What’s in a Meme? The Truth about Investor- State Arbitration: Why It Need Not, and Must Not, Be Repossessed by States

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The current discourse on international investment law and investor-State arbitration is replete with inaccuracies and hypothetical fears. Certain quarters are clamoring for sweeping changes that would undermine the effectiveness of foreign investment protection by politicizing the existing neutral, juridical system for resolving investor-State disputes. With the impending expiration of over 1,000 investment treaties and the negotiation of two trade and investment treaties that would cover 65% of the world economy, the system stands at a watershed moment, calling for a comprehensive rebuttal to critics. We argue that proposals to politicize dispute settlement—by giving states control over adjudicators, introducing self-judging defenses, permitting retroactive treaty amendment through state practice, or relaxing the rules of treaty interpretation—should be rejected. The evidence demonstrates that investment treaties and arbitration benefit poor states, are even-handed, enhance transparency, allow states ample regulatory leeway, and promote the rule of law. Download [588.05...

Originalism at Home and Abroad

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Originalism is typically thought to be a uniquely American preoccupation. This Article challenges the conventional view that originalism enjoys little support outside the United States by showing that the story of originalism—both at home and abroad—is more nuanced than has been appreciated. This Article examines how originalism has developed in two unexplored contexts—Malaysia and Singapore—to show that originalism not only thrives outside the United States but that it takes on distinct variations reflecting the cultural, historical, and political conditions of individual nations. The Article argues that whether originalism thrives, and the form that it takes, is context driven and culturally contingent. The account that this Article provides of how originalism is practiced in the world beyond the United States tests familiar assumptions in the mainstream debates over originalism. First, it shows that existing accounts of the origins of originalism are incomplete and questions the claim that originalism inevitably follows from judicial interpretation of a written constitution. Second, the experiences of countries elsewhere demonstrate that originalism is not necessarily—or even typically—associated with constraining judges. Originalists frequently claim that originalism is uniquely capable of limiting judicial discretion. Yet judges in various contexts employ originalism in support of expansive constitutional interpretation and to empower courts against the political branches. Third, this analysis sheds light on why certain nations—the United States included—are attracted to particular originalist approaches, such as original intent or original meaning. Download [637.21...

The Admissibility of Foreign Coerced Confessions in United States Courts: A Comparative Analysis

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American lower courts are presently conflicted over whether foreign coerced confessions are admissible under the Due Process Clause. The confusion can be traced largely to the Supreme Court’s opinion in Colorado v. Connelly which justified the exclusion of involuntary confessions only in the deterrence of wrongful police action. This Note offers a solution to the current circuit split by examining the justifications foreign jurisdictions and international courts offer to explain the exclusion of coerced confessions. A review of international reasoning indicates that a strong majority of courts exclude coerced confessions out of a protest against admitting coerced evidence into judicial proceedings. This Note argues that this approach would more fully protect the values codified in the Due Process Clause. Download [263.20...

The Right to Say I Don’t: Forced Marriage as Persecution in the United Kingdom, Spain, and France

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This Note aims to compare the way that forced marriage is, or is not, viewed as persecution under the domestic asylum laws and regulations of the United Kingdom and two other European nations—Spain and France. First, this Note will provide a background on the law of asylum, its international origins, and its domestic implementation in the legal systems of the United Kingdom, Spain, and France. Next, this Note will compare how these three states address the practice of forced marriage. Whether forced marriage is considered persecution under their respective domestic systems of asylum law differs among the states and, in varying degrees, often diverges from, and fails to comply with, international standards. These differences in how forced marriage is substantively treated by these three European countries are especially problematic given the growing procedural harmonization among the countries, leaving victims of forced marriage with fewer options and opportunities for asylum protection. Finally, this Note will argue that there should be domestic, regional, and international solutions implemented to ensure the protection of victims of forced marriage. Download [236.01...