American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

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Current index to legal periodicals

Twenty-five years ago, as an American GP living and practising in Wales, I would watch BBC sports programmes, such as darts and bowls and snooker, all unknown to me and, therefore, fascinating. I always found it odd — pairings such as Scotland (or Wales) versus The Rest of the World. It either seemed overly ambitious for Scotland or slim pickings for the rest of the world. After the recent US presidential election, it appears as if it will continue to be the US versus The Rest of the World.

Three books might help you, who are of ‘the rest of the world’, begin to grapple with what is going on in the US. Written from the short, medium, and long view, each has a somewhat parochial twist. Each also, however, contains a great deal of useful history.

The 9/11 Commission Report refutes the old saw that nothing good can be written by a committee. The report is a remarkable book and its recent nomination as a finalist for the National Book Award is a first for a government document, and well deserved. What is contained in this report is well known by most of us — the cast of characters has been in the news for over 3 years. And the sequence of events and many of the details that were gleaned from the ongoing hearings have been contained in news stories, long and short. However, to have published what is known until this point in a single narrative, which is at once accessible and clearly written, is a truly historical achievement. Reading the events of the day — regarding the planes that crashed in the city of New York, as the rescue squads from police and fire departments move into place and act — is both familiar and detailed in a way that helps us understand better than I would ever have imagined the why and how of all the death and destruction.

So much about those days have been parsed into documentaries — long analyses of causation of issues, like why the towers fell — that one would think that everything that could be written had been. But the Commission's report really does add enormous amounts of history to the sound bites and 30-second visuals that have pervaded politics and the world assessment of the US since that time. The report deals extensively and thoughtfully with the history of Islam, both ancient and recent, and describes the history of terrorism as it