International Law Commons^™

A Sociology Of Constituent Power: The Political Code Of Transnational Societal Constitutions, Christopher Thornhill

Indiana Journal of Global Legal Studies

This article proceeds from a critical sociological revision of classical constitutional theory. In particular, it argues for a sociological reconstruction of the central concepts of constitutional theory: constituent power and rights. These concepts, it is proposed, first evolved as an internal reflexive dimension of the modern political system, which acted originally to stabilize the political system as a relatively autonomous aggregate of actors, adapted to the differentiated interfaces of a modern society.

This revision of classical constitutional theory provides a basis for a distinctive account of transnational constitutional pluralism or societal constitutionalism. The article argues that the construction of transnational …

In The Interests Of Justice: Human Rights And The Right To Counsel In Civil Cases, Martha F. Davis

Touro Law Review

This report examines the international human rights treaties binding on the United States as well as other non-binding international human rights documents to ascertain the status of the right to counsel in civil cases, the so-called "Civil Gideon" right. The United Nations treaty monitoring bodies responsible for the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination have both indicated that legal assistance may be required to ensure fairness in civil cases. The Charter of the Organization of American States, to which the United States is a party, goes farther …

Municipal And State Sanctuary Declarations: Innocuous Symbolism Or Improper Dictates?, Jorge L. Carro

Pepperdine Law Review

No abstract provided.

A Monist Supremacy Clause And A Dualistic Supreme Court: The Status Of Treaty Law As U.S. Law, D. A. Jeremy Telman

Law Faculty Publications

Hans Kelsen identified three possible relationships between the international and domestic legal orders. Dualism understands the international and domestic legal orders as separate and independent. Monism describes a single and comprehensive legal order but can operate with either domestic law or international law as a higher order law. Like many domestic legal orders, that of the United States has never fully worked out which of these three options specifies the status of international law in its domestic legal order. While the text of the United States Constitution suggests a form of monism in which international law is automatically part of …

Between Secession And Federalism: The Independence Of South Sudan And The Need For A Reconsidered Nigeria, Obehi S. Okojie

Global Business & Development Law Journal

No abstract provided.

The Mighty Work Of Making Nations Happy: A Response To James Davison Hunter, Patrick Mckinley Brennan

Working Paper Series

This article is an invited response to James Davison Hunter’s much-discussed book To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World (Oxford University Press, 2010). Hunter, a sociologist at UVA and a believing Protestant, claims that law’s capacity to contribute to social change is “mostly illusory” and that Christians, therefore, should practice “faithful presence” in the public square rather than seek to influence law directly. My response is that it is, in fact, law’s stunning ability to alter and limit available choices that makes it an object of deservedly fierce contest. The wild …

Beyond The Self-Execution Analysis: Rationalizing Constitutional, Treaty And Statutory Interpretation In International Commercial Arbitration, S. I. Strong

Faculty Publications

International commercial arbitration has long been considered one of the paradigmatic forms of private international law and has achieved a degree of legitimacy that is virtually unparalleled in the international realm. However, significant questions have recently begun to arise about the device’s public international attributes, stemming largely from a circuit split regarding the nature of the New York Convention, the leading treaty in the field, and Chapter 2 of the Federal Arbitration Act, which helps give effect to the Convention in the United States. Efforts have been made to place the debate about the New York Convention within the context …

Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman

Faculty Scholarship

No abstract provided.

International Law And Institutions And The American Constitution In War And Peace, Thomas H. Lee

Faculty Scholarship

This Article describes how international law and institutions are not necessarily incompatible with U.S. sovereign interests today and how they were historically accepted as valid inputs to interpreting and implementing the Constitution during the founding and infancy of the United States and through the Civil War.

