Center for International & Comparative Law

Center for International & Comparative Law

Center for International & Comparative Law

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When a state seeks to defend itself against a cyberattack, must it first identify the perpetrator responsible? The US policy of “defend forward” and... MORE
This article uses history to explore how prominent international lawyers explain seemingly transgressive state behavior. It begins with the Russian... MORE
This symposium explores ways in which developments in artificial intelligence (AI) will affect the substance of international law, and, conversely,... MORE
The recession of 2008 precipitated a political crisis that motivated an unprecedented international project to curb corporate tax dodging. This... MORE
Even before COVID19 struck, we were going through a remarkable moment of political, economic, and social instability. We see disruption of many... MORE
In recent years, legislative bodies such as the U.S. Congress and the U.K. Parliament have struggled to maintain a role for themselves in government... MORE
How do international laws affect citizens' willingness to accept refugees? In full and partial democracies, citizens' attitudes can influence... MORE
In a series of recent cases, the Supreme Court has vigorously applied the presumption against extraterritoriality to curtail the territorial reach of... MORE
This chapter examines from a comparative perspective the national legal regimes that govern treaty-making and treaty withdrawal, functions that in... MORE
For most of the past century, those who followed foreign relations law believed that federal law, including that made by the federal courts in the... MORE
From Catalonia to Kurdistan, Crimea to California, and Scotland to St. Kitts, secession has become a hotly debated political issue. While... MORE
This Article uses controversy over Apple and other recent EU state-aid cases to explore a defect common to many anti-subsidy regimes that limit... MORE
Yesterday’s EU General Court decisions in Starbucks and Fiat represent major victories for the Commission and its theory of state aid,... MORE
The big question that this volume addresses is whether international law can bridge gaps between the world’s principal legal systems. There are many... MORE
U.S. technology companies are increasingly standing as competing power centers that challenge the primacy of governments. This power brings with it... MORE
Attribution of state-sponsored cyberattacks can be difficult, but the significant uptick in public attributions in recent years has proven that... MORE
Big data technology and machine learning techniques play a growing role across all areas of modern society. Machine learning provides the ability to... MORE
When a foreign country's law is relevant to a case in U.S. federal court and the foreign country files an official statement about the meaning of its... MORE
This chapter represents my contribution to a book provisionally entitled Comparative International Law, scheduled for publication by Oxford... MORE
In the U.S. constitutional system, the President generally conducts foreign relations. But not always. In recent years, the courts and Congress have... MORE
Comparative international law utilizes insights and methods from comparative law in order to identify, analyze, and explain similarities and... MORE
This contribution discusses in detail the Security Council-authorized intervention by NATO in Libya in 2011, in response to the Libyan government’s... MORE
We argue that the high revenue triggers in proposed digital taxes — including the recent Franco-German proposal for a digital advertising tax — may... MORE
Under the original understanding of the Constitution, customary international law features in the U.S. legal system as general law. It is not law... MORE
This article describes the intricacies of U.S. constitutional law on the rights of aliens. It identifies three general tendencies that bear on... MORE
This article describes Wayfair and provides some cautions about what it means for the U.S. states and the rest of the world, especially Europe. It... MORE
In the contemporary world, the domains of laws overlap a lot. With human activity (business, family, political, creative) unfolding at a greater... MORE
In this sixth and final installment in a series of reports on state aid, Mason evaluates the European Commission’s decisions in the recent state... MORE
This article, presented at a symposium occasioned by the publication of A.J. Bellia’ and Bradford Clark’s The Law of Nations and the United States... MORE
Constitutions are traditionally seen as inherently domestic documents, written by the people, for the people, and reflecting the nation’s highest... MORE
Silicon Valley has long been viewed as a full-throated champion of First Amendment values. The dominant online platforms, however, have recently... MORE
One critique of some common-law comparative legal academies is their intensively “court-centric” focus, which, some believe, “marginalize[s]” the... MORE
How must states’ intelligence communities (ICs) approach their international law obligations? From the perspective of international law itself, the... MORE
This paper is a contribution to an upcoming issue of Law and Contemporary Problems devoted to work originating in the Conference, “What’s Next for... MORE
Data’s intangibility poses significant difficulties for determining where data is located. The problem is not that data is located nowhere, but that... MORE
This is Part three in a multi-part Special Report on state aid. It provides detailed analysis and critical commentary on the EU Commission's recent... MORE
Calls for public-private partnerships to address U.S. cybersecurity failures have become ubiquitous. But the academic literature and public debate... MORE
In this report, the second in a series of reports on EU state aid, Mason evaluates the claims Treasury’ made in its White Paper that recovery in... MORE
In this fourth part in a series of reports on state aid, Mason focuses on the element of “advantage” in EU state aid law, and she criticizes the... MORE
While political science scholarship recognizes that the effectiveness of international law often rests on its domestic implementation, relatively... MORE
