Judges Commons^™

Appraising The U.S. Supreme Court’S Philipp Decision, Vivian Grosswald Curran

Articles

This article assesses the Foreign Sovereign Immunities Act (FSIA) after the Supreme Court’s recent decision in Germany v. Philipp. Philipp’s rejection of a genocide exception for a foreign state’s act of property expropriation comports with the absence of such an exception in the FSIA’s text. The article also suggests that the genocide exception as it had been developing was a detrimental development in FSIA interpretation, and was also harmful to international human rights law, inasmuch as it distorted the concept of genocide. The Philipp Court’s renewed focus on the international law of property, rather than of human rights, should …

Domestic Courts And The Generation Of Norms In International Law, Charles T. Kotoby Jr.

Articles

International law in the form of treaty and custom is primarily shaped by national executives and legislatures. To be sure, “judicial decisions” are deemed a “subsidiary means for the determination of [international] law,” but that still does not give domestic courts an everyday role in the generation of universal norms and international law. This article proposes a more dynamic reality which elevates the importance of municipal courts in the generation and creation of international law. The truth is that domestic courts interact regularly to announce and create important universal norms—by, for instance, adjudicating expropriation claims, passing on the recognition and …

The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas

Pace International Law Review

The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while …

Judging Judicial Appointment Procedures, S. I. Strong

Vanderbilt Journal of Transnational Law

Over the last several years, judicial appointment procedures in the United States have become increasingly intractable. Members of both parties are seen to engage in political gamesmanship, calling the legitimacy of the appointment process into question and decreasing public confidence in both the legislature and the judiciary. Questions are even beginning to arise about whether and to what extent the United States is complying with the rule of law.

Although numerous solutions have been proposed, one alternative has not yet been considered: international law. As paradoxical as it may seem, the best and perhaps only feasible solution to quintessentially domestic …

The Disruptive Neuroscience Of Judicial Choice, Anna Spain Bradley

Publications

Scholars of judicial behavior overwhelmingly substantiate the historical presumption that most judges act impartially and independent most of the time. The reality of human behavior, however, says otherwise. Drawing upon untapped evidence from neuroscience, this Article provides a comprehensive evaluation of how bias, emotion, and empathy—all central to human decision-making—are inevitable in judicial choice. The Article offers three novel neuroscientific insights that explain why this inevitability is so. First, because human cognition associated with decision-making involves multiple, and often intersecting, neural regions and circuits, logic and reason are not separate from bias and emotion in the brain. Second, bias, emotion, …

Achieving Sex-Representative International Court Benches, Nienke Grossman

All Faculty Scholarship

Twenty-five years ago, in this Journal, Hilary Charlesworth, Christine Chinkin, and Shelley Wright argued that the structures of international law “privilege men.”1 As shown in Table 1, which summarizes data from a forthcoming article, on nine of twelve international courts of varied size, subject-matter jurisdiction, and global and regional membership, women made up 20 percent or less of the bench in mid 2015.2 On many of these courts, the percentage of women on the bench has stayed constant, vacillated, or even declined over time.3 Women made up a lower percentage of the bench in mid 2015 than in previous years …

Using Occam’S Razor To Solve International Attorney-Client Privilege Choice Of Law Issues: An Old Solution To A New Problem, Nathan M. Crystal, Francesca Giannoni-Crystal

Nathan M. Crystal

The practice of law is increasingly becoming “delocalized.” Globalization and the use of technology are two important factors in this fundamental change in practice. Delocalization is affecting almost all areas of practice, including issues involving attorney-client privilege (ACP). To some extent the choice-of-law rules governing ACP are also – like other fields of the law - being “delocalized,” but in our view only partially. This paper discusses six approaches to choice of law issues governing ACP that are being used by the courts. Aside from the traditional lex loci approach (which simply applies the law of the forum to the …

Comment Le Droit Des Gens Cessa D’Être Un Droit Politique: Le Droit International De John Marshall, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

International Norms In Constitutional Law, Michael Wells

Georgia Journal of International & Comparative Law

No abstract provided.

The Use Of International Sources In Constitutional Opinion, Daniel Bodansky

Georgia Journal of International & Comparative Law

No abstract provided.

The Judge And The Drone, Justin Desautels-Stein

Publications

Among the most characteristic issues in modern jurisprudence is the distinction between adjudication and legislation. In the some accounts, a judge's role in deciding a particular controversy is highly constrained and limited to the application of preexisting law. Whereas legislation is inescapably political, adjudication requires at least some form of impersonal neutrality. In various ways over the past century, theorists have pressed this conventional account, complicating the conceptual underpinnings of the distinction between law-application and lawmaking. This Article contributes to this literature on the nature of adjudication through the resuscitation of a structuralist mode of legal interpretation. In the structuralist …

Overview Of Panel: Judges, Diplomats, And Peacebuilders: Evaluating International Dispute Resolution As A System, Anna Spain

Publications

No abstract provided.

Of Law And The Revolution, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The Egyptian revolution is proving to be a very legal one. That is not to say that the revolution’s demands have been legalized, nor that Egypt’s law has been revolutionized, rather, the forces that have come to the fore since the toppling of Mubarak in Feb 2011 have chosen law as the privileged form through which to bargain with each other. The density of the legal back and fro has been overwhelming: constitutional amendments, constitutional supplementary declarations, parliamentary laws, legislative amendments, military decrees, court trials, constitutional court decisions overturning laws passed, conflicting decisions from various courts, presidential decrees, emergency laws …

Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan

Donald J. Kochan

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must …

Treaties As Law And The Rule Of Law: The Judicial Power To Compel Domestic Treaty Implementation, William M. Carter Jr.

Articles

The Supremacy Clause makes the Constitution, federal statutes, and ratified treaties part of the "supreme law of the land." Despite the textual and historical clarity of the Supremacy Clause, some courts and commentators have suggested that the "non-self-executing treaty doctrine" means that ratified treaties must await implementing legislation before they become domestic law. The non-self-executing treaty doctrine has in particular been used as a shield to claims under international human rights treaties.

This Article does not seek to provide another critique of the non-self-executing treaty doctrine in the abstract. Rather, I suggest that a determination that a treaty is non-self-executing …

International Rule Of Law And Constitutional Justice In International Investment Law And Arbitration, Ernst-Ulrich Petersmann

Indiana Journal of Global Legal Studies

Judicial administration of justice through reasoned interpretation, application and clarification of legal principles and rules is among the oldest paradigms of constitutional justice. The principles of procedural justice underlying investor-state arbitration remain controversial, especially if confidentiality and party autonomy governing commercial arbitration risk neglecting adversely affected third parties and public interests. There are also concerns that rule-following and formal equality of foreign investors and home states may not ensure substantive justice in the settlement of investment disputes unless arbitrators and courts take more seriously their customary law obligation of settling disputes in conformity with human rights obligations of governments and …

Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Invocations Of Foreign And International Law, Donald J. Kochan

Donald J. Kochan

With increasing frequency and heightened debate, United States courts have been citing foreign and “international” law as authority for domestic decisions. This trend is inappropriate, undemocratic, and dangerous. The trend touches on fundamental concepts of sovereignty, democracy, the judicial role, and overall issues of effective governance. There are multiple problems with the judiciary’s reliance on extraterritorial and extra-constitutional foreign or international sources to guide their decisions. Perhaps the most fundamental flaw is its interference with rule of law values. To borrow from Judge Harold Levanthal, the use of international sources in judicial decision-making might be described as “the equivalent of …

No Longer Little Known But Now A Door Ajar: An Overview Of The Evolving And Dangerous Role Of The Alien Tort Statute In Human Rights And International Law Jurisprudence, Donald J. Kochan

Donald J. Kochan

Human rights’ and other international law activists have long worked to add teeth to their tasks. One of the most interesting avenues for such enforcement has been the Alien Tort Statute (“ATS”). The ATS has become the primary vehicle for injecting international norms and human rights into United States courts – against nation-states, state actors, and even private individuals or corporations alleged to actually or in complicity or conspiracy been responsible for supposed violations of international law. This Symposium Article provides an overview of the ATS evolution (or revolution), discusses the most recent significant development in the evolution arising from …

Appropriate Role Of Foreign Judgments In The Interpretation Of American Law: Hearing Before The H. Comm. On The Judiciary, 108th Cong., Mar. 25, 2004 (Statement Of Vicki C. Jackson, Prof. Of Law, Geo. U. L. Center), Vicki C. Jackson

Testimony Before Congress

No abstract provided.

