This essay reviewing Striking Power, John Yoo and Jeremy Rabkin's new book on the legal and policy implications of autonomous weapons, takes issue with the book's assumptions and; therefore its conclusions. The essay argues that, because of technological and ethical limitations, discriminate and effective use of autonomous weapons may not serve as an adequate substitute for traditional manpower-based military forces. It further argues that traditional conceptions of international law could prove more durable than Yoo and Rabkin suggest, and finally it concludes by suggesting that a grand strategy relying primarily on technological elites managing autonomous weapons actually threatens to undermine our common democracy and its reliance on mass citizen mobilization.
This essay reviewing Striking Power, John Yoo and Jeremy Rabkin's new book on the legal and policy implications of autonomous weapons, takes issue with the book's assumptions and; therefore its conclusions. The essay argues that, because of technological and ethical limitations, discriminate and effective use of autonomous weapons may not serve as an adequate substitute for traditional manpower-based military forces. It further argues that traditional conceptions of international law could prove more durable than Yoo and Rabkin suggest, and finally it concludes by suggesting that a grand strategy relying primarily on technological elites managing autonomous weapons actually threatens to undermine our common democracy and its reliance on mass citizen mobilization.
In light of Venezuela's unprecedented notice of its intention to withdraw from the Organization of American States, this essay by a former member of the Juridical Committee of the OAS explores the range of discretion available to the OAS and its Member States in interpreting and applying the OAS's unique provision for withdrawal. Presenting the first extensive analysis of this provision of the OAS Charter, the essay argues that the withdrawal clause can plausibly be interpreted to require Venezuela to fulfill all its obligations under the OAS Charter, including its obligations to respect democracy, before its unprecedented withdrawal can take effect. It then examines the potential discretion available in interpreting and applying the series of commitments under the OAS Charter, as amended and authoritatively interpreted, that constitute what could be deemed collectively an "OAS Democracy Clause." It locates the OAS Democracy Clause's development over time along a continuum of possibilities – a weak international and strong constitutional commitment to democracy – that is also reflected in the changing terms of U.S. adherence to the original OAS Charter of 1948 and under its 1992 amendments under the Protocol of Washington. Nevertheless, drawing on rational choice theory and recent evidence of the adverse effects from interpretation of withdrawal clauses to impose excessive burdens on withdrawing states, this essay argues that an interpretation of the OAS withdrawal clause to require continued Venezuelan compliance with the OAS Democracy Clause, or to maintain OAS competence to monitor Venezuelan compliance after its purported withdrawal takes effect, could be counterproductive. Even if marginally beneficial in promoting democracy in Venezuela in the short run, it could in the long run undermine the OAS project of maintaining and extending democracy in all OAS Member States by, among other things, initiating a bargaining process with Venezuela in which the OAS would seek to persuade Venezuela to change course, a negotiation that could tend to concessions that would dilute the OAS commitment to democracy. The article thus provides a paradigm for restrained interpretation of withdrawal clauses in an era of increased exit from international organizations.
On the surface, King v. Burwell appears to be a simple case about statutory interpretation. In the Affordable Care Act (widely known as Obamacare), when Congress referred to the "State," in the provision triggering federal subsidies to insurance consumers for purchases made from federally-authorized insurance providers selling federally-authorized insurance products, should the "State" be understood to refer to the federal market (i.e., exchanges) as well as "State" markets. Simple tools of statutory construction–namely, that Congress knew full well how to refer to a "federal" exchange and failed to do so–would seem to be sufficient to supply a result. It would also seem be a stretch to rely on legislative history to overturn this conclusion.
On the surface, King v. Burwell appears to be a simple case about statutory interpretation. In the Affordable Care Act (widely known as Obamacare), when Congress referred to the "State," in the provision triggering federal subsidies to insurance consumers for purchases made from federally-authorized insurance providers selling federally-authorized insurance products, should the "State" be understood to refer to the federal market (i.e., exchanges) as well as "State" markets. Simple tools of statutory construction–namely, that Congress knew full well how to refer to a "federal" exchange and failed to do so–would seem to be sufficient to supply a result. It would also seem be a stretch to rely on legislative history to overturn this conclusion.