In numerous cases, courts have declined to apply the United Nations Convention on Contracts for the International Sale of Goods in litigation where... MORE
Legislatures are critical to international law governance for two related reasons. First, most are involved in several stages of treaty creation... MORE
The Bush Administration took a maximalist approach to the jus ad bellum and jus in bello, staking out broad claims about what international law... MORE
Secret international agreements have a bad reputation. Ever since states misused secret agreements during World War I, commentators have condemned... MORE
Judicial and scholarly discussions about checks and balances almost always focus on actions and reactions by domestic actors. At least in the... MORE
This Article presents the first systematic study of foreign sovereign amicus briefs in the Supreme Court. Based on an analysis of the briefing, oral... MORE
Intelligence activity is — or, more accurately, was — the last bastion of foreign relations unconstrained by international law. States could steal... MORE
This paper treats the design of judicial mechanisms (international courts, domestic courts, arbitral tribunals and the like) as variables that are... MORE
The human rights movement has spent considerable energy developing and promoting the adoption of both international and domestic legal prohibitions... MORE
This paper uses the history and function of the jus cogens concept in international law to demonstrate that its meaning and implication have varied... MORE
In their essay, "The Influence of History on States’ Compliance with Human Rights Obligations," Adam Chilton and Eric Posner conclude that modern... MORE
Customary international law (CIL) is a widely accepted source of international law, but it is poorly understood and has eluded systematic empirical... MORE
International legal scholars have long recognized the importance of the rules and processes by which states adhere to international legal obligations... MORE
Edward Snowden’s leaks laid bare the scope and breadth of the electronic surveillance that the U.S. National Security Agency and its foreign... MORE
Many view constitutional incorporation of international human rights treaties as the most effective way to enforce treaty rights domestically. Three... MORE
Concerns about cyberwar, cyberespionage, and cybercrime have burst into focus in recent years. The United States and China have traded accusations... MORE
As part of a symposium on cyberwar, this invited contribution explores the challenges that new technologies pose for international law. Borrowing... MORE
Most of the conventions produced by UNCITRAL since 1980 share a certain boilerplate. Included in this treaty boilerplate are provisions that require... MORE
Despite Congress’s important role in upholding U.S. international law obligations, the relevant existing literature largely ignores the branch.... MORE
Several states have been engaged for years in armed conflicts against non-state actors outside their territory. These conflicts implicate a wide... MORE
This paper explores the dynamics of international judicial interactions in civil cases. It proposes a positive model of court-on-court encounters... MORE
The Foreign Account Tax Compliance Act (FATCA) represents a powerful response by the United States to flagrant offshore tax evasion. Although the new... MORE
This article articulates an explanatory theory of customary international law under which precedential concerns are central to explaining CIL... MORE
I want to use the occasion of the Morrison decision to consider the interests that produce extraterritorial regulation by the United States.... MORE
This paper, presented to the 25th Sokol Colloquium on Private International Law in April 2012, and slated for publication in a forthcoming book... MORE
This article explores the background to, and significance of, the Russian renationalization of the Yukos energy conglomerate through a tax assessment... MORE
It is often thought that the judicial recognition of customary international law depends on jurisprudential assumptions about the nature of legal... MORE
We develop a model of international agreements to price a transboundry externality and provide a new heuristic to aid in interpreting negotiation... MORE
The President, Congress, and the courts have long disagreed about who has the power to terminate treaties. Presidents have claimed the power to... MORE
Unlike many areas of international cooperation, international financial regulation (IFR) relies on informal networks of regulators and “soft law”... MORE
Many celebrate international law as a way to compel states to protect human rights. Often it serves this role. But sometimes it has the reverse... MORE
This article considers whether the prospect of increased competition in the regulation of international bribery is desirable or not. It explores the... MORE
It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because... MORE
Prohibitions of tax discrimination have long appeared in constitutions, tax treaties, trade treaties and other sources, but despite their ubiquity... MORE
A fairly substantial amount of literature has been generated over the years regarding the forms of masculinity that emerge in times of armed conflict... MORE
This paper, written as a chapter for a forthcoming volume on international comparisons of prosecutors’ roles in various jurisdictions, provides a... MORE
This paper examines the highly contentious and protracted implementation of the Basel II accord on bank capital adequacy in the United States. As a... MORE
Non-state actors, including terrorist groups, regularly launch attacks against states, often from external bases. When a victim state seeks to... MORE
As a candidate for President, Barack Obama made “change” a central theme of his campaign. In particular, he railed against the Bush Administration’s... MORE
It has become almost universal practice for countries to adopt formal constitutions. Little is known empirically, however, about the evolution of... MORE
This paper, prepared for a conference hosted by Vanderbilt Law School on foreign sovereign immunity at home and abroad, begins with the dispute now... MORE
On the Frontlines gives a comprehensive overview of the post-conflict terrain as it is experienced by women across multiple jurisdictions and in the... MORE
The old understanding of international law as something created solely by and for sovereigns is defunct. Today the production and enforcement of... MORE
