A Response to Robert Ahdieh by Eric A. Posner

by Harvard International Law Journal

[Eric A. Posner, co-author of Universal Exceptionalism in International Law with Anu Bradford, responds to Robert Ahdieh]

I am grateful for Professor Ahdieh’s illuminating comments on my paper with Anu Bradford. Ahdieh offers three interpretations of the charge of U.S. exceptionalism:

Degreeism: The United States does not always win, but it wins more often than Europe and China do. Exceptionalism is a matter of degree, but it still exists. I don’t think that the traditional notion of American exceptionalism permits this interpretation, but it is possible that people misuse the word “exceptionalism” in the way that Ahdieh describes. Still, our purpose was to cast doubt on the appropriateness of exceptionalism (and, a fortiori, degreeism) as a moral category. Rather than criticizing states for being exceptionalist, we should focus on the relative normative appeal of the competing exceptionalist visions. An exceptionalist country that always gets its way, or a country that merely gets its way more often than other countries, may be a good country. Such country may also be “better” than the others, which is why we don’t sympathize with North Korea and Myanmar, which rarely get their way, and we retrospectively cheer on the British when they abolished the international slave trade. Everything depends on whether getting its way helps or hurts others—not whether a country is exceptionalist or not or the degree to which it can enforce its exceptionalist view.

Presentationism: (more…)

A Response to Anu Bradford and Eric A. Posner by Robert Ahdieh

by Harvard International Law Journal

[Robert Ahdieh, the Associate Dean of the Faculty, Professor of Law, and Director of the Center on Federalism and Intersystemic Governance at Emory University School of Law, responds to Anu Bradford & Eric A. Posner, Universal Exceptionalism in International Law]

In Universal Exceptionalism in International Law, Professors Anu Bradford and Eric Posner help to advance our understanding of international order in at least two respects.

To begin, there is the distinction they draw (if sometimes imperfectly) between the familiar trope of “exceptionalism” – a term most commonly found with “American” in front of it – and the distinct concept of “exemptionalism.” As I will suggest below, I have some doubt about the definitional premise on which the Article is based. The notion that we should distinguish between a desire to have one’s values reflected in international law and a desire to operate beyond its strictures, however, has the potential to offer valuable leverage in the discourse of international law and relations.

I was also struck by their systematic analysis of each of the states/regions of relevant interest – Europe, China, and the United States. It is beyond my expertise to assess the substantive accuracy of their review of distinct patterns of exceptionalism in each locale. Their embrace of what I would cast as a “microanalytic” approach to the question presented, however, holds great promise – perhaps especially when played out within a broader framework, such as the exceptionalism versus exemptionalism approach they advance.

Notwithstanding these contributions, I have significant doubts about the conclusion that Bradford and Posner would have us take away from their Article. (more…)

Universal Exceptionalism in International Law by Anu Bradford and Eric A. Posner

by Harvard International Law Journal

[The following summary is the abstract from Universal Exceptionalism in International Law by Anu Bradford (an Assistant Professor of Law at the University of Chicago Law School) & Eric A. Posner (the Kirkland & Ellis Professor of Law at the University of Chicago Law School).]

A trope of international law scholarship is that the United States is an “exceptionalist” nation, one that takes a distinctive (frequently hostile, unilateralist, or hypocritical) stance toward international law. However, all major powers are similarly “exceptionalist,” in the sense that they take distinctive approaches to international law that reflect their values and interests. We illustrate these arguments with discussions of China, the European Union, and the United States. Charges of international-law exceptionalism betray an undefended assumption that one particular view of international law (for scholars, usually the European view) is universally valid.

A Response to John Armour, Jack B. Jacobs and Curtis J. Milhaupt by Zenichi Shishido

by Harvard International Law Journal

[Zenichi Shishido, a Professor at the Graduate School of International Corporate Strategy, Hitotsubashi University, responds to John Armour, Jack B. Jacobs and Curtis J. Milhaupt, The Evolution of Hostile Takeover Regimes in Developed and Emerging Markets: An Analytical Framework]

It is a great pleasure to be able to comment on Armour, Jacobs, & Milhaupt’s excellent analytical, comparative study on a major issue of corporate governance. The article is focused on hostile takeover regimes and, at the same time, covers wide areas of the world, including three developed and three emerging capital markets. It is also important to note that they provide an analytical framework for analyzing different modes of business law reform in general, from the perspective of demand- and supply-side factors, which could be applied to a wide range of legal reforms.

The article starts by raising a good question of why the regulatory responses to hostile takeovers are very different among the three countries who share the similar capital markets (the United Kingdom, the United States and Japan). (more…)

The Evolution of Hostile Takeover Regimes in Developed and Emerging Markets: An Analytical Framework by John Armour, Jack B. Jacobs and Curtis J. Milhaupt

by Harvard International Law Journal

[The following summary is the abstract from The Evolution of Hostile Takeover Regimes in Developed and Emerging Markets: An Analytical Framework by John Armour (the Hogan Lovells Professor of Law and Finance at the University of Oxford and a Fellow of the ECGI), Jack B. Jacobs (a Justice of the Supreme Court of Delaware) & Curtis J. Milhaupt (the Parker Professor of Comparative Corporate Law and Fuyo Professor of Japanese Law at Columbia Law School.).]

