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Human Rights Racism, Anna Spain Bradley Jan 2019

Human Rights Racism, Anna Spain Bradley

Articles

International human rights law seeks to eliminate racial discrimination in the world through treaties that bind and norms that transform. Yet law’s impact on eradicating racism has not matched its intent. Racism, in all of its forms, remains a massive cause of discrimination, indignity, and lack of equality for millions of people in the world today. This Article investigates why. Applying a critical race theory analysis of the legal history and doctrinal development of race and racism in international law, Professor Spain Bradley identifies law’s historical preference for framing legal protections around the concept of racial discrimination. She ...


The Disruptive Neuroscience Of Judicial Choice, Anna Spain Bradley Jan 2018

The Disruptive Neuroscience Of Judicial Choice, Anna Spain Bradley

Articles

Scholars of judicial behavior overwhelmingly substantiate the historical presumption that most judges act impartially and independent most of the time. The reality of human behavior, however, says otherwise. Drawing upon untapped evidence from neuroscience, this Article provides a comprehensive evaluation of how bias, emotion, and empathy—all central to human decision-making—are inevitable in judicial choice. The Article offers three novel neuroscientific insights that explain why this inevitability is so. First, because human cognition associated with decision-making involves multiple, and often intersecting, neural regions and circuits, logic and reason are not separate from bias and emotion in the brain. Second ...


International Legal Structuralism: A Primer, Justin Desautels-Stein Jan 2016

International Legal Structuralism: A Primer, Justin Desautels-Stein

Articles

International legal structuralism arrived on the shores of international thought in the 1980s. The arrival was not well-received, perhaps in part, because it was not well-understood. This essay aims to reintroduce legal structuralism and hopefully pave the way for new, and more positive, receptions and understandings. This reintroduction is organized around two claims regarding the broader encounter between international lawyers and critical theory in the ‘80s. The first was a jurisprudential claim about how the critics sought to show how international law was nothing more than a continuation of international politics by other means. The second was a historical claim ...


Zero-Tolerance Comes To International Law, Aya Gruber Jan 2016

Zero-Tolerance Comes To International Law, Aya Gruber

Articles

No abstract provided.


The Judge And The Drone, Justin Desautels-Stein Jan 2014

The Judge And The Drone, Justin Desautels-Stein

Articles

Among the most characteristic issues in modern jurisprudence is the distinction between adjudication and legislation. In the some accounts, a judge's role in deciding a particular controversy is highly constrained and limited to the application of preexisting law. Whereas legislation is inescapably political, adjudication requires at least some form of impersonal neutrality. In various ways over the past century, theorists have pressed this conventional account, complicating the conceptual underpinnings of the distinction between law-application and lawmaking. This Article contributes to this literature on the nature of adjudication through the resuscitation of a structuralist mode of legal interpretation. In the ...


Deciding To Intervene, Anna Spain Jan 2014

Deciding To Intervene, Anna Spain

Articles

Decisions about intervention into today's armed conflicts are difficult, dangerous, and politically complicated. There are no safe choices. Amid the climate of urgency and uncertainty in which intervention decision-making occurs, international law serves as a guide by providing rules about the legality of intervention. These rules assert that, except for in cases of self-defense, choices about when and how to intervene are to be made by the United Nations Security Council. What the rules do not provide, however, is effective guidance for the political choices the Council makes, such as how to prioritize among competing norms. When, for example ...


The U.N. Security Council's Duty To Decide, Anna Spain Jan 2013

The U.N. Security Council's Duty To Decide, Anna Spain

Articles

When faced with a global crisis within the scope of its mandate, the United Nations Security Council (UNSC or Council) has no obligation to decide whether or not to take action. This Article argues that it should. The UNSC is the only governing body with the legal authority to authorize binding measures necessary to restore peace and security, yet neither the United Nations Charter nor the UNSC's own rules clarify the extent of its obligations. Unlike courts, the UNSC lacks a procedural rule establishing that it has a duty to decide. Unlike the United States Congress, which accepts its ...


Economic Development And The Problem With The Problem-Solving Approach, Justin Desautels-Stein Jan 2012

Economic Development And The Problem With The Problem-Solving Approach, Justin Desautels-Stein

Articles

Scholars and practitioners alike have recently pointed to the idea of a "new moment" in the field of law and economic development, as well as a hope for a fruitful rethinking of political economy. The idea is that we have passed out of the period of high "neoliberalism," associated at one time with Reagan, Thatcher, and the so-called Washington Consensus and now eclipsed by the ascendance of the Obama Administration. The hope attending the new consensus is that, in the wake of neoliberal law and policy, the field of law and development might be on the verge of a new ...


Using International Dispute Resolution To Address The Compliance Question In International Law, Anna Spain Jan 2009

Using International Dispute Resolution To Address The Compliance Question In International Law, Anna Spain

Articles

A fundamental critique of international law is that it fails to ensure compliance and, thus, has limited influence on state behavior. Existing compliance theories consider how interests, norms and legal process impact states. Within the legal process school, theories either narrowly define process as methods that achieve a legal aim or broadly consider diplomatic activities without connecting them to the structural elements of process. Thus, despite the prolific scholarship in this area, understanding of how an international dispute resolution process, such as the Six-Party Talks, influences state behavior, such as North Korea’s actions toward nuclear disarmament, remains limited.

To ...


Extraterritoriality, Antitrust, And The Pragmatist Style, Justin Desautels-Stein Jan 2008

Extraterritoriality, Antitrust, And The Pragmatist Style, Justin Desautels-Stein

Articles

In the last decades of the 20th century, David Kennedy and Martti Koskenniemi made the case that the modern structure of international legal argument was characterized by "pragmatism." Taking this idea as its baseline, this Article's central argument is that legal pragmatism embodies a dominant style of contemporary legal reasoning, and that as Kennedy and Koskenniemi might have suggested, it is on display in some of the canonical antitrust decisions having an international dimension. The Article also seeks to show that pragmatism's ostensible triumph is best understood as a contest of three distinctly legal pragmatisms: "eclectic pragmatism," as ...


Divergent Discourses About International Law, Indigenous Peoples, And Rights Over Lands And Natural Resources: Toward A Realist Trend, S. James Anaya Jan 2005

Divergent Discourses About International Law, Indigenous Peoples, And Rights Over Lands And Natural Resources: Toward A Realist Trend, S. James Anaya

Articles

In this article renowned scholar S. James Anaya analyzes the divergent assessments of international law's treatment of indigenous peoples' demands to lands and natural resources. The author explores several strains of arguments that have been advanced within this debate, including state-centered arguments and human rights-based arguments. The author also examines the shortcomings of recurring interpretive approaches to international law that consider indigenous peoples' rights to land and resources. From this analysis the author identifies a more promising approach within the human rights framework--which he describes as a realist approach--that focuses on the confluence of values, power, and change. The ...


A Contemporary Definition Of The International Norm Of Self-Determination, S. James Anaya Jan 1993

A Contemporary Definition Of The International Norm Of Self-Determination, S. James Anaya

Articles

No abstract provided.