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Full-Text Articles in Rule of Law

African Courts And International Human Rights Law, John Mukum Mbaku Aug 2023

African Courts And International Human Rights Law, John Mukum Mbaku

Brooklyn Journal of International Law

The UN General Assembly adopted the Universal Declaration of Human Rights in 1948 and since then, the international community, with the help of the United Nations, has adopted other international human rights instruments designed to recognize and protect human rights. Since international human rights instruments do not automatically confer rights that are justiciable in domestic courts, each African country must domesticate these instruments in order to create rights that are justiciable in its domestic courts. Given the fact that many African countries have not yet domesticated the core international human rights instruments, international human rights law’s ability to positively impact …

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Different Countries, Same Homophobia And Transphobia: A Cross-Cultural Survey Of So-Called Conversion Therapy Practices And The Move Toward Legislative Protections For The United States Lgbtq+ Community, Samantha J. Past Dec 2022

Different Countries, Same Homophobia And Transphobia: A Cross-Cultural Survey Of So-Called Conversion Therapy Practices And The Move Toward Legislative Protections For The United States Lgbtq+ Community, Samantha J. Past

Brooklyn Journal of International Law

So-called “conversion therapy” consists of dangerous practices that inflict detrimental, long-lasting effects on its victims. As a form of sexual orientation or gender identity or gender expression change efforts, conversion therapy is fostered by global homophobia and transphobia. Despite formal public rejection and scientific discreditation, conversion therapy providers across the world continue to target LGBTQ+ individuals, predominately under the guise of offering health care services or obeying religious practices. The following piece compares conversion therapy in three countries with recently introduced LGBTQ+ legislation––(1) Ghana; (2) Canada; and (3) the United States (U.S.)–––in order to identify factors furthering conversion therapy and …

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Is Investment Arbitration An Effective Alternative To Court Litigation? Towards A Smart Mix Of Litigation And Arbitration In Resolving Investment Disputes, Wanli Ma, Michael Faure Dec 2022

Is Investment Arbitration An Effective Alternative To Court Litigation? Towards A Smart Mix Of Litigation And Arbitration In Resolving Investment Disputes, Wanli Ma, Michael Faure

Brooklyn Journal of International Law

This article analyzes litigation and arbitration as commonly used methods for dispute resolution, more particularly between foreign investors and host states. It compares investor-state dispute settlement (ISDS) via investor-state arbitration with dispute resolution via domestic courts in the host state. The article adopts a goal-based approach for assessing the effectiveness of international adjudication and analyzes the extent to which the current ISDS system is aligned with its predetermined goals. The article starts by identifying four goals of ISDS: 1) fair and efficient dispute resolution, 2) norm compliance, 3) facilitating the objectives of the investment law regime, and 4) legitimizing the …

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Recommended Amendments To The Truth And Reconciliation Act As The Government Of Nepal Considers Prosecuting 65,411 Human Rights Cases From The Armed Conflict (1996- 2006), Sophia Ottoni-Wilhelm Dec 2022

Recommended Amendments To The Truth And Reconciliation Act As The Government Of Nepal Considers Prosecuting 65,411 Human Rights Cases From The Armed Conflict (1996- 2006), Sophia Ottoni-Wilhelm

Brooklyn Journal of International Law

The bloody Armed Conflict in Nepal (1996-2006) left an estimated 16,729 dead, 78,689 displaced, and 2,506 victims of enforced disappearance. In the seventeen years since the resolution of the Conflict, none of the 65,411 complaints brought by Conflict victims and their families have been resolved. This article argues that the Truth and Reconciliation Act (the Act) can be blamed for the stalled justice process. The Act, which created two commissions charged with the investigation and prosecution of Conflict crimes—Truth and Reconciliation Commission (TRC) and the Commission on the Investigation of Enforced Disappeared Persons (CIEDP)—must be amended so that victims and …

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Transnational Legal Process: An Evolving Theory And Methodology, Regina Jefferies Dec 2021

Transnational Legal Process: An Evolving Theory And Methodology, Regina Jefferies

Brooklyn Journal of International Law

Harold Koh introduced Transnational Legal Process in 1996 as a constructivist theory of international legal compliance which draws lessons from international legal theory and the discourse between international law and international relations scholarship. This article situates Transnational Legal Process (TLP) within the broader literature on international legal compliance and traces the theory’s evolution over the years, highlighting scholarship which addresses three critical theoretical limitations: (1) insufficient description of the actors and processes of norm internalization; (2) insufficient explanation of why States internalize certain norms; and (3) insufficient identification and description of norm-creation processes. This article uses the legal origins of …

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Gulf Of Guinea And Maritime (In)Security: Musings On Some Implications Of Applicable Legal Instruments, Edwin E. Egede Dec 2021

Gulf Of Guinea And Maritime (In)Security: Musings On Some Implications Of Applicable Legal Instruments, Edwin E. Egede

Brooklyn Journal of International Law

The Gulf of Guinea (GoG) is an enormous and diverse region consisting of approximately 6,000 km of coastline extending from Senegal to Angola. It is a maritime area of strategic importance because it is resource-rich with hydrocarbons, fish and other resources. Also, it is important as a vital maritime transit hub. Unlike certain other shipping lanes that have been identified as chokepoints, the GoG, because of its width, is not susceptible to blockades and major shipping accidents. Previously the maritime (in)security in the GoG had not received the same high-profile attention from the international community as the situation in the …

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Autonomous Weapons Systems And The Procedural Accounta- Bility Gap, Afonso Seixas-Nunes Dec 2021

Autonomous Weapons Systems And The Procedural Accounta- Bility Gap, Afonso Seixas-Nunes

Brooklyn Journal of International Law

The development and well-established principles of Internationla Humanitarian Law have been progressively establishing limits to the means and methods of warfare. Those principles and rules are necessarily applicable to future autonomous weapon systems (AWS), but questions regarding liability for violations of IHL caused by AWS have been looming the international debate. This article has two parts. The first part aims to identify a technical dimension of AWS that has been neglected by international lawyers: States responsibility for IHL violations caused by errors in AWS’ software. This article argues that “errors” can neither be identified with “malfunctions” nor attributed to human …

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High Time For A Change: How The Relationship Between Signatory Countries And The United Nations Conventions Governing Narcotic Drugs Must Adapt To Foster A Global Shift In Cannabis Law, Alexander Clementi Dec 2021

High Time For A Change: How The Relationship Between Signatory Countries And The United Nations Conventions Governing Narcotic Drugs Must Adapt To Foster A Global Shift In Cannabis Law, Alexander Clementi

Brooklyn Journal of International Law

Since the early 1970’s, the inclusion of cannabis and its byproducts in the United Nations Single Convention on Narcotic Drugs has mandated a strict prohibition on cultivation and use of the substance, which has led to a largely global practice of criminalization and imprisonment of anyone found to be in its possession. Yet recently, mostly in response to growing public health concerns, countries like Uruguay, Portugal, The Netherlands, Canada, and the United States have enacted laws which seek to decriminalize or even legalize cannabis use and possession. Yet, cannabis remains classified as a Schedule IV narcotic under the Single Convention, …

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Corpus Linguistics And The Law: Extending The Field From A Statistical Perspective, Stefan Th. Gries Sep 2021

Corpus Linguistics And The Law: Extending The Field From A Statistical Perspective, Stefan Th. Gries

Brooklyn Law Review

During the last 5–10 years, corpus-linguistic applications have slowly become more widespread in matters of legal interpretation; specifically, we see more court cases in which corpus-linguistic data are brought to bear on the (original) ordinary/public meaning of expressions in legal texts (in briefs and judicial opinions), but also more academic research focusing on if/how corpus-linguistic methods can shed light on the plain/ordinary meaning of words in a legal text.While this development is welcome, it also comes with shortcoming/risks, some of which are now hotly debated in recent and forthcoming law review articles. In particular, there is a whole family of …

