Yale Law Research Papers - Academia.edu (original) (raw)

III. FORMS OF DIALOGUE AND MODELS OF JUDICIAL REASONING ..................................................... 423 A . D ialogic M odel... more

III. FORMS OF DIALOGUE AND MODELS OF JUDICIAL REASONING ..................................................... 423 A . D ialogic M odel ............................................................................................................... 424 1. Foreign Law and Transnational Dialogue ......................................................... 424 2. Lower Courts, Legislatures, and Local Dialogue ............................................... 427 a. Standards, Balancing, and Normative Reasoning .................................. 428 b. The Supreme Court and Democratic Deliberation ................................. 432 3. Dialogue and Comparative Reasoning ............................................................... 437 B . The Enforcem ent M odel .................................................................................................. 439 1. Foreign Law and the Problem of Coherence ...................................................... 439 2. Lower Courts, Legislat...

Principles of the Recognition of States. To recognize a community as a State is to declare that it fulfills the conditions of statehood as required by international law. If these conditions are present, existing States are under the duty... more

Principles of the Recognition of States. To recognize a community as a State is to declare that it fulfills the conditions of statehood as required by international law. If these conditions are present, existing States are under the duty to grant recognition. In the absence of an ...

It is a well-established principle of international law that applicable law provisions do not expand the jurisdiction of international courts and tribunals. Nevertheless, UNCLOS tribunals have not uniformly conformed to this principle. In... more

It is a well-established principle of international law that applicable law provisions do not expand the jurisdiction of international courts and tribunals. Nevertheless, UNCLOS tribunals have not uniformly conformed to this principle. In particular, the tribunals in M/V Saiga (No. 2), Guyana v. Suriname, and M/V Virginia G effectively invoked Article 293(1) to expand their jurisdiction. And although the tribunals in MOX Plant, Chagos, Arctic Sunrise, and Duzgit Integrity have stood by the principle, they all failed to recognize the legal error committed by the other three tribunals. This Comment argues that an express refutation of the erroneous jurisprudence is necessary to preserve the legitimacy of UNCLOS proceedings.

Law and economics has failed to produce plausible descriptive theories of contract doctrines. This paper documents these failures and suggests that they are due to a methodological problem involving the concept of transaction costs. If... more

Law and economics has failed to produce plausible descriptive theories of contract doctrines. This paper documents these failures and suggests that they are due to a methodological problem involving the concept of transaction costs. If transaction costs refer to writing or information costs, then rational individuals would agree to complex contracts that are not in fact observed, and contract law would, for the most part, have no other function than that of specifically enforcing contracts. If transaction costs refer to limits on foreseeability and other cognitive restrictions, then law and economics assumes implausibly both that people are rational enough to allow legal rules to influence their investment and breach decisions, but not rational enough to allow legal rules to influence contractual design. Implications for normative analysis are discussed, and non-economic approaches to contract law are surveyed and criticized.

International arbitration and, particularly, investor-state arbitration is rapidly shifting to include disputes of a public law nature. Yet, arbitral tribunals continue to apply standards of review derived from the private law origins of... more

International arbitration and, particularly, investor-state arbitration is rapidly shifting to include disputes of a public law nature. Yet, arbitral tribunals continue to apply standards of review derived from the private law origins of international arbitration, have not recognized the new public law context of these disputes, and have failed to develop a coherent jurisprudence with regard to the applicable standard for reviewing a state's public regulatory activities. This problematic approach is evidenced by a recent series of cases brought by foreign investors against Argentina challenging the economic recovery program launched after a massive financial collapse and has called into question the legitimacy of investor-state arbitration more generally. A comparative analysis of public law standards of review from both other international courts and the domestic systems of the U.S. and Germany demonstrates that arbitral tribunals have a variety of standards of review from whi...

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... more

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 transformation. Over the course of more than a century, Congress gradually yielded power to the President to make international agreements. Each individual delegation of authority relinquished only a small measure of power, while freeing members of Congress to focus on matters that were more likely to improve their reelection prospects. But the cumulative effect over time left Congress with little power over international lawmaking. As a result, the President is now able to make law over an immense array of issues-including issues with significant domestic ramifications-by concluding binding international agreements on his own. This imbalance of power violates democratic principles and may even lead to less effective international agreements.

