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23 Sep Sexism in Reporting on the ICC
...legal issues not previously handled in the court’s jurisprudence. These included among other things definitions of a “case”, “investigations”, “prosecutions” among others and which the judge accused the pretrial chamber of unilaterally fixing meanings without giving parties chance to contribute. At first I thought using a judge’s first name might simply be an unusual house style, so I did a quick google search and found this Nairobi Star article written by the same journalist (my emphasis): In their separate filings at the court supplemented by oral presentations by their lawyers...17 Sep Guest Post: A Presumption Against Authorization in the Iran Nuclear Agreement Review Act
...for example, might motivate Congress to affirmatively delegate foreign affairs decisions to the President to leave time to focus on domestic matters that are more salient to constituents. The aggregation of these dynamics means that assessing the legality of presidential action by reference to Congress tends toward the expansion of presidential power. One way to check this expansion is to begin the search for congressional approval with a presumption against authorization. Applying such a presumption to the Iran Nuclear Agreement Review Act would render Professor Ackerman and Golove’s interpretation, and...18 Jul Less is More?
Toby Landau, one of the leading arbitrators in the world, gave the keynote address at the recent ITA Workshop in Dallas and, as always, he was entertaining and provocative. One of the central themes of his discussion was how arbitration counsel fail to present a case in a manner sensitive to the needs of the arbitration panel. “Inequality of Arms” is the term he used for the asymmetrical relationship between counsel’s ability to produce information and arbitrator’s ability to digest it. Arbitration counsel has an army of lawyers capable of...
11 Oct The Use of AI at the ICC: Should we Have Concerns? Part II
...AI tool by the user; and the human who interprets that output. Each of these variables have a valence for bias which could impact an AI’s output. Further, research has clearly shown that gender biases are found in datasets in general and training data sets in particular. Thus, if the data contains certain biases, this will be replicated by the algorithm and can even be exacerbated by it. Importantly, every database has a point of view. What a researcher finds in the process of searching depends heavily on who builds...16 Nov Harvard Law Review Debates Roper and Foreign Authority
...as one jurisdiction against all the rest — the Roper majority made an implausible claim of “consensus” into a plausible one. Defenders of looking to foreign law typically describe that practice as a search for “persuasive authority” — an attempt, in Justice Breyer’s words, to “learn something” from a “judge in a different country dealing with a similar problem.” I argue here, however, that creating consensus by including foreign jurisdictions in the Eighth Amendment denominator goes considerably further and, in fact, gives the practices of those jurisdictions authoritative legal weight.”...
22 Jun Business and Human Rights Symposium: Evolution of the Duty of Care Doctrine in Cases of Business-Related Human Rights Abuses
legal effects. A parent can inadvertently bring itself in closer proximity with victims abroad, even if this in itself is not determinative of liability. Common law judges can and have used proximity as an expedient way to dismiss cases, but recent caselaw cautions companies to not see in geographical remoteness a blanket protection. The standard of reasonableness in negligence law is evolving. The reasonable person concept sets a standard of culpability. Some regard it as an ‘empty vessel’ that enables judges to determine what is socially acceptable. While this concept...10 Jun Commentary on “Who is the Sovereign in Sovereign Debt?” by Odette Lienau
...legitimately does not account for their financial burden on the population. If the policy goal is to stabilize and develop transitional states, then the law we recommend should not fixate on old grievances. Instead, the legal principle guiding renegotiation should focus on the effect of termination or continuity of obligations on the state moving forward. One of the joys of membership in the international college of jurists, along with Odette and others, is the intellectual exchanges that unite us in the search for better laws. Opinio Juris has enhanced this...