Faculty Bibliography
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The modern world is legalized: legal language, institutions, and professionals are everywhere. But what is law’s power in global life? What does all this legality have to do with hegemony, with hierarchy and inequality, and with the diversity of human experience? What is its history and how does that history matter in world affairs? Above all, what does it mean to think “critically” about law and global affairs? In this poignant and iconoclastic book, two leading scholars take us to the heart of the matter, examining law’s relationship with history, power, and political economy. David Kennedy and Martti Koskenniemi have often inspired each other and are both considered “critical” voices in international law, but they have never explored their similarities and differences as deeply as they do here. Of Law and the World takes the form of a conversation, as the authors reflect on the study of international law, the motivations underlying their research, and the payoffs and limitations of their investigations into law’s role in global affairs. They revisit and renew debates about the past and future of the many legalities that shape our world. Erudite, open-minded, and informed by decades of experience and observation, Of Law and the World is an unflinchingly honest confrontation with humanity’s struggle to live together.
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"Over the last century, North Atlantic legal intellectuals developed the philosophical, doctrinal and institutional tools which strategic actors use everyday around the world to press their interests, defeat their rivals, and consolidate their gains. At the same time, however, they promoted ideas about law in global affairs which make it difficult to see law’s constitutive role in the global distribution of wealth. This chapter explores the interactive history of these two innovative strands before offering an alternative approach to law in global affairs which foregrounds law’s role in political and economic struggle ather than its promise of order, its distributional impact rather than its peace-building or humanitarian potential."
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Professor David Kennedy’s 2018 Montesquieu Lecture considers the role of expert legal knowledge in our political and economic life. As politicians, citizens, and experts engage one another on a technocratic terrain of irresolvable argument and uncertain knowledge, a world of astonishing inequality and injustice is born. Kennedy draws on his experience working with international lawyers, human rights advocates, policy professionals, economic development specialists, military lawyers, and humanitarian strategists to describe the conflicts, unexamined assumptions, and assertions of power and entitlement that lie at the center of expert rule. He explores how we can harness expert knowledge to remake an unjust world.
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David W. Kennedy, Remarks, Lineages of Heterodoxy, Inst. Global Law & Pol’y (IGLP) Conference: Law in Global Political Economy: Heterodoxy Now, Harvard Law School, Cambridge, Mass. (June 2, 2018).
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Remarks, Lineages of Heterodoxy, Inst. Global Law & Pol’y (IGLP) Conference: Law in Global Political Economy: Heterodoxy Now, Harvard Law School, Cambridge, Mass. (June 2, 2018).
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David W. Kennedy, Law, Development, and Distribution, The Role of Law in the Production of Inequality: Anthropological and Historical Perspectives, Rapoport Ctr. for Human Rights & Justice, Univ. Tex. Law Sch., Austin, Tex. (Mar. 30, 2018).
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Law, Development, and Distribution, The Role of Law in the Production of Inequality: Anthropological and Historical Perspectives, Rapoport Ctr. for Human Rights & Justice, Univ. Tex. Law Sch., Austin, Tex. (Mar. 30, 2018).
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David Kennedy, A World of Struggle: How Power, Law and Expertise Shape Global Political Economy (Reprint ed. with Afterword, 2018).
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David W. Kennedy, Remarks, Critical Research in International Law (CRIL): An intensive doctoral retreat, Stockholm Ctr. for Int’l Law & Justice, Stockholm, Swed. (Mar. 11-13, 2018).
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Remarks, Critical Research in International Law (CRIL): An intensive doctoral retreat, Stockholm Ctr. for Int’l Law & Justice, Stockholm, Swed. (Mar. 11-13, 2018).
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David W. Kennedy, Montesquieu Lecture: Law, Expertise and Global Political Economy, Tilburg University, Tilburg, Neth. (Mar. 8, 2018).
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Montesquieu Lecture: Law, Expertise and Global Political Economy, Tilburg University, Tilburg, Neth. (Mar. 8, 2018).
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David W. Kennedy, Remarks, Strategies for Engaging the Global Trade System, Inst. Global Law & Pol’y (IGLP) Research Policy Workshop, Insertion of Argentina in the World: 2025 Vision, Buenos Aires, Arg. (Dec. 13-14, 2017).
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Remarks, Strategies for Engaging the Global Trade System, Inst. Global Law & Pol’y (IGLP) Research Policy Workshop, Insertion of Argentina in the World: 2025 Vision, Buenos Aires, Arg. (Dec. 13-14, 2017).
