Law Commons^™

The Failure To Grapple With Racial Capitalism In European Constitutionalism, Jeffrey Miller

Articles in Law Reviews & Other Academic Journals

Since the 1980s prominent scholars of European legal integration have used the example of U.S. constitutionalism to promote a federal vision for the European Community. These scholars, drawing lessons from developments across the Atlantic, concluded that the U.S. Supreme Court had played a key role in fostering national integration and market liberalization. They foresaw the possibility for the European Court of Justice (ECJ) to be a catalyst for a similar federal and constitutional outcome in Europe. The present contribution argues that the scholars who constructed today’s dominant European constitutional paradigm underemphasized key aspects of the U.S. constitutional experience, including judgments …

Obligations Versus Rights: Substantive Difference Between Wto And International Investment Law, Chios Carmody

Law Publications

WTO law remains relatively uncontentious whereas international investment law elicits much more debate. This article posits that the differences in reception are attributable to deeper substantive differences about what is protected under each regime. In WTO law what is protected is the sum total of all commitments and concessions under the WTO Agreement, something that can be thought of as a “public” good. When a country injures that good, the remedy is for the country to cease the injury, a requirement that naturally places emphasis on obligation. In international investment law, by contrast, what is protected is individualized to a …

Law And Recognition-- Towards A Relational Concept Of Law, Ralf Michaels

Faculty Scholarship

Law is plural. In all but the simplest situations multiple laws overlap—national laws, subnational laws, supranational laws, non-national laws.

Our jurisprudential accounts of law have mostly not taken this in. When we speak of law, we use the singular. The plurality of laws is, at best an afterthought. This is a mistake. Plurality is built into the very reality of law.

This chapter cannot yet provide this concept; it can serve only develop one element. That element is recognition. Recognition is amply discussed in the context of Hart’s rule of recognition, but this overlooks that recognition matters elsewhere, too. My …

Toward A Political Theory For Private International Law, John Linarelli

Scholarly Works

Private international law presents a dilemma for legal and political philosophy. Legal and political philosophers have ignored private international law, with only a few scattered attempts to evaluate its claims. Private international law offers a powerful set of counterexamples that put into serious doubt attempts to link law’s authority only or primarily to relationships between states and citizens. No society, state, or other practice-mediated relationship can serve as grounds for the authority of private international law to persons to whom it applies but who are outside of such relationships. Private international law affects the normative situations of persons entirely outside …

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber In Sheep's Clothing, Mark A. Summers

Faculty Scholarship

No abstract provided.

Prosecuting Generals For War Crimes The Shifting Sands Of Accomplice Liability In International Criminal Law, Mark A. Summers

Faculty Scholarship

No abstract provided.

International Law And Dworkin's Legal Monism, Michael S. Green

Popular Media

No abstract provided.

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber Is Sheep's Clothing, Mark A. Summers

Faculty Scholarship

No abstract provided.

The Problem Of Risk In International Criminal Law, Mark A. Summers

Faculty Scholarship

No abstract provided.

The Judge And The Drone, Justin Desautels-Stein

Publications

Among the most characteristic issues in modern jurisprudence is the distinction between adjudication and legislation. In the some accounts, a judge's role in deciding a particular controversy is highly constrained and limited to the application of preexisting law. Whereas legislation is inescapably political, adjudication requires at least some form of impersonal neutrality. In various ways over the past century, theorists have pressed this conventional account, complicating the conceptual underpinnings of the distinction between law-application and lawmaking. This Article contributes to this literature on the nature of adjudication through the resuscitation of a structuralist mode of legal interpretation. In the structuralist …

Legal Rhetoric And Social Science: A Hypothesis For Why Doctrine Matters In Judicial Decisionmaking, Brett Waldron

Pace International Law Review Online Companion

In the realm of American jurisprudence, little draws more excitement or controversy than investigating the role of federal judges in our constitutional order. Yet, at the same time, the scholarly literature has not settled upon a singular descriptive device to explain how federal judges actually carry out this role. In broad strokes, current academic commentary appears to be divided on the issue of whether fidelity to the law or fidelity to political ideology largely determines how judges decide cases. This division, however interesting it may be, should not be afforded the luxury of being examined on a level playing field. …

International Legal Positivism And Legal Realism, D. A. Jeremy Telman

Law Faculty Publications

This chapter, a contribution to a book on International Legal Positivism in a Post-Modern World, gauges the potential for mutually enriching interactions between international legal positivism and legal realism. It first describes the encounter between legal positivism and legal realism in the U.S. legal academy and then proceeds to discuss the rise of a new legal realism in international legal theory. In a concluding section, the chapter assesses the compatibilities and tensions between the new international legal realism and the new international legal positivism.

