The Contracts for the International Sale of Goods (CISG) Convention is one of the most talked-abo... more The Contracts for the International Sale of Goods (CISG) Convention is one of the most talked-about, and written-about, aspects of international commercial law. Ss time progresses, it may become evident that significant numbers of commercial actors and significant numbers of courts and other adjudicatory bodies are simply choosing not to apply the Convention. In such event, the question as to why there should be such a reluctance to adopt the Convention will present itself. This Article finds helpful perspective on this question in the work of international legal scholar Thomas Franck. Specifically, guidance is drawn from the theory of international legitimacy developed in Professor Franck\u27s 1990 book, The Power of Legitimacy Among Nations, and in his earlier Article, Legitimacy in the International System. Under Franck\u27s theory of legitimacy, each rule of international law exerts a greater or lesser “pull to compliance” to the extent the rule is characterized by greater or le...
He would like to express special thanks to the staff of the Mitchell Hamline Law Review, whose as... more He would like to express special thanks to the staff of the Mitchell Hamline Law Review, whose assistance was especially helpful in preparing this article.
In recent years, members of the United States Supreme Court have included references to foreign l... more In recent years, members of the United States Supreme Court have included references to foreign law and international law in several opinions interpreting the Federal Constitution. Some members of the Court, political figures, and commentators view this development as problematic. One of the problems that critics have with this practice pertains especially to comparative references to foreign law. Critical observers maintain that there is no adequate principled basis for distinguishing one country from another. They imply that there is nothing to prevent a court from citing the laws of repressive countries, as well as the laws from more freedom-loving
Many in the United States who follow international law have tracked the course of the Supreme Cou... more Many in the United States who follow international law have tracked the course of the Supreme Court's 2008 Medellin case' especially closely, both before and after the Court's issuance of the decision. The case concerned the Vienna Convention on Consular Relations (the "Vienna Convention, "Convention" or "VCCR"), which imposes certain obligations on the authorities of a State Party when they imprison a national of another State Party. Among these duties is the obligation to inform the foreign prisoner that the Convention affords the prisoner the right to communicate, while in prison, with consular officials from the prisoner's home country. Authorities indicate that various states in the US have been lax in providing this information to incarcerated criminal defendants who are foreign nationals. The Medellin decision, when read with other recent Supreme Court cases, creates a veritable "maze" of obstructions for any foreign national...
In this interactive, student-centered guide, Anthony S. Winer and Mary Ann E. Archer provide a co... more In this interactive, student-centered guide, Anthony S. Winer and Mary Ann E. Archer provide a comprehensive introduction and analysis of research methods for Public International Law. A Basic Course in Public International Law Research promotes effective research practices that stem from an understanding of the tenets of International Law. Complete with background essays, exercises, and analysis of both print and electronic resources, it is ideal for both undergraduate and graduate law, international relations, and international political science courses.
This Book Review is brought to you for free and open access by the Law Reviews and Journals at Mi... more This Book Review is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact
Various countries around the world have been according greater protection to the rights of lesbia... more Various countries around the world have been according greater protection to the rights of lesbian, gay, bisexual, and transgender (LGBT) people in recent years. At the same time, in other countries, the rights of LGBT people are becoming more threatened. Against this backdrop, it is worth noting that the United Nations (U.N.) General Assembly has never issued a resolution specifically protecting or advancing the rights of LGBT people. This is remarkable given the significant role the General Assembly has had in promulgating international human rights. From the standpoint of advocates for LGBT rights, it would be desirable for the General Assembly to issue such a resolution. This article suggests part of a strategy to be implemented in pursuing that goal. Attention is drawn to the importance of levels of generality that are used to describe human rights. Several major United States Supreme Court cases regarding constitutional rights illustrate this importance. Overall, the deployment of higher levels of generality in discourse concerning LGBT rights can be more successful in securing results favorable to those rights. Although the General Assembly has not issued any resolutions protecting or advancing LGBT rights, other international actors have. Certain international tribunals have issued decisions, certain international organizations have issued resolutions and reports, and certain non-governmental organizations (NGOs) have issued principles and policies, all aimed at protecting or advancing LGBT rights. A recent and commendable example is a resolution from the American Bar Association (ABA), adopted on August 11, 2014, that (among other effects) condemns all laws that discriminate against LGBT people. Upon review, it is observed that the language used in these actions reflects varying points on a spectrum, running from a broad (or higher) level of generality to a specific (or lower) level of generality. Historically, most General Assembly resolutions protecting or advancing human rights have adopted specific levels of generality. An earlier effort to advance LGBT rights before the General Assembly, adopting only a moderately specific level of generality, was unsuccessful. This article asserts that, in designing the General Assembly's first LGBT rights resolution, it will be safer and more effective to follow the examples indicating higher levels of generality rather than those indicating lower levels of generality. Given the record of the international authorities and precedents reviewed in this article, and given the earlier unsuccessful attempt in the General Assembly, the first General Assembly resolution on LGBT rights should adopt a very high level of generality.