American Judges And International Law, A. M. Weisburd

Vanderbilt Journal of Transnational Law

This article addresses an issue with which federal courts have been forced to deal with increasing frequency: How ought a judge go about determining the content of customary international law? The article seeks to demonstrate, using the example of the treatment of the concept of "jus cogens" by the courts of appeals, that federal courts have come to rely on doubtful sources in addressing questions of international law. More specifically, it sets out to show that courts frequently do not rely on the actual practice of governments to determine the content of customary international law, which would seem to be …

Constitutional Structure As A Limitation On The Scope Of The "Law Of Nations" In The Alien Tort Claims Act, Donald J. Kochan

Donald J. Kochan

Jurisdiction matters. Outside of the set of jurisdictional constraints, the judiciary is at sea; it poses a threat to the separation of powers and risks becoming a dangerous and domineering branch. Jurisdictional limitations serve a particularly important function when the judiciary is dealing with issues of international law. Since much of international law concerns foreign relations, the province of the executive and, in part, the legislature, the danger that the judiciary will act in a policy-making role or will frustrate the functions of the political branches is especially great. The Framers of the Constitution were particularly concerned with constructing a …

International Law Principles Governing The Extraterritorial Application Of Criminal Law, Christopher L. Blakesley

Scholarly Works

In this piece Professor Blakesley provides remarks on the differences and similarities between Germany and the United States on international principles of jurisdiction over extraterritorial crime.

Comparative Overview Of Service Of Process: United States, Japan, And Attempts At International Unity, Chin Kim, Eliseo Z. Sisneros

Vanderbilt Journal of Transnational Law

This Article examines the differing philosophical and legal requirements for service of process in the United States and Japan. Professor Kim and Mr. Sisneros compare service of process laws in the United States, where compliance with the due process clause of the United States Constitution is a fundamental requirement, with service of process laws in Japan, where service of process is an official act of the judiciary. A detailed analysis of valid service of process by a foreign state in Japan follows. The authors then discuss the effect of the Bilateral Consular Convention Between the United States and Japan and …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Books Received

CONTRACT LAW IN THE U.S.S.R. AND THE UNITED STATES, VOL. I: HISTORY AND GENERAL CONCEPT

By E. Allan Farnsworth and Viktor P. Mozolin

Washington, D.C.: International Law Institute, 1987. Pp.xiii, 340. $35.00

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FOREIGN RELATIONS AND NATIONAL SECURITY LAW: CASES, MATERIALS AND SIMULATIONS

By Thomas M. Franck and Michael J. Glennon

St. Paul, Minnesota: West Publishing Company, 1987. Pp.lxiv, 941

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THE GRAND STRATEGY OF THE UNITED STATES IN LATIN AMERICA

By Tom J. Farer

New Brunswick, New Jersey: Transaction Books, 1988. Pp. xxxii, 294

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JUDGES

By David Pannick

New York: Oxford University Press,1987. Pp. vii, 255. …

United States Jurisdiction Over Extraterritorial Crime, Christopher L. Blakesley

Scholarly Works

The term jurisdiction may be defined as the authority to affect legal interests -- to prescribe rules of law (legislative jurisdiction), to adjudicate legal questions (judicial jurisdiction) and to enforce judgments the judiciary made (enforcement jurisdiction). The definition, nature and scope of jurisdiction vary depending on the context in which it is to be applied. United States domestic law, for example, defines and applies notions of jurisdiction pursuant to the United States constitutional provisions relating to the separation of powers. Within the United States, jurisdiction is defined and applied in a variegated fashion depending on whether a legal problem is …