Papers by Andrew Friedman
Review of Boumediene v. Bush, including the political context and jurisprudential impact.
The Fletcher Forum on World Affairs, 2018
The failure to address traditional cleavages in African society through governance has been deeme... more The failure to address traditional cleavages in African society through governance has been deemed a " tragic policy failure " by prominent scholars. With this in mind, the substantial heterogeneity in most African states creates a problem for the creation of government institutions, where too great a focus on traditional, ethnolinguistic categories may exacerbate tensions and issues while pretending such cleavages do not exist is no greater recipe for success. This paper examines the way the Upper House or Second Chamber in bicameral, federalist states can be used to bring into governance traditional categories. It also examines other ways in which such categories can be a part of governance, either formally or informally. It concludes that there are a variety of ways for traditional cleavages to play a role in government, including formal inclusion in the Upper House or a more informal role such as party politics or in the creation of subnational units.
Perhaps the greatest trouble with constitutional drafting is its tendency to look backward, at t... more Perhaps the greatest trouble with constitutional drafting is its tendency to look backward, at the country’s own political and legal history along with international comparative sources, that were most often drafted y looking backwards in their own right. While this is problematic for a number of reasons, one of the more prominent is that it makes it difficult to find a textual basis for regulation of modern technologies. While such technologies must be dealt with, they are often brought in by judges who can be unprepared for such technological analysis. This paper provides a history of “influential” constitutions and the circumstances that brought about privacy and search and seizure provisions, along with drafting recommendations that will alleviate this problem for future drafters.
Since Mohammed Bouazizi’s self-immolation set off a series of revolutions across the Middle East ... more Since Mohammed Bouazizi’s self-immolation set off a series of revolutions across the Middle East and North Africa, the landscape of international democracy has been rapidly changing. Such changes have left much of the developed world clamoring for the appropriate response. This debate takes place in two important arenas.
The debate is taking place in the halls of governance in places like Washington D.C., London and Paris. Western governments have been left with difficult decisions regarding the level and types of support to give to pro-democracy forces in previously despotic societies. This debate rages amongst scholars and policymakers throughout the world.
The second part of the debate is how private multi-national businesses that operate within transitioning countries should react. Lessons for multi-national corporations wishing to facilitate positive change can draw on the experience of South Africa in its transition from Apartheid to majority rule.
As the anti-Apartheid social movement gained steam globally, it became increasingly difficult for corporations to conduct business in South Africa. This was a result both of the popular disinvestment and boycott movement that successfully turned the state into an international pariah and an increase in legislation forbidding such contact. This included legislation such as the Comprehensive anti-Apartheid Act disallowing new investments in Apartheid South Africa and budgetary and taxation sanctions being placed on businesses that chose to continue historical business with the country.
While many firms opted to disinvest from the country, a number of corporations chose to remain in the country under a policy of “constructive engagement.” This policy rested on the idea that corporations were able to greater facilitate positive change through engagement with the regime than through complete boycott and withdrawal. The centerpiece of this argument was the Sullivan Principles; a series of recommendations developed that included guidance on working conditions and political action that, if followed, would allow corporations choosing to remain in South Africa to assist the transition to majority rule.
Among the many countries that have experienced some form of social upheaval since 2009 are three states in the world’s top ten in proven oil reserves. The states also include immensely popular tourist destinations with some of the world’s great wonders. These unique and immovable attributes make it far less likely that a boycott or disinvestment campaign will work as well as it did in Apartheid South Africa. Simply put, while IBM could withdraw from South Africa and continue its work, British Petroleum could not leave Libya and continue to drill oil at the same pace.
This simple fact makes it all the more important to analyze the successes and failure of the Sullivan Principles and Constructive Engagement with an eye towards policy recommendations in democratizing states. The simple question is, what can businesses do to affect positive, democratic change in a world where they cannot boycott or disinvest? My research attempts to answer that question through a group of principles modeled after Reverend Sullivan’s original list.
Akron Law Review (Forthcoming)
14 Oregon Review of International Law 253 (2012)
In recent years many international organizations and media outlets have trumpeted the development... more In recent years many international organizations and media outlets have trumpeted the development success of Rwanda as a model for the rest of the developing world. At the heart of this development success has been Rwandan President Paul Kagame. A controversial figure, he is considered a development visionary by some and a tyrant by others. The evidence seems to point to both being, at least partially, true.
The paper examines various aspects of Kagame’s Rwandan development model to determine whether or not the model is compatible with a democratic society. The recent wave of transition in states throughout the Middle East and North Africa has created hope for enhanced freedom and democracy throughout the region. Unfortunately, the movements that gave rise to such transition have stunted development, creating questions that must be answered for future national success. The ability to square elements of Rwandan development with a democratic society that respects human and political rights would be a tremendous step towards an answer to these questions.