In the field of Sexuality Law, there is a current debate among certain activists and commentators... more In the field of Sexuality Law, there is a current debate among certain activists and commentators concerning "assimilation" and "resistance." 2 Some assert that the goal of assimilation should guide policy choices. The view may be, for example, that by framing the goals of sexual minorities in the context of the values of the larger population, the larger population will identify more readily with sexual minorities and be more receptive to policy changes that benefit these minorities. On the other hand, other critics and advocates assert that the situation of sexual minorities is so unique, and their genuine needs so radically distinct from those of the dominant population, that assimilation is inimical to the minorities' cause, and resistance is the only appropriate approach. The predominant debate tends to presume that these two approaches are mutually exclusive. Recent developments on the issue of transsexual marriage cast doubt on the usefulness of this dichotomy. Transsexual people who enter into legal marriages with persons whom they consider to be of the opposite sex can be said to be engaging in behavior that is simultaneously assimilative and resistive. In advocating for the concerns of people in this position then, activists and commentators cannot neatly pin their theoretical foundations exclusively on either assimilation or resistance. This theoretical observation is put in sharp relief by recent events. The last few months have witnessed major developments in this country in the case law of transsexual identity, particularly transsexual marriage. Recent cases decided by the high courts in Kansas 3 and Maryland, 4 and by a trial court in Florida, 5 serve to emphasize the degree to which transsexual people living in opposite-sex marriages are engaged in behavior that cannot be explained as solely assimilation or resistance.
Professor Anthony Winer examines what is permitted and prohibited under Public International Law,... more Professor Anthony Winer examines what is permitted and prohibited under Public International Law, and focuses on potentially applicable legal conventions, such as the United Nations Charter, the 1949 Geneva Conventions and their 1977 Protocol, and the International Covenant on Civil and Political Rights. The discussion also focuses on potentially applicable rules of Customary International Law, especially those regarding the conduct
This Article begins with an analysis of certain features of the Equal Protection Clause of the Fo... more This Article begins with an analysis of certain features of the Equal Protection Clause of the Fourteenth Amendment and demonstrates that this clause establishes a fundamental right to the equal benefit of laws protecting personal security. Laws protecting personal security must be applied evenhandedly. Any discriminatory application of such laws is presumptively invalid under the Equal Protection Clause. This Article next shows that gay men and lesbians are among the most common victims of hate crime, that hate crimes against gays and lesbians are significant, persistent and widespread, and that gays and lesbians have a substantial stake in the manner in which the hate crime phenomenon is addressed. However, the interest of homosexuals in hate crime legislation is far more compelling than that. Because of societal antipathy toward gay men and lesbians, legislatures frequently exclude lesbians and gay men from the protection of hate crime statutes. In such cases, homosexuals are denied the equal benefit of laws protecting personal security, a right required by the Equal Protection Clause. This Article thus concludes that homosexual men and women have much more than a mere interest in the protection of hate crime statutes. Once a state decides to enact a hate crime statute protecting members of certain other societal groups, homosexuals have a constitutional right to its protection as well.
The particular focus of the comparison in this Essay is the relationship of the Reagan Doctrine a... more The particular focus of the comparison in this Essay is the relationship of the Reagan Doctrine and the Bush Doctrine to the international law on the use of force. This comparison will yield some tentative conclusions about the consequences of the United States serving, in some senses, as the world's sole superpower.
The proposed marriage discrimination amendment to the Minnesota Constitution is profoundly antide... more The proposed marriage discrimination amendment to the Minnesota Constitution is profoundly antidemocratic. It is extremely wide-ranging in its scope, it obliterates the opportunity of the LGBT community to legislatively advance its interests in the area, it falsely assumes characteristics of the state judiciary that do not in fact exist, and it is drafted with language that is particularly hostile to LGBT concerns and democracy in general. It was a triumph for reason and democracy that this amendment was defeated in 2006. It should never be introduced again. In the unfortunate event that it is introduced again, it should be resoundingly defeated.
Northwestern Journal of International Law & Business 19:1 (1998) called the "CISG Convention... more Northwestern Journal of International Law & Business 19:1 (1998) called the "CISG Convention." Initially signed in 1980 as the culmination of proceedings involving representatives from 62 countries,3 the CISG Convention originally entered into force in 1988, when it ...
