I imagine many readers have by now seen this story in the New York Times (and Julian beats me to it!) reporting that the Obama administration appears ready to return to military commissions for trying at least some Guantamo detainees: Officials who work on the Guantánamo issue say administration lawyers have become concerned that they would face significant obstacles to trying...
The conventional wisdom is probably correct here, that David Souter's retirement won't make much of a difference to the Court's overall balance. But no two Justices are alike. There will be inevitable differences in style and approach, and on the less prominent questions, the ones mostly off the radar screen, that can lead to different votes. I don't know much...
For a while there, it looked as if there might be a real fight over Harold Koh's nomination as State Department Legal Adviser. The Republicans have been casting about for a nomination that they could defeat on some issue of principle (that is, over something not involving a nominee's tax returns), along the lines of Lani Guinier's failed nomination...
Is that even possible these days? It seems not, but the Federalist Society is sure doing a nice job in lining up Andrew McCarthy, Scott Horton, Douglas Kmiec, David Luban, Bart DePalma and Steve Vladeck to debate the recent release of the CIA interrogation memos and their content. No one has yet denounced the other in ad hominem attacks and there...
Chris Borgen and I have an op-ed in today's Philadelphia Inquirer -- you can access it here -- defending Yale Law School Dean Harold Koh's nomination to serve as the Legal Adviser to Secretary of State Hillary Clinton. Our inspiration for writing it was Rick Santorum's recent column, which suggested Harold Koh was un-American, and launched a general attack on international law having any...
Interesting item from The Economist here. It is becoming increasingly clear that any important international process or institution is going to be held to transparency norms. And where there is power, there must also be accountability. In the dispute resolution context, that takes the form of NGO participation. Why shouldn't NGOs be able to participate in proceedings with public policy...
On Tuesday, the Supreme Court decided Iran v. Elahi, a case that appears to fall within a data set of one. As I reported earlier, the case is extraordinarily complex, focusing on whether a terrorist victim judgment creditor can attach a confirmed arbitration award rendered in Iran’s favor. Although it involves exotic issues relating to international terrorism, military...
Professor Ron Slye has a helpful defense of the Koh nomination up at Foreign Policy. His post includes this very useful description of "transnational legal process" noting, importantly, that TLP is a descriptive theory of how law crosses borders. Somehow this fact has eluded much of the MSM discussion: All transnationalism does, in a nutshell, is work to describe and understand...
Just in case you hadn't had enough of the Koh discussions, here are Stuart Taylor and Evan Thomas in Newsweek. I am in broad agreement with this assessment, for whatever that is worth. I also broadly agree with Jonathan Adler's assessment over at Volokh (below). There, I've said all I want to say in the Koh wars. Well, not quite. Of...
I am fundamentally in agreement with the Bradley-Goldsmith view that Julian and Kevin discuss in the two previous posts. However, I want to post up a related question. It is not so much about the ATS itself or its implications for US law or its politics. It is, rather, about the substance of the legal positions produced in ATS cases...
Curtis Bradley and Jack Goldsmith have a new op-ed taking aim at the latest decision in the ongoing Alien Tort Statute case involving U.S. corporations who did business during South Africa apartheid era. In fact, they take issue with the whole wave of ATS litigation attempting to hold corporations liable under aiding and abetting liability, using the South Africa case...
I am grateful to Mr. Li and Professor Wang for their thoughtful comments and am flattered by their praise. The very fact that a lawyer and a law professor speak of their criminal justice system with such insight and candor highlights one of the most laudatory aspects of Taiwan’s legal reform project: A transparent, open debate over the best path...