With its forthright embrace of the inescapability of uncertainty in law, the new international legal …

Effect Precedes Cause: Kant And The Self-In-Itself, David G. Carlson

Articles

This article describes the metaphysics of Kant, according to which we never know the Thing In Itself but only the appearance of it. When applied to selfhood (which is a “thing”), Kant implies that we never know what motivates us to do what we do. Our reasons are after-the-fact apologies to justify our acts. For that reason the “cause” of our deed always (that is to say, our reasons) follows the deed itself. Effect precedes cause, on Kantian metaphysics.

Kenya Vs. The Icc Prosecutor, Charles Chernor Jalloh

Faculty Publications

No abstract provided.

Theater Of International Justice, Jessie Allen

Articles

In this essay I defend international human rights tribunals against the charge that they are not “real” courts (with sovereign force behind them) by considering the proceedings in these courts as a kind of theatrical performance. Looking at human rights courts as theater might at first seem to validate the view that they produce only an illusory “show” of justice. To the contrary, I argue that self-consciously theatrical performances are what give these courts the potential to enact real justice. I do not mean only that human rights tribunals’ dramatic public hearings make injustice visible and bring together a community …

Are Institutions And Empiricism Enough? A Review Of Allen Buchanan, Human Rights, Legitimacy, And The Use Of Force, Matthew J. Lister

All Faculty Scholarship

Legal philosophers have given relatively little attention to international law in comparison to other topics, and philosophers working on international or global justice have not taken international law as a primary focus, either. Allen Buchanan’s recent work is arguably the most important exception to these trends. For over a decade he has devoted significant time and philosophical skill to questions central to international law, and has tied these concerns to related issues of global justice more generally. In what follows I review Buchanan’s new collection of essays, Human Rights, Legitimacy, and the Use of Force, paying special attention to …

Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin

Faculty Scholarship

Since 2001 the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political orders. These controversies raise anew two critical questions for ECHR jurisprudence: first, regarding the proper scope of the right to religious freedom; and second, regarding the …

The Relation Of Theories Of Jurisprudence To International Politics And Law, Anthony D'Amato

Faculty Working Papers

In this essay we shall be concerned with the real world relevance of theories of international law; that is, with the question of the theories themselves as a factor in international decision-making. To do this it is first necessary to review briefly the substance of the jurisprudential debate among legal scholars, then to view some basic jurisprudential ideas as factors in international views of "law," and finally to reach the question of the operative difference a study of these theories might make in world politics.

The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud

Articles & Book Chapters

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

What Is Due To Others: Speaking And Signifying Subject(S) Of Rape Law, Penelope J. Pether

Working Paper Series

Australian journalist Paul Sheehan's representation of the alleged and convicted immigrant Muslim/Arab rapists he demonises in 'Girls Like You', like his representation of the rape survivors in that text, has much to tell us about the law's production of rape law's speaking and signifying subjects, “real rape” victims and survivors, false accusers and perpetrators. This article uses a variety of texts, including 'Girls Like You', recent Australian rape law jurisprudence and legislative reform, texts involving two controversial recent US rape cases — one from Maryland and one from Nebraska — and a recent UK study on attrition in rape prosecutions, …

A No-Excuse Approach To Transitional Justice: Reparations As Tools Of Extraordinary Justice, David C. Gray

Faculty Scholarship

It is sometimes the case that a debate goes off the rails so early that riders assume the rough country around them is the natural backdrop for their travels. That is certainly true in the debate over reparations in transitions to democracy. Reparations traditionally are understood as material or symbolic awards to victims of an abusive regime granted outside of a legal process. While some reparations claims succeed—such as those made by Americans of Japanese decent interned during World War II and those made by European Jews against Germany after World War II—most do not. The principal culprits in these …

