Volume 12, Issue 1

This article commences with an examination of the United State’s relationship to international law and a brief overview of the history of United States Supreme Court’s endorsement of international law. This general overview is followed by a more detailed review of the role that each of the three branches of the U.S. Government has played in international law. After addressing the general role of the three branches in international law, the article then focuses its analysis on the Medellin case and the ways in which the Supreme Court is currently guiding American jurisprudence regarding the role of the three branches of government in this area. The Medellin case is introduced with a review of the case’s background in the Texas state court system and the relevance of the ICJ decision to the Texas case. The article continues by providing a critical analysis of the Supreme Court’s judgment as it relates to the interaction of the three branches of United States Government in international law, and how these views reflect the views of the Federalist Society. The articles concludes by suggesting that there are assumptions and influences in modern American legal culture that bare on the Chief Justice’s judgment that are not historically consistent with the key role of the Judiciary in the making, application, and enforcement of international law. In particular, the article will examine the influence of the Federalist Society on the shaping of contemporary isolationist views on international law. In this sense, the article provides a mild plea in avoidance with regard to the direction that the Chief Justice is shepherding the Supreme Court, which is indeed determining the destiny of the United States with regard to its respect for international law and international obligation.

This article begins with an appraisal of a report published by the United States Institute for Peace, titled “Preventing Genocide: A Blueprint for U.S. Policymakers,” which is coauthored by the former Secretary of State, Madeleine K. Albright, and former Secretary of Defense, William S. Cohen. This report generated a great deal of interest and reaction from scholars across the globe. The article will introduce the broad outline of this report and will provide a summary of the principal criticisms that it has generated. This would set the stage for approaching the problem that is sensitive to the issue of exploring this phenomenon with a new view and the goal of developing usable insights and data, as well as methods and guidelines, that may be of value to policy makers responsible for acting in response to the problems of genocide and mass atrocity, and to society as well. The article then explores the problem with a specific emphasis on a better understanding of anti-Semitism, genocide, mass atrocity and the unique elements of the Holocaust. It reviews anti-Semitism from a multi-disciplinary perspective by focusing on the influence of American anti-Semitism on the German Nazis, on exploring the endurance of anti-Semitism in Germany via its intellectual and scholastic elite, and on exploring the political psychology of Hitlerism prior to the Second World War. The article then explores the problem that although anti-Semitism may be a necessary condition of genocide, it is not a sufficient one. This required the understanding of the jump from anti-Semitism, that is repressive and dominating, to the decision to exterminate a population of human beings completely. This also required a more carefully exploration of the specific features of the Nazi decision process as well as its framework of social control. With this background, the article focuses on developing the theoretical and methodological intellectual skills that have been developed in the context of the policy sciences in order to provide an approach to the challenges generated by the problems of mass murder and genocide, which would guide policy makers to more realistic, timely, and effective interventions. The article then explores distinctive but interrelated intellectual tasks that are required for research to guide inquiry and policy making and which include a disciplined commitment to the clarification of the value goals implicated by the problems of mass murder and genocide. These intellectual tasks require a careful specification of the trends in past decisions that have sought, in some measure of efficacy, to respond to these problems. They would also require an understanding of the scientific conditions that have shaped the nature of these trends in order to be able to forecast about the prospect of genocide and mass murder, which could be understood as a tentative forecast of an optimistic and a pessimistic nature, and the possibility of constraining it. Finally, theory requires an element of creativity. That creativity would be expressed in terms of the provided interaction between human rights values and the art/aesthetic process, which is suggested as a tool for realizing the never again goal. The creative aspect of this would be the invention of strategies that might direct intervention of a trend in the direction of a more optimistic possible future.

Some of Law and Economics’ pivotal claims have come to be criticized as a result of empirical findings that question their viability. Particularly, the premise that agents consistently act rationally and with their self-interest in mind seems problematic. What the consequences of the criticism mean for Law and Economics’ tenability depends largely on the questions whether some elements are unassailable to the alternative’s objections and whether the alternative is a systematic whole. It is argued that Law and Economics may be salvaged, if it is minimized and its ambitions are tempered. This means focusing on the stable, a priori, elements inherent to it.

The paper aims to suggest different regulatory models emerging from the comparative analysis of some national regulations on assisted reproduction technologies (ART), such as Spain, the UK, France and Italy. The aim is to identify common trends when approaching the decision-making process regarding ART, in order to answer the following questions: Is a set of common procedural principles (standards) detectable? What is their impact on the content of statutory law? The proposal is to shift from statutory content to the method of law-making process, in order to verify if it might be possible to identify a connection between the concrete characters of that process and its outcome. Therefore, the following indexes have been considered: a) the regulative space that is recognized by each jurisdiction for regulatory sources other than the statutory one, considering particularly the role of science and scientific knowledge as regulative means; b) the role of both expertise and society in the decision-making process and their impact on the content of regulation (in terms of both participation in and exclusion from that process); c) the existence of regulatory mechanisms open to expertise involvement in the law-enforcement process; d) law-making and law-evaluation mechanisms; e) the adequacy of scientific content of legislation, evaluated also on the grounds of its performance; f) the impact of expertise involvement on the degree of discretion exercised by the legislature. The comparative analysis has led to the identification of two general (and competing) models: 'procedure-oriented' and 'value-oriented' systems. The distinction is based on the degree of fulfillment of each classification index: the more they are accomplished, the more the regulative model will move towards a procedural approach. In order to describe the main characteristics of both models, it can be said that while within the ‘procedure-oriented’ the integration of different regulative tools prevails (albeit with different levels and mechanisms of implementation), on the contrary the ‘value-oriented’ model is characterized by a statutory-centered approach that excludes (or prevents) any contribution from different regulative sources. By analyzing different national legal systems (Spain, France and Italy), an attempt will be made to understand what the effects of each approach are, in terms of constitutional legitimacy, scientific adequateness and effective implementation.

The purpose of this paper is to identify the historical and theoretical divergences between Common Law and Civil Law, as far as the introductory document for commencing arbitration and the filing of claims or counterclaims are concerned. The analysis will be focused on the implementation of this divergence at a transnational level and in a selection of institutional arbitration rules. In the final part of the paper, a compromise for a harmonized procedure will be suggested.