The paper concludes that while the Rwandan model is not inherently incompatible with democracy, it does consolidate power in a manner that is conducive to authoritarianism. This model should not be thrown out for emerging democracies, but its facets should be used with care in an effort to avoid authoritarian slides.
44 Suffolk Law Review 873 (2011), 2011
A constant complaint against the use of foreign jurisprudence in domestic constitutional law is t... more A constant complaint against the use of foreign jurisprudence in domestic constitutional law is the possibility of "Cherry-Picking," or the choice of a policy by a Justice that is justified by an after-the-fact survey of foreign law that discovers the desired result. This paper is an effort to classify criteria that have been used when determining what foreign decisions to examine in constitutional court cases.
7 Brigham Young University International Law and Management Review 37 (2011)
The recent arbitration of Piero Foresti et al v. Republic of South Africa opened several question... more The recent arbitration of Piero Foresti et al v. Republic of South Africa opened several questions that will no doubt have tremendous implications going forward in the world of international investment. It concerned the rights of investors weighed against the right of a host state to pass legislation in an effort to remedy past discrimination. The paper suggests a flexible method for review of such cases in an effort to allow host states to fulfill internationally recognized goals such as remedying past discrimination and marginalization.
4 Mexican Law Review 77 (2011)
The 2009 Honduran constitutional crisis, in which sitting President Manuel Zelaya was captured fr... more The 2009 Honduran constitutional crisis, in which sitting President Manuel Zelaya was captured from the Presidential Palace and flown to Costa Rica under the cover of night, illuminated the danger of entrenched and eternity clauses in fledgling democracies. This paper discusses the way such clauses have been used in the past, identifying three general categories of historical eternity clauses. These categories include clauses that address the character of the government, the spirit or principles of the constitutional regime and finally the character of the country. The article also discusses potential problems that arise when such clauses are written into constitutions of transitional democratic regimes.
12 University of Botswana Law Journal 73 (2011)
Conference Presentations by Andrew Friedman
Drafts by Andrew Friedman
Does international law matter in situations where it is non-binding? This study endeavors to dete... more Does international law matter in situations where it is non-binding? This study endeavors to determine in what situations international law, in particular international human rights conventions, are useful despite not having been ratified by states. In order to answer this question, the paper surveys the ways non-binding international law is influential in domestic legal regimes, both as a guide to policymakers and in jurisprudence. Further, the paper looks at case studies of South Africa, Zimbabwe and Myanmar; so-called "international pariah states;" where international law has played a significant role in advocacy as the states work to return to the "international community." It also examines potential backlash to the use of international law in for advocacy in authoritarian and despotic states.
Across this examination, the paper finds that in many states the justiciability and applicability of international law is unclear, including significant questions of what actors are bound by its tenets, when such application begins and if, in federal states, sub-national units are so bound. This lack of clarity makes international law's usefulness in non-binding scenarios all the more important. The paper also concludes that if acceptance of international law is removed as a precondition for being a part of the international community, with the requisite economic and reputational incentives, international law will lose much of its power in non-binding scenarios.
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Papers by Andrew Friedman
The debate is taking place in the halls of governance in places like Washington D.C., London and Paris. Western governments have been left with difficult decisions regarding the level and types of support to give to pro-democracy forces in previously despotic societies. This debate rages amongst scholars and policymakers throughout the world.
The second part of the debate is how private multi-national businesses that operate within transitioning countries should react. Lessons for multi-national corporations wishing to facilitate positive change can draw on the experience of South Africa in its transition from Apartheid to majority rule.
As the anti-Apartheid social movement gained steam globally, it became increasingly difficult for corporations to conduct business in South Africa. This was a result both of the popular disinvestment and boycott movement that successfully turned the state into an international pariah and an increase in legislation forbidding such contact. This included legislation such as the Comprehensive anti-Apartheid Act disallowing new investments in Apartheid South Africa and budgetary and taxation sanctions being placed on businesses that chose to continue historical business with the country.
While many firms opted to disinvest from the country, a number of corporations chose to remain in the country under a policy of “constructive engagement.” This policy rested on the idea that corporations were able to greater facilitate positive change through engagement with the regime than through complete boycott and withdrawal. The centerpiece of this argument was the Sullivan Principles; a series of recommendations developed that included guidance on working conditions and political action that, if followed, would allow corporations choosing to remain in South Africa to assist the transition to majority rule.
Among the many countries that have experienced some form of social upheaval since 2009 are three states in the world’s top ten in proven oil reserves. The states also include immensely popular tourist destinations with some of the world’s great wonders. These unique and immovable attributes make it far less likely that a boycott or disinvestment campaign will work as well as it did in Apartheid South Africa. Simply put, while IBM could withdraw from South Africa and continue its work, British Petroleum could not leave Libya and continue to drill oil at the same pace.