Constitutional Borrowing As Jurisprudential And Political Doctrine In Shri Dk Basu V. State Of West Bengal, Sam F. Halabi

Faculty Publications

Under prevailing theories of comparative constitutional law, courts use foreign precedent in one of three ways: to identify “universal” principles of law applicable across jurisdictions; to sharpen understanding of domestic law through contrasting foreign judgments; and, in the case of legal systems with shared origins, to consider alternative jurisprudential paths. While the terminology differs, the concepts broadly hold across current theoretical treatments. Methodologically, these theories are built by analyzing certain foreign decisions, while scholars devote less effort in trying to test prevailing theories by applying theory to a court judgments outside those used to build their theories. In building a …

The State Of Israel’S Constitution; A Comparison Of Civilized Nations, Mark Goldfeder

Scholarly Works

The art of constitution-making is never one-dimensional. In regard to the United States' model, it has recently been argued that "[d]espite the enormous literature on the critical period, including the foreign affairs imperatives behind the movement for reform, it is not fully understood that the animus behind the reform effort that culminated in the new Constitution was a desire to ensure that the United States would be in a position to meet its international commitments and thereby earn international recognition."' While there are obvious differences, and while this concept is perhaps of even greater importance and more poignantly felt for …

Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams

Faculty Scholarship

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs …

Military Commissions And The Paradigm Of Prevention, David Cole

Georgetown Law Faculty Publications and Other Works

Why military commissions? Given the United States’s track record of success in trying terrorists in civilian criminal courts, and the availability of courts-martial to try war crimes, why has the United States government, under both the George W. Bush and Barack Obama administrations alike, insisted on proceeding through untested military commissions instead? In May 2009, President Obama defended military commissions with the following claims:

Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for …

State Law, The Westfall Act, And The Nature Of The Bivens Question, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

In a number of recent cases touching to varying degrees on national security, different courts of appeals have applied a strong presumption against recognition of a Bivens cause of action. In each of these cases, the courts’ approach was based on the belief that the creation of a cause of action is a legislative function and that the courts would be usurping Congress’s role if they recognized a Bivens action without legislative authorization. Thus, faced with a scenario where they believed that the remedial possibilities were either "Bivens or nothing," these courts of appeals chose nothing.

The concerns that …

The Secret "Kill List" And The President, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

In Defense Of Scholars' Briefs: A Response To Richard Fallon, Amanda Frost

Scholarly Articles in Law Reviews & Journals

In a thoughtful and provocative essay, Richard Fallon criticizes law professors for lightly signing onto 'scholars’ briefs,' that is, amicus briefs filed on behalf of a group of law professors claiming expertise in the subject area. Fallon argues that law professors are constrained by the moral and ethical obligations of their profession from joining scholars’ briefs without first satisfying standards similar to those governing the production of scholarship, and thus he believes that law professors should abstain from adding their names to such briefs more often than they do now.

This response begins by describing the benefits of scholars’ briefs …

Towards A New Democratic Africa: The African Charter On Democracy, Elections And Governance, Stacy-Ann Elvy

Other Publications

The African Charter on Democracy, Elections and Governance (“ADC”) recently entered into force on February 15, 2012. The main goal of the ADC is the encouragement and promotion of democracy and human rights on the African continent. The ADC is the first binding regional instrument adopted by member states of the African Union (“AU”) that attempts to comprehensively address all of the elements necessary for the establishment of liberal democracies. The ADC also contains a number of expansive provisions regarding unconstitutional changes of government. For instance, the ADC is the first legal instrument adopted by member states of the AU …

Shifting Borders And The Boundaries Of Rights: Examining The Safe Third Country Agreement Between Canada And The United States, Efrat Arbel

All Faculty Publications

This article analyzes the Canadian Federal Court and Federal Court of Appeal decisions assessing the Safe Third Country Agreement between Canada and the United States (STCA). It examines how each court’s treatment of the location and operation of the Canada-US border influences the results obtained. The article suggests that both in its treatment of the STCA and in its constitutional analysis, the Federal Court decision conceives of the border as a moving barrier capable of shifting outside Canada’s formal territorial boundaries. The effect of this decision is to bring refugee claimants outside state soil within the fold of Canadian constitutional …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Defining, Punishing, And Membership In The Community Of Nations: Material Support And Conspiracy Charges In Military Commissions, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Defamation And False Rape Claims: Policies, Attitudes, And Suggested Reform In The United States And The United Kingdom, Claire Steinman

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal and societal implications of defamation cases arising from false rape claims in the United States and the United Kingdom. It argues that while U.S. defamation law provides stricter standards for liability, the U.K.'s approach to punishment is more effective in deterring false claims. The optimal solution, the note suggests, is to combine the U.S. legal framework for determining liability with the U.K.'s harsher penalties to protect both the falsely accused and genuine victims.

