Living with History: Will the Alien Tort Statute Become a Badge of Shame or Badge of Honor?
This Essay considers the 2021 Supreme Court ruling in Nestlé USA, Inc. v. Doe to interrogate the importance of U.S. nationality in future Alien Tort Statute jurisdictional analysis, offering that the Supreme Court can still bring ATS jurisprudence back in line with history on the question of U.S.-ac…
Seeking Justice: The State of Transnational Corporate Accountability
As communities harmed by multinational companies traverse the globe in search of remedy, they face diverse legal systems that are historically ill-equipped to meet their needs. This Essay explores the current legal context for such efforts in Global North jurisdictions and suggests some new and unde…
Utilizing Foreign Legal Assistance Actions to Promote Corporate Accountability for Human-Rights Abuses
This Essay discusses some of the challenges that may arise during transnational human-rights litigation against multinational corporations in U.S. courts. To complement these efforts, the author suggests utilizing the foreign legal assistance statute to strengthen human-rights cases promoting corpor…
Not Hers Alone: Victim Standing Before the CEDAW Committee After M.W. v. Denmark
This Note argues that the CEDAW Committee should embrace and expand on its admissibility decision in M.W. v. Denmark, in which the Committee granted victim standing to a male child, by allowing any individual to allege CEDAW violations without restriction on the basis of sex, gender, or gender ident…
Spinning Secrets: The Dangers of Selective Declassification
Presidents often engage in what this Note calls selective declassification: the practice of declassifying documents that help advance a presidential agenda while keeping conflicting documents secret. This Note shows how selective declassification distorts public perceptions and policy choices, and o…
State of the Art: How Cultural Property Became a National-Security Priority
Until recently, the United States did little to help repatriate looted antiquities, thanks to a powerful coalition of art collectors, museums, and numismatists who preferred an unregulated art market. This Essay explores how the United States came to treat the protection of cultural property as an i…
The Multiple Selves of Economic Self-Determination
This Essay contends that dyadic understandings of economic self-determination, formed in light of earlier anticolonial struggles, are no longer sufficient. It argues instead for a plural and flexible conception, centered on a broader vision of the economic “self,” that more accurately reflects sourc…
The Tragedy and Promise of Self-Determination
The principle of self-determination, like Janus, has two faces: negative and positive. Often understood as enabling the fracture of states into national components, the principle is better seen as facilitating the creation of multinational frameworks that foster toleration and human rights.
Climate Change and Challenges to Self- Determination: Case Studies from French Polynesia and the Republic of Kiribati
This Essay examines effects of climate change and related phenomena on self-determination through two case studies. The case of French Polynesia highlights effects on people’s right to freely dispose of their natural resources. The case of the Republic of Kiribati demonstrates how a defeatist narrat…
Privacy and Security Across Borders
This Essay analyzes the impetus and results of recent initiatives by the United States, European Union, and Australia to regulate law enforcement access to data, highlights their promise and their limits, and offers a way forward that protects speech, privacy, and other rights in the process.
Sovereign Difference and Sovereign Deference on the Internet
This Response to Andrew Woods makes two points. First, it shows why the “fragmentation” charge frequently levied against sovereignty-based approaches to internet governance is misplaced. Second, it questions the efficacy of Woods’s normative theory of judicial comity.
Monuments to the Confederacy and the Right to Destroy in Cultural-Property Law
The recent protests over Confederate memorials illustrate a gap in cultural-property law. Because cultural-property law presses inexorably toward preservation, it has no framework for addressing when a nation might be justified in destroying its own cultural property. This Note provides a framework …
The Treaty Problem: Understanding the Framers’ Approach to International Legal Commitments
Bond v. United States failed to answer important questions about the scope and limits of the treaty power. This Comment highlights an underexplored factor driving the Framers’ formulation of that power—the threat of war inherent in all treaty violations—and its implications for Bond’s lingering ques…
Presidential Power to Terminate International Agreements
Can President Trump unilaterally withdraw the United States from any and all international agreements to which the United States is a party? This Essay argues that constitutional, functional, and comparative-law considerations dictate that the answer is a resounding “no.”
