Law Commons^™

The Apostrophic Impasse: Diacritical Remarks On The Stories Of International Law, Legal Decolonial Genealogy And Antony Anghie’S Historiography, Britt L.A.Q. (Haadiya) Hendrix

Theses and Dissertations

The (hi)stories of international law have strengthened the tentacles of coloniality in the legal regime as they continue to taunt the precarious lifeworlds of people, our planet and social imaginaries of an otherwise. The flow of coloniality has similarly rematerialized in decolonial legal theories and the postcolonial historiographical accounts of international law. I intend to demonstrate this colonial revival in the groundbreaking text of Antony Anghie Imperialism, Sovereignty and the Creation of International Law (2005) which challenged the (hi)stories of traditional jurisprudence. The latter was not necessarily a rejection nor negation of Western thought, because I argue that postcolonial historiography …

Harry Potter And The Gluttonous Machine, Jason A. Beckett

Faculty Journal Articles

In this paper, I outline the colonial structure of international law, and examine the short decline or suppression of its coloniality in the so-called ‘era of decolonisation’, then illustrate its resurgence in the modern neo-colonial order. PIL has split into two separate systems. One includes, and is justified by, the heroic tales of human rights and ‘Humanity’s Law’. The other is the actualised system of International Economic Law (IEL), an order driven by the need of the over-developed states to plunder the under-developed states’ resources and labour, to subsidise the luxury to which we have grown accustomed. One purports to …

Legal Pluralism Across The Global South: Colonial Origins And Contemporary Consequences, Brian Z. Tamanaha

Scholarship@WashULaw

This essay conveys past and present legally plural situations across the Global South, highlighting critical issues. It provides readers with a deep sense of legal pluralism and an appreciation of its complexity and the consequences that follow. A brief overview of colonization sets the stage, followed by an extended discussion of colonial indirect rule, which formed the basis for political and legal pluralism. Thereafter, showing the continuity from past to present, I discuss the transformation-invention of customary law, socially embedded village tribunals, enhancement of the power of traditional elites, uncertainty and conflict over land, clashes between customary and religious law …

Being Seen Like A State: How Americans (And Britons) Built The Constitutional Infrastructure Of A Developing Nation, Daniel J. Hulsebosch

William & Mary Law Review

This Article develops the argument that the Federal Constitution of 1787 was conceptualized, drafted, and put into operation not only for American citizens but also for foreign audiences. In a world without supranational governing institutions, a constitution—at least, the Federal Constitution—might serve to promote peaceable international relations based on reciprocal trade and open credit. That at least was the Enlightenment-inflected hope.

Did it work? If early Americans engaged in constitution-making in large part to demonstrate their capacity for self-government, selfdiscipline, and commercial openness to foreign audiences, did anyone notice? Or was it all, regardless of diplomatic purposes and consistent with …

The Supreme "Courts" Of The Roman Empire, C.G. Bateman

C.G. Bateman

The Dual Lives Of The Emerging Right To Democratic Governance, Gregory H. Fox, Brad R. Roth

Law Faculty Research Publications

No abstract provided.

Confounding Ockham's Razor: Minilateralism And International Economic Regulation, Eric C. Chaffee

Brooklyn Journal of Corporate, Financial & Commercial Law

In Minilateralism: How Trade Alliances, Soft Law, and Financial Engineering Are Redefining Economic Statecraft, Professor Chris Brummer embraces the complexity of the global economic system and its regulation by exploring the emerging role and dominance of varying strands of economic collaboration and regulation that he collectively refers to as “minilateralism.” In describing the turn toward minilateralism, Brummer notes a number of key features of this new minilateral system, including a shift away from global cooperation to strategic alliances composed of the smallest group necessary to achieve a particular goal, a turn from formal treaties to informal non-binding accords and other …

A Case Ill Suited For Judgment: Constructing 'A Sovereign Access To The Sea' In The Atacama Desert, Christopher Rossi

christopher robert rossi

Abstract: In 2015, the International Court of Justice ruled that Bolivia’s claim against Chile could proceed to the merit stage, setting up this Article’s discussion of perhaps the most intractable border dispute in South American history – Bolivia’s attempt to reclaim from Chile a ‘sovereign access to the Pacific Ocean’. This Article investigates the international law and deeply commingled regional history pertaining to the Atacama Desert region, the hyperarid yet resource-rich region through which Bolivia seeks to secure its long-lost access to the sea. Investigating the factual circumstances (effectivités), the post-colonial international legal principle of uti possidetis …

Democracy And Torture, Patrick A. Maurer

Patrick A Maurer

September 11th spawned an era of political changes to fundamental rights. The focus of this discussion is to highlight Guantanamo Bay torture incidents. This analysis will explore the usages of torture from a legal standpoint in the United States.