Constitutional Convergence And Customary International Law, Rebecca Crootof

Law Faculty Publications

In Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice, Zachary Elkins, Tom Ginsburg, and Beth Simmons study the effects of post-World War II human rights texts on domestic constitutions, with a particular focus on the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). After analyzing 680 constitutional systems compiled by the Comparative Constitutions Project to create a list of seventy-four constitutionally protected rights, the authors evaluate whether countries incorporate internationally codified human rights into their domestic constitutions, whether ratification of international agreements affects the probability of rights incorporation, and whether …

Boland In The Wind: The Iran-Contra Affair And The Invitation To Struggle , Bretton G. Sciaroni

Pepperdine Law Review

No abstract provided.

United States V. Alvarez-Machain: Kidnapping In The "War On Drugs" - A Matter Of Executive Discretion Or Lawlessness?, Michael G. Mckinnon

Pepperdine Law Review

No abstract provided.

Redress: Rights And Other Remedies, A Comment On David Engel's Article On Rights Consciousness, Arzoo Osanloo

Indiana Journal of Global Legal Studies

In responding to David Engel's Article, this Comment analyzes how Engel situates contemporary perspectives on rights drawing from his research in Thailand. Engel shows how the discourse of rights carries with it meanings that have multiple and changing connotations and on the ground effects. Following on Engel's questions about how consciousness of rights spreads and takes shape in local contexts, this Comment calls for expanding the substantive and methodological bases for understanding the changing effects of rights discourses. This Comment suggests that a study of the broader social and political implications, including the costs, of rights discourses (internationally, nationally, and …

Editor's Note: Rights Consciousness In A Globalized World

Indiana Journal of Global Legal Studies

No abstract provided.

Vertical And Horizontal Perspectives On Rights Consciousness, David M. Engel

Indiana Journal of Global Legal Studies

It has become commonplace to assert that rights consciousness is expanding globally and that individuals worldwide are demonstrating an increasing awareness of and insistence upon their legal entitlements. To marshal empirical support for such claims is, however, exceedingly complex. One important line of socio-legal research on rights consciousness adopts what might be called a "vertical" perspective, tracing the flow of legal forms and practices from prestigious and authoritative centers of cultural production to local settings, where they may be adopted, resisted, or transformed. Vertical perspectives on global rights consciousness have broadened and enriched the field of law and society by …

Dimensions Of Rights Consciousness, Carol J. Greenhouse

Indiana Journal of Global Legal Studies

Commenting on David Engel's Article, this Comment responds particularly to Engel's formulation of horizontal and vertical axes as a metaphor for the ways different analytical approaches to law and legal consciousness potentially yield *recombinant interpretive questions. Pursuing Engel's concerns with the embeddedness of local norms and social relations in state-based and global legal processes, this Comment suggests expanding the two dimensions of Engel's matrix to four, so as to highlight the relevance of social distance and temporality in the differing accounts of law he assays, and in appreciating their stakes. In so doing, this Comment situates Engel's essay as a …

Expanding The Horizons Of Horizontal Inquiry Into Rights Consciousness: An Engagement With David Engel, Michael W. Mccann

Indiana Journal of Global Legal Studies

This Comment interprets and reflects on the key features of David Engel's argument about the importance of balancing vertical models of rights diffusion with horizontal ethnographic studies of how rights consciousness develops out of practical experience in everyday social contexts. The primary focus is on endorsing the general argument and amplifying some understated or undeveloped dimensions of Engel's position. In particular, this reflection makes the case for: 1) expanding the range of subjects and contexts subjected to horizontal study, including especially greater attention to "haves" and elite actors; 2) studying subjects expected to have high rights consciousness as well as …

Against Wishful Scholarship: The Importance Of Engel, Duncan Mccargo

Indiana Journal of Global Legal Studies

David Engel's Article on global consciousness' crystallizes a set of arguments he recently made in a number of publications, most notably in his coauthored book Tort, Custom, and Karma.2 To me, the main point of his argument is by no means limited to questions of law or globalism. Rather, he argues against the dominant mode of writing among scholars across a wide range of social science and related disciplines-a mode of writing that might best be termed "wishful scholarship." In wishful scholarship, the starting point of the author is the world as she or he wishes to see it, or …