Exceptional Judgments: Revising the Terrorism Exception to the Foreign Sovereign Immunities Act
Rogue states are sometimes charged with massive default judgments for state-sponsored terrorism. Frequently, those judgements apportion responsibility to states that were not involved in terrorism and frustrate diplomatic progress. This Comment proposes a novel administrative solution to make claims…
International Lobbying Law
Consultation rules allow nonstate actors to gain special access to international institutions. While consultation once was understood as a means of democratizing international institutions, today, many consultants are industry and trade associations. This Article reframes these rules as a body of lo…
When Stopping the Smuggler Means Repelling the Refugee: International Human Rights Law and the European Union's Operation To Combat Smuggling in Libya’s Territorial Sea
Over the past three years, the number of human tragedies on the Mediterranean Sea has reached an unprecedented level.1 The now-iconic image of a German rescue worker cradling a drowned migrant baby in his arms in the sea between Libya and Italy remains a disturbing reminder of the…
Is History Repeating Itself? Sentencing Young American Muslims in the War on Terror
The United States’ aggressive War on Terror policies since 9/11 have led to significant prison sentences for many young American Muslims, even when their charged criminal conduct cannot be tied to any act of violence in the United States or abroad. A primary reason provide…
Why Have We Criminalized Aggressive War?
On the dominant view, accepted by both defenders and critics of the criminalization of aggression, the criminal wrong of aggressive war is inflicted on the attacked state. This view is mistaken. It is true that whether a war is criminally aggressive is determined ordinarily by whether …
Duties Owed: Low-Intensity Cyber Attacks and Liability for Transboundary Torts in International Law
Low-intensity state-sponsored cyber attacks exist within a “gap” in public international law. Falling short of the definitions of use of force and intervention, these attacks are not clearly governed by international law. Some scholars have sought to stretch established …
Prosecuting Gender-Based Persecution: The Islamic State at the ICC
Reports suggest that Islamic State, the terrorist “caliphate,” has enslaved and brutalized thousands of women from the Yazidi ethnic minority of Syria and Northern Iraq. International criminal law has a name for what Islamic State has done to these women: gender-based persecu…
Triptych’s End: A Better Framework To Evaluate 21st Century International Lawmaking
How does the United States enter and exit its international obligations? By the last days of the Obama Administration, it had become painfully clear that the always imaginary “triptych” of Article II treaties, congressional-executive agreements, and sole executive agreements, which has guided foreig…
The Court and the World: American Law and the New Global Realities BY STEPHEN BREYER, ALFRED A. KNOPF, 2015 author. Kirkland & Ellis Distinguished Service Professor, University of Chicago Law School. Thanks to Will Baude and Curt Bradley for helpful comments, Kathrine Gutierrez f…
Jurisdiction and Applicable Law Under UNCLOS
Introduction In the recent case of Chagos Marine Protected Area,1 a five-member tribunal constituted under the United Nations Convention on the Law of the Sea (UNCLOS)2 held in its hands the fate of the Chagos Archipelago. One of the questions before the tribunal was whether it had…
The Judicial Enforceability and Legal Effects of Treaty Reservations, Understandings, and Declarations
abstract.The United States often ratifies multilateral treaties by relying on what are commonly referred to as reservations, understandings, and declarations (RUDs). RUDs limit the domestic effect of treaties and confine provisions to particular meanings consistent with the United States’ prac…
Founding-Era Jus Ad Bellum and the Domestic Law of Treaty Withdrawal
The Constitution provides no textual guidance for how, as a matter of domestic law, the United States can withdraw from an Article II treaty. The Supreme Court has not clarified matters. In the face of this uncertainty, government officials and scholars alike have long debated …
Democracy and Legitimacy in Investor-State Arbitration
In January 2016, the Canadian infrastructure company TransCanada Corporation filed a notice of intent to sue the United States government in a North American Free Trade Agreement (NAFTA) Chapter 11 arbitration over the Keystone XL pipeline. At the center of this dispute is the State Department’s ref…
The State’s Right to Property Under International Law
introduction On December 3, 2013, agents of the Australian Secret Intelligence Service seized privileged documents belonging to Timor-Leste on the premises of one of Timor-Leste’s legal advisers in Australia.1 The documents concerned an ongoing arbitration between the two states over…
Open Source Evidence on Trial
Introduction Investigating war crimes is a messy business. It is difficult and dangerous. International criminal tribunals charge powerful individuals, including heads of state and leaders of armed forces, whose personal resources may well exceed the annual operating budget of the invest…
The Domestic Analogy Revisited: Hobbes on International Order
This Essay reexamines Thomas Hobbes’s understanding of international order. Hobbes defended the establishment of an all-powerful sovereign as the solution to interpersonal conflict, and he advanced an analogy between persons and states. Extending this “domestic analogy,” the…
Reconciling the Crime of Aggression and Complementarity: Unaddressed Tensions and a Way Forward
In June 2010, after more than a decade of negotiation, the Assembly of States Parties to the Rome Statute of the International Criminal Court (ICC) agreed on a definition of the crime of aggression. But the Assembly failed to address a critical issue: whether and how prosecutions…
Asking for Directions: The Case for Federal Courts To Use Certification Across Borders
For more than a decade, the bench, bar, and commentators have disagreed as to whether judges should look to decisions of international and foreign courts for guidance in resolving disputes that appear in U.S. courts. In 2003, Justice Scalia’s dissent in Lawrence v. Texas warned darkly that…
In Defense of Due Diligence in Cyberspace
Introduction Recent events such as the attack on Sony by North Korea and revelations that Russians hacked President Obama’s e-mail have drawn attention to the dilemma of harmful transborder state and non-state cyber operations against government and private cyber infrastructure.1 Academ…
Participation, Equality, and the Civil Right to Counsel: Lessons from Domestic and International Law
122 Yale L.J. 2260 (2013).
Domestic efforts to establish a right to civil counsel by drawing narrow analogies to Gideon v. Wainwright have met with limited success. In contrast, two principles drawn from international jurisprudence—the human right to “civic participation” and the concept of “equality…
Outcasting, Globalization, and the Emergence of International Law
**This is the second in a series of responses to Oona Hathaway and Scott J Shapiro's recent article, Outcasting, which appeared in the November issue of YLJ. For Joshua Kleinfeld's response, see here.**
This Essay argues that we have been undergoing a profound sociocultural transformation over the …
Enforcement and the Concept of Law
International law, many think, is not really law at all because it is not enforced. That claim is a central focus of Oona Hathaway and Scott S…
Outcasting: Enforcement in Domestic and International Law
121 Yale L.J. 252 (2011).
This Article offers a new way to understand the enforcement of domestic and international law that we call “outcasting.” Unlike the distinctive method that modern states use to enforce their law, outcasting is nonviolent: it does not rely on bureaucratic organizations, such …
Judicious Influence: Non-Self-Executing Treaties and the Charming Betsy Canon
120 Yale L.J. 1784 (2011).
Despite their seeming impotency, non-self-executing treaties play an important role in domestic jurisprudence. When a statute permits more than one construction, judges have a number of interpretive tools at their disposal. One of these is the Charming Betsy canon, which…
Mandatory Versus Default Rules: How Can Customary International Law Be Improved?