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David W. Kennedy, Expertise in a World of Struggle, European Media Summit, Lech Zürs am Arlberg, Austria (Dec. 2, 2017).
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Expertise in a World of Struggle, European Media Summit, Lech am Arlberg, Austria (Dec. 2, 2017).
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David W. Kennedy, Remarks, Towards a Heterodox Policy Analytics, Inst. Global Law & Pol’y (IGLP) Policy Workshop, Almsdorf, Austria (Oct. 7, 2017).
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Remarks, Towards a Heterodox Policy Analytics, Inst. Global Law & Pol’y (IGLP) Policy Workshop, Almsdorf, Austria (Oct. 7, 2017).
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David W. Kennedy, A New Stream of International Legal Scholarship, in General Theory of International Law (American Classics in International Law v. 1, Siegfried Wiessner ed., 2017).
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"A World of Struggle reveals the role of expert knowledge in our political and economic life. As politicians, citizens, and experts engage one another on a technocratic terrain of irresolvable argument and uncertain knowledge, a world of astonishing inequality and injustice is born. In this provocative book, David Kennedy draws on his experience working with international lawyers, human rights advocates, policy professionals, economic development specialists, military lawyers, and humanitarian strategists to provide a unique insider's perspective on the complexities of global governance. He describes the conflicts, unexamined assumptions, and assertions of power and entitlement that lie at the center of expert rule. Kennedy explores the history of intellectual innovation by which experts developed a sophisticated legal vocabulary for global management strangely detached from its distributive consequences. At the center of expert rule is struggle: myriad everyday disputes in which expertise drifts free of its moorings in analytic rigor and observable fact. He proposes tools to model and contest expert work and concludes with an in-depth examination of modern law in warfare as an example of sophisticated expertise in action. Charting a major new direction in global governance at a moment when the international order is ready for change, this critically important book explains how we can harness expert knowledge to remake an unjust world."
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This book of essays, written in honour of Professor David Trubek, explores many of the themes which he has himself written about, most notably the emergence of a global critical discourse on law and its application to global governance.
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This volume examines the role of law in economic development. It focuses on China and analyzes how the development policies and institutional characteristics of the emerging Chinese market economy might aid policymakers, in developed and developing countries, to create and reform frameworks to achieve equitable and sustained development.
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The interpenetration of global political and economic life has placed questions of ‘political economy’ on the scholarly agenda across the social sciences. The author argues that international law could contribute to understanding and transforming centre–periphery patterns of dynamic inequality in global political economic life. The core elements of both economic and political activity – capital, labour, credit, and money, as well as public or private power and right – are legal institutions. Law is the link binding centres and peripheries to one another and structuring their interaction. It is also the vernacular through which power and wealth justify their exercise and shroud their authority. The author proposes rethinking international law as a terrain for political and economic struggle rather than as a normative or technical substitute for political choice, itself indifferent to natural flows of economic activity.
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Promotes a global socio-legal perspective that engages with multiple laws and societies and diverse socio-legal systems based on different historical and cultural traditions.
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This volume offers a unique reflection on the historic and contemporary influence of the New Approaches to International Law (NAIL) movement within the context of Europe and America.
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This collection evaluates the crisis of confidence in human rights which underpins understandings of just decision making and liberal democracy.
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"This intellectually rigorous introduction to international law encourages readers to engage with multiple aspects of the topic: as 'law' directing and shaping its subjects; as a technique for governing the world of states and beyond statehood; and as a framework within which several critical and constructivist projects are articulated. The articles situate international law in its historical and ideological context and examine core concepts such as sovereignty, jurisdiction and the state. Attention is also given to its operation within international institutions and in dispute settlement, and a separate section is devoted to international law's 'projects': protecting human rights, eradicating poverty, the conservation of resources, the regulation of international trade and investment and the establishment of international order. The diverse group of contributors draws from disciplinary orientations ranging from positivism to postmodernism to ensure that this book is informed theoretically and politically, as well as grounded in practice"
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This report examines the current efforts in Washington, D.C., to amend the Foreign Corrupt Practices Act (FCPA), a law that forbids U.S.-based companies from bribing foreign officials. Busting Bribery: Sustaining the Global Momentum of the Foreign Corrupt Practices Act argues that these proposed amendments would create loopholes and exceptions so as to drastically alter the effectiveness of the FCPA in combating bribery. Additionally, the report finds that these amendments would halt, and potentially reverse, the worldwide trend toward adoption and enforcement of anti-bribery measures, thus compromising the global fight against corruption.
