Law s Borders: Yale Global Constitutionalism Law s Borders. Judith Resnik, Editor. Table of Contents
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1 Law s Borders Judith Resnik, Editor Table of Contents Preface... i I. TARGETING, DETENTION, AND PUNISHMENT: PROBLEMS IN THE RELATIONSHIP OF WAR AND CRIME DISCUSSION LEADERS: JOHN FABIAN WITT AND AHARON BARAK What Counts as Armed Conflict and Who Is In it? The Meaning of Armed Conflict Prosecutor v. Tadić (International Criminal Court for the Former Yugoslavia) (1995)... I-7 International Law Association, Final Report on the Meaning of Armed Conflict in International Law (2010)... I-8 Who Is a Combatant? Carl Schmitt, Theory of the Partisan (1963)... I-9 International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2008)... I-11 Public Committee Against Torture v. Government (Israel Supreme Court) (2006)... I-13 Targeted Killings The Legal Culture of Targeting Aharon Barak, Human Rights in Times of Terror A Judicial Point of View (2008)... I-14 Jack Goldsmith, Power and Constraint: The Accountable Presidency After 9/11 (2012)... I-16 Amichai Cohen, Legal Operational Advice in the Israeli Defense Forces (2011)... I-18
2 Table of Contents Extra-Legal Killing or Armed Conflict? Philip Alston, Study on Targeted Killings (United Nations Human Rights Council) (2010)... I-20 Eric Holder, Speech at Northwestern University Law School (2012)... I-22 The Power to Detain Is There a Duty to Capture If You Can? International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (2008)... I-23 The Vast Powers of Detention Karl S. Chang, Enemy Status and Military Detention in the War against al-qaeda (2012)... I-25 Al-Bihani v. Obama (United States Court of Appeals, District of Columbia Circuit) (2010)... I-26 Convention Relative to the Protection of Civilians in Time of War (Fourth Geneva Convention) (1949)... I-30 New Legal Limits? A and Others v. U.K. (European Court of Human Rights) (2009)... I-31 Al-Jedda v. United Kingdom (European Court of Human Rights) (2011)... I-36 Ryan Goodman, The Detention of Civilians in Armed Conflict (2009)... I-39 Is There a Detention/Targeting Tradeoff? Punishing Benjamin Wittes, Detention and Trial: The Case for Candor After Guantánamo (2011)... I-40 The Enlightenment Immunity from Criminal Laws John Fabian Witt, The Enlightenment Separation of War from Crime (2012)... I-42 Johann Caspar Bluntschli, Amnesties (1868)... I-44 Lassa Oppenheim, Conceptualizing the War Crime (1912)... I-45 ii
3 The Return of Criminalization Prosecutor v. Erdemovic (International Criminal Tribunal for the Former Yugoslavia) (1997)... I-46 Prosecutor v. Kallon (Special Court for Sierra Leone) (2004)... I-51 The Critique of Criminalization Michael Ignatieff, We re So Exceptional (2012)... I-56 Abigail H. Moy, International Criminal Court s Arrest Warrants and Uganda s Lord's Resistance Army: Renewing the Debate over Amnesty and Complementarity (2006)... I-57 Ian Paisley, Peace and the Price of Justice (2012)... I-58 W. Michael Reisman, Institutions and Practices for Restoring and Maintaining Public Order (1995)... I-60 Proportionality Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (1977)... I-63 Francis Lieber, Instructions for the Government of Armies of the United States in the Field (1863)... I-65 Correspondence Between Mayor and Councilmen of Atlanta Georgia, and U.S. General William Tecumseh Sherman (1864)... I-66 Public Committee Against Torture v. Government, (Israel Supreme Court) (2006)... I-67 Coda: The Role of the Judge in Terrible Decisions? Michael Walzer, The Dishonoring of Arthur Harris (1977)... I-71 II. DIALOGUES ON THE EUROPEAN CONVENTION OF HUMAN RIGHTS, 2012 High Level Conference on the Future of the European Court of Human Rights, Brighton Declaration (2012)... II-2 Nicolas Bratza, Speech at High Level Conference on the Future of the European Court of Human Rights (2012)... II-7
