Author: Matthew Lister

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On Peer Reviewing

This is not a post about whether law reviews should try to move to a peer-review system, or whether law professors should publish primarily in peer-reviewed journals.  (On those issues I’m a “let a thousand flowers bloom” sort of guy, and think there’s value in having a variety of publishing outlets.)  Rather, I want here to talk a bit about the peer-reviewing process, from the reviewer’s perspective.  I have, in the last couple of years, done refereeing or reviewing for four normal peer-reviewed journals and for a top law review that has a semi-peer-review system in place.  Some parts of the experience have been good, and some less enjoyable, but for the most part I have been pleased to take part.  Read More

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What is a treaty? Is that the right question?

(Thanks to Danielle and the Co-Op crowed for letting me stick around a bit longer.)

I am interested in how we should think about treaties.  More specifically, I am interested in different ways we might think about treaties, and why different ways might be appropriate in different circumstances.  At one extreme we might think of treaties as establishing sacred duties, as being based on oaths with deep religious implications.  (Jeremy Waldon has a very interesting discussion of the history of this idea in his recent Charles E. Test lectures, “A Religious View of the Foundations of International Law”.)  I think that there’s a case to be made that supposed principle of international law (or of natural law, depending on one’s account), pacta sunt servanda, depends on this understanding, though I won’t try to make that case here.  (If so, this would be interesting in light of fact that Hans Kelsen at one point held, I believe, pacta sunt servanda to be the “basic norm” of international law, though he later abandoned this.) Read More

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Gordon on Temporary Labor Migration in NY Times, and J Visas

One issue in immigration law (and international economic regulation more generally) that I’m particularly interested in is temporary labor migration.  Unfortunately, I don’t think I’ll have time to write anything substantive on it for the blog in the rest of my time here, but I wanted to flag this very interesting and useful opinion piece by Jennifer Gordon of Fordham Law School in the New York Times, on the use of J-1 visa holders, and the controversy related to it, at a Hersey’s plant in Pennsylvania.  (I think the headline, which I assume Gordon didn’t write, is unfortunate and misleading, since as far as I can tell the work done by the J-1 holders was more or less typical factory work, and not plausibly “sweatshop” labor, but that’s a different issue and shouldn’t distract us from the quality of the piece itself.)   What I found particular useful about Gordon’s piece is her highlighting how the J visa has changed into a poorly regulated way to bring in temporary labor, a method easily subject to abuse.  I think that there are “easy” steps that could be taken to make temporary labor movement less open to exploitation, but the chances of this happening soon do not seem high. Read More

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Can States have “Special” Duties to Refugees?

I have recently been working on the question of who, out of the vast number of people in the world who cannot meet their basic needs on their own or with the help of their own countries, should be considered “refugees”, and what this status should entitle them to.  I think that’s an important question that hasn’t been adequately answered.  Here I want to talk about, and gather opinions on, a related but different question.  I am here interested in the question of when states have special duties or obligations to particular sets of refugees.  (For the sake of the discussion I want to assume that the people in need are legitimately refugees, on whatever standard we want to apply.)  Read More

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Some Distinctions in the Notion of Consent

Before I get to the matter on which I want to post today, let me thank Danielle, Frank, Dan, and everyone else here for inviting me to guest-post this month. It’s a pleasure to be here and to take part in one of my favorite blogs. I hope to post on some issues that relate to my current research, but might post on a few other things as well, depending on time.

An idea that plays a central role in much of my research is consent. Consent is a notion that’s important in many areas of law, of course, including standard first-year courses such as contracts, torts, and criminal law, though this is often enough not discussed at great lengths in these classes. I am particularly interested in the role that consent plays in some other areas of law, especially in international law and in certain aspects of immigration law. In these areas of law consent is often thought to play a deep or foundational role. International law, or at least large parts of it, is often thought to be “consensual” in a way that domestic law isn’t. (The idea that consent has an important legitimating role in international law is forcefully criticized by Allen Buchanan in his important book, Justice, Legitimacy, and Self-Determination. I defend an important, if limited, role for consent in my paper, “The Legitimating Role of Consent in International Law”.) Similarly, at least since Hobbes, many have argued that political legitimacy depends on the consent of the governed in some important way. A version of this argument shows up in certain aspects of immigration law, most clearly in discussions of access to citizenship. Peter Schuck and Rogers Smith, for example, argued, in their book Citizenship Without Consent, that the U.S. has a “consensual” form of citizenship, but that this is incompatible with the strong jus soli account of citizenship that we actually practice in the US. (I argue against certain aspects of this account in my paper, “Citizenship, in the Immigration Context”. The more historical aspects of Schuck and Smith’s book are nicely dealt with in a few papers by Mark Shawhan, and by Bernadette Meyler in her paper “The Gestation of Birthright Citizenship, 1868-1898: States’ Rights, the Law of Nations, and Mutual Consent”.)

It seems to me, however, that in these areas the discussion is often quite unclear, owing in part to a conflation between different notions of “consent”.  Read More

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Book Review: May & Hoskins, International Criminal Law and Philosophy

Larry May & Zachary Hoskins, eds., International Criminal Law and Philosophy, Cambridge University Press 2010.

This anthology of new articles edited by Larry May and Zachary Hoskins explores a territory that has not received widespread or sustained philosophical consideration- international criminal law.  While May himself has written several important books on the subject, philosophers and legal theorists in general have not focused on the topic.  We can hope that this well-done volume, full of provocative and interesting articles, will help encourage more work in the area.  The volume consists of a useful introduction by May and Hoskins, followed by four sections, devoted to sovereignty and universal jurisdiction; culture, groups and corporations; justice and international criminal prosecution; and punishment and reconciliation, for a total of eleven articles.  While I did not find all of the articles to be equally convincing, all offered grounds for thought.  I will focus on one article from each section while only briefly describing the others.

The first section begins with one of the most interesting papers in the book, by Win-chiat Lee, “International Crimes and Universal Jurisdiction”.  Lee asks which crimes are “international crimes proper”, and answers this question by looking at universal jurisdiction- jurisdiction that any state may claim over a crime solely because of the nature of the crime, without any territorial or national link.  Universal jurisdiction in this sense is distinct both from normal territorial jurisdiction, and also from cases of “jurisdiction pooling”, where states cooperate to better exercise what would otherwise be territorial or national jurisdiction.  International crimes proper, Lee contends, are those that are properly subject to universal jurisdiction.  Lee’s account has the consequence that the paradigm international crime turns out to be one that happens entirely within the borders of a state, namely, serious crimes committed by a state against its own citizens.  These crimes undermine the legitimacy of a state, and therefore call into question its right to maintain a monopoly on the legitimate use of force within its territory.  Such crimes need an alternative framework if we are to deal with them, one provided by international criminal law and universal jurisdiction, understood to include the jurisdiction of the ICC.

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