This paper is a lightly-footnoted and modestly expanded version of my presentation at the Georgetown Journal of Law & Public Policy Symposium's panel on Executive War Powers, Syria, and President Obama's "Red Line"—Did President Obama Have the Power to Use Force in Syria without Congressional Approval? While criticizing the President's policy decision, this paper argues that the President would have been well within his authority to use force. Relying r on a whole text reading of the relevant constitutional provisions, it argues that the President's authority to use force is virtually plenary, while Congress's authority is limited to governing the legal effects of war and limiting executive discretion solely through the power of the purse. It rejects functional arguments in constitutional interpretation, but it recognizes that functional arguments in our modern Age of Terror happily confirm conclusions that can be reached by textualist modes of constitutional interpretation. Finally, it argues that these conclusions reinforce constitutional and democratic accountability and are not seriously undermined by any possible international law limits to presidential discretion.
This article, which draws on the author's experience as a member of the Inter-American Juridical Committee of the Organization of American States, focuses on the problem of crafting an appropriate hemispheric regime for the protection of consumer rights. The subject is now a major element in the agenda of the OAS Specialized Conference on Private International Law (know also under its Spanish acronym as the CIDIP process), in part because of the increased salience of the issue in light of increasing e-commerce. The article, based on the author's presentation at a symposium at the St. Thomas School of Law in Minnesota on economic development in Latin America, argues that the problem of consumer protection in international transactions in the region needs to be re-conceptualized as a problem in international law an politics. It argues that the important welfare gains that can be achieved through a trade-based approach to consumer protection that avoids implicit subsidies for exporters and disguised discrimination or protectionism in favor of competing domestic producers needs to be coupled explicitly with a socio-political approach that takes advantage of pro-democratic and rule of law-enhancing effects of enhanced consumer protections. The article then argue that, in addition to being normatively compelling, this proposed re-conceptualization is in the foreign policy interest of the U.S. It concludes with an incremental legal strategy for developing this new agenda.
After over a decade as the ruling conventional wisdom under the rubric of the so-called Washington Consensus, the prospect of reconstruction and development through fiscal austerity, privatization and liberalization of markets is under considerable attack today from many quarters. One common theme of these challenges-to what has been received wisdom-focuses not on the technical characteristics of development, but rather its connection to political development.
The first object of this paper, therefore, is to consider in very general terms the intellectual history of the study of the relation between trade and peace, using two key texts from the beginning and the end of the Cold War - first, Kenneth Waltz's "Man, the State, and War: A Theoretical Analysis" 3; and, second, Philip Bobbitt's "The Shield of Achilles: War, Peace, and the Course of History. The second part of this paper will argue that Waltz's normative commitments are revealed in the order of his presentation and Bobbitt's normative commitments are revealed in the ostensibly descriptive thesis he advances concerning the triumph of the so-called market state. The third part of this paper asks how we should formulate the question of the relation between war and peace, and it will argue that, until we make distinctions that are explicitly normative in character about the moral significance of different modes of "free" trade or "protectionism" and different modes of "peace" and "war," it will be inevitable that nominally descriptive analysis will be distorted by hidden normative premises.
Delegalization of arms control is now an accomplished fact. In this period of potential dramatic revision of the international order, it is not surprising that the US is seeking increased flexibility in pursuing several strategies, including the full use of military and technological advantages. The motivations behind this include US interests, as well as long run global interests. What may be surprising, however, is the potential risk to our democratic processes from delegalization of arms control-that is to say, the danger posed by reduced use of arms control treaties with built-in processes of transparency and democratic accountability. The potential risk is particularly apparent in those cases where arms control treaties function in effect as treaties of peace, alliance, or neutrality that arguably should be subject to the control of the constitutional treaty makers. Notwithstanding these concerns, this Article argues that on balance the constitutional text, structure, and history compel the conclusion that the democracy deficit risked by delegalization of arms control is adequately attenuated through continuing congressional participation in the arms control process and, in any event, outweighed by the need for a vigorous executive to exercise the role it assumed at the very beginning of this Republic when "regime change" in Europe was also the question of the day.
