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Articles 1 - 20 of 20
Full-Text Articles in Law
The Progressives: Economics, Science, And Race, Herbert J. Hovenkamp
The Progressives: Economics, Science, And Race, Herbert J. Hovenkamp
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This essay is a brief review of Thomas C. Leonard, Illiberal Reformers: Race, Eugenics, and American Economics in the Progressive Era (Princeton Univ. Press 2016).
A Framework For A Formal Sovereign Debt Restructuring Mechanism: The Kiss Principle (Keep It Simple, Stupid) And Other Guiding Principles, Charles W. Mooney Jr.
A Framework For A Formal Sovereign Debt Restructuring Mechanism: The Kiss Principle (Keep It Simple, Stupid) And Other Guiding Principles, Charles W. Mooney Jr.
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Given the ongoing work on a multilateral restructuring process for sovereign debt in the UN, consideration of the content and implementation of a sovereign debt restructuring mechanism (SDRM) is timely. The framework and content of the SDRM proposed here differs from earlier proposals in several important respects. For the classification and supermajority voting of claims in the approval a restructuring plan, it would mimic the structure and operation of the model collective action clauses (Model CACs) proposed by the International Capital Markets Association. Restructuring under a qualified sovereign debt restructuring law (QSDRL) would be guided by four principles: (i) observe …
Ending Security Council Resolutions, Jean Galbraith
Ending Security Council Resolutions, Jean Galbraith
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The Security Council resolution implementing the Iran deal spells out the terms of its own destruction. It contains a provision that allows any one of seven countries to terminate its key components. This provision – which this Comment terms a trigger termination – is both unusual and important. It is unusual because, up to now, the Security Council has almost always either not specified the conditions under which resolutions terminate or used time-based sunset clauses. It is important not only for the Iran deal, but also as a precedent and a model for the use of trigger terminations in the …
Ratification, Reporting, And Rights: Quality Of Participation In The Convention Against Torture, Cossette D. Creamer, Beth A. Simmons
Ratification, Reporting, And Rights: Quality Of Participation In The Convention Against Torture, Cossette D. Creamer, Beth A. Simmons
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The core international human rights treaty bodies play an important role in monitoring implementation of human rights standards through consideration of states parties’ reports. Yet very little research explores how seriously governments take their reporting obligations. This article examines the reporting record of parties to the Convention against Torture, finding that report submission is heavily conditioned by the practices of neighboring countries and by a government’s human rights commitment and institutional capacity. This article also introduces original data on the quality and responsiveness of reports, finding that more democratic—and particularly newly democratic—governments tend to render higher quality reports.
Obama's Get-Out-Of-Jail-Free Decree, Paul H. Robinson
Obama's Get-Out-Of-Jail-Free Decree, Paul H. Robinson
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While agreeing that sentences for nonviolent drug offenses are too long, this Wall Street Journal op-ed piece argues that the large-scale clemency program planned by President Obama is misguided. It sets a dangerous precedent for using the clemency power beyond its traditional and intended purpose of providing a last-resort check on fairness and justice errors in individual cases, and instead uses the power to set sentencing policy. While many people will like the results of the current program, they will be less than happy when some future president uses it as precedent to promote a sentencing policy of which they …
Lost In A Legal Thicket, Paul H. Robinson
Lost In A Legal Thicket, Paul H. Robinson
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This op-ed piece argues that criminal law recodification is badly needed in the states and the federal system, but that prosecutors stand out as the group who appear to regularly oppose it.
