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Transnational Legal Process: An Evolving Theory and Methodology
Get PDFHarold Koh introduced Transnational Legal Process in 1996 as a constructivist theory of international legal compliance which draws lessons from international legal theory and the discourse between international law and international relations scholarship. This article situates Transnational Legal Process (TLP) within the broader literature on international legal compliance and traces the theory’s evolution over the years, highlighting scholarship which addresses three critical theoretical limitations: (1) insufficient description of the actors and processes of norm internalization; (2) insufficient explanation of why States internalize certain norms; and (3) insufficient identification and description of norm-creation processes. This article uses the legal origins of TLP as orienting points to draw the theory into present debates on legal theory and methodology, before identifying Pierre Bourdieu’s concepts of “habitus” and “bureaucratic field”, as well as the empirical method of social network analysis, as providing fertile ground for future empirical and interdisciplinary work aimed at developing TLP as legal theory and methodology. This work fills a gap in the literature by synthesizing scholarship in disparate sub-fields of legal study that engage with TLP, but often do not speak to one another, and contributes to a more systematic approach to theory testin
Gulf of Guinea and Maritime (In)Security: Musings on Some Implications of Applicable Legal Instruments
Get PDFThe Gulf of Guinea (GoG) is an enormous and diverse region consisting of approximately 6,000 km of coastline extending from Senegal to Angola. It is a maritime area of strategic importance because it is resource-rich with hydrocarbons, fish and other resources. Also, it is important as a vital maritime transit hub. Unlike certain other shipping lanes that have been identified as chokepoints, the GoG, because of its width, is not susceptible to blockades and major shipping accidents. Previously the maritime (in)security in the GoG had not received the same high-profile attention from the international community as the situation in the East African region. However, in recent times, the GoG has overtaken the East African region as one the world’s worst piracy hotspots. As a result of the maritime insecurity in the GoG, unsurprisingly several legal instruments, ranging from UN Security Council resolutions, at the global level, and the Code of Conduct Concerning the Repression of Piracy, Armed Robbery against Ships, And Illicit Maritime Activity in West and Central Africa (the Yaoundé Code) 2013 at the regional level, as well as national legislation at the domestic level, have been adopted to address this situation. This article aims to analyse these legal instruments to unpack certain legal issues that develop from them
High Time for a Change: How the Relationship Between Signatory Countries and the United Nations Conventions Governing Narcotic Drugs Must Adapt to Foster a Global Shift in Cannabis Law
Get PDFSince the early 1970’s, the inclusion of cannabis and its byproducts in the United Nations Single Convention on Narcotic Drugs has mandated a strict prohibition on cultivation and use of the substance, which has led to a largely global practice of criminalization and imprisonment of anyone found to be in its possession. Yet recently, mostly in response to growing public health concerns, countries like Uruguay, Portugal, The Netherlands, Canada, and the United States have enacted laws which seek to decriminalize or even legalize cannabis use and possession. Yet, cannabis remains classified as a Schedule IV narcotic under the Single Convention, a categorization reserved for only the most dangerous of drugs. This article traces the history of cannabis’ inclusion in the international treaties that collectively establish the framework under which cannabis currently regulated across the globe and outlines how the cannabis policies of the aforementioned countries have been enacted in spite of those treaties. The article then analyzes proposed methods of amending the current Conventions, while ultimately suggesting a policy of renunciation and re-accession as the most suitable method for maintaining international treaty compliance in the face of a global rise in efforts to legalize and decriminalize recreational cannabis use
Remedies for Government Breach: Lessons from The United States and a Zone of Appealable Remedies for Southeast Asia
Get PDFThough international investment treaties may supplant domestic contract law in cross-border government contracts, their limited use in Southeast Asia informs the continued importance of clear remedies for a government breach of contract under domestic law. As investment from China’s Belt and Road Initiative continues to flow into the region, private parties require clear rules and remedies when a government breaches a contract. This note argues that the lack of clear and codified public contract law in Southeast Asia presents a substantial risk to private contractors and that the extreme variance in public contract law is detrimental to both parties involved. By utilizing the auspices of the Association of Southeast Asian Nations, Southeast Asian countries should seek the codification of public contract laws and a certain degree of harmonization within a zone of remedies that is appealable to all parties in the event of a government breach. After consulting the learned and unlearned lessons of the United States’ treatment of sovereign immunity and government breach of contract, this note recommends that ASEAN nations enact laws that provide, at the very least, restitution or compensatory damages, but not go as far as to allow an award of specific performance against the government