Although customary international law (CIL) has historically been one of the principal forms of international law, it is plagued by debates and uncertainties about its proper sources, its content, its usefulness, and its normative attractiveness. While some of these debates and uncertainties are long…
Withdrawing from International Custom: Terrible Food, Small Portions
Curtis A. Bradley and Mitu Gulati’s Withdrawing from International Custom brings to mind the old joke recounted by Woody Allen in Annie Hall: “Two elderly women are at a Catskill mountain resort, and one of ’em says, ‘Boy, the food at this place is really terrible.’ The other one says, ‘…
Treaty Denunciation and "Withdrawal" from Customary International Law: An Erroneous Analogy with Dangerous Consequences
In their recent article in The Yale Law Journal, Professors Curtis Bradley and Mitu Gulati argue for a sweeping reformulation of international law relating to the legal force of customary norms. The model that they propose (the “Default View”) has the highly counterintuitive feature that states …
Withdrawing from Customary International Law: Some Lessons from History
The modern view is that “[c]ustomary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.” General and consistent practice can generate a rule of customary international law (CIL) that is binding on all nations even if that…
Opting out of the Law of War: Comments on Withdrawing from International Custom
Professors Curtis Bradley and Mitu Gulati have written a rich and interesting paper with a bold conclusion supported by historical and normative arguments. I find myself unpersuaded by either set of arguments. Most of my comments concern their reading of the historical sources, which they use to sho…
Withdrawing from International Custom
120 Yale L.J. 202 (2010).
Treaties are negotiated, usually written down, and often subject to cumbersome domestic ratification processes. Nonetheless, nations often have the right to withdraw unilaterally from them. By contrast, the conventional wisdom is that nations never have the legal right to…
Implementing the Hague Convention on Choice of Court Agreements in the United States: An Opportunity to Clarify Recognition and Enforcement Practice
120 Yale L.J. 397 (2010).
A Free Pass for Foreign Firms? An Assessment of SEC and Private Enforcement Against Foreign Issuers
119 Yale L.J. 1638 (2010).
While proponents of the bonding hypothesis have posited that foreign firms crosslist in the United States to signal compliance with the strict U.S. corporate governance regime, these scholars have taken the enforcement of U.S. securities laws largely for granted. This No…
Peace Through Complementarity: Solving the Ex Post Problem in International Criminal Court Prosecutions
119 Yale L.J. 1703 (2010).
Presidential Power over International Law: Restoring the Balance
119 Yale L.J. 140 (2009).
The vast majority of U.S. international agreements today are made by the President acting alone. Little noticed and rarely discussed, the agreements are concluded in a process almost completely hidden from outside view. This state of affairs is the result of a longterm tr…
Wishing International Law Away
But for its contemporary particularities, Michael Stokes Paulsen’s essay The Constitutional Power To Interpret International Law would work comfortably as an excellent example of late-nineteenth-century legal scholarship, with all of its best and worst qualities. The piece makes for good reading; …
The Prospects for the Peaceful Co-Existence of Constitutional and International Law
There is much to admire in Michael Stokes Paulsen’s elegant and bold polemic on the Constitution and international law. Paulsen deserves substantial praise both for offering a clear and accessible theory of the Constitution and international law, and for then bravely taking that theory to its logi…
Old W(h)ine, Old Bottles: A Reply to Professor Paulsen
International law is “everywhere” in the United States: informing state CO2 emissions standards; providing inspiration for local civil rights codes; and overseeing the more than three trillion dollars in annual trade in goods, to name just a few examples. A reader of Professor Michael Stokes Pau…
The Fog of Certainty
In The Constitutional Power To Interpret International Law, Michael Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, international law is “policy and politics.” For all the certainty with which his…
Responses to "The Constitutional Power To Interpret International Law"
Four authors respond to Michael Stokes Paulsen's The Constitutional Power To Interpret International Law, printed in Volume 118, Issue 8 of the Journal. Robert Ahdieh, Julian Ku, Margaret McGuinness, and Peter Spiro contributed their reactions to, and critiques of, this Essay for YLJ Online.
