The Coerciveness Of International Law,
2010
Northwestern University School of Law
The Coerciveness Of International Law, Anthony D'Amato
Faculty Working Papers
This article shows that an important part of the deep structure of international law is its self-referential strategy of employing its own rules to protect its rules. International law tolerates a principled violation of its own rules when necessary to keep other rules from being broken. It extends a legal privilege to states to use coercion against any state that has selfishly attempted to transgress its international obligations. International law thus protects itself through the opportunistic deployment of its own rules.
The Moral And Legal Basis For Sanctions,
2010
Northwestern University School of Law
The Moral And Legal Basis For Sanctions, Anthony D'Amato
Faculty Working Papers
In order to analyze the moral and legal basis for sanctions in international relations, we have to begin at a stage where there is no centralized government in place. We first need to get a picture of the range of possible sanctions. Next, we need to see what role sanctions play in the international system. Finally, we turn to the intertwined moral and legal considerations that make well-designed sanctions efficacious in today's world. The fundamental objective of sanctions in interstate relations is to make it expensive for a target state to refrain from doing what the sanctioning state wants it …
The Path Of International Law,
2010
Northwestern University School of Law
The Path Of International Law, Anthony D'Amato
Faculty Working Papers
Is there a need for yet another student-edited international law journal? Practicing attorneys retrieve relevant articles when working on cases with international law issues, although they may be oblivious to the name of the journal or the prestige of the law school that supports it. For student editors, serving on a new international law journal is not just an intellectual experience; it is an empowering one. The more one looks into custom and treaty and the other sources of international law, the more one finds complexity and intellectual challenge.
Strategic Globalization: International Law As An Extension Of Domestic Political Conflict,
2010
Northwestern University School of Law
Strategic Globalization: International Law As An Extension Of Domestic Political Conflict, Jide Nzelibe
Faculty Working Papers
Traditional accounts in both the international law and international relations literature largely assume that great powers like the United States enter into international legal commitments in order to resolve global cooperative problems or to advance objective state interests. Contrary to these accounts, this Article suggests that an incumbent regime (or partisan elites within the regime) may often seek to use international legal commitments to overcome domestic obstacles to their narrow policy and electoral objectives. In this picture, an incumbent regime may deploy international law to expand the geographical scope of political conflict across borders in order to isolate the domestic …
Consent, Estoppel, And Reasonableness: Three Challenges To Universal International Law,
2010
Northwestern University School of Law
Consent, Estoppel, And Reasonableness: Three Challenges To Universal International Law, Anthony D'Amato
Faculty Working Papers
Like consent and estoppel, the concept of reasonableness, while failing to provide an adequate explanation of the source of obligation in customary international law, does play an important psychological role in adding to the pressure of international norms upon states. The result is to increase the sense of legality of the rules that are accepted by states as part of "customary international law." This is not to say that each and every alleged rule of universal international law must contain one or more of the elements of consent, estoppel, or reasonableness in order for it to be "valid."
The Concept Of Special Custom In International Law,
2010
Northwestern University School of Law
The Concept Of Special Custom In International Law, Anthony D'Amato
Faculty Working Papers
General customary international law contains rules, norms, and principles that seem applicable to any state and not to a particular state or an exclusive grouping of states. For example, norms relating to the high seas, to airspace and outer space, to diplomatic immunities, to the rules of warfare, and so forth, apply equally to all states having occasion to be concerned with these areas. Similarly, the facts of a given case may suggest exclusively the application of general custom—such as cases concerning collision on the high seas between ships of different countries, cases involving general principles of international law, cases …
Tort Law Is State Law: Why Courts Should Distinguish State And Federal Law In Negligence-Per-Se Law,
2010
University of Memphis
Tort Law Is State Law: Why Courts Should Distinguish State And Federal Law In Negligence-Per-Se Law, Barbara Kritchevsky
American University Law Review
No abstract provided.
Symposium Transcript,
2010
University of California, Irvine School of Law
Symposium Transcript, Erwin Chemerinsky, Mary Ellen O'Connell, Jeremy Rabkin
Richmond Journal of Global Law & Business
No abstract provided.
The Relationship Between Erisa, State And Local Health Care Experimentation, And The Passage Of National Health Care Reform,
2010
University of Maryland Francis King Carey School of Law
The Relationship Between Erisa, State And Local Health Care Experimentation, And The Passage Of National Health Care Reform, Christopher J. Frankenfield
Journal of Health Care Law and Policy
No abstract provided.
The Irrepressible Influence Of Byrd,
2010
Emory University School of Law
The Irrepressible Influence Of Byrd, Richard D. Freer, Thomas Arthur
Faculty Articles
We set forth four interrelated theses in this article. First, Byrd is the only Supreme Court case since Erie itself to discuss all three of the core interests balanced, expressly or not, in every vertical choice of law case. Second, because Hanna's "twin aims" test ignores two of these three core interests, it cannot adequately serve as the standard for cases under the Rules of Decision Act ("RDA"). This fact is evidenced by the Court's eschewing the twin aims test in cases, like Gasperini, where state and federal interests must be accommodated. Third, as all three opinions in …
"Give Me Your Tired, Your Poor, Your Huddled Masses," But Not Your Homosexual Partners: International Solutions To America's Same-Sex Immigration Dilemma,
2010
Benjamin N. Cardozo School of Law
"Give Me Your Tired, Your Poor, Your Huddled Masses," But Not Your Homosexual Partners: International Solutions To America's Same-Sex Immigration Dilemma, Matthew J. Hrutkay
Cardozo Journal of International and Comparative Law
The note argues that U.S. immigration law, despite its emphasis on family unification, excludes same-sex couples due to the Defense of Marriage Act (DOMA), creating a conflict between policy goals and legal realities. It proposes that international models, such as those from Australia and Canada, offer viable solutions to reconcile this dilemma while addressing conservative concerns about federal recognition of same-sex marriage.
The Procedural Foundation Of Substantive Law,
2010
University of Nevada, Las Vegas -- William S. Boyd School of Law
The Procedural Foundation Of Substantive Law, Thomas O. Main
Scholarly Works
The substance-procedure dichotomy is a popular target of scholarly criticism because procedural law is inherently substantive. This article argues that substantive law is also inherently procedural. I suggest that the construction of substantive law entails assumptions about the procedures that will apply when that substantive law is ultimately enforced. Those procedures are embedded in the substantive law and, if not applied, will lead to over- or under-enforcement of the substantive mandate. Yet the substance-procedure dichotomy encourages us to treat procedural systems as essentially fungible-leading to a problem of mismatches between substantive law and unanticipated procedures. I locate this argument about …
Personal Jurisdiction Over Non-Resident Class Members: Have We Gone Down The Wrong Road?,
2010
Roger Williams University School of Law
Personal Jurisdiction Over Non-Resident Class Members: Have We Gone Down The Wrong Road?, Tanya Monestier
Law Faculty Scholarship
No abstract provided.
The Third Time Is Not Always A Charm: The Troublesome Legacy Of A Dutch Art Dealer-The Limitation And Act Of State Defenses In Looted Art Cases,
2010
Stanford Law School
The Third Time Is Not Always A Charm: The Troublesome Legacy Of A Dutch Art Dealer-The Limitation And Act Of State Defenses In Looted Art Cases, Bert Demarsin
Cardozo Arts & Entertainment Law Journal
No abstract provided.
International Law In Domestic Courts: A Conflict Of Laws Approach,
2010
Duke Law School
International Law In Domestic Courts: A Conflict Of Laws Approach, Ralf Michaels, Karen Knop, Annelise Riles
Faculty Scholarship
The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system's jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as "theory through technique." In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between …
