Law Commons^™

Metaphors Of International Law, Harlan G. Cohen

Scholarly Works

This chapter explores international law in search of its hidden and not-so-hidden metaphors. In so doing, it discovers a world inhabited by states, where rules are mined or picked when ripe, where trade keeps boats forever afloat on rising tides. But is also unveils a world in which voices are silenced, inequality is ignored, and hands are washed of responsibility.

International law is built on metaphors. Metaphors provide a language to describe and convey the law’s operation, help international lawyers identify legal subjects and categorize situations in doctrinal categories, and provide normative justifications for the law. Exploring their operation at …

Are We (Americans) All International Realists Now?, Harlan G. Cohen

Scholarly Works

Is American international law distinctly legal realist? The claim is often made, but underexplored. What would it mean for American international law scholarship and practice to be legal realist in its orientation? Where would such an orientation come from, and what do those origin stories mean for current international law work? Are there common realist-inspired approaches within the varied schools of American international law scholarship? Does wielding those approaches produce distinctly American views on international law doctrine, its operation, or its function? And if American international law scholarship and practice is, in these ways, somewhat distinct, what does it mean …

International Law As Behavior: An Agenda, Harlan G. Cohen, Timothy Meyer

Scholarly Works

Over the past few decades, scholars in a variety of fields – economics, psychology, sociology, anthropology, and international relations, among others – have made enormous strides studying the behavioral roots of international law by exploring individual motivations, describing organizational cultures, and mapping communities of practice. Taken together, the work of these scholars presents a complex, nuanced understanding of how international law works. However, these projects are rarely considered together: often separated by academic enclosures and focused on different subfields within international law, communication among scholars using different methodologies is restricted. The goal of this book is to break down some …

The Primitive Lawyer Speaks!: Thoughts On The Concepts Of International And Rabbinic Laws, Harlan G. Cohen

Scholarly Works

A feature of the Norman J. Shachoy Symposium: The Rabbinic Idea of Law: Interactions and Implications

Inspired by Chaim Saiman’s brilliant book, Halakhah: The Rabbinic Idea of Law, this essay draws connections between the lived experiences of international law and Jewish law, focusing in particular on (1) the centrality of practice, (2) the search for and construction of authority in communities of practice (the “invisible college”), (3) the challenges and opportunities of fragmentation and pluralism, and (4) the difficulty translating their methods to more state-like institutions, like courts and legislation. The hope is that this testimony of one of H.L.A. …

Towards A Communicative Theory Of International Law, Timothy L. Meyer

Scholarly Works

Does international law's effectiveness require a clear distinction between law and non-law? This essay, which reviews Jean d'Aspremont's Formalism and the Sources of International Law, argues the answer is no. Ambiguity about the legal nature of international instruments has important benefits. Clarity in the law may encourage states to do the minimum necessary to comply, while some uncertainty about what the law requires may induce states to take extra efforts to ensure they are in compliance. Ambiguity in the law also promotes dynamic change, an important feature in rapidly developing areas of the law such as international environmental law and …

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 …

Book Review, International Organizations: Politics, Law, Practice (2010), Timothy L. Meyer

Scholarly Works

This essay reviews Ian Hurd’s International Organizations: Politics, Law, Practice. International law and international relations scholars are increasingly interested in the variation in the structures and powers of international organizations, as well as how that variation affects state decisions to comply with international law. Hurd’s book offers a nuanced overview of the relationship between the legal powers of international organizations and the political contexts in which they operate. The book uses eight case studies, including the United Nations, the World Trade Organization, the International Court of Justice, and the International Labor Organization, to assess how different political environments and institutional …

States, Markets, And Gatekeepers: Public-Private Regulatory Regimes In An Era Of Economic Globalization, Christopher M. Bruner

Scholarly Works

This paper illuminates the spectrum of international economic regimes through discussion of an under-theorized regulatory structure in which traditional distinctions between state and market, public and private power, hard and soft law, and international and domestic policy realms, essentially collapse - the public-private gatekeeper.

Specifically, I examine striking similarities between global bond markets and e-commerce markets through comparison of entities regulating admission to them - the dominant credit rating agencies (Standard & Poor's and Moody's), and the Internet Corporation for Assigned Names and Numbers (ICANN). Following anexamination of the development of these markets and the global regulatory power exercised by …