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Full-Text Articles in Law
Theorizing The Judicialization Of International Relations, Karen J. Alter, Emilie M. Hafner-Burton, Laurence R. Helfer
Theorizing The Judicialization Of International Relations, Karen J. Alter, Emilie M. Hafner-Burton, Laurence R. Helfer
Faculty Scholarship
This article introduces a Thematic Section and theorizes the multiple ways that judicializing international relations shifts power away from national executives and legislatures toward litigants, judges, arbitrators, and other nonstate decision-makers. We identify two preconditions for judicialization to occur—(1) delegation to an adjudicatory body charged with applying designated legal rules, and (2) legal rights-claiming by actors who bring—or threaten to bring—a complaint to one or more of these bodies. We classify the adjudicatory bodies that do and do not contribute to judicializing international relations, including but not limited to international courts. We then explain how rights-claiming initiates a process for …
Treaty Termination And Historical Gloss, Curtis A. Bradley
Treaty Termination And Historical Gloss, Curtis A. Bradley
Faculty Scholarship
The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …