PUBLICATIONS
Human Rights
Law Review Articles
The International Law of Game of Thrones - Alabama Law Review Online (2015)
Game of Thrones depicts a violent and, some might say, lawless world. Few would think that the world evidences much international law. Yet, this article identifies several rules of international law observable on the show and relates them to real-world international law. Observable rules include some fundaments of the law of treaties, customary norms, and (most surprisingly) at least one humanitarian peremptory norm. These rules cover a range of subjects, including sovereignty, state responsibility, jurisdiction, immunities, and human rights. The article also discusses the special legal status of the Night’s Watch, which is governed by the most important legal “text” in Game of Thrones. Finally, the article tries to have some fun.
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The article is current through the end of Season 5 (spoiler alert!).
Homage to Filártiga - The Review of Litigation (2014)
The Supreme Court’s new decision in Kiobel severely restricted human rights litigation under the Alien Tort Statute (ATS). In doing so, the Court gravely injured the canonical human rights case of Filártiga. This essay celebrates Filártiga, demonstrating that it survives Kiobel in four key respects: its approach to the sources of international law, its conclusion that international law prohibits torture, its dynamic vision of the way the human rights revolution transformed international law, and its hope that courts can help make real a world without torture. The essay presents Filártiga as a living presence and a beacon for future development of the law. By explaining and celebrating Filártiga’s continuing vitality in this way, this essay also offers a Filártiga-based critique that exposes Kiobel’s limits and weaknesses and contributes to a budding controversy about the meaning and effects of Kiobel and the future of human rights litigation after Kiobel.
Lemkin’s Situation: Toward a Rhetorical Understanding of "Genocide" - Brooklyn Law Review (2012)
Legal debate about genocide revolves around the definition set forth in the 1948 Genocide Convention, but often critically and with prescriptions for amendment. Many other definitions compete in public discourse. Often lost in all the discussion about what genocide does or should mean is the original intent of Raphael Lemkin, the man who coined the word and convinced the United Nations to denounce and outlaw the “odious scourge” of genocide. This Article contributes to genocide discourse by conceiving Lemkin’s coinage as rhetoric – that is, as part of his strategy to persuade the nations of the world to change international law and, indeed, the nature of international society. Accordingly, this Article applies lessons from rhetorical scholarship to a reading of nine of Lemkin’s published works. In particular, it draws on Lloyd Bitzer’s idea of the “rhetorical situation” to uncover “Lemkin’s situation” and thereby reveal the work he expected his word to perform. It also provides an example of how the Lemkinian understanding developed here can improve our construction of the Genocide Convention and points the way toward further use of the Bitzer method to assess genocide’s ongoing value in public discourse.
​Darfur, Divestment, and Dialogue - University of Pennsylvania Journal of International Law (2009)
The horrors of Darfur have prompted twenty-seven states to divest from Sudan, the most notable divestment movement since the end of apartheid. Divestment is capable of serving a number of inter-related functions in the democratic process of formulating U.S. foreign policy: attention-getting, norm-changing, door-opening, and even assisting the President in pursuing his foreign policy objectives.
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Divestment thus places the states in public dialogue about policy towards Sudan. This creates tension with the "one voice" view of foreign relations, which is embedded in several constitutional doctrines.
Congress cleared the doctrinal clouds away from the Darfur divestment movement by enacting the Sudan Accountability and Divestment Act. SADA creates a space - within important bounds - where states can speak on foreign policy. SADA internationalizes Brandeis' famous description of states as "laboratories of democracy," enabling each state to decide whether and how to experiment with divestment within parameters that, in Congress' judgment, avoid "risk to the rest of the country." SADA's approach to bounding preserves for Congress the flexibility to constrain divestment in the national interest, while also encouraging both Congress and the states to show due restraint and respect for each other's important institutional interests.
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SADA thus exemplifies the dialogic view of federalism, in which our constitutional structure is viewed as an ongoing conversation. On this view, the federal government has the dominant voice in international relations - but not the only voice. It gives the federal government the option to tolerate, encourage, and even listen to and benefit from other speakers. Opening the formulation of foreign policy to a multiplicity of voices no doubt causes certain difficulties for the President. Still, it is democratic - and, by reconceiving the President not as a soloist but as a conductor, one may recognize the opportunities that state action generates even for the President.
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Too-frequent resort to divestment risks both under diversification of investment portfolios and dilution of divestment's power to amplify speech. The article concludes with an argument why Darfur makes a particularly compelling demand for more forceful than normal state speech.
Short Articles
International Adjudication of Land Disputes: For Development and Transnationalism - Law and Development Review (2014)
This short article offers two observations about international adjudication of land disputes. First, the article shows that such adjudication is intended to further development, but that this goal is served better, if counter-intuitively, by rejecting the so-called Salini contribution-to-development test in favor of case-by-case adjudication on the merits. Second, the article locates such adjudication within the modern trend toward transnationalism, a trend that unites international investment law with human rights law. In light of these observations, the article concludes that international adjudication of land disputes may contribute to such human values as development, human rights, and the rule of law.
Treaty Law: A Primer for Human Rights Lawyers - ACLU International Civil Liberties Report (1994)
This short article introduces the law of treaties to domestic lawyers handling civil liberties cases.
Presentations
Human Rights & Economic Sanctions - ASIL Human Rights Interest Group (2020)
These are the slides for a presentation given on June 26, 2020, to the Human Rights Interest Group of the American Society of International Law as part of the ASIL Annual Meeting.