At Lawfare today, Ben Wittes criticizes King & Spalding for refusing to help the House of Representatives defend the Defense of Marriage Act (DOMA) in court. His argument turns on an analogy between representing the House and representing Gitmo detainees: Sometimes, the politically unpopular client is the House of Representatives, not a Guantanamo detainee. Sometimes, the contested legal questions...
Lindseth’s book is a highly valuable analysis of the administrative roots of the European Union, which will be of real service to scholars and students in the field. Although it is impossible to do justice here to his rich and, in many ways, provocative thesis, he argues that the legitimacy of the European project is drawn from administrative law and...
Lindseth’s claim in his new book is simple, intriguing, and surely will be seen as radical by most European law scholars: the European Union (EU) should be studied as an administrative rather than a constitutional project. Instead of reading the Lisbon Treaty as Member States’ acquiescence to a European constitutional order – one in which EU law is paramount and...
Let me first thank Peter and the other members of Opinio Juris for providing this space for an online discussion of my new book. Let me also thank Ken, Francesca, and Fernanda for taking the time to offer comments. I am really looking forward to this exchange. As its title suggests, Power and Legitimacy grapples with what I see...
We're pleased this week to host a discussion of Peter Lindseth’s new book, Power and Legitimacy: Reconciling Europe and the Nation-State (OUP 2010). Peter is Olimpiad S. Ioffe Professor of International and Comparative Law at the University of Connecticut Law School. Among other honors, Peter he has been a fellow and visiting professor in the Law and Public Affairs (LAPA)...
That question is raised by the ICC's investigation of the post-election violence in Kenya, which included a number of forcible circumcisions of Luo men. According to IRIN Africa, although the OPT originally alleged that the forcible circumcision qualified as the crime against humanity "other form of sexual violence" under Article 7(1)(g) of the Rome Statute, the Pre-Trial Chamber reclassified the...
Fine long article in the Washington Post today by Peter Finn and Anne E. Kornblut on why President Obama has not fulfilled his promise to close Guantanamo Bay. Detailed, measured, and comprehensive, with an excellent timeline graphic. I agree with Ben Wittes’ take that the best bit of reporting detail is this: On Obama’s inauguration night, when the new administration instructed military prosecutors...
Ken's post and the comments following it display an understanding that drones are particularly well suited to this mission because their longer loiter time makes them more discriminating and therefore more capable of proportional strikes than manned aircraft. As someone who has personal experience with the difficulties of discriminating between combatants and civilians while accurately delivering weapons from manned...
Jack Goldsmith notes at Lawfare: Last Monday Harvard Law School conferred its medal of freedom on one of its graduates, General Mark Martins, Commander of the Rule of Law Field Force -Afghanistan. The Harvard National Security Journal has just posted the speech, with slides, that General Martins gave for the occasion....
The US has now deployed armed drones over Libya, according to press reports. Drone systems have been operating as surveillance systems for weeks now, but acting on a NATO request, the US has now put up at least two weaponized drones in the Libya conflict. The logic of this move is inescapable. NATO countries launch air strikes against Libyan army assets, making...
For the students among you ramping up for your international law exams, you're probably glad that you won't have to face this kind of question (which appeared on Professor Beale's 1905 exam at Harvard Law School): Indictment for larceny. The defendant was an officer in the English army detailed to pursue a, band of Indians who had been murdering settlers in...
The Council of Europe continues to monitor death penalty practices around the world and call out friendly states that fall short of full abolition. Last week the Council passed a resolution (full text here) reiterating its support for abolition and calling on Belarus (as a potential member state), Japan and the U.S. to join the consensus of democratic, human rights...
