Faculty Bibliography

President Bush's Military Order establishing Military Commissions was greeted with impassioned criticism in the press, the legal academy, and Congress. Sixty years earlier, in the midst of World War II, President Roosevelt established a Military Commission to try eight Nazi agents who had covertly entered the United States to commit acts of sabotage and terrorism. Although the Nazis failed in their mission, their aims were similar to those of the 9/11 terrorists. And yet Roosevelt's creation of the Commission, and the subsequent secret trial of the Nazi saboteurs, received widespread praise from the same institutions that protested Bush's action. Our purpose in this paper is not to investigate, except in passing, issues of law and policy. We instead explore three other questions: What explains the dramatically different reactions? What lessons do the different reactions offer about changes, over time, in the legal culture and in culture in general? What lessons do they offer about the evolution of protections for civil liberties in general and during wartime in particular? The most tempting, and common, explanation for the different reactions is that there is a significant difference in law - that President Roosevelt's Order stands on much firmer legal ground than President Bush's order. We show that this and related explanations are weak. The different reactions are best explained in terms of two large differences between the United States of 1942 and the United States of 2001. In 1942, the nation perceived a far greater threat to its own survival; for this reason Americans were far less solicitous of the interests of defendants thought to have participated in a war effort against the United States. But this explanation is inadequate by itself. It must be supplemented with an understanding of the large-scale, post-1960s shift in American attitudes, involving decreased trust of executive authority and military authority. Our general claim is that with respect to these issues, the legal culture is fundamentally different from what it was before, so much so that many previous practices are barely recognizable. We use the different reactions to the Bush and Roosevelt Military Orders as a way of obtaining a window on this shift. After making out these claims, we conclude with some general reflections on the evolution of civil liberties protections during wartime. In particular, we identify a mechanism behind the trend toward greater protection for civil liberties during wartime, namely: A judgment, in hindsight, that past civil liberty intrusions were unnecessary or excessive. We also suggest that this trend is, in a way, an accident of America's distinctive history.

Critics of realist and rational choice approaches to international law argue that if nations were motivated entirely by power or self-interest, their leaders would not make moral and legal arguments because no one would believe them. Thus, the prevalence of moral and legal rhetoric on the international stage refutes the behavioral assumptions of realism and rational choice. This paper argues that even if nations are not motivated by a desire to comply with morality or law, the use of moral and legal arguments could occur in equilibrium. Signaling and cheap talk models show that nations may engage in talk in order (1) to deflect suspicion that they have unstable political systems or adversarial interests, and (2) to coordinate when gains from coordination are available. International talk is often moral and legal because the obligational vocabulary of moral and legal dispute between individuals is also useful for purely amoral strategic interactions when cooperation and coordination are involved. The existence of moral and legal rhetoric in international relations is the result of strategic incentives, not of the desire to comply with morality or law.

This essay defends the constitutional validity of the Military Order issued by President Bush on November 13, 2001, which authorizes the establishment of military commissions to try certain non-citizens involved in terrorism. The essay begins by describing the ways in which military commissions have been used throughout U.S. history. It then explains why President Bush had statutory authority to issue the Military Order, and why he probably also had independent constitutional authority to do so as Commander in Chief. Although the Order was not preceded by a congressional declaration of war, the essay argues that such a declaration is not constitutionally required in order for the President to exercise his constitutional or statutory war powers, including his power to establish military commissions. Finally, the essay argues that the September 11 terrorist attacks, to which the Order was a response, violate the laws of war and therefore fall within the jurisdiction of military commissions.

In two earlier articles, the tools of game theory were used to sketch a positive theoretical account of customary international law ("CIL"). This theory rejected as question-begging the usual explanations of CIL based on legality, morality, opinio juris, and related concepts. It was argued instead that CIL emerges from nations' pursuit of self-interested policies on the international stage. This approach helps explain many overlooked features of CIL, including how CIL originates and changes, why the content of CIL tracks the interest of powerful nations, and why nations change their views of CIL when their interests change. Finally, the practices associated with four supposedly well-settled rules of CIL were examined, and it was concluded that this theory better explained these practices than competing theories.

A remote cross-border search takes place when persons in one nation use computer networks to explore data on computers in another nation. It is increasingly clear, especially after the September attack, that remote-cross border searches by public officials will be an important tool in the fight against cybercrime and cyberterrorism. Many commentators argue that cross-border searches violate the territorial sovereignty of the country where the data is located. This essay argues that such searches are consistent with international law principles of enforcement jurisdiction. It does not argue that there will be no limits on such searches, but rather that such limits are not deducible from norms of territorialism. The limits on remote cross-border searches will emerge from a messy process of cross-border search and retaliation, as nations adjust themselves to the changed circumstances of the Internet. In addition to arguing in support of these conclusions, the essay tries to shed light on the relationship between technological change and the evolution of jurisdictional concepts.

