When Can the Government’s Misrepresentations Give Rise to a Constitutional Tort?

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\u27 conduct so as to defeat a defense of qualified immunity

How I Learned to Stop Worrying and Love the Bots, and How I Learned to Start Worrying About Democracy Instead

This essay reviewing Striking Power, John Yoo and Jeremy Rabkin\u27s 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

The Subsidy Question in \u3cem\u3eKing v. Burwell\u3c/em\u3e—A Federalist Response to Crony Capitalism

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

The International Recognition of Judgments: The Debate Between Private and Public Law Solutions

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)

The Passive Virtues and the World Court: Pro-Dialogic Abstention by the International Court of Justice

Only a few years ago the International Court of Justiceseemed to be edging toward judicial activism. This article argues that in its most recent pronouncements the ICJ has instead employed a variety of techniques for abstention. The ICJ\u27s use of this arsenal of devices recalls, however, Alexander Bickel\u27s argument for the exercise of judicial restraint by the U.S. Supreme Court in a way that nonetheless allows the judicial organ to stimulate constitutional politics. In the recent contentious cases and advisory opinions concerning the status of East Timor, exploitation of the natural resources of Nauru, and a trilogy of nuclear testing and nuclear weapons issues, the ICJ has in effect challenged the international political community to debate the application of the core principles of the international legal order. The approach the ICJ now follows thus tracks its South-West Africa Cases, where it successfully prompted constitutional decision-making by the competent U.N. organs. That precedent, in light of recent practice, should now serve as a paradigm for legitimate abstention by the Court -- one that is consistent with its principled exercise of the judicial function and, at the same time, gives shape to the process of legitimate decision-making in the international community

WTO and U.N. Law: Institutional Comity in National Security

This Article proposes a new theory for locating the World Trade Organization (WIO) in the larger transnational legal system. The theory would require institutional comity between the VITO and other equally significant institutions, in particular the United Nations, in the emerging global constitutional structure. Institutional comity would govern the conflicts between the VITO and United Nations, much as the traditional public international law concept of comity facilitates the management of analogous conflicts arising between sovereign nation states in the implementation of their regulatory policies. The theory of institutional comity presented in this Article accommodates the competing global interests in trade and security, as well as balances contending visions of national sovereignty and globalization. It also provides a more compelling account of the place of the WTO in international law than that currently available in WTO scholarship, which would treat the VITO either as a mere bargain among states or as having a quasi-constitutional status. The explanatory power of the institutional comity approach is revealed in analysis of the national security exception under the General Agreement on Tariffs and Trade (GA77), which the United States recently threatened to invoke before the WTO in the case concerning Helms-Burton sanctions against countries doing business with Cuba. The interpretation advanced by the Article would limit the so-called self-judging national security exception by permitting the VITO to look to the practice of the United Nations in questions relating to national security to identify objective indicia for whether a state invokes the exception in good faith

The Subsidy Question in King v. Burwell

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

How I Learned to Stop Worrying and Love the Bots, and How I Learned to Start Worrying About Democracy Instead

This essay reviewing Striking Power, John Yoo and Jeremy Rabkin\u27s 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