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Articles 1 - 30 of 41
Full-Text Articles in Law
International Investment Agreements: Are Their Policy Aims Served By Their Broad Definitions Of Covered “Investors” And “Investments”?, Lise Johnson
Columbia Center on Sustainable Investment Staff Publications
With negotiation of “mega-treaties” such as the 12-country Trans-Pacific Partnership (TPP) and investment treaties between the EU and other large economies such as Canada and the United States, international investment agreements (IIAs) are gaining fame and raising a host of important policy questions. Among those questions are who/what the treaties benefit and at what cost.
China's Nine-Dashed Map: Maritime Source Of Geopolitical Tension, Bert Chapman
China's Nine-Dashed Map: Maritime Source Of Geopolitical Tension, Bert Chapman
Libraries Faculty and Staff Scholarship and Research
The South China Sea (SCS) is becoming an increasingly contentious source of geopolitical tension due to its significance as an international trade route, possessor of potentially significant oil and natural gas resources, China’s increasing diplomatic and military assertiveness, and the U.S.’ recent and ongoing Pacific Pivot strategy. Countries as varied as China, Taiwan, the Philippines, Indonesia and other adjacent countries have claims on this region’s islands and natural resources. China has been particularly assertive in asserting its SCS claims by creating a nine-dash line map claiming to give it de facto maritime control over this entire region without regard to …
Charitable Giving, Tax Expenditures, And Direct Spending In The United States And The European Union, Lilian Faulhaber
Charitable Giving, Tax Expenditures, And Direct Spending In The United States And The European Union, Lilian Faulhaber
Faculty Scholarship
This Article compares the ways in which the United States and the European Union limit the ability of state-level entities to subsidize their own residents, whether through direct subsidies or through tax expenditures. It uses four recent charitable giving cases decided by the European Court of Justice (ECJ) to illustrate the ECJ’s evolving tax expenditure jurisprudence and argues that, while this jurisprudence may suggest a new and promising model for fiscal federalism, it may also have negative social policy implications. It also points out that the court analyzes direct spending and tax expenditures under different rubrics despite their economic equivalence …
No Right At All: Putting Consular Notification In Its Rightful Place After Medellin, Alberto R. Gonzales, Amy L. Moore
No Right At All: Putting Consular Notification In Its Rightful Place After Medellin, Alberto R. Gonzales, Amy L. Moore
Law Faculty Scholarship
This Article covers the history of consular notification and presentation in the U.S. federal and state courts and in the International Court of Justice. Article 36 of the Vienna Convention on Consular Relations provides that nation-states should notify detained foreign nationals of their right to contact their consulate about their detention. This Article argues that the U.S. Supreme Court, as matters of institutional responsibility and judicial economy, should have concluded that the Vienna Convention on Consular Relations does not contain an enforceable individual right. Moreover, no analog for this right has been found in American jurisprudence.
Rogue Debtors And Unanticipated Risk, S. I. Strong
Rogue Debtors And Unanticipated Risk, S. I. Strong
Faculty Publications
Commercial actors are becoming increasingly concerned about the effect that various types of political risk, including the risk of sovereign default, has on their investments. This Essay considers the problem of rogue debtors (i.e., states that intentionally ignore their legal and financial obligations) as a type of unanticipated risk and analyzes how well various responses, including domestic litigation, interstate negotiation and investment arbitration, address investors’ needs. In particular, the discussion focuses on how effective investment arbitration is in overcoming a number of difficulties traditionally associated with rogue debtors and the various means by which states are attempting to bypass the …
Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble
Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble
Boyd Briefs / Road Scholars
Professor Marketa Trimble presented these materials at the Third International Intellectual Property Scholars Roundtable, which was held at the DePaul University College of Law on May 1, 2014.