The essay defends the U.S. from criticisms from the human rights community for its failure to make international human rights treaties a source of law in the domestic realm. The author explains the legal validity of the U.S. practice of not integrating the International Covenant of Civil and Political Rights (ICCPR) into the domestic realm under both international law and domestic constitutional law. A background of the ICCPR is also presented as well as its advantages and disadvantages for the U.S.

This paper examines the problem of statutory foreign affairs preemption. There are two related interpretive issues. One concerns the proper interpretive default presumption. Should preemption analysis indulge a presumption in favor of the federal government's strong national interest in conducting foreign affairs? Should it instead be biased to protect traditional state prerogatives? Or should no presumption attach in either direction? I argue that neither an interpretive canon favoring federal foreign affairs interests, nor one favoring state interests, is warranted in this context. Considered separately, each canon rests on implausible institutional and empirical assumptions. When a foreign relations statute touches on traditional state prerogatives, both canons are implicated, and both lose coherence. The prudent course is for courts to apply "ordinary" principles of preemption without any presumption in favor of state or federal law, even when they think the statute concerns foreign affairs. Of course, courts have an array of "ordinary" preemption doctrines at their disposal even after they have resolved the default presumption issue. The second issue, therefore, is: Which preemption doctrine(s) should they apply in the foreign relations context? When a case involves a state law that appears to implicate foreign relations, options for preemption include express preemption, conflict preemption, obstacle preemption, field preemption, dormant commerce clause preemption, dormant foreign affairs preemption, and the federal common law of foreign relations. These doctrines can be compared along two dimensions: (a) the degree to which the political branches have spoken to the preemption issue, and (b) the extent to which preemption doctrines require courts to engage in an independent assessment of the state law's effect on U.S. foreign relations. I argue that, for reasons of institutional competence and political process, and because of the waning of the domestic-foreign affairs distinction, courts should engage in minimalist statutory foreign affairs preemption. They should eschew independent judicial foreign policy analysis, and preempt state law only on the basis of policy choices traceable to the political branches in enacted law. This, I argue in the last Section of the paper, is precisely what the Supreme Court did in its recent decision in Crosby v. National Foreign Trade Council, 120 S Ct 2298 (2000).

This article analyses the conflicts-of-law problems that supposedly arise from the fact that every nation can unilaterally regulate every Internet transaction. It argues that the threat of multiple national regulation of Internet transactions is significantly exaggerated. It then examines a more serious problem: the spillover effects from unilateral national regulation. These spillovers do not affect the legitimacy of unilateral regulation, but they might argue for public and private harmonization strategies to eliminate the spillovers. Unfortunately, the prospects for such harmonization are generally dim in many contexts. This means that unilateral national regulation will continue to be a primary vehicle of Internet regulation - a prospect that is not nearly as destructive of the Internet's future as conventional wisdom suggests.

This article presents a theory of customary international law ("CIL") that seeks to sort out the many well-known difficulties with standard accounts of CIL. The theory uses simple game theoretical concepts to explain how what we call CIL arises, why nations "comply" with CIL as commonly understood, and how CIL changes. This theory differs from the standard account of CIL in several fundamental respects. It rejects the usual explanations of CIL based on opinio juris, legality, morality, and related concepts. States do not comply with norms of CIL because of a sense of moral or legal obligation; rather, their compliance and the norms themselves emerge from the states' pursuit of self interested policies on the international stage. In addition, the behaviors associated with CIL do not reflect a single, unitary logic. Instead, they reflect various and importantly different logical structures played out in discrete, historically contingent contexts. Finally, the theory is skeptical of the existence of multilateral behavioral regularities that are typically thought to constitute CIL. The article tests the theory using case studies from four traditional areas of CIL: neutrality, diplomatic immunity, prize, and maritime jurisdiction. We find that most purported rules of CIL reflect pure coincidence of interest, rather than international cooperation, and that the rest are best explained as the outcome of repeated bilateral prisoner's dilemmas or coercion analogous to the behavior of the monopolist in predatory pricing games. We conclude by examining the implications of our analysis for understanding the role of CIL in domestic constitutional arrangements, the function of international treaties and international organizations, and the status of modern international human rights law.

