Law Commons^™

Even Some International Law Is Local: Implementation Of Treaties Through Subnational Mechanisms, Charlotte Ku, William H. Henning, David P. Stewart, Paul F. Diehl

Faculty Scholarship

Multilateral treaties today rarely touch on subjects where there is no domestic law in the United States, In the U.S. federal system, this domestic law may not be national law, but law of the constituent States of the United States. However, in light of the U.S. Constitution Article VI, treaties in their domestic application unavoidably federalize the subjects they address. The most sensitive issues arise when a treaty focuses on matters primarily or exclusively dealt with in the United States at the State or local level. Although U.S. practice allows for some flexibility to accommodate State/local interests, the federal government …

The Emperor’S New Clothes: The Variety Of Stakeholders In Climate Change Regulation Assuming The Mantle Of Federal And International Authority, Linda A. Malone

Faculty Publications

In June 2017, President Donald Trump announced the United States would be withdrawing from the Paris Climate Accord. President Trump believes the United States should be more focused on its economic wellbeing than on environmental concerns. Since being elected, President Trump has, with the help of the Environmental Protection Agency, been rolling back, or attempting to roll back, major climate change regulations. However, this Article points out that due to factors such as international law, the United States Constitution, and the Administrative Procedure Act, one cannotjust simply withdraw from an international agreement, such as the Paris Accord, or take back …

The Sad, Quiet Death Of Missouri V. Holland: How Bond Hobbled The Treaty Power, Robert D. Sloane, Michael Glennon

Faculty Scholarship

Many anticipated that Bond v. United States (2014) would confirm or overrule Justice Holmes’s canonical decision in Missouri v. Holland (1920). Bond is now considered to have done neither; rather, it purportedly elided the constitutional issue by applying the canon of constitutional avoidance to the treaty’s implementing legislation, thus resolving Bond on statutory grounds alone and leaving Holland’s validity for another day. We argue to the contrary that Bond eviscerated Holland. Chief Justice Roberts proceeded from the premise that “the statute — unlike the [treaty] — must be read consistent with principles of federalism inherent in our constitutional structure.” This …

Defining And Punishing Offenses Under Treaties, Sarah H. Cleveland, William S. Dodge

Faculty Scholarship

One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with its international legal commitments. The scope of Congress's constitutional authority to implement treaties has recently received particular attention. In Bond v. United States, the Court avoided the constitutional questions by construing a statute to respect federalism, but these questions are unlikely to go away. This Article contributes to the ongoing debate by identifying the Offenses Clause as an additional source of Congress's constitutional authority to implement certain treaty commitments. Past scholarship has assumed that the Article I power to "define …

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 …

Convention On The Rights Of Persons With Disabilities - Testimony Of Timothy L. Meyer Before The U.S. Senate Committee On Foreign Relations, Timothy L. Meyer

Presentations and Speeches

Testimony of Timothy L. Meyers before the U.S. Senate Foreign Relations Committee on November 5, 2013 concerning the Convention on the Rights of Persons with Disabilities.

The Supremacy Clause As Structural Safeguard Of Federalism: State Judges And International Law In The Post-Erie Era, Sam F. Halabi

Faculty Publications

Against a backdrop of state constitutional and legislative initiatives aimed at limiting judicial use of international law, this Article argues that state judges have, by and large, interpreted treaties and customary international law so as to narrow their effect on state law-making prerogatives. Where state judges have used international law more liberally, they have done so to give effect to state executive and legislative objectives. Not only does this thesis suggest that the trend among state legislatures to limit state judges' use of international law is self-defeating, it also gives substance to a relatively unexplored structural safeguard of federalism: state …

From Rapists To Superpredators: What The Practice Of Capital Punishment Says About Race, Rights And The American Child, Robyn Linde