Book Review, Economic Foundations Of International Law, By Eric A. Posner And Alan O. Sykes, Timothy L. Meyer
Book Review, Economic Foundations Of International Law, By Eric A. Posner And Alan O. Sykes, Timothy L. Meyer
Scholarly Works
This essay reviews Eric Posner’s and Alan Sykes’ Economic Foundations of International Law. In the last ten years or so, economic analysis of international law has established itself as a mainstream discipline, providing insights into why international law is structured as it is, the conditions under which it is effective, and how it might be improved. Economic Foundations consolidates and extends these insights. As such, the book is destined to be a starting place for economic analysis of international law. The book is divided into five parts. Part I provides an introduction to international law and the tools necessary to …
Chapter 16: Transnational Legal Process Theories, Maya Steinitz
Chapter 16: Transnational Legal Process Theories, Maya Steinitz
Faculty Scholarship
THIS chapter is devoted to transnational legal process theories. In 1955, Philip Jessup, in his Storrs Lectures at Yale, famously coined the term “transnational law” as he searched for a concept that would capture the legal regulation of actions or events that transcend national boundaries and that can accommodate both public and private international law. Further, while the traditional concept of “international law” referred to the law regulating relationships between states, the new term encompassed legal relationships of and amongst individuals, corporations, and organizations as well as states.
In other words, as early as the 1950s, and thereafter with increased …
The Marrakesh Puzzle, Marketa Trimble
The Marrakesh Puzzle, Marketa Trimble
Scholarly Works
This article analyzes the puzzle created by the 2013 Marrakesh Treaty in its provisions concerning the cross-border exchange of copies of copyrighted works made for use by persons who are “blind, visually impaired, or otherwise print disabled” (copies known as “accessible format copies”). The analysis should assist executive and legislative experts as they seek optimal methods for implementing the Treaty. The article provides an overview of the Treaty, notes its unique features, and examines in detail its provisions on the cross-border exchange of accessible format copies. The article discusses three possible sources for implementation tools – choice of law rules, …
Country Report On Counterterrorism: United States Of America, Sudha Setty
Country Report On Counterterrorism: United States Of America, Sudha Setty
Faculty Scholarship
The terrorist attacks of September 11, 2001, led to profound changes in societal viewpoints, political agendas, and the legal authorization to combat terrorism. The United States continues to struggle with keeping its population safe while maintaining the principles of democracy and the rule of law essential to the nation’s character. The U.S. response to terrorism has been multifaceted and expansive, reflective of the U.S. role in global security; debate over these matters will continue for the foreseeable future.
This report, prepared for the American Society of Comparative Law, offers summary, analysis and critique of many aspects of counterterrorism law, including …
Introduction To Intervention Under International Law, Mortimer N.S. Sellers
Introduction To Intervention Under International Law, Mortimer N.S. Sellers
All Faculty Scholarship
The lawfulness or legitimacy of "external" intervention in the "internal" affairs of sovereign states is one of the most basic controversies in modern international law. The question arises in three separate but related forms: When is intervention lawful? When is intervention legitimate? And when should intervention occur? Discussion here will focus on the legal question, but legitimacy, morality, and brutal reality all form and sometimes trump the law. They dictate the parameters within which all legal determinations take place, including the legality of cross-border interventions. By "intervention" I mean any activity by one state or its agents that influences the …
The United States, China, And Freedom Of Navigation In The South China Sea, James W. Houck, Nicole M. Anderson
The United States, China, And Freedom Of Navigation In The South China Sea, James W. Houck, Nicole M. Anderson
Journal Articles
The need for a uniform understanding of international norms regarding freedom of navigation is increasingly important as more States develop capacity to act in the international maritime realm. Nowhere is the issue of freedom of navigation more contentious, with more potential to spark wider conflict, than in the South China Sea (SCS). Both the United States and China profess an interest in the free navigation of commercial vessels in the region. Beyond commercial shipping, however, the two nations disagree on the important issue of freedom of navigation for military vessels. The United States believes all nations have wide latitude under …
Introductory Remarks, James Anaya
Introductory Remarks, James Anaya
Publications
These remarks were delivered at a Corporate Responsibility and Human Rights panel held on Wednesday, April 9, 2014.