The Contracts for the International Sale of Goods (CISG) Convention is one of the most talked-abo... more The Contracts for the International Sale of Goods (CISG) Convention is one of the most talked-about, and written-about, aspects of international commercial law. Ss time progresses, it may become evident that significant numbers of commercial actors and significant numbers of courts and other adjudicatory bodies are simply choosing not to apply the Convention. In such event, the question as to why there should be such a reluctance to adopt the Convention will present itself. This Article finds helpful perspective on this question in the work of international legal scholar Thomas Franck. Specifically, guidance is drawn from the theory of international legitimacy developed in Professor Franck\u27s 1990 book, The Power of Legitimacy Among Nations, and in his earlier Article, Legitimacy in the International System. Under Franck\u27s theory of legitimacy, each rule of international law exerts a greater or lesser “pull to compliance” to the extent the rule is characterized by greater or le...
He would like to express special thanks to the staff of the Mitchell Hamline Law Review, whose as... more He would like to express special thanks to the staff of the Mitchell Hamline Law Review, whose assistance was especially helpful in preparing this article.
In recent years, members of the United States Supreme Court have included references to foreign l... more In recent years, members of the United States Supreme Court have included references to foreign law and international law in several opinions interpreting the Federal Constitution. Some members of the Court, political figures, and commentators view this development as problematic. One of the problems that critics have with this practice pertains especially to comparative references to foreign law. Critical observers maintain that there is no adequate principled basis for distinguishing one country from another. They imply that there is nothing to prevent a court from citing the laws of repressive countries, as well as the laws from more freedom-loving
Many in the United States who follow international law have tracked the course of the Supreme Cou... more Many in the United States who follow international law have tracked the course of the Supreme Court's 2008 Medellin case' especially closely, both before and after the Court's issuance of the decision. The case concerned the Vienna Convention on Consular Relations (the "Vienna Convention, "Convention" or "VCCR"), which imposes certain obligations on the authorities of a State Party when they imprison a national of another State Party. Among these duties is the obligation to inform the foreign prisoner that the Convention affords the prisoner the right to communicate, while in prison, with consular officials from the prisoner's home country. Authorities indicate that various states in the US have been lax in providing this information to incarcerated criminal defendants who are foreign nationals. The Medellin decision, when read with other recent Supreme Court cases, creates a veritable "maze" of obstructions for any foreign national...
In this interactive, student-centered guide, Anthony S. Winer and Mary Ann E. Archer provide a co... more In this interactive, student-centered guide, Anthony S. Winer and Mary Ann E. Archer provide a comprehensive introduction and analysis of research methods for Public International Law. A Basic Course in Public International Law Research promotes effective research practices that stem from an understanding of the tenets of International Law. Complete with background essays, exercises, and analysis of both print and electronic resources, it is ideal for both undergraduate and graduate law, international relations, and international political science courses.
This Book Review is brought to you for free and open access by the Law Reviews and Journals at Mi... more This Book Review is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact
Various countries around the world have been according greater protection to the rights of lesbia... more Various countries around the world have been according greater protection to the rights of lesbian, gay, bisexual, and transgender (LGBT) people in recent years. At the same time, in other countries, the rights of LGBT people are becoming more threatened. Against this backdrop, it is worth noting that the United Nations (U.N.) General Assembly has never issued a resolution specifically protecting or advancing the rights of LGBT people. This is remarkable given the significant role the General Assembly has had in promulgating international human rights. From the standpoint of advocates for LGBT rights, it would be desirable for the General Assembly to issue such a resolution. This article suggests part of a strategy to be implemented in pursuing that goal. Attention is drawn to the importance of levels of generality that are used to describe human rights. Several major United States Supreme Court cases regarding constitutional rights illustrate this importance. Overall, the deployment of higher levels of generality in discourse concerning LGBT rights can be more successful in securing results favorable to those rights. Although the General Assembly has not issued any resolutions protecting or advancing LGBT rights, other international actors have. Certain international tribunals have issued decisions, certain international organizations have issued resolutions and reports, and certain non-governmental organizations (NGOs) have issued principles and policies, all aimed at protecting or advancing LGBT rights. A recent and commendable example is a resolution from the American Bar Association (ABA), adopted on August 11, 2014, that (among other effects) condemns all laws that discriminate against LGBT people. Upon review, it is observed that the language used in these actions reflects varying points on a spectrum, running from a broad (or higher) level of generality to a specific (or lower) level of generality. Historically, most General Assembly resolutions protecting or advancing human rights have adopted specific levels of generality. An earlier effort to advance LGBT rights before the General Assembly, adopting only a moderately specific level of generality, was unsuccessful. This article asserts that, in designing the General Assembly's first LGBT rights resolution, it will be safer and more effective to follow the examples indicating higher levels of generality rather than those indicating lower levels of generality. Given the record of the international authorities and precedents reviewed in this article, and given the earlier unsuccessful attempt in the General Assembly, the first General Assembly resolution on LGBT rights should adopt a very high level of generality.