Academic scholars, U.S. military commanders, and advocacy groups, and former-President Obama largely agreed that militaries should offer compensation after the lawful killing of civilians. But this understanding is undertheorized and... more

Academic scholars, U.S. military commanders, and advocacy groups, and former-President Obama largely agreed that militaries should offer compensation after the lawful killing of civilians. But this understanding is undertheorized and potentially up for debate under President Trump. We suggest this compensation should be reconceptualized as a form of amends to better reflect the needs of affected civilians and to provide a mechanism for those engaged in armed conflict to address the harm they do within the limits of the law. The psychological literature offers useful insights on the elements of amends generally, as well as apologies more specifically, and how they function in domestic legal settings, but these insights have yet to be applied to the foreign conflict setting in which militaries offer amends such as condolence and solatia payments. This literature can help illuminate the reasons why amends receive such strong support as well as generate testable hypotheses about the ess...

III. ACCOUNTABILITY FOR TRANSNATIONAL CYBER OFFENSES: INTERNATIONAL DISPUTE R ESOLUTION ......................................................... 209 A. International Arbitration and Civil Liability... ................... . ............. more

III. ACCOUNTABILITY FOR TRANSNATIONAL CYBER OFFENSES: INTERNATIONAL DISPUTE R ESOLUTION ......................................................... 209 A. International Arbitration and Civil Liability... ................... . .......... ........... 211 B. Transnational Criminal Law ............................. .. . . .. ... ............ 215 C. International Criminal Law .......................................... 220 1. Universal Jurisdiction. ............................... ..... ......... 223 2. Complementarity .................. ............................ ....................... 225

International human rights law today is being questioned on the basis of the regime’s scope of authority and enforceability. Since 1988, the Inter-American Court of Human Rights has seen its case law and its influence expand. The Court’s... more

International human rights law today is being questioned on the basis of the regime’s scope of authority and enforceability. Since 1988, the Inter-American Court of Human Rights has seen its case law and its influence expand. The Court’s opinions, along with the reports of the Inter-American Commission on Human Rights, have become widely seen by domestic courts as authoritative, thereby realizing many of the promises of international norms and holding Latin American States accountable for their unwillingness or inability to fulfill their international obligations. Along with the significant institutionalization of human rights law in other regions, as well as at the global level, human rights law in the Americas has become part of the legal and political landscape of States and the individual, creating a kind of inter-American constitutionalism. Despite this trend, the system of human rights protection has recently come under fire, as have other regional human rights regimes and int...

It is a well-established principle of international law that applicable law provisions do not expand the jurisdiction of international courts and tribunals. Nevertheless, UNCLOS tribunals have not uniformly conformed to this principle. In... more

It is a well-established principle of international law that applicable law provisions do not expand the jurisdiction of international courts and tribunals. Nevertheless, UNCLOS tribunals have not uniformly conformed to this principle. In particular, the tribunals in M/V Saiga (No. 2), Guyana v. Suriname, and M/V Virginia G effectively invoked Article 293(1) to expand their jurisdiction. And although the tribunals in MOX Plant, Chagos, Arctic Sunrise, and Duzgit Integrity have stood by the principle, they all failed to recognize the legal error committed by the other three tribunals. This Comment argues that an express refutation of the erroneous jurisprudence is necessary to preserve the legitimacy of UNCLOS proceedings.

Contemporary sociology of law is characterized by a confusion of science and policy. Its analysis proceeds in the disembodied tongue of science, in the language of "system," "structure," ".pattern," and "organization," or in the... more

Contemporary sociology of law is characterized by a confusion of science and policy. Its analysis proceeds in the disembodied tongue of science, in the language of "system," "structure," ".pattern," and "organization," or in the vocabulary of technique, of "needs," "functions," and "viability." Rarely does the language impart emotion, indignation, or

harbored disagreement, suspicion, and conflict-not only over who was black and who was white, but over how to make such determinations at all.' By examining the kinds of evidence witnesses and litigants brought forth at trial, I hope to... more

harbored disagreement, suspicion, and conflict-not only over who was black and who was white, but over how to make such determinations at all.' By examining the kinds of evidence witnesses and litigants brought forth at trial, I hope to suggest that law, broadly defined, played an important role in constituting the cultural meaning of racial identities. In this Article, I argue that, over the course of the antebellum period, law made the "performance" of whiteness increasingly important to the determination of racial status. 6 Doing the things a white man or woman did became the law's working definition of what it meant to be white. 7 This 5. Of course, trial records necessarily reveal much more about the racial ideology of the Southern whites than that of people of color, because whites controlled the courts, composed the juries, and gave most of the testimony. It is beyond the scope of this Article to investigate the ideology of "color" of people of color in the 19th century, although I am pursuing this research elsewhere. My preliminary findings based on other records of ex-slaves and free people of color suggest that they exhibited no more agreement than did the white "community" over racial identities. Werner Sollors touches on many issues regarding "mulattoes" and racial identity in his study of "interracial literature" by black authors. See WERNER SOLLORS, NEITHER BLACK NOR