Balancing Security And Liberty In Germany, Russell A. Miller

Scholarly Articles

Scholarly discourse over America’s national security policy frequently invites comparison with Germany’s policy. Interest in Germany’s national security jurisprudence arises because, like the United States, Germany is a constitutional democracy. Yet, in contrast to the United States, Germany’s historical encounters with violent authoritarian, anti-democratic, and terrorist movements have endowed it with a wealth of constitutional experience in balancing security and liberty. The first of these historical encounters – with National Socialism – provided the legacy against which Germany’s post-World War II constitutional order is fundamentally defined. The second encounter – with leftist domestic radicalism in the 1970s and 1980s – …

Consent, Estoppel, And Reasonableness: Three Challenges To Universal International Law, Anthony D'Amato

Faculty Working Papers

Like consent and estoppel, the concept of reasonableness, while failing to provide an adequate explanation of the source of obligation in customary international law, does play an important psychological role in adding to the pressure of international norms upon states. The result is to increase the sense of legality of the rules that are accepted by states as part of "customary international law." This is not to say that each and every alleged rule of universal international law must contain one or more of the elements of consent, estoppel, or reasonableness in order for it to be "valid."

Inter-American System, Claudia Martin

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Book Review: The Iraq War And International Law, Maxwell O. Chibundu

Faculty Scholarship

A review of The Iraq War and International Law edited by Phil Shiner and Andrew Williams. Oxford, Hart Publishing, 2008.

Book Review: Henry J. Richardson Iii, The Origins Of African-American Interests In International Law, D. A. Jeremy Telman

Law Faculty Publications

This short review evaluates Professor Richardson's book both as a contribution to the history of the Atlantic slave trade and as contribution to critical race theory.

Professor Richardson has read innumerable historical monographs, works of legal and sociological theory, international law and critical race theory. Armed with this store of knowledge, he is able to recount a detailed narrative of African-American claims to, interests in and appeals to international law over approximately two centuries spanning, with occasional peeks both forward and backward in time, from the landing of the first African slaves at Jamestown in 1619 to the 1815 Treaty …

The New Poor At Our Gates: Global Justice Implications For International Trade And Tax Law, Ilan Benshalom

Faculty Working Papers

The Article explains why international trade and tax arrangements should advance global wealth redistribution in a world of enhanced economic integration. Despite the indisputable importance of global poverty and inequality, contemporary political philosophy stagnates over the controversy of whether distributive justice obligations should extend beyond the political framework of the nation state. This stagnation results from the difficulty of reconciling liberal impartiality with notions of state sovereignty and accountability. The Article offers an alternative approach that bypasses the controversy of the current debate. It argues that international trade results in relational distributive duties when domestic parties engage in transactions with …

Inter-American System, Claudia Martin

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Wto And The Anti-Corruption Movement, Padideh Ala'i

Articles in Law Reviews & Other Academic Journals

This article explores the role of the World Trade Organization (WTO) in promoting good governance while placing WTO within the larger framework of the ongoing global anti-corruption movement. Governmental policies aimed at fighting corruption are part of the good governance criteria set forth by the World Bank and other donor agencies. An important element of good governance is transparency, which has also been one of the pillars of the multilateral trading system. This article argues that from the perspective of the post-Cold War anti-corruption movement, the WTO is an important institution because it provides a comparatively successful forum for the …

Extraterritoriality, Antitrust, And The Pragmatist Style, Justin Desautels-Stein

Publications

In the last decades of the 20th century, David Kennedy and Martti Koskenniemi made the case that the modern structure of international legal argument was characterized by "pragmatism." Taking this idea as its baseline, this Article's central argument is that legal pragmatism embodies a dominant style of contemporary legal reasoning, and that as Kennedy and Koskenniemi might have suggested, it is on display in some of the canonical antitrust decisions having an international dimension. The Article also seeks to show that pragmatism's ostensible triumph is best understood as a contest of three distinctly legal pragmatisms: "eclectic pragmatism," as evidenced in …