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Abstract:
The article addresses the vexing problem of holding corporations liable for assisting in the sovereign abuse of human rights. Currently domestic human rights litigation against corporations appears to be a proxy fight in which the accomplice is pursued while the principal evades punishment. Typically the principal malfeasor - the sovereign - is immune from suit because of foreign sovereign immunity. But corporations can be found liable for aiding and abetting those violations. This article suggests a solution to this problem, drawing on principles from contract law and arbitration. If a corporation is found liable for aiding and abetting sovereign abuse, it may invoke contractual provisions in the agreement with the sovereign to arbitrate the question of shared responsibility. While the victims may not pursue the sovereign because of immunity, there is no impediment for a corporate joint malfeasor to pursue the sovereign in arbitration to secure its share of liability, either in the form of contribution or indemnification. In short, human rights litigation against the corporation could lead to "who pays" cross-claim arbitration against the sovereign. Using Guido Calabresi's scheme of cost avoidance, this approach establishes a system of cost avoidance for human rights, in which corporations incur costs, and then seek to transfer those costs to the cheapest cost avoider - the sovereign.

But the tools of contract law and arbitration are not simply for the corporation that aids and abets human rights abuse. They also are available to the majority of corporations that are good corporate citizens. For these corporations, contract law and arbitration procedures create opportunities to impose human rights obligations on transnational contractors, vendors, and suppliers. Human rights obligations can be internalized by contract and subjected to effective dispute resolution procedures, including international arbitration.

Finally, some corporations may wish to go even further and create opportunities for non-contracting parties - such as employees or NGOs - to invoke third party beneficiary rights to facilitate compliance with human rights obligations embedded in the contract. These corporations thereby can incorporate a mechanism for those third parties to initiate an effective dispute resolution process to address core human rights concerns.

human rights, Alient Tort Statute, corporations, sovereign immunity, contribution, indemnification, third party beneficiaries

Abstract:
Constitutional comparativism - the notion that international and foreign material should be used to interpret the U.S. Constitution - is gaining currency. Yet proponents of this practice rarely offer a firm theoretical justification for the practice. This Article contends that constitutional comparativism should be examined from the perspective of constitutional theory. The use of comparative and international material must be deemed appropriate or inappropriate based on a particular judge's interpretive mode of constitutional analysis. The Article presents four classic constitutional theories - originalism, natural law, majoritarianism, and pragmatism - and addresses the propriety of constitutional comparativism under each theory. This theoretical approach goes far to explain why particular judges embrace comparativism, while others eschew it. In so doing, it grounds the debate in the larger framework of classic constitutional theory. It also anticipates the disquiet that constitutional comparativists will experience at the inadequacy of any existing constitutional theory to capture fully the comparative agenda. It therefore introduces the broad outlines of a comparative constitutional theory and judges such a theory based on established criteria for its saliency.

constitutional comparativism, constitutional law, comparative law, roper, lawrence, simmons, atkins, death penalty, international law

Abstract:
One of the underappreciated developments in international trade law is the degree to which the WTO Appellate Body is failing to abide by negotiated procedural norms in reviewing Member State action. This essay highlights systemic problems with Appellate Body decision-making as reflected in the controversial case of US-Zeroing. The problems reflected in US—Zeroing go to central issues of judicial restraint, including concerns regarding the standard of review, appellate fact-finding, and justiciable notions of ripeness. This essay concludes that the Appellate Body in US-Zeroing circumvented the particularized standard of review required under the WTO Agreement, took upon itself the unacceptable task of appellate fact-finding, and inappropriately expanded the authority to hear facial challenges of discretionary agency action. In short, the US-Zeroing decision belies the felicitous notion that WTO dispute resolution embraces an approach of judicial restraint.

The WTO Agreements require the Appellate Body to defer to reasonable Member State interpretations of WTO treaty obligations in a manner analogous to Chevron deference. As US-Zeroing underscores, the Appellate Body in fact has eschewed anything approaching Chevron deference. The essay suggests that the Appellate Body is overreaching in not adhering to its obligations to defer.

The essay also highlights the problem of Appellate Body fact-finding in US-Zeroing. The essay argues that the case is troubling because the WTO agreements require WTO panels to defer to the objective and unbiased factual findings of Member State authorities, and doubly troubling because the Appellate Body's assessment of the facts under the DSU requires deference to the factual findings of the WTO panels. As such, the WTO agreements require double deference to factual findings below. But the Appellate Body in US-Zeroing displayed no such deference.

Finally, the essay focuses on the movement away from the mandatory/discretionary doctrine. That doctrine was the essential limitation on facial challenges to Member State action that did not rise to the level of mandatory obligations. As a consequence of the Appellate Body's interpretation in US-Zeroing, facial challenges once reserved for provisions of binding legislation are now available for virtually any general and prospective agency action. Quite literally, the Appellate Body's decision in US-Zeroing suggests that review of discretionary agency action will be more robust and searching when undertaken by an exacting international body in Geneva than by a deferential federal court in New York.

WTO, international trade, international tribunals

Abstract:
In Roper v. Simmons, the Court unequivocally affirms the use of comparative constitutionalism to interpret the Eighth Amendment. It does not, however, provide an obvious theoretical basis to justify the practice. This Article searches for a theory to explain the comparativism in Roper using the theories advanced in the author's previous scholarship. It concludes that of the colorable candidates, natural law constitutionalism is the most plausible explanation, with the attendant problems associated therewith. The Article concludes with an analysis of the possible ramifications of the Court's comparative approach, suggesting that it may be pursuing a Constitution that is in international equipoise, with international values distributed liberally throughout our jurisprudence to ensure foreign and domestic equilibrium.

comparative, constitution, international, roper, simmons, lawrence, death penalty, eighth amendment, constitutional comparativism

Abstract:
This article addresses the trend toward using international sources to interpret the Constitution. While recognizing that international sources may be appropriately used as persuasive authority in certain types of constitutional analysis, this article argues that such reliance is inappropriate if done improperly. There are four misuses of international sources that serve as the focus of the article.

The first misuse of international sources - particularly evident in death penalty litigation - occurs when the global opinions of humankind are ascribed constitutional value to thwart the domestic opinions of Americans. The article suggests that international norms cannot be internalized within our Constitution unless such norms are first internalized by our people as our community standards. That is, international standards cannot serve as community standards unless they reflect our own national experience. To conclude otherwise would grant countermajoritarian international norms constitutional relevance as a community standard.

The second misuse of international sources occurs when treaties are elevated to a status they do not enjoy under our federal system. The entire edifice of constitutional law rests on the foundation that the acts of the political branches are subject to and limited by the Constitution. Proposing that international law be part of the canon of constitutional material improperly empowers the political branches to create source materials - treaties and executive agreements - that serve as interpretive inputs to the process of constitutional decision making.

The third misuse of international sources occurs when the Court references them haphazardly, relying on only those materials that are readily at its fingertips. In the international legal arena, where the Court has little or no expertise, the Court is unduly susceptible to selective and incomplete presentations of the true state of international and foreign affairs. If the suggestion is that international sources may "cast an empirical light on the consequences of different solutions to a common legal problem", it is incumbent upon the Court to engage in empirical rather than haphazard comparativism. It is far from evident that this is what the Court is doing.

A final misuse occurs when international and foreign materials are used selectively. In a country that considers itself the world's foremost protector of civil liberties, what is perhaps most surprising about the enthusiasm for comparativism is the assumption that it will enhance rather than diminish basic human rights in this country. This assumption is either blind to our visionary leadership, deaf to the discord in the international instruments, or selectively mute in giving voice to only certain topics for comparison.

constitutional comparativism, constitutional law, comparative law, lawrence, atkins, international law

Abstract:
Embodied in the Universal Declaration of Human Rights is the evocative proposition that "[e]veryone has the right to freedom of opinion and expression." But beneath that level of abstraction there is anything but universal agreement. Modern democratic societies disagree on the text, content, theory, and practice of this liberty. They disagree on whether it is a privileged right or a subordinate value. They disagree on what constitutes speech and which speech is worthy of protection. They disagree on theoretical foundations, uncertain if the right is grounded in libertarian impulses, the promotion of a marketplace of ideas, or the advancement of participatory democracy. In short, the freedom of expression is a universal value that is fraught with cultural contingencies.

There are various responses to this ideological pluralism. One response is to seek normative uniformity. That approach represents the unusual circumstance in which almost all countries have balanced competing interests and uniformly concluded that a particular government practice need not be pursued. Far more common is the situation - evident in the free speech context - in which one human right is balanced against other competing goods on a country-by-country basis. The precise balance achieved in each country will differ.

This book review argues that the dissonance between countries need not be challenged in pursuit of uniformity. Indeed, in those cases in which the differences reflect an appropriate balance of competing goods, it should be celebrated. Constitutional exceptionalism recognizes and celebrates each country's attempt to optimize the general welfare of that country by balancing competing goods in a manner consistent with that country's constitutional text, structure, history, precedent, and national experience. The point of constitutional exceptionalism is not to deny the existence or importance of any particular right. Rather, it is to accept the legitimacy of each modern democracy's attempt in its constitutional order to balance competing rights and interests as an expression of their cultural and national identity.

Ronald Krotozynski counts himself among the proponents of "weak" transjudicial dialogue who celebrates this free speech pluralism. His recent book, The First Amendment in Cross-Cultural Perspective, offers a useful guide to the comparative experiences of five modern democracies (United States, Canada, Japan, Germany, and the United Kingdom). He outlines the free speech guarantees of each country in light of text, structure, history, precedent, and national experience. He emphasizes how each factor is critical in understanding the free speech guarantees of that country.

This book review essay also considers the difficulties of a truly comprehensive free speech analysis. The essay argues that comparative constitutional analysis suffers from the curse of dimensionality. A comparison of one speech variant (i.e., hate speech) in a few countries using one contextual factor (i.e., precedent) is easy. A comparison of multiple speech variants in numerous countries using several contextual factors is exceedingly difficult. But only comparisons undertaken in such high dimensional space can reveal whether or not there are free speech clusters and outliers as is often asserted. This curse of dimensionality raises serious questions about the feasibility of comparative constitutional analysis. The essay does not question Krotozynski's serious and scholarly attempt at a narrow and deep comparison of free speech guarantees in five modern democracies. But it does cast doubt on the narrow and shallow comparisons that are often undertaken by constitutional jurists.

Free Speech, Freedom of Expression, Comparative Law, Constitutional Law

Abstract:
The focus of the article is the degree of deference that federal courts should confer on the decisions of international tribunals. The Supreme Court has suggested that "respectful consideration" should be given to international tribunal decisions, but absent further guidance, federal courts have haphazardly addressed the question of what effect to give to their judgments. What is needed is a methodology for deference. For the first time in scholarly literature this article proposes such a methodology for all international tribunals based on seven models that have been applied to different international tribunals and should be applied to dozens of others.

These models are placed along a continuum according to the degree of deference conferred. Each model is briefly presented and applied to a particular tribunal best illustrating the degree of deference conferred. The normative application of each model is then outlined to enable federal courts to apply the model in other contexts and to other tribunals. At one extreme of the continuum is the full faith and credit model, requiring federal courts to treat ICSID tribunal decisions in the same manner as state court judgments. At the other end is the "no deference" model, exemplified in death penalty litigation, in which federal courts confer no deference on decisions of human rights tribunals when interpreting constitutional guarantees. In between these extremes are five other models - the arbitration model (Iran-U.S. Claims Tribunal), the foreign judgment model (European Court of Justice), the Charming Betsy model (World Trade Organization), the Paquete Habana model (International Court of Justice), and the special master model (Claims Resolution Tribunal) - that illuminate how federal courts are conferring, and should confer, varying degrees of deference on international tribunal decisions.

International Court of Justice, World Trade Organization, International Tribunals, ICSID

Abstract:
It is indisputable that the international arbitration world is an identifiable epistemic community that transcends national borders, and whose members are shaped by their own experience. Increasingly, that experience reflects an American influence, be it heritage, training, affiliation, or client base. In these remarks, Professor Alford addresses three issues related to the Americanization of international arbitration. The first is whether international arbitration has, in fact, only recently become Americanized. He posits instead that there is always an ebb and flow to the level of the United States' involvement in international arbitration. During the drafting and signing of the 1958 New York Convention, for example, the United States was largely absent. However, in its earlier history the United States was highly involved in establishing pivotal international arbitration agreements, such as the Jay Treaty of 1794. Further ebb and flow of U.S. involvement is illustrated by the establishment of the Permanent Court of Arbitration and the League of Nations, as well as important arbitral doctrines as the Calvo Clause, international minimum standard, and the Hull formula. Second, he addresses whether international arbitration has become Americanized to the exclusion of other influences, disputing that theory by pointing out that developments in Asia (especially China), Latin America, and Europe have been highly influential in shaping the practice of international arbitration. Finally, he argues that U.S. influence in international arbitration is at the highest point it has ever reached, due to nine factors: (1) the rise of the Anglo-American law firm, (2) the increase of American legal training for non-U.S. lawyers, (3) the influence of the common-law adversarial model on arbitration style, (4) the increased acceptance of American discovery, (5) recent developments in choice of law issues, (6) the American influence of venue (situs of arbitration and situs for enforcement), (7) the American mechanism of published precedent, (8) the widespread adoption of English as the lingua franca of international arbitration, and (9) the over-representation of Americans are major arbitration institutions.

arbitration, international, international arbitration, New York Convention, Americanization, arbitration agreement, adversarial, arbitration institutions

Abstract:
Charming Betsy is a canon of construction that construes legislative enactments consistent with the law of nations. This canon promotes the passive virtue of avoiding constitutional problems by eschewing potential international law violations through statutory interpretation, thereby enhancing the United States' performance in foreign affairs. As a rule of separation of powers, Charming Betsy helps explain how foreign relations concerns clarify the scope of legislative, executive, and judicial authority. But when advocates contend that the Constitution likewise should be read through the lens of Charming Betsy, they abuse the doctrine by ignoring its purpose. While structural guarantees that relate to foreign affairs are animated by a concern for compliance with international law, there is little support for a position that takes foreign relations into account in interpreting the content of individual liberties so as to harmonize those liberties with international norms. The proper function of foreign relations in construing individual liberties is its traditional one, to justify government authority to curtail constitutional guarantees.

Charming Betsy, international law, constitutional interpretation, statutory interpretation

Abstract:
The purpose of this Article is to discuss common mistakes in the current debate on outsourcing authority. The first mistake in the debate on outsourcing authority is about the protagonists. To focus solely on the fact that some justices espouse this approach, while others do not, distorts the true picture of the rich debate that is ongoing at the bar, the bench, the academy, and beyond. Mistaking the voices in the debate will distort what is at issue in the discussion. The reality is much more complex. There is a groundswell of opposition to this trend from various corners and for a variety of reasons. It would be a mistake to discount the importance of this debate based on antipathy toward one or more justices or their constitutional persuasion.

The second mistake in the debate is about the novelty of constitutional comparativism. Many proponents feel threatened by recent criticism of this movement and they seek comfort in the embrace of history. But those who maintain that there is nothing novel about the current rage of constitutional comparativism ignore the numerous ways in which history is not an accurate guide to present trend toward comparativism, including: (1) the manner in which foreign authority is cited; (2) the quantity and quality of foreign and international authority; (3) the move toward global constitutionalism and international human rights; (4) the concerted effort to lobby justices to become internationalists; and (5) the willingness of some justices to engage in foreign diplomacy.

A third mistake in the debate on outsourcing authority is to fail to distinguish between statutory and constitutional interpretation. Some proponents of constitutional comparativism note approvingly the longstanding tradition of interpreting statutes consistent with international norms. A proper appreciation for outsourcing authority would make a sharp distinction between this relatively uncontroversial practice of importing international law through statutory presumptions, and the quite controversial practice of interpreting constitutional liberties consistent with international law.

The final mistake in the debate on outsourcing authority is to assume that the outcome of constitutional comparativism will be an expansion of individual liberties. That has not proven to be the case in the United States, and there is no reason to assume it will be so in the future. It is a mistake to assume that advocates of constitutional comparativism will be limited to those who wish to expand constitutional liberties. The Court has not, should not, and will not rely on foreign authority as a one-way ratchet that only broadens constitutional liberties.

international law, constitutional law, constitutional comparativism, Roper v. Simmons, Lawrence v. Texas,

Abstract:
This article discusses the legal challenges for implementing settlements for Holocaust reparation claims to Swiss bank accounts. It specifically discusses the activities related to the settlement of these claims undertaken by the Independent Committtee of Eminent Persons (Volcker Commission). The article's first section presents historical information about Holocaust claims against Swiss banks. Specifically, it attempts to answer the question of why it has taken so long for Holocaust reparation claims against Swiss banks to be processed. The author blames this delay primarily on the "obfuscation by the Swiss banks and the inattention of the Swiss government[,]" which is indicated by the fact that a complete accounting of the banks' Holocaust-era activities was not publicized until the mid 1990's under the direction of the Volcker Commission.

Next, the article provides information about the Claims Resolution Tribunal's claims resolution procedures. This tribunal, established by the Volcker Commission, was charged with arbitrating Holocaust reparation claims brought by private citizens against Swiss banks. It explains how claims resolutions procedures were modified throughout the history of the tribunal to expedite the process and ensure that the tribunal focused only on those claims that were truly related to losses caused by the Holocaust. This is followed by an analysis of the most challenging legal issues related to resolving Holocaust claims against Swiss banks, including burden of proof and plausibility problems, choice of law conflicts, and difficulties in determining whether claimants were truly descended from Holocaust victims. The article concludes with a discussion of what reparation and restitution claims accomplish in terms of "moral accounting" to the families of the victims, and the damage done to all the parties involved by the banks' failure to address their moral responsibilities related to Holocaust claims in a timely matter.

claims, restitution, swiss, switzerland, banks, banking, holocaust

Abstract:
This article addresses the question of the proper international standard for war reparations. War reparations are especially hard on the credibility and efficacy of international law. Wars are hard because the suffering is so great and reparations so onerous that often there is no mutuality of interest between the victorious governments and their own constituent victims. Wars force victorious States to make hard choices between looking backward to repair the harm caused to constituent victims and looking forward to a relationship with a potential strong and strategic ally. Just as the conduct of war, in its great features, is...policy itself, so too it often appears that war reparation schemes have almost everything to do with international relations, and very little to do with international law. The victorious States must choose either wholly to embrace compensation to the victims, future peace and stability with the vanquished, or a balance of both that will satisfy neither the victims nor the vanquished.