In the field of Sexuality Law, there is a current debate among certain activists and commentators... more In the field of Sexuality Law, there is a current debate among certain activists and commentators concerning "assimilation" and "resistance." 2 Some assert that the goal of assimilation should guide policy choices. The view may be, for example, that by framing the goals of sexual minorities in the context of the values of the larger population, the larger population will identify more readily with sexual minorities and be more receptive to policy changes that benefit these minorities. On the other hand, other critics and advocates assert that the situation of sexual minorities is so unique, and their genuine needs so radically distinct from those of the dominant population, that assimilation is inimical to the minorities' cause, and resistance is the only appropriate approach. The predominant debate tends to presume that these two approaches are mutually exclusive. Recent developments on the issue of transsexual marriage cast doubt on the usefulness of this dichotomy. Transsexual people who enter into legal marriages with persons whom they consider to be of the opposite sex can be said to be engaging in behavior that is simultaneously assimilative and resistive. In advocating for the concerns of people in this position then, activists and commentators cannot neatly pin their theoretical foundations exclusively on either assimilation or resistance. This theoretical observation is put in sharp relief by recent events. The last few months have witnessed major developments in this country in the case law of transsexual identity, particularly transsexual marriage. Recent cases decided by the high courts in Kansas 3 and Maryland, 4 and by a trial court in Florida, 5 serve to emphasize the degree to which transsexual people living in opposite-sex marriages are engaged in behavior that cannot be explained as solely assimilation or resistance.
Professor Anthony Winer examines what is permitted and prohibited under Public International Law,... more Professor Anthony Winer examines what is permitted and prohibited under Public International Law, and focuses on potentially applicable legal conventions, such as the United Nations Charter, the 1949 Geneva Conventions and their 1977 Protocol, and the International Covenant on Civil and Political Rights. The discussion also focuses on potentially applicable rules of Customary International Law, especially those regarding the conduct
This Article begins with an analysis of certain features of the Equal Protection Clause of the Fo... more This Article begins with an analysis of certain features of the Equal Protection Clause of the Fourteenth Amendment and demonstrates that this clause establishes a fundamental right to the equal benefit of laws protecting personal security. Laws protecting personal security must be applied evenhandedly. Any discriminatory application of such laws is presumptively invalid under the Equal Protection Clause. This Article next shows that gay men and lesbians are among the most common victims of hate crime, that hate crimes against gays and lesbians are significant, persistent and widespread, and that gays and lesbians have a substantial stake in the manner in which the hate crime phenomenon is addressed. However, the interest of homosexuals in hate crime legislation is far more compelling than that. Because of societal antipathy toward gay men and lesbians, legislatures frequently exclude lesbians and gay men from the protection of hate crime statutes. In such cases, homosexuals are denied the equal benefit of laws protecting personal security, a right required by the Equal Protection Clause. This Article thus concludes that homosexual men and women have much more than a mere interest in the protection of hate crime statutes. Once a state decides to enact a hate crime statute protecting members of certain other societal groups, homosexuals have a constitutional right to its protection as well.
The particular focus of the comparison in this Essay is the relationship of the Reagan Doctrine a... more The particular focus of the comparison in this Essay is the relationship of the Reagan Doctrine and the Bush Doctrine to the international law on the use of force. This comparison will yield some tentative conclusions about the consequences of the United States serving, in some senses, as the world's sole superpower.
The proposed marriage discrimination amendment to the Minnesota Constitution is profoundly antide... more The proposed marriage discrimination amendment to the Minnesota Constitution is profoundly antidemocratic. It is extremely wide-ranging in its scope, it obliterates the opportunity of the LGBT community to legislatively advance its interests in the area, it falsely assumes characteristics of the state judiciary that do not in fact exist, and it is drafted with language that is particularly hostile to LGBT concerns and democracy in general. It was a triumph for reason and democracy that this amendment was defeated in 2006. It should never be introduced again. In the unfortunate event that it is introduced again, it should be resoundingly defeated.
Northwestern Journal of International Law & Business 19:1 (1998) called the "CISG Convention... more Northwestern Journal of International Law & Business 19:1 (1998) called the "CISG Convention." Initially signed in 1980 as the culmination of proceedings involving representatives from 62 countries,3 the CISG Convention originally entered into force in 1988, when it ...
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