Skeptical Internationalism: A Study of Whether International Law Is Law

Should international law be understood as a form of law at all? The premise here is that if we are to get some purchase on that question, we should consult the experience of international law in operation. The analysis proceeds in two steps. First, the Article takes up the litigation connected to the Israeli/West Bank barrier, asking whether that case was or could have been addressed in such a way as to keep faith with minimal principles of legality. It wasn’t, the Article finds, but it could have been. Second, the Article specifies four values that are constitutive elements of the experience of law as law: that law have the capacity to give rise to events in the world (law’s efficacy); that it obligate as a matter of legitimate authority (law’s normativity); that it obligate as a matter of moral rationality (normativity again); and that it maintain a character distinct from the political or partisan (law’s objectivity). International law as seen in the Barrier case is then put to the test with respect to each of the four—and again the outcome is that nothing intrinsic to international law deprived it of the character of law, but that the courts and other institutions of the international system fell short of the law’s promise. These conclusions suggest a position this Article terms “skeptical internationalism”—a position that affirms international law’s project and doctrinal content, but is rebuttably skeptical of the courts and other institutions charged with interpreting that content and carrying that project out. The jurisprudential implications of such a view are explored

The Arab-Israeli Conflict and Civil Litigation against Terrorism

The Arab-Israeli conflict has been a testing ground for the involvement of U.S. courts in foreign conflicts and for the concept of civil litigation against terrorists. Plaintiffs on both sides of the dispute have sought to recover damages in U.S. courts, embroiling the courts in one of the world\u27s most contentious political disputes. Plaintiffs bringing claims against the Palestine Liberation Organization, the Palestinian Authority, material supporters of terrorism, and the Islamic Republic of Iran have been aided by congressional statutes passed precisely to enhance their ability to bring such lawsuits, whereas plaintiffs bringing suit against Israel or Israeli leaders have not had the benefit of such laws. Although the courts have sought to give effect to the congressional authorization embodied in these statutes, they have faced the resistance at times half-hearted of the executive branch, which regards such legislative and judicial involvement as an intrusion on its foreign policy prerogatives. Though these lawsuits have been subject to criticism and have not fully achieved the goals attributed to them, U.S. courts have largely acted within the authority given them by Congress and the executive branch in hearing the suits, and there is at least some evidence that such lawsuits constitute an effective tool in the fight against terrorism

Hermeneutic single-case efficacy design

In this article, I outline hermeneutic single-case efficacy design (HSCED), an interpretive approach to evaluating treatment causality in single therapy cases. This approach uses a mixture of quantitative and qualitative methods to create a network of evidence that first identifies direct demonstrations of causal links between therapy process and outcome and then evaluates plausible nontherapy explanations for apparent change in therapy. I illustrate the method with data from a depressed client who presented with unresolved loss and anger issues

When Lawyers Advise Presidents in Wartime: Kosovo and the Law of Armed Conflict

The events of September 11 changed how we perceive national security as a society, a government, and as individuals. This is as true of national security specialists, who have been aware that America has been at war with terrorism sine at least the 1990s, as it is for those whose sense of geographic security was shattered in New York and Washington. There is talk of “new war” and “new rules,” and concern that we not apply twentieth-century lessons to a twenty-first-century war. Over time, September 11 and its aftermath will test our interpretation and application of domestic law. It may also test the traditional framework under international law for resorting to and applying force. But much will, and should, stay the same for lawyers. As a result, the objective of this paper is to give some personal insight into the application of the law of armed conflict to the 1999 Nato Kosovo air campaign from the perspective of a lawyer serving the president as commander in chief. National-level legal review is critical to military operations, not just in determining whether the commander in chief has domestic and international legal authority to resort to force, but also in shaping the manner in which the United States employs force. Lawyers also have an important role to play in sustaining “good-government” process, offering a degree of detachment and long-term perspective

Institutional Choice and Targeted Killing: A Comparative Perspective

For over a decade, the use of targeted killing has been one of the most controversial issues in counterterrorism policy and law. One longstanding debate over this tactic concerns the allocation of decision-making and oversight authority among the branches of government. As attempts to settle this debate through textual and historical sources yield indeterminant answers, scholars tend to examine them through a functionalist prism, asking what institutional structures best serve the interests of national security while ensuring adequate accountability and preventing unnecessary force. This article, retaining that functionalist framing of that issue, will approach the question through a comparative law analysis. Three of the countries most heavily engaged in global counterterrorism—the U.S., the U.K., and Israel—have adopted substantially different approaches for regulating counterterrorism targeting, each according a primary supervisory role to a different governmental actor: the Executive in the U.S., Parliament in the U.K., and the Judiciary in Israel. This article describes, compares, and critically analyzes these approaches. Drawing on comparative institutional analysis theory, it then examines the findings and reaches three main conclusions. First, that in light of the judiciary’s unique structural perspective and expertise, some judicial involvement in developing the legal standard that guides and constrains government action is desirable. Second, that suboptimal decision-making and illegality due to executive bias are more likely to occur where the executive is accountable only to its own internal oversight mechanisms. And third, that in both presidential and parliamentarian systems, legislators do not have and are unlikely to have any sort of meaningful influence on executive behavior in this domain. The article concludes by suggesting a few possible institutional reforms