Rough Justice: Establishing the Rule of Law in Post-Conflict Territories

Published in cooperation with the American Bar Association Section of Dispute Resolutio

UNaccountable? The United Nations, Emergency Powers, and the Rule of Law

For a body committed to the rule of law in theory, the applicability of the rule of law to the United Nations in practice remains oddly unclear. This Article will not consider the personal responsibility of UN officials, who generally enjoy personal or functional immunity from legal process in the territories where they work. Rather the focus of this Article is on the quasi-constitutional question of the liability of the organization itself. As the United Nations has assumed more state-like functions-in particular through the coercive activities of its Security Council--the question of what limits exist on the powers thus exercised has become more pressing. These powers may be compared to emergency powers within the domestic jurisdiction of states. Whereas a state of emergency is traditionally invoked in order to justify a departure from or stretching of the rule of law, here the existence of an emergency is a prerequisite to invoking the rule of law at all. At the same time, those promoting the rule of law generally lie beyond the reach of the jurisdiction in question--both during times of emergency and in times of quiet

Artificial Intelligence and the Problem of Autonomy

Artificial intelligence (AI) systems are routinely said to operate autonomously, exposing gaps in regulatory regimes that assume the centrality of human actors. Yet surprisingly little attention is given to precisely what is meant by “autonomy” and its relationship to those gaps. Driverless vehicles and autonomous weapon systems are the most widely studied examples, but related issues arise in algorithms that allocate resources or determine eligibility for programs in the private or public sector. This article develops a novel typology of autonomy that distinguishes three discrete regulatory challenges posed by AI systems: the practical difficulties of managing risk associated with new technologies, the morality of certain functions being undertaken by machines at all, and the legitimacy gap when public authorities delegate their powers to algorithms

Secrets and Lies: Intelligence Activities and the Rule of Law in Times of Crisis

This Article will consider generally the prospects for an approach to intelligence activities based on the rule of law, focusing on the problem of covertness. In particular, it will examine the debate over how law should deal with crises, epitomized by the ticking time-bomb hypothetical. On the one hand, some call for a pragmatic recognition that, in extremis, public officials may be required to act outside the law and should seek after-the-fact ratification of their extra-legal measures. On the other hand, others argue that the embrace of extra-legal measures misconceives the rule of law, underestimates the capacity of a constitutional order to deal with crises, and overestimates the ability and willingness of skittish publics to reign in officials. These two positions have recently become identified with the works of Oren Gross and David Dyzenhaus, respectively, although the debate is, of course, far older than these agonists of post-September 11 constitutionalism. As Dyzenhaus acknowledges, the question of whether the response of the executive in emergencies is constrained by law was an argument that Victorian jurist A.V. Dicey had with himself a century ago; Gross traces the essence of his own argument back two centuries further to John Locke\u27s theory of prerogative power

The Evolution of Legal Education: Internationalization, Transnationalization, Globalization

This article examines the evolution of legal education as it has moved through international, transnational, and now global paradigms. It explores these paradigms by reference to practice, pedagogy, and research. Internationalization saw the world as an archipelago of jurisdictions, with a small number of lawyers involved in mediating disputes between jurisdictions or determining which jurisdiction applied, transnationalization saw the world as a patchwork, with greater need for familiarity across jurisdictions and hence a growth in exchanges and collaborations, globalization is now seeing the world as a web in more ways than one, with lawyers needing to be comfortable in multiple jurisdictions

The Evolution of Legal Education: Internationalization, Transnationalization, Globalization

This article examines the evolution of legal education as it has moved through international, transnational, and now global paradigms. It explores these paradigms by reference to practice, pedagogy, and research. Internationalization saw the world as an archipelago of jurisdictions, with a small number of lawyers involved in mediating disputes between jurisdictions or determining which jurisdiction applied, transnationalization saw the world as a patchwork, with greater need for familiarity across jurisdictions and hence a growth in exchanges and collaborations, globalization is now seeing the world as a web in more ways than one, with lawyers needing to be comfortable in multiple jurisdictions

The Spy Who Came in From the Cold War: Intelligence and International Law

This Article will focus on the narrower questions of whether obtaining secret intelligence-that is, without the consent of the state that controls the information-is subject to international legal norms or constraints, and what restrictions, if any, control the use of this information once obtained. Traditional approaches to the question of the legitimacy of spying, when even asked, typically settle on one of two positions: either collecting secret intelligence remains illegal despite consistent practice, or apparent tolerance has led to a deep but reluctant admission of the lawfulness of such intelligence gathering, when conducted within customary normative limits.” Other writers have examined possible consequences in terms of state responsibility of intelligence activities that may amount to violations of international law. Given the ongoing importance to states of both intelligence and counterintelligence, such issues may never be resolved conclusively. There is little prospect, for example, of concluding a convention defining the legal boundaries of intelligence gathering, if only because most states would be unwilling to commit themselves to any standards they might wish to impose on others

The Spy Who Came in From the Cold War: Intelligence and International Law

This Article will focus on the narrower questions of whether obtaining secret intelligence-that is, without the consent of the state that controls the information-is subject to international legal norms or constraints, and what restrictions, if any, control the use of this information once obtained. Traditional approaches to the question of the legitimacy of spying, when even asked, typically settle on one of two positions: either collecting secret intelligence remains illegal despite consistent practice, or apparent tolerance has led to a deep but reluctant admission of the lawfulness of such intelligence gathering, when conducted within customary normative limits.” Other writers have examined possible consequences in terms of state responsibility of intelligence activities that may amount to violations of international law. Given the ongoing importance to states of both intelligence and counterintelligence, such issues may never be resolved conclusively. There is little prospect, for example, of concluding a convention defining the legal boundaries of intelligence gathering, if only because most states would be unwilling to commit themselves to any standards they might wish to impose on others