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

An Invisible Hand Behind: The Myth Of The Chinese Tax System, Yan Xu

Yan XU

To the casual observer, China in 2014 bears little resemblance to imperial society in place two thousand years ago. The agrarian rural society that dominated until recently has shifted to an urbanized services and manufacturing society. The emperor is long dead, along with the Republic government that followedand the subsequent Communist regime has morphed into Party led oligarchy guiding a state controlled market economy. A closer look, however, reveals a remarkable continuity of features. It seems that some aspects of life in China are more resistant to change and the continuity of these features to today indicates that some fundamental …

Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper

Casey J Cooper

The right to freedom of expression and free press is recognized under almost all major human rights instruments and domestic legal systems—common and civil—in the world. However, what do you do when a fundamental right conflicts with another equally fundamental right, like the right to a fair trial? In the United States, the freedom of speech, encompassing the freedom of the press, goes nearly unfettered: the case is not the same for other common law countries. In light of cultural and historic facts, institutional factors, modern realities, and case-law, this Article contends that current American jurisprudence does not take into …

An Other History Of Knowledge And Decision In Precautionary Approaches To Sustainability, Saptarishi Bandopadhyay

Saptarishi Bandopadhyay

In this paper, I offer an alternative reading of precaution with the hope of recovering the capacity of this ethic to facilitate legal and political decisions. Despite being a popular instrument of international environmental governance, decision-makers continue to understand this principle as reflecting an immemorial and natural instinct for preserving the environment in cases of scientific uncertainty. Such a reading, however, ignores the history and moral basis underlying this principle and thereby renders it obvious, and automatically adaptable to the politics of Sustainable Development. By offering a thicker history of precautionary governance at exemplary moments of ecological crisis I trace …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

A Maelstrom Of International Law And Intrigue: The Remarkable Voyage Of The S.S. City Of Flint, Andrew J. Norris

Andrew Norris

No abstract provided.

The International Law Jurisprudence Of Thurgood Marshall, Craig L. Jackson

Craig L. Jackson

International law conjures up images of large firm lawyers jetting from one glamorous international location to another making deals for an international multilateral corporation. Or one’s thoughts may tend toward civil servants working for their country’s foreign ministry or for an international organization negotiating treaties that stop wars or arguing fine points of public international law before an international tribunal in The Hague or Strasbourg, or some similar place not named Pompano Beach, Florida,[1] Houston, Texas,[2] St. Louis, Missouri,[3] Norman, Oklahoma,[4] Topeka, Kansas[5] even New York City. But the latter areall places where Thurgood Marshall …

Women's Legal History Symposium Introduction: Making History, Felice J. Batlan

All Faculty Scholarship

This essay introduces the Chicago-Kent Symposium on Women's Legal History: A Global Perspective. It seeks to situate the field of women's legal history and to explore what it means to begin writing a transnational women's history which transcends and at times disrupts the nation state. In doing so, it sets forth some of the fundamental premises of women's legal history and points to new ways of writing such histories.

How The British Gun Control Program Precipitated The American Revolution, David B. Kopel

David B Kopel

Abstract: This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least …

Women's Legal History Symposium Introduction: Making History, Felice J. Batlan

Felice J Batlan

This essay introduces the Chicago-Kent Symposium on Women's Legal History: A Global Perspective. It seeks to situate the field of women's legal history and to explore what it means to begin writing a transnational women's history which transcends and at times disrupts the nation state. In doing so, it sets forth some of the fundamental premises of women's legal history and points to new ways of writing such histories.