The British House of Lords recently considered whether Augusto Pinochet was entitled to immunity from arrest and possible extradition to Spain for human rights abuses allegedly committed during his reign as Chile?s head of state. In its second decision in the case (after the first one was vacated due to a conflict of interest), the House of Lords concluded that Pinochet was not entitled to immunity for acts of torture and related conduct committed after Britain?s 1988 ratification of an international convention against torture. In addressing this immunity issue, the parties and judges in the Pinochet case looked closely at the large and growing body of U.S. case law involving civil suits against foreign officials for alleged human rights abuses committed in foreign countries. In this article, we in effect do the opposite: we assess how the Pinochet decision might be relevant to international human rights litigation in U.S. courts. The article focuses on three issues in particular. It first considers whether developments in international human rights law limit the scope of the domestic immunity available to foreign governments and officials. The House of Lords held that these developments did limit the scope of Pinochet?s immunity from criminal process in Great Britain. In the United States, however, the political branches and the federal courts have, with narrow and specific exceptions, declined to permit developments in international human rights law to limit the scope of foreign sovereign immunity from civil process. As we explain, the adverse political consequences that might flow from otherwise-unfettered private lawsuits against foreign officials for human rights abuses justify the broader immunities available in U.S. domestic courts. The second issue is the legitimacy of a U.S. counterpart to the British rule, invoked by some of the Law Lords in Pinochet, that customary international law ("CIL") is part of the British common law. In the United States, plaintiffs and scholars have argued for a similar rule of incorporation to justify the domestic application of substantive international human rights law. As we explain, however, the constitutional implications of an automatically-incorporated CIL are substantially different for the United States than they are for Great Britain. And, when faced with claims of international immunity, such as the claim of head-of-state immunity that was at issue in Pinochet, U.S. courts do not apply the CIL governing this immunity directly. Instead, they seek and follow political branch authorization. The failure by courts to apply CIL as automatically-incorporated common law in this context, involving traditional rules of CIL that are a central component of international relations, casts substantial doubt on the conventional wisdom that international human rights law should be applied as self-executing federal common law. Finally, the article defends the United States? general resistance to the domestic application of international human rights law. This resistance has two dimensions. First, the United States does not apply international human rights law to domestic officials. This approach is justified by the profound uncertainty regarding the source and content of international law, and the general adequacy of U.S. domestic human rights protections. Second, the United States permits the domestic application of international human rights law against foreign governmental officials, but only in very narrow contexts. This limited embrace of international human rights law reflects a legitimate concern with giving private citizens, and unelected judges, too much influence over U.S. foreign relations. As we explain, both of these justifications for resistance to the domestic application of international human rights law ? the vagueness of international norms and the danger that private lawsuits will interfere with foreign relations ? find support in the House of Lords? decision in Pinochet.

This article analyzes familiar foreign relations law doctrines through the lens of rules and standards. The main, but not exclusive, focus is on the political question doctrine, the act of state doctrine, and dormant foreign affairs preemption. Prior to the 1960s, courts applied these doctrines in a highly formalistic fashion. Beginning in the 1960s, courts embraced a more instrumental and functional approach to these doctrines. I call this approach the foreign relations effects test. Under the foreign relations effects test, federal courts in their discretion identify and assess the foreign relations interests of the United States and make predictions about the effect of certain acts (by a federal court or a state) on these relations. They typically do this in the absence of guidance from the political branches. On the basis of such an independent foreign policy analysis, courts accommodate these interests through abstention, special interpretive canons, federal common law, or preemption as they best saw fit. The article has two main aims. The first is to identify and analyze the foreign relations effects test. The test rests on questionable assumptions about the nature of foreign relations law and the proper role of federal courts. It purports to protect political branch prerogatives in foreign relations, but it has the ironic consequence of enhancing the federal courts' power to make foreign relations law at the expense of the political branches. The second aim of the article is to identify and analyze a "new formalism" that has, in recent years, replaced the foreign relations effects test. The new formalism is not a return to conceptualism. Nor is it an attempt to mask value judgments by reference to legal materials. The new formalism is a pragmatic approach to judicial foreign relations doctrines based on analysis of comparative institutional competence and likely political branch response to various judicial decision-making strategies. The new formalism rejects the case-by-case judge-made foreign relations effects test. It aims to protect political branch prerogatives in non-constitutional foreign relations cases through the use of rules rather than standards. The best of these rules encourage the federal political branches with superior competence and a superior democratic pedigree to clarify the content of U.S. foreign relations law.

The international law community has heavily criticized the United States’ handling of the Breard case. These criticisms are understandable. Perhaps because of the rush of time, the explanations by the Department of Justice and the Supreme Court for failing to stop Breard’s execution brushed over important issues of domestic and international law. In addition, Virginia’s decision to proceed with the execution, and the federal Government’s decision not to block it, may have reflected insufficient respect for international law and institutions. These decisions may also adversely affect U.S. relations with other nations and weaken consular protection of U.S. citizens abroad. These criticisms, however, tell only part of the story. In particular, they do not consider countervailing considerations grounded in the Constitution’s allocation of authority between the federal and state governments.

