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Customary International Law
(Michigan Journal of International law, 2016)
Contemporary international lawmaking is characterized by a rapid growth of “soft law” instruments. Interdisciplinary studies have followed suit, purporting to frame the key question states face as a choice between soft and ...
International Law and Constitutional Interpretation: The Commander in Chief Clause Reconsidered
(Michigan Law Review, 2007)
The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of ...
The Alien Tort Statute and Federal Common Law: A New Approach
(Notre Dame Law Review, 2010)
Federal courts faced with Alien Tort Statute cases have applied customary international law to some issues and federal common law to others. This binary approach is analogous in certain respects to a Bivens action, with ...
The Captures Clause
(University of Chicago Law Review, 2009)
The Captures Clause of the United States Constitution gives Congress the power to "make Rules concerning Captures on Land and Water." A variety of courts, scholars, politicians and others have recently cited the Clause to ...
Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department
(Virginia Journal of International Law, 2011)
The immunity of foreign states from suit in U.S. courts is governed by a federal statute, the Foreign Sovereign Immunities Act (FSIA). This statute does not apply to the immunity of individual foreign officials, however, ...
The President's Power to Detain "Enemy Combatants": Modern Lessons from Mr. Madison's Forgotten War
(Northwestern University Law Review, 2004)
This article uses three sets of cases from the War of 1812 to illustrate three problems with how modern courts have approached the detention of "enemy combatants" in the United States. The War of 1812 cases show that modern ...
Transnationalizing Public Law
(German Law Journal, 2009)
I am tasked today with talking about transnationalization, in particular the question of
whether public law in the United States is undergoing some process of transnationalization
today. My response, based on the work ...
International Law in Domestic Courts and the Jurisdictional Immunities of the State Case
(Melbourne Journal of International Law, 2012)
National court litigation in Greece and Italy prompted Germany to bring suit before the international Court of Justice (‘ICJ’), resulting in the Jurisdictional Immunities of the State judgment. The history of that litigation, ...
The Future of the Federal Common Law of Foreign Relations
(Georgetown Law Journal, 2018)
The federal common law of foreign relations has been in decline for decades. The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges ...
International Law in the Post-Human Rights Era
(Texas Law Review, 2017)
International law is in a period of transition. After World War II, but especially since the 1980s, human rights expanded to almost every corner of international law. In doing so, they changed core features of international ...