Marquette University Law School Faculty Blog

Best of the Blogs: International Law Edition

Post author:Edward A. Fallone
Post published:August 9, 2010
Post category:International Law & Diplomacy Legal Scholarship

In one week, roughly two dozen students from Marquette University Law School and the University of Wisconsin Law School will return to America bringing with them many fond memories of Giessen, Germany, their jet-lagged bodies, and an inexplicable taste for beer mixed with coca-cola. In recognition of this fact, this week’s “Best of the Blogs” features an international law edition.

What is the status of a Declaration of Independence under international law, and must the nations of the world respect the self-proclaimed independence of a break-away state? That is the question that the International Court of Justice faced when it decided that Kosovo’s Declaration of Independence was legal. Professor Christian Tams of the University of Glasgow discusses the ICJ’s ruling in the Kosovo Opinion and finds the criticism that many scholars leveled at the world court to be unwarranted.

How Far Should Disclosure Requirements Go?

Post author:Richard M. Esenberg
Post published:August 6, 2010
Post category:Election Law First Amendment

I’ll be appearing tongight on Wisconsin Public Television’s Here and Now, discussing the Government Accountability Board’s new rule requiring groups and persons who spend more that $ 25 on something called “political communications” during a set period preceding an election to register, make certain filings and disclose the source of their funds. Joining me will be Mike McCabe of the Wisconsin Democracy Campaign.

Perry v. Schwarzenegger and the Slippery Slope

Post author:Bruce E. Boyden
Post published:August 5, 2010
Post category:Constitutional Interpretation Federalism

As just about everyone knows, yesterday a Northern District of California judge struck down California’s Proposition 8 as unconstitutional. There has been a tremendous amount of blog commentary on this already, much of it worth reading. (See Orin Kerr (here and here), Dave Hoffman, Eugene Volokh, Dale Carpenter, Howard Wasserman, Rick Hasen.) The one issue I want to comment on is what Perry means for the future of the constitutional treatment of same-sex marriages.

Many advocates for legal recognition of same-sex marriage are deeply worried by Perry. Dale Carpenter, for example, is concerned that the breadth of the arguments considered in Perry could lead to a sharply negative precedent if the case is reversed on appeal. Those fears are legitimate. An Equal Protection or Due Process argument mandating equal treatment for low-status individuals is what might be called “a nuclear bomb of a legal theory” — it applies everywhere, all at once, and obliterates legal distinctions meant to enforce low social status. The same applies, to a lesser extent, to arguments that the Full Faith and Credit Clause mandates recognition of valid same-sex marriages by every other state in the union. Courts might be hesitant to, so to speak, stop worrying and learn to love the bomb. Marched to the precipice too quickly, they might find some way to pull back from the brink.

If that happens, and if American society continues to develop tolerance for same-sex couples, will we be locked into sub-optimal constitutional doctrine? Not entirely. As I argue in my forthcoming article on this subject (in the Alabama Law Review), there is an escape valve.