forthcoming scholarship

"Foreign Affairs Legalism: A Critique"

University of Chicago, Public Law Working Paper No. 291

DANIEL ABEBE, University of Chicago – Law School
Email: dabebe
ERIC A. POSNER, University of Chicago – Law School
Email: eric_posner

Foreign affairs legalism, the dominant approach in academic scholarship on foreign relations law, holds that courts should abandon their traditional deference to the executive in foreign relations, and that courts and Congress should take a more activist role in foreign relations than in the past. Foreign affairs legalists argue that greater judicial involvement in foreign relations would curb executive abuses and promote international law. We argue that foreign affairs legalism rests on implausible assumptions about the incentives and capacities of courts. In U.S. history the executive has given more support to international law than the judiciary or Congress has; this suggests that foreign affairs legalism would retard rather than spur the advance of international law.

"The National Security Court We Already Have"

Yale Law & Policy Review, Forthcoming

SOPHIA M. BRILL, Yale University
Email: sophia.brill

This Comment argues that, less than two years after Boumediene, the habeas jurisprudence from the United States District Court in the District of Columbia has, through a common law process, constructed the national security court that was so controversial as a policy proposal. This jurisprudence was recently crystallized and substantially sharpened in the first appellate ruling on post-Boumediene habeas cases, in the D.C. Circuit’s Al Bihani v. Obama decision. While much has been written about the general legal problems regarding preventive detention, few have addressed the contours of the detention system that now actually exists in our courts. Because much of this important new policy-making has occurred on the level of trial court decisions, one aim of this Comment is simply to elucidate some of the key holdings of the district judges, in the hope that greater transparency will facilitate more fruitful dialogue. Part I thus examines the substance of the D.C. District Court’s rulings on habeas petitions and detention authority, and the recent ruling issued by the D.C. Circuit. Part II discusses why civil libertarians’ apparent satisfaction with many of the rulings so far is misplaced, in that it ignores the courts’ underlying expansion of the President’s detention authority. Part III argues that a common law route is particularly problematic in this context, drawing some of the current policy ramifications from the rulings and concluding that the D.C. Circuit should have taken a far more minimalist approach in its recent Al-Bihani decision.

"Fundamental Guarantees in the Armed Conflict in the Slovenian Context: Lessons Learnt?"

Slovenian Law Review, Vol. 6, pp. 203-222, 2009

JERNEJ LETNAR CERNIC, European University Institute – Department of Law (LAW)
Email: jernej_letnar

This article explores the treatment of detainees in treaty and customary international humanitarian law. Detainees are persons who do not or have ceased to take a direct part in hostilities or are hors de combat. It contextualizes the discussion on the treatment of detainees by illustrating an example from contemporary Slovenian history relating to the barbaric treatment of detainees on the Slovenian territory after Second World War, where more than hundred thousand persons were executed. This article argues that fundamental human rights apply in all situations and that the fundamental guarantees apply during and after the hostilities to all categories of detainees. In this way, if further explores fundamental guarantees, a meeting point between international human rights law and humanitarian law. Based on these findings this article argues that there strong legal and moral grounds to address crimes against humanity committed in Slovenia against detainees after the Second World War.

"Fixing Failed States"

UC Berkeley Public Law Research Paper No. 1552395

JOHN YOO, University of California at Berkeley School of Law
Email: YOO

Failed states pose one of the deepest challenges to American national security and international peace and stability. Finding a comprehensive and effective solution to the challenges of terrorism, human rights violations, or poverty and economic development requires some understanding of how to restore failed states. The response of the United States and its allies has remained the same: to rebuild the institutions of state control, and, if lucky, to plant a working democracy and a market economy within existing state borders. But many international law scholars remain openly dubious about the ability of states to rebuild – the problem is not failed states but the nation-state as the primary actor in international relations. This paper argues that both American and U.N policy on the one hand, and the conventional academic wisdom on the other hand, are mistaken. Building a normal nation-state with full sovereignty on every territory in the world, without changing any borders, fails to understand why some states are failing in the first place. Viable states simply do not align with the borders recognized by the United Nations or created during the period of rapid decolonization in the decades after World War II. Academics who see in failed states the rise of alternatives to the nation-state have no practical solutions that do not depend on the political, economic, and military resources of strong nation-states. Without them, supra-national governments, trusteeships, or non-governmental organizations have shown little ability to fix failed states. This paper argues that powerful nations can help by performing the more modest role of promoting and guaranteeing power-sharing agreements between competing groups within failed states. It concludes by illustrating the thesis with the outcome of the surge in Iraq.