Our Imperial Criminal Procedure: Problems in the Extraterritorial Application of U.S. Constitutional Law
118 Yale L.J. 1660 (2009).
From the early days of the Republic, courts have encountered the question of whether and to what extent provisions of the Constitution establishing individual rights have force beyond the borders of the United States—that is, whether the Constitution has “extraterritor…
Medellin and the Future of International Delegation
118 Yale L.J. 1712 (2009).
Given the rise of globalization and the need for international governance of problems of the commons, the delegation of binding domestic authority to international agents is likely to be an issue of growing importance. This Essay considers the extent to which U.S. law …
The Constitutional Power To Interpret International Law
118 Yale L.J. 1762 (2009).
What is the force of international law as a matter of U.S. law? Who determines that force? This Essay maintains that, for the United States, the U.S. Constitution is always supreme over international law. To the extent that the regime of international law yields determin…
118 Yale L.J. 1434 (2009).
Conventional wisdom states that recent U.S. authorization of coercive interrogation techniques, and the legal decisions that sanctioned them, constitute a dramatic break with the past. This is false. U.S. interrogation policy well prior to 9/11 has allowed a great deal…
Taxing the Bandit Kings
The rise of significant inbound capital flows originating from sovereign wealth funds (SWFs) has occasioned a debate over the appropriate regulatory and tax treatment of these funds. In particular, it has been argued that the tax exemption currently enjoyed by SWFs confers an advantage on these enti…
Linking Ideas to Outcomes: A Response
It is a distinct pleasure to have the chance to respond to the insightful commentaries of Peter Drahos, Ruth Okediji, and Tomiko Brown-Nagin. I find much to agree with in each, but I will focus on a few areas of divergence in the hope of clarifying our differences. Drahos’s work on the role of id…
Treaties' End: The Past, Present, and Future of International Lawmaking in the United States
117 Yale L.J. 1236 (2008).
Nearly every international agreement that is made through the Treaty Clause should be approved by both houses of Congress as a congressional-executive agreement instead. In making this case, this Article examines U.S. international lawmaking through empirical, comparative…
Antislavery Courts and the Dawn of International Human Rights Law
117 Yale L.J. 550 (2008).
Between 1817 and 1871, bilateral treaties between Britain and several other countries (eventually including the United States) led to the establishment of international courts for the suppression of the slave trade. Though all but forgotten today, these antislavery courts …
Enforcing the Treaty Rights of Aliens
117 Yale L.J. 680 (2008).
Despite the Supremacy Clause’s declaration that treaties are the “Law of the Land,” efforts to incorporate treaties that guarantee individual rights into domestic law have been stymied by a wave of political opposition. Critics argue that giving these treaties the force of…
Concession Agreements:From Private Contract to Public Policy
117 Yale L.J. 510 (2007).
Many concession agreements between governments of developing countries and corporations have failed to produce expected infrastructural, monetary, and efficiency gains. This Note argues that these agreements fail in part because the parties construct them as traditional pr…
Piercing China's Corporate Veil: Open Questions from the New Company Law
117 Yale L.J. 329 (2007).
Designing a Constitution-Drafting Process: Lessons from Kenya
This Note examines Kenya’s recent constitution-writing experience as a case study for designing constitution-drafting processes in emerging democracies. Eight years after Kenya’s constitutional review process began, and after a highly acrimonious drafting period, Kenyans roundly defeated a proposed …
A Radical Rejection of Universal Jurisdiction
I want to look at the universal jurisdiction principle of Noah Feldman’s proposed minimum legal cosmopolitanism from the following hypothetical perspective. Suppose I were a voting member of an international organization considering whether to recognize this principle as binding international law…
Chevronizing Foreign Relations Law
116 Yale L.J. 1170 (2007)
A number of judge-made doctrines attempt to promote international comity by reducing possible tensions between the United States and foreign sovereigns. For example, courts usually interpret ambiguous statutes to conform to international law and understand them not to appl…
Disregarding Foreign Relations Law
116 Yale L.J. 1230 (2007)
What deference is due the executive in foreign relations? Given the considerable constitutional authority and institutional virtues of the executive in this realm, some judicial deference is almost certainly appropriate. Indeed, courts currently defer to the executive in a…
Understanding the Distinct Function of the Combatant Status Review Tribunals: A Response to Blocher
The Dangers and Demands of Cosmopolitan Law
In a recent essay in this Journal, Noah Feldman describes his conception of a “cosmopolitan law” and offers several theories of how such law could be applied. These theories explain when a liberal state may—and should—apply its law to the acts of foreigners in foreign lands. In this Response…
The Quest for a Higher Law
Noah Feldman’s “cosmopolitan law” is, I think, a revised version of what has been sometimes called the law of nations, international law, and transnational law. Each, as originated, was a quest for a higher law that would interpret, supplement, and sometimes limit the law and power of states. …
116 Yale L.J. 1022 (2007)
Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties
116 Yale L.J. 824 (2007)
With the nation's treaty obligations proliferating and foreign affairs cases taking up a growing share of the Supreme Court's docket, it is surprising how undertheorized the field of treaty interpretation remains. To fill this void, some have suggested that textualism, which …
Combatant Status Review Tribunals: Flawed Answers to the Wrong Question
116 Yale L.J. 667 (2006)
Read Geoffrey Corn, Eric Talbot Jensen, and Sean Watts's Response, Understanding the Distinct Function of the Combatant Status Review Tribunals: A Response to Blocher.
On June 16, 2006, the Appeals Chamber for the International Criminal Tribunal for Rwanda (“ICTR”) took judicial notice of the Rwandan genocide as a “fact of common knowledge” in Prosecutor v. Karemera. Though this unprecedented move originated from good intentions, it will prove to be a harm…
Inherent Executive Power: A Comparative Perspective
115 Yale L.J. 2480 (2006)
In light of recent debates regarding the scope and basis of inherent executive power, particularly with regard to foreign affairs and national security, this Essay examines different conceptions of executive power in five modern democracies. The Essay's study of British and …
Our Darwinian Law of War
The ways we fight - and the reasons why we fight - have changed. The Predator drone, last seen screaming across the screen in Syriana, has replaced the Winchester rifle in popular imagination; and Saddam Hussein is rightly considered a war criminal for violating the Chemical Weapons Convention, a tr…
Breaking with Custom
While considerable attention has been paid to the constitutional and treaty questions before the Court in Hamdan, the case begins with a seemingly straightforward question of customary international law: Does conspiracy, the sole charge against Hamdan, violate the law of war? The question is essenti…
Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry
115 Yale L.J. 1564 (2006)
Legal theorists are engaged in understanding the legitimacy of techniques by which principles of rights-holding travel across borders. Sovereigntists in the United States object to that migration. The history of both protest about and the incorporation of "foreign" law provi…
The Court of Vice Admiralty at Sierra Leone and the Abolition of the West African Slave Trade
115 Yale L.J. 1122 (2006)
Drawing on archival sources, this Note explores an early experiment in humanitarian intervention undertaken by the Court of Vice Admiralty at Sierra Leone through the suppression of the West African slave trade during the early decades of the nineteenth century. Part I discu…
The Responsibility To Protect: The U.N. World Summit and the Question of Unilateralism
115 Yale L.J. 1157 (2006)
More than a decade after the world did nothing to halt genocide in Rwanda, and in the shadow of ongoing atrocities in Darfur, Sudan, the international community recently made a new commitment to protect populations from genocide, war crimes, ethnic cleansing, and crimes agai…
Kilburn v. Libya: Cause for Alarm?
115 Yale L.J. 1177 (2006)
In Kilburn v. Libya, the D.C. Circuit held that a plaintiff may turn to United States courts to seek recovery from a foreign nation for injuries suffered at the hands of a terrorist organization with which the foreign nation was affiliated--if actions taken by that foreign n…
The World Bank and the Internalization of Indigenous Rights Norms
114 Yale L.J. 1791 (2005)
The World Bank has emerged as an important actor in the international law community by enforcing social and environmental standards in borrower countries. One such standard is its indigenous peoples policy, which the Bank attempts to incorporate into domestic law through bin…
Globalization and Distrust
114 Yale L.J. 1193 (2005)
There was a time when the critics of international law denounced it for its irrelevance, its masquerade of power. Now, in the post-ontological era of international law, the critique has shifted. International law is denounced not for its weakness but for its vigor, specifica…
American Prosecutors as Democracy Promoters: Prosecuting Corrupt Foreign Officials in U.S. Courts
114 Yale L.J. 1185 (2005)
On June 3, 2004, a jury in a San Francisco federal court convicted former Ukrainian Prime Minister Pavel Lazarenko of twenty-nine counts of money laundering, wire fraud, interstate transportation of stolen property (ITSP), and conspiracy. The jury found that Lazarenko stole…
International Tribunals and Forum Non Conveniens Analysis
114 Yale L.J. 443 (2004)
Many international civil disputes are resolved via state-driven litigation before multinational tribunals. Indeed, under traditional principles of international law, individuals may not appear before such tribunals at all. Instead, states must advance claims on behalf of thei…
The Eleventh Amendment and the Reading of Precise Constitutional Texts
113 Yale L.J. 1663 (2004)
In recent years, the Supreme Court has frequently observed that most statutes involve compromise. In particular, when Congress enacts a clear and precise statutory text--one that articulates not only a set of relevant aims but also the specific means of their …
Non-Self-Executing Treaties and the Suspension Clause After St. Cyr
113 Yale L.J. 2007 (2004)
Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003).
In INS v. St. Cyr, the Supreme Court rejected Congress's attempt to foreclose judicial review in various provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 and the Illegal Immigration Reform …
Chevron Deference and Treaty Interpretation
112 Yale L.J. 1927 (2003)
One need not accept Hobbes's vision of international relations as a perpetual "condition of warre" to recognize that the rule of law does not always govern international affairs. The inevitable tension between foreign policy objectives and rule-of-law values in U.S. foreign…
Piercing the Veil
112 Yale L.J. 1399 (2003)
Human rights law has a problem with religion. In a postmodern world in which the nation-state has been deconstructed and eighteenth- and nineteenth-century notions of unmediated national sovereignty have been properly put to rest, religion--and its attendant category, cultur…
The Law of Nations and the Offenses Clause of the Constitution: A Defense of Federalism
112 Yale L.J. 109 (2002)
One of the most important features of the United States government as originally conceived by the Framers is that, even before the addition of the Bill of Rights, its powers were strictly regulated by the Constitution. Instead of being a supreme parliament, able to do whate…
Do Human Rights Treaties Make a Difference?
111 Yale L.J. 1870 (2002)
Do countries comply with the requirements of human rights treaties that they join? Are these treaties effective in chan- ging changing states' behavior for the better? This Article addresses these questions through a large-scale quan- titative analysis of the relationship be…
The Storrs Lectures: Liberals and Romantics at War: The Problem of Collective Guilt
111 Yale L.J. 1499 (2002)
Somehow we in the West thought the age of war was behind us. After nuking Hiroshima, after napalming Vietnam, we had only distaste for the idea and the practice of war. The thought of dying for a noble cause, the pursuit of honor in the name of patria, brotherhood in arms--n…
Corporations and Human Rights: A Theory of Legal Responsibility
111 Yale L.J. 443 (2001)
The path of international law over the last century has been one of increasing both the breadth and the depth of its coverage. Its breadth has grown through the addition of new areas for regulation, whether the environment, telecommunications, health, or human rights; and its…
The Executive Power over Foreign Affairs
111 Yale L.J. 231 (2001)
This Article presents a comprehensive textual framework for the allocation of the foreign affairs powers of the United States government. The authors argue that modern scholarship has too hastily given up on the Constitution's text and too quickly concluded that the Constitut…
Sovereignty on Our Terms
110 Yale L.J. 885 (2001)