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Full-Text Articles in Law

In Conversation With Stephen Gageler, Chief Justice Of The High Court Of Australia, Stephen Gageler, David Collins Mar 2024

In Conversation With Stephen Gageler, Chief Justice Of The High Court Of Australia, Stephen Gageler, David Collins

Judicature International

No abstract provided.


Ukraine’S Supreme Court: Upholding Justice Amid War, Olena Kibenko, Cristobal Diaz Feb 2024

Ukraine’S Supreme Court: Upholding Justice Amid War, Olena Kibenko, Cristobal Diaz

Judicature International

No abstract provided.


Arbitrating Corruption, Rachel Brewster Jan 2024

Arbitrating Corruption, Rachel Brewster

Faculty Scholarship

One of the most controversial issues in international investment law is how arbitral panels should deal with investments tainted by corruption at their inception. The current practice of investment arbitrators is to refuse to hear investors’ claims when bribery allegations are substantiated. A recent wave of scholarship has attacked this “corruption defense,” arguing that the practice unfairly harms investors and encourages governments to maintain corrupt practices. This Essay responds to that scholarship, arguing that the current approach is the best policy choice on balance. The Essay analyzes three core policy questions at the heart of the debate: Would eliminating the …


Climate Change And The Courts: Balancing Stewardship And Restraint, Susan Glazebrook Sep 2023

Climate Change And The Courts: Balancing Stewardship And Restraint, Susan Glazebrook

Judicature International

No abstract provided.


Ukraine’S Supreme Court: Born Amid Crisis, Now Under Siege, Sergii Koziakov, David Collins Jul 2023

Ukraine’S Supreme Court: Born Amid Crisis, Now Under Siege, Sergii Koziakov, David Collins

Judicature International

No abstract provided.


Playing The Long Game: The Role Of International Courts And Tribunals In The Russo-Ukrainian War, Paul W. Grimm, Kim Scheppele, Paul Stephan, Harold Hongju Koh, Oleksandra Matviichuk Jul 2023

Playing The Long Game: The Role Of International Courts And Tribunals In The Russo-Ukrainian War, Paul W. Grimm, Kim Scheppele, Paul Stephan, Harold Hongju Koh, Oleksandra Matviichuk

Judicature International

No abstract provided.


The Impact Of The Rule Of Law On National Security In African Countries, Catherine Lena Kelly Feb 2023

The Impact Of The Rule Of Law On National Security In African Countries, Catherine Lena Kelly

Judicature International

No abstract provided.


Increasing Compliance With International Pandemic Law: International Relations And New Global Health Agreements, Matthew M. Kavanagh, Clare Wenham, Elize Massard Da Fonseca, Laurence R. Helfer, Elvin Nyukuri, Allan Maleche, Sam F. Halabi, Adi Radhakrishnan, Attiya Waris Jan 2023

Increasing Compliance With International Pandemic Law: International Relations And New Global Health Agreements, Matthew M. Kavanagh, Clare Wenham, Elize Massard Da Fonseca, Laurence R. Helfer, Elvin Nyukuri, Allan Maleche, Sam F. Halabi, Adi Radhakrishnan, Attiya Waris

Faculty Scholarship

No abstract provided.


Toward Recognizing An International Human Right To Claim Innocence, Brandon Garrett, Laurence R. Helfer, Jayne C. Huckerby, Mark Godsey, Luca Lupària Dec 2022

Toward Recognizing An International Human Right To Claim Innocence, Brandon Garrett, Laurence R. Helfer, Jayne C. Huckerby, Mark Godsey, Luca Lupària

Judicature International

No abstract provided.


How Technology Is Changing Justice In China, Shitong Qiao, Zhiyu Li, Benjamin Chen Jun 2022

How Technology Is Changing Justice In China, Shitong Qiao, Zhiyu Li, Benjamin Chen

Judicature International

No abstract provided.