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Two Types Of Empirical Textualism, Kevin Tobia, John Mikhail Sep 2021

Two Types Of Empirical Textualism, Kevin Tobia, John Mikhail

Brooklyn Law Review

Modern textualist and originalist theories increasingly center interpretation around the “ordinary” or “public” meaning of legal texts. This approach is premised on the promotion of values like publicity, fair notice, and democratic legitimacy. As such, ordinary meaning is typically understood as a question about how members of the general public understand the text—an empirical question with an objective answer. This essay explores the role of empirical methods, particularly experimental survey methods, in these ordinary meaning inquiries. The essay expresses optimism about new insight that empirical methods can bring, but it also cautions against the view that these methods will deliver …

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Data Governance And The Elasticity Of Sovereignty, Roxana Vatanparast Dec 2020

Data Governance And The Elasticity Of Sovereignty, Roxana Vatanparast

Brooklyn Journal of International Law

Traditionally, the world map and territorially bounded spaces have dominated the ways in which we imagine how states govern, make laws, and exercise their authority. Under this conception, reflected in traditional international law principles of territorial sovereignty, each state would have exclusive authority to govern and make laws over everything concerning the land within its borders. Yet developments like the proliferation of data flows, which are based on divisible, mobile, and interconnected components of data, are not territorially bounded. This presents a challenge to the traditional bases for territorial sovereignty and jurisdiction under international law, which some scholars claim is …

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Functional Statehood In Contemporary International Law, William Thomas Worster Dec 2020

Functional Statehood In Contemporary International Law, William Thomas Worster

Brooklyn Journal of International Law

The international community lacks a form of territorial-based, international legal personality distinct from statehood, and yet, non-state, territorial entities of varying degrees of autonomy or independence need to function within the international community in some form. Some of these entities cannot be recognized as states because their creation violates jus cogens norms, though others are not recognized based on an assessment that they may not fully qualify as a state or that there are political reasons to refuse recognition. However, existing states still need to engage with these territorial quasi-states through the only paradigm the international community has—statehood. For example, …

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Comity & Calamity: Deference To The Executive And The Uncertain Future Of The Fsia, Michael Cooper Jun 2020

Comity & Calamity: Deference To The Executive And The Uncertain Future Of The Fsia, Michael Cooper

Brooklyn Journal of International Law

In 1976, Congress set out to remedy the haphazard and politically influenced system by which foreign states were granted sovereign immunity from United States’ courts. Its remedy was the Foreign Sovereign Immunities Act (FSIA), which explicitly put the power to determine whether a foreign state should be granted immunity from a court’s jurisdiction in the hands of the judiciary. Moreover, with some minor exceptions, the FSIA did not explicitly contemplate any involvement from the executive branch in reaching those determinations. However, given that concerns involving foreign relations inherently arise when a foreign state is sued in U.S. courts, the courts …

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A Keystroke Causes A Tornado: Applying Chaos Theory To International Cyber Warfare Law, Daniel Garrie, Masha Simonova Jun 2020

A Keystroke Causes A Tornado: Applying Chaos Theory To International Cyber Warfare Law, Daniel Garrie, Masha Simonova

Brooklyn Journal of International Law

Cyber warfare today finds itself on the front page of the news daily. It is increasingly apparent that the cyber domain demands more guidance, with leaders opting for the deployment of cyber capabilities to bypass kinetic warfare norms. Proposed solutions abound, but none adequately address the specific features of cyber warfare that set it apart from traditional kinetic warfare. This Article argues that a new legal framework is necessary to properly address this problem, and such a doctrine should incorporate principles of chaos theory. Chaos theory is a branch of mathematics dealing with complex systems, with the most well-known example …

