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Full-Text Articles in Law
Interpretive Entrepreneurs, Melissa J. Durkee
Interpretive Entrepreneurs, Melissa J. Durkee
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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, Melissa J. Durkee
Interstitial Space Law, Melissa J. Durkee
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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, …
Methodology And Misdirection: Custom And The Icj, Harlan G. Cohen
Methodology And Misdirection: Custom And The Icj, Harlan G. Cohen
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Associate Professor Harlan G. Cohen published "Methodology and Misdirection: Custom and the ICJ" on the European Journal of International Law's blog EILJ: Talk! on December 1, 2015.
Codifying Custom, Timothy L. Meyer
Codifying Custom, Timothy L. Meyer
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Codifying decentralized forms of law, such as the common law and customary law, has been a cornerstone of the positivist turn in legal theory since at least the nineteenth century. Commentators laud codification’s purported virtues, including systematizing, centralizing, and clarifying the law. These attributes are thought to increase the general welfare of those subject to legal rules, and therefore to justify and explain codification. The codification literature, however, overlooks codification’s distributive consequences. In so doing, the literature misses the primary motive for codification: to define legal rules in a way that advantages individual codifying institutions, regardless of how codification affects …