Law Commons^™

Echoes Of The Zong Confronting Legal Realism In The Arguments For Reparations From The Atlantic Slave Trade And Modernday Human Trafficking, Glenys Spence

Faculty Scholarship

This Article is based on the premise that modern day human trafficking, like the transatlantic slave trade, violates jus cogens norms, and thus the practice was and still is a violation of US laws under customary international law. The analysis will examine the laws that were applied to chattel slavery in England and her colonies through the lens of some seminal slavery cases to unearth the tyranny of interpretation in human trafficking reparations and liability claims under the current Supreme Court jurisprudence and the Alien Tort Statute (“ATS”). The featured cases will reveal that the same philosophies undergirding the jurisprudence …

Characterizing Legal Implications For The Use Of Transboundary Aquifers, Gabriel Eckstein

Faculty Scholarship

Groundwater resources that traverse political boundaries are becoming increasingly important sources of freshwater in international and intranational arenas worldwide. This is a direct extension of the growing need for new sources of freshwater, as well as the impact that excessive extraction, pollution, climate change, and other anthropogenic activities have had on surface waters. It is also a function of the growing realization that groundwater respects no political boundaries, and that aquifers traverse jurisdictional lines at all levels of political geography.

Due to this growing awareness, questions pertaining to responsibility and liability are now being raised in relation to the use, …

Othering Across Borders, Steven Arrigg Koh

Faculty Scholarship

Our contemporary moment of reckoning presents an opportunity to evaluate racial subordination and structural inequality throughout our three-tiered domestic, transnational, and international criminal law system. In particular, this Essay exposes a pernicious racial dynamic in contemporary U.S. global criminal justice policy, which I call othering across borders. First, this othering may occur when race emboldens political and prosecutorial actors to prosecute foreign defendants. Second, racial animus may undermine U.S. engagement with international criminal legal institutions, specifically the International Criminal Court. This Essay concludes with measures to mitigate such othering.

The Right To Strike As Customary International Law, James J. Brudney

Faculty Scholarship

No abstract provided.

Intended Injury: Transferred Intent And Reliance In Climate Change Fraud, Wes Henricksen

Faculty Scholarship

No abstract provided.

America's New Covenant With Hong Kong: The Hong Kong Human Rights And Democracy Act Of 2019, Jason Buhi

Faculty Scholarship

No abstract provided.

Corporate Social Responsibility, Casino Capitalism, And The Constitution Of Macau, Jason Buhi

Faculty Scholarship

No abstract provided.

Irena At 10: Post Paris Transitions And Energy Diplomacy Beyond Opec, The Energy Charter Treaty, And The Coronavirus, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

The Precarious Position Of The Fourth Estate In Trumptopia: The Role Of Popular Culture And The Law In Protecting Media Freedom, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

Saving Face: Unfolding The Screen Of Chinese Privacy Law, Tiffany Li, Jill Bronfman, Zhou Zhou

Faculty Scholarship

Privacy is often a subjective value, taking on meaning from specific social, historical, and cultural contexts. Western privacy scholars have so far generally limited academic study to focus on Western ideals of privacy. However, privacy – or some notion of it – can be found in almost every culture and every nation, including the growing economic powerhouse that is the People’s Republic of China. Focusing on China as a case study of non-Western privacy norms is important today, given the rapid rise of the Chinese economy and its corresponding impact on worldwide cultural norms and law. Simply put, it is …

Regulatory Cooperation In International Trade And Its Transformative Effects On Executive Power, Elizabeth Trujillo

Faculty Scholarship

As international trade receives the brunt of local discontent with globalization trends and recent changes by the Trump administration have put into question the viability of such trade arrangements moving forward, there has been a clear trend in using international trade fora for managing regulatory barriers on economic development. This paper will discuss this recent trend in international trade toward increased regulatory cooperation through the creation of formalized transnational regulatory bodies, such as the U.S.-EU Regulatory Cooperation Body that was being discussed in the TTIP negotiations and comparable ones in the Canadian-EU Trade Agreement as well as U.S.-Mexico and U.S.- …

Promoting International Cybersecurity Cooperation: Lessons From The Proliferation Security Initiative, Duncan B. Hollis, Matthew C. Waxman