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Constitutionalism And Africa's Agenda 2063: How To Build "The Africa We Want", John Mukum Mbaku Jun 2020

Constitutionalism And Africa's Agenda 2063: How To Build "The Africa We Want", John Mukum Mbaku

Brooklyn Journal of International Law

In 2013, Africans, under the leadership of the African Union, set out to develop a “strategic framework for the socio-economic transformation of the continent over the next 50 years.” This new development program was expected to “accelerate the implementation of past and existing continental initiatives for growth and sustainable development.” This transformative program, called Agenda 2063: The Africa We Want, was officially adopted by the Assembly of Heads of State and Government of the African Union in Addis Ababa, Ethiopia in January 2015. The heart of this ambitious development initiative are seven aspirations, which Africans hope to achieve by the …

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Kosovo's Controversial 100 Percent Tariff: An Analysis Of Its Imposition And The Issues Bleeding Into The Conflict Between Kosovo And Serbia, Ernira Mehmetaj Jun 2020

Kosovo's Controversial 100 Percent Tariff: An Analysis Of Its Imposition And The Issues Bleeding Into The Conflict Between Kosovo And Serbia, Ernira Mehmetaj

Brooklyn Journal of International Law

On November 6, 2018, Kosovo imposed a 10 percent tariff on products imported from Serbia and Bosnia and Herzegovina. Later that month, on November 28, 2018, after Kosovo was denied membership in the International Criminal Police Organization, Kosovo increased the custom tariffs on Serbian and Bosnian goods from 10 to 100 percent. These actions resulted in a standstill of the European Union–mandated Belgrade-Pristina dialogue—a dialogue seeking to normalize the relations between the two states. Having the tumultuous history shared by Kosovo and Serbia as a backdrop, this Note analyzes the international agreements Kosovo is party to, specifically the Central European …

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How Much Do Expert Opinions Matter? An Empirical Investigation Of Selection Bias, Adversarial Bias, And Judicial Deference In Chinese Medical, Chunyan Ding Dec 2019

How Much Do Expert Opinions Matter? An Empirical Investigation Of Selection Bias, Adversarial Bias, And Judicial Deference In Chinese Medical, Chunyan Ding

Brooklyn Journal of International Law

This article investigates the nature of the operation and the role of expert opinions in Chinese medical negligence litigation, drawing on content analysis of 3,619 medical negligence cases and an in-depth survey of judges with experience of adjudicating medical negligence cases. It offers three major findings: first, that both parties to medical negligence disputes show significant selection bias of medical opinions, as do courts when selecting court-appointed experts; second, expert opinions in medical negligence litigation demonstrate substantial adversarial bias; third, courts display very strong judicial deference to expert opinions in determining medical negligence liability. This article fills the methodological gap …

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The Clone Wars: The Right To Embryonic Gene Editing Under German Law, Keren Goldberger Dec 2019

The Clone Wars: The Right To Embryonic Gene Editing Under German Law, Keren Goldberger

Brooklyn Journal of International Law

Germany has the strictest genetic engineering laws in the world and bans virtually all kinds of embryonic gene editing. Since the invention of CRISPR, however, embryonic gene editing is more precise, and the possibilities of curing genetic diseases are more real than ever. This Note will argue for the right to embryonic gene editing through an analysis of German constitutional privacy and right to life jurisprudence. Ultimately, this Note argues for a right to procreate under German law that is backed by the state’s affirmative duty to encourage and protect life. When the technology is available, German Law should not …

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Forging Taiwan’S Legal Identity, Margaret K. Lewis Jul 2019

Forging Taiwan’S Legal Identity, Margaret K. Lewis

Brooklyn Journal of International Law

The legal system in Taiwan is undergoing a transformation. Over a hundred years since the founding of the Republic of China and over thirty years since the end of martial law on Taiwan, a new legal identity is being forged. Public criticism of “dinosaur” judges and esoteric debates among law-trained elites have galvanized efforts to create a more inclusive discussion surrounding legal reforms. Taiwan is facing the challenge of moving from dinosaurs to dynamism. This Article argues that transparency, clarity, and participation both are animating principles of the current reform debate and are beginning to emerge as characteristics of Taiwan’s …

