Secrecy and Democratic Decisions

Secrecy to protect intelligence sources and methods appears often in the nation\u27s discourse about controversial national security matters. Often it is asked whether such secrecy is consistent with the nation\u27s democratic principles and processes. This article argues such principles and processes provide a framework through which we try to answer questions about secrecy and indeed legitimate them, but are often too broad to provide definitive guidance in specific cases. At the same time, the sources and methods argument itself is overbroad because of the nature of the sources and methods themselves; the tentative nature of intelligence assessments derived from those sources and methods; the often modest role intelligence plays in policymaking; the sometimes flawed logic of the sources and methods argument; and the costs incurred by information asymmetries. This has several implications for the use of secrecy in decisions of national moment; the protection of civil liberties and the state secrets privilege; and oversight of the intelligence community and others who make the sources and methods argument

Game Theory and Customary International Law: A Response to Professors Goldsmith and Posner

In a pair of recent articles, Professors Jack Goldsmith and Eric Posner have used game theoretic principles to challenge the positivist account of customary international law. Their writings join other early attempts to apply game theory to the international law sources. This article has two purposes. The first is to evaluate game theory\u27s potential for yielding greater insight into customary international law and international law more generally. The second is to respond to the conclusions about customary international law drawn by Professors Goldsmith and Posner. In Part I, Professor Chinen discusses the approach proposed by these two scholars. Traditionally, customary international law is understood as a general and consistent practice of states followed out of a sense of legal obligation. In Part II, he puts Professors Goldsmith and Posner\u27s descriptive theory into some perspective by exploring whether the purported failure of customary international law to describe state behavior impacts the ability to use that law, first, as a tool for influencing state behavior, and second, as a source of rules of decision. In Part III, Professor Chinen argues that there is a sufficient amount of true cooperation among states to be construed as general and consistent state practices. In Part IV, he examines the concept of opinio juri. Finally, in Part V, Professor Chinen discusses directions for further research

Jurisdiction: Foreign Plaintiffs, Forum Non Conveniens, and Litigation Against Multinational Corporations

This article outlines the litigation against multinational corporations. Specifically, it investigates a case brought against a United States-based corporation, Union Carbide, that owned 51% of stock in an Indian corporation that was responsible for a chemical plant gas leak. The leak resulted in the death of 2,100 people and the injuring of over 200,000. The intricacies of the case are discussed

Afterword

The author prefaces the afterword in the following manner: “Professors Goldsmith and Posner have given an insightful reply to my Article. It has been a pleasure to engage in a discussion of these issues with respected colleagues via this exchange of writings, and I am grateful to the Journal for providing the opportunity to do so. Most of the positions I have taken are already adequately discussed in the body of the Article, and this afterword is not intended to summarize all of the arguments made there. However, I wanted to address some of the points Professors Goldsmith and Posner make in their reply. I have organized this afterword using their numbering.

Presidential Certifications in U.S. Foreign Policy Legislation

This article has two purposes; the first is to assess the value of certification requirements by describing their operation in foreign affairs legislation and by accounting for their use and the controversies that attend them. The second purpose of this article is to suggest ways to minimize the costs of certification requirements. The findings are presented in four sections. The author begins by sketching the features of certification requirements in current legislation. Next, the author discusses the constitutional background out of which these requirements arise. Then, in what forms the greater part of this article, the author describes and evaluates the several uses of certification requirements. The author follows with a discussion of the costs such requirements impose and recommendations for minimizing those costs

Article 9 of the Constitution of Japan and Procedural and Substantive Heuristics for Consensus

Japan is considering changes to its constitution, including Article 9, which prohibits it from maintaining a military force. If amendments are made, it would mark the first time the Japanese constitution has been amended since its establishment in 1947. Professor Chinen examines the debates on Article 9 using scholarship on constitutions as providing heuristics for decision-making. Constitutions help overcome the problems of emotion and time-inconsistency. They also enable societies of different deliberative groups to avoid the pitfalls of deliberation by requiring groups to interact with one another and by providing opportunities for compromise through what Cass Sunstein refers to as incompletely theorized agreement. Drawing on work from J.M. Balkin, Professor Chinen argues such strategies and concepts share features common to all heuristic devices: they are cumulative, multi-functional, recursive, and lead to unintended results. This theory jibes well with the process and substance of the Japanese debates. The debates on Article 9 are taking place within and among deliberative groups in Japan. The formal constitutional requirements for amendment combine with features in Japanese society to require the various groups to interact with one another. The cumulative, multi-functional, and recursive nature of heuristics emerge in the themes in the debate. These features make agreement hard because the deliberative groups are familiar with the arguments being made for and against amending Article 9. Yet, the same concepts could enable incompletely theorized agreement on key issues. Finally, the net effect of these tools is that possible solutions to the amendment debate will solve some issues now raised by Article 9, but will create others

The Standard of Compensation for Takings

In international investment law there is a long-standing debate about the proper standard of compensation for takings. This article examines the expected and actual behaviors of the main actors--the investor and the host state--in investment transactions. After a brief description of the two compensation standards in Part II, Part III of this Article considers how a potential foreign investor and host state would likely behave if the investment is viewed from a business perspective

Jurisdiction: Foreign Plaintiffs, Forum Non Conveniens, and Litigation Against Multinational Corporations

This article outlines the litigation against multinational corporations. Specifically, it investigates a case brought against a United States-based corporation, Union Carbide, that owned 51% of stock in an Indian corporation that was responsible for a chemical plant gas leak. The leak resulted in the death of 2,100 people and the injuring of over 200,000. The intricacies of the case are discussed

Article 9 of the Constitution of Japan and Procedural and Substantive Heuristics for Consensus

Japan is considering changes to its constitution, including Article 9, which prohibits it from maintaining a military force. If amendments are made, it would mark the first time the Japanese constitution has been amended since its establishment in 1947. Professor Chinen examines the debates on Article 9 using scholarship on constitutions as providing heuristics for decision-making. Constitutions help overcome the problems of emotion and time-inconsistency. They also enable societies of different deliberative groups to avoid the pitfalls of deliberation by requiring groups to interact with one another and by providing opportunities for compromise through what Cass Sunstein refers to as incompletely theorized agreement. Drawing on work from J.M. Balkin, Professor Chinen argues such strategies and concepts share features common to all heuristic devices: they are cumulative, multi-functional, recursive, and lead to unintended results. This theory jibes well with the process and substance of the Japanese debates. The debates on Article 9 are taking place within and among deliberative groups in Japan. The formal constitutional requirements for amendment combine with features in Japanese society to require the various groups to interact with one another. The cumulative, multi-functional, and recursive nature of heuristics emerge in the themes in the debate. These features make agreement hard because the deliberative groups are familiar with the arguments being made for and against amending Article 9. Yet, the same concepts could enable incompletely theorized agreement on key issues. Finally, the net effect of these tools is that possible solutions to the amendment debate will solve some issues now raised by Article 9, but will create others