If revolutions are easy, wars are hard because if the victorious countries only focus on reparations for the war, they will do so at the expense of any future relationship with the vanquished countries. Second, wars are hard because if the victorious focus only on the future relationship with the vanquished, it will do so at the expense of the victims of the war. Third, wars are hard because if the victorious countries attempt to strike a middle ground and balance reparation to victims with nurturing a potential relationship with the vanquished, both the victims and the vanquished will remain unsatisfied with the result.

International law has well-established principles of jus ad bellum and jus in bello, but it has yet to embrace principles for jus post bellum. International law should develop broad theories for jus post bellum, including principles of war reparations. Such principles would clearly establish that, while a victorious country has the legal right to claim full compensation for damages directly caused by unlawful acts of war conducted by a state (or by non-state actors with a state's knowledge, acquiescence, or ratification), it also has the right on behalf of its nationals to waive claims for full compensation. And in making any claim it has the obligation to prioritize among categories of claimants and to provide concrete evidence of all injuries sustained. The difficulties in establishing such broad principles should not be insurmountable. After all, if international law has succeeded in establishing laws for the engagement and conduct of war and laws of war crimes, why can it not establish clear principles for war reparations?

war reparations, jus ad bellum, jus in bello, jus post bellum

Abstract:
The issue of constitutional comparativism has been a topic of significant commentary in recent years. However, there is one aspect of this subject that has been almost completely ignored by scholars: the reception, or lack thereof, of constitutional comparativism by state and lower federal courts. While the Supreme Court's enthusiasm for constitutional comparativism has waxed and now waned, lower state and federal courts have remained resolutely agnostic about this new movement. This is of tremendous practical significance because over ninety-nine percent of all cases are resolved by lower state and federal courts. Accordingly, if the lower courts eschew constitutional comparativism, then this constitutes the rejection of a comparative interpretive methodology in virtually all cases. This article examines this issue in consideration of the related opinions of two leading constitutional law scholars, David Fontana (who favors the use of comparative material in lower courts) and Vicki Jackson (who opposes it).

constitution, international, comparative, courts, state court, federal court, foreign, constitutional, comparativism

Abstract:
For the first time in scholarly literature, this article traces the history of modern international law from the perspective of the constructivist theory of international relations. Constructivism is one of the leadings schools of thought in international relations today. This theory posits that state preferences emerge from social construction and that state interests are evolving rather than fixed. Constructivism further argues that international norms have a life cycle composed of three stages: norm emergence, norm acceptance (or "norm cascades"), and norm internalization. As such, constructivism treats international law as a dynamic process in which "norm entrepreneurs" interact with state actors to advance new norms with the objective of states adopting and ultimately internalizing those norms. Given the importance of this school of thought, it is surprising that scholars have yet to map the history of modern international law from the constructivist perspective. This article is the first part of a larger project that attempts to do just that, applying the constructivist theory of international relations to argue that Nobel Peace Prize Laureates have been profoundly instrumental as norm entrepreneurs in the emergence, cascading and internalization of international law norms.

Examining the history of modern international law through a constructivist lens reveals that international law has had several distinct periods, each with its own particular narrative. The Pacifist Period (1901-1913) began with a vision of the abolition of war and the peaceful settlement of international disputes. The Statesman Period (1917-1938) built on that foundation with fragile institutions, imperfectly constructed to secure and maintain international peace and security. It also saw the emergence of more lasting international norms combating the unlawful use of force. The Humanitarian Period (1944-1959) established a more effective international architecture and crystallized international humanitarian norms regarding the use of force. The Human Rights Period (1960-1986) emphasized protection of the individual as one of the central pillars of international law. Finally, the Democracy Period (1987-Present) witnessed the triumph of democracy at the end of the Cold War, with widespread recognition that only the democratic form of government was suitable for realizing deeper yearnings of international peace and justice.

international law, international relations, constructivism, Nobel Peace Prize, peace, pacificism, human rights, humanitarian, democracy, history