Faculty Scholarship

Global efforts by states to cooperate through international rules in combating cyber threats have generated mixed results, at best. In this paper, we examine the architecture of the Proliferation Security Initiative (PSI) as a possible model for future cybersecurity cooperation among interested states. We identify several features of PSI’s architecture (rather than its substantive focus on non-proliferation) for further analysis, including PSI’s low entry costs, tiered structure, and flexibility, as well as its leveraging of both territorial jurisdiction and state consent. We conclude that, despite several hurdles visible in the scope of its membership and its legal framework, PSI still …

In Defense Of Territorial Jurisdiction, Cody Jacobs

Faculty Scholarship

As the story is traditionally told, the minimum contacts test introduced in International Shoe v Washington freed personal jurisdiction from the dark age of territorialism and gave courts the flexibility to expand the scope of personal jurisdiction to keep pace with modern society. While scholars have critiqued the minimum contacts test on a number of grounds, the narrative that the Territorial Model was inherently problematic—and that Shoe was a step in the right direction— has gone largely unchallenged.

This Article challenges that narrative and argues for a return to the Territorial Model. While Shoe is traditionally cast as a step …

To Speak With One Voice: The Political Effects Of Centralizing The International Legal Defense Of The State, Guillermo J. Garcia Sanchez

Faculty Scholarship

When a government official defends a case before an international court, whose interest should he/she be representing? In today’s era of expanding international treaties that give standing to individual claimants, international courts review the actions of different government actors through the yardsticks of international law. The state is not unitary; alleged victims can bring international claims against various government entities including the executive, the legislature, the administrative branch, and the judiciary. Yet, the international legal defense of government actions is in the hands of the executive power. This paper focuses on the consequences of this centralization for inter-branch politics. It …

Cyber Strategy & Policy: International Law Dimensions, Matthew C. Waxman

Faculty Scholarship

Important international law questions for formulating cyber strategy and policy include whether and when a cyber-attack amounts to an “act of war,” or, more precisely, an “armed attack” triggering a right of self-defense, and how the international legal principle of “sovereignty” could apply to cyber activities. International law in this area is not settled. There is, however, ample room within existing international law to support a strong cyber strategy, including a powerful deterrent. The answers to many international law questions discussed below depend on specific, case-by-case facts, and are likely to be highly contested for a long time to come. …

Tallinn, Hacking, And Customary International Law, Ahmed Ghappour

Faculty Scholarship

Tallinn 2.0 grapples with the application of general international law principles through various hypothetical fact patterns addressed by its experts. In doing so, its commentary sections provide a nonbinding framework for thinking about sovereignty, raising important considerations for states as they begin to articulate norms to resolve the question of precisely what kinds of nonconsensual cyber activities violate well-established international laws — a question that will likely be the focus of international lawyers in this area for some time to come.

This essay focuses on one area of state practice where states are already dealing with these issues: the use …

International Environmental Law And The Global South Edited By Shawket Alam, Sumudu Atapattu, Carmen G. Gonzalez, And Jona Razzaque, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Rethinking Intangible Cultural Heritage And Expressions Of Folklore: A Lesson From The Fcc’S Localism Standards, Jon M. Garon

Faculty Scholarship

This article reviews the underlying societal imperatives reflected in a policy of intangible cultural heritage and the intellectual property-like regimes being developed to protect these interests. It contrasts UNESCO efforts with more narrowly tailored efforts of WIPO and juxtaposes those approaches with the localism model developed under the FCC. While aspects of the WIPO protection efforts focusing on trademark-like and trade secret-like protections benefit the people and cultures these policies hope to serve, additional copyright-like protections will likely do more harm than good. Instead, global public policy will be far better served through emphasis on the FCC's localism attributes of …

Localism As A Production Imperative: An Alternative Framework To Promoting Intangible Cultural Heritage And Expressions Of Folklore, Jon M. Garon

Faculty Scholarship

In the United States, the policy of localism – the legislative goal of fostering local community expression and competence to deliver local content – finds its home in the Telecommunications Act rather than either the Copyright Act or Trademark Act. Other nations have introduced values of localism into trade policy, content distribution rules, and international efforts to protect intangible cultural heritage and expressions of folklore.

