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ABILA Keynote Address: Beyond International Law? A Dangerous Time
Get PDFIn this keynote address for the 2023 International Law Weekend conference of the American Branch of the International Law Association (ABILA), I first address the dangers of the conference theme “beyond international law” at a time when challenges to international law and institutions increase and aim to constrain international law’s normative force. We have been here before. The world today recalls that of the interwar period, a time of growing economic insecurity and inequality that helped to catalyze the rise of authoritarian movements. During that period, Carl Schmitt was a leading legal theorist who eventually became a member of the Nazi party, but who also influenced the far left, as the right and left found a common enemy in the democratic Weimar Republic. In the United States, the legal realist movement arose with a different response to the economic and social challenges of that period. I foreground three interacting components of legal realism that will be central if we are to think beyond international law in an effective way today: Deweyan pragmatism, empiricism, and experimentalism. I apply them to transnational problems, noting how international law is part of broader transnational legal ordering processes. I show how this approach is critical for responding to transnational challenges, focusing particularly on climate change
Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition
Get PDFIn three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.
These cases raise important questions about the Court’s approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of Constitutional Pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of Public Meaning Originalism?
Part I of this Article elucidates the constitutional concepts of history and tradition. Part II lays out four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose, (2) as modalities of constitutional argument within a constitutional pluralist framework, (3) as a novel constitutional theory, which we call “Historical Traditionalism,” and (4) as an implementing doctrine. Part III investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. Part IV articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence
Jazz Improvisation and the Law: Constrained Choice, Sequence, and Strategic Movement Within Rules
Get PDFThis Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why change and choice are the norm in law too. Rarely is law just about ferreting out some isolated, clear, but abstruse legal command. In jazz and legal settings, relative assessments of strength are more commonly apt than are expectations of a single correct answer or simple binary right-versus-wrong determinations. There is a world of difference between claims that law simply provides determinate answers, versus claims that law constrains and guides what remain choices. Much as jazz improvisers must be highly sensitive to the surrounding constrained choices of others, legal analysis of context and consequences of legal choices, with substantial attention to others’ roles and competence, should always be part of legal actions. This different way of thinking about law’s nature helps illuminate and critique both major methodological legal divides, enduring jurisprudential debates, and several cutting-edge case studies. Those case studies include standing law’s transformation, including the 2021 TransUnion standing decision, ongoing battles over what waters are protected by the Clean Water Act, debates over textualist methodology’s claims of constraint, and increasing judicial reliance on the “major questions doctrine” with shifts away from the familiar deferential Chevron framework. Improvising musicians must ensure their choices musically fit with governing forms, practices, and others’ choices. Similarly, the Article closes by illuminating why, to further rule of law values and check power abuses, legal actors should always assess the consequential congruence of their tenable choices with surrounding law, giving substantial weight to statutory policies and linked effects analysis by agencies
What Were They Thinking? State of Mind Puzzles in Insider Trading
Get PDFInsider trading law is famously incoherent, the well-recognized product of its piecemeal creation by the judiciary rather than Congress or (with exceptions) SEC rulemaking. Asking what the insider or tippee was thinking is both a doctrinal inquiry and an expression of exasperation aimed at those whose trading doesn’t seem worth the risk. This essay seeks to situate state of mind questions as they address both reasons for asking, and to show that the case law on the subject is even more puzzling than generally thought
The Global Health Architecture: Governance and International Institutions to Advance Population Health Worldwide
Get PDFPolicy Points Global health institutions and instruments should be reformed to fully incorporate the principles of good health governance: the right to health, equity, inclusive participation, transparency, accountability, and global solidarity. New legal instruments, like International Health Regulations amendments and the pandemic treaty, should be grounded in these principles of sound governance. Equity should be embedded into the prevention of, preparedness for, response to, and recovery from catastrophic health threats, within and across nations and sectors. This includes the extant model of charitable contributions for access to medical resources giving way to a new model that empowers low- and middle-income countries to create and produce their own diagnostics, vaccines, and therapeutics-such as through regional messenger RNA vaccine manufacturing hubs. Robust and sustainable funding of key institutions, national health systems, and civil society will ensure more effective and just responses to health emergencies, including the daily toll of avoidable death and disease disproportionately experienced by poorer and more marginalized populations
