Jurisprudence 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 …

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 …

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

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 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 …

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. …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Developing Development Theory: Law & Development Orthodoxies And The Northeast Asian Experience, John K.M. Ohnesorge

ExpressO

None of the orthodox theories about law and economic development produced in recent decades has been based on a study of the "miracle" economies of Northeast Asia, nor have any of these orthodoxies seriously been tested against the Northeast Asian experience of law and development. This article conducts such a test, finding that none of these orthodoxies fares well when its claims are tested against the Northeast Asian experience. Rather than using Northeast Asia's experience to produce yet another orthodoxy, however, this article instead proposes rethinking how we understand the task of legal technical assistance, a rethinking which is based …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The Lack Of Dissent In Wto Dispute Settlement: Is There A “Unanimity” Problem?, Meredith Kolsky Lewis

ExpressO

This article is the first piece of scholarship to analyze in detail the fact that there has been almost no dissent in World Trade Organization (WTO) dispute settlement reports. The article first examines the empirical data with respect to dissenting and concurring opinions at both the panel and Appellate Body levels. Fewer than five percent of panel reports and two percent of Appellate Body reports contain separate opinions of any kind. It second shows that the WTO is in fact actively discouraging dissents, and discusses why this might be the case. The article argues that dissents are valuable in general, …

Imperialism, Colonialism And International Law, James Gathii

ExpressO

This paper makes an original contribution by unearthing the relationship between imperialism and colonialism in nineteenth century international law. My exploration of the relationship between imperialism and colonialism concretely demonstrates how international legal doctrines surrounding British protectorates of the nineteenth century did not distinguish between imperialism as represented by the introduction of rules and practices of English private and business law into the colonies, on the one hand, and colonialism particularly as exemplified by rules of acquisition of title to territory, on the other. The introduction of English rules of property, tort and contract in the protectorate however went beyond …

Exploring The Source Of Transatlantic Antitrust Divergence, Alan J. Devlin

ExpressO

This paper seeks to explore the sources of substantive divergence between the antitrust regimes of the U.S. and EC and to present a framework upon which harmonization could potentially be achieved. While the rise of the Chicago School and post-Chicago theory have merged to ensure a central role for economics in dictating antitrust enforcement in the United States, no such clear standard has emerged in Europe. The consequences for firms operating on a transatlantic basis are potentially severe, as they have to formulate different business strategies depending on which jurisdiction they operate in. An assessment of EC law demonstrates an …

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf

ExpressO

No abstract provided.

The Perils Of "Consensus": Hans Kelsen And The Legal Philosophy Of The United Nations, J. Peter Pham

ExpressO

Recently the United States and a number of its traditional allies have clashed over a variety of foreign policy issues that are profoundly juridical: the authority for war and peace, the International Criminal Court, etc. The source of these recent tensions is to be located at a level deeper than that of narrow national interests and specific policies. Rather, they arise from significant differences concerning the nature of "consensus" and, ultimately, legal philosophy. While the United Nations and many other international organizations derive their legal visions from the philosophy of law of Hans Kelsen (1881-1973), one of the most important …