An 'I Do' I Choose: How The Fight For Marriage Access Supports A Per Se Finding Of Persecution For Asylum Cases Based On Forced Marriage, Natalie Nanasi
An 'I Do' I Choose: How The Fight For Marriage Access Supports A Per Se Finding Of Persecution For Asylum Cases Based On Forced Marriage, Natalie Nanasi
Faculty Journal Articles and Book Chapters
There is something special about marriage. The U.S. Supreme Court, in striking down anti-miscegenation laws, restrictions on the right to marry for disadvantaged groups, and most recently, the Defense of Marriage Act, has long recognized the marital union to be "sacred" and "fundamental to…existence." Yet this analysis is dramatically different when courts consider asylum law, where a woman who is seeking refuge in the United States to protect her from a forced marriage abroad will likely be denied protection because the harm she fears is not considered to be a "persecutory" act. She may therefore be forced to spend a …
What Is Extraterritorial Jurisdiction?, Anthony J. Colangelo
What Is Extraterritorial Jurisdiction?, Anthony J. Colangelo
Faculty Journal Articles and Book Chapters
The phenomenon of extraterritorial jurisdiction, or the exercise of legal power beyond territorial borders, presents lawyers, courts, and scholars with analytical onions comprising layers of national and international legal issues; as each layer peels away, more issues are revealed. U.S. courts, including the Supreme Court, have increasingly been wrestling this conceptual and doctrinal Hydra. Any legal analysis of extraterritorial jurisdiction leans heavily on the answers to two key definitional questions: What do we mean by “extraterritorial”? And, what do we mean by “jurisdiction”? Because the answer to the first question is often conditional on the answer to the second, the …
The Judge And The Drone, Justin Desautels-Stein
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 …
Book Review, Anna Spain
Indigenous Peoples And The Jurisgenerative Moment In Human Rights, Kristen A. Carpenter, Angela R. Riley
Indigenous Peoples And The Jurisgenerative Moment In Human Rights, Kristen A. Carpenter, Angela R. Riley
Publications
As indigenous peoples have become actively engaged in the human rights movement around the world, the sphere of international law, once deployed as a tool of imperial power and conquest, has begun to change shape. Increasingly, international human rights law serves as a basis for indigenous peoples' claims against states and even influences indigenous groups' internal processes of decolonization and revitalization. Empowered by a growing body of human rights instruments, some as embryonic as the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), indigenous peoples are embracing a global "human rights culture" to articulate rights ranging from …
Green Subsidies And The Wto, Steve Charnovitz
Green Subsidies And The Wto, Steve Charnovitz
GW Law Faculty Publications & Other Works
This paper provides a detailed explanation how the law of the World Trade Organization regulates environmental subsidies with a focus on renewable energy subsidies. The paper begins by discussing the economic justifications for such subsidies and the criticisms of them and then gives examples of different categories of subsidies. Next the paper provides an overview of the relevant WTO rules and caselaw, including the recent Canada-Renewable Energy case. The paper also makes specific recommendations for how WTO law can be improved, and discusses the existing literature discussing reform proposals. The study further finds that because of a lack of clarity …
Will International Law Save Us From Climate Disasters?, Michael B. Gerrard
Will International Law Save Us From Climate Disasters?, Michael B. Gerrard
Faculty Scholarship
I am going to address the role of international law in dealing with disasters that can be caused or worsened by climate change.
International Criminal Law For Retributivists, Alexander K.A. Greenawalt
International Criminal Law For Retributivists, Alexander K.A. Greenawalt
Elisabeth Haub School of Law Faculty Publications
Responding to the proliferation of international criminal tribunals during the last two decades, scholars have engaged in a rich debate about the normative foundations of international criminal law (“ICL”). The retributive theory of punishment--which justifies punishment based on the culpability of the accused, rather than by reference to its social benefits--has met with significant skepticism in these discussions. Some have argued that unique features of international criminal justice--for example, the extreme selectivity of punishment or the lack of certain social or political preconditions--are a poor match for retributive theory. Others have ignored retributivism altogether, or afforded the theory only passing …
On The Ninth Circuit's New Definition Of Piracy: Japanese Whalers V. The Sea Shepherd-Who Are The Real "Pirates" (I.E. Plunderers)?, Barry H. Dubner, Claudia Pastorius
On The Ninth Circuit's New Definition Of Piracy: Japanese Whalers V. The Sea Shepherd-Who Are The Real "Pirates" (I.E. Plunderers)?, Barry H. Dubner, Claudia Pastorius
Faculty Scholarship
No abstract provided.