Taking War Seriously: A Model For Constitutional Constraints On The Use Of Force, In Compliance With International Law, Craig Martin

Craig Martin

This article develops an argument for increased constitutional control over the decision to use armed force or engage in armed conflict, as a means of reducing the incidence of illegitimate armed conflict. In particular, the Model would involve three elements: a process-based constitutional incorporation of the principles of international law relating to the use of force (the jus ad bellum regime); a constitutional requirement that the legislature approve any use of force rising above a de minimus level; and an explicit provision for limited judicial review of the decision-making process. The Model is not designed with any one country in …

Charles Sumner: History's Misunderstood Idealist, Chad G. Marzen

Chad G. Marzen

Few historical figures in the history of the United States have received such contrasting treatment by historians and scholars than Senator Charles Sumner. One view of Sumner mainly focuses on Sumner as a “Cardboard Yankee,” a figure who was arrogantly too tied to principle and was someone who seldom tried to understand others, was lacking in humor, was a pedant, lacked the judgment and self-control to be effective in settling disputes, and was unable to compromise.

A more recent “revised” interpretation of Sumner contends Sumner was driven into reform movements and politics for two reasons: first, that Sumner believed the …

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

Faculty Scholarship

No abstract provided.

Who's Afraid Of The Precautionary Principle?, Robert V. Percival

Robert Percival

The precautionary principle – the notion that lack of scientific certainty should not foreclose precautionary regulation – has become enormously popular in recent years, as reflected by its endorsement in many important international declarations and agreements. Despite its growing influence, the precautionary principle recently has come under fire by critics who argue that it is incoherent, potentially paralyzing, and that it will lead regulators to make bad choices. They maintain that society faces greater peril from overly costly regulations than from exposure to sources of environmental risks whose effect on human health and the environment is not fully understood at …

Who Sues For Divorce? From Fault Through Fiction To Freedom, Lawrence M. Friedman, Robert V. Percival

Robert Percival

No abstract provided.

A Tale Of Two Courts: Litigation In Alameda And San Benito Counties, Lawrence M. Friedman, Robert V. Percival

Robert Percival

No abstract provided.

The Processing Of Felonies In The Superior Court Of Alameda County 1880-1974, Lawrence M. Friedman, Robert V. Percival

Robert Percival

No abstract provided.

Binding The Dogs Of War: Japan And The Constitutionalizing Of Jus Ad Bellum, Craig Martin

Craig Martin

There is still very little constitutional control over the decision to use armed force, and very limited domestic implementation of the international principles of jus ad bellum, notwithstanding the increasing overlap between international and domestic legal systems and the spread of constitutional democracy. The relationship between constitutional and international law constraints on the use of armed force has a long history. Aspects of constitutional theory, liberal theories of international law, and transnational process theory of international law compliance, suggest that constitutional design could legitimately be used as a pre-commitment device to lock-in jus ad bellum principles, and thereby enhance compliance …

“Militant Judgement?: Judicial Ontology, Constitutional Poetics, And ‘The Long War’”, Penelope J. Pether

Working Paper Series

This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou’s Being and Event, uses Badiou’s theorizing of the event and of the militant in Being and Event as a basis for an exploration of problems of judicial ontology and constitutional hermeneutics raised in recent decisions by common law courts dealing with the legislative and executive confinement of “Islamic” asylum seekers, “enemy combatants” and “terrorism suspects,” and certain classes of criminal offenders in spaces beyond the doctrines, paradigms and institutions of the criminal law. The Article proposes an ontology and a poetics of judging equal to …

Dhimmitude And Disarmament, David B. Kopel

David B Kopel

Under shari'a law, non-Muslims, known as dhimmi, have been forbidden to possess arms, and to defend themselves from attacks by Muslims. The disarmament is one aspect of the pervasive civil inferiority of non-Muslims, a status known as dhimmitude. This Essay examines the historical effects of the shari'a disarmament, based on three books by Bat Ye'or, the world's leading scholar of dhimmitude. As Ye'or details, the disarmament had catastrophic consequences, extending far beyond the direct loss of the dhimmi's ability to defend themselves. The essay concludes by observing how pretend gun-free zones on college campuses turn the adults there into 21st …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …