Search: Symposium on the Functional Approach to the Law of Occupation

11 Jul Goldsmith and Katyal Propose a “National Security Court”

as organized crime or war crimes, so why not terrorism? The second set of issues relates to the differences in procedural and substantive law between these specialized courts and regular civilian courts. There would again be little or no problems under human rights law to have bench trials instead of jury trials, to limit the hearsay rule or the exclusionary rule, as long as sufficient fair-trial guarantees exist. But when it comes to detention and to my knowledge of international and European case-law, a regime of preventative detention, even if...

28 Jun Rebranding Revisionism

...insofar as the approach sees the courts as agents of the domestic legal system, where “internationalists” see them as advancing the international order, as part of the global community of courts. I take the point, but the problem here is that everyone ultimately conceives themselves to be constitutionalist — in the sense of maintaining positions that are consistent with the Constitution —, even those who see federal courts as an entry point for the incorporation of international law. I don’t think the discursive high ground will be so easily captured....

24 Jan All You Ever Wanted to Know About the Treaty Power and Federalism, But Were Afraid to Ask*

...Congress could not make law to enforce a treaty that resolved a dispute between a state and a foreign country unless Congress could make the same law absent the international dispute. Between 1913 (the earlier case) and 1920 (Missouri v Holland), it became almost universally understood that migratory birds were not inexhaustible, and that overhunting by Missouri would be detrimental to the rights of other states. However, it turned out that only Canada was willing to contest Missouri's assertion of exclusive "property"ownership. When the property dispute is between a state...