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This essay presents a systematic study of the incidence of universal jurisdiction (UJ) prosecutions for the international crime of piracy. Using data on the number of piracies committed in a twelve-year period (1998-2009) obtained from international agencies and maritime industry groups, we determined the percentage of these cases where nations exercised universal jurisdiction. Studies of the worldwide use of UJ prosecutions for other crimes simply count how often universal jurisdiction has been exercised but do not attempt to determine the rate of prosecution. Simply counting cases does not allow one to appreciate the significance of universal jurisdiction in relation to the total problem. While the expressive or symbolic value of universal justice may be satisfied by a small number of isolated prosecutions, the deterrent effect depends on its incidence relative to the number of perpetrated crimes.

This Essay presents the first systematic empirical study of the incidence of universal jurisdiction prosecutions over an international crime. Using data on the number of piracies committed in a twelve year period (1998-2009) obtained from international agencies and maritime industry groups, we determine the percentage of acts of piracy where nations prosecuted under universal jurisdiction we determine the percentage of these cases where nations exercised UJ. Studies of the worldwide use of UJ over other crimes simply count how often UJ has been exercised, but do not attempt to determine the rate of prosecution. We find that of all clearly universally punishable piracies, international prosecution occurs in no more than 1.47% of cases. This includes the unprecedented international response to the Somali piracy surge that began in 2008, which accounts for the vast majority of cases. Under normal circumstances (prior to 2008) nations used UJ, a doctrine that arose precisely to deal with piracy, in a negligible fraction of cases (no more than 0.53%, a total of four cases). Another interesting finding is that the nations that apply international criminal law to pirates are quite different from those that use it for other offenses. Measuring the willingness of nations to exercise universal jurisdiction over human rights offense poses major challenges. Because universal jurisdiction broadly covers torture, war crimes, and other abuses, the number of universally cognizable crimes that go unprosecuted may be quite high. One cannot estimate the universe of possible cases with any precision, and thus cannot determine the frequency of UJ prosecutions in relation to the possible occasions for its use. Piracy, the original and paradigmatic universal jurisdiction crime, provides a unique opportunity to study the implementation of universal jurisdiction in a way that avoids this "denominator problem." Excellent data exists on the actual number of pirate attacks. We examine records of thousands of piracy incidents to determine ...

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their senators by popular vote. Despite its significance, there has been little written about what the Amendment means or how it works. This Article provides a comprehensive interpretation of the Seventeenth Amendment based on the text of the Amendment and a variety of other sources: historical and textual antecedents, relevant Supreme Court decisions, the complete debates in Congress, and the social and political factors that led to this new constitutional provision. Among other things, this analysis reveals that the Amendment requires states to fill Senate vacancies by holding elections, whether or not they first fill those vacancies by making temporary appointments. In so doing, the Seventeenth Amendment guarantees that the people's right to vote for senators is protected in all circumstances. Using this interpretation as a baseline, this Article reviews state practice with respect to the filling of vacancies under the Seventeenth Amendment. Since the Amendment was adopted in 1913, there have been 244 vacancies in the U.S. Senate. In one-sixth of these cases, the states have directly violated the Seventeenth Amendment's core requirement that senators be elected by popular vote by failing to hold any election. In addition, in many more cases the states have significantly delayed the required elections. These practices have cost the people 200 years of elected representation since the Constitution was amended to provide for direct election of senators, and there has been little resistance to this pattern of state defiance of the Constitution.