In recent years, scholars have devoted considerable attention to transnational networks of financial regulators and their efforts to develop uniform... MORE
The case for international cooperation in competition policy is weaker than commonly thought. First, the lion's share of international transactions (... MORE
This paper, a chapter in a forthcoming book on International Law and the Supreme Court, examines the treaty decisions of the Court during the postwar... MORE
Significant intellectual and financial resources have been committed to decentralization projects in the developing world based on the idea that... MORE
This paper responds to a provocative essay by Curtis Bradley and Mitu Gulati on exiting from customary international law. Bradley and Gulati argue... MORE
Despite the widespread media focus on business outsourcing transactions, we only have a limited understanding of how firms actually select a... MORE
This paper explores the situation of women returning to their homes and communities after their countries have experienced major conflicts. In that... MORE
This article argues that international greenhouse gas (GHG) cap-and-trade schemes suffer from inherent problems of enforceability and verifiability... MORE
Governments often deliver social welfare benefits through “tax expenditures,” provisions of the tax code (such as home mortgage deductions) designed... MORE
Treason is an ancient crime, but it fell into disuse in most Western democratic states after World War II. Now it is making a comeback with... MORE
The European Court of Justice (ECJ) has come under increasing criticism for overstepping its institutional authority in tax cases by invalidating... MORE
Double taxation of corporate profits distorts the choice of business form, the debt and equity capitalization of companies, and the character and... MORE
In Swift v. Tyson, Justice Story argued that federalization of the law of negotiable instruments was necessary to thwart local courts from adopting... MORE
Since 1996, the Supreme Court of the United States has signaled that the jurisprudence of the writ of habeas corpus, and its possible suspension,... MORE
This paper develops a typology of different country governance contexts, in which we propose four broad categories of countries in Sub-Saharan Africa... MORE
In 1981, Israel launched a preemptive attack on the Iraqi Osiraq nuclear reactor. Now a similar strike is being considered against Iranian nuclear... MORE
Under the standard the European Court of Justice (ECJ) uses to evaluate tax discrimination cases, a Member State discriminates when it taxes cross-... MORE
In this short essay, I fight a two front war, besieged by three superb scholars. Professors Robert Delahunty and John Yoo, and Professor Michael... MORE
After four years of consideration, the Israeli Supreme Court recently issued the world's first judicial decision on targeted killings in Public... MORE
How important are active independent shareholders in a framework for sound corporate governance? Hedge funds, institutional investors, the "Warren... MORE
A critical issue for post conflict reconstruction is moving beyond criminal prosecutions that ensure accountability of perpetrators toward a system... MORE
This paper, written for a symposium on The Mind of a Child, examines two different aspects of the accountability of children: those children who are... MORE
The Court's docket last Term included five cases directly presenting questions of international law. Republic of Austria v. Altmann raised issues of... MORE
Beyond Retribution and Impunity: Responding to War Crimes of Sexual Violence articulates principles for an approach to gender-based violence during... MORE
International law provides an ideal context for studying the effects of freedom from coercion on cooperative behavior. Framers of international... MORE
Legal academics and international-relations scholars have recently undertaken a great deal of interdisciplinary work on the interaction of... MORE
This article contributes to the "arrival of history" in constitutional scholarship and the revival of foreign affairs jurisprudence in the legal... MORE
I address two parallel and paradoxical trends involving U.S. litigation and international law. I describe how U.S. courts have sought to widen their... MORE
I discuss the roles of adjudication bodies in promoting the unification of law. Then I clarify the redistributive dimensions of unification projects... MORE
This paper examines the interplay between intellectual property rules and forces driving globalization in the world economy. It argues against the... MORE
This paper will be published in the Georgetown Law Journal as one of two responses to an essay by Andrew Guzman on the law and economics of choice of... MORE
In this paper, forthcoming in the Virginia Law Review, I explore the role of litigation as a policy-making and rule-generating process in the context... MORE
A President who chooses to seek legislative approval of a treaty risks delay, textual modification, and even outright defeat. Neither the... MORE
Written before the Hague negotiations on climate change held in November of 2000 (the so-called "COP-6" meeting), this essay argues that the COP-6... MORE
I compare two competing accounts of the U.S. role in the global economy. In one version, the United States has built an international system that... MORE
This paper challenges the conventional wisdom that unification and harmonization of international commercial law is desirable and should be pursued.... MORE
This paper uses the new literature on norms and rationality to explore why societies develop widespread corruption as a means of organizing economic... MORE
One of the most contested questions in the jus ad bellum is whether and when it is lawful for a state to use force unilaterally before it suffers... MORE
Data-driven algorithmic tools allow their users to process large amounts of data quickly, extract patterns from the data that humans cannot otherwise... MORE
States negotiate over the specific terms of multilateral treaties because those terms determine states' willingness to ratify the treaty. A state... MORE
Over the course of the twentieth century, the effect of state boundaries as hard-and-fast limits on judicial and legislative jurisdiction steadily... MORE