"Coping with Combat Claims: An Analysis of the Foreign Claims Act’s Combat Exclusion"

11 Cardozo J. Conflict Res. 319 (2009)
Jordan Walerstein, Editor-in-Chief, Cardozo Journal of Conflict Resolution

The purpose of this Note is to show that, although the FCA has positively impacted U.S. military operations, the so-called “combat exclusion” severely hampers its effectiveness. I argue that Congress should eliminate the distinction between combat and noncombat claims and adopt a unified, permanent claims system to adjudicate all claims made by civilians against U.S. military forces operating overseas. Part II of this Note explores the origins of the “combat exclusion” in international law, and Part III traces the history of civilian compensation through World War I and World War II. Part IV surveys U.S. military use of the FCA and ad hoc adjudication systems in conflicts after World War II, while Part V sets forth the contemporary claims adjudication framework. Part VI analyzes the strengths and weaknesses of the FCA and proposes a permanent, unified claims system to handle both combat and noncombat claims.

"Legitimacy and Deterrence Effects in Counter-Terrorism Policing: A Study of Muslim Americans"

Law and Society Review, Forthcoming
U of Chicago, Public Law Working Paper No. 296
NYU School of Law, Public Law Research Paper No. 10-15

TOM TYLER, New York University – Department of Psychology
Email: tom.tyler
STEPHEN SCHULHOFER, New York University – School of Law
Email: stephen.schulhofer
AZIZ Z. HUQ, University of Chicago Law School
Email: huq

This study considers the circumstances under which members of the Muslim American community voluntarily cooperate with police efforts to combat terrorism. Cooperation is defined to include both a general receptivity toward helping the police in anti-terror work, and the specific willingness to alert police to terror related risks in a community. Two perspectives on why people cooperate with law enforcement, both developed with reference to general policing, are compared in the context of anti-terror policing and specifically among members of the Muslim American community. The first is instrumental. It suggests that people cooperate because they see tangible benefits that outweigh any costs. The second perspective is normative. It posits that people respond to their belief that police are a legitimate authority. On this view legitimacy is linked to the fairness and procedural justice of police procedures. Data from a study involving interviews with Muslim Americans in New York City between March and June 2009 strongly support the normative model by finding that the procedural justice of police activities is the primary factor shaping legitimacy and cooperation with the police.

"Are We Safer from Terrorism? No – But We Can Be"

Yale Law & Policy Review, Vol. 28, No. 2, 2010
Washington U. School of Law Working Paper No. 10-01-01

BRIAN Z. TAMANAHA, Washington University School of Law in St. Louis
Email: btamanaha

This essay marks the fifth anniversary of the Intelligence Reform and Terrorism Prevention Act of 2004. It explores whether Americans are now safer from terrorism thanks to the reforms set forth in the Act, reforms taken from the recommendations the 9/11 Commission. The consensus of intelligence experts is that the fundamental problems with intelligence sharing and coordination that existed prior to 9/11 have not been resolved. This lack of progress was recently exposed in the Christmas Day (2009) attempt by an al Qaeda sympathizer to set off explosives in a plane landing in Detroit.

Intelligence failures are inevitable owing to entrenched practices and trade-offs inherent to intelligence work that cannot be eliminated through structural reforms. With the growth of anti-American radicalism, it is increasingly evident that Americans cannot be made safer from terrorism if the primary focus is on intelligence reform. The only long term solution is to reduce the supply of terrorists. This cannot be accomplished through military actions alone because these very military actions are fanning further radicalization, adding more recruits to the ranks of terrorists.

The provisions in the Act that propose to dampen anti-American extremism are absurdly inadequate because the 9/11 Commission and Congress failed to recognize the factors that fuel this extremism. To provide a deeper understanding, this essay elaborates on the remarkable reverse image that grips both sides in this conflict: Americans believe that Muslim extremists attacked America first, and continue to attack us, whereas Muslims targeting us believe that America attacked Muslims first, and continues to attack Muslims.

This essay was written by invitation of the Review to be paired (from contrasting perspectives) with a contribution from the first Director of National Intelligence, Ambassador John Negroponte.

One Response to forthcoming scholarship

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