International Law
Outcasting, Globalization, and the Emergence of International Law
**This is the second in a series of responses to Oona Hathaway and Scott J Shapiro's recent article, Outcasting, which appeared in the November issue of YLJ. For Joshua Kleinfeld's response, see here.** This Essay argues that we have been undergoing a profound sociocultural transformation over the last several centuries, which relates to the emergence of international law. This transformation is every bit as fundamental as those we once went through when transitioning from hunter-gatherer forms of life (which did not yet have legal systems or engage a distinctive sense of legal obligation) to more sedentary forms of agricultural life (with larger population densities, incipient domestic legal institutions, and—ultimately—an emergent distinction between morality and law). The primary mechanism that has been supporting this transformation is “outcasting”—as Oona Hathaway and Scott Shapiro have recently defined the term in their Yale Law Journal article of the same name. This Essay argues that outcasting provides the evolutionary stability conditions for a distinctive and emergent sense of international legal obligation in us. This shared sense of obligation is one of the basic preconditions for a genuine de facto system of international law—a fact that has important normative implications for how to evaluate international law.
Enforcement and the Concept of Law
**This is the first in a series of responses to Oona Hathaway and Scott J Shapiro's recent article, Outcasting, which appeared in the November issue of YLJ.** International law, many think, is not really law at all because it is not enforced. That claim is a central focus of Oona Hathaway and Scott Shapiro's new article, Outcasting: Enforcement in Domestic and International Law. This Essay asks two philosophical questions about that claim. What do we mean by enforcement when we channel the intuition that enforcement is part of law’s nature? And what is the place of enforcement in our concept of law? Enforcement, the Essay argues, is the activity by which a legally constituted power is applied to make the law’s dictates actual; it is a matter of law’s efficacy. Enforcement so conceived is constitutive of law’s identity as law, but not strictly necessary to it because law is not the kind of thing that has strictly necessary features. Nor is enforcement sufficient to make a norm a law: the skepticism toward international law is not based on enforcement alone.
Outcasting: Enforcement in Domestic and International Law
121 Yale L.J. 252 (2011). This Article offers a new way to understand the enforcement of domestic and international law that we call “outcasting.” Unlike the distinctive method that modern states use to enforce their law, outcasting is nonviolent: it does not rely on bureaucratic organizations, such as police or militia, that employ physical force to maintain order. Instead, outcasting involves denying the disobedient the benefits of social cooperation and membership. Law enforcement through outcasting in domestic law can be found throughout history—from medieval Iceland and classic canon law to modern-day public law. And it is ubiquitous in modern international law, from the World Trade Organization to the Universal Postal Union to the Montreal Protocol. Across radically different subject areas, international legal institutions use others (usually states) to enforce their rules and typically deploy outcasting rather than physical force. Seeing outcasting as a form of law enforcement not only helps us recognize that the traditional critique of international law—that it is not enforced and is therefore both ineffective and not real law—is based on a limited and inaccurate understanding of law enforcement. It also allows us to understand more fully when and how international law matters.
Judicious Influence: Non-Self-Executing Treaties and the Charming Betsy Canon
120 Yale L.J. 1784 (2011). Despite their seeming impotency, non-self-executing treaties play an important role in domestic jurisprudence. When a statute permits more than one construction, judges have a number of interpretive tools at their disposal. One of these is the Charming Betsy canon, which encourages judges to select an interpretation of an ambiguous statute that accords with U.S. international obligations—including those expressed in non-self-executing treaties. This Note concludes that the judicial practice of giving indirect force to all treaties through the Charming Betsy canon is both justified and beneficial.
Treaty Denunciation and "Withdrawal" from Customary International Law: An Erroneous Analogy with Dangerous Consequences
Implementing the Hague Convention on Choice of Court Agreements in the United States: An Opportunity to Clarify Recognition and Enforcement Practice
