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International Legal Theory and Teaching

A Broken Windows Theory of International Corruption

by Roger Alford

I have just posted on SSRN my latest article published in the Ohio State Law Journal. Through the lens of the broken windows theory of community policing, the Article examines the connection between corruption and other social goods in society, as well as the relationship between U.S. enforcement efforts and those of other OECD countries.

It is incredible how much empirical research has been done on international corruption in other disciplines, and yet the legal community largely ignores this data. It’s also incredible how rare it is for social science empiricists to make policy arguments that flow from their research. The Article tries to bring these two worlds together by digesting the mountain of empirical evidence regarding international corruption, and then making specific policy recommendations. Here’s the abstract:

The Article re-conceptualizes corruption through the lens of the broken windows theory of community policing, focusing on the root consequences of corruption as well as its secondary effects.

Part II of the Article posits that corruption is a broken window that signals the breakdown of community controls necessary for the maintenance of social order. A government that abuses its power for private gain is a government that cannot be trusted to pursue the general welfare. Empirical evidence finds ample support for this claim, confirming that corruption negatively alters the public’s perception of government and society.

Part III of the Article illuminates how corruption is associated with other matters of grave public concern, such that the struggle against corruption is the struggle to promote a variety of public benefits. Corruption is inextricably linked to many other public concerns. Empirical evidence finds a positive relationship between a country’s corruption ranking and its ranking on other major indices measuring public welfare. Communities that are perceived to take corruption seriously score well on their commitment to other social goods, such as global competitiveness and productivity, increased standards of living, enhanced children’s health, protection of civil liberties, and the safeguarding of political freedom. These corruption correlations provide an evocative snapshot of the connection between corruption and social order.

Part IV of the Article analyzes the legal efforts to combat corruption, with particular focus on the utility of cooperative efforts to regulate and prosecute corruption. Empirical studies show that coordination strategies between OECD enforcement authorities alter the behavior of corporations, foreign officials requesting bribes, and government officials prosecuting the payment of bribes.

Part V of the Article discusses how these findings have important implications when considered from the perspective of a “broken windows” theory of international corruption. How would a broken windows theory of corruption alter the legal landscape of anti-bribery laws? I offer three suggestions. First, a broken windows approach would redefine and reframe corruption as distrust and disorder. Conceptualizing corruption as a matter of public trust heightens its importance. Public trust is essential to the rule of law. Second, a broken windows approach would augment the battle against corruption with a greater emphasis on petty bribery. Thus far the legal enforcement strategies have focused on high-profile, large-scale corruption. A broken windows strategy would not ignore those cases, but would also focus on low-profile, petty corruption that alters quality of life and undermines public trust. Third, a broken windows theory would place greater emphasis on a partnership between the public and private sectors to combat corruption. This approach would mean that corruption should be considered in the local context, with a focus on its destabilizing effects in specific countries and communities.

Why is Academic Writing So Bad?

by Roger Alford

Scholarship

There is an interesting discussion by Stephen Walt over at Foreign Policy on why academic writing is so bad. It is a subject academics are reluctant to discuss, yet there is no doubt that much of what passes as legal scholarship is dull, disagreeable, undigestable. Here’s Walt’s take:

The first problem is that many academics (and especially younger ones) tend to confuse incomprehensibility with profundity. If they write long and ponderous sentences and throw in lots of jargon, they assume that readers will be dazzled by their erudition and more likely to accept whatever it is they are saying uncritically. Moreover, jargon is a way for professional academics to remind ordinary people that they are part of a guild with specialized knowledge that outsiders lack, and younger scholars often fear that if they don’t sound like a professional scholar, then readers won’t believe what they are saying no matter how solid their arguments and evidence are.

The second problem is the fear of being wrong. If your prose is clear and your arguments are easy to follow, then readers can figure out what you are saying and they can hold you to account. If you are making forecasts (or if the theory you are advancing has implications for the future), then you will look bad if your predictions are clearly stated and then fail. If your argument has obvious testable implications, others can run the tests and see how well your claims stand up.

But if your prose is muddy and obscure or your arguments are hedged in every conceivable direction, then readers may not be able to figure out what you’re really saying and you can always dodge criticism by claiming to have been misunderstood. (Of course, sometimes critics do deliberately misrepresent a scholarly argument, but that’s another matter). Bad writing thus becomes a form of academic camouflage designed to shield the author from criticism.

