Constitutional Analogies in the International Legal System

This Article explores issues at the frontier of international law and constitutional law. It considers five key structural and systemic challenges that the international legal system now faces: (1) decentralization and disaggregation; (2) normative and institutional hierarchies; (3) compliance and enforcement; (4) exit and escape; and (5) democracy and legitimacy. Each of these issues raises questions of governance, institutional design, and allocation of authority paralleling the questions that domestic legal systems have answered in constitutional terms. For each of these issues, I survey the international legal landscape and consider the salience of potential analogies to domestic constitutions, drawing upon and extending the writings of international legal scholars and international relations theorists. I also offer some preliminary thoughts about why some treaties and institutions, but not others, more readily lend themselves to analysis in constitutional terms. And I distinguish those legal and political issues that may generate useful insights for scholars studying the growing intersections of international and constitutional law from other areas that may be more resistant to constitutional analogies

The ambivalent shadow of the pre-Wilsonian rise of international law

The generation of American international lawyers who founded the American Society of International Law in 1906 and nurtured the soil for what has been retrospectively called a “moralistic legalistic approach to international relations” remains little studied. A survey of the rise of international legal literature in the U.S. from the mid-19th century to the eve of the Great War serves as a backdrop to the examination of the boosting effect on international law of the Spanish American War in 1898. An examination of the Insular Cases before the US Supreme Court is then accompanied by the analysis of a number of influential factors behind the pre-war rise of international law in the U.S. The work concludes with an examination of the rise of natural law doctrines in international law during the interwar period and the critiques addressed.by the realist founders of the field of “international relations” to the “moralistic legalistic approach to international relation

Global standards of Constitutional law : epistemology and methodology

Just as it led the philosophy of science to gravitate around scientific practice, the abandonment of all foundationalist aspirations has already begun making political philosophy into an attentive observer of the new ways in which constitutional law is practiced. Yet paradoxically, lawyers and legal scholars are not those who understand this the most clearly. Beyond analyzing the jurisprudence that has emerged from the expansion of constitutional justice, and taking into account the development of international and regional law, the ongoing globalization of constitutional law requires comparing the constitutional laws of individual nations. Following Waldron, the product of this new legal science can be considered as ius gentium. This legal science is not as well established as one might like to think. But it can be developed on the grounds of the practice that consists in ascertaining standards. As abstract types of best “practices” (and especially norms) of constitutional law from around the world, these are only a source of law in a substantive, not a formal, sense. They thus belong to what I should like to call a “second order legal positivity.” In this article I will undertake, both at a methodological and an epistemological level, the development of a model for ascertaining global standards of constitutional law

Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution

The Internet relies on an underlying centralized hierarchy built into the domain name system (DNS) to control the routing for the vast majority of Internet traffic. At its heart is a single data file, known as the root. Control of the root provides singular power in cyberspace. This Article first describes how the United States government found itself in control of the root. It then describes how, in an attempt to meet concerns that the United States could so dominate an Internet chokepoint, the U. S. Department of Commerce (DoC) summoned into being the Internet Corporation for Assigned Names and Numbers (ICANN), a formally private nonprofit California corporation. DoC then signed contracts with ICANN in order to clothe it with most of the U. S. government\u27s power over the DNS, and convinced other parties to recognize ICANN\u27s authority. ICANN then took regulatory actions that the U. S. Department of Commerce was unable or unwilling to make itself, including the imposition on all registrants of Internet addresses of an idiosyncratic set of arbitration rules and procedures that benefit third-party trademark holders. Professor Froomkin then argues that the use of ICANN to regulate in the stead of an executive agency violates fundamental values and policies designed to ensure democratic control over the use of government power, and sets a precedent that risks being expanded into other regulatory activities. He argues that DoC\u27s use of ICANN to make rules either violates the APA\u27s requirement for notice and comment in rulemaking and judicial review, or it violates the Constitution\u27s nondelegation doctrine. Professor Froomkin reviews possible alternatives to ICANN, and ultimately proposes a decentralized structure in which the namespace of the DNS is spread out over a transnational group of policy partners with DoC

Implementation of virtual OSCE in Health Professions Education: a Systematic Review

Introduction: The Objective Structured Clinical Examination (OSCE) has been widely used in health professions education since the 1970s. The global disruption caused by the COVID-19 pandemic restricted in-person assessments and medical educators globally sought alternative means to assess and certify students and trainees to meet the acute demand for health-care workers. One such solution was through virtual OSCE (vOSCE), which modified traditional in-person OSCE using videoconference platforms. This meta-ethnography sought to synthesise qualitative literature on candidates' and assessors' experiences of vOSCE to evaluate whether it may have a role in future assessment practices. Methods: In June 2022, we systematically searched PsycINFO, Medline and ERIC for peer-reviewed qualitative and mixed-methods articles that described candidates' and assessors' experiences of virtual OSCE in health professions education. Of 1069 articles identified, 17 were synthesised using meta-ethnography. Results: The final synthesis represented 1190 candidates and assessors from faculties of medicine, dentistry, nursing, pharmacy and osteopathy. We developed our findings into four key concepts. ‘Strengthening confidence in a virtual environment’ highlighted attempts to overcome and mitigate concerns associated with transitioning from in-person to virtual assessment. ‘Understanding the scope of use as an assessment’ reflected on the suitability of vOSCE in assessing various skills. ‘Refining operational processes’ emphasised the technical challenges of implementing vOSCE and impacts on accessibility and resources. ‘Envisioning its future role’ considered the applicability of vOSCE in the climate of rapid development in telehealth. Conclusion: This meta-ethnography highlighted that although vOSCE was primarily considered a temporary and crisis response, candidates and assessors recognised positive, as well as negative, consequences of the transition towards them. Moving forward, medical education policymakers should carefully consider the extent to which elements of vOSCE could be incorporated into assessment systems, particularly in light of the rise of telehealth in clinical practice

Adoption of Problem-Based Learning in Medical Schools in Non-Western Countries: A Systematic Review

Phenomenon: In recent decades, medical education practices developed in Western countries have been widely adopted in non-Western countries. Problem-based Learning (PBL) was first developed in North America and it relies on Western educational and cultural values, thereby raising concerns about its 'lift and shift' to non-Western settings. Approach: This review systematically identified and interpretively synthesized studies on students' and teachers' experiences of PBL in non-Western medical schools. Three databases (ERIC, PsycINFO, and MEDLINE) were searched. Forty-one articles were assessed for quality using the Critical Appraisal Skills Program (CASP) checklist and synthesized using meta-ethnography. The final synthesis represented over 5,400 participants from 18 countries. Findings: Findings were categorized into three different constructs: Student Engagement, Tutor Skills, and Organization and Planning. Our synthesis demonstrates that medical students and teachers in non-Western countries have varied experiences of PBL. Students engage variably with PBL, consider knowledge to be better acquired from authoritative figures, and deem PBL to be ineffective for assessment preparation. Student participation is limited by linguistic challenges when they are not native English speakers. Teachers are often unfamiliar with the underlying philosophical assumptions of PBL and struggle with the facilitation style needed. Both students and teachers have developed modifications to ensure that PBL better fits in their local settings. Insights: Given the significant adjustments and resource requirements needed to adopt PBL, medical school leaders and policy makers in non-Western countries should carefully consider possible consequences of its implementation for their students and teachers, and proactively consider ways to 'hybridize' it for local contexts