Law Commons^™

Evolving Sovereignty Relationships Between Affiliated Jurisdictions: Lessons For Native American Jurisdictions, Vaughan Carter, Charlotte Ku, Andrew P. Morriss

Faculty Scholarship

Though sovereignty is principally associated with governance over a territory and freedom to act in the international arena, this article examines sovereignty as empowerment. The study tests the applicability to Native American jurisdictions of the experiences of fifteen case study jurisdictions presently associated with the United Kingdom, the Netherlands, and France in shared sovereign relationships. The focus is on the evolution of those relationships and opportunities for development where jurisdictions do not attain full control over their affairs. The case studies examine the relationships from the perspectives of political, economic, and cultural sovereignty. The article further examines the relationships in …

Retooling Sanctions: China’S Challenge To The Liberal International Order, Timothy Webster

Faculty Scholarship

Professor Tom Ginsburg has produced yet another classic of transnational law, political science, and international relations. Democracies and International Law yields important insights into the democratic nature of international law but cautions that authoritarian states can apply these very legal technologies for repressive or anti-democratic purposes. Building on Ginsburg’s theories of mimicry and repurposing, this contribution highlights the role of both techniques in the creation of China’s economic sanctions program. On the one hand, China has developed a basic set of tools to impose economic sanctions—a key instrument in the liberal international toolkit—on foreign entities and persons. In so doing, …

What Is Foreign Relations Law?, Curtis A. Bradley

Faculty Scholarship

This draft first chapter of The Oxford Handbook of Comparative Foreign Relations Law considers what is potentially encompassed by the term “foreign relations law,” and what it might mean to think about it as a distinct field of law that can be compared and contrasted across national jurisdictions. The chapter begins by outlining some differences between foreign relations law and international law. It then describes the development of foreign relations law as a field of study within the United States and considers why, at least until recently, it has not been treated as a field in most other countries. Finally, …

The Conflicts Restatement And The World, Ralf Michaels

Faculty Scholarship

No abstract provided.

Comparative Law And Private International Law, Ralf Michaels

Faculty Scholarship

No abstract provided.

Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

Faculty Scholarship

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

The United States, In Comparative Counter-Terrorism, Sudha Setty

Faculty Scholarship

The United States, like all other democratic nations that have suffered terrorist attacks, continues to struggle with questions of how to keep its population safe while maintaining the principles of democracy and the rule of law. This Book Chapter discusses the United States' counterterrorism policies, particularly since the September 11 terrorist attacks, and the resulting changes in societal viewpoints, political agendas, and the legal authority to combat terrorism and threats of terrorism.

The government’s aggressive counterterrorism stance has influenced actions and policies outside the United States. The Author’s exploration of counterterrorism policies in the United States include: criminal law and …

Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et Al. As Amici Curiae In Support Of Petitioners, Harold Hongju Koh, Thomas Buergenthal, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman, Sujit Choudhry

Faculty Scholarship

No abstract provided.

Foreign Relations Law And The Purported Shift Away From "Exceptionalism", Curtis A. Bradley

Faculty Scholarship

In prior writings, I coined the term “foreign relations exceptionalism” to refer to the view that the federal government’s foreign affairs powers are subject to a different, and generally more relaxed, set of constitutional restraints than those that govern its domestic powers. In a recent article in the Harvard Law Review, The Normalization of Foreign Relations Law, the authors contend that during the past twenty-five years there has been a revolutionary shift away from foreign relations exceptionalism, that this “normalization” trend is likely to continue, and that this development should be welcomed and encouraged. This essay points out various conceptual …

Transnationalizing Comparative Law, Ralf Michaels

Faculty Scholarship

Comparative law will not die in the 21st century, but nor can it remain unchanged. Comparative law as we have it today still retains its roots in 1900: it is focused on states, on positive law, and on a scientific approach. Comparative law in the age of transnationalism will have to transnationalize: it must move beyond the state, it must move beyond positive law, and it must endorse cultural approaches. We must retain our critique of legal nationalism, but we must add our critique of uncritical legal universalism.

On The Ninth Circuit's New Definition Of Piracy: Japanese Whalers V. The Sea Shepherd-Who Are The Real "Pirates" (I.E. Plunderers)?, Barry H. Dubner, Claudia Pastorius

Faculty Scholarship

No abstract provided.

Introduction-Papers From The 2013 American Society Of Comparative Law Annual Meeting, Sarah Howard Jenkins, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.