World Tax Policy In The World Tax Polity? An Event History Analysis Of Oecd/G20 Beps Inclusive Framework Membership, Shu-Yi Oei Jan 2022

World Tax Policy In The World Tax Polity? An Event History Analysis Of Oecd/G20 Beps Inclusive Framework Membership, Shu-Yi Oei

Faculty Scholarship

The last decade has seen the emergence of a new global tax order spearheaded by the OECD and G20 and characterized by increased multilateral consensus and cooperation. This new order appears to reflect the emergence of a new “world tax polity” with shared structures, practices, and norms, which have been shaped through the work of the OECD, G20, and other global actors. But what are the pathways by which this new world tax polity has emerged?

Using event history regression methods, this Article investigates this question by studying membership in the OECD/G20 BEPS Inclusive Framework, a multilateral tax agreement among …


Power, Exit Costs, And Renegotiation In International Law, Timothy Meyer Jan 2022

Power, Exit Costs, And Renegotiation In International Law, Timothy Meyer

Faculty Scholarship

Scholars have long understood that the instability of power has ramifications for compliance with international law. Scholars have not, however, focused on how states’ expectations about shifting power affect the initial design of international agreements. In this paper, I integrate shifting power into an analysis of the initial design of both the formal and substantive aspects of agreements. I argue that a state expecting to become more powerful over time incurs an opportunity cost by agreeing to formal provisions that raise the cost of exiting an agreement. Exit costs - which promote the stability of legal rules - have distributional …


A Personal Journey Through The Rule Of Law In The South Pacific, W. K. Hastings Nov 2021

A Personal Journey Through The Rule Of Law In The South Pacific, W. K. Hastings

Judicature International

No abstract provided.


Closing International Law's Innocence Gap, Brandon L. Garrett, Laurence R. Helfer, Jayne C. Huckerby Jan 2021

Closing International Law's Innocence Gap, Brandon L. Garrett, Laurence R. Helfer, Jayne C. Huckerby

Faculty Scholarship

Over the last decade, a growing number of countries have adopted new laws and other mechanisms to address a gap in national criminal legal systems: the absence of meaningful procedures to raise post-conviction claims of factual innocence. These legal and policy reforms have responded to a global surge of exonerations facilitated by the growth of national innocence organizations that increasingly collaborate across borders. It is striking that these developments have occurred with little direct help from international law. Although many treaties recognize extensive fair trial and appeal rights, no international human rights instrument—in its text, existing interpretation, or implementation—explicitly and …


Unwilling Or Unable? The Failure To Conform The Nonstate Actor Standard In Asylum Claims To The Refugee Act, Charles Shane Ellison, Anjum Gupta Jan 2021

Unwilling Or Unable? The Failure To Conform The Nonstate Actor Standard In Asylum Claims To The Refugee Act, Charles Shane Ellison, Anjum Gupta

Faculty Scholarship

Pursuant to its obligations to the international community, the United States provides asylum to individuals fleeing persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” For decades, both the Board of Immigration Appeals and federal courts recognized that individuals could obtain asylum based on a fear of persecution at the hands of nonstate actors, so long as the applicant demonstrated that their government was “unable or unwilling” to control the persecution.

As part of a wide-ranging attack on asylum, the Trump administration has sought to eliminate asylum based on nonstate actor persecution. In …


Copyright Exceptions Across Borders: Implementing The Marrakesh Treaty, Laurence R. Helfer, Molly K. Land, Ruth L. Okediji Jan 2020

Copyright Exceptions Across Borders: Implementing The Marrakesh Treaty, Laurence R. Helfer, Molly K. Land, Ruth L. Okediji

Faculty Scholarship

This article reviews state ratification and implementation of the Marrakesh Treaty since its conclusion in 2013. We find that most states have adhered closely to the Treaty’s text, thus creating a de facto global template of exceptions and limitations that has increasingly enabled individuals with print disabilities, libraries and schools to create accessible format copies and share them across borders. The article argues that the Marrakesh Treaty’s core innovation—mandatory exceptions to copyright to promote public welfare—together with consultations with a diverse range of stakeholders, may offer a model for harmonising human rights and IP in other contexts.


