Jurisprudence Commons^™

The One Or The Many, Jens David Ohlin

Jens David Ohlin

The following Review Essay, inspired by Tracy Isaacs’ new book, Moral Responsibility in Collective Contexts, connects the philosophical literature on group agency with recent trends in international criminal law. Part I of the Essay sketches out the relevant philosophical positions, including collectivist and individualist accounts of group agency. Particular attention is paid to Kornhauser and Sager’s development of the doctrinal paradox, Philip Pettit’s deployment of the paradox towards a general argument for group rationality, and Michael Bratman’s account of shared or joint intentions. Part II then analyzes, with cautious support, Isaacs’ two-level solution, which entails both individual and collective moral …

Promise Against Peril: Of Power, Purpose, And Principle In International Law, Robert Hockett

Robert C. Hockett

I take two recent monographs on international law – Mary Ellen O’Connell’s "The Power and Purpose of International Law," and Eric Posner’s "The Perils of Global Legalism," as case studies in a more general inquiry into the role of the "rule of law" ideal in domestic and international law. I argue that international and domestic law alike give varyingly explicit and effective expression to the rule of law ideal, and that the task before us is accordingly steadily to improve their effectiveness in so doing, not to pretend that there is no role for this ideal to play in interpreting …

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 Contribution Of The International Tribunal For The Law Of The Sea To The Development Of The Current International Law Of The Sea, With Special Reference To The Polar Regions, Gabriela A. Oanta Associate Professor Of Public International Law

Gabriela A. Oanta Associate professor of public international law

This article analyzes the contribution of the International Tribunal for the Law of the Sea (ITLOS) to the development of the international law of the sea. On the hand, the mechanism of dispute settlement provided by UNCLOS and other international agreements adopted in the last thirty years approximately over the oceans and seas will be studied. And on the other hand, this article presents an analysis of the past, present and future activity of the International Tribunal for the Law of the Sea with regard to the two polar regions, the Arctic and the Antarctica. Antarctica lato sensu has received …

Comparative Law In A Time Of Globalization: Some Reflections, Thomas C. Kohler

Thomas C. Kohler

This piece discusses the tension between internationalization of legal ordering and the growing pressure against local and national ordering. Using Aristotle, Tocqueville, the Reception of Roman Law as forebears of the problem, I discuss three major European Court of Justice decisions (Laval, Viking and Schmidberger) as examples of the displacement of local ordering. I conclude that the task of comparative law is to focus on the importance of local ordering, keeping the human at the center and not vague principles generated by international bodies with no or little local ties.

Behavioral International Law, Tomer Broude

Tomer Broude

Economic analysis and rational choice have in the last decade made significant inroads into the study of international law and institutions, relying upon standard assumptions of perfect rationality of states and decision-makers. This approach is inadequate, both empirically and in its tendency towards outdated formulations of political theory. This article presents an alternative behavioral approach that provides new hypotheses addressing problems in international law while introducing empirically grounded concepts of real, observed rationality. First, I address methodological objections to behavioral analysis of international law: the focus of behavioral research on the individual; the empirical foundations of behavioral economics; and behavioral …

"Toiling In The Danger And In The Morals Of Despair": Risk, Security, Danger, The Constitution, And The Clinician's Dilemma, Michael L. Perlin, Alison Julia Lynch

Michael L Perlin

Abstract: Persons institutionalized in psychiatric hospitals and “state schools” for those with intellectual disabilities have always been hidden from view. Such facilities were often constructed far from major urban centers, availability of transportation to such institutions was often limited, and those who were locked up were, to the public, faceless and often seen as less than human.

Although there has been regular litigation in the area of psychiatric (and intellectual disability) institutional rights for 40 years, much of this case law entirely ignores forensic patients – mostly those awaiting incompetency-to-stand trial determinations, those found permanently incompetent to stand trial, those …

“Friend To The Martyr, A Friend To The Woman Of Shame”: Thinking About The Law, Shame And Humiliation, Michael L. Perlin, Naomi Weinstein

Michael L Perlin

The need to pay attention to the law‘s capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior has increased exponentially as we begin to also take more seriously international human rights mandates, especially – although certainly not exclusively – in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person...."

Humiliation and shaming, …

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 …

Procedural Due Process: The Distinctions Between America And Abroad, Ronald Smith

Ronald R Smith

Unexpected Insights Into Terrorism And National Security Law Through Children’S Literature: Reading The Butter Battle Book As Monstrosity, Nick J. Sciullo

Nick J. Sciullo

Legal knowledge often comes from unexpected encounters with legal theory. In this Essay, I critically analyze Dr. Seuss’s The Butter Battle Book as a source of international legal knowledge. Although this text was originally written as a criticism of the Cold War, I find modern parallels to the evolution of terrorism and national security law theorizing in the United States. As a result of this investigation, I provide a unique window onto civil society, and our continued fascination with the specter of terrorism.

Proportionality, General Principles Of Law, And Investor-State Arbitration: A Response To Jose Alvarez, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.

Corporate Social Responsibility In A Remedy-Seeking Society: A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

Written for the Chapman Law Review Symposium on “What Can Law & Economics Teach Us About the Corporate Social Responsibility Debate?,” this Article applies the lessons of public choice theory to examine corporate social responsibility. The Article adopts a broad definition of corporate social responsibility activism to include both (1) those efforts that seek to convince corporations to voluntarily take into account corporate social responsibility in their own decision-making, and (2) the efforts to alter the legal landscape and expand legal obligations of corporations beyond traditional notions of harm and duty so as to force corporations to invest in interests …

Civil Consequences Of Corruption In International Commercial Contracts, Padideh Ala'i

Padideh Ala'i