Introduction-Papers From The 2013 American Society Of Comparative Law Annual Meeting, Sarah Howard Jenkins, Kenneth S. Gallant
Introduction-Papers From The 2013 American Society Of Comparative Law Annual Meeting, Sarah Howard Jenkins, Kenneth S. Gallant
Faculty Scholarship
No abstract provided.
Deciding To Intervene, Anna Spain
Deciding To Intervene, Anna Spain
Publications
Decisions about intervention into today's armed conflicts are difficult, dangerous, and politically complicated. There are no safe choices. Amid the climate of urgency and uncertainty in which intervention decision-making occurs, international law serves as a guide by providing rules about the legality of intervention. These rules assert that, except for in cases of self-defense, choices about when and how to intervene are to be made by the United Nations Security Council. What the rules do not provide, however, is effective guidance for the political choices the Council makes, such as how to prioritize among competing norms. When, for example, should …
Accelerated Formation Of Customary International Law, Michael P. Scharf
Accelerated Formation Of Customary International Law, Michael P. Scharf
Faculty Publications
This article examines the phenomenon of accelerated formation of customary international law. It argues that in periods of fundamental change (which the author characterizes as "Grotian Moments"), whether by technological advances, the commission of new forms of crimes against humanity, or the development of new means of warfare or terrorism, customary international law may form much more rapidly and with less state practice than is normally the case to keep up with the pace of developments. The article examines several case studies that explore the application and contours of the concept of "Grotian Moments."
From Contract To Legislation: The Logic Of Modern International Lawmaking, Timothy L. Meyer
From Contract To Legislation: The Logic Of Modern International Lawmaking, Timothy L. Meyer
Scholarly Works
The future of international lawmaking is in peril. Both trade and climate negotiations have failed to produce a multilateral agreement since the mid-1990s, while the U.N. Security Council has been unable to comprehensively respond to the humanitarian crisis in Syria. In response to multilateralism’s retreat, many prominent commentators have called for international institutions to be given the power to bind holdout states — often rising or reluctant powers such as China and the United States — without their consent. In short, these proposals envision international law traveling the road taken by federal systems such as the United States and the …
The Limits Of Legality: Assessing Recent International Interventions In Civil Conflicts In The Middle-East, Feisal Amin Istrabadi
The Limits Of Legality: Assessing Recent International Interventions In Civil Conflicts In The Middle-East, Feisal Amin Istrabadi
Articles by Maurer Faculty
No abstract provided.
Overview Of Panel: Judges, Diplomats, And Peacebuilders: Evaluating International Dispute Resolution As A System, Anna Spain
Publications
No abstract provided.
Copyright Crime And Punishment: The First Amendment's Proportionality Puzzle, Margot Kaminski
Copyright Crime And Punishment: The First Amendment's Proportionality Puzzle, Margot Kaminski
Publications
The United States is often considered to be the most speech-protective country in the world. Paradoxically, the features that have led to this reputation have created areas in which the United States is in fact less speech protective than other countries. The Supreme Court's increasing use of a categorical approach to the First Amendment has created a growing divide between the US. approach to reconciling copyright and free expression and the proportionality analysis adopted by most of the rest of the world.
In practice, the U.S. categorical approach to the First Amendment minimizes opportunities for judicial oversight of copyright. Consequently, …
Crimea And The International Legal Order, William W. Burke-White
Crimea And The International Legal Order, William W. Burke-White
All Faculty Scholarship
A key balance between two of the most fundamental principles of the post-World War II international legal and political order is at stake today in Ukraine. Particularly in its annexation of Crimea, Russia has exploited the tension between a fundamental principle that prohibits the acquisition of territory through the use of force and an equally fundamental right of self-determination. Russia’s reinterpretation of these two principles could well destabilize the tenuous balance between the protection of individual rights and the preservation of states’ territorial integrity that undergirds the post World War II order. In determining the precedent that will be remembered …