The Storrs Lectures at Yale have produced sharply differing views of law. In 1974, Grant Gilmore said "[t]he function of law.. . is to provide a mechanism for the settlement of disputes in the light of broadly conceived principles on... more

The Storrs Lectures at Yale have produced sharply differing views of law. In 1974, Grant Gilmore said "[t]he function of law.. . is to provide a mechanism for the settlement of disputes in the light of broadly conceived principles on whose soundness, it must be assumed, there is a general consensus among us."' Seven years later Clifford Geertz, the anthropologist, objected to Gilmore's concept of law. 2 Law, Geertz argued, "is not a bounded set of norms, rules, principles, values, or whatever from which jural responses to distilled events can be drawn, but part of a distinctive manner of imagining the real." 3 Geertz pointed to legal sensibil-"

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... more

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 transformation. Over the course of more than a century, Congress gradually yielded power to the President to make international agreements. Each individual delegation of authority relinquished only a small measure of power, while freeing members of Congress to focus on matters that were more likely to improve their reelection prospects. But the cumulative effect over time left Congress with little power over international lawmaking. As a result, the President is now able to make law over an immense array of issues-including issues with significant domestic ramifications-by concluding binding international agreements on his own. This imbalance of power violates democratic principles and may even lead to less effective international agreements.

The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women. Barbara A Brown, Thomas I Emerson, Gail Falk, Ann E Freedman The Yale Law Journal 80:55, 871-985, The Yale Law Journal Company, Inc., 4/1971.

Several years ago, I called attention to the burgeoning of "transnational public law litigation": suits brought in United States courts by individual and governmental litigants challenging violations of international law.' As recent... more

Several years ago, I called attention to the burgeoning of "transnational public law litigation": suits brought in United States courts by individual and governmental litigants challenging violations of international law.' As recent examples of this phenomenon, I included international human rights suits brought by aliens against foreign and United States governments and officials under the Alien Tort Statute, 2 as well as actions by foreign governments against individual, American government, and corporate defendants. 3 Like its domestic counterpart (christened fifteen years ago by Abram Chayes), transnational public law litigation seeks to vindicate public rights and values through judicial remedies. 4 In both settings, parties bring "public act Professor, Yale Law School. This article builds upon ideas sketched in Koh, Civil Remedies for

I. IN TROD U CTIO N ............................................................................................................................. 134 A . A griculture and N utrition... more

I. IN TROD U CTIO N ............................................................................................................................. 134 A . A griculture and N utrition .................................................................................................. 136 B . H um an H ealth and M edicine ............................................................................................. 138 1.H IV /A ID S .................................................................................................................... 13 8 2 .In flu en za ....................................................................................................................... 14 0 3 .T ub erculosis ................................................................................................................. 14 1

Despite the promise of Gideon, providing "the guiding hand of counsel" to indigent defendants remains unmanageable, largely because the nation's public defender offices are overworked and underfunded. Faced with overwhelming caseloads and... more

Despite the promise of Gideon, providing "the guiding hand of counsel" to indigent defendants remains unmanageable, largely because the nation's public defender offices are overworked and underfunded. Faced with overwhelming caseloads and inadequate resources, public defenders must engage in triage, deciding which cases deserve attention and which do not. Although scholars have recognized the need to develop standards for making these difficult judgments, they have paid little attention to how implicit, i.e., unconscious, biases may affect those decisions. There is reason to suspect that unconscious biases will influence public defender decisionmaking due to generations of racial stereotypes specific to stigmatized groups and crime. This Essay urges legal scholars and practitioners to consider how implicit biases may influence the rationing of defense entitlements and suggests ways to safeguard against the effects of these unconscious forces.