In each of the three largest economies with dispersed ownership of public companies—the United States, the United Kingdom, and Japan—hostile takeovers emerged under a common set of circumstances. Yet the national regulatory responses to these new market developments diverged substantially. In the United States, the Delaware judiciary became the principal source and enforcer of rules on hostile takeovers. These rules give substantial discretion to target company boards in responding to unsolicited bids. In the United Kingdom, by contrast, a private body consisting of market professionals was formed to adopt and enforce the rules on hostile bids and defenses. In contrast to those of the United States, the U.K. rules give the shareholders primary decisionmaking authority in responding to hostile takeover attempts. The hostile takeover regime in Japan, which developed recently and is still evolving, combines substantive rules with elements drawn from both the United States (Delaware) and the United Kingdom, while adding distinctive elements, including an independent enforcement role for Japan’s stock exchange.

This Article provides an analytical framework for business law development to explain the diversity in hostile takeover regimes in these three countries. (more…)

A Response to Kevin Jon Heller by Gabriella Blum

by Harvard International Law Journal

[Gabriella Blum, author of On a Differential Law of War, responds to Kevin Jon Heller]

First of all, let me express my thanks to Professor Heller for his exceptionally careful and thoughtful reading, as well as for his insightful commentary. It is also a very generous reading, for which I am grateful. I am especially pleased at the opportunity to respond to his comments, as I think they raise a crucial issue.

The main theme of Prof. Heller’s commentary is the difficulty, perhaps impossibility, of maintaining the separation between the jus in bello and the jus ad bellum. The notion that the rules of war should apply equally to all sides – regardless of whether any party’s entry into the war was right or wrong at the outset – has been a feature of Just War doctrine since Grotius (who himself built on the Scholastics), but remains intensely debated even today. Prof. Heller illustrates persuasively how, as we consider raising the humanitarian obligations of stronger parties in wartime (thereby importing greater moral content, in terms of our theory of global justice, into IHL itself), ignoring the comparative justness of the parties’ causes becomes even less normatively attractive.

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A Response to Gabriella Blum by Kevin Jon Heller

by Harvard International Law Journal

[Kevin Jon Heller, a Senior Lecturer at the University of Melbourne Law School, responds to Gabriella Blum, On a Differential Law of War]*

Blum’s normative analysis of the desirability of common-but-differential responsibilities in IHL is exceptionally powerful, and I agree with most of her conclusions. I have written a formal response to her essay that will be published online by HILJ; here I want to briefly mention the aspect of her essay that I find most intriguing: namely, its implications for the distinction – fundamental to IHL – between the jus ad bellum and the jus in bello. Blum claims that, “in remaining loyal to the skepticism of IHL with regard to dependence on jus ad bellum,” she “ignore[s] the question of whether the parties are conducting a just or unjust war.” Her essay however, indicates that her loyalties are divided at best. She openly acknowledges, for example, that there “may not be valid reasons to maintain that distinction” when considering the corrective-justice rationale for CDRs, because identifying the “causes of suffering” sufficient to trigger the rationale “may be inextricable from the causes of the war and its justification.” Similarly, although the frequency with which states go to war is a jus ad bellum consideration, Blum accepts that incorporating CDRs into IHL will have a powerful effect on the utilitarian calculus that states use to determine whether they will use armed force, because “[i]f CDRs raise the bar for stronger parties, these states may calculate the costs of war differently and exercise further caution against the use of military force to begin with,” while “the greater constraints on stronger parties might encourage weaker parties, believing they stood a greater chance of success, to initiate conflicts, thereby increasing the overall incidence of violence.”

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On a Differential Law of War by Gabriella Blum

by Harvard International Law Journal

[Gabriella Blum, an Associate Professor of Law at Harvard Law School, describes her recently published article On a Differential Law of War]

Should the United States, as the strongest military power in the world, be bound by stricter humanitarian constraints than its weaker adversaries? Would holding the U.S. to higher standards than the Taliban, Iraqi insurgents, or the North Korean army yield overall greater humanitarian welfare or be otherwise justified on the basis of international justice theories? Or would it simply be another attempt at tying American hands, a form of “lawfare”?

The paper offers an analytical framework through which to examine these questions. It begins from the observation that the current system of international humanitarian law (IHL) builds on the principle of the equal application of the law—the uniform and generic treatment of all belligerents on the battlefield according to the same rules and principles, and regardless of any disparity in power.. Yet regulation has taken a different path in some other areas of international law—most notably, international environmental law (IEL) and international trade law (ITL)—by linking obligations with respective capabilities. This linkage has been accomplished in several ways: by defining obligations with reference to resources, exempting weaker parties from compliance with certain obligations altogether, and even ordering more powerful parties to extend material assistance to weaker ones. As a group, these types of unequal obligations have been called “Common-but-Differentiated Responsibilities” (CDRs).

