Legal Theory Blog

von Bernstorff on Kelsen on Judicial Law-Making by International Tribunals

Jochen von Bernstorff (Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Comparative Public Law and International Law) has posted Hans Kelsen on Judicial Law-Making by International Courts and Tribunals: A Theory of Global Judicial Imperialism? (European Society of International Law (ESIL) 2015 Annual Conference (Oslo)) on SSRN. Here is the abstract:

This paper examines Hans Kelsen's theory of international adjudication and its political implications in the context of Kelsen's post-war calls for compulsory jurisdiction. It defends Kelsen's position on judicial law-making against claims by scholars such as Hardt and Negri that it amounts to a theory of 'judicial imperialism'. The paper, to finish, examines the ramifications of Kelsen's theory of compulsory jurisdiction in times of fragmentation.

Almqvist on European Judges & Cultural Diversity

Jessica Maria Almqvist (Universidad Autónoma de Madrid - Faculty of Law) has posted Global Judicial Governance of Cultural Diversity: The Role of the European Judge (European Society of International Law (ESIL) 2015 Annual Conference (Oslo)) on SSRN. Here is the abstract:

How to manage a growing cultural and religious diversity with its origin in human mobility across the globe is a pressing theme in Europe. A process of shrinking tolerance of diversity in favour of the imposition of prohibitions of certain acts grounded in culture is now observed. Both female genital mutilation involving unjustified violence against children and women and other cultural practices believed to be oppressive, such as the full-face Islamic veil in public places, have been criminalized. This development prompts the question about the role of European judges in the enforcement and review of these bans. More generally, it brings into focus the prospects of judicial governance in times of diversity, whether it is to provide justice in individual cases, protect fundamental rights, or promote transparency in law-making processes. In this light, the aim of this paper is to examine the nature and degree of European judicial engagement with cases involving law-breaking depending on cultural differences. Of main interest are the challenges currently facing European judges in the process of judging and sanctioning the new crimes as well as in the performance of judicial review.

Feinman on the Restatement of the Law of Liability Insurance

Jay M. Feinman (Rutgers Law School) has posted The Restatement of the Law of Liability Insurance as a Restatement (68 Rutgers University Law Review 1 (2015)) on SSRN. Here is the abstract:

This is an Introduction to volume 68, issue 1 of the Rutgers University Law Review which published papers from a conference on the American Law Institute’s Restatement of the Law of Liability Insurance held on February 27, 2015 at Rutgers Law School in Camden, New Jersey. Sponsored by the Rutgers Center for Risk and Responsibility and co-sponsored by the Institute for Professional Education, the conference engaged academics and practicing lawyers in a discussion of the issues raised by the Restatement.

This Introduction first describes the articles in the symposium, the topics into which they fall, and the papers of other speakers who participated in the conference. Because only a few months prior to the conference the ALI Council had changed the project from a Principles project into a Restatement, many participants framed their analysis in light of the project’s new status as a Restatement. Part II of the Introduction highlights this feature of the articles and discusses the nature of a Restatement and the ALI process that produces Restatements.

The concept of “Restating” the law with a capital “R” has always been controversial, in concept and in application. This Introduction offers four propositions about Restatements, using the Restatement of the Law of Liability Insurance as an illustration: A. Restatements address easy cases and hard cases; B. Precedent matters for a Restatement; C. A Restatement is about weighing, not counting; D. A Restatement is a product of the ALI process.

Program Announcement: Originalism Boot Camp at Georgetown Law

The Center for the Constitution at Georgetown Law will host the Originalism Boot Camp from May 23-27 of 2016.  This is a program for current law students and recent graduates.  Here are some the highlights:

• Up to twenty accepted applicants will receive a $3,000 honorarium for their participation in the Summer Boot Camp. To receive the honorarium, participants must attend all five days of the seminar.  The Georgetown Center for the Constitution will cover travel costs and provide housing for non-resident participants. Travel will be arranged with the assistance of Georgetown Law’s travel agent.
• Faculty includes: Randy E. Barnett, Lawrence Solum, William Baude, Laura Donohue, Phillip Hamburger, Sai Prakash, and Michael Rappaport.
• Students will meet with Justice Antonin Scalia and Justice Clarence Thomas at the Supreme Court.  Also lunch discussions with Judge Diane Sykes of the U.S. Seventh Circuit Court of Appeals and with Attorney General Ed Meese.  Panel discussion with Supreme Court litigators.
• Comprehensive introduction to originalist constitutional theory and practice.

Please submit your résumé, transcript, and a brief (250 word) statement of interest by March15, 2016. Applications will be accepted on a rolling basis, with priority for honoraria given to early applicants, and may be submitted to Alexa Gervasi at [email protected]. The statement of interest should explain how you would be benefited by participation in the Boot Camp.

You can download the program brochure at this link:

https://www.law.georgetown.edu/academics/centers-institutes/constitution/upload/FinalBrochure.pdf

Hope to see you there!

