Brooklyn journal of international law最新文献

{"title":"Roscoe Pound in China: A Lost Precedent for the Liabilities of American Legal Exceptionalism","authors":"Jedidiah J. Kroncke","doi":"10.2139/SSRN.1997424","DOIUrl":"https://doi.org/10.2139/SSRN.1997424","url":null,"abstract":"Roscoe Pound retired from Harvard Law School in the late 1940’s as one of America’s most prominent legal figures. Mostly forgotten today is that Pound left Harvard with great fanfare to take up an appointment as legal adviser to China’s Guomindang Party (GMD). Pound went to China at the height of America’s also oft forgotten early 20th-century preoccupation with the Chinese Republic’s potential legal and political Americanization. As adviser, Pound created a grand reform agenda for Chinese law and became an active stateside propagandist for the GMD. Pound’s desire to transform the Chinese legal system along American lines was representative of new presumptions about how American law could act as a stimulus for the legal development of foreign legal systems. These presumptions set American law outside and above international legal discourse, establishing a key modern component of what is today often called American legal exceptionalism.Pound failed to achieve any success in influencing Chinese legal reforms before the victory of Chinese Communist Party in 1949. More broadly, Pound’s “export” work in China undermined and degraded his early commitment to comparative law. Further, his representation of Chinese legal reform as following American patterns pro-actively warped domestic perceptions of Chinese legal developments. After 1949, Pound, like the American legal community more broadly, was unable to reflect critically on his failure. Instead, he used his time in China to fuel a polemical and influential anti-Communism that cast positive evaluations of the export of American law as a test of national loyalty. Pound’s experience in China serves as a key modern precedent for the liabilities inherent in the export-driven view of American law abroad that still shapes Sino-America legal relations and the normalization of modern American legal exceptionalism.","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"100 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2012-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67837773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Dangers of Popular Constitution-Making","authors":"William Partlett","doi":"10.2139/SSRN.1924958","DOIUrl":"https://doi.org/10.2139/SSRN.1924958","url":null,"abstract":"This paper - which was selected from over 30 papers to be presented at the American Society of Comparative Law Annual Conference - will explore a critical question at the intersection of constitutional and democratic theory: Is the process of constitutional drafting and ratification important in determining whether a constitution will serve as a constraint on future government activity? Many constitutional theorists maintain that constitution-making process is critical in making a constitution “matter.” They argue that the best constitution-making process is one where the people divorce constitutional drafting and ratification as much as possible from pre-existing, ordinary rules and institutions by encouraging the “people” to directly act through irregular mechanisms such as referendums and constitutional conventions. This irregular expression of popular sovereignty – what I term \"popular constitution-making\" – ensures that the constitution will transcend ordinary politics and therefore limit future legislative and executive action.The massive wave of constitution making in post-communist Europe and Asia in the late 1980s and early 1990s – a valuable laboratory for testing constitutional theory – suggests serious problems with this approach. First, the most successful and legitimate post-communist constitutional orders were established without engaging in popular constitution-making. Instead, these countries made wide use of ordinary political mechanisms - including parliaments - in the construction of robust constitutional orders. Second, post-communist nations that have sidelined ordinary political institutions and rules in favor of the mechanisms of popular constitution-making in creating constitutional orders have actually been far less successful in building constitutions that constrain government activity. Post-Soviet constitutional development helps explain the dangers of popular constitution-making. Russia is the paradigmatic example. After two years of parliamentary constitution-making, Russian President Yeltsin – locked in a battle with parliament to control the fate of Russia – drew on the language of popular constitution-making to sideline existing rules and institutions. After winning a referendum in which more than 50% of the voters declared their support for Yeltsin, he called an appointed constitutional convention, disbanded parliament, and dispersed the Constitution Court. He then ratified his own personally drafted authoritarian constitution. Other countries in the former Soviet Union soon followed this model. The Russian example shows how popular constitution-making can allow charismatic individuals to reassert dictatorship. In the absence of unwritten conventions or rules, the extralegal mechanisms of popular constitution-making can help charismatic leaders claim the mantle of popular legitimacy and assert dictatorship. Constitutional theorists therefore should appreciate the essential role that ordinary and pre-existing poli","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"38 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2011-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1924958","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67791553","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Comparative International Law","authors":"Boris N. Mamlyuk, U. Mattei","doi":"10.1093/oso/9780190697570.001.0001","DOIUrl":"https://doi.org/10.1093/oso/9780190697570.001.0001","url":null,"abstract":"This Article examines the emerging field of study called \"comparative international law,\" first generally and then by specific examination into historical comparative international law traditions. We map out historical precedents of comparative international law to find and to create patterns, which is important to render future CIL projects coherent and relevant to policymakers. Historical analysis also unlocks what is both common and distinctive to the fields of comparative and international law, respectively. This, in turn, allows us to conceptualize their interaction and to warn of several likely or unintended dimensions (pitfalls) for the emerging