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It is reasonable for outsiders to wonder whether the Egyptian regime can be changed, just as it was reasonable a month ago to suppose that President Mubarak would be able to manage and contain the demonstrations. These remain early days, the military remains in charge, as it has been for more than fifty years, without institutional checks and balances or mechanisms for accountability. The forces that brought down Mubarak have not yet brought down his regime. They remain fragmented and lacking in institutional structure. Before we dream about agendas for reform, we might well worry whether it is realistic to expect much to change.
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In recent years, enhancing the security and clarity or formality of property rights has become something of an idée fixe among global development policy experts. This is more ideological assertion than careful history, however. Western economies have experienced periods of aggressive industrialization and economic growth with a wide range of different property regimes in place. Throughout the West, property rights have always been embedded in a complex legal fabric which modifies their meaning and qualifies their enforcement. In fact, most proposals for “strong and clear” property rights rest, at least in part, on lay conceptions about the legal order which are simply not warranted. These include the following: that “property rights” have an ideal form which can be disentangled from the warp and woof of social and economic struggle in a society; that “private order,” including property rights, and “public regulation” can and ought to be cleanly separated, the one supporting the market, the other potentially distorting it; that “strengthening” property rights has no distributive implications, if only because property law concerns the “rights” of individuals over things rather than complex relations of reciprocal rights and duties among people with respect to things; that concerns about social uses and obligations are only properly pursued outside the property regime, through social regulation of one or another sort; that in a well functioning market economy, all “private” rights can and will be freely rearranged by market forces, rendering decisions about their initial allocation unimportant; or that the formalization of property rights leads cleanly to both efficiency and growth, eliminating the need for policy judgment about the desirability of alternative uses and distributional arrangements. Each of these six ideas supports the notion that the development of a proper law of property can be accomplished without facing complex questions of social, political and economic strategy. But each is incorrect. Property law is a critical domain for engaging, debating and institutionalizing development policy, but it is not a substitute for strategic analysis and political choice. In this short essay, I review these common, if mistaken, ideas about property rights in the West in light of the Western experience. My objective is to place the strategic choices embedded in any property regime in the foreground and lead one to hesitate before accepting conventional neo-liberal wisdom about the importance of “clear” or “strong property rights” for economic development.
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David W. Kennedy, Doctrine(s): Nouvelles approches du droit international, (Préface d'Emmanuelle Jouannet, Editions Pedone 2009).
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David Kennedy se livre dans ce recueil d'études - pour la première fois traduites en français - à une réflexion critique sur l'évolution du droit international et de la discipline internationaliste. L'ouvrage inclut certains des textes les plus représentatifs de sa pensée, relatifs à l'histoire de la discipline, l'expertise internationale, le droit humanitaire ou encore la gouvernance globale. L'auteur cherche surtout à montrer que la question aujourd'hui n'est plus seulement de se battre pour consolider les avancées du droit international mais d'en comprendre aussi les dérives et les effets pervers. Le problème n'est plus tant celui des objectifs à réaliser par le biais du droit international comme expertise professionnelle que celui de la possibilité de mettre en oeuvre les règles internationales en échappant aux illusions suscitées par le rôle des experts, les bonnes intentions humanitaires ou les faux consensus de tous ordres.
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The workshop from which this volume emerged reflected in a variety of ways on constitutionalism as a way of thinking about global governance. In the past few years, many have experimented with the metaphor of a constitution to describe the legal order beyond the nation-state. We have been encouraged to think of the UN Charter as a constitution, particularly when it comes to the use of force. Others have seen a constitutional moment in the emergence of human rights as a global vernacular for the legitimacy of power. Some trade scholars have proposed that we see the World Trade Organization (WTO) as a constitutional order. The WTO has rendered the General Agreement on Tariffs and Trade (GATT) more properly legal, strengthening dispute settlement and deepening engagement with national legal regulations. If, as Ernst-Ulrich Petersmann urges, we were to add human rights to what John Jackson famously termed the WTO's substantive legal “interface” between national regulatory systems, we might well see the result as a constitution, at least to the extent that we are willing to see the legal regime of the European Union in constitutional terms. At the same time, others find the key to world public law in the relations among national constitutions. Comparative constitutional law is front and center in their accounts of how we are governed at the global level.
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One spring more than twenty years ago, David Kennedy visited Ana in an Uruguayan prison as part of the first wave of humanitarian activists to take the fight for human rights to the very sites where atrocities were committed. Kennedy was eager to learn what human rights workers could do, idealistic about changing the world and helping people like Ana. But he also had doubts. What could activists really change? Was there something unseemly about humanitarians from wealthy countries flitting into dictatorships, presenting themselves as white knights, and taking in the tourist sites before flying home? Kennedy wrote up a memoir of his hopes and doubts on that trip to Uruguay and combines it here with reflections on what has happened to the world of international humanitarianism since.
