February 2011

A Response to Robert Ahdieh by Eric A. Posner

[Eric A. Posner, co-author of Universal Exceptionalism in International Law with Anu Bradford, responds to Robert Ahdieh] I am grateful for Professor Ahdieh’s illuminating comments on my paper with Anu Bradford. Ahdieh offers three interpretations of the charge of U.S. exceptionalism: Degreeism: The United States does not always win, but it wins more often than Europe and China do. Exceptionalism is a matter of degree, but it still exists. I don’t think that the traditional notion of American exceptionalism permits this interpretation, but it is possible that people misuse the word “exceptionalism” in the way that Ahdieh describes. Still, our purpose was to cast doubt on the appropriateness of exceptionalism (and, a fortiori, degreeism) as a moral category. Rather than criticizing states for being exceptionalist, we should focus on the relative normative appeal of the competing exceptionalist visions. An exceptionalist country that always gets its way, or a country that merely gets its way more often than other countries, may be a good country. Such country may also be “better” than the others, which is why we don’t sympathize with North Korea and Myanmar, which rarely get their way, and we retrospectively cheer on the British when they abolished the international slave trade. Everything depends on whether getting its way helps or hurts others—not whether a country is exceptionalist or not or the degree to which it can enforce its exceptionalist view. Presentationism:

A Response to Anu Bradford and Eric A. Posner by Robert Ahdieh

[Robert Ahdieh, the Associate Dean of the Faculty, Professor of Law, and Director of the Center on Federalism and Intersystemic Governance at Emory University School of Law, responds to Anu Bradford & Eric A. Posner, Universal Exceptionalism in International Law] In Universal Exceptionalism in International Law, Professors Anu Bradford and Eric Posner help to advance our understanding of international order in at least two respects. To begin, there is the distinction they draw (if sometimes imperfectly) between the familiar trope of “exceptionalism” – a term most commonly found with “American” in front of it – and the distinct concept of “exemptionalism.” As I will suggest below, I have some doubt about the definitional premise on which the Article is based. The notion that we should distinguish between a desire to have one’s values reflected in international law and a desire to operate beyond its strictures, however, has the potential to offer valuable leverage in the discourse of international law and relations. I was also struck by their systematic analysis of each of the states/regions of relevant interest – Europe, China, and the United States. It is beyond my expertise to assess the substantive accuracy of their review of distinct patterns of exceptionalism in each locale. Their embrace of what I would cast as a “microanalytic” approach to the question presented, however, holds great promise – perhaps especially when played out within a broader framework, such as the exceptionalism versus exemptionalism approach they advance. Notwithstanding these contributions, I have significant doubts about the conclusion that Bradford and Posner would have us take away from their Article.

Universal Exceptionalism in International Law by Anu Bradford and Eric A. Posner

[The following summary is the abstract from Universal Exceptionalism in International Law by Anu Bradford (an Assistant Professor of Law at the University of Chicago Law School) & Eric A. Posner (the Kirkland & Ellis Professor of Law at the University of Chicago Law School).] A trope of international law scholarship is that the United States is an “exceptionalist” nation, one...

A Response to John Armour, Jack B. Jacobs and Curtis J. Milhaupt by Zenichi Shishido

[Zenichi Shishido, a Professor at the Graduate School of International Corporate Strategy, Hitotsubashi University, responds to John Armour, Jack B. Jacobs and Curtis J. Milhaupt, The Evolution of Hostile Takeover Regimes in Developed and Emerging Markets: An Analytical Framework] It is a great pleasure to be able to comment on Armour, Jacobs, & Milhaupt’s excellent analytical, comparative study on a major issue of corporate governance. The article is focused on hostile takeover regimes and, at the same time, covers wide areas of the world, including three developed and three emerging capital markets. It is also important to note that they provide an analytical framework for analyzing different modes of business law reform in general, from the perspective of demand- and supply-side factors, which could be applied to a wide range of legal reforms. The article starts by raising a good question of why the regulatory responses to hostile takeovers are very different among the three countries who share the similar capital markets (the United Kingdom, the United States and Japan).

The Evolution of Hostile Takeover Regimes in Developed and Emerging Markets: An Analytical Framework by John Armour, Jack B. Jacobs and Curtis J. Milhaupt

[The following summary is the abstract from The Evolution of Hostile Takeover Regimes in Developed and Emerging Markets: An Analytical Framework by John Armour (the Hogan Lovells Professor of Law and Finance at the University of Oxford and a Fellow of the ECGI), Jack B. Jacobs (a Justice of the Supreme Court of Delaware) & Curtis J. Milhaupt (the Parker Professor of Comparative Corporate Law and Fuyo Professor of Japanese Law at Columbia Law School.).]

In each of the three largest economies with dispersed ownership of public companies—the United States, the United Kingdom, and Japan—hostile takeovers emerged under a common set of circumstances. Yet the national regulatory responses to these new market developments diverged substantially. In the United States, the Delaware judiciary became the principal source and enforcer of rules on hostile takeovers. These rules give substantial discretion to target company boards in responding to unsolicited bids. In the United Kingdom, by contrast, a private body consisting of market professionals was formed to adopt and enforce the rules on hostile bids and defenses. In contrast to those of the United States, the U.K. rules give the shareholders primary decisionmaking authority in responding to hostile takeover attempts. The hostile takeover regime in Japan, which developed recently and is still evolving, combines substantive rules with elements drawn from both the United States (Delaware) and the United Kingdom, while adding distinctive elements, including an independent enforcement role for Japan’s stock exchange. This Article provides an analytical framework for business law development to explain the diversity in hostile takeover regimes in these three countries.

A Response to Kevin Jon Heller by Gabriella Blum

[Gabriella Blum, author of On a Differential Law of War, responds to Kevin Jon Heller] First of all, let me express my thanks to Professor Heller for his exceptionally careful and thoughtful reading, as well as for his insightful commentary. It is also a very generous reading, for which I am grateful. I am especially pleased at the opportunity to respond to his comments, as I think they raise a crucial issue. The main theme of Prof. Heller’s commentary is the difficulty, perhaps impossibility, of maintaining the separation between the jus in bello and the jus ad bellum. The notion that the rules of war should apply equally to all sides – regardless of whether any party’s entry into the war was right or wrong at the outset – has been a feature of Just War doctrine since Grotius (who himself built on the Scholastics), but remains intensely debated even today. Prof. Heller illustrates persuasively how, as we consider raising the humanitarian obligations of stronger parties in wartime (thereby importing greater moral content, in terms of our theory of global justice, into IHL itself), ignoring the comparative justness of the parties’ causes becomes even less normatively attractive.

A Response to Gabriella Blum by Kevin Jon Heller

[Kevin Jon Heller, a Senior Lecturer at the University of Melbourne Law School, responds to Gabriella Blum, On a Differential Law of War]* Blum’s normative analysis of the desirability of common-but-differential responsibilities in IHL is exceptionally powerful, and I agree with most of her conclusions. I have written a formal response to her essay that will be published online by HILJ; here I want to briefly mention the aspect of her essay that I find most intriguing: namely, its implications for the distinction – fundamental to IHL – between the jus ad bellum and the jus in bello. Blum claims that, “in remaining loyal to the skepticism of IHL with regard to dependence on jus ad bellum,” she “ignore[s] the question of whether the parties are conducting a just or unjust war.” Her essay however, indicates that her loyalties are divided at best. She openly acknowledges, for example, that there “may not be valid reasons to maintain that distinction” when considering the corrective-justice rationale for CDRs, because identifying the “causes of suffering” sufficient to trigger the rationale “may be inextricable from the causes of the war and its justification.” Similarly, although the frequency with which states go to war is a jus ad bellum consideration, Blum accepts that incorporating CDRs into IHL will have a powerful effect on the utilitarian calculus that states use to determine whether they will use armed force, because “[i]f CDRs raise the bar for stronger parties, these states may calculate the costs of war differently and exercise further caution against the use of military force to begin with,” while “the greater constraints on stronger parties might encourage weaker parties, believing they stood a greater chance of success, to initiate conflicts, thereby increasing the overall incidence of violence.” Blum’s failure to live up to her claim to keep the jus ad bellum and jus in bello separate is, I think, a feature not a bug of her essay.

On a Differential Law of War by Gabriella Blum

[Gabriella Blum, an Associate Professor of Law at Harvard Law School, describes her recently published article On a Differential Law of War] Should the United States, as the strongest military power in the world, be bound by stricter humanitarian constraints than its weaker adversaries? Would holding the U.S. to higher standards than the Taliban, Iraqi insurgents, or the North Korean army yield overall greater humanitarian welfare or be otherwise justified on the basis of international justice theories? Or would it simply be another attempt at tying American hands, a form of “lawfare”? The paper offers an analytical framework through which to examine these questions. It begins from the observation that the current system of international humanitarian law (IHL) builds on the principle of the equal application of the law—the uniform and generic treatment of all belligerents on the battlefield according to the same rules and principles, and regardless of any disparity in power.. Yet regulation has taken a different path in some other areas of international law—most notably, international environmental law (IEL) and international trade law (ITL)—by linking obligations with respective capabilities. This linkage has been accomplished in several ways: by defining obligations with reference to resources, exempting weaker parties from compliance with certain obligations altogether, and even ordering more powerful parties to extend material assistance to weaker ones. As a group, these types of unequal obligations have been called “Common-but-Differentiated Responsibilities” (CDRs).