field of CIL: (1) \"amateurism\" and \"legal corporeology\" (Riles) involving unsophisticated sampling of traditional comparative law forms and crude comparisons of national traditions and actors; (2) failure to understand micro-mechanics of legal transplants and norm diffusion (Sacco), which in turn leads to (3) failure to appreciate micro-level local legal customs, values and interests; (4) likely failure to examine the institutional dimensions in the \"home\" country/institution/organization, which is often the ‘control variable’ against which foreign legal systems are assessed. This Article is divided into three parts. Section one unpacks the general trajectory of the field of comparative international law, proposing the Interwar period (1919-1939) as a critical framework for understanding the first generation of CIL, and the post-WWII Bretton Woods (and subsequent \"crisis\" periods) as important moments of political contestation within the respective disciplines. Section two asks whether these critical moments may imbue both internationalists and comparativists with shared theoretical assumptions or outlooks: the notion that they are involved in progressive scholarly endeavors; pervasive blindness to the distributive outcomes of their normative policy recommendations; recurring failure to take stock of failure; inability to engage creatively with the objects of their study. Section three, thus, explores the dynamic political dimensions of likely CIL projects, including potential conflicts. These conflicts may form the basis for a creative political space within the legal academy. Or, and more likely, they will continue to fractionalize the respective disciplines, significantly diffusing the emancipatory potential of both.","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"36 1","pages":"385"},"PeriodicalIF":0.0,"publicationDate":"2010-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61545714","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Moral Politics of Social Control: Political Culture and Ordinary Crime in Cuba","authors":"Deborah M. Weissman, M. Weissman","doi":"10.2139/SSRN.1478709","DOIUrl":"https://doi.org/10.2139/SSRN.1478709","url":null,"abstract":"The Cuban revolution has been described as “the longest running social experiment” in history, and one not well-received in the United States. The U.S. government responded to the revolution first with suspicion, and then hostility. Even while the current administration has acknowledged the failure of U.S. policy, few substantive changes have been announced and the narrative of Cuba in the United States continues to dwell almost exclusively on political repression and economic failure. The Cuban revolution, however, is a complex process, one that defies facile explanations. This article subscribes to the perspective offered by social scientists who urge “a more nuanced view” of Cuba. As Cuba marks the fiftieth anniversary of the Cuban revolution, we undertake an examination of a specific facet of the Cuban revolution, that is, the Cuban approach to ordinary crime. The article provides insights about the ways in which political culture and social controls interact to produce a coherent and generally successful policy response to crime. That Cuba has succeeded in reducing reliance on formal penal sanctions and lowered crime rates invites comparison with the United States, where strategies of community controls as an alternative to incarceration have met with less success.","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"35 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2009-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68185405","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Global Financial Standard Setting, the G10 Committees, and International Economic Law","authors":"Kern Alexander","doi":"10.5167/UZH-71490","DOIUrl":"https://doi.org/10.5167/UZH-71490","url":null,"abstract":"he global financial and credit crisis of 2007!2009 has highlighted the important role of the G10 committees in setting international standards for the regulation of bank capital adequacy, payment systems, and related issues pertaining to global financial stability. The main three G10 committees\"consisting of the Basel Committee on Banking Supervision (#Basel Committee$ or #BCBS$), the Committee on Payment and Settlement Systems (#CPSS$), and the Committee on the Global Financial System\"are the most influential international financial standardsetting bodies and exercise either direct or indirect influence over the development of banking and payment system law and regulation for all developed countries and most developing countries. Specifically, the Basel Committee has produced a number of important international agreements that regulate the amount of capital that banks must set aside against their risk-based assets, and the allocation of jurisdictional responsibility for bank regulators in overseeing the international operations of banks. Its activities have usually been kept away from the fanfare of high politics, but its recent efforts to amend the 1988 Basel Capital Accord by adopting the Basel II Capital Agreement (#Basel II$) and to extend its application to all countries where international banks operate have attracted significant critical comment and brought its work under close scrutiny by leading policymakers and regulators. The CPSS has created important agreements setting forth principles and recommendations for the regulation of bank payment systems and for the regulation of clearing and settlement of securities trading, and recommendations regarding counterparties. The Committee on Global Financial Systems, though it has not yet adopted regulatory principles or recommendations, has produced a number of influential reports that have influenced the debate on","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"56 1","pages":"9"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70660484","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Bucking Conventional Wisdom: Russia's Unilateral 'Suspension' of the CFE Treaty","authors":"Max Shterngel","doi":"10.2139/SSRN.1181782","DOIUrl":"https://doi.org/10.2139/SSRN.1181782","url":null,"abstract":"The Treaty on Conventional Armed Forces in Europe (\"CFE Treaty\") is a seminal arms control agreement between the member states of the North Atlantic Treaty Organization and the former Warsaw Pact. On July 14, 2007, President Vladimir Putin announced that the Russian Federation was unilaterally \"suspending\" its participation in the CFE Treaty. Russia's suspension officially went into effect on December 12, 2007. Part I of this Note provides background on the adaptation