This chapter describes the various ways that using international law as smart power can help to b... more This chapter describes the various ways that using international law as smart power can help to bring an end to America’s wars. These include concluding the war against Al Qaeda and the Islamic State through a combination of hard and soft power, and reexamining the doctrine of humanitarian intervention (or Responsibility to Protect (R2P)) as a means of jumpstarting stalled diplomacy backed by force in Syria. Ending America’s Forever War would mean disengaging from America’s longest war in Afghanistan, finally closing Guantanamo, and narrowing and ultimately repealing two open-ended congressional Authorizations for Use of Military Force that have existed since 2001.
The United States’ April 6, 2017 missile strikes against Syria raise three fundamental questions ... more The United States’ April 6, 2017 missile strikes against Syria raise three fundamental questions about how we should assess military interventions taken for humanitarian ends but without Security Council authorization: First, is unilateral humanitarian intervention per se illegal under international and domestic law—what I call the “never/never rule”? Second, were the Trump Administration's April 6, 2017 strikes per se illegal under international and domestic law? And third, going forward, can we live with the status quo, where in state practice, unilateral humanitarian intervention seems to occur regularly, without being formally justified in law?
At the 2010 Review Conference in Kampala, the states parties to the Rome Statute of the Internati... more At the 2010 Review Conference in Kampala, the states parties to the Rome Statute of the International Criminal Court (ICC) decided to adopt seven amendments to the Rome Statute that contemplate the possibility of the Court exercising jurisdiction over the crime of aggression subject to certain conditions. One condition was that the exercise of jurisdiction would be “subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute,” and another was that such jurisdiction could be exercised “only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.” As these dates approach, we—two lawyers who represented the United States at the Kampala conference and who worked many hours on the United States’ reengagement with the ICC during the Obama administration—thought it an appropriate moment to take stock of where we ar...
Problems Approach. The introductory chapters are followed by eight problems, each focused on a di... more Problems Approach. The introductory chapters are followed by eight problems, each focused on a different kind of transaction: transnational sales, agency and distributorship agreements, licensing, foreign direct investment, mergers and acquisitions, joint ventures, development agreements, and international debt instruments. Each problem covers both contractual and regulatory issues. Nearly all begin with a sample contract.
ments of events." Indeed, history had helped establish an order where, in foreign relations,... more ments of events." Indeed, history had helped establish an order where, in foreign relations, the executive branch had predominated on political issues and the Congress on economic issues. Yet both branches of government and both political parties currently had been fundamentally letting down the country and the world community. On the economic side, a Democratic Congress had been pushing for parochial economic policies. On the political side, the Reagan Administration had been tapping irrational nationalistic tendencies and making the world less safe, as in the case of its policies in Central America and its withdrawal from the jurisdiction of the International Court of Justice (ICJ) in the Nicaragua litigation. Whenever Congress had succumbed and abdicated any of its constitutional powers, it often had reacted by trying to intrude on the constitutional turf of the Executive, Congressman LEACH maintained. It had done this by getting involved in the treatymaking, rather than the...
Remarks from Scott Gilbert, Harold Hongju Koh, and Larry Tu. In addition to being college and law... more Remarks from Scott Gilbert, Harold Hongju Koh, and Larry Tu. In addition to being college and law school classmates with Ralph, Scott and Larry lived with him in law school, and Harold shared an apartment with him in Washington, D.C. at the start of their legal careers. Their close lifelong friendships continued over the decades that followed
The late Chief Justice Ralph D. Gants was many things to many people: a beloved friend and family... more The late Chief Justice Ralph D. Gants was many things to many people: a beloved friend and family member, a visionary judge, an advocate for the vulnerable, and a forward-looking thinker. This Article recalls both personal and professional aspects of Ralph to illuminate an area of law where his judicial legacy will endure: online dispute resolution (ODR). Well before the onset of the COVID-19 pandemic, Chief Justice Gants recognized the significance of online, cloud-based courts and articulated key principles for developing these courts to improve the lives of those who appear before them. This Article assesses the status and trends governing the recent explosion of ODR in both international and domestic settings. It closes by presenting four “Gants Principles,” which Ralph championed and urged us toward, to govern how ODR systems can develop more equitably and efficiently
The American Society of Law and Medicine has chosen to honor Associate Justice Harry A. Blackmun ... more The American Society of Law and Medicine has chosen to honor Associate Justice Harry A. Blackmun of the United States Supreme Court with its first Presidents’ Award for Distinguished Contributions to the Fields of Law and Medicine. It is my task to explain why that honor is so richly deserved. To me the answer is simple: as much as any other judge in our Nation's two hundred-year constitutional history, Harry Blackmun has shaped and defined our modern conception of the constitutional right to privacy, as well as our developing notions of the scope and limits of medical privacy. During his twenty-eight years on the federal bench and his seventeen years on the Supreme Court, Justice Blackmun has played a major role in rebalancing what I call “the medical triad” — the triangular relationship among the patient, the doctor and the state, with which this Society's members are so intimately familiar.
