Federalism and International Human Rights in the New Constitutional Order

This Essay examines the contours of what I have elsewhere called the new constitutional order with respect to international human rights and federalism. The background is my suggestion that the U.S. political-constitutional system is on the verge of moving into a new constitutional regime, following the end of the New Deal-Great Society constitutional regime. The Supreme Court\u27s innovations in the law of federalism in connection with Congress\u27s exercise of its powers over domestic affairs has provoked speculation about the implications of those innovations for the national government\u27s power with respect to foreign affairs. Most of the speculation has been that the Court is about to - or at least should - engage in what I have called projects of restoration and revolution. That is, the Court will, or should, return to an understanding of the relation between the nation\u27s power with respect to foreign affairs that prevailed before the New Deal-Great Society era

National Security Pedagogy: The Role of Simulations

This article challenges the dominant pedagogical assumptions in the legal academy. It begins by briefly considering the state of the field of national security, noting the rapid expansion in employment and the breadth of related positions that have been created post-9/11. It considers, in the process, how the legal academy has, as an institutional matter, responded to the demand. Part III examines traditional legal pedagogy, grounding the discussion in studies initiated by the American Bar Association, the Carnegie Foundation, and others. It suggests that using the law-writ-large as a starting point for those interested in national security law is a mistake. Instead, it makes more sense to work backwards from the skills most essential in this area of the law. The article then proposes six pedagogical goals that serve to distinguish national security law: (1) understanding the law as applied, (2) dealing with factual chaos and uncertainty, (3) obtaining critical distance—including, inter alia, when not to give legal advice, (4) developing nontraditional written and oral communication skills, (5) exhibiting leadership, integrity, and good judgment in a high-stakes, highly-charged environment, and (6) creating continued opportunities for self-learning. Equally important to the exercise of each of these skills is the ability to integrate them in the course of performance. These goals, and the subsidiary points they cover, are neither conclusive nor exclusive. Many of them incorporate skills that all lawyers should have—such as the ability to handle pressure, knowing how to modulate the mode and content of communications depending upon the circumstances, and managing ego, personality, and subordination. To the extent that they are overlooked by mainstream legal education, however, and present in a unique manner in national security law, they underscore the importance of more careful consideration of the skills required in this particular field. Having proposed a pedagogical approach, the article turns in Part IV to the question of how effective traditional law school teaching is in helping to students reach these goals. Doctrinal and experiential courses both prove important. The problem is that in national security law, the way in which these have become manifest often falls short of accomplishing the six pedagogical aims. Gaps left in doctrinal course are not adequately covered by devices typically adopted in the experiential realm, even as clinics, externships, and moot court competitions are in many ways ill-suited to national security. The article thus proposes in Part V a new model for national security legal education, based on innovations currently underway at Georgetown Law. NSL Sim 2.0 adapts a doctrinal course to the special needs of national security. Course design is preceded by careful regulatory, statutory, and Constitutional analysis, paired with policy considerations. The course takes advantage of new and emerging technologies to immerse students in a multi-day, real-world exercise, which forces students to deal with an information-rich environment, rapidly changing facts, and abbreviated timelines. It points to a new model of legal education that advances students in the pedagogical goals identified above, while complementing, rather than supplanting, the critical intellectual discourse that underlies the value of higher legal education

Lawfare 101: A Primer

Dunlap discusses the concept of lawfare—using law as a form of asymmetrical warfare—and provides some considerations for how to combat this phenomenon. The article establishes the intellectual framework and thematic direction for this Issue of Military Review

The Psy-Security-Curriculum ensemble: British Values curriculum policy in English schools

Framed as being in response to terrorist attacks and concerns about religious bias in some English schools, ‘British Values’ (BV) curriculum policy forms part of the British Government’s Counter-Terrorism and Security Act, 2015. This includes a Duty on teachers in England to actively promote British Values to deter students from radicalisation. This paper, first, traces the history of Britishness in the curriculum to reveal a prevalence of nationalistic, colonial values. Next, an ensemble of recent policies and speeches focusing on British Values is analysed, using a psycho-political approach informed by anti-colonial scholarship. Finally, we interrogate two key critiques of the British Values curriculum discourse: the universality of British Values globally, and concerns over the securitisation of education. Findings indicate that the constitution of white British supremacist subjectivities operate through curriculum as a defence mechanism against perceived threats to white privilege, by normalising a racialised state-controlled social order. The focus is on ‘British’ values, but the analytic framework and findings have wider global significance

The Geographical Scope of the EU's Climate Change Responsibilities

It is increasingly common for the EU to include extraterritorial GHG emissions within controversial and on more than one occasion the EU has been forced to back down. With this in mind, this paper asks how far the EU’s climate change responsibilities ought to extend geographically. In answering this question, the paper draws a distinction between first-order and second-order climate responsibilities, acknowledges the importance of the internationally agreed ‘system boundary’ guidelines adopted by the Intergovernmental Panel on Climate Change, and seeks to learn lessons from the consequentialist approach that was favoured by the EU in giving broad geographical scope to its decision to include extraterritorial aviation emissions within the scope of its emissions trading scheme