of the CFE Treaty, a description of Russia's \"suspension\" and a summary of the reactions of NATO members and other parties to the Treaty. Part II analyzes the differences between \"withdrawal\" and \"suspension\" in the law of treaties, and Part III closely examines the \"Extraordinary Events\" clause that appears in the CFE Treaty. Three customary international law grounds for treaty suspension are discussed in Part IV. Finally, Part V considers the legality of Russia's unilateral \"suspension\" of its obliga-tionns under the CFE Treaty, determining that the act constitutes a material breach under customary international law.","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"125 26 1","pages":"8"},"PeriodicalIF":0.0,"publicationDate":"2008-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68150527","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Where are All the Transnational Bankruptcies?: The Puzzling Case for Universalism","authors":"R. K. Rasmussen","doi":"10.2139/SSRN.982678","DOIUrl":"https://doi.org/10.2139/SSRN.982678","url":null,"abstract":"Debates about transnational insolvencies rest on the assumption that the increasing global reach of companies will lead to more cases where more than one country assets jurisdiction over a debtor's assets. The challenge in this discussion is to delineate which set of rules countries should adopt so that value is not destroyed. The so-called \"universalists\" worry about inefficient liquidations and stress the need for countries to cooperate with each other. Territorialists, on the other hand, worry about a race to the bottom where the debtor chooses a friendly country to handle its insolvency and the rest of the countries where the debtor has assets reflexively cooperate. Yet both camps agree that as businesses expand across borders, multiple insolvency proceedings are inevitable. The only open question is the extent to which the involved jurisdictions should cooperate with each other. This paper challenges this accepted wisdom. It demonstrates that there are relatively few reorganization cases that involve multiple proceedings. The explanation for this puzzle is that debtors can control the number of proceedings that are opened in any given case. There are multiple proceedings only when it suits the debtor's interest. This control that debtors have over the process requires a reorientation in the literature. Rather than focusing on the rules that countries adopt, we have to examine the actions that debtors take and assess the welfare concerns.","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"32 1","pages":"9"},"PeriodicalIF":0.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67923410","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Romania, Bulgaria, The United States and the European Union: The Rules of Empowerment at the Outskirts of Europe","authors":"D. Neascu","doi":"10.7916/D8W09GF4","DOIUrl":"https://doi.org/10.7916/D8W09GF4","url":null,"abstract":"A fter the collapse of the Soviet Union, the United States came to Eastern Europe spreading the gospel of democracy and the American Rule of Law.! In addition to encouraging Western ideology, the United States was there to forge new economic relationships and, following the terrorist attacks of September 11, 2001, to accelerate the creation of military alliances through membership in the North Atlantic Treaty Organization (NATO) and the newly-formed \"coalition of the willing.\"2 Romania and Bulgaria, among other former Soviet satellites, welcomed the invitation. Romania and Bulgaria are small countries which share similar economic pressures as they attempt to emerge from troubled","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"164 1","pages":"185-204"},"PeriodicalIF":0.0,"publicationDate":"2004-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71368636","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Treaty of Waitangi and the Relationship Between Crown and Maori in New Zealand","authors":"N. Cox","doi":"10.2139/SSRN.420020","DOIUrl":"https://doi.org/10.2139/SSRN.420020","url":null,"abstract":"The orthodox legitimacy of the Crown, in those countries that derive their constitutional principles from Great Britain, is the legitimacy of the inherited legal form. So long as government is conducted in accordance with the rule of law, and meets the aspirations of the majority of the population, the legitimacy of the government based on such a ground has been little questioned. This legitimacy alone, however, is not necessarily sufficient. Nor does it alone explain the general acceptance of the current regime in New Zealand. There exists a second, potentially potent, source of legitimacy in New Zealand - the Treaty of Waitangi (\"Treaty\"). As the moral, if not legal, authority for European settlement of New Zealand, this 1840 compact between the Crown and Maori chiefs has become increasingly important as a constitutional founding document for New Zealand. As a party to the Treaty, the Crown may have acquired a new and significant source of legitimacy as the body with which the Maori have a partnership. It is also a source of legitimacy that belongs specifically to the Crown as a symbol of government. The purpose of this article is to examine and assess this source of legitimacy.","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"28 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2003-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68727289","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Limiting Diplomatic Immunity: Lessons Learned from the 1946 Convention on the Privileges and Immunities of the United Nations","authors":"Veronica L. Maginnis","doi":"10.1017/9781316577226.045","DOIUrl":"https://doi.org/10.1017/9781316577226.045","url":null,"abstract":"On April 17, 1984, demonstrators gathered outside the Libyan People's Bureau in London to protest the practices of Colonel Muammar Qaddafi's regime. [FN1] Officials of the British government had been forewarned that if the demonstration was allowed to take place, Libya “‘would not be responsible for its consequences.”’ [FN2] Suddenly, during the demonstration, machine gunfire erupted. [FN3] Shots were fired from inside the Libyan embassy toward the crowd. [FN4] Constable Yvonne Fletcher was killed, and eleven others injured. [FN5] This tragedy led to the severing of diplomatic relations between the United Kingdom and Libya. [FN6] No one was ever prosecuted. [FN7]","PeriodicalId":80748,"journal":{"name":"Brooklyn journal of international law","volume":"28 1","pages":"6"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"56930252","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}