This chapter describes the various ways that using international law as smart power can help to b... more This chapter describes the various ways that using international law as smart power can help to bring an end to America’s wars. These include concluding the war against Al Qaeda and the Islamic State through a combination of hard and soft power, and reexamining the doctrine of humanitarian intervention (or Responsibility to Protect (R2P)) as a means of jumpstarting stalled diplomacy backed by force in Syria. Ending America’s Forever War would mean disengaging from America’s longest war in Afghanistan, finally closing Guantanamo, and narrowing and ultimately repealing two open-ended congressional Authorizations for Use of Military Force that have existed since 2001.
The United States’ April 6, 2017 missile strikes against Syria raise three fundamental questions ... more The United States’ April 6, 2017 missile strikes against Syria raise three fundamental questions about how we should assess military interventions taken for humanitarian ends but without Security Council authorization: First, is unilateral humanitarian intervention per se illegal under international and domestic law—what I call the “never/never rule”? Second, were the Trump Administration's April 6, 2017 strikes per se illegal under international and domestic law? And third, going forward, can we live with the status quo, where in state practice, unilateral humanitarian intervention seems to occur regularly, without being formally justified in law?
At the 2010 Review Conference in Kampala, the states parties to the Rome Statute of the Internati... more At the 2010 Review Conference in Kampala, the states parties to the Rome Statute of the International Criminal Court (ICC) decided to adopt seven amendments to the Rome Statute that contemplate the possibility of the Court exercising jurisdiction over the crime of aggression subject to certain conditions. One condition was that the exercise of jurisdiction would be “subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute,” and another was that such jurisdiction could be exercised “only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.” As these dates approach, we—two lawyers who represented the United States at the Kampala conference and who worked many hours on the United States’ reengagement with the ICC during the Obama administration—thought it an appropriate moment to take stock of where we ar...
Problems Approach. The introductory chapters are followed by eight problems, each focused on a di... more Problems Approach. The introductory chapters are followed by eight problems, each focused on a different kind of transaction: transnational sales, agency and distributorship agreements, licensing, foreign direct investment, mergers and acquisitions, joint ventures, development agreements, and international debt instruments. Each problem covers both contractual and regulatory issues. Nearly all begin with a sample contract.
ments of events." Indeed, history had helped establish an order where, in foreign relations,... more ments of events." Indeed, history had helped establish an order where, in foreign relations, the executive branch had predominated on political issues and the Congress on economic issues. Yet both branches of government and both political parties currently had been fundamentally letting down the country and the world community. On the economic side, a Democratic Congress had been pushing for parochial economic policies. On the political side, the Reagan Administration had been tapping irrational nationalistic tendencies and making the world less safe, as in the case of its policies in Central America and its withdrawal from the jurisdiction of the International Court of Justice (ICJ) in the Nicaragua litigation. Whenever Congress had succumbed and abdicated any of its constitutional powers, it often had reacted by trying to intrude on the constitutional turf of the Executive, Congressman LEACH maintained. It had done this by getting involved in the treatymaking, rather than the...
Remarks from Scott Gilbert, Harold Hongju Koh, and Larry Tu. In addition to being college and law... more Remarks from Scott Gilbert, Harold Hongju Koh, and Larry Tu. In addition to being college and law school classmates with Ralph, Scott and Larry lived with him in law school, and Harold shared an apartment with him in Washington, D.C. at the start of their legal careers. Their close lifelong friendships continued over the decades that followed
The late Chief Justice Ralph D. Gants was many things to many people: a beloved friend and family... more The late Chief Justice Ralph D. Gants was many things to many people: a beloved friend and family member, a visionary judge, an advocate for the vulnerable, and a forward-looking thinker. This Article recalls both personal and professional aspects of Ralph to illuminate an area of law where his judicial legacy will endure: online dispute resolution (ODR). Well before the onset of the COVID-19 pandemic, Chief Justice Gants recognized the significance of online, cloud-based courts and articulated key principles for developing these courts to improve the lives of those who appear before them. This Article assesses the status and trends governing the recent explosion of ODR in both international and domestic settings. It closes by presenting four “Gants Principles,” which Ralph championed and urged us toward, to govern how ODR systems can develop more equitably and efficiently
The American Society of Law and Medicine has chosen to honor Associate Justice Harry A. Blackmun ... more The American Society of Law and Medicine has chosen to honor Associate Justice Harry A. Blackmun of the United States Supreme Court with its first Presidents’ Award for Distinguished Contributions to the Fields of Law and Medicine. It is my task to explain why that honor is so richly deserved. To me the answer is simple: as much as any other judge in our Nation's two hundred-year constitutional history, Harry Blackmun has shaped and defined our modern conception of the constitutional right to privacy, as well as our developing notions of the scope and limits of medical privacy. During his twenty-eight years on the federal bench and his seventeen years on the Supreme Court, Justice Blackmun has played a major role in rebalancing what I call “the medical triad” — the triangular relationship among the patient, the doctor and the state, with which this Society's members are so intimately familiar.
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