Putting a Finger on Biometric Privacy Laws: How Congress Can Stitch Together the Patchwork of Biometric Privacy Laws in the United States
Get PDFThe use of biometric identification in the consumer industry has grown immensely over the last decade and is projected to continue growing at an even faster rate. As private entities abandon password-based security systems and opt for the more secure, convenient, and cost-effective method of using biometric data, individuals are worried how that information will be protected. Although the right to privacy has always been valued in the United States, Congress has yet to specifically address biometric privacy. This note sets the legal landscape of privacy law, through the lens of biometric privacy, by surveying four categories of privacy law: (1) Federal privacy laws in general; (2) state privacy laws in general, specifically the California Consumer Privacy Act (CCPA); (3) state biometric-specific privacy laws; and (4) a federal biometric privacy law. The fourth category is what is missing from the current regulatory scheme. This note identifies issues with state biometric privacy laws, including unclear definitions of biometric privacy and Article III standing. Ultimately, this note concludes that a federal biometric privacy law should be modeled after the CCPA, but narrowed to biometric information
A Call to Replace the APA’s Notice-and-Comment Exemption for Guidance Documents
Get PDFSection 553 of the APA requires public “notice-and-comment” before a federal agency issues substantive rules and exempts from these procedures guidance documents that merely offer nonbinding insight and assistance on existing law. The problem of federal agencies using the notice-and-comment exemption to issue legislative rules that are legally binding has garnered considerable attention. Congressional efforts to amend the APA in response have failed and, in turn, variations have been offered on a seemingly simple fix—mandate or encourage agencies to solicit public input before issuing guidance documents. This note characterizes these proposals as overlays on the § 553(b)(A) exemption. The note offers new empirical evidence of the benefits and trade-off of the overlay approach through a case study of a preadoption notice-and-comment mandate for binding guidance documents that Congress enacted for the Federal Transit Administration in 2005. The case study demonstrated that overlays cannot fully address the root problem of agencies circumventing notice-and-comment for binding rules so long as the § 553(b)(A) exemptions remains law. This note calls for Congress to replace the APA exemption with clear direction to agencies on the appropriate circumstances for issuing rules without notice-and-comment and offers four suggestions for such a replacement provision: (1) exempt documents based on their practical impacts, (2) define the characteristics and limits of exempt documents, (3) allow the public to petition an agency to reconsider its designation of a document as exempt, and (4) add teeth to address noncompliance
Redefining the Safe Third Country Exception of the Immigration and Nationality Act in the Wake of Trump
Get PDFThe U.S. Immigration and Nationality Act lays out when an asylum seeker has the right to apply for asylum in the United States. This right is not available, however, when an asylum seeker passes through a designated Safe Third Country. A Safe Third Country is an internationally used concept that, pursuant to an international agreement, requires refugees to seek asylum in the first safe country that they step foot in. As the Safe Third Country exception on the Immigration and Nationality Act stands now, there are no guidelines on how to evaluate whether a country is in fact safe. This allows for any presidential administration to subvert our commonsense notion of what safe is in an effort to reduce asylum claims and appear strong on immigration. Most recently, the Trump administration distorted the Safe Third Country Exception to that end. Drawing on Hungarian Law, Canadian Law, and the United Nations High Commissioner for Refugees, this note proposes that clear guidelines must be woven into the Safe Third Country Exception, so that the United States Attorney General can better determine if a country is in fact safe for asylum seekers. This would better prevent a presidential administration from subverting the idea of what a safe country is, while still allowing Safe Third Country agreements to be humane, effective, and diplomatic tools to distribute asylum claims
TELLING THE STORY ON YOUR TIMESHEETS: A FEE EXAMINER\u27S TIPS FOR CREDITORS\u27 LAWYERS AND BANKRUPTCY ESTATE PROFESSIONALS
Get PDFThis short (approx. 5,000 words) essay, which forms the basis of a keynote address to the Federal Bar Association that I’m doing next month, discusses how much of a lawyer’s embedded assumptions and cognitive errors can come across in something as simple as a time entry on a bill. So much can be revealed about how a lawyer views himself or herself in society and about the lawyer’s relationship with the client that it’s worth examining what we can find when we look at legal bills. One note, though: my writing style is informal and distinctive in that regard (especially when the article forms the basis of a keynote speech), and I like to keep my writing style that way, so if you hate informal writing, my article isn’t likely to be right for you. On the other hand, if you like footnotes that can be amusing, then please read on
