Part I describes the central pivot around which the doctrinal issues turn - the problem of state action. He holds a J.D. They should eschew independent judicial foreign policy analysis, and preempt state law only on the basis of policy choices traceable to the political branches in enacted law. Journalists and their allies, in turn, have complained that these initiatives have narrowed press freedoms and damaged the First Amendment. A background of the ICCPR is also presented as well as its advantages and disadvantages for the U.S. The main, but not exclusive, focus is on the political question doctrine, the act of state doctrine, and dormant foreign affairs preemption. For this and other reasons, commentators have failed to appreciate the overall extent of presidential unilateralism in this area, as well as the extent to which presidents are able to shift between different pathways of authority in order to circumvent potential restraints. Both served in senior executive branch positions—in the administrations of Barack Obama and George W. Bush, respectively—and have written widely on the presidency.Bob Bauer served from 2010-2011 as White House Counsel to President Barack Obama, who in 2013 named Bauer to be Co-Chair of the Presidential Commission on Election Administration. Through a Freedom of Information Act lawsuit, we obtained thousands of documents relating to the agreements reported to Congress and the legal authority on which the Executive Branch has relied for these agreements. Thus, the prevalence of moral and legal rhetoric on the international stage refutes the behavioral assumptions of realism and rational choice. While others have examined pieces of this picture, no one has considered the picture as a whole. The Contributions of the Obama Administration to the Practice and Theory of International Law, The Hidden Battles to Collect Your Data and Control Your World, Lea Brilmayer, Jack L. Goldsmith & Erin O’Hara, Conflicts of Laws: Cases and Materials, Zivotofsky II as Precedent in the Executive Branch, Anti-counterfeiting Agreement Raises Constitutional Concerns, Crisis and Command: A History of Executive Power From George Washington to George W. Bush, Bomb Power: The Modern Presidency and the National Security State, Foreign Sovereign Immunity and Domestic Officer Suits, The Third Annual Solf-Warren Lecture in International and Operational Law: Reflections on Government Lawyering, Rights Case Gone Wrong: A Ruling Imperils Firms And U.S. In this response to Koh's article, we focus on the four central errors in Koh's analysis: (a) its mistaken use of history; (b) its conflation of the traditional CIL that regulates international relations with the new CIL of human rights that regulates the way a nation treats its citizens; (c) its unjustifiably broad conception of the common law powers of federal courts; and (d) its unwarranted assumption that all of international law must be incorporated into domestic law. Many scholars believe that customary international law (CIL) has the status of self-executing federal common law, to be applied by courts in the United States without any need for it to be enacted or implemented by Congress. And they were both very close to Chuck’s mother, Sylvia Pagano, who was a very influential woman in these circles. Perhaps because of the rush of time, the explanations by the Department of Justice and the Supreme Court for failing to stop Breard’s execution brushed over important issues of domestic and international law. But as he grew older and pursued a career in law and government, he came to doubt and distance himself from the man long suspected by the FBI of … And, when faced with claims of international immunity, such as the claim of head-of-state immunity that was at issue in Pinochet, U.S. courts do not apply the CIL governing this immunity directly. Understanding the Resemblance between Modern and Traditional Customary International Law, Unilateral Regulation of the Internet: A Modest Defense, Pinochet and International Human Rights Litigation, The New Formalism in United States Foreign Relations Law, The Abiding Relevance of Federalism to U.S. Foreign Relations, Federal Courts and the Incorporation of International Law, International Human Rights Law and the United States Double Standard, Notes Toward a Theory of Customary International Law. On Friday, an American drone flying over northern Yemen killed Anwar al-Awlaki, a leader of Al Qaeda in the Arabian Peninsula -- a Qaeda affiliate. Law Clerk to Justice Anthony Kennedy, US Supreme Court (1990-91) Law Clerk to J. Harvie Wikinson, US Court of Appeals, 4th Circuit (1989-90) THE Obama administration wants to show that federal courts can handle trials of Guantanamo Bay detainees, and had therefore placed high hopes in the prosecution of Ahmed Khalfan Ghailani, accused in the 1998 bombings of American embassies in East Africa. We learn of Google's struggles with the French government and Yahoo's capitulation to the Chinese regime; of how the European Union sets privacy standards on the Net for the entire world; and of eBay's struggles with fraud and how it slowly learned to trust the FBI. from Oxford University (1986), and a B.A. Conventional wisdom holds that there is a connection between (a) the jurisprudential commitment to legal positivism expressed in Erie R.R. For three years, he remained silent about his brief and controversial stint as head of the Office of Legal Counsel in George W. Bush’s Department of Justice. The different reactions are best explained in terms of two large differences between the United States of 1942 and the United States of 2001.