The Permanent Court of International Justice in Global History
James D. Fry
The Permanent Court of International Justice's contributions often are overshadowed by the fact that it was the predecessor of the overwhelmingly important International Court of Justice. This article is the first to look at the Permanent Court's possible contribution to global history in its own right. While the case-study method adopted in this article does not allow for the determination of causal linkages between acts of the Permanent Court and consequences in global history, it nevertheless provides compelling support for liberal institutionalism and the notion that global history has been influenced by actors other than states, even though states remain the main shapers of global history.
Discretion and the Rule of Law: The Significance and Endurance of Vagrancy and Vagrancy-Type Laws in England, the British Empire, and the British Colonial World
This article explores the history of vagrancy laws in England, the British Empire, and the British colonial world, the significance of those laws, the various challenges that were made to vagrancy laws in the twentieth century, and the limits of those challenges to date. While vagrancy laws preceded the nineteenth century, the 1824 Vagrancy Act in England set a new model, which proved extremely influential around the world over the following centuries. Between the early nineteenth and the early twentieth centuries, vagrancy laws were adopted or reformulated almost everywhere the British left a footprint. The laws that were adopted covered a broad range of (what the authorities considered) offenses and offensive ways of being, including impoverishment, idleness, begging, hawking, public gambling, sex work, public indecency, fortune-telling, traditional religious practices, drunkenness, homosexuality, cross-dressing, socializing across racial groups, being suspicious, and many other activities as well. They were adopted for a range of purposes: to control labor and limit workers' bargaining positions, including after the abolition of slavery; to define the boundaries of civilized, industrious, and moral society; and to "clean up the streets" and reinforce urban boundaries. Most overarchingly, vagrancy laws served as a practical and rhetorical means through which the discretionary power of the authorities, as enforced through the police and magistracy, was expanded. Far from constituting an object of challenge for 'rule of law' advocates, expansion in such discretionary authority was closely bound up with the expansion of the rule of law in theory and practice. While vagrancy laws began to be challenged in the mid-twentieth century, including through a decades-long anti-vagrancy law campaign in the United States that had significant success, they remain part of the law of numerous states around the world. In addition, even where explicit vagrancy laws have been abolished, vagrancy-type laws—laws that have granted the police discretionary authority to commit arbitrary detention, of the poor in particular—remain deeply embedded in the criminal law regimes of all former British jurisdictions. Overcoming the vagrancy law legacy will require recognizing and taking measures to reform the arbitrary, class-discriminatory police power vagrancy laws have helped entrench in common law legal orders.
Jurisprudential Hypocrisy Under Israel’s Normative Umbrella: Punitive Demolitions as Pre-Conviction, Collective Punishment in the West Bank
Since the termination of the British Mandate in 1948 and Israel's subsequent occupation of Palestine, the Israeli government has punitively demolished hundreds of Palestinian homes in the West Bank. After a slight downturn during COVID-19, numbers are once again on the rise. Israel's punitive demolition strategy targets the innocent families of Palestinians allegedly involved in security offenses against Israel. When a suspected offender is detained, Israel orders the demolition of their family home—usually, before the suspect is tried or convicted, and regardless of whether they own or permanently reside in the house. In support of its punitive demolition campaign, Israel cites Regulation 119, a British Mandate-era law sustained by and parasitic to Israel's perpetual "state of emergency." Regulation 119 affords broad discretion to the Israeli military in ordering punitive demolitions and is met with considerable deference from the Israeli High Court of Justice. However, this Note contends that Israel's punitive housing demolition strategy creates tension with due process norms elsewhere affirmed in Israeli jurisprudence. First, punitive demolitions violate Israel's respect for fair trial rights and the presumption of innocence, unlawfully constituting pre-conviction punishment. Second, they defy Israel's esteem for individual responsibility, manifesting collective punishment. Given Israel's stated desire for legal consistency and normative harmony, it is incumbent on the High Court to resolve the jurisprudential hypocrisy inherent in its treatment of punitive demolition orders and to curtail Regulation 119.
Reversing CFIUS: Analyzing the International and Constitutional Implications of the Revised National Critical Capabilities Defense Act
In 2022, congressional consideration of the Revised National Critical Capabilities Defense Act (Revised NCCDA), colloquially known as "Reverse CFIUS", caused a flurry of conversation amongst congressional committees, legal practitioners, and private companies. The bill proposed a broad outbound foreign investment review regime for industries implicating national critical capabilities. While Congress ultimately declined to pass the Revised NCCDA, a similar outbound review mechanism is soon likely to be promulgated by the Executive Branch or the Legislative Branch. This note discusses the legislative history resulting in the proposal of an outbound investment review mechanism. It criticizes the breadth and ambiguity of the most recently available version of the Revised NCCDA's proposal in comparison to current national security investment review mechanisms and export control statutes, such as FIRRMA and IEEPA. This note embarks on a constitutional and international law analysis of executive authority to review foreign and domestic investments abroad. Finally, this note recommends specific ways in which the Revised NCCDA should be reworked before any congressional or executive action is taken to best comply with international standards and constitutional limits on executive power. It concludes by proposing that outbound foreign investment review could be attached to an existing regulatory framework to expand gradually by sequential congressional and presidential authorizations, in a similar fashion to other national security review regimes. This process would sculpt a more workable and durable outbound investment review regime, placed on more stable legal footing.