone anywhere. …
Self-Determination In International Mediation: Some Preliminary Reflections , Jacqueline Nolan-Haley
Self-Determination In International Mediation: Some Preliminary Reflections , Jacqueline Nolan-Haley
Faculty Scholarship
Few concepts have generated as much discussion in the post-war international legal system as that of “self-determination.” Scholars debate the proper identity of the "selves" endowed with this right, its boundaries, and its normative relevance. When the focus turns to mediation, the discussion becomes murky because the concept of self-determination has both procedural and substantive components, and is noticeably different in the private and public sectors. The generic concept of self-determination relates to ideas of democratic governance and the Enlightenment belief that legitimate government depends upon the consent of the governed. As adapted to private mediation theory, the right of …
Law, Politics, And Impeachment: The Impeachment Of Roh Moo-Hyun From A Comparative Constitutional Perspective , Youngjae Lee
Law, Politics, And Impeachment: The Impeachment Of Roh Moo-Hyun From A Comparative Constitutional Perspective , Youngjae Lee
Faculty Scholarship
In March 2004, the National Assembly of South Korea impeached President Roh Moo-hyun and brought about an immediate suspension of Roh's presidency. Two months later, the Constitutional Court of Korea restored the status quo by dismissing the impeachment and reinstating the President. This episode marks the first time in the history of modern constitutionalism that a president impeached by a legislative body has been reinstated by a judicial body. This Article focuses on one slice of this remarkable turn of events: its constitutional dimension from the perspective of comparative constitutional law. After explaining the Constitutional Court's decision, this Article discusses …
The Simplification Of International Data Privacy Rules, Joel R. Reidenberg
The Simplification Of International Data Privacy Rules, Joel R. Reidenberg
Faculty Scholarship
The variation and complexity of national data privacy rules pose significant challenges for international data flows. Data protection laws range from ad hoc narrow legal rights, like those found in the United States, to comprehensive fair information practice statutes like those found in Europe. Because data processing frequently occurs across national borders, multiple data protection laws might apply simultaneously to international data flows. At the same time, data protection regimes may prohibit the circumvention of national standards by processing personal information at a foreign site. Global information processing thus presents a data controller with important burdens and obstacles related to …
Role Of The Bank For International Settlements In Shaping The World Financial System, The , Carl Felsenfeld, Genci Bilali
Role Of The Bank For International Settlements In Shaping The World Financial System, The , Carl Felsenfeld, Genci Bilali
Faculty Scholarship
The Bank for International Settlements ("BIS") was set up in Basel, Switzerland in 1923 to handle remaining financial issues from World War II largely having to do with German reparation payments. It was the first of the semi-public international banks. Over the years its functions have changed and, largely since the late 1970's, it has served as the situs for the world's central banks and financial regulators to pool ideas and deal with international financial issues. A group of committees, com- posed largely of representatives of central bankers, now meets at BIS and has been issuing memoranda and drafts of …
International Law, International Relations Theory, And Preemptive War: The Vitality Of Sovereign Equallity Today Case Studies In Conservative And Progressive Legal Orders, Thomas H. Lee
Faculty Scholarship
Although sovereign equality - the norm that all sovereign states are entitled to the same bundle of rights on the international plane - has long been a central norm of international law, its retention in the realm of preemptive war is fairly to be questioned when one sovereign state possesses overwhelming military power. In this Article, Professor Lee examines the historical and normative foundations of sovereign equality, finds them wanting under the condition of a militarily supreme republican state, but defends the norm on the pragmatic ground of what is best for the supreme state to defend itself against covert, …
Vultures Or Vanguards: The Role Of Litigation In Sovereign Debt Restructuring Conference On Sovereign Debt Restructuring: The View From The Legal Academy, Jill E. Fisch, Caroline M. Gentile
Vultures Or Vanguards: The Role Of Litigation In Sovereign Debt Restructuring Conference On Sovereign Debt Restructuring: The View From The Legal Academy, Jill E. Fisch, Caroline M. Gentile
Faculty Scholarship
The market for sovereign debt differs from the market for corporate debt in several important ways including the risk of opportunistic default by sovereign debtors, the importance of political pressures, and the presence of international development organizations. Moreover, countries are subject to neither liquidation nor standardized processes of debt reorganization. Instead, negotiations between a sovereign debtor and its creditors lead to a voluntary restructuring of the sovereign's debt. One of the greatest difficulties in restructuring claims against sovereign debtors is balancing the interests of the majority of the creditors with those of minority creditors. Holdout creditors serve as a check …
Supreme Court Of The United States As Quasi-International Tribunal: Reclaiming The Court's Original And Exclusive Jurisdiction Over Treaty-Based Suits By Foreign States Against States, The, Thomas H. Lee
Faculty Scholarship
The thesis of this Article is that the Constitution vests in the Supreme Court original and exclusive jurisdiction over suits brought by foreign states against States alleging violation of ratified treaties of the United States. The basis for non-immunity in suits by foreign states is the same theory of ratification consent that is presumed to justify suits against States by other States or the United States. Just as the States by ratifying the Constitution agreed to suits in the national court by other States and the national sovereign to ensure domestic peace, they agreed to suits by foreign states in …