International Investment Law in the Shadow of Populism: Between Redomestication and Liberalism Re‐Embedded
Get PDFThe international investment regime is in crisis, nowhere more so than in regard to the investor–state dispute settlement system. While several developing countries have been critical of the system for some time, rich countries like the US and EU states—once the principal promoters of this regime—are now acknowledging problems and advancing reforms. This change of position has been fueled by the mobilization of civil society and the emergence of domestic populist movements on both the right and the left, reflecting widespread discontent with the past three decades of neoliberal globalization and its effects on job losses, lower wages, and increasing inequality. This article argues that this shift has opened up a unique opportunity for developing countries that want reform, as there is less pressure (real or imagined) from rich countries to continue with an old model that no longer serves. Two paths present a possible way forward: (a) Participating countries can disengage from investor–state dispute settlement and opt for the redomestication of international investment law, rekindling the Calvo doctrine, or (b) they can follow John G. Ruggie’s “embedded liberalism” to re-embed the international investment regime with values and social objectives that are now deemed politically indispensable. This article explores each of these paths, with a particular focus on Latin America. It argues that although populism creates pressures to change or abandon the regime, in developing countries it also generates constraints that may prolong the status quo
Noticing Patents
Get PDFPatents take the form of public letters that the U.S. Patent and Trademark Office (USPTO) actively disseminates. Whether these documents sufficiently provide the public with notice of the technologies they describe, as well as the proprietary rights that they assert, has been subject to long-standing debate. Many commentators conclude that patents are often filed too early in the research and development cycle, are deliberately drafted in a vague or obtuse manner, or are simply too numerous. As a result, identifying the relevant patent landscape is not just difficult for technology implementers, but possibly undesirable as a matter of innovation policy. Yet prior scholarship has seldom acknowledged current statutory mechanisms to improve the notice function of patents after they issue. This Article endeavors to fill that gap.
Congress has long encouraged intellectual property rights holders to identify their patents on the products they sell. Patent marking has traditionally occurred on physical products or their packaging, although it has been recently extended to Internet-based virtual marking. The marking statute stipulates that patent proprietors that fail to mark face severe remedial restrictions when challenging infringers. Congress has assigned the Food & Drug Administration (FDA) a part in providing patent notice as well. In keeping with federal legislation, the agency maintains two publications, commonly known as the Orange and Purple Books, that act as a patent clearinghouse for approved drugs and licensed biologics.
The role of a patent within the marketplace provides perhaps the most valuable form of notice that that instrument may offer. Yet the marking statute and FDA publications suffer from some apparent flaws. In combination they project a failure to identify all patents that are relevant to the product, favor patent trolls, involve dubious practical workings, promote misleading advertising, and impose punitive sanctions in comparison to the notice requirements of peer intellectual property rights. For its part, the FDA has proven an untutored and unreliable patent publicist for the past four decades.
This Article offers specific suggestions to improve the notice functions of patents after they issue. It calls for the USPTO to develop and populate its own virtual marking database that correlates individual patents with the marketplace. It also encourages the FDA to take further steps to counter abuses of the Orange and Purple Books and to accelerate their patent notice functions. Finally, this Article takes broader lessons from this effort, offering pathways for policymakers to look beyond the patent instrument as they endeavor to improve the patent system’s notice functions
From Bait to Plate—How Forced Labor in China Taints America’s Seafood Supply Chain: Hearing Before the Cong.-Exec. Comm’n on China, 118th Cong., Oct. 24, 2023 (Statement of Robert K. Stumberg)
Get PDFTwo-hundred and forty—that’s the number of name-brand stores and institutional suppliers that we all depend on. Through them, we all buy seafood from importers who sell what forced laborers process in Chinese factories and vessels. We do it as families, as schools, as businesses. What is not in that number are the ways we buy forced-labor seafood as governments, mostly through five federal agencies and local school food authorities.
The Outlaw Ocean team, led by Ian Urbina, made transparency happen. They aren’t the first to reveal Xinjiang supply chains. But what distinguishes their seafood reporting is that they literally chased outlaw vessels across the seas, surveilled trucks at the port, and monitored internet traffic in multiple languages. James Bond would be impressed. And they didn’t stop with the report. They created power tools for tracing supply chains, purchasing seafood, and fixing policies that unwittingly enable an empire of exploitation. Now we can trace our own families’ supply chains for products we buy every week.