My own sense is that legal scholarship is better than most academic writing because we are trained at law school and in law firms to be convincing and comprehensible. Once in the academy, we are further trained to reach two audiences: our academic peers and our student gatekeepers who hold the keys to the kingdom. Obscurity may be appropriate for one audience, but not the other. Our law student underlords save us from the trap of most other academics.

So why does legal scholarship still miss the mark?

First, legal scholarship is formulaic. There is an order and predictability to legal writing that stifles creativity. You know the recipe: (1) Introduction with obligatory road map; (2) Background section for the neophyte; (3) Excruciating description of the problem; (4) Unrealistic normative solution; (5) Standard conclusion. This formula rules the day. Add ingredients, mix hastily, half-bake to 25,000 words, and then publish.

Second, legal scholarship is prosaic. Many legal scholars are more interested in arguments than words. We love the research, but not the writing. We are “ideasmiths” rather than wordsmiths. I recently read a draft article on financial regulation that had profoundly good ideas expressed in profoundly bad ways. At some point in the writing process, an entire draft should be devoted to simple wordsmithing. Every word, sentence, and paragraph should matter. When the manuscript is nearing completion we should be spending days wordsmithing, polishing rough edges, adding color and texture, altering the draft so that it is elegant and interesting.

Third, legal scholarship has a footnote fetish. Years of experience responding to law review editors has made original thought suspect. Today articles often have 500, even 600 footnotes. Student editors routinely demand supporting citations for original thought to the point of farce. The fruit of creativity struggles to survive with such aggressive pruning.

Fourth, legal scholarship is technical. Let’s face it, many of the subjects we write about are arid and lifeless. The devil is in the details, and those details are devilishly difficult to disseminate. It is not easy to make Rule 26(b) sound snappy. Maritime delimitation is not exactly the pearl of great worth. Okay, maybe it is, but writing about it is not. The trick is to make a technical subject sound as interesting as possible. Great legal writing often is about taking dry and tedious ingredients and transforming them into agreeable fare. It will not keep your teenager from rolling her eyes when you explain what you did at work today, but it should keep your colleagues and students from giving up in frustration.

The Role of Intellectuals in Society

by Roger Alford

In doing research on Aung San Suu Kyi, I recently came across this wonderful discussion from 2005 on the role of the intellectual in society. It comes in the form of a dialogue with Alan Clements in his book, The Voice of Hope: Aung San Suu Kyi: Conversations with Alan Clements.

Clements: I brought with me a quote from Václav Havel in which he explains the role of the intellectual within society. When I first read it, I instantly thought of you. He writes, “The intellectual should constantly disturb, should bear witness to the misery of the world, should be provocative by being independent, should rebel against all hidden and open pressures and manipulations, should be the chief doubter of systems … and for this reason, an intellectual cannot fit into any role that might be assigned to him … and essentially doesn’t belong anywhere: he stands out as an irritant wherever he is.”

Suu Kyi: I would agree with everything that Václav Havel says. I would say that basically, in order to become an intellectual you’ve got to have a questioning mind…. Intellectuals are very important in any society. Because they are the ones who, like in the quotation, are provoking people, opening them to new ideas, pushing them along to new heights. This is one of the tragedies of Burma–the intellectual is not allowed any place within the society. And the real intellectual, of the kind described by Václav Havel, would not be allowed to survive in Burma.

Clements: Why?

Suu Kyi: He would either have to repress his instincts as an intellectual, or he would have to leave Burma, or he would have to go and sit in prison. He’s got to choose between those three.

Clements: So by function, a totalitarian regime attempts to create a mindless, featureless society by crushing the intellectual?

Suu Kyi: The intellectual with his questioning mind threatens the totalitarian mind which expects orders to be carried out and decrees to be accepted without question. There will always be clashes between the authoritarian mind and the questioning mind. They just cannot go together.

I think it is easy in a free society to forget how important an intellectual is to the welfare of a country. The right to question and doubt is taken for granted. Freedom of thought and expression are a given. Skepticism of the system is encouraged. Intellectuals are often discouraged because they too are taken for granted. “I’m just an intellectual,” we sometimes think.

As you go about your work today give thanks that you are an intellectual in a free society. As you watch the Commander-in-Chief tonight propose his agenda for his Second Term, marvel not with what he says, but that he is accountable for every word and deed to the intellectuals–the Doubters-in-Chief.

The same cannot be said of much of the world. Over one-half of the world’s population live in closed societies. Burma, of course, is rising. It no longer is among the worst of the worst. That dishonor goes to the forlorn citizens of these fifteen Asian and African authoritarian regimes: Belarus, Chad, China, Cuba, Eritrea, Equatorial Guinea, Laos, North Korea, Saudi Arabia, Somalia, South Ossetia, Sudan, Syria, Turkmenistan, and Uzbekistan.

In a free society intellectuals are encouraged to speak their minds with reason and integrity. Our colleagues living under authoritarian regimes must speak with equal measures of insight and courage.

Eyal Benvenisti and Amichai Cohen on ‘War as Governance’

by Kenneth Anderson

Perhaps some OJ readers caught this abstract from the SSRN public international law postings this week, but if you didn’t, I want to commend it to you:  Eyal Benvenisti and Amichai Cohen, “War as Governance: Explaining the Logic of the Laws of War from a Principal-Agent Perspective.” I have read it once, and plan to re-read it; I’ve long followed both authors’ work with considerable respect (and have been pleased to have Amichai as a friend ever since he visited at my law school years ago).  I don’t know yet whether I agree fundamentally or not; I want to consider this carefully.  But I thought it was one of the most interesting methodological approaches to the laws of war that I’ve read in quite a long time and believe it should get substantial attention (though I admit I teach law and economics, as well as the law of agent and principal in corporations classes, so I might have some prior methodological biases here).  SSRN abstract:

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other’s capabilities commit to and obey rules designed to limit their choice of targets, weapons and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality, and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side’s answers withstand close scrutiny. In this Article we develop an alternative explanation which is based on the principal-agent model of domestic governance. We pry open the black box of “the state,” and examine the complex interaction between the civilian and military apparatuses seething beneath the veil of sovereignty. Our point of departure is that military conflicts raise significant intra-state conflicts of interest that result from the delegation of authority to engage in combat: between civil society and elected officials, between elected officials and military commanders, and within the military chain of command. We submit that the most effective way to reduce domestic agency costs prevalent in war is by relying on external resources to monitor and discipline the agents. Even though it may be costly, and reciprocity is not assured, principals who worry that agency slack may harm them or their nations’ interests are likely to prefer that warfare be regulated by international norms. The Article expounds the theory and uses it to explain the evolution of the law and its specific doctrines, and outlines the normative implications of this new understanding of the purpose of the law. Ultimately, our analysis suggests that, as a practical matter, international law enhances the ability of states to amass huge armies, because it lowers the costs of controlling them. Therefore, although at times compliance with the law may prove costly in the short run, in the long run it strengthens the state against its enemies.

One reason I don’t want to offer a view yet is that I am still completing the fine new book applying standard rational choice theory to international law, Eric Posner and Alan Sykes, Economic Foundations of International Law (Harvard UP 2012); its account has bearing on Benvenisti and Cohen’s quite interesting take.  Posner and Sykes is a very straightforward, descriptive account of how rational choice applied to public international law would look, by comparison to other methodological approaches.  Benvenisti and Cohen are not engaged in rational choice theory as such, however; at first pass, it seems to me that the work done in their account is much more dependent upon the political and social theory attached to looking inside the state to see its intra-state arguments over war and its conduct.  But now I’m tempting myself to say more than I’m prepared to say at this point.  Here, by the way, is Jack Goldsmith’s Lawfare comment on Posner and Sykes:

Eric Posner and Alan Sykes have a new book entitled Economic Foundations of International LawThe book does what its title suggests: gives a comprehensive rational choice account of public international law.  It distinguishes itself from other books in this genre in (among other things) its scope.  For it covers all of the major elements of public international law, from general issues (such as treaties, custom, sovereignty, and state responsibility) to various fields (jus in bello and jus ad bellum, human rights, environmental law, law of the sea, international trade and investment, and more). Economic Foundations does not engage theoretical debate about the virtues and vices of rational choice accounts of international law as opposed to other accounts.  It simply sets out basic rational choice principles and applies them to the various fields and topics.  The book is clear, insightful, and accessible, and I highly recommend it.

The Legal Systems of the World

by Roger Alford

Legal Systems of the World

In case you ever wanted a snapshot of the legal systems of the world, this handy chart is worth a look. If you follow the link you can get a brief explanation of the legal system of each country, including the historical roots. The orange is common law, the blue civil law, the green mixed, and the red Muslim law.

The biggest surprise from this chart is how many countries are identified as mixed systems. I would have thought that most former British colonies would be identified as common law countries, that most former French, Spanish or Dutch colonies would be identified as civil law, and that most Middle Eastern countries would be identified as Muslim. Not so. The overwhelming majority of nations in Africa, the Middle East, and Asia are mixed systems.

UPDATE: In light of the comments, I have posted a new set of charts that more accurately depicts the legal systems of the world.

David Caron Appointed New Dean at King’s College London Law School

by Roger Alford

Dean CaronMy friend and colleague David Caron, C. William Maxeiner Distinguished Professor of Law at the University of California, Berkeley, has been named the new Dean at the Dickson Poon School of Law at King’s College London. The press release is here.

I have known David Caron for over twenty years and always thought he would make an excellent Dean or Judge. He has tremendous administrative experience, having served at the highest levels at ASIL, the ABA’s Section on International Law, the Law of Sea Institute, and the Institute for Transnational Arbitration.

He also brings a wealth of international law knowledge to the subject, including public and private dispute resolution, international courts and tribunals, the United Nations, the law of the sea, and international environmental law. On top of his academic chops, he remains seriously engaged with the legal profession. He served at Pillsbury Madison & Sutro before joining the academy, regularly consults with law firms around the world, and serves as an arbitrator in various commercial and investment matters.

David not only has a great head he also has a great heart. His enthusiasm is infectious, his laughter contagious, and his genuine warmth toward students and colleagues a model for us all. When I was starting my career twenty years ago in The Hague, he’s the kind of person that I looked to and thought to myself, “I want to be like that some day.”

He will be a great Dean, and will substantially contribute to the global reputation of King’s College.

The Growth of International Law Scholarship

by Roger Alford

There are a variety of ways one can measure the growing importance of international law scholarship. One metric that I have never seen discussed is simple: how often has the term “international law” been used in academic scholarship? Using Westlaw’s JLR library I calculated how often “international law” was referenced from 1987 to 2011. The results are impressive. Twenty-five years ago there were only 706 articles that included that term, compared with 4,300 today. That’s an annual growth rate of 7.5 percent. At that pace, in ten years there will be over 8,800 references to international law, and over 26,000 references in a quarter century.

Growth of International Law

It’s also noteworthy that today’s academic scholarship references “international law” more often than other core terms. Based on a Westlaw JLR search for 2011, “international law” (4,300 references) appears more often than “criminal law” (3,918 references), “intellectual property” (3,233 references), “constitutional law” (3,198 references), “torts” (2,709 references), and “professional responsibility” (1,092 references).

I knew that international law scholarship was popular, but I would not have guessed it has shown such sustained growth across the decades.

UPDATE: Further to Stuart Ford’s comments on January 9, I thought I would post the graph he is discussing. Very interesting as a point of comparison.

Google NGram2

The Oxford Guide to Treaties Symposium: Evidence of “Secondary” Fragmentation

by Duncan Hollis

First of all, I need to say thank you to all the contributors to the current symposium on my book, The Oxford Guide to Treaties.  It’s quite common in academic circles to have symposia on “affairs of the day” (and, to be clear, those affairs often trigger very important issues like targeted killing, cyberwar, climate change, the EU fiscal crisis, etc.).  But, I think it’s equally important to step back from time to time and have conversations about the international legal system itself, of which treaty law and practice now forms a large part.  Thus, I’ve greatly appreciated the discussions over the last several days on whether reservations can be severed, the rule(s) of treaty interpretation, the increasing “publicness” of treaty functions, and the role of non-State actors in modern treaty-making.

In reading these posts, moreover, I was struck by how some of them suggest (albeit implicitly) a new way to think about the fragmentation of international law.  To date, we have tended to think about fragmentation in one of two ways.  First, we have the question of “normative” fragmentation, where two rules produced by different legal regimes conflict or compete with each other, meaning that a State has to choose to which rule to give priority.  We normally talk about this as the “trade and . . .” problem where WTO rules have been said to conflict with rules of international environmental law, international labour law, etc.  But, normative fragmentation is not limited to the trade context as witnessed by the question of what to do when UN Security Council resolutions on international peace and security conflict with EU Law in the Kadi case.  Second, fragmentation may also arise where the conflict is not between the rules but who applies them; that is, competition or conflict over which tribunal or court should be authorized to have the final say on which rules apply or what a particular rule means in a given situation.  The MoX case is a paradigmatic example of this inter-tribunal competition, with three different proceedings under three different normative regimes: an arbitral tribunal pursuant to the 1982 U.N. Convention on the Law of the Sea, dispute settlement under the Convention on the Protection of the Marine Environment of the North-East Atlantic, and proceedings before the European Court of Justice pursuant to the European Community and EURATOM treaties.

As I think about the law of treaties, however, I see the potential for a third type of fragmentation within international law, or what I’ll call “secondary” fragmentation.  My basic idea is that fragmentation is not limited to competition and conflict among primary rules, but can also occur with secondary rules.  Here, I’m employing H.L.A. Hart’s famous division of rules into primary and secondary categories.  Primary rules are rules of conduct — telling States and other subjects of international law what they are obligated to do (or not do).  Secondary rules, in contrast, are “rules on rules”, or rules that tell us how to form, interpret, amend, or extinguish primary rules.  When we talk about normative fragmentation, however, almost all the existing discussion has emphasized conflicts and competition among primary rules, e.g., should a WTO rule trump or defer to an international environmental rule?

In looking at the various posts on interpretation and Geir Ulfstein’s post on treaty functions, however, it seems there’s some evidence of a different kind of fragmentation emerging among the secondary rules of international law.  For example, Geir suggests at the end of his post that “Treaty law must be complemented by international institutional law”.  But treaty law and international institutional law are not required by any rule of international law to get along — it’s equally possible that the result produced by the law of treaties (say an interpretation of a treaty constituting an International Organization under VCLT Article 31) and international institutional law (say an interpretation of the same treaty employing the implied powers doctrine) could generate competing or conflicting results with respect to the same primary rule.  Catherine’s post makes this point more descriptively, noting how international institutional law has come to supplant the general law of treaties in the IO treaty context.  As with fragmentation among tribunals or primary rules, however, international law doesn’t tell us if this is the correct result.  Examples of secondary rules that are conciliatory to other secondary rules are relatively rare — although the VCLT does include a few examples with respect to IO treaties in Articles 5 and 20(3).  But, on the whole, the international legal order says little, if anything about whether one set of secondary rules should be accorded priority over another.

Moreover, I don’t think this competition over interpretative rules is an isolated case.  Although The Oxford Guide to Treaties does not explicitly flag this idea of secondary fragmentation specifically, there is evidence of it in several other chapters.  For example, although the VCLT’s rules on material breach purport to function differently than the law of state responsibility, Bruno Simma and Christian Tams’ chapter on remedies for treaty breach makes clear that these two sets of “secondary” rules are in competition with one another (and, moreover, that the law of state responsibility on countermeasures may be winning in the sense that it is those rules not the VCLT provisions on which States currently rely).  Malgosia Fitzmaurice’s chapter makes a similar point about tensions over exceptional circumstances where the law of treaties has doctrines — impossibility, and rebus sic stantibus – that may be threatened by the law of state responsibility’s doctrine of necessity.

New Study Analyzes the Best Law Schools and Top Faculty for Comparative and International Law

by Roger Alford

James Phillips and John Yoo have just published a thoughtful analysis critiquing Brian Leiter’s approach to ranking faculty relevance. They suggest that what we should be looking at is all-stars, not superstars. If you measure a school based on their all-star line-up rather than their superstars, the results are dramatically different. Here’s how they put it:

Faculty can be thought of in two ways—all-stars and super-stars. All-stars are one of the best in their area, and a well-rounded faculty, like a well-rounded baseball team, has as many all-stars in as many positions as possible. Just like baseball all-stars, professors need to be evaluated against their peers in their area (or position), and not against professors in other areas (to compare the homerun totals of a second baseman with a first baseman would not be fair as the latter are expected to hit more homeruns while the former are expected to have a higher batting average and steal more bases). Super-stars are the elite, beyond just all-star status, a Roy Halladay for the Philadelphia Phillies or Tom Brady for the New England Patriots. Like a baseball team, they may be bunched in just one or two positions—often the hottest or most attractive, such as constitutional law or law and economics. There is probably a higher degree of correlation between winning and the number of all-stars than the number of super-stars, though both are nice to have…. This study argues that the all-star rankings is a more solid method of ranking faculties than the super-star method, average citations counts (either Leiter or this paper’s version), or the U.S. News’s academic ranking based on peer perception because it measures faculties more broadly, has less bias regarding attributes such as faculty age or size (Leiter method), takes into account peer-reviewed scholarship, and is objective rather than subjective (U.S News).

Analyzing the top sixteen law schools, Phillips and Yoo have devised a new and interesting approach that differs from the Leiter methodology in two important respects. First, they use a simple citations per professor per year average calculated by adding up all of the citations for the faculty and dividing by the number of years of experience for the faculty. This approach, they argue, “diminishes bias in favor of longevity and prolificacy, bias against immediacy, the disregarding of citation rate half-lifes, and ignoring interdisciplinary impacts.”

Second, they include citation counts from non-law journals using the Web of Science, which includes the Science Citation Index Expanded, the Social Sciences Citation Index, and the Arts & Humanities Citation Index. They argue that “as the legal academy has been evolving for some time regarding the educational pedigree of professors (more JD/PhDs) and the focus of its scholarship (more interdisciplinary work), and citation studies need to be modernized to reflect this trend.”

So what are the results based on their new methodology? Based on the Phillips and Yoo survey, here are the results for the best law schools for international law and comparative law:

Here are the international law and comparative law all-star faculty members from the top sixteen law schools:


UPDATE: Brian Leiter responds to Phillips and Yoo here. Here’s the crux of his response:

The two most interesting things they do are consult citations in the “Web of Science” database (to pick up citations for interdisciplinary scholars–this database includes social science and humanities journals) and calculate a citations-per-year score for individual faculty. A couple of caveats: (1) they look at only the top 16 schools according to the U.S. News reputation data, so not all law schools, and not even a few dozen law schools; and (2) they make some contentious–bordering in some cases on absurd–choices about what “area” to count a faculty member for. (This is a dilemma, of course, for those who work in multiple areas, but my solution in the past was to try to gauge whether three-quarters of the citations to the faculty member’s work were in the primary area in question, and then to also include a list of highly cited scholars who did not work exclusively in that area.) Many of those decisions affect the ranking of schools by “area.” The limitation to the top 16 schools by reputation in U.S. News also would affect almost all these lists. See also the comments here.

I liked their discussion of “all stars” versus “super stars,” but it was a clear error to treat the top fifty faculty by citations per year as “super stars”–some are, most aren’t. Citations measures are skewed, first off, to certain areas, like constitutional law. More importantly, “super stars” should be easily appointable at any top law school, and maybe a third of the folks on the top fifty list are. Some aren’t appointable at any peer school. And the citations per year measure has the bizarre consequences that, e.g., a Business School professor at Duke comes in at #7 (Wesley Cohen, whom I suspect most law professors have never heard of), and very junior faculty who have co-authored with actual “super stars” show up in the top 50.

(…)

A couple of readers asked whether I thought, per the title of the Phillips & Yoo piece, that their citation study method was “better.” I guess I think it’s neither better nor worse, just different, but having different metrics is good, as long as they’re basically sensible, and this one certainly is. On the plus side, it’s interesting to see how adding the Web of Science database affects things, and also how citations per year affects results. On the negative side, a lot of “impact” that will be picked up in the Web of Science database may be of dubious relevance to the impact on law and legal scholarship. And the citations-per-year measure has the odd result of elevating very junior faculty with just a year or two in teaching into elevated positions just because they may have co-authored a piece with a senior scholar which then got a few dozen citations. No metric is perfect (what would that even mean?), but this one certainly adds interesting information to the mix.

The Oxford Guide to Treaties

by Duncan Hollis

I had a good day yesterday. I received a package in the mail from Oxford containing copies of my book – The Oxford Guide to Treaties. It represents the culmination of a three year effort on my part to compile a comprehensive and current guide to treaty law and practice.  To do this, I started with a fairly simple pThe OGTremise — in this age of specialization, why not ask the world’s leading experts on various issues of treaty law and practice to write about their particular areas of expertise and edit those contributions together in a way that covers the entire field.  With these academic explanations as a starting point, I then sought to build a set of sample treaty clauses — examples of how existing treaty texts have addressed the manifold issues associated with constructing what has now become the dominant form of international cooperation.  I’ll admit the effort proved quite a bit more daunting and rigorous that I had imagined at the outset.  But, looking at it last night, I’m feeling truly thrilled with the results.

The truth is, moreover, I couldn’t have done this book without a lot of help — the OUP staff was phenomenal (not to mention patient) with my sundry questions and suggestions.  And, of course, this project wouldn’t exist without all my fellow contributors.  They were universally thoughtful and committed to the idea of laying out the state of play in their respective areas, including existing doctrines, disagreements, and areas where progressive development may be warranted.  I could fill a whole blog post (and may yet still) acknowledging what each of the twenty-seven contributors brought to the table and how grateful I am to each of them.  For now though let me single out David Bederman who authored his chapter in what he knew to be the final months of his life.  That sort of effort leaves me speechless.

I hope to blog more about the book in the coming months. But, for those readers interested in purchasing it –  you can do so today in Europe. U.S. readers can order it now as well, although I understand U.S. copies won’t be published till mid-October. In the meantime, for those interested in knowing more about the book, the final table of contents follows after the jump.

[UPDATE:  OUP tells me that the book will be out next week in the US for American readers interested in getting a copy, not mid-October as I originally suggested].

Essential International Law Cases for the Classroom (Six Years Later)

by Duncan Hollis

As summer winds down, I’m beginning to look ahead to the coming semester in which I’ll be teaching public international law after a couple of years’ hiatus.  As a result, I’ve spent the week, re-working my syllabus (and thanking Ecuador for giving me a wonderfully topical way to start off the class).  Beyond current events, however, I’ve once again spent some time procrastinating thinking about those international law cases I “must” have my students read — essential elements of the international law canon if you will.  I’ve done this before — six years ago, in fact, I posted a top-5 list of public international law cases and encouraged readers to contribute their own “must-reads” for students entering the field of international law.  Here’s the list I came up with then:

(1) The S.S. Lotus (France v. Turkey), 1927 PCIJ (Ser. A) No.10
(2) Mortensen v. Peters, 8 Sess. Cas. (5th Ser.) 93 (1906)
(3) Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States) 1984 ICJ 169, 1986 ICJ 14
(4) Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)
(5) United States-Import Prohibition of Certain Shrimp and Shrimp Products (“Shrimp Turtle”) DS58/AB/R (1998)

I still like this list a lot.  But, on reflection I’d probably remove Shrimp Turtle in favor of an older chestnut like the Reparations Case given that earlier cases’ import for the field of international institutional law (I also wonder about Filartiga as the best read on human rights, and although I’m inclined to keep teaching it in a U.S. classroom, I can see the argument for a case like Soering instead).

Of course, I hold no monopoly on making these sorts of lists.  So, I thought I’d get those of you prepping your own courses (not to mention students preparing to continuing their international law studies) to chime in with further suggestions. What cases would you say every international lawyer must read?

Opinio Juris the Seventh Most Cited Faculty Law Blog

by Kevin Jon Heller

According to research conducted by Jay Brown of theRacetotheBottom.org, blogs have been cited in “law reviews, journals, and other legal publications” more than 6300 times — a nearly fourteen-fold increase since 2006.  Here are the 10 most-cited faculty law blogs:

1. Volokh Conspiracy — 742 cites
2. Balkinization — 426 cites
3. Patently O — 393 cites
4. Concurring Opinions — 279 cites
5. Sentencing Law and Policy — 272 cites
6. Prawfs Blawg — 219 cites
7. Opinio Juris — 200 cites
8. Lessig Blog — 178 cites
9. Harvard Forum on Corp. Gov. — 178 cites
10. Conglomerate — 171 cites

Brown also notes that the list has remained remarkably stable over time, with seven of the 10 being among the 10 most-cited law blogs in 2007.  We are actually one of the three newcomers, which is great news.

Thanks to all the scholars out there who have cited us!