Print Archives

Should the United States, as the strongest military power in the world, be bound by stricter humanitarian constraints than its weaker adversaries? Would holding the U.S. to higher standards than the Taliban, Iraqi insurgents, or the North Korean army yield an overall greater humanitarian welfare or be otherwise justified on the basis of international justice theories? Or would it instead be an unjustifiable attempt to curb American power, a form of dangerous “lawfare”?

The paper offers an analytical framework through which to examine these questions. It draws on the design of international trade and climate agreements, where obligations have been linked to capabilities through the principle of Common-but-Differentiated Responsibilities (CDRs), and inquires whether the justifications that have been offered for CDRs in these other regimes are transposable to the laws of war. More broadly, the framework tests the extent to which war can and should be equated to other phenomena of international relations or whether it is a unique context that resists foreign analogies.

Rather than offering a definitive answer, the inquiry illuminates the types of judgments and predictions that one must hold in order to have a position on the desirability of CDRs in international humanitarian law, most notably, the degree to which weaker adversaries will be prone to abusing further constraints on stronger enemies, the expected effects of CDRs on the propensity to go to war, who on the enemy’s side is the “enemy,” and what are the duties that are owed to one’s enemies.

Read full article (PDF)

In each of the three largest economies with dispersed ownership of public companies—the United States, the United Kingdom, and Japan—hostile takeovers emerged under a common set of circumstances. Yet the national regulatory responses to these new market developments diverged substantially. In the United States, the Delaware judiciary became the principal source and enforcer of rules on hostile takeovers. These rules give substantial discretion to target company boards in responding to unsolicited bids. In the United Kingdom, by contrast, a private body consisting of market professionals was formed to adopt and enforce the rules on hostile bids and defenses. In contrast to those of the United States, the U.K. rules give the shareholders primary decisionmaking authority in responding to hostile takeover attempts. The hostile takeover regime in Japan, which developed recently and is still evolving, combines substantive rules with elements drawn from both the United States (Delaware) and the United Kingdom, while adding distinctive elements, including an independent enforcement role for Japan’s stock exchange.

This Article provides an analytical framework for business law development to explain the diversity in hostile takeover regimes in these three countries. The framework identifies a range of supply and demand dynamics that drives the evolution of business law in response to new market developments. It emphasizes the common role of subordinate lawmakers in filling the vacuum left by legislative inaction, and it highlights the prevalence of “preemptive lawmaking” to avoid legislation that may be contrary to the interests of important corporate governance players.

Extrapolating from the analysis of developed economies, the framework also illuminates the current state and plausible future trajectory of hostile takeover regulation in the important emerging markets of China, India, and Brazil. A noteworthy pattern that the analysis reveals is the ostensible adoption—and adaptation—of “best practices” for hostile takeover regulation derived from Delaware and the United Kingdom in ways that protect important interests within each emerging market’s national corporate governance system.

Read full article (PDF)

Long cherished by liberal political philosophers, today the rule of law is increasingly viewed as a necessary requirement, or even silver bullet, for economic development. The past decade has seen the rise of a veritable industry—multilateral development banks, government development agencies, and nongovernmental aid organizations—committed to promoting the rule of law through legal and judicial reform in developing countries. This Article considers the emergence of a new rule of law orthodoxy within contemporary development theory and, in particular, the World Bank’s development model. It asks how and why the Bank has embraced the rule of law discourse, and offers a brief genealogy of the rule of law within the Bank’s theorizing. It argues that the Bank’s interest in law was primarily a response to the critique and failure of its neoliberal policies and identifies the new discourse’s affinities with the rise of New Institutional Economics and “good governance” in the 1990s. Under the Bank’s view, the law’s value for economic development lies in its ability to provide a stable investment environment and the predictability necessary for markets to operate. The role of law is reduced to the facilitation of utility maximizing exchange and optimal market allocation, a view that informs many of the Bank’s specific law reform projects. More a rhetorical shift than a fundamental break in development theorizing, the Bank’s turn to law actually undergirds many continued neoliberal assumptions and masks a continuation of neoliberalism’s core tenets. The new discourse is attractive precisely because it provides strong ideological support for the neoliberal agenda.

Read full article (PDF)

Abstract:

Comparative constitutional law scholarship has largely ignored political institutions. It has therefore failed to realize that radical differences in the configuration of political institutions should bear upon the way courts do their jobs. This Article develops a comparative theory of judicial role that focuses on broad differences in political context, and particularly in party systems, across countries. I use the jurisprudence of the Colombian Constitutional Court (supplemented by briefer studies of the Hungarian and South African Constitutional Courts) to demonstrate how differences in political institutions ought to impact judicial role. Because Colombian parties are unstable and poorly tied to civil society, the Colombian Congress has difficulty initiating policy, monitoring the enforcement of policy, and checking presidential power. The Court has responded by taking many of these functions into its own hands. I argue that the Court’s actions are sensible given Colombia’s institutional context, even though virtually all existing theories of judicial role in American and comparative public law would find this kind of legislative-substitution inappropriate. Existing theories rest upon assumptions about political institutions that do not hold true in much of the developing world. The American focus on the anti-democratic nature of judicial action assumes a robust constitutional culture outside the courts and a legislature which does a decent job representing popular will—both assumptions tend to be false in newer democracies. The case studies demonstrate that comparative public law scholars must be attentive to political context in order to build tools suitable for evaluating the work of courts outside the United States.

Abstract:

Scholars have long understood that the instability of power has ramifications for compliance with international law. Scholars have not, however, focused on how states’ expectations about shifting power affect the initial design of international agreements. In this paper, I integrate shifting power into an analysis of the initial design of both the formal and substantive aspects of agreements. I argue that a state expecting to become more powerful over time incurs an opportunity cost by agreeing to formal provisions that raise the cost of exiting an agreement. Exit costs—which promote the stability of legal rules—have distributional implications. Before joining an agreement, an “ascendant” state will therefore often require either a greater share of the benefits from cooperation, or a reduction in exit costs through the use of formal provisions such as withdrawal clauses, sunset clauses, and provisions affecting the legality of an agreement. I analyze how states determine which concessions to make in order to reach agreement with an ascendant state. This analysis helps explain a number of puzzles in the international legal literature, such as why states with poor compliance rates are sometimes observed to join international agreements at the same or higher rates than states with good compliance rates; why weak agreements often evolve into more constraining agreements; and why multilateral agreements are more likely to have low exit costs than bilateral agreements.

Abstract:

Although the 3000 international investment treaties concluded since the end of World War II are separate and distinct international legal instruments, they constitute, as a group, an emerging global regime for investment. Drawing on regime theory from the field of international relations, this Article examines the elements of the international investment regime, the reasons for its development, the goals that it pursues, and the challenges that it faces. While having all the characteristics of other international regimes, the investment regime also has three unique features: it has been bilaterally, rather than multilaterally, constructed; it decentralizes and privatizes decisionmaking processes; and it is not based on a multilateral international organization. All of these features have significant consequences for the functionality and sustainability of the regime. The regime also faces four major challenges: (1) disappointing regime results; (2) perceived defective decisionmaking processes and unjustified constraints on national sovereignty; (3) divergence of participant expectations; and (4) the impact of national and global economic crises. On the other hand, certain other factors tend to give the regime a sticky quality that makes the departure of members difficult. Nonetheless, the international investment regime will require wise management and flexible leadership in the future if it is to withstand these challenges and achieve its potential.