Faculty Publications

At the turn of the 20^th century, the United States was widely considered to be a world leader in matters of child protection and welfare, a reputation lost by the century’s end. This paper suggests that the United States’ loss of international esteem concerning child welfare was directly related to its practice of executing juvenile offenders. The paper analyzes why the United States continued to carry out the juvenile death penalty after the establishment of juvenile courts and other protections for child criminals. Two factors allowed the United States to continue the juvenile death penalty after most states in …

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 …

Implementing The Standby Letter For Credit Convention With The Law Of Wyoming, James J. White

Articles

For the first time in American practice, we propose to implement a convention by a federal adoption of law previously enacted by the states – from Wyoming to New York – to implement the Convention on Independent Guarantees and Standby Letters of Credit (“Convention”).1

Treaties And The Separation Of Powers In The United States: A Reassessment After Medellin V. Texas, Ronald A. Brand

Articles

This article considers Chief Justice Roberts' majority opinion in the case of Medellin v. Texas. Like much of the commentary on this case, the article considers the international law implications of the opinion and its consideration of the doctrine of self-executing treaties. The primary focus here, however, consistent with the symposium in which this paper was presented, is on the opinion's implications for the separation of powers and for federalism. While the opinion's discussion of international law and treaty implementation can be considered dicta, the separation of powers and federalism portions may be seen as more directly necessary to …

The Federal Common Law Of Nations, Anthony J. Bellia, Bradford R. Clark

Journal Articles

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' perfect rights (or close analogues) under the …

Foreign Affairs, International Law, And The New Federalism: Lessons From Coordination, Robert B. Ahdieh

Faculty Scholarship

Even after the departure of two of its most prominent advocates - Chief Justice William Rehnquist and Justice Sandra Day O'Connor - the federalism revolution initiated by the Supreme Court almost twenty years ago continues its onward advance. If recent court decisions and congressional legislation are any indication, in fact, it may have reached a new beachhead in the realm of foreign affairs and international law. The emerging federalism in foreign affairs and international law is of a distinct form, however, with distinct implications for the relationship of sub-national, national, and international institutions and interests.

This article - prepared for …

Rethinking The Political Future: An Alternative To The Ethno-Sectarian Division Of Iraq, Paul Williams, Matt Simpson

Articles in Law Reviews & Other Academic Journals

In the coming year, the political leadership in Iraq will need to make a final determination as to whether they are going to structure the state of Iraq as a federal state with ethnically heterogeneous provinces, a loose federal state with ethnically defined provinces or regions, or whether they are going to divide the state into three new states based on ethno-sectarian lines.

A number of prominent American law makers and foreign policy shapers have strongly advocated for the soft, and sometimes hard, partition of Iraq — either through the creation of a loose federal structure based on ethno-sectarian lines, …

Legal Certainty And Legal Methods: A European Alternative To American Legal Indeterminacy?, James Maxeiner

All Faculty Scholarship

Americans are resigned to a high level of legal indeterminacy. This Article shows that Europeans do not accept legal indeterminacy and instead have made legal certainty a general principle of their law. This Article uses the example of the German legal system to show how German legal methods strive to realize this general European principle. It suggests that these methods are opportunities for Americans to develop their own system to reduce legal indeterminacy and to increase legal certainty.

Federalism And Private International Law: Implementing The Hague Choice Of Court Convention In The United States, Stephen B. Burbank

All Faculty Scholarship

Federalism is important in the United States. It is also important that the United States be able to participate effectively in a global economy and that those charged with the conduct of the country's foreign affairs be able to make, and that the country abide by, international agreements that are designed to facilitate transnational commercial activity. The Hague Choice of Court Convention is one such agreement, the modest fruits of more than a decade of work in an international lawmaking effort that was initiated by the United States. However modest the fruits of the enterprise, the rest of the world …

Federalism And The Allocation Of Sovereignty Beyond The State In The European Union, Ronald A. Brand

Articles

Any discussion of federalism necessarily runs headlong into concepts of sovereignty, with both terms being subject to Tocqueville's statement that, in discussing federalism, "the human understanding more easily invents new things than new words." Thus, just as systems previously considered to have been "federal" at the dawn of the United States of America were something much different from what was developed for our nation at that time, so is the "federal" system of today's United States different from anything to which we make comparisons.

