Law Commons^™

Soft Law As Delegation, Timothy Meyer

Faculty Scholarship

This article examines one of the most important trends in international legal governance since the end of the Second World War: the rise of "soft law," or legally non-binding instruments. Scholars studying the design of international agreements have long puzzled over why states use soft law. The decision to make an agreement or obligation legally binding is within the control of the states negotiating the content of the legal obligations. Basic contract theory predicts that parties to a contract would want their agreement to be as credible as possible, to ensure optimal incentives to perform. It is therefore odd that …

Historical Practice And The Contemporary Debate Over Customary International Law, Ernest A. Young

Faculty Scholarship

Response to: Anthony J. Bellia, Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1 (2009).

A.J. Bellia and Brad Clark have performed a valuable service for other scholars interested in foreign relations law and federal jurisdiction by collecting and illuminating—with their usual care and insight—the historical practice of both English and early American courts with respect to the law of nations. Their recent Article, The Federal Common Law of Nations, demonstrates that, while American courts have not generally treated customary international law (CIL) as supreme federal law, they have applied such law where …

Islands Of Effective International Adjudication: Constructing An Intellectual Property Rule Of Law In The Andean Community, Laurence R. Helfer, Karen J. Alter, M. Florencia Guerzovich

Faculty Scholarship

The Andean Community - a forty-year-old regional integration pact of small developing countries in South America - is widely viewed as a failure. In this Article, we show that the Andean Community has in fact achieved remarkable success within one part of its legal system. The Andean Tribunal of Justice (ATJ) is the world's third most active international court, with over 1400 rulings issued to date. Over 90% of those rulings concern intellectual property (IP). The ATJ has helped to establish IP as a rule of law island in the Andean Community where national judges, administrative officials, and private parties …

The Andean Tribunal Of Justice And Its Interlocutors: Understanding Preliminary Reference Patterns In The Andean Community, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

In the European Union, national courts have been key intermediaries in helping to bolster and expand the authority of the European Court of Justice through its preliminary reference mechanism. This article analyzes the role of national judges in the Andean Community, a regional legal system whose judicial institution - the Andean Tribunal of Justice (ATJ) - was modeled directly on its European predecessor. Our analysis is based on an original coding of every publically available national court referral to the ATJ from 1987 to 2007 and interviews with over forty participants in the Andean legal system. We find that the …