Two vexing puzzles plague American land use regulators. The first puzzle is how to protect property owners from harmful spillovers without unduly stifling land use diversity. The dominant forms of land use regulation in the United States... more

Two vexing puzzles plague American land use regulators. The first puzzle is how to protect property owners from harmful spillovers without unduly stifling land use diversity. The dominant forms of land use regulation in the United States - zoning and private covenants - rely on ex ante prohibitions. Yet, since local governments and private developers rarely can calibrate the level of regulation to residents’ true preferences, the costs imposed by these regulations tend to exceed the benefits of actual harm prevention. The result is the over-protection of property owners and, and, many would argue, a monotonous, sterile, inefficient, and inconvenient suburban landscape. The second puzzle is how to address the intrametropolitan inequalities resulting from the fragmented distribution of regulatory authority without undercutting the beneficial effects of inter-jurisdictional competition. While this puzzle extends beyond property law, land use regulations are particularly problematic bec...

I. FEDERALISM AND THE VALUE OF COMMUNITY ......................................................................... 56 A . Federalism 's A ttributes... more

I. FEDERALISM AND THE VALUE OF COMMUNITY ......................................................................... 56 A . Federalism 's A ttributes ................................................................................................. 57 B. The M eaning of Comm unity .......................................................................................... 58 C. Constitutional Accommodation of Ethnicity in Ethiopia: A Brief Look ....................... 61 1. Political Background ....................................................................................... 61 2. Protection of Community Under the Ethiopian Constitution ......................... 63

V. THE REASONABLE COMBATANT: PRECISION BUT NOT PERFECTION ........................................... 531 A . The Reasonable Com batant ........................................................................................... 531 B.... more

V. THE REASONABLE COMBATANT: PRECISION BUT NOT PERFECTION ........................................... 531 A . The Reasonable Com batant ........................................................................................... 531 B. "Effects-Based Targeting "' and Responsibility for Effects ............................................. 533 C. A Duty of Care, Not of Perfection ................................................................................... 535 1. The N ature of W ar ............................................................................................. 535 2. P erverse R esults ................................................................................................ 537 D . Com batant as Fiduciary ? ............................................................................................... 538

Modern international tribunals have developed a presumption of unconditional early release after prisoners serve two thirds of their sentences, which decreases transparency and is generally out of line with the goals of international... more

Modern international tribunals have developed a presumption of unconditional early release after prisoners serve two thirds of their sentences, which decreases transparency and is generally out of line with the goals of international criminal law. I trace the development of this doctrine to a false analogy with the law of domestic parole. I then suggest an alternative approach based on prisoners’ changed circumstances and enumerate criteria for tribunals to use in future early release decisions.

Markets, democracy, and ethnicity: toward a new paradigm for law and development. by Amy L. Chua I. INTRODUCTION It is by now a commonplace that we are living in a period of radical global transformation.(1) Particularly in the developing... more

Markets, democracy, and ethnicity: toward a new paradigm for law and development. by Amy L. Chua I. INTRODUCTION It is by now a commonplace that we are living in a period of radical global transformation.(1) Particularly in the developing world,.

In the familiar case of Lumley v. Wagner, the English Court of Equity held that although opera singer Johanna Wagner could not be ordered to perform her contract, she would be enjoined from singing at any competing music hall for the term... more

In the familiar case of Lumley v. Wagner, the English Court of Equity held that although opera singer Johanna Wagner could not be ordered to perform her contract, she would be enjoined from singing at any competing music hall for the term of the contract.! Lumley is usually lauded in first year contracts courses as a just and fair decision, one that illustrates the proper distinction between equitable orders that force performance (unworkable and unjust) and equitable orders that prevent performance (sometimes workable, usually practical, and not necessarily unjust). 2 Contracts classes, however, rarely consider the central labor issue: whether an injunction preventing an employee from quitting and working elsewhere violates the American tradition of free labor and the right to quit employment. 3 t Professor of Law, University of Iowa College of Law. This Article is dedicated to the memory of Professor Mary Joe Frug. This Article was inspired in part by her work on the feminist reading of contracts casebooks. Mary Joe Frug, Re-Reading Contracts: A Feminist Analysis of a Contracts Casebook, 34 AM. U. L. REV. 1065 (1985). I feel particularly privileged to have had the benefit of her encouragement and her perceptive comments on an early draft of this work. An early version of this piece was delivered as part of the Schouler Distinguished Lectures at Johns Hopkins University. I would like to thank the audience participants for their comments. I would further like to thank several readers for giving me the insights of their perspectives on this work.

Suppose that two groups of expert mathematicians disagree about a complex mathematical question--say, whether Princeton mathematician Andrew Wiles really did solve "Fermat's Last Theorem," which no mathematician had been... more

Suppose that two groups of expert mathematicians disagree about a complex mathematical question--say, whether Princeton mathematician Andrew Wiles really did solve "Fermat's Last Theorem," which no mathematician had been able to prove since Louis Fermat first ...