The international Coalition to End Forced Labour in the Uyghur Region has added the Outlaw Ocean reporting to its online library to show the complex puzzle of affected industries—aluminum, apparel, automotive, cotton, food, vinyl, polysilicon, solar, and more.
I appreciate your invitation to address one piece of this puzzle—the role of governments as wholesale buyers of seafood. I will briefly respond to several procurement questions: Which U.S. government agencies purchase seafood? Is the Buy American Act an antidote to forced-labor goods? Does the prohibition on purchasing forced-labor goods work? What is on the to-do list for fixing related gaps in policy
Gender and Deception: Moral Perceptions and Legal Responses
Get PDFDecades of social science research has shown that the identity of the parties in a legal action can affect case outcomes. Parties’ race, gender, class, and age all affect decisions of prosecutors, judges, juries, and other actors in a criminal prosecution or civil litigation. Less studied has been how identity might affect other forms of legal regulation. This Essay begins to explore perceptions of deceptive behavior—i.e., how wrongful it is, and the extent to which it should be regulated or punished—and the relationship of those perceptions to the gender of the actors. We hypothesize that ordinary people tend to perceive deception of women as more wrongful than deception of men, and that such perceptions can affect both case outcomes and decisions to regulate.
This hypothesis is consistent with research into gender stereotypes, which has shown, for example, that women are perceived as less capable of protecting themselves against deception, and that men have special duties to protect women. Our approach is also of a piece with recent work on moral typecasting, which explores how attributions of agency and patiency affect perceptions of moral wrongfulness, as there is evidence that men tend to be associated with agency and women with patiency.
We report the results of three experimental vignette studies, using simple hypotheticals to elicit subjects’ off-the-cuff intuitions about men and women deceiving and being deceived. We examine the effects of gender by randomly varying party names (Ashley or Josh), by randomly varying the gender associated with a product—e.g., beard trimmer vs. hair dryer—and by randomly varying the gendered noun identifying the victims of a fraud (brothers vs. sisters). We ask subjects to report on their reactions to different deceptive situations by reporting on the ethicality of a behavior, on their support for a regulatory approach, and on their preference for level of punishment. We also explore differential responses of male- and female-identified subjects.
We find preliminary support for the proposition that men deceiving women and firms deceiving women are regarded as somewhat more problematic than men or firms deceiving men. We find suggestive but limited evidence that paternalistic regulation of women’s transactions is more welcome than that of regulation of men’s consumer choices. We find robust support for the proposition that women are more likely than men to regard deception in the marketplace as an ethical wrong. The studies reported here also suggest the challenges of studying gender as a causal explanation for legal decision-making. We suggest how future research might tease out the explanatory mechanisms that link perceptions of gender to perceptions of deception
Gender Mainstreaming in Trade Agreements: A Potemkin Façade ?
No full textThe distributional outcomes of trade agreements have historically been uneven, creating both “losers” as well as “winners” and benefitting certain stakeholders while leaving others without benefits or even with negative repercussions. In particular, distributional outcomes can vary between women and men, since they play different roles in society, markets, and economies, and they enjoy different opportunities as well. At times, and sometimes by their very nature, trade agreements can restrict opportunities for women and further increase the gender divide. But in recent years, there has been a drastic upsurge in the number of countries that are incorporating commitments on gender equality in their trade agreements.
Currently, of all free trade agreements in force, around one-third have at least one explicit provision relating to gender equality. Yet almost no trade agreement so far contemplates how gender-related commitments could be implemented or enforced, and no trade agreement approaches gender on a holistic level that can meaningfully address distributional issues. Most legal provisions incorporated in trade agreements so far have been drafted in the spirit of best endeavor cooperation and are often blamed for being mere “Cinderella” provisions. In order to reverse the distributional inequities, a more comprehensive approach based on women’s roles and economic realities is needed, as is further research on what would improve distribution of opportunities for women. With more and more countries considering gender mainstreaming, this raises an important question: Is “gender mainstreaming” in trade agreements used as a “Potemkin Facade” to hide larger distributional issues? This paper will not fully answer this question, but it will expand upon possibilities and offer reflections to spark debate and discussions on this concern