This article reviews a paper by Professor Peter Tettinger's, and extends his analysis. As Professor Tettinger …

Inter-American System, Diego Rodriguez-Pinzon

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Treaties And International Regulation, Lori Fisler Damrosch

Faculty Scholarship

The authority of Missouri v. Holland is in no way impaired by developments of the last decade. While Justice Holmes rejected the view that "invisible radiation" from the Tenth Amendment could restrict the treaty power, his approach accepts that a treaty cannot violate "prohibitory words" in the Constitution. Some prohibitory words explicitly protect the interests of the states as against the national government. For example, the framers clearly meant the prohibition in Article I, section 9 on export taxes to bar one form of potential federal taxation that the Southern states found worrisome. In the face of this specific prohibition, …

The Law Of Nations And The Offenses Clause Of The Constitution: A Defense Of Federalism, Michael T. Morley

Scholarly Publications

No abstract provided.

Treaties And The Eleventh Amendment, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The Supreme Court's recent invigoration of federalism doctrine has revived a question that had long lain dormant in constitutional law: whether and to what extent federalism limits apply to exercises of the Treaty Power. In the days before the famous switch in time that saved nine, the Court in Missouri v. Holland upheld a statute passed by Congress to implement a treaty even though it assumed that the statute would exceed Congress's legislative power under Article I in the absence of the treaty. The significance of this holding abated considerably when the Court embraced a broader interpretation of the Commerce …

Starbucks And The New Federalism: The Court's Answer To Globalization, Robert Knowles

Law Faculty Publications

No abstract provided.

Nineteenth-Century Orthodoxy, Richard B. Collins

Publications

No abstract provided.

The Globalizing State: A Future-Oriented Perspective On The Public/Private Distinction, Federalism, And Democracy, Alfred C. Aman

Articles by Maurer Faculty

No abstract provided.

Sovereignty By Subtraction: The Multilateral Agreement On Investment, Robert Stumberg

Georgetown Law Faculty Publications and Other Works

The proposed Multilateral Agreement on Investment (MAl) represents a major step in the evolution of "sovereignty," which includes the power of a nation-state to govern without external controls. A panelist at the 1998 Cornell International Law journal Symposium introduced the MAl as an example of "multilateral sovereignty" to achieve commonly held goals of global economic integration. This perspective posits that the MAl is an exercise in sovereignty by subtraction, aiming to limit governing power rather than promote its joint exercise.

Its critics call the MAl a "slow motion coup d'etat," a "bill of rights for investors," a threat to sovereignty, …

International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi

LLM Theses and Essays

With the increase of foreign trade, there has also been an increase in the number of foreign manufacturers and distributors involved in product liability litigation in the United States. In many cases, the products from these foreign manufacturers and distributors reach the forum states through the stream of commerce, and are distributed to the customers by regional distributors, wholesalers, and retailers. Therefore, in many product liability cases where defective products from these foreign manufacturers and distributors cause injuries to people in the United States, those foreign companies do not have a direct relationship with the forum states. In these cases, …

European Integration: Beyond 1992, Lloyd Bonfield

Articles & Chapters

No abstract provided.

Applying The International Law Of Sovereign Immunity To The States Of The Union, John M. Rogers

Law Faculty Scholarly Articles

A state of the Union may preserve its immunity from suit in its own courts, and the Constitution restricts its amenability to suit in the federal courts. Yet in Nevada v. Hall the Supreme Court held that in a motor-vehicle accident case a state cannot claim a constitutional immunity from suit in the courts of a sister state. The Court indicated, however, that if a suit involved a defendant state's “capacity to fulfill its own sovereign responsibilities,” different constitutional considerations might control. In vigorous dissents Justices Blackmun and Rehnquist argued that the reasoning of the majority precluded even this possibility. …