This article discusses the fundamental question of whether the state can regulate cyberspace that was raised when the Supreme Court partially invalidated the Communications Decency Act on First Amendment grounds in the 1997 case of Reno v. ACLU. Professor Goldsmith challenges three specific errors made by those who are skeptical as to whether the government can regulate cyberspace: (1) their overstatement of the differences between cyberspace transactions and other transnational transactions; (2) their failure to recognize the distinction between default laws and mandatory laws; and (3) their underestimation of the potential of traditional legal tools and technology to resolve the multijurisdictional regulatory problems implicated by cyberspace.

Many scholars believe that customary international law (CIL) has the status of self-executing federal common law, to be applied by courts in the United States without any need for it to be enacted or implemented by Congress. In an article last year, we argued that this view lacks historical support and is in substantial tension with political branch enactments as well as broader constitutional principles of separation of powers, federalism, and representative democracy. We concluded that CIL should not be treated as federal law in the absence of authorization from the federal political branches. In the May 1998 issue of the Harvard Law Review, Professor Harold Koh argues that our analysis and conclusion are "radical," "utterly mistaken," and "bizarre." In this response to Koh's article, we focus on the four central errors in Koh's analysis: (a) its mistaken use of history; (b) its conflation of the traditional CIL that regulates international relations with the new CIL of human rights that regulates the way a nation treats its citizens; (c) its unjustifiably broad conception of the common law powers of federal courts; and (d) its unwarranted assumption that all of international law must be incorporated into domestic law.

Conventional wisdom holds that there is a connection between (a) the jurisprudential commitment to legal positivism expressed in Erie R.R. v. Tompkins, and (b) Erie's holding that the common law powers of federal courts exercised in Swift v. Tyson are unconstitutional. In this essay we analyze and challenge this conventional wisdom. The conventional wisdom is sometimes expressed as an historical connection between beliefs about positivism and Erie's overruling of Swift. We think this historical claim lacks affirmative support, overlooks significant evidence to the contrary, and misleadingly views Erie's pre-history through the distorting lens of Holmes' dissents. Other times the conventional wisdom is expressed as a conceptual or normative connection between the truth of positivism and Erie's holding. We think these contentions too are wrong. Our claim here is one of irrelevance: Erie's commitment to legal positivism is conceptually and normatively independent of its constitutional holding. Legal positivism is a general theory about the nature of law. Even if true, it has no implications for the allocation of authority between the state and federal governments. This argument shows that Erie is not a decision about the nature of law, but rather reflects a particular time-bound set of constitutional and policy priorities. It helps to explain why some recent philosophical attacks on Erie are groundless. It demonstrates that the many outstanding mysteries about the practical implications of Erie's holding cannot, as many think, be resolved by recourse to legal positivism. And it presents a cautionary lesson about the dangers that inhere in attempting to derive constitutional conclusions from theories about law.

This article responds to three papers in a symposium on Internet regulation. The articles all argue that the Internet is a novel phenomenon that promises to transform legal regulation. My main claim is that each article illustrates a fallacy that pervades the Internet regulation literature. An article by David Post and David Johnson offers a normative argument for governmental non-regulation of the Net. But their argument, like many arguments about jurisdiction over Internet transactions, erroneously assumes that cyberspace is a place hermetically separated from the "real" world. Dan Burk's article, which analyzes the Internet's effect on national copyright regulation, rests on a common but incomplete understanding of how nations regulate transnational transactions. Henry Perritt argues that the Internet will strengthen international law. This argument exemplifies the Internet literature's unjustified optimism about the promise of cheap, plentiful information. I contend that all three articles err because of an obsessive focus on what is new about the Internet, at the expense of what is old about it.

In the last twenty years, a consensus has developed among courts and scholars that customary international law has the status of federal common law. We label this consensus the "modern position." Courts have endorsed the modern position primarily to support their conclusion that international human rights lawsuits between aliens "arise under" the laws of the United States for purposes of Article III of the Constitution. Scholars have pushed the consequences of the modern position further by arguing that customary international law preempts inconsistent state law under the Supremacy Clause, binds the President under the Take Care Clause, and even supersedes prior inconsistent federal legislation. In this Article, we question the modern position's historical validity, and show that its recent rise to orthodoxy has been accompanied by little critical scrutiny. We then question contemporary arguments for the modern position and show how these arguments depart form basic understandings about American representative democracy, federal common law, separation of powers, and federalism. We conclude that, in the absence of authorization by the federal political branches, customary international law should not have the status of federal law. This conclusion requires less change in judicial practice than might commonly be thought. Nonetheless, the story of the modern position's rise and continued influence presents cautionary lessons for a democratic society increasingly governed by international law.

For situations where the forum selection clause can make all the difference, this book is invaluable. The text shows how parties can mitigate the effects of concurrent jurisdiction ex ante through the use of forum selection clauses in arbitration agreements, and also explains the role of provisional and protective measures in the regulation of forum selection and judicial doctrines that directly regulate "improper" forum selections.