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Abstract:
The doctrine of sources has served international law well over the past century, providing structure and coherence during a time when international law was expanding rapidly and dramatically. But the doctrine's explanatory power is increasingly being challenged. Current doctrine tells us that treaties are international law; empirical evidence, however, suggest that treaties are poor predictors of state practice. The expansion of the international community, the rise of human rights, developments in international legal theory, and the international system's need to adapt to changing circumstances, have all also put pressure on the reified role of "treaty" in identifying rules of international law.

Drawing from a number of theories developed to explain why states comply with international law, this Article proposes a new doctrine of sources focused on opinio juris and how norms come to be accepted as international law. Rather than taking for granted that a treaty reflects international law, the rules laid out in a treaty would themselves be judged by the internalized norms supporting them, either (a) in the strength and legitimacy of the process that led to the adoption of those rules, or (b) in the customary acceptance of the rule itself. This Article argues that such a revised doctrine of sources will better capture which rules are actually treated as law in the international system, blunting skepticism about international law and placing international law on firmer footing.

Abstract:
In 2003-2004, a Presidential campaign year dominated by debates about international affairs and international law, the U.S. Supreme Court took an unusual number of cases of international import. The Court considered the Alien Tort Claims Act and the future of human rights suits in U.S. courts, the applicability of the Foreign Sovereign Immunity Act to claims involving Nazi-stolen artwork, the applicability of American antitrust law to foreign anticompetitive activity, and the legality of the Guantanamo detentions. A great deal of ink has been spilled analyzing the individual impacts of each of these cases. What has been less considered is how these cases fit together and what, together, these cases can tell us about the Supreme Court's nascent theories of international law.

Supremacy and Diplomacy: The International Law of the U.S. Supreme Court examines the international theory of the U.S. Supreme Court. Teasing out the various Justices' views from the 2003-2004 Term's international cases, the Article examines the Court's understanding of international law and the Court's role in the world. It looks at the varying success of particular parties in these cases, e.g., the U.S. government, foreign governments, and human rights activists, as well as how the Court approaches different fact-patterns. The article concludes that the Court has reached an unstable ad hoc compromise between redressing international wrongs and protecting American sovereignty. It argues that the Court's fractured discourse requires both the U.S. government and international law advocates to take an active role in shaping the Court's international law theories.

Abstract:
The United States’ relationship with international law, although oft-discussed, is poorly understood. Depictions of the relationship are often little more than caricatures. Depending on when the caricature is drawn, the United States may be a longstanding “champion” of international law, an “exceptionalist” defender of American values, or a hypocritical opponent of international governance. Many traditional histories do little to complicate these views. Focused primarily on foreign affairs law and constitutional war powers, these histories highlight moments of tension between the United States and international law. Missing from these histories of American diplomacy and warcraft, foreign affairs caselaw and doctrinal development is the rich cultural and intellectual history of American engagement with international law and justice.

This short essay, an expanded version of a panel introduction at International Law Weekend 2008, highlights the work of a number of scholars who are beginning to fill this gap. It argues that a new focus on the cultural and intellectual history of American approaches to international law can, among other things, (1) enrich our historical picture of American relations to international law, (2) complicate the common stereotypes of that relationship that dominate current debates, and (3) facilitate study of various theories of international law, particularly constructivist ones.

International law, American legal history

Abstract:
An increasing number of scholars have begun to apply rational choice methodologies to the study of international law. Earlier rational choice scholarship voicing skepticism about international law’s true force has since been followed by sophisticated rational choice defenses of international law. This review essay focuses on Andrew Guzman’s recent book HOW INTERNATIONAL LAW WORKS: A RATIONAL CHOICE THEORY (2008), one of the best of those defenses. In that book, Guzman develops an elegant and sophisticated account of 'reputation' and the role it can play in encouraging rational compliance with international law. Based on this account, Guzman makes a powerful case that rational choice theory does support international law’s claims of legal force and can explain how international law works. This essay lays out some of the book’s key contributions to international law scholarship. But this essay also argues that in developing his account of 'reputation,' Guzman has demonstrated the inadequacy of rational choice descriptions of how international law works. This essay lays out three specific critiques of Guzman’s rational choice account: (1) that the account has trouble explaining international practice in areas like human rights, (2) that the account takes too narrow a view of the ways international law 'works,' and (3) that rational choice may be insufficient to explain the force of reputation or to create testable hypotheses of state action. This essay concludes by using Guzman’s account of reputation to suggest a more expansive account of how international law works integrating elements of rational choice, constructivist, and liberal theories.

rational choice, international law

Abstract:
The United States often appears hypocritical in its commitment to International Law. It supports Nuremberg, Yugoslavia, and Rwandan tribunals, but opposes the International Criminal Court. It supports the creation of the United Nations, but seeks unilateral action in Iraq. This Essay explores these seeming contradictions in American stances toward international law. It argues that while such apparent hypocrisy might be explained by mere pragmatism, ideas prevalent in American foreign policy history seem to point in a more dangerous direction, that such divergent actions may actually be informed by a coherent, specifically American conception of international law. In particular, this Essay argues that when International Law is viewed through the prism of American liberal constitutionalism, a specifically American conception of international law, legality, and legitimacy emerges. Further, this Essay argues that if such a conception exists, it poses real challenges for traditional Positivist and Cosmopolitan conceptions of international law. This Essay tentatively argues that to meet such challenges, International Law must be reconceived as a dynamic process of institution building rather than the neutral application of static principles. By focusing on the role of international lawyers in the creation rather than the discovery of international law, we can begin to see a role for international law and the international lawyer in a world of ideology.

Abstract:
This International Decision case comment, the final version of which will be published in Volume 102, No. 4, of the American Journal of International Law (forthcoming), examines the U.S. Supreme Court's decision in Munaf v. Geren, a case arising out of U.S. operations in Iraq and allegations of potential torture in Iraqi custody. In that decision, a unanimous Supreme Court held that the federal courts have jurisdiction under the habeas corpus statute to hear claims brought by American citizens held overseas by American forces "operating subject to an American chain of command, even when those forces are acting as a part of multilateral coalition." In a defeat for the petitioners, however, the Court held that where petitioners are being held in another sovereign's territory for crimes allegedly committed in that territory, federal courts should not interfere by enjoining their transfer to that sovereign. The Court further held that concerns of torture after transfer did not change the result and that such concerns are best assessed and handled by the political branches. This case comment discusses the Court's decision and analyzes its potential impact.

Habeas corpus, Iraq, torture