King Leopold's Bonds And The Odious Debts Mystery, Joseph Blocher, Mitu Gulati, Kim Oosterlinck Jan 2020

King Leopold's Bonds And The Odious Debts Mystery, Joseph Blocher, Mitu Gulati, Kim Oosterlinck

Faculty Scholarship

In 1898, in the wake of the Spanish-American war, Spain ceded the colony of Cuba to the United States. In keeping with the law of state succession, the Spanish demanded that the U.S. also take on Spanish debts that had been backed by Cuban revenues. The Americans refused, arguing that some of those debts had been utilized for purposes adverse to the interests of the Cuban people. This, some argue, was the birth of the doctrine of “odious debts”; a doctrine providing that debts incurred by a non-representative government and utilized for purposes adverse to the population do not need …


The Failed Transparency Regime For Executive Agreements: An Empirical And Normative Analysis, Oona A. Hathaway, Curtis A. Bradley, Jack L. Goldsmith Jan 2020

The Failed Transparency Regime For Executive Agreements: An Empirical And Normative Analysis, Oona A. Hathaway, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

The Constitution specifies only one process for making international agreements. Article II states that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” The treaty process has long been on a path to obsolescence, however, with fewer and fewer treaties being made in each presidential administration. Nevertheless, the United States has not stopped making international agreements. Even as Article II treaties have come to a near halt, the United States has concluded hundreds of binding international agreements each year. These agreements, known as …


Never Waste A Crisis: Anticorruption Reforms In South America, Rachel Brewster, Andres Ortiz Jan 2020

Never Waste A Crisis: Anticorruption Reforms In South America, Rachel Brewster, Andres Ortiz

Faculty Scholarship

In the midst of dramatic corruption scandals, South American countries have passed some of the most noteworthy anticorruption legislation in the region’s history. This Article examines the wave of anticorruption reforms and how international law, and in particular anticorruption treaties, has had an important influence on the content of these reforms. Specifically, this Article argues that that the OECD Anti-Bribery Working Group has acted as a political entrepreneur, advocating for specific and meaningful reforms. The influence of international law was critical in ensuring that the reforms adopted during these corruption scandals were robust and that the opportunity presented by these …


Private International Law As An Ethic Of Responsivity, Ralf Michaels Jan 2019

Private International Law As An Ethic Of Responsivity, Ralf Michaels

Faculty Scholarship

The world is a mess. Populism, xenophobia, and islamophobia; misogyny and racism; the closing of borders against the neediest—the existential crisis of modernity calls for a firm response from ethics. Why, instead of engaging with these problems through traditional ethics, worry about private international law, that most technical of technical fields of law? My claim in this chapter: not despite, because of its technical character. Private international law provides such an ethic, an ethic of responsivity. It provides us with a technique of ethics, a technique that helps us conceptualise and address some of the most pressing issues of our …


Trade And The Separation Of Powers, Timothy Meyer, Ganesh Sitaraman Jan 2019

Trade And The Separation Of Powers, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I powers over commercial matters. The second paradigm sees trade law as fundamentally about America’s relationship with foreign countries. Institutionally, under the foreign affairs paradigm, trade law is the province of the President, who speaks for the United States in foreign affairs. While both paradigms have operated throughout American history, the domestic …


Defending Refugees: A Case For Protective Procedural Safeguards In The Persecutor Bar Analysis, Charles Shane Ellison Jan 2019

Defending Refugees: A Case For Protective Procedural Safeguards In The Persecutor Bar Analysis, Charles Shane Ellison

Faculty Scholarship

For refugees and asylum seekers, application of the so-called persecutor bar is tantamount to a death sentence. However, the Board of Immigration Appeals -- without any real deliberation--has arrived at an interpretation of a generic-relief, burdenshifting regulation to allow for application of the persecutor bar based upon very little evidence. Even mere membership in a group with a poor human rights record has been held sufficient to switch the burden of proof and apply the bar. While the recent holding of Matter of Negusie, 27 I&N Dec. 347 (June 28, 2018) can be read and understood largely as a victory …


The Ilo At 100: Institutional Innovation In An Era Of Populism, Laurence R. Helfer Jan 2019

The Ilo At 100: Institutional Innovation In An Era Of Populism, Laurence R. Helfer