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A Response to Erin F. Delaney and Samuel Issacharoff by David Schleicher

by Harvard International Law Journal

[David Schleicher, author of What If Europe Held an Election and No One Cared?, responds to Erin F. Delaney and Samuel Issacharoff]

I would like to again thank Erin Delaney and Samuel Issacharoff for their kind if skeptical response to my paper. Their praise is particularly appreciated as Professor Issacharoff’s brilliant work on election law has been, and remains, an inspiration for my own scholarship. And their criticisms are well taken, even if I disagree with some of them.

They make three basic points, which I’ll address in turn. First, they argue that the European Parliament (EP) is not the only repository of democratic responsiveness in the European Union (EU), and that my claim that pan-European electoral competition in EP elections is necessary for the EU to achieve the balance between elite, national and democratic power called for in its institutional set-up is overstated. Delaney and Issacharoff point to new powers given to national parliaments as evidence that key figures in the EU might not really want – or are least unsure about the value of – real political competition at the European level, and have turned to other tools for solving the democratic deficit. It is certainly true that there are lots of forms of democratic engagement inside the ever-more complicated EU policy-making apparatus. So there is something to this point. However, EU treaties have continuously increased the power of the EP, and the rise of the EP, along with the introduction of qualified majority voting in the Council, have been the two most important institutional changes in the EU over the last 20 or so years. (more…)

A Response to David Schleicher by Erin F. Delaney and Samuel Issacharoff

by Harvard International Law Journal

[Erin F. Delaney, a Research Fellow at Columbia Law School (she holds a Ph.D. from Cambridge University and a J.D. from the NYU School of Law), & Samuel Issacharoff, the Reiss Professor of Constitutional Law at New York University School of Law, respond to David Schleicher, What If Europe Held an Election and No One Cared?]

Eurodemocracy

Multilevel democracy is difficult. Voters have limited time and even less information. Political parties provide the indispensable integrative mechanism for the polity and bring order to the chaotic political marketplace. But parties form around core political concerns, and national parties translate poorly across different levels of government. In this article, David Schleicher turns to the European Union and perceptively analyzes the failure to generate meaningful Europe-wide political parties and campaigns as symptomatic of many forms of multilevel democracy, and thus perhaps less distinctly European. He takes the analytic framework he honed with regard to the absence of robust partisan competition at the local level and directs it now to political institutions that pale beside vigorous national-level politics – specifically, the European Parliament, an institution which inspires mostly apathy and neglect in European voters. The result is a proposal to jigger the institutional prerequisites for EP representation in order to incentivize cross-European political organization and politics.

What emerges is creative and provocative. (more…)

What If Europe Held an Election and No One Cared? by David Schleicher

by Harvard International Law Journal

[David Schleicher, an Associate Professor of Law at George Mason University School of Law, describes his recently published article What If Europe Held an Election and No One Cared?]

So, to start, I would like to thank my editors at the Harvard International Law Journal and the good people here at Opinio Juris for providing this forum. And I would particularly like to thank Erin Delaney and Samuel Issacharoff for writing a response to my paper. I’m looking forward to hearing your responses as well.

My paper, What If Europe Held an Election and No One Cared?, examines the difficulties the European Union (EU) has had in introducing direct democratic representation into its law-making process. In so doing, it provides an explanation for why multi-level political systems frequently feature a common type of democratic failure. Elections at non-national levels of government (ranging from the pan-European elections I discuss in the paper to state and city legislative elections in the U.S.) regularly fail to provide much in the way of democratic accountability because voters treat them as a referendum on national political figures while paying little attention to the effect they will have on local, or supra-national, public policy. In the paper, I argue this is a result of “mismatch,” or an election law system that causes (or doesn’t discourage) a lack of fit between the governmental level at which political party systems are organized and where elections are held. Looking at the EU provides a window into this endemic problem for multi-level democracies.

So, some background: (more…)

A Response to Stavros Gadinis and Eric Pan by Pierre-Hugues Verdier

by Harvard International Law Journal

[Pierre-Hugues Verdier, author of Mutual Recognition in International Finance, responds to the comments by Stavros Gadinis and Eric Pan]

I would first like to thank Professors Pan and Gadinis for their generous and insightful comments on my article.  While it is impossible to offer a full response in this forum, I would like to offer some thoughts on three salient points.

First, as Professor Pan correctly points out, financial cooperation arrangements that share important features of mutual recognition have existed for decades.  However, I believe the arrangements described in the article constitute a significant development relative to those prior approaches.  Take, for instance, the CFTC’s acceptance of foreign trading screens and PCAOB’s reliance on foreign auditors.  (more…)