International Law
Exceptional Judgments: Revising the Terrorism Exception to the Foreign Sovereign Immunities Act
Rogue states are sometimes charged with massive default judgments for state-sponsored terrorism. Frequently, those judgements apportion responsibility to states that were not involved in terrorism and frustrate diplomatic progress. This Comment proposes a novel administrative solution to make claims against foreign states for supporting terrorism more just and effective.
International Lobbying Law
Consultation rules allow nonstate actors to gain special access to international institutions. While consultation once was understood as a means of democratizing international institutions, today, many consultants are industry and trade associations. This Article reframes these rules as a body of lobbying regulations, introducing a theory of international lobbying law.
When Stopping the Smuggler Means Repelling the Refugee: International Human Rights Law and the European Union's Operation To Combat Smuggling in Libya’s Territorial Sea
Is History Repeating Itself? Sentencing Young American Muslims in the War on Terror
Duties Owed: Low-Intensity Cyber Attacks and Liability for Transboundary Torts in International Law
Triptych’s End: A Better Framework To Evaluate 21st Century International Lawmaking
How does the United States enter and exit its international obligations? By the last days of the Obama Administration, it had become painfully clear that the always imaginary “triptych” of Article II treaties, congressional-executive agreements, and sole executive agreements, which has guided foreign relations scholars since the Case Act, is dying or dead. In 2013, as State Department Legal Adviser, I argued that: In the twenty-first century . . . we are now moving to a whole host of less crystalline, more nuanced forms of international legal engagement and cooperation that do not fall neatly within any of these three pigeonholes . . . . [O]ur international legal engagement has become about far more than just treaties and executive agreements. We need a better way to describe the nuanced texture of the tapestry of modern international lawmaking and related activities that stays truer to reality than this procrustean construct that academics try to impose on a messy reality. This Essay seeks to offer that better conceptual framework to evaluate the legality of modern international lawmaking. It illustrates that framework through two recent case studies of modern U.S. diplomacy: the Paris Climate Change Agreement and the Iran Nuclear Deal.
The Judicial Enforceability and Legal Effects of Treaty Reservations, Understandings, and Declarations
Democracy and Legitimacy in Investor-State Arbitration
In January 2016, the Canadian infrastructure company TransCanada Corporation filed a notice of intent to sue the United States government in a North American Free Trade Agreement (NAFTA) Chapter 11 arbitration over the Keystone XL pipeline. At the center of this dispute is the State Department’s refusal to permit the construction of an oil pipeline between Canada and Nebraska. TransCanada claims that the State Department ignored its own favorable environmental assessments of the pipeline multiple times and rejected the proposal to placate misinformed activists and foreign governments. The State Department acknowledges that it denied the permit to enhance the Obama Administration’s credibility at the 2015 United Nations Climate Change Conference in Paris, with the long-term goal of reducing emissions through collective political action.
Reconciling the Crime of Aggression and Complementarity: Unaddressed Tensions and a Way Forward
Asking for Directions: The Case for Federal Courts To Use Certification Across Borders
Participation, Equality, and the Civil Right to Counsel: Lessons from Domestic and International Law
122 Yale L.J. 2260 (2013). Domestic efforts to establish a right to civil counsel by drawing narrow analogies to Gideon v. Wainwright have met with limited success. In contrast, two principles drawn from international jurisprudence—the human right to “civic participation” and the concept of “equality of arms”—resonate with emerging U.S. jurisprudence in both state and federal courts and suggest new directions for domestic advocacy on the civil right to counsel. First, the human right to civic participation, incorporating access to justice, underscores the democratic values at stake when individuals are not able to fully participate in civil judicial processes because of lack of counsel. Second, the concept of equality of arms hones in on the source of that democratic distortion—inequality—and sets a baseline for ensuring acceptable procedural protections. Strengthening considerations of participation and equality within the constitutional due process calculus would position courts to examine the broader class-based impacts of the denial of civil counsel in cases such as mortgage foreclosures or insurance redlining. Rather than conduct a case-by-case review, which slows litigation, creates uncertainty, and deters litigants from coming forward, U.S. courts viewing the civil right to counsel through the lenses of civic participation and equality of arms could act more broadly to mitigate the classbased impacts of procedural inequality in addition to the case-specific impacts. This approach, grounded in democratic values rather than need, does not ignore the lessons of Gideon, but draws on its more subtle themes—themes that have sometimes been eclipsed by a focus on liberty interests.