In my last post, I talked about the current and common technologies of the separation of powers, which focus on apportioning authority among winners of elections, or granting powers to losers of elections (as losers). In this post, I will discuss the emerging trend in the foundational public law commitments of many democracies to grant the power to losers...
Amidst all the focus on last week's decision in Medellin, most readers missed another important decision rendered by the Supreme Court that will have a significant impact on international law. The case of Hall Street v. Mattel concerns the ability of contractual parties to fashion judicial review of domestic and international arbitration awards. As a general rule, the...
I'm looking at you, McGuinness:A study, written for U.S. Special Operations Command, suggested "clandestinely recruiting or hiring prominent bloggers." Since the start of the Iraq war, there's been a raucous debate in military circles over how to handle blogs — and the servicemembers who want to keep them. One faction sees blogs as security risks, and a collective waste of...
Much of the attention on Medellin has (rightly to my mind) focused on the Court’s definition of a non-self-executing treaty and its method for finding the 3 treaties at issue—the VCCR Optional Protocol, the ICJ Statute and Article 94 of the U.N. Charter—to be non-self-executing. Whatever the more general implications of the Court’s method with respect to a presumption...
Imagine it is Wednesday morning, November 5, 2008, the morning after the American presidential election. After months of attacks on the Democratic Presidential nominee, Barack Obama, for being weak on terrorism, Republican Presidential nominee John McCain has not only won the presidential election, but against all odds the Republican Party has taken control of the House of Representatives and...
There have been several interesting blog posts about Washington & Lee's controversial new program of 3L experiential learning. (See Concurring Opinion posts here and here and Brian Leiter's post here). None of these posts have touched on how such a move will impact elective courses like international law. I strongly suspect that with a traditional 1L curriculum...
This op-ed by a former ICTY and ICTR prosecutor argues that the ICC should move, at least some of their hearings and trials, to locations closer to the site of the alleged crimes. In the case of the ICC, this means spending some of the $600 million it has spent so far on facilities in Africa, where all of...
I plan to discuss Medellin with my students this week, and I’ve written out a long list of questions for them to consider. It occurred to me that some of the readers of this blog might find the questions useful as well. (Eventually some of these questions will find their way into the next edition of the foreign...
One thing that I have long wondered about is why certain legal offices within the federal government become more political than other offices. Why, for instance, has the Office of Legal Counsel in the Department of Justice become more political, or so it seems, than the Office of Legal Advisor in the Department of State? Why have Inspector Generals...
I just finished reading and absorbing Medellin today. I mentioned the case several times in my Constitutional Law I class in the fall, and students seemed quite intrigued by the interesting fact pattern and issues presented by the case. Which leads me to the following question: Can readers think of a good place to teach Medellin in an introductory...
The series of wonderful posts on this blog about the Supreme Court’s decision in Medellin--and the energy and extent of coverage of the case even beyond this blog--remind me of an impression I have long had about legal scholarship in the United States compared to many other countries. I am reminded of something similar to what the famous sociologist...
[William Dodge is a law professor at UC Hastings] I’ve not seen anyone comment yet on what I thought was one of the more notable aspects of Chief Justice Roberts’s opinion, its application of Justice Jackson’s Youngstown analysis. The question is how to read congressional silence. Although I am greatly oversimplifying, Jackson seemed to read Congress’s failure to authorize what the...