Human Rights Treaties In And Beyond The Senate: The Spirit Of Senator Proxmire, Jean Galbraith
Human Rights Treaties In And Beyond The Senate: The Spirit Of Senator Proxmire, Jean Galbraith
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In 1995, Louis Henkin wrote a famous piece in which he suggested that the process of human rights treaty ratification was haunted by “the ghost of Senator Bricker” – the isolationist Senator who in the 1950s had waged a fierce assault on the treaty power, especially with regard to human rights treaties. Since that time, Senator Bricker’s ghost has proved even more real. Professor Henkin’s concern was with how the United States ratified human rights treaties, and specifically with the packet of reservations, declarations, and understandings (RUDs) attached by the Senate in giving its advice and consent. Today, the question …
Governing Disasters: The Challenge Of Global Disaster Law And Policy, Eric A. Feldman, Chelsea Fish
Governing Disasters: The Challenge Of Global Disaster Law And Policy, Eric A. Feldman, Chelsea Fish
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This chapter uses the analytical framework of transnational legal ordering (TLO) developed by Halliday and Shaffer and applies it to the area of law and disasters. In contrast to the increasingly transnational legal nature of social ordering highlighted by Halliday and Shaffer, it argues that the emergence of transnational regulatory networks and cross-border principles or policies in the area of disaster management has been uneven and incomplete. Although there are many factors that help to explain why the law/disasters area has resisted the trend toward “transnationalization,” two stand out. One is the relative dearth of national laws and policies governing …
Introduction: Cyber And The Changing Face Of War, Claire Oakes Finkelstein, Kevin H. Govern
Introduction: Cyber And The Changing Face Of War, Claire Oakes Finkelstein, Kevin H. Govern
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Cyberweapons and cyberwarfare are one of the most dangerous innovations of recent years, and a significant threat to national security. Cyberweapons can imperil economic, political, and military systems by a single act, or by multifaceted orders of effect, with wide-ranging potential consequences. Cyberwarfare occupies an ambiguous status in the conventions of the laws of war. This book addresses Ethical and legal issues surrounding cyberwarfare by considering whether the Laws of Armed Conflict apply to cyberspace and the ethical position of cyberwarfare against the background of our generally recognized moral traditions in armed conflict. The book explores these moral and legal …
Framing For A New Transnational Legal Order: The Case Of Human Trafficking, Paulette Lloyd, Beth A. Simmons
Framing For A New Transnational Legal Order: The Case Of Human Trafficking, Paulette Lloyd, Beth A. Simmons
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How does transnational legal order emerge, develop and solidify? This chapter focuses on how and why actors come to define an issue as one requiring transnational legal intervention of a specific kind. Specifically, we focus on how and why states have increasingly constructed and acceded to international legal norms relating to human trafficking. Empirically, human trafficking has been on the international and transnational agenda for nearly a century. However, relatively recently – and fairly swiftly in the 2000s – governments have committed themselves to criminalize human trafficking in international as well as regional and domestic law. Our paper tries to …
East Asia, Investment, And International Law: Distinctive Or Convergent?, Beth A. Simmons
East Asia, Investment, And International Law: Distinctive Or Convergent?, Beth A. Simmons
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International investment agreements (IIAs) are the primary legal instruments designed to protect and encourage foreign direct investment world-wide. This article argues that Asia has used IIAs just as much as have other regions of the world to attract foreign direct investment, but that Asia’s pattern of agreement provisions is somewhat distinctive. States in East and Southeast Asia have tended to enter into agreements that strike a balance somewhat more favorable to host states than to foreign firms, at least when compared to the rest of the world. This may be due to high growth in the region, which tends to …
Temporary International Legal Regimes As Frames For Permanent Ones, Jean Galbraith
Temporary International Legal Regimes As Frames For Permanent Ones, Jean Galbraith
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This chapter explores the footprint that temporary international legal regimes can leave on international law. Drawing on four different theories of state behaviour, it considers how temporary regimes can shape future permanent regimes. Under a rational design approach, temporary legal regimes influence future permanent regimes largely because they provide valuable experiences from which state actors learn. Under other theories of behaviour—historical institutionalism, constructivism, and behavioural international law—temporary legal regimes can have even more influence on permanent ones. Although these other three theories have important differences, all suggest that temporary regimes strongly shape the real and perceived possibilities for future permanent …
The Rise And Fall And Resurrection Of American Criminal Codes, Paul H. Robinson
The Rise And Fall And Resurrection Of American Criminal Codes, Paul H. Robinson
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This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.
