A Reply to Professor D\u27Amato

In the foregoing article, Professor D\u27Amato has taken issue with a number of arguments I raised in an article published in a recent issue of the Vanderbilt Journal of Transnational Law. In this reply, I attempt to refute his criticisms. The discussion that follows briefly recapitulates my article. I then seek to deal with the points made in Professor D\u27Amato\u27s response one by one. My article addressed an aspect of the relationship between treaties and customary international law. Taking as a starting point the assumption that treaties can be an element of the state practice necessary to constitute customary law, the article inquired whether treaties were so important a form of state practice that one could derive rules of customary law solely from treaties, even in the face of other types of practice coterminous with relevant treaties but inconsistent with them. It concluded that treaties were not such strong determinants of customary law that they could, in effect, overwhelm other types of practice. The article sought to demonstrate this conclusion through three lines of argument. First, it described instances in which customary law had developed rules that ran contrary to existing treaties. Second, it showed that treaties themselves can be modified through practice, arguing that, if a treaty itself is not immune to modification through practice, then customary law can hardly be immune to similar modification merely because treaties exist relating to the area of customary law in question. Third, the article argued that a particular subclass of treaties--those that can be seen as denying the existence of customary rules on the subject governed by the treaty--ought not be seen as constitutive of custom in that they deny the existence of the opinio juris element of custom. This portion of the argument focused specifically on international conventions forbidding states parties to engage in torture and asserted that such conventions, in effect, denied the existence of a duty outside the convention to refrain from torture. Thus, these conventions should not be seen as the basis of a customary rule against torture. Finally, the article addressed certain arguments contrary to those it made

Territorial Authority and Personal Jurisdiction

This Article seeks to show that the Supreme Court was correct in its implicit assertion in World- Wide Volkswagen v. Woodson that, given the nature of the federal system, the authority of American states is territorially limited. It further seeks to determine the content of the general territorial limitations on state authority and to deduce the particular limitations that should apply to personal jurisdiction. The Article concludes that the Supreme Court was correct in asserting that the logic of the federal system requires the conclusion that a state may assert jurisdiction only over nonresidents who have liability-related contacts with state territory. The Articles also concludes, however, that the federalism argument does not logically support the requirement that the defendant\u27s contacts be intentional. This Article will achieve its objectives through a three-part discussion. Part I provides a brief description of the development of the law of personal jurisdiction in the United States. In Part II, the Article presents in detail the arguments supporting the conclusions described above. Part III will refute various arguments that have been raised attacking territory-based jurisdictional analysis

American Judges and International Law

This article addresses an issue with which federal courts have been forced to deal with increasing frequency: How ought a judge go about determining the content of customary international law? The article seeks to demonstrate, using the example of the treatment of the concept of jus cogens by the courts of appeals, that federal courts have come to rely on doubtful sources in addressing questions of international law. More specifically, it sets out to show that courts frequently do not rely on the actual practice of governments to determine the content of customary international law, which would seem to be required both by the nature of customary international law and by Supreme Court authority. Rather, they have come to place weight on the works of writers whose conclusions are based on questionable authority, on the Restatement of Foreign Relations Law, on the views of other domestic courts, and on the decisions of international courts. The article explains the problems with relying on such sources, and briefly describes an alternative method of proceeding for cases involving an area of customary international law most frequently before American courts, the law of human rights

Customary International Law: The Problem of Treaties

This Article will not seek to address all issues concerning the sources of customary international law; the subject is too vast for treatment at anything less than book length. Rather, this Article will focus on one category of possible sources--international treaties. Of course, if one considers treaties purely as treaties, they affect relationships between states parties to them, but treaties as treaties are not the subject here. Rather, the inquiry here is, since customary law depends on the practice of states, and because one form of practice in which states engage is entering into treaties, what weight should the legal community accord this particular form of state practice when determining the content of customary law? The importance of this question to the more general issue of the sources of customary law is, one hopes, obvious. Treaties, like statutes, are legal documents, more or less precisely phrased and accessible with relative ease. The more weight given to them in the determination of customary law rules, the easier it is to make such determinations. Conversely, if one considers treaties as merely one more form of state practice, one cannot answer questions as to the content of custom by looking solely at the text of relevant treaties; rather, it becomes necessary to undertake the difficult and confusing effort of figuring out what states are actually doing in the world

