Law Commons^™

Plural Vision: International Law Seen Through The Varied Lenses Of Domestic Implementation, D. A. Jeremy Telman

D. A. Jeremy Telman

This essay introduces a collection of essays that have evolved from papers presented at a conference on “International Law in the Domestic Context.” The conference was a response to the questions raised by the U.S. Supreme Court’s decision in Medellín v. Texas and also a product of our collective curiosity about how other states address tensions between international obligations and overlapping regimes of national law.

Our constitutional tradition speaks with many voices on the subject of the relationship between domestic and international law. In order to gain a broader perspective on that relationship, we invited experts on foreign law to …

Medellin And Originalism, D. A. Jeremy Telman

D. A. Jeremy Telman

In Medellín v. Texas, the Supreme Court permitted Texas to proceed with the execution of a Mexican national who had not been given timely notice of his right of consular notification and consultation in violation of the United States’ obligations under the Vienna Convention on Consular Relations. It did so despite its finding that the United States had an obligation under treaty law to comply with an order of the International Court of Justice that Medellín’s case be granted review and reconsideration. The international obligation, the Court found, was not domestically enforceable because the treaties at issue were not self-executing. …

Book Review: Henry J. Richardson Iii, The Origins Of African-American Interests In International Law, D. A. Jeremy Telman

D. A. Jeremy Telman

This short review evaluates Professor Richardson's book both as a contribution to the history of the Atlantic slave trade and as contribution to critical race theory.Professor Richardson has read innumerable historical monographs, works of legal and sociological theory, international law and critical race theory. Armed with this store of knowledge, he is able to recount a detailed narrative of African-American claims to, interests in and appeals to international law over approximately two centuries spanning, with occasional peeks both forward and backward in time, from the landing of the first African slaves at Jamestown in 1619 to the 1815 Treaty of …

The Foreign Affairs Power: Does The Constitution Matter?, D. A. Jeremy Telman

D. A. Jeremy Telman

Peter Irons’ WAR POWERS favors congressional initiative in questions of war and peace but makes a historical argument that our government has strayed from the constitutional design in the service of an imperialist foreign policy. John Yoo’s THE POWERS OF WAR AND PEACE seeks to overthrow the traditional perspective on war powers espoused by Irons in favor of executive initiative in war. Yoo also pursues a revisionist perspective on the treaty power, which favors executive initiative in treaty negotiation and interpretation but insists on congressional implementation so as to minimize the impact of international obligations on domestic law. This Essay …

Our Very Privileged Executive: Why The Judiciary Can (And Should) Fix The State Secrets Privilege, D. A. Jeremy Telman

D. A. Jeremy Telman

This paper was first presented at the Temple Law Review Symposium on Executive Power.

In Reynolds v. United States, the Supreme Court shaped the state secrets privilege (the Privilege) as one akin to that against self-incrimination. In recent litigation, the government has asserted the Privilege in motions for pre-discovery dismissal, thus transforming the Privilege into a form of executive immunity. This Paper argues that courts must step in to return the Privilege to a scope more in keeping with its status as a form of evidentiary privilege.

After reviewing the doctrinal origins of the Privilege, the Paper explores three types …

A Truism That Isn't True? The Tenth Amendment And Executive War Power, D. A. Jeremy Telman

D. A. Jeremy Telman

The Tenth Amendment is invoked whenever congressional powers threaten the independent law-making power of the several states. In that context, however, the Tenth Amendment does not tell us very much. After all, if powers are not delegated to the federal government, where else would they go but to the states? Accordingly, the Supreme Court has dismissed the Amendment as a truism.

Although the Amendment is only deployed as a rather ineffectual check on congressional authority, it clearly applies to all branches of the federal government. However, according to the theory of inherent executive authority, certain powers are unique to the …

Abortion And Women's Legal Personhood In Germany: A Contribution To The Feminist Theory Of The State, D. A. Jeremy Telman

D. A. Jeremy Telman

This article looks at abortion regulation in Germany in the context of the full range of laws through which the state specifies the status of women as legal persons. Reviewing Germany's most important abortion law decisions in 1975 and 1993, the article contends that while the Constitutional Court struck a balance between the East German legacy of reproductive freedom and West Germany's robust protections of the right to life, it did so by undermining the legal structures that had facilitated full civil, economic and political equality for women in East Germany through legal regimes geared towards protecting women's reproductive autonomy.