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Este ensayo sitúa a Lon Fuller entre los pioneros del estilo de razonamiento jurídico de posguerra, preocupado con el equilibrio de diversos propósitos y compromisos éticos en conflicto que se consideran inmanentes en los materiales jurídicos. Enmarca, asimismo, a Lon Fuller como una figura importante en dos líneas narrativas de la historia del pensamiento jurídico estadounidense. En la primera de ellas, Fuller contribuyó con interesantes e importantes aportaciones a la ecléctica caja de herramientas del razonamiento jurídico contemporáneo. La segunda narrativa posee más conflicto y drama. Fuller fue parte de una generación de académicos que desplazó los métodos analíticos de sus predecesores con un nuevo pensamiento. Una generación que sería, posteriormente, atacada y despreciada, a pesar de que muchas de las contribuciones argumentativas que él y sus compañeros introdujeron calaron en el trasfondo de la conciencia jurídica cotidiana.
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"The Secretary-General of the United Nations is a unique figure in world politics. At once civil servant, the world's diplomat, lackey of the UN Security Council, and commander-in-chief of up to a hundred thousand peacekeepers, he or she depends on states for both the legitimacy and resources that enable the United Nations to function. The tension between these roles - of being secretary or general - has challenged every incumbent. This book brings together the insights of senior UN staff, diplomats and scholars to examine the normative and political factors that shape this unique office with particular emphasis on how it has evolved in response to changing circumstances such as globalization and the onset of the 'war on terror'. The difficulties experienced by each Secretary-General reflect the profound ambivalence of states towards entrusting their security, interests or resources to an intergovernmental body."--Publisher's description.
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Warfare has become a legal institution. Law organizes and disciplines the military, defines the battlespace, privileges killing the enemy, and offers a common language to debate the legitimacy of waging war – down to the tactics of particular battle. At the same time, law is no longer a matter of firm distinctions –combatant and non-combatant, war and peace. It has become a flexible and strategic partner for both the military and for humanitarians seeking to restrain the violence of warfare. The relationship between modern war and modern law is made all the more complex by today’s asymmetric conflicts, and by the loss of a shared vision about what the law means and how it should be applied. Nevertheless, when law works well, it can be a strategic ally and provide a framework for talking across cultures about the justice and efficacy of wartime violence. When it works poorly, all parties feel their cause is just and no one feels responsible for the deaths and suffering of war. Kennedy explores the ways in which good legal arguments can make people lose their moral compass and sense of responsibility for the violence of war.
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David W. Kennedy, One, Two, Three Many Legal Orders: Legal Pluralism and the Cosmopolitan Dream, 31 N.Y.U. Rev. L. & Soc. Change 641 (2007).
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"Institutional and political developments since the end of the Cold War have led to a revival of public interest in, and anxiety about, international law. Liberal international law is appealed to as offering a means of constraining power and as representing universal values. This book brings together scholars who draw on jurisprudence, philosophy, legal history and political theory to analyse the stakes of this turn towards international law. Contributors explore the history of relations between international law and those it defines as other - other traditions, other logics, other forces, and other groups. They explore the archive of international law as a record of attempts by scholars, bureaucrats, decision-makers and legal professionals to think about what happens to law at the limits of modern political organization."
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This book is a collection of essays that identify and analyze a new phase in thinking about the role of law in economic development and in the practices of development agencies that support law reform.
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The article discusses the parallelism and contrasting thoughts of two papers written by Srinivas Aravamudan and Antony Anghie about sovereignty in its contextual relation to politics. The authors define sovereignty as something that which take governance and where the power to decide resides, suggesting further that these are the particular form that which politics take. They both advance the idea that these form changes owing to a particular moment and dependent on the needs of the time.
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Modern war is law pursued by other means. Once a bit player in military conflict, law now shapes the institutional, logistical, and physical landscape of war. At the same time, law has become a political and ethical vocabulary for marking legitimate power and justifiable death. As a result, the battlespace is as legally regulated as the rest of modern life. In Of War and Law, David Kennedy examines this important development, retelling the history of modern war and statecraft as a tale of the changing role of law and the dramatic growth of law's power. Not only a restraint and an ethical yardstick, law can also be a weapon--a strategic partner, a force multiplier, and an excuse for terrifying violence.
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David W. Kennedy, Modern War and Modern Law, 12 Int'l Legal Theory 55 (2006).
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