Social and Behavioral Sciences Commons^™

Introduction To The Symposium On Digital Evidence, Melinda (M.J.) Durkee, Tamar Megiddo

Scholarship@WashULaw

The past few decades have seen radical advances in the availability and use of digital evidence in multiple areas of international law. Witnesses snap cellphone photos of unfolding atrocities and post them online, while others share updates in real time through messaging apps. Immigration officers search cell phones. Private citizens launch open-source online investigations. Investigators scrape social media posts. Digital experts verify authenticity with satellite geolocation. These new types of evidence and digitally facilitated methods and patterns of evidence gathering and analysis are revolutionizing the everyday practice of international law, drawing in an ever-wider circle of actors who can contribute …

Introduction To The Symposium On Digital Evidence, Melinda (M.J.) Durkee, Megiddo Tamar

Scholarship@WashULaw

The past few decades have seen radical advances in the availability and use of digital evidence in multiple areas of international law. Witnesses snap cellphone photos of unfolding atrocities and post them online, while others share updates in real time through messaging apps. Immigration officers search cell phones. Private citizens launch open-source online investigations. Investigators scrape social media posts. Digital experts verify authenticity with satellite geolocation. These new types of evidence and digitally facilitated methods and patterns of evidence gathering and analysis are revolutionizing the everyday practice of international law, drawing in an ever-wider circle of actors who can contribute …

The Pledging World Order, Melinda (M.J.) Durkee

Scholarship@WashULaw

There is an emerging world order characterized by unilateral pledges within a legal or “legal-ish” architecture of commitments. The pledging world order has materialized in the international legal response to climate change and in other diverse sites. It crosses and blurs the public-private divide. It erodes distinctions between multilateralism and localism, law and not-law, and progress and stasis. It is both a symptom of and a contributor to the dismantling of the Westphalian and postwar orders. Its report card is mixed: While pledging can be highly ineffective as a legal technology, the pledging world order may respond to some legitimacy …

Industry Groups In International Governance: A Framework For Reform, Melinda (M.J.) Durkee

Scholarship@WashULaw

The Sustainable Development Goals and the UN Guiding Principles on Business and Human Rights encourage engaging with businesses as partners in important global governance agendas. Indeed, many international organizations are now partnering with business groups to secure funding and private sector engagement. At the same time, reforms at the World Health Organization, Food and Agriculture Organization and others seek to restrain the dangers of mission distortion and capture by business groups. Shareholders at major multinational oil and gas companies also recognize these dangers and seek to rein in lobbying that is at odds with the goals of the Paris Climate …

Space Law As Twenty-First Century International Law, Melinda (M.J.) Durkee

Scholarship@WashULaw

Space law’s current moment reflects international law’s current moment. That is, lawmaking processes aimed at updating international space law for the commercial space age reveal three larger themes about international lawmaking in the twenty-first century. These themes are: (a) evolutive lawmaking efforts by states; (b) the parallel development of laws in different fora by different actors; and (c) interpretive entrepreneurship by private actors. The themes are interrelated. They offer one story—but not the only possible story—about how international law develops when multilateral cooperation is out of reach. Together, the themes forecast a more pluralist international legal future, demanding new forms …

Interpretive Entrepreneurs, Melinda (M.J.) Durkee

Scholarship@WashULaw

Private actors interpret legal norms, a phenomenon I call “interpretive entrepreneurship.” The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution and there is no official system of precedent. Interpretation can affect the meaning of laws over time. For this reason, it can be a form of “post hoc” international lawmaking, worth studying alongside other forms of international lobbying and norm entrepreneurship by private actors. The Article identifies and describes the phenomenon through a series of case studies that show how, why, and by whom it unfolds. The examples focus on entrepreneurial …

Interstitial Space Law, Melinda (M.J.) Durkee

Scholarship@WashULaw

Conventionally, customary international law is developed through the actions and beliefs of nations. International treaties are interpreted, in part, by assessing how the parties to the treaty behave. This Article observes that these forms of uncodified international law—custom and subsequent treaty practice—are also developed through a nation’s reactions, or failures to react, to acts and beliefs that can be attributed to it. I call this “attributed lawmaking.”