120 Yale L.J. 397 (2010).
Withdrawing from International Custom
120 Yale L.J. 202 (2010). Treaties are negotiated, usually written down, and often subject to cumbersome domestic ratification processes. Nonetheless, nations often have the right to withdraw unilaterally from them. By contrast, the conventional wisdom is that nations never have the legal right to withdraw unilaterally from the unwritten rules of customary international law (CIL), a proposition that we refer to as the “Mandatory View.” It is not obvious, however, why it should be easier to exit from treaties than from CIL, especially given the significant overlap that exists today between the regulatory coverage of treaties and CIL, as well as the frequent use of treaties as evidence of CIL. In this Article, we consider both the intellectual history and functional desirability of the Mandatory View. We find that a number of international law publicists of the eighteenth and nineteenth centuries thought that CIL rules were sometimes subject to unilateral withdrawal, at least if a nation gave notice about its intent. We also find that the Mandatory View did not come to dominate international law commentary until sometime in the twentieth century, and, even then, there were significant uncertainties about how the Mandatory View would work in practice. Moreover, we note that there are reasons to question the normative underpinnings of the shift to the Mandatory View, in that it may have been part of an effort to bind “uncivilized” states to the international law worked out by a small group of Western powers. After reviewing this history, we draw on theories developed with respect to contract law, corporate law, voting rules, and constitutional design to consider whether it is functionally desirable to restrict opt-out rights to the extent envisioned by the Mandatory View. We conclude that, although there are arguments for restricting opt-out in select areas of CIL, it is difficult to justify the Mandatory View as a general account of how CIL should operate.
A Free Pass for Foreign Firms? An Assessment of SEC and Private Enforcement Against Foreign Issuers
119 Yale L.J. 1638 (2010). While proponents of the bonding hypothesis have posited that foreign firms crosslist in the United States to signal compliance with the strict U.S. corporate governance regime, these scholars have taken the enforcement of U.S. securities laws largely for granted. This Note presents an empirical examination of previously unexplored data on the enforcement of U.S. securities laws against foreign issuers. The results suggest that relative to domestic issuers, foreign issuers in the United States have benefited not only from a more lax set of rules, but also from a more forgiving public enforcement agency. At the same time, U.S. courts have limited private enforcement against foreign issuers, thus restricting an alternative to public enforcement and further widening the gap between the corporate governance regime for U.S. issuers and the one for foreign issuers.
Peace Through Complementarity: Solving the Ex Post Problem in International Criminal Court Prosecutions
119 Yale L.J. 1703 (2010).
Presidential Power over International Law: Restoring the Balance
119 Yale L.J. 140 (2009). The vast majority of U.S. international agreements today are made by the President acting alone. Little noticed and rarely discussed, the agreements are concluded in a process almost completely hidden from outside view. This state of affairs is the result of a longterm transformation. Over the course of more than a century, Congress gradually yielded power to the President to make international agreements. Each individual delegation of authority relinquished only a small measure of power, while freeing members of Congress to focus on matters that were more likely to improve their reelection prospects. But the cumulative effect over time left Congress with little power over international lawmaking. As a result, the President is now able to make law over an immense array of issues—including issues with significant domestic ramifications—by concluding binding international agreements on his own. This imbalance of power violates democratic principles and may even lead to less effective international agreements. To correct this imbalance, this Article proposes a comprehensive reform statute that would normalize U.S. international lawmaking by reorganizing it around two separate tracks. International agreements that are now made by the President alone would proceed on an administrative track and would be subject to what might be called the “Administrative Procedure Act for International Law.” This new process would offer greater openness, public participation, and transparency, but not overburden lawmaking. A legislative track would include two existing methods for concluding international agreements: Senate-approved Article II treaties and congressional-executive agreements expressly approved by both houses of Congress. In addition, it would include an expanded “fast track” process that would permit streamlined congressional approval of agreements. Together, these proposals promise to create a more balanced, more democratic, and more effective system for international lawmaking in the United States.
The Prospects for the Peaceful Co-Existence of Constitutional and International Law
Responses to "The Constitutional Power To Interpret International Law"
Four authors respond to Michael Stokes Paulsen's The Constitutional Power To Interpret International Law, printed in Volume 118, Issue 8 of the Journal. Robert Ahdieh, Julian Ku, Margaret McGuinness, and Peter Spiro contributed their reactions to, and critiques of, this Essay for YLJ Online.
Interrogation's Law
118 Yale L.J. 1434 (2009). Conventional wisdom states that recent U.S. authorization of coercive interrogation techniques, and the legal decisions that sanctioned them, constitute a dramatic break with the past. This is false. U.S. interrogation policy well prior to 9/11 has allowed a great deal more flexibility than the high-minded legal prohibitions of coercive tactics would suggest: all interrogation methods allegedly authorized since 9/11, with the possible exception of waterboarding, have been authorized before. The conventional wisdom thus elides an intrinsic characteristic of all former and current laws on interrogation: they are vague and contestable, and thus, when context so demands, manipulable.