The Persistence of Dualism in Human Rights Treaty Implementation

A traditional account of federalism in the United States places international law and foreign affairs squarely within the province of the federal government. Nonetheless, subnational participation in matters of international law and foreign affairs is now both a reality and a necessity. From cross-border initiatives on environmental protection and health care, to state-level divestment legislation, to programs to implement the Kyoto Protocol, the United States speaks with diverse and divergent voices in the international arena. Moreover, given the significant areas of jurisdictional authority exercised by the states, the United States cannot meet its international legal commitments without state and local cooperation. Thus, a growing body of scholarship considers how best to engage cities and states in advancing local goals on the international stage and argues for legislative and jurisprudential initiatives to create and preserve opportunities for state-level innovation

Evaluating International State Constitutionalism

This Essay is part of the Symposium on State Constitutional Law in Honor of the late Washington State Supreme Court Justice Robert F. Utter that was held on October 23, 2015

Creating an ICSID Appellate Body

Since the creation of the International Centre for Settlement of Investment Disputes (ICSID) over forty years ago, states have increasingly relied on this body to resolve conflicts in bilateral investment treaties (BITs). In light of such exponential growth in the number of disputes brought to the ICSID, the ICSID Secretariat has proposed the adoption of an optional appellate body to promote coherence and consistency in ICSID arbitrations. This comment argues that, given the realities of tribunal decision-making and of the interdependent global economy, states should consider taking steps towards reforming the ICSID system as a way of maximizing their remaining sovereignty and autonomy

The Judicial Role in New Democracies: A Strategic Account of Comparative Citation

The United States Supreme Court has come under fire in recent years for its occasional references to foreign and international law. Critics suggest that the practice is undemocratic, displacing democratically developed norms for those of the international community. This Article challenges this critique via reference to the comparative citation practice of successful judiciaries in new democracies around the world. When institutional failures and international pressures threaten the democratic accountability of elected institutions, as they do in most countries in political transition, jurists may strategically use foreign and international law as a tool of diagonal accountability to mediate between domestic and international actors in ways that build the legitimacy of national political institutions and create space for democratic deliberations to occur. Thus, contrary to the dominant critique, this Article suggests that when democratic legitimacy is challenged, comparative citation can be part of the solution, rather than part of the problem. Moreover, given the important work that comparative citation can do in transitional regimes, labeling it as undemocratic can itself undermine institutional legitimacy, particularly in new or weak democracies

Renewing Educational Autonomy

American colleges and universities are facing an unprecedented wave of state legislative actions calling into question the freedom that these institutions have long enjoyed, as well as their ability to serve increasingly diverse student populations. Current constitutional protections for academic freedom under the First Amendment are proving an inadequate defense from these types of incursions. This Article argues for a reexamination and reinvigoration of a constitutional theory of educational autonomy protected by substantive due process, drawing on both the pre-colonial models that informed the creation of American colleges, as well as the earliest cases involving state efforts to control them. Substantive due process protections for educational autonomy would enhance and reinforce First Amendment academic freedom to ensure that American colleges and universities can continue to fulfill their important historical mission, while being responsive to the educational needs of today’s students