In the late twentieth century, States around the world struck a Faustian bargain. They concluded thousands of treaties among themselves, empowering private arbitrators to hear disputes between States and foreign investors. States surrendered some measure of sovereignty in order to assure investors that their governments would not have the last word regarding the treatment of...
Section 1 of the Sherman Act prohibits "[e]very contract, combination... or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations. "This broad statutory language has enabled U.S. agencies and courts to apply the Sherman Act extraterritorially, including to cartels organized outside the United States. Recently, the major cross-border...
Stare decisis is much more than a rule for common-law judges. It is a specific intellectual framework that is also essential to the practice of common law lawyers. It both commands and lives off of certain practices, among which the lawyer's duty to disclose adverse precedents factors prominently. The marriage of stare decisis with the duty to disclose precedents provides insight...
In a decision that shocked the inter-American human rights world, the Argentinean Supreme Court in February 2017 refused to comply with an InterAmerican Court of Human Rights decision ordering it to revoke a domestic judgment. At issue was a case in which Argentina's Supreme Court had affirmed a civil judgment that found two journalists liable for defamation for publishing...
Can private parties use Investor-State Dispute Settlement (ISDS) mechanisms to systematically advance human rights? For at least two decades now, we have known the inverse is possible: private companies can use ISDS mechanisms to stymie human rights. That is the lesson of Ethyl Corporation's 1997 claim challenging a Canadian import ban on the gasoline additive...
What are the legal and substantive contours of U.S. trade agreements? Who decides? These questions have long occupied commentators and thinkers in public media and politics.
International law is increasingly "judicialized.
For decades, voices both on and off the island of Puerto Rico have decried its status as an "unincorporated territory"-a legal category invented by a fractured U.S. Supreme Court in the widely-reviled Insular Cases a century ago, and technically unchanged by the adoption of a constitution and "commonwealth" status in the 1950s. Broad dissatisfaction with this constitutional and...
In his 1996 Declaration of the Independence of Cyber Space, cyber activist (and former Grateful Dead lyricist) John Perry Barlow vividly described the Internet as a place beyond national borders: Governments of the Industrial World, you weary giants of flesh and steel, ... I declare the global social space we are building to be naturally independent of the tyrannies you seek to...
How do the laws of contract differ across jurisdictions? This question has attracted a tremendous amount of interest over time. In fact, for most of the history of comparative law as a discipline, contract law was the main area of focus of comparative legal study.
The Federation Internationale de Football Association, better-known as FIFA, is the governing body for football (or soccer, as it is known in certain countries) as well as futsal and beach soccer. Founded in 1904 under Swiss law by seven European countries-Belgium, Denmark, France, the Netherlands, Spain, Sweden, and Switzerland-and based in Zurich, it currently comprises 211...
How should constitutional designers structure the rules of constitutional change? Much has been written about constitutional design in general, but relatively little exists on the architecture of constitutional amendment. My purpose in this Article is to introduce a new idea to the literature on constitutional amendment-the idea of constitutional dismemberment-to challenge us to...
Over the last decade, the citation of international sources of law in U.S. Supreme Court decisions has stirred up considerable controversy. This has played out not only within the academy, but also among the Justices.
Near daily news reports remind us that we live in an intelligence world. The U.S. National Security Agency (NSA) collects terabytes of global communications. Most famously, the NSA's PRISM and UPSTREAM programs intercepted and monitored the global internet-based communications and telephone calls of foreign nationals, as well as those initiated or received by persons outside of...
For decades, the scope of international legal commitments has expanded to cover policy areas previously considered to be exclusive sovereign domains of the State. In tandem with expanding scope there has been a decisive shift of authority and decision-making power to legal actors across many domains of public international law-such as in public finance, human rights, investment...
In June 2015, the Department of Defense (DoD) General Counsel issued a massive new manual intended to provide the U.S. military with its first unified guidance on the international law governing armed conflict. U.S. armed forces previously had to rely on individual service publications that were frequently out of date and sometimes inconsistent, particularly with respect to the...
In September 2015, the countries of the European Union seemed ready to allow Syrian refugees to cross into their borders. Prime Minister David Cameron said that the United Kingdom had a "moral responsibility
In January 2015, a U.S.-initiated drone strike in Pakistan accidentally killed U.S. citizen Warren Weinstein and Italian aid worker Giovanni Lo Porto. President Obama compensated the families and gave a long speech in which he indicated that he "want[ed] to express our grief and condolences to the families of two hostages.
In the spring of 2013, when the Islamic State, or "ISIS,
Investor-state arbitration (ISA) has become the defining feature of international investment law. ISA dominates public discussions and policy debates that accompany the negotiation of new investment agreements; it forms the lens through which investment law is analyzed and taught at universities; and it has grown to be a significant area of practice for lawyers, arbitrators, and...