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Grinding Down The Edges Of The Free Expression Right In Hong Kong, Stuart Hargreaves Jul 2019

Grinding Down The Edges Of The Free Expression Right In Hong Kong, Stuart Hargreaves

Brooklyn Journal of International Law

In the liberal-democratic tradition limits on speech must be clear, precise, and subject to justification within the particular constitutional framework of a given jurisdiction. In the Hong Kong Special Administrative Region (HKSAR), the Court of Final Appeal has developed a line of jurisprudence that explains under which circumstances the Government of Hong Kong (Government) may seek to limit the free speech provisions contained within the Basic Law, Hong Kong's quasi-constitution. In its fight against ‘localists,’ however, rather than legislating a clear speech restriction that is consistent with this jurisprudence, the Government has instead attempted to suppress unwelcome political speech in …

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Opacity, Fragility, & Power: Lessons From The Law Enforcement Response To The Financial Crisis, Gregory M. Gilchrist Jan 2018

Opacity, Fragility, & Power: Lessons From The Law Enforcement Response To The Financial Crisis, Gregory M. Gilchrist

Brooklyn Law Review

Review of Mary Kreiner Ramirez and Steven A. Ramirez, THE CARE FOR THE CORPORATE DEATH PENALTY: RESTORING LAW AND ORDER ON WALL STREET (New York 2017) The Case for the Corporate Death Penalty, by Mary Kreiner Ramirez and Steven A. Ramirez, argues that the limited law enforcement response to the 2008 financial crisis represented an unprecedented failure of the rule of law. It further maintains that the weak response by law enforcement was caused by the economic and political power of the largest financial institutions and those who run them. It concludes that the failure to vigorously prosecute the people …

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Confounding Ockham's Razor: Minilateralism And International Economic Regulation, Eric C. Chaffee Jan 2016

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 …

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Emergency Takings, Brian Lee Dec 2015

Emergency Takings, Brian Lee

Faculty Scholarship

No abstract provided.

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The New Second Circuit Local Rules: Anatomy And Commentary, Jodi Balsam Jan 2011

The New Second Circuit Local Rules: Anatomy And Commentary, Jodi Balsam

Faculty Scholarship

No abstract provided.

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The Comparative Nature Of Punishment, Adam Kolber Dec 2009

The Comparative Nature Of Punishment, Adam Kolber

Faculty Scholarship

No abstract provided.

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Is Law - Constitutional Crisis And Existential Anxiety, Alice Ristroph Jul 2009

Is Law - Constitutional Crisis And Existential Anxiety, Alice Ristroph

Faculty Scholarship

No abstract provided.

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Sanctioning The Ambulance Chaser, Anita Bernstein Jul 2008

Sanctioning The Ambulance Chaser, Anita Bernstein

Faculty Scholarship

No abstract provided.

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Keep It Simple: An Explanation Of The Rule Of No Recovery For Pure Economic Loss, Anita Bernstein Jan 2006

Keep It Simple: An Explanation Of The Rule Of No Recovery For Pure Economic Loss, Anita Bernstein

Faculty Scholarship

No abstract provided.

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Taking Pop-Ups Seriously: The Jurisprudence Of The Infield Fly Rule, Neil B. Cohen, S. W. Waller Jul 2004

Taking Pop-Ups Seriously: The Jurisprudence Of The Infield Fly Rule, Neil B. Cohen, S. W. Waller

Faculty Scholarship

No abstract provided.

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Executive Targeting Of Congressmen As A Violation Of The Arrest Clause, Anita Bernstein Jan 1985

Executive Targeting Of Congressmen As A Violation Of The Arrest Clause, Anita Bernstein

Faculty Scholarship

No abstract provided.

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