Law Commons^™

The Restatements And The Rule Of Law, Kristina Daugirdas

Book Chapters

This chapter explores the promotion of the rule of law. In drafting and publishing Restatements of Foreign Relations Law, both the American Law Institute and the reporters have understood the projects as contributing to the rule of law at the international level, at the domestic level, or both. There are at least three distinct ways that these Restatements might promote the rule of law. First, they might do so by clarifying the content of the law. Second, the Restatements might contribute to the development of new legal rules, specifically to the evolution and consolidation of customary international law. Finally, the …

Trending @ Rwu Law: Louise Ellen Teitz's Post: The Supreme Court And Cross-Border Litigation 04-04-2017, Louise Ellen Teitz

Law School Blogs

No abstract provided.

Slides: The Columbia River Basin, Barbara Cosens

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Barbara Cosens, Professor and Associate Dean of Faculty, University of Idaho College of Law, Waters of the West Interdisciplinary Program

16 slides

The Variation In The Use Of Sub-Regional Integration Courts Between Business And Human Rights Actors: The Case Of The East African Court Of Justice, James T. Gathii

Faculty Publications & Other Works

No abstract provided.

Theorizing Precedent In International Law, Harlan G. Cohen

Scholarly Works

Precedent presents a puzzle for international law. As a matter of doctrine, judicial decisions construing international law are not-in-and-of themselves law. They are not binding on future parties in future cases, even before the same tribunal. And yet, international precedent is everywhere. From international investment to international criminal law to international human rights to international trade, prior decisions are invoked, argued over, and applied as precedents by practitioners and by tribunals.

How and why do certain interpretations of international law take on the weight of precedent, reshaping international law arguments around them, while others do not? This chapter develops a …

The Bond Court's Institutional Truce, Monica Hakimi

Articles

As many readers are aware, Bond v. United States is a quirky case. The federal government prosecuted under the implementing legislation for the Chemical Weapons Convention (CWC) a betrayed wife who used chemical agents to try to harm her husband’s lover. The wife argued that, as applied to her, the implementing legislation violated the Tenth Amendment. She thus raised difficult questions about the scope of the treaty power and of Congress’s authority to implement treaties through the Necessary and Proper Clause. The Bond Court avoided those questions with a clear statement rule: “we can insist on a clear indication that …

Reconsidering Reprisals, Michael A. Newton

Vanderbilt Law School Faculty Publications

The prohibition on the use of reprisals is widely regarded as one of the most sacrosanct statements of the jus in bello applicable to the conduct of modern hostilities. The textual formulations are stark and subject to no derogations. Supporters of the bright line ban describe it as a vital bulwark against barbarity. In the words of the International Committee of the Red Cross, the prohibition is absolute, despite the fact that the declarations of key states indicate residual ambiguity over the scope of permissible reprisals, particularly in the context of non-international armed conflicts. Reprisals are a recurring feature of …

Toward A Theory Of Persuasive Authority, Chad Flanders

All Faculty Scholarship

The debate about the citation of foreign authorities has become stale. One side says that citing foreign authorities means being beholden to foreign sovereigns. The other side responds that this is nonsense, as the authorities are being used only for their "persuasive value." But do we even have a good idea of what it means to be a persuasive authority? My essay is the first to focus entirely on the notion of persuasive authority and to make the first steps towards providing a general theory of it. I make two major contributions. First, I try to show that there is …

The Vexing Problem Of Authority In Humanitarian Intervention: A Proposal, Fernando R. Tesón

Scholarly Publications

As is well known, the doctrine of humanitarian intervention raises a host of thorny issues: the threshold for intervention, the question of proportionality, the problem of last resort, the dilemma of whether or not to codify standards and procedures, and so forth. In this paper I will not address those issues; crucial and controversial as they are; I will assume that they have been somehow settled. I will also assume that it is desirable to find alternatives to unilateral intervention. The question, then, becomes this: who should authorize humanitarian intervention? Any acceptable authorizing procedure must avoid over-intervention and abuse on …

The Ad Hoc International Criminal Tribunals And A Jurisprudence Of The Deviant, Maya Steinitz

Faculty Scholarship

This short article is a synopsis of a doctoral thesis entitled Law as Communication: A Concept of International Law. Embedded in the legal theory of philosopher Joseph Raz - who argued that "whatever else the law is, it either claims legitimate authority, is held to possess it, or both" - this analysis of international law's claim of legitimate authority is based on an ethnographic study of the International Criminal Tribunals for the former- Yugoslavia and Rwanda.

The analysis of international law's claim of legitimate authority, which uses semiotics and performance-studies perspective, is then used as a basis for an examination …

The Milosevic Trial - Live: An Iconical Analysis Of International Law's Claim Of Legitimate Authority, Maya Steinitz

Faculty Scholarship

It has been argued that international law has recently "come of age", that it is a fully-fledged legal system like any other. It has also been argued that in order for a normative system to qualify as "law" it must, at the least, claim to possess legitimate authority and to be supreme to other normative systems. This article examines one highly visible development in international law - the criminal war trials - from a sociological perspective, trying to discern whether and how international law claims legitimate authority and supremacy. Specifically, it focuses on a deeply symbolic example of international criminal …

The Power Of The Senate To Amend A Treaty, Bradley M. Thompson

Articles

The recent refusal of the Senate to ratify eight general arbitration treaties which the President had concluded with Austria-Hungary, Switzerland, Great Britain, France, Portugal, Germany, Mexico,' and Norway and Sweden, until, against the protest of the President, it had modified them materially by amendment, has called public attention to the treaty-making power, and has raised the question as to whether or not any of that power is vested in the Senate.

The Power Of The Senate To Amend A Treaty, Bradley M. Thompson

Articles

The recent refusal of the Senate to ratify eight general arbitration treaties which the President had concluded with Austria-Hungary, Switzerland, Great Britain, France, Portugal, Germany, Mexico, and Norway and Sweden, until, against the protest of the President, it had modified them materially by amendment, has called public attention to the treaty-making power, and has raised the question as to whether or not any of that power is vested in the Senate.