4 Table of Contents III. (DIS)UNIFORMITY OF RIGHTS IN FEDERATIONS AND UNIONS DISCUSSION LEADERS: JUDITH RESNIK AND REVA SIEGEL Uniformity, Disuniformity, Sovereignty, and the Import of Rights Andreas Auer, The Constitutional Scheme of Federalism (2005)... III-5 Robert Cover, The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation (1981)... III-7 Unreasonably Wrong? Codifying Doctrines of Deference... III-10 Democratic Sovereignty and Individual Rights: The Examples of Enfranchisement and Reproduction Disenfranchisement Hirst v. United Kingdom (European Court of Human Rights) (2005)... III-13 Joint Committee on Human Rights, Enhancing Parliament s Role in Relation to Human Rights Judgments (2009)... III-24 Lord Irvine of Lairg, A British Interpretation of Convention Rights (2011)... III-27 Sejdić v. Bosnia and Herzegovina (European Court of Human Rights) (2009)... III-32 Counting, Consensus, and Categorizing Roderick M. Hills, Jr., Counting States (2009)... III-35 John L. Murray, Consensus: Concordance, or Hegemony of the Majority? (2008)... III-38 Judith Resnik, Categorical Federalism: Jurisdiction, Gender, and the Globe (2001)... III-40 Health and Life A, B and C v. Ireland (European Court of Human Rights) (2010) III-43 Reva B. Siegel, The Constitutionalization of Abortion (2012)... III-54 Siobhán Mullally, Debating Reproduction Rights in Ireland (2005)... III-56 iv
5 IV. CONSTITUTIONAL PLURALISM AND CONSTITUTIONAL CONFLICTS DISCUSSION LEADERS: ALEC STONE SWEET AND MIGUEL POIARES MADURO Dialogues and Distinctions Miguel Poiares Maduro, Three Claims of Constitutional Pluralism (2012)... IV-5 Wojciech Sadurski, Solange Chapter 3 : Constitutional Courts in Central Europe Democracy European Union (2008)... IV-8 Jan Komarek, Playing with Matches: The Czech Constitutional Court s Ultra Vires Revolution (2012)... IV-11 Lisbon Treaty Case (German Constitutional Court) (2009)... IV-16 Lisbon Treaty II (Czech Constitutional Court) (2009)... IV-19 M v. Germany (European Court of Human Rights) (2010)... IV-21 Mork v. Germany (European Court of Human Rights) (2011)... IV-28 No (Italian Constitutional Court) (2007)... IV-33 Conceptualizing the Exchanges Ricardo Lorenzetti, Global Governance: Dialogue Between Courts (2010)... IV-35 Víctor Abramovich, From Massive Violations to Structural Patterns: New Approaches and Classic Tensions in the Inter- American Human Rights System (2009)... IV-38 Alec Stone Sweet, Trustee Courts and the Evolution of International Regimes: The Politics of Majoritarian Activism in the ECHR, the EU, and the WTO (2012)... IV-41 Alec Stone Sweet, A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe (2012)... IV-44 V. INTERNATIONAL INVESTMENT LAW AND ARBITRATION AMIDST GLOBAL CHANGE DISCUSSION LEADER: W. MICHAEL REISMAN CHAIR: DANIEL MARKOVITS W. Michael Reisman, International Investment Law and Arbitration Amidst Global Change (2012)... V-2
6 Table of Contents VI. LAW S FUTURE(S): THE SUSTAINABILITY OF TRANSATIONAL, NATIONAL, AND INTERNATIONAL COURTS DISCUSSANTS: ROBERT BADINTER, STEPHEN BREYER, SABINO CASSESE, RONALD DWORKIN, DIETER GRIMM, BRENDA HALE The Nation State and Supra-National Adjudication CO-CHAIRS: SAM MULLER AND JUDITH RESNIK Dieter Grimm, Defending Sovereign Statehood against Transforming the European Union into a State (2009)... VI-4 Ambrose v. Harris (United Kingdom Supreme Court) (2011)... VI-14 Brenda Hale, Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme? (2012)... VI-23 Jonathan Sumption, Judicial and Political Decisionmaking: The Uncertain Boundary (2011)... VI-32 Luzius Wildhaber, A Constitutional Future for the European Court of Human Rights? (2002)... VI-34 Medellín v. Texas (United States Supreme Court) (2008)... VI-35 Armin von Bogdandy & Ingo Venzke, In Whose Name? An Investigation of International Courts Public Authority and its Democratic Justification (2012)... VI-55 The Growth, Legitimacy, and Relevance of Transnational Institutions Sabino Cassese, The Global Polity (2012)... VI-60 Sam Muller, Why Law Scenarios to 2030? (2012)... VI-66 Jan Klabbers, The Idea(s) of International Law (2011)... VI-71 Jean L. Cohen, Whose Sovereignty? Empire Versus International Law (2004)... VI-75 Mark Osiel, After International Law: Non-Juridical Responses to Mass Atrocity (2011)... VI-82 vi
7 Opinions Excerpted... A-1 Commentary and Additional Materials Excerpted... A-2 Permissions to Republish Materials... A-7
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