Law Commons^™

American Exceptionalism: The Exception Proves The Rule American, Philip C. Bobbitt

Faculty Scholarship

As a statement about proof, the phrase 'the exception proves the rule' is nonsense. Proof comes from the affirmation of a meaningful proposition, and behavior that contradicts a rule can scarcely be said to confirm it. But consider instead that the word 'prove' at one time meant 'provide,' and then make the substitution. Does the exception provide the rule? Indeed it does. It tells us the boundary conditions for the application of the rule: IT' before "e" except after "c"; months have thirty or thirty-one days, excepting February. This is the case even, perhaps especially, in law: all persons born …

The Law And The Non-Law, Katharina Pistor

Faculty Scholarship

The common theme of the articles assembled for this issue is a focus on Asian societies and their struggle with the conceptualization of "non-law" and its relation to law. This brief Comment reflects on the construction of the "non-law" as analytical categories in the four contributions. It suggests that the struggle with "non-law" reflects a deeper confusion about the role of law in ordering social relations broadly defined.' Focusing on the "non-law" assumes implicitly that "law" is a useful and well-delineated category for analyzing governance structures within and across states and thus can serve as a benchmark for analyzing "non-law." …

Agora: Icj Advisory Opinion On Construction Of A Wall In The Occupied Palestinian Territory: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

Only rarely does an international judicial opinion attract attention on the front pages of newspapers around the world, and spur activism-or condemnation-from diverse segments of global civil society. The advisory opinion of the International Court of Justice Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory is such a case. As the Court recognized in addressing the question put to it by the United Nations General Assembly, the choice of the term "wall" to designate the subject matter of the proceeding already opens up an area of debate, since not all of the contested structure is …

The Ethics Of Empire, Again, Jedediah S. Purdy

Faculty Scholarship

Noah Feldman has emerged as one of the most serious and thoughtful contributors to U.S. strategy in the age of terrorism and counterterrorism. Professor Feldman spent a good chunk of 2003 in Baghdad as a constitutional advisor to the Iraqi Governing Council, which was established under the occupation government of Ambassador Paul Bremer. Since then, Feldman has become an important commentator on U.S. policy in Iraq. Many young political operatives cycled through Iraq in 2003 and 2004, but Feldman was unusually well qualified for his position. He holds a degree in Islamic thought, speaks fluent Arabic, and specializes in the …

An Idea Whose Time Has Come – But Where Will It Go, Jane C. Ginsburg

Faculty Scholarship

This Reply picks up where Professor Miller's bold proposal leaves off: with the private international law and international copyright implications of state common law protection for idea-submitters. We will first address the compatibility of the proposal with international copyright norms disqualifying ideas from copyright protection. We will then turn to the consequences of the proposal for a federal system. Professor Miller's article thoroughly examines one aspect of the federalism problem, that of federal copyright policy preemption of statebased idea protection. But in advocating a regime constricted to the fifty separate states, not all of whose courts choose to secure idea …

Global Democracy, Joshua Cohen, Charles F. Sabel

Faculty Scholarship

In this Article, we describe an emerging arena of global administration. We claim that this arena, not bounded by a state, raises accountability problems of a kind different from those addressed by conventional administrative law. And we argue that measures designed to address these problems will have potentially large implications for democratic theory and practice.

Our argument starts from the premise – stated here without nuance – that something new is happening politically beyond the borders of individual states and irreducible to their voluntary interactions. To distinguish these developments from what is commonly called "international law and politics," we use …

Legal Status And Rights Of Undocumented Workers: Advisory Opinion Oc-18, Sarah H. Cleveland

Faculty Scholarship

In Advisory Opinion OC-18 of September 17, 2003, the Inter-American Court of Human Rights ruled that international principles of nondiscrimination prohibit discriminating against undocumented migrant workers in the terms and conditions of work. The Court acknowledged that governments have the sovereign right to deny employment to undocumented immigrants, but held that such workers are equally protected by human rights in the workplace once an employment relationship is initiated. In other words, states may not further their immigration policies by denying basic workplace protections to undocumented employees.

Introduction By George A. Bermann, George A. Bermann

Faculty Scholarship

The accountability of states and state actors on the international scene is on a forward march. The fora in which this development is playing itself out are multiple: national courts of the state actor, national courts of other states, international tribunals of a more or less public law variety, private international law tribunals, and all manner of hybrids.

Medellin V. Dretke: Federalism And International Law, Curtis Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This evening, we're going to have, at the very least, a discussion which may blossom into a debate-we will see as the evening progresses. However one characterizes the event, we're here to discuss the Medellin v. Dretke case and, more broadly, we are going to be discussing cutting edge issues of international law, including the operation of self-executing treaties and state legal systems, the weight to be given to judgments of international courts interpreting such treaties, and the duties of state and federal judiciaries in this process, all in the context of death penalty cases. Let me give you a …