Consider the new commercial space race. Innovators like SpaceX and Blue Origin seek a permissive legal environment. A Cold-War-era treaty does not seem adequately to address contemporary plans for space. The treaty does, …

A Life Absolutely Bare? A Reflection On Resistance By Irregular Refugees Against Fingerprinting As State Biopolitical Control In The European Union, Ziang Zhou

Claremont-UC Undergraduate Research Conference on the European Union

In a legally transitory category, irregular refugees- experience a double precariousness. They risk their lives to travel across treacherous seas to Europe for a better life. However, upon the long-awaited embarkation on the European land, they are exposed once again to the precariousness of the asylum application. They are “powerless”, “with no rights” and “to be sacrificed” as Giorgio Agamben and Hannah Arendt suggested in their respective understanding of a “bare life”, la nuda vita. In light of the administrative difficulties in managing asylum application, the European Union introduced the “Dublin Agreement”, which stipulates mandatory biometric data collection for …

International Lobbying Law, Melinda (M.J.) Durkee

Scholarship@WashULaw

An idiosyncratic array of international rules allows nonstate actors to gain special access to international officials and lawmakers. Historically, many of these groups were public-interest associations like Amnesty International. For this reason, the access rules have been celebrated as a way to democratize international organizations, enhancing their legitimacy and that of the rules they produce. But a focus on the classic public-law virtues of democracy and legitimacy produces a theory at odds with the facts: The international rules rules also offer access to industry and trade associations like the World Coal Association, whose principal purpose is to lobby for their …

Astroturf Activism, Melinda (M.J.) Durkee

Scholarship@WashULaw

Corporate influence in government is more than a national issue; it is an international phenomenon. For years, businesses have been infiltrating international legal processes. They secretly lobby lawmakers through front groups: “astroturf” imitations of grassroots organizations. But because this business lobbying is covert, it has been underappreciated in both the literature and the law. This Article unearths the “astroturf activism” phenomenon. It offers an original descriptive account that classifies modes of business access to international officials and identifies harms, then develops a critical analysis of the laws that regulate this access. I show that the perplexing set of access rules …

Rape And Sexual Violence: Questionable Inevitability And Moral Responsibility In Armed Conflict, Katherine W. Bogen

Scholarly Undergraduate Research Journal at Clark (SURJ)

Wartime sexual violence is a critical human rights issue that usurps the autonomy of its victims as well as their physical and psychological safety. It occurs in both ethnic and non-ethnic wars, across geographic regions, against both men and women, and regardless of the “official” position of commanders, states, and armed groups on the use of rape as tactic of war. This problem is current, pervasive, and global in spite of the status of wartime sexual violence perpetration as a crime against humanity and the capacity of the international criminal court to indict offenders. Though some scholars have argued that …

Persuasion Treaties, Melinda (M.J.) Durkee

Scholarship@WashULaw

All treaties formalize promises made by national parties. Yet there is a fundamental difference between two kinds of treaty promise. This difference divides all treaties into two categories: treaties that govern the behavior of state parties and their agents fall in one category; treaties in the second category—those I call “persuasion” treaties—commit state parties to changing the behavior of non-state actors as well. The difference is important because the compliance problems for the two sets of treaties sharply diverge. Persuasion treaties merit our systematic attention because they are both theoretically and practically significant. In areas such as international environmental affairs, …

Gender And Global Lawyering: Where Are The Women?, Steven Boutcher, Carole Silver

Carole Silver

The dual processes of diversity and globalization are responsible for significant growth among U.S. law firms: female lawyers account for much of the increase in headcount in large law firms over the last several decades, and lawyers educated and licensed in jurisdictions outside of the U.S. have helped U.S.-based law firms expand internationally. This article draws on data gathered from lawyer biographies to examine the relationship between gender diversity and globalization, and considers whether career strategies that involve the international movement of lawyers are equally powerful for women and men. Our research suggests that gender inequality is not erased by …

Law Reform On Sexual And Gender-Based Crimes In Mass Violence, Saumya Uma

Dr. Saumya Uma

Is An International Treaty Needed To Fight Corruption And The Narco-Insurgency In Mexico?, Stuart S. Yeh

Stuart S Yeh

Mexican government corruption prevents effective law enforcement against drug traffickers and the violence associated with drug trafficking. This article reviews the nature and scope of government corruption, including a first-hand account by a Mexican state police commander, then suggests how and why an international treaty establishing United Nation (UN) inspectors who are empowered to investigate corruption at all levels of government could be effective in deterring corruption and restoring the rule of law in the U.S.–Mexico border region. The article suggests that the Rome Statute provides a model for establishing this type of treaty and a precedent for all of …

International Civil Litigation In U.S. Courts: Becoming A Paper Tiger?, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

New Approaches To Customary International Law, Anthony D'Amato

Faculty Working Papers

Reviews Eric A. Posner, The Perils of Global Legalism; Andrew T. Guzman, How International Law Works; Brian A. Lepard, Customary International Law.