Jurisdictions in every continent are struggling to address the pressures of globalism through efforts to protect indigenous peoples’ and minority communities’ languages and culture. These efforts take many forms. Nations have introduced efforts to protect …

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber Is Sheep's Clothing, Mark A. Summers

Faculty Scholarship

No abstract provided.

Is Europe Headed Down The Primrose Path With Mandatory Mediation, Jacqueline Nolan-Haley

Faculty Scholarship

No abstract provided.

Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin

Faculty Scholarship

Since 2001 the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political orders. These controversies raise anew two critical questions for ECHR jurisprudence: first, regarding the proper scope of the right to religious freedom; and second, regarding the …

Rereading Rauscher Is It Time For The United States To Abandon The Rule Of Specialty, Mark A. Summers

Faculty Scholarship

No abstract provided.

International Law, Human Rights And The Transformative Occupation Of Iraq, Peter G. Danchin

Faculty Scholarship

This chapter examines the project of transformative occupation undertaken by the United States and its allies following the invasion of Iraq in 2003. More specifically, it considers the Iraqi occupation in light of two competing sensibilities in international legal argument. On one view, which I term “legal formalism”, the purpose of international law is eclectic, intersubjective and value-pluralist: to create the conditions for peaceful coexistence between different political orders and ways of life. This view is commonly associated with the liberalism of the United Nations Charter which posits both the subject of international law and its liberty in formal terms …

Of Prophets And Proselytes: Freedom Of Religion And The Conflict Of Rights In International Law, Peter G. Danchin

Faculty Scholarship

The case of proselytism presents a tangle of competing claims: on the one hand, the rights of proselytizers to free exercise of religion and freedom of speech; on the other hand, the rights of targets of proselytism to change their religion, peacefully to have or maintain a particular religious tradition, and to be free from injury to religious feelings. Clashes between these claims of right are today generating acute tensions in relations between States and peoples, a state of affairs starkly illustrated by the recent Danish cartoons controversy. Irrespective of their resolution in any particular domestic legal system, how should …

The Emergence And Structure Of Religious Freedom In International Law Reconsidered, Peter G. Danchin

Faculty Scholarship

This Article presents a critique of the historical evolution of the right to freedom of religion in international law. In identifying certain conceptual tensions between liberal and value pluralist accounts in the literature, a general theoretical argument is advanced. Beyond standard Enlightenment narratives of individual freedom of conscience, this argument notices a second, more complex narrative of genuine pluralism in the evolving conception of religious freedom in international legal thought. This suggests that there is no simple, but rather a complex mapping of individual toleration in international law and no single path to modernity or to the formation of the …

Suspect Symbols: Value Pluralism As A Theory Of Religious Freedom In International Law, Peter G. Danchin

Faculty Scholarship

The grounds upon which states may limit the freedom to manifest religion or belief are divisive questions in constitutional and international law. The focus of recent inquiry has been on laws which proscribe the wearing of religious symbols in certain aspects of the public sphere, and on the claims more generally to religious and cultural freedom of Muslim minorities in European nation-states. Stepping back from these debates, this Article aims at a more rigorous theoretical treatment of the subject. It asks whether there is a coherent notion of religious freedom in international legal theory and, if not, why not? In …

Diplomatic Immunity Ratione Personae Did The International Court Of Justice Create A New Rule Of Customary International Law In Congo V Belgium, Mark A. Summers

Faculty Scholarship

No abstract provided.

Mission Possible: Reciprocal Deference Between Domestic Regulatory Structures And The Wto, Elizabeth Trujillo

Faculty Scholarship

One of the goals of Article III of GATT is to invalidate domestic regulatory measures, including taxes and non-fiscal policies that amount to non-tariff barriers to trade (NTB) and therefore violate the principles of national treatment. While internal policies that directly discriminate between products based on nationality or origin are clearly in violation of national treatment principles, it is the facially neutral regulatory measures with protectionist and discriminatory effects that are more difficult to assess, even within transparent regulatory processes. However, with their emphasis on the likeness of the products in question, WTO panels run the risk of alienating member …

Immunity Or Impunity The Potential Effect Of Prosecutions Of State Officials For Core International Crimes In States Like The United States That Are Not Parties To The Statute Of The International, Mark A. Summers

Faculty Scholarship

No abstract provided.