Faculty Scholarship

The centenary of the International Labor Organization (ILO) provides an opportunity to take stock of the organization’s many achievements. But the centenary also calls for a clear-eyed assessment of the profound challenges that the ILO currently faces – including the growth of the informal and gig economies, digitization and automation, and rising material inequality – and the populist ferment that those trends have helped to engender. This essay, part of a forthcoming AJIL Unbound symposium on "The Transnational Futures of International Labor Law," sketches the ILO’s rich history of legal and policy innovation in response to changes in labor conditions …


Theorizing The Judicialization Of International Relations, Karen J. Alter, Emilie M. Hafner-Burton, Laurence R. Helfer Jan 2019

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 …


The Price Of Law: The Case Of The Eurozone's Collective Action Clauses, Elena Carletti, Paolo Colla, Mitu Gulati, Steven Ongena Jan 2018

The Price Of Law: The Case Of The Eurozone's Collective Action Clauses, Elena Carletti, Paolo Colla, Mitu Gulati, Steven Ongena

Faculty Scholarship

Do markets value contract protections? And does the quality of a legal system affect such valuations? To answer these questions we exploit a unique experiment whereby, after January 1, 2013, newly issued sovereign bonds of Eurozone countries under domestic law had to include Collective Action Clauses (CACs) specifying the minimum vote needed to modify payment terms. We find that CAC bonds trade at lower yields than otherwise similar no-CAC bonds; and that the quality of the legal system matters for this differential. Hence, markets appear to see CACs as providing protection against the legal risk embedded in domestic-law sovereign bonds.


How Asian Should Asian Law Be? – An Outsider’S View, Ralf Michaels Jan 2018

How Asian Should Asian Law Be? – An Outsider’S View, Ralf Michaels

Faculty Scholarship

Is there an Asian identity of Asian law, comparable to European identity and therefore similarly useful as a justification for unification projects? If so, what does it look like? And if so, does this make Asia more like Europe, or less so? Or is this question itself already a mere European projection?

This chapter tries to address such questions. In particular, I look at a concrete project of Asian law unification—the Principles of Asian Comparative Law—and connect discussions about its Asian identity with four concepts of Asia. The first such concept is a European idea of Asia and Asian law, …


The Trafficking Victim Protection Act: The Best Hope For International Human Rights Litigation In The U.S. Courts?, Sara Sun Beale Jan 2018

The Trafficking Victim Protection Act: The Best Hope For International Human Rights Litigation In The U.S. Courts?, Sara Sun Beale

Faculty Scholarship

The article focuses on uses Alien Tort Statute as a vehicle for litigating human rights abuses in both civil and criminal prosecutions in the U.S. Topics discussed include developments in International Criminal Law in addressing human rights violations; judicial attitudes that could affect the interpretation of the Trafficking Victim Protection Act; and Sosa v. Alvarez-Machain court case on the same.


Presidential Control Over International Law, Curtis A. Bradley, Jack L. Goldsmith Jan 2018

Presidential Control Over International Law, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

Presidents have come to dominate the making, interpretation, and termination of international law for the United States. Often without specific congressional concurrence, and sometimes even when it is likely that Congress would disagree, the President has developed the authority to:

(a) make a vast array of international obligations for the United States, through both written agreements and the development of customary international law;

(b) make increasingly consequential political commitments for the United States on practically any topic;

(c) interpret these obligations and commitments; and

(d) terminate or withdraw from these obligations and commitments.

While others have examined pieces of this …


Maduro Bonds, G. Mitu Gulati, Ugo Panizza Jan 2018

Maduro Bonds, G. Mitu Gulati, Ugo Panizza

Faculty Scholarship

No abstract provided.


Puerto Rico And The Right Of Accession, Joseph Blocher, Mitu Gulati Jan 2018

Puerto Rico And The Right Of Accession, Joseph Blocher, Mitu Gulati

Faculty Scholarship

On June 11, 2017, Puerto Rico held a referendum on its legal status. Although turnout was low, 97% of ballots favored statehood, rather than independence or the status quo. The federal government, however, has financial and political reasons to resist this preference: Puerto Rico would bring with it a massive, unpayable debt, and the potential to swing the current balance of power in Congress.

The tension between Puerto Rico’s possible desire to pull closer to the mainland and Congress’s presumptive desire to hold it at arm’s length raises at least two important legal questions. Could Congress expel Puerto Rico by …