Tzeng on Arbitration for Nuclear Non-Proliferation Agreement Disputes

Peter Tzeng (Yale Law School) has posted Nuclear Arbitration: Interpreting Nonproliferation Agreements (Nuclear Law Bulletin, Vol. 2015/1, No. 95, pp. 41-67) on SSRN. Here is the abstract:

At the core of the nuclear non-proliferation regime lie international agreements, such as the Nuclear Non-proliferation Treaty, nuclear co-operation agreements and nuclear export control agreements. States, however, do not always comply with their obligations under these agreements. In response, this article proposes nuclear arbitration as an alternative solution to the non-compliance problem.

 

Reeves & Wallace on Modern Weapons and the Law of Armed Conflict

Shane R. Reeves and David A. Wallace (United States Military Academy and United States Military Academy) have posted Modern Weapons and the Law of Armed Conflict (U.S. Military Operations: Law, Policy, and Practice 41-66 (Corn, VanLandingham, & Reeves eds. Oxford University Press) 2015) on SSRN. Here is the abstract:

This chapter begins with a brief discussion of the history of efforts to regulate permissible weapons and munitions. As the increasingly sophisticated nature of weapons law is inextricably linked to this history, Part II provides important context for understanding this component of the law of armed conflict. The framework of the law of weaponry and the principles for regulating the means of warfare are considered in Part III. Part IV discusses the process for determining whether a weapon is lawful and allowed in military operations. Part V concludes that, notwithstanding the claims of some critics, weapons law is sufficiently robust and pliable to regulate current and emerging means of war.

Doelle on the Paris Climate Agreement

Meinhard Doelle (Dalhousie University - Schulich School of Law) has posted The Paris Agreement: Historic Breakthrough or High Stakes Experiment? (Forthcoming, Special Issue: 6(1-2) Climate Law (2016)) on SSRN. Here is the abstract:

This paper provides an overview of the Paris Climate Agreement and assesses its critical elements. It reviews its key elements, including mitigation, adaptation, loss & damage, finance, transparency, stock take, and compliance.

Van Overwalle on Gene Patents & Human Rights

Geertrui Van Overwalle (Leuven University - Center for IT and IP Law) has posted Gene Patents and Human Rights (in Intellectual Property Law and Human Rights. Third edition, Paul L. C. Torremans (ed.), Kluwer Law International, 2015, 871 – 914) on SSRN. Here is the abstract:

Over the last decade, the relationship between intellectual property rights (IPRs) and human rights has gained wide academic attention. In this expanding stream of research, scholars have also started to explore the particular relationship between patent law and human rights law in more depth. The present paper examines a specific theme within that research stream, and focus on the interplay between patent law, as applied to human genes and genetic diagnostic methods, and human rights.

Cohen, Gurun, & Kominers on Empirical Study of Patent Trolls

Lauren Cohen, Umit G. Gurun and Scott Duke Kominers (Harvard Business School, University of Texas at Dallas - Naveen Jindal School of Management and Harvard University) have posted Empirical Evidence on the Behavior and Impact of Patent Trolls: A Survey on SSRN. Here is the abstract:

We survey the empirical literature on non-practicing entity (NPE) litigation behavior and its consequences. We document both aggregate trends and cross-sectional differences amongst various types of NPEs. Survey evidence illustrates a number of ways in which NPEs can potentially act opportunistically, and indicates at least some instances and consequences of observed NPE opportunism. Large-sample empirical work has recently begun corroborating and amplifying the findings from survey evidence. NPEs on average behave as "patent trolls." Indeed, NPEs hold and frequently litigate patents that are likely to be at least partially invalidated; moreover, NPEs, target cash irrespective of its relation to alleged infringement. Cash-targeting is neither the main driver of practicing entity (PE) intellectual property (IP) litigation, nor of non-IP litigation against publicly traded firms. The empirical evidence suggests, however, that not all NPEs exhibit trolling behavior -- the cash-targeting observed in the data is primarily the behavior of large patent aggregators, rather than small inventors. NPE patent trolling has a real negative impact on targeted firms, without any increase in innovation, technology transfer, or other counterbalancing benefits measured thus far.

Tzanakopoulos on English Courts & the Development of International Law

Antonios Tzanakopoulos (University of Oxford - Faculty of Law) has posted The Influence of English Courts on the Development of International Law (CONTEMPORARY PERSPECTIVES ON BRITISH INFLUENCES ON INTERNATIONAL LAW, Robert McCorquodale and Jean-Pierre Gauci, eds, Martinus Nijhoff Publishers, Forthcoming) on SSRN. Here is the abstract:

This contribution does not aim to quantify the influence of English courts on the development of international law, but rather to highlight their contribution in that development by focusing on important decisions on the law of immunity and on UN Law and the law of international organisations, and by referring to further notable decisions in other areas of international law. This is done against the background of an understanding of domestic courts as 'agents' of international law development through instigation, reaction, and approval, which is also explained in the paper.