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

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...

11 Mar The Relationship Between the VCCR and Miranda

...consulate simply because I had the presence of mind to hire a lawyer and refuse to make a statement to the police. And if incarcerated, I would want them to make their statutorily required prison visits to me as well! John Corbett Peggy, In this case, it appears that the defendant chose not to hire an attorney. Given that fact, the question then seems to become whether the defendant's failure to demand an attorney can be seen as the functional equivalent of a waiver of his/her right to contact and...

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....

30 Aug NYT’s Kristof: Obama’s Sudan Policy is a Failure

...The question though is, what exactly is the flaw in the Obama policy? Is it not being tough enough on Sudan? Or is it being too tough? Kristof can’t seem to decide. His complaint seems to be that Obama is unengaged. (This seems to be a common complaint about Obama, and I think it is unfair. I am not an Obama supporter, but he does have a lot on this plate right now). In any event, I think we can all agree that the goal here is to prevent the...

23 Jan A Response from the Human Rights Community

receive. That can’t plausibly be an outcome we seek. Perhaps most troubling in this line of argument, Mr. Bellinger asserts that the bargain the Geneva Conventions strike may be summarized as follows: “Ignore the laws of war, and you cannot seek the status given to lawful combatants.” Because the Taliban violated the law of war, they are not entitled to the protection of the law of war. This is something like a circular argument. The Taliban no doubt committed war crimes; accordingly they should be prosecuted for these violations under...

19 Mar Treaties’ End

country—Tajikistan—provides for less involvement by a part of the legislature in treaty-making than in domestic lawmaking and makes the results of that process automatically a part of domestic law. To explain how the United States came to have such a haphazard and unusual system for making international law, I trace the history of the two tracks of international lawmaking back to the Founding. The current system rests on rules and patterns of practice developed in response to specific contingent events—events that for the most part have little or no continuing...

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...