Territorial Authority and Personal Jurisdiction

This Article seeks to show that the Supreme Court was correct in its implicit assertion in World- Wide Volkswagen v. Woodson that, given the nature of the federal system, the authority of American states is territorially limited. It further seeks to determine the content of the general territorial limitations on state authority and to deduce the particular limitations that should apply to personal jurisdiction. The Article concludes that the Supreme Court was correct in asserting that the logic of the federal system requires the conclusion that a state may assert jurisdiction only over nonresidents who have liability-related contacts with state territory. The Articles also concludes, however, that the federalism argument does not logically support the requirement that the defendant\u27s contacts be intentional. This Article will achieve its objectives through a three-part discussion. Part I provides a brief description of the development of the law of personal jurisdiction in the United States. In Part II, the Article presents in detail the arguments supporting the conclusions described above. Part III will refute various arguments that have been raised attacking territory-based jurisdictional analysis

The Executive Branch and International Law

Public international law, through its rules regulating the dealings between independent nations, purports to impose limits on the actions of all governments, including those of the United States. In this context American lawyers interested in foreign relations may reasonably wonder whether American courts would enforce rules of public international law purporting to bind the United States against the United States government, particularly the executive branch. A fair number of Supreme Court cases have dealt with the enforce ability of treaties in American courts.\u27 Treaties, however, are only one source of international law. The other important source, customary international law, is neither expressly mentioned in the Constitution nor much discussed in Supreme Court cases. Customary international law also differs in important respects from treaties. Treaties are by necessity purely consensual arrangements between the parties. Rules of customary law, as the definition implies, are matters of general practice that can come into existence if a practice can fairly be labelled general. Thus, a state that did not actively participate in the practice that culminated in the creation of a rule could find itself bound by the rule anyway, at least if that state did not actively dissent during the period of the rule\u27s gestation. Recently, the question whether the federal courts have the authority to compel the President to adhere to rules of customary international law has drawn comment from writers interested in the subject. Some have taken the position that the courts in fact possess such authority, at least when Congress has not by statute established for the United States a rule different from that which international law would apply to the issue in question.\u27 According to these writers, one withstanding to complain of a contemplated presidential action that would violate customary international law should be able to obtain from a federal court an injunction forbidding the action. For example, some have suggested that the federal courts could, on the basis of customary inter-national law, forbid the Executive to mine Nicaragua\u27s harbors or control the Executive\u27s treatment of undocumented aliens... This Article argues that the President is not bound by international law. Of course, when statutes or constitutional provisions duplicate rules of international law, the President would act unlawfully if he violated these statutes or constitutional provisions. Whether the act was also a violation of international law would be irrelevant

Editorial: crime patterns in time and space: the dynamics of crime opportunities in urban areas

The routine activity approach and associated crime pattern theory emphasise how crime emerges from spatio-temporal routines. In order to understand this crime should be studied in both space and time. However, the bulk of research into crime patterns and related activities has investigated the spatial distributions of crime, neglecting the temporal dimension. Specifically, disaggregation of crime by place and by time, for example hour of day, day of week, month of year, season, or school day versus none school day, is extremely relevant to theory. Modern data make such spatio-temporal disaggregation increasingly feasible, as exemplified in this special issue. First, much larger data files allow disaggregation of crime data into temporal and spatial slices. Second, new forms of data are generated by modern technologies, allowing innovative and new forms of analyses. Crime pattern analyses and routine activity inquiries are now able to explore avenues not previously available. The unique collection of nine papers in this thematic issue specifically examine spatio-temporal patterns of crime to; demonstrate the value of this approach for advancing knowledge in the field; consider how this informs our theoretical understanding of the manifestations of crime in time and space; to consider the prevention implications of this; and to raise awareness of the need for further spatio-temporal research into crime event

Introducing EMMIE: An evidence rating scale to encourage mixed-method crime prevention synthesis reviews

Objectives This short report describes the need for, and the development of, a coding system to distil the quality and coverage of systematic reviews of the evidence relating to crime prevention interventions. The starting point for the coding system concerns the evidence needs of policymakers and practitioners. Methods The coding scheme (EMMIE) proposed builds on previous scales that have been developed to assess the probity, coverage and utility of evidence both in health and criminal justice. It also draws on the principles of realist synthesis and review. Results The proposed EMMIE scale identifies five dimensions to which systematic reviews intended to inform crime prevention should speak. These are the Effect of intervention, the identification of the causal Mechanism(s) through which interventions are intended to work, the factors that Moderate their impact, the articulation of practical Implementation issues, and the Economic costs of intervention