This simple fact makes it all the more important to analyze the successes and failure of the Sullivan Principles and Constructive Engagement with an eye towards policy recommendations in democratizing states. The simple question is, what can businesses do to affect positive, democratic change in a world where they cannot boycott or disinvest? My research attempts to answer that question through a group of principles modeled after Reverend Sullivan’s original list.
The paper examines various aspects of Kagame’s Rwandan development model to determine whether or not the model is compatible with a democratic society. The recent wave of transition in states throughout the Middle East and North Africa has created hope for enhanced freedom and democracy throughout the region. Unfortunately, the movements that gave rise to such transition have stunted development, creating questions that must be answered for future national success. The ability to square elements of Rwandan development with a democratic society that respects human and political rights would be a tremendous step towards an answer to these questions.
The paper concludes that while the Rwandan model is not inherently incompatible with democracy, it does consolidate power in a manner that is conducive to authoritarianism. This model should not be thrown out for emerging democracies, but its facets should be used with care in an effort to avoid authoritarian slides.
Conference Presentations by Andrew Friedman
Drafts by Andrew Friedman
Across this examination, the paper finds that in many states the justiciability and applicability of international law is unclear, including significant questions of what actors are bound by its tenets, when such application begins and if, in federal states, sub-national units are so bound. This lack of clarity makes international law's usefulness in non-binding scenarios all the more important. The paper also concludes that if acceptance of international law is removed as a precondition for being a part of the international community, with the requisite economic and reputational incentives, international law will lose much of its power in non-binding scenarios.
The debate is taking place in the halls of governance in places like Washington D.C., London and Paris. Western governments have been left with difficult decisions regarding the level and types of support to give to pro-democracy forces in previously despotic societies. This debate rages amongst scholars and policymakers throughout the world.
The second part of the debate is how private multi-national businesses that operate within transitioning countries should react. Lessons for multi-national corporations wishing to facilitate positive change can draw on the experience of South Africa in its transition from Apartheid to majority rule.
As the anti-Apartheid social movement gained steam globally, it became increasingly difficult for corporations to conduct business in South Africa. This was a result both of the popular disinvestment and boycott movement that successfully turned the state into an international pariah and an increase in legislation forbidding such contact. This included legislation such as the Comprehensive anti-Apartheid Act disallowing new investments in Apartheid South Africa and budgetary and taxation sanctions being placed on businesses that chose to continue historical business with the country.
While many firms opted to disinvest from the country, a number of corporations chose to remain in the country under a policy of “constructive engagement.” This policy rested on the idea that corporations were able to greater facilitate positive change through engagement with the regime than through complete boycott and withdrawal. The centerpiece of this argument was the Sullivan Principles; a series of recommendations developed that included guidance on working conditions and political action that, if followed, would allow corporations choosing to remain in South Africa to assist the transition to majority rule.
Among the many countries that have experienced some form of social upheaval since 2009 are three states in the world’s top ten in proven oil reserves. The states also include immensely popular tourist destinations with some of the world’s great wonders. These unique and immovable attributes make it far less likely that a boycott or disinvestment campaign will work as well as it did in Apartheid South Africa. Simply put, while IBM could withdraw from South Africa and continue its work, British Petroleum could not leave Libya and continue to drill oil at the same pace.
This simple fact makes it all the more important to analyze the successes and failure of the Sullivan Principles and Constructive Engagement with an eye towards policy recommendations in democratizing states. The simple question is, what can businesses do to affect positive, democratic change in a world where they cannot boycott or disinvest? My research attempts to answer that question through a group of principles modeled after Reverend Sullivan’s original list.
The paper examines various aspects of Kagame’s Rwandan development model to determine whether or not the model is compatible with a democratic society. The recent wave of transition in states throughout the Middle East and North Africa has created hope for enhanced freedom and democracy throughout the region. Unfortunately, the movements that gave rise to such transition have stunted development, creating questions that must be answered for future national success. The ability to square elements of Rwandan development with a democratic society that respects human and political rights would be a tremendous step towards an answer to these questions.
The paper concludes that while the Rwandan model is not inherently incompatible with democracy, it does consolidate power in a manner that is conducive to authoritarianism. This model should not be thrown out for emerging democracies, but its facets should be used with care in an effort to avoid authoritarian slides.
Across this examination, the paper finds that in many states the justiciability and applicability of international law is unclear, including significant questions of what actors are bound by its tenets, when such application begins and if, in federal states, sub-national units are so bound. This lack of clarity makes international law's usefulness in non-binding scenarios all the more important. The paper also concludes that if acceptance of international law is removed as a precondition for being a part of the international community, with the requisite economic and reputational incentives, international law will lose much of its power in non-binding scenarios.