After a century of benign neglect, international theorizing has taken off. The three contributors to legal theory reviewed here can be placed along a linear spectrum with Posner at the extreme political science end, Lepard at the opposite international law end and Andrew Guzman holding up the middle.

Head-Of-State And Foreign Official Immunity In The United States After Samantar: A Suggested Approach, Christopher Totten

Faculty and Research Publications

This Article consists of four parts. Part I addresses the US approach to immunity for current and former foreign heads of state as well as the related issue of foreign official immunity. Part I includes a discussion of the 2010 US Supreme Court case of Samantar, which addresses foreign official immunity. Part II explores head-of-state and official immunity under international law, including a discussion of Democratic Republic of the Congo v. Belgium decided by the International Court of Justice ("ICJ"), the Charles Taylor immunity decision of the Special Court for Sierra Leone, the ongoing case by the ICC against Sudanese …

International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White

All Faculty Scholarship

Though international criminal justice has developed into a flourishing judicial system over the last two decades, scholars have neglected institutional design and procedure questions. International criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law’s main purpose should be not only to inflict retribution, but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, more stable career paths, and civil-service expertise. It also needs to draw on the domestic experience of federalism …

Clitoridectomy And The Economics Of Islamic Marriage And Divorce Law - Ryan M Riegg - 2009, Ryan M. Riegg

Ryan M. Riegg

No abstract provided.

Treatment Differences And Political Realities In The Gaap-Ifrs Debate, William W. Bratton, Lawrence A. Cunningham

All Faculty Scholarship

No abstract provided.

Behavioral Economic Issues In American & Islamic Marriage & Divorce Law, Ryan M. Riegg

Ryan M. Riegg

The Soft Power And Persuasion Of Translations In The War On Terror: Words And Wisdom In The Transformation Of Legal Systems, Donald J. Kochan

Donald J. Kochan

The power of words is the power of persuasion. The exportation of the foundational legal principles that helped form the American republic can serve as instrumental "soft power" tools in the war on terror. Efforts promoting projects like the Arabic Book Program are important vehicles to cross-cultural and cross-lingual international relations. This Article argues that an arsenal of words can be as, or more, powerful than an arsenal of artillery. The West has much to offer, but the rest of the world needs to be able to read it without getting lost in translation. Providing linguistic access to the documents …

The Future Of International Law Is Domestic (Or, The European Way Of Law), William W. Burke-White, Anne-Marie Slaughter

All Faculty Scholarship

No abstract provided.

Responsibilities Of Judges And Advocates In Civil And Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits, Geoffrey C. Hazard Jr., Angelo Dondi

All Faculty Scholarship

No abstract provided.

Boyakasha, Fist To Fist: Respect And The Philosophical Link With Reciprocity In International Law And Human Rights, Donald J. Kochan

Donald J. Kochan

Imputed Conflicts Of Interest In International Law Practice, Geoffrey C. Hazard Jr.

All Faculty Scholarship

No abstract provided.

Jurisdictional Conflict And Jurisdictional Equilibration: Paths To A Via Media, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Vultures Or Vanguards?: The Role Of Litigation In Sovereign Debt Restructuring, Jill E. Fisch, Caroline M. Gentile

All Faculty Scholarship

The market for sovereign debt differs from the market for corporate debt in several important ways including the risk of opportunistic default by sovereign debtors, the importance of political pressures, and the presence of international development organizations. Moreover, countries are subject to neither liquidation nor standardized processes of debt reorganization. Instead, negotiations between a sovereign debtor and its creditors lead to a voluntary restructuring of the sovereign's debt. One of the greatest difficulties in restructuring claims against sovereign debtors is balancing the interests of the majority of the creditors with those of minority creditors. Holdout creditors serve as a check …

The Conceptual Jurisprudence Of The German Constitution, William Ewald

All Faculty Scholarship

No abstract provided.