Arms control was never an end in itself. Arms control and nonproliferation policy always had as their goals increasing international security. It may be worth recalling that, in response to having it called to his attention that he had changed his views on a matter, Lord Keynes is widely reported to have quipped, "When the facts change, what do you do?" Indeed, as Lord Keynes also once said, "There is no harm in sometimes being wrong-especially if one is promptly found out." The question for this panel is whether the sea change in strategic thinking reflected in the arms control and nonproliferation policies of the Bush administration are based on new facts and a better understanding of the relation between those policies and the international environment. In keeping with the theme of this conference, we need to explore whether long-established or emerging understandings of the role international law plays in this area provide the best platform for assuring international security from the risk of weapons of mass destruction. Are arms control and nonproliferation in fact a case of delegalization, or are they simply the beginnings of a relegalization on entirely new premises?
Can allegations that senior State Department and National Security Council officials failed to inform a U.S. citizen that her foreign citizen husband was in foreign custody suffice to allege a denial of access to the courts in violation of the Fifth Amendment so as to give rise to a constitutional tort even absent any allegation that the plaintiff tried to file a lawsuit or was actually hindered in doing so? If so, was that right clearly established as of the time of the government officials' conduct so as to defeat a defense of qualified immunity?
This Review will suggest a theoretical explanation for the essentially pragmatic conclusion that the United States should continue to oppose negotiations at the WTO. This explanation has the virtue of drawing on the special quasi-constitutional role of antitrust policy in U.S. history, one that is in fact deeply connected to the political economy of U.S. federalism and which, therefore, leaves less room for U.S. acquiescence in the institutionalization of competition policy at the WTO than does even the pragmatic argument for continued U.S. opposition to multilateral and institutional approaches. This argument draws on the continuing centrality of federalism as a regulatory device for U.S. political economy, rather than on federalism's role in maintaining the selfgovernance prerogatives, including antitrust immunity," of the Ameri-can states. It is worth noting that a federal antitrust policy became central to U.S. political economy a hundred years ago as a perceived necessity to circumvent the apparent inability of the states, due to a narrow reading of state authority to regulate the national economy, to regulate private power at a national level. The so-called populist conception of U.S. antitrust law focuses on the preservation of a counterweight to the concentration of private political power flowing from the rise of the transcontinental corporation. This Review willargue that it is federalism's role in reinforcing the political accountability of national and state governments, and its correlative force in furthering individual citizen responsibility in both our federal and state political communities, that marries federalist political theory to the role of U.S. antitrust laws in reinforcing individual responsibility for economic liberty. Thus, together, U.S. federalism and U.S. competition law tap into a classical tradition of republican government, shaping our democracy and economy in mutually-reinforcing ways, so that the selfish and embittering aspects of extreme individualism are softened by the character-forming effects of participation in a competitive market economy and by democratic federalism's role in buttressing responsible individualism. It is thus the continuing relevance of federalism's structuring of U.S. political economy that shapes U.S. antitrust law and, accordingly, should limit U.S. participation in international antitrust lawmaking, for separating antitrust's political dimension from its substantive economic component in a WTO negotiation might then risk undermining this carefully-constructed and uniquely American contribution to global diversity.
This article explores institutional alternatives for balancing the competing trade and non-trade concerns at the national and global levels in relation to the recognition and enforcement of judgments. It argues against a private international law convention of the kind that is currently being negotiated at the Hague Conference on Private International Law, and against quasi-constitutional and constitutional solutions, such as those employed by the European Union and the United States. Rather, the article argues that managing the tensions between trade and non-trade values and between state autonomy and globally established standards can best be achieved through a supplementary agreement in the World Trade Organization (WTO).