Due Process In Islamic Criminal Law, Sadiq Reza

Faculty Scholarship

Rules and principles of due process in criminal law--how to, and how not to, investigate crime and criminal suspects, prosecute the accused, adjudicate criminal cases, and punish the convicted--appear in the traditional sources of Islamic law: the Quran, the Sunna, and classical jurisprudence. But few of these rules and principles are followed in the modern-day practice of Islamic criminal law. Rather, states that claim to practice Islamic criminal law today mostly follow laws and practices of criminal procedure that were adopted from European nations in the twentieth century, without reference to the constraints and protections of Islamic law itself. To …

Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman

Faculty Scholarship

No abstract provided.

Comparative Law And International Human Rights Law: Non-Retroactivity And Lex Certa In Criminal Law, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.

The United States Supreme Court: An Introduction, Bert I. Huang

Faculty Scholarship

The Supreme Court of the United States has always occupied a center place in the comparative study of judicial institutional design and the role of courts. In this roundtable discussion, National Taiwan University College of Law is honored to have Professor Bert I. Huang from Columbia Law School, United States, who had served as the law clerk of Supreme Court Justice David H. Souter, to unveil the ways that the U.S. Supreme Court functions by introducing the certiorari process and the system of law clerks. Based on his own experience, Professor Huang provides his insight on the institution of law …

Enforcing International Corrupt Practices Law, Paul D. Carrington

Faculty Scholarship

This Essay strives to advance the current international movement to
deter the transnational corrupt practices that have long burdened the global economy and weakened governments, especially in “developing” nations. Laws made in the last decade to address this longstanding global problem have not been effectively enforced. Described here are the moderately successful efforts in the United States since 1862 to reward private citizens serving as enforcers of laws prohibiting corrupt practices. It is suggested that this American experience might be adapted by international organizations to enhance enforcement of the new public international laws.

Foreign Affairs, International Law, And The New Federalism: Lessons From Coordination, Robert B. Ahdieh

Faculty Scholarship

Even after the departure of two of its most prominent advocates - Chief Justice William Rehnquist and Justice Sandra Day O'Connor - the federalism revolution initiated by the Supreme Court almost twenty years ago continues its onward advance. If recent court decisions and congressional legislation are any indication, in fact, it may have reached a new beachhead in the realm of foreign affairs and international law. The emerging federalism in foreign affairs and international law is of a distinct form, however, with distinct implications for the relationship of sub-national, national, and international institutions and interests.

This article - prepared for …

Exceeding Our Boundaries: Transnational Employment Law Practice And The Export Of American Lawyering Styles To The Global Worksite, Susan Bisom-Rapp

Faculty Scholarship

Until very recently, one almost never heard mention of international issues among labor and employment law practitioners in the United States. Conventional wisdom considers this practice area quintessentially local. Identifying a trend that unseats this taken-for-granted notion, the article details the birth of a new employment law sub-specialty: international labor and employment law. Some U.S. management attorneys, working with transnational legal teams comprised of lawyers from foreign firms, are beginning to coordinate multinational clients' employment law projects across multiple national jurisdictions. While the world's legal regimes that regulate labor markets are remarkably culturally specific, the formation of transnational networks of …

Why Teach International Family Law In Conflicts?, William L. Reynolds

Faculty Scholarship

[The author] sets forth a challenge to conflicts professors: to teach international family law in their conflict of laws classes. At present, many conflicts professors avoid teaching international family law, in part because the study of this subject is complicated by several statutes addressing particularly difficult issues. Ignorning international family law is unwise, because many United States citizens and lawyers are likely to confront such problems.

The History Of The Patent Harmonization Treaty: Economic Self-Interest As An Influence, R. Carl Moy

Faculty Scholarship

How shall the United States decide whether to adopt the Patent Harmonization Treaty? What questions shall we ask? Whose answers shall we trust? What sources of information can provide us with the background needed for these inquiries? This article offers a framework in which to ask, and begin to answer, these questions. It focuses on the international community's past efforts to harmonize the law of patents. It asserts not only that history provides context, but also, that the same history yields lessons directly applicable to many of the treaty's basic issues. Section I discusses the immediate history of WIPO's efforts …

The Japanese International Law 'Revolution': International Human Rights Law And Its Impact In Japan, Kenneth L. Port

Faculty Scholarship

Some observers have argued that because of a lack of enforcement powers, international law has relatively little impact on the conduct of nations and, in fact, may not be "law" at all. Others have inquired whether legal norms which underlie international human rights law have any influence on the domestic law of signatory nations. This article argues that international law can profoundly influence the development of the domestic laws of nations regardless of the lack of coercive enforcement powers. This point becomes clear through a consideration of Japan's experience in adopting and internalizing international law norms.