Cyber Espionage Or Cyber War?: International Law, Domestic Law, And Self-Protective Measures, Christopher S. Yoo
Cyber Espionage Or Cyber War?: International Law, Domestic Law, And Self-Protective Measures, Christopher S. Yoo
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Scholars have spent considerable effort determining how the law of war (particularly jus ad bellum and jus in bello) applies to cyber conflicts, epitomized by the Tallinn Manual on the International Law Applicable to Cyber Warfare. Many prominent cyber operations fall outside the law of war, including the surveillance programs that Edward Snowden has alleged were conducted by the National Security Agency, the distributed denial of service attacks launched against Estonia and Georgia in 2007 and 2008, the 2008 Stuxnet virus designed to hinder the Iranian nuclear program, and the unrestricted cyber warfare described in the 1999 book by …
Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang
Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang
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The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members, …
Inventing The Classical Constitution, Herbert J. Hovenkamp
Inventing The Classical Constitution, Herbert J. Hovenkamp
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One recurring call over a century of American constitutional thought is for return to a "classical" understanding of American federal and state Constitutions. "Classical" does not necessarily mean "originalist" or "interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any contract, …
Frames And Consensus Formation In International Relations: The Case Of Trafficking In Persons, Volha Charnysh, Paulette Lloyd, Beth A. Simmons
Frames And Consensus Formation In International Relations: The Case Of Trafficking In Persons, Volha Charnysh, Paulette Lloyd, Beth A. Simmons
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This article examines the process of consensus formation by the international community regarding how to confront the problem of trafficking in persons. We analyze the corpus of United Nations General Assembly Third Committee resolutions to show that: (1) consensus around the issue of how to confront trafficking in persons has increased over time; and (2) the formation of this consensus depends upon how the issue is framed. We test our argument by examining the characteristics of resolutions’ sponsors and discursive framing concepts such as crime, human rights, and the strength of enforcement language. We conclude that the consensus-formation process in …
What Should Restatement (Fourth) Say About Treaty Interpretation?, Jean Galbraith
What Should Restatement (Fourth) Say About Treaty Interpretation?, Jean Galbraith
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Restatement (Second) and Restatement (Third) of Foreign Relations Law took notably different approaches to treaty interpretation, reflecting intervening changes in the legal landscape. This symposium contribution identifies five developments in international and domestic law since Restatement (Third). It then considers their import for the forthcoming Restatement (Fourth). Most importantly, it argues that Restatement (Fourth) should fully incorporate two articles on treaty interpretation from the Vienna Convention on the Law of Treaties into its black-letter provisions. Since the time of Restatement (Third), these articles have become central to international practice on treaty interpretation, and the principles they set forth are …
Power Shifts In International Law: Structural Realignment And Substantive Pluralism, William W. Burke-White
Power Shifts In International Law: Structural Realignment And Substantive Pluralism, William W. Burke-White
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For most of the past sixty years, the United States and Europe have led, independently and collectively, the international legal system. Yet, the rise of the BRICs over the past decade has caused a profound transformation of global politics. This paper examines the implications of this redistribution of power for international law. While international lawyers have long debated the ability of law to constrain state behavior, this paper shifts the debate from the power of law to the role of power within international law. It first advances a structural argument that the diffusion, disaggregation, and issue-specific asymmetries in the distribution …
Politics By Number: Indicators As Social Pressure In International Relations, Judith Kelley, Beth A. Simmons
Politics By Number: Indicators As Social Pressure In International Relations, Judith Kelley, Beth A. Simmons
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The ability to monitor state behavior has become a critical tool of international governance. Systematic monitoring allows for the creation of numerical indicators that can be used to rank, compare and essentially censure states. This article argues that the ability to disseminate such numerical indicators widely and instantly constitutes an exercise of social power, with the potential to change important policy outputs. It explores this argument in the context of the United States’ efforts to combat trafficking in persons and find evidence that monitoring has important effects: countries are more likely to criminalize human trafficking when they are included in …