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Abstract:
The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a full-blooded theory of constitutional comparativism, it sketches the outlines and sets the stage for further conversation.

Jurisprudence, Constitutional Theory, Originalism

Abstract:
Transitional justice asks what successor regimes, committed to human rights and the rule of law, can and should do to seek justice for atrocities perpetrated by and under their predecessors. The normal instinct is to prosecute criminally everyone implicated in past wrongs; but practical conditions in transitions make this impossible. As a result, most transitions pursue hybrid approaches, featuring prosecutions of those most responsible, amnesties, truth commissions, and reparations. This approach is often condemned as a compromise against justice.

This article advances a transitional jurisprudence that justifies the hybrid approach by taking normative account of the unique conditions that define abusive regimes and transitional justice in contrast to stable states and ordinary justice. It argues that the public face of law in abusive regimes - composed of law, institutional practice, and social norms - is such that reasonable people living under its direction can conclude that abuses are at least not against the law. Given this, prosecuting in transition those who acted consistently with the pre-transitional public face of law would violate commitments to the legality principle.

The article argues for an approach to transitional justice organized around the description and provision of an affirmative defense based on legality and defends the proposed excuse against objections from different legal and philosophical perspectives. It concludes that, with the exception of top leaders, appeals to natural law, morality, international law, customary law, deterrence, reform, and incapacitation do not provide warrant for prosecuting most pre-transitional actors. The article further suggests how this excuse-centered approach can provide necessary support and justification for other elements of the hybrid approach, including truth commissions.

Abstract:
This is a review essay of Eric Posner and Jack Goldsmith's fascinating book, The Limits of International Law. In the essay I provide an exegesis of the core argument of the book, which is that the conduct of states in fields occupied by international law is more powerfully described by game theory than by law talk. In particular, the authors argue that state conduct traditionally described in terms of obedience and violation is actually determined by self-interest modified by the strategic conditions of identifiable games; principally coincidence games, coordination games, coercion games, and iterated prisoner dilemmas.

In the essay I suggest that the critical core of the authors' argument is a form of rule skepticism of a kind with that explored most prominently by Ludwig Wittgenstein and Saul Kripke. Rather than rehearse that literature, the essay uses this insight as a tool to set limits on the critical agenda of the book. In particular, I argue that the claim that "no course of [state] action could be determined by a rule, because every course of [state] action can be made out to accord with the rule" leaves the authors' critical thesis to turn on contested and contestable historical claims. In the essay I do not argue that this is reason to reject this work; rather, I indicate several directions for empirical inquiry and conclude that this book sets the stage for fruitful future debates.

Separate from these descriptive concerns, I also suggest that the authors' skepticism may be muted entirely by a more careful exploration of what constitutes rule-following in the field of international law. Specifically, I suggest that, viewed as an operating system, organized around procedures that provide forums for normative debate, set the stage for public reason-giving, and establish terms for the use of carrots and sticks, international law may not aspire to be a determining force for state action, particularly in the motivational mode implied in the authors' discussion. Rather, taking this proceduralist view, it may be enough for international law advocates that the law exists, that states do engage in law talk, and that states include in their behavioral calculus the potential consequences of their actions in light of international law as an operating system. Again, I conclude that these potential objections provide no ground to condemn this interesting work but highlight its indisputable value as a refreshing addition to the international law canon.

I end with the following advice:

"While, as the authors note, this short book may raise more questions than it answers, it lays the foundation for an approach to research and practice that is sure to become a force in many fields. Readers are advised not to be left behind."

International Law, Game Theory, Jack Goldsmith, Eric Posner

Abstract:
This short paper, published as part of the proceedings of the 100th Annual Meeting of the American Society of International Law, essays the role of an abusive public face of law in mass atrocities and provides a prologue for An Excuse-Centered Approach to Transitional Justice, 74 Ford. L. Rev. 2621 (2006). In particular, this paper argues against the view of transitional justice as ordinary justice advanced by Eric Posner and Adrian Vermeule, among others.

International Law, Transitional Justice, Legal Theory

Abstract:
The doctrine of odious debts came into its full in the eighteenth and early nineteenth century to deal with the financial injustices of colonialism and its stalking horse, despotism. The basic rule, as articulated by Alexander Sack in 1927, is that debts incurred by an illegitimate regime that neither benefit nor have the consent of the people of a territory are personal to the regime and are subject to unilateral recision by a successor government. While the traditional doctrine focused on the nature and circumstances of individual debts, it has been expanded in recent years, moving the focus from the details of particular debts and placing the weight of the doctrine on an assessment of the regime itself. The consequence of this move is to allow successor regimes to void all debts incurred by predecessors who indulged in autocratic rule, corruption, and violations of basic human rights.

This shift is not without controversy. The contest stems, in part, from the fact that the structural and behavioral characteristics of regimes that might be regarded as odious are diverse, as are the relationships between these regimes and their subjects. Even a cursory survey of these differences presents a more complicated taxonomy of odious debts than is suggested either by Sack's version of the doctrine or by voiding wholesale all debts incurred by regimes that do bad things. This article exposes this complexity and, in broad Linnean strokes, proposes a rough classification of odious regimes and their debts. It then connects odious debt debates to broader issues relevant to transitional justice. In particular, the article focuses on odious regimes characterized by systematic and institutional human rights abuses and argues that fundamental goals of transitional justice warrant against successors' voiding unilaterally debts incurred by their predecessors.

Failing to disclaim duties to repay does necessarily leave transitional regimes on the hook for debts incurred by their predecessors. Businesses, banks, and nations that invest in abusive regimes must assume the burdens of their own responsibility for past abuses. The article contends that debts incurred by abusive regimes mark duties of repair owed by those who invested in the past regime. So, while successors to merely corrupt regimes may not have a duty to repay under traditional odious debt rules, in the case of a truly abusive regime, the sword swings the other way, imposing a duty on lenders to compensate those victimized by their past engagements.

The article recognizes that this approach to the debts of odious regimes presents potential problems and concerns for investors and the citizens of marginal states, but concludes that through a robust practice of corporate social responsibility corporations and financial institutions can safely invest in marginal regimes while also helping to advance our international human rights culture.

Odious Debt, Corporate Social Responsibility, Jurisprudence, Corporate Liability, Human Rights

Abstract:
It is sometimes the case that a debate goes off the rails so early that riders assume the rough country around them is the natural backdrop for their travels. That is certainly true in the debate over reparations in transitions to democracy. Reparations traditionally are understood as material or symbolic awards to victims of an abusive regime granted outside of a legal process. While some reparations claims succeed - such as those made by Americans of Japanese decent interned during World War II and those made by European Jews against Germany after World War II - most do not. The principal culprits in these failures are objections that reflect commitments to “ethical individualism.”

By way of response, some advocates attempt to put reparations back on course by appealing to theories of collective responsibility. Where put strongly, these theories suffer from basic conceptual deficits. Weaker versions, such as theories based on moral taint, and related efforts that seek atonement or reconciliation, turn on moral sentiments, such as regret, and therefore cannot give rise to objective and externally enforceable duties of repair. More creative solutions, such as approaches pursuing “restorative justice,” have some intuitive appeal but want for theoretical clarity and therefore fail to provide persuasive practical guidance.

This Article proposes a new approach. Rather than conceiving of reparations as solely retrospective, which implicates knotty issues of responsibility, or solely prospective, which raises problems of enforceability and political practicality, this Article argues that reparations are Janus-faced. In keeping with a larger project arguing that transitional justice is not just a special case of ordinary justice, this Article suggests treating transitions as liminal moments and contends that reparations ought to reflect the extraordinary conditions implied by this temporal status “betwixt and between” an abusive past and a future committed to democracy, human rights, and the rule of law.

transitional justice, jurisprudence, reparations, law & society, international law

Abstract:
This essay, written for the 2009 Constitutional Schmooze, explores the complex role of religion as a source of both stability and instability. Drawing on a broader body of work in transitional justice, this essay argues that religion has an important role to play in the complex web of overlapping associations and oppositions constitutive of a dynamically stable society and further contends that constitutional protections which encourage a diversity of religions provide the best hope of harnessing that potential while limiting the dangers of religion evidenced in numerous cases of mass atrocity.

Transitional Justice, First Amendment, Religion