On August 20, 1998, the United States fired Tomahawk missiles at sites in Afghanistan and Sudan. The missile strikes destroyed the El Shifa pharmaceutical plant located in Sudan's capital, Khartoum. The United States also targeted... more

On August 20, 1998, the United States fired Tomahawk missiles at sites in Afghanistan and Sudan. The missile strikes destroyed the El Shifa pharmaceutical plant located in Sudan's capital, Khartoum. The United States also targeted training facilities in Afghanistan believed to be under the control of Osama bin Laden, the man depicted by the Clinton Administration as the "terrorist mastermind" behind the August 7, 1998 bombings of the American embassies in Nairobi, Kenya, and Dar es Salam, Tanzania. The United States promptly notified the Security Council that the military strikes were legally justified as measures taken in self-defense, under Article 51 of the United Nations Charter.! President Clinton stated that the United States had "convincing evidence" that bin Laden was behind the embassy bombings and had planned to attack other American targets in the immediate future.2 Administration officials claimed that the Sudan factory "was producing chemica...

2. "We are somebody again" (author's translation). 3. This term, AusUInder in German, applies to anyone who is not a German citizen or a •status-German" (someone of German descent who is entitled to enter Germany). As will be seen... more

2. "We are somebody again" (author's translation). 3. This term, AusUInder in German, applies to anyone who is not a German citizen or a •status-German" (someone of German descent who is entitled to enter Germany). As will be seen throughout this article, the status-Germans and Germany's restrictive ascriptive citizenship laws make the use of this word problematic.

It feels as if I have fallen unexpectedly into a deep whirlpool which tumbles me around so that I can neither stand on the bottom nor swim up to the top."' Descartes wrote these words of despair in his Second Meditation as he contemplated... more

It feels as if I have fallen unexpectedly into a deep whirlpool which tumbles me around so that I can neither stand on the bottom nor swim up to the top."' Descartes wrote these words of despair in his Second Meditation as he contemplated the possibility that he might be dreaming-or worse, that an evil demon might be deceiving all his senses. For Descartes, however, skeptical despair was only the starting point of epistemological inquiry. The end point of this inquiry was not skepticism, but a new understanding of certainty and of the possibility of knowledge. Since Descartes, skeptical considerations have continued to serve as powerful epistemological tools, helping us to investigate and refine our ideas of what it is to know and to believe. As an end station, the radical doubt characteristic of philosophical skepticism is barren, for it fails to make sense of our practices of argument and assertion, belief and doubt. But as an investigatory tool, skepticism is extremely fruitful, for it requires us to clarify and defend-and perhaps deeply transform-our philosophical conception of what it means to justify claims of knowledge and belief.' Recently, legal scholars have adopted certain forms of skepticism, originating largely in philosophical arguments about the nature of language use and argument, which they claim give reason to doubt the viability of a political regime of justly applied laws. Critical Legal Studies (CLS) scholars and sympathizers like Joseph Singer, Mark Kelman, and Anthony D'Amato, and the feminist theorist Ann Scales, have appropriated these philosophical arguments in order to criticize the ideology of "liberal legalism," a conception of political authority whose exercise is mediated by law These scholars argue 1. 2 REN9 DESCARTES, Meditations on First Philosophy, in THE PHILOSOPHICAL WRITNGS OF DESCARTES 16 (John Cottingham et al. trans., Cambridge Univ. Press 1984) (1642). 2. See generally BARRY STROUD, THE SIGNIFICANCE OF PHILOSOPHICAL SCEPICIsM (1984). 3. Legal skeptics have argued against claims of legal justification or certainty on a variety of linguistic and nonlinguistic grounds. Scholars who rely on Wittgensteinian or deconstructionist doubts about the determinacy of language include:

The essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion... more

The essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative right that rhetorically keeps the state out of the domain of family life. As such, the decision privatizes not only the abortion decision, but also parenting, by rendering the decision to carry a pregnancy to term a choice. It thereby legitimates a minimalist state response to the problems of pregnant women who carry their pregnancies to term and for poor parents who might need greater public support. These marginalized groups need greater community and state assistance with the demands of parenting, and the equation of reproductive justice with a right to terminate a pregnancy is in tension with a political or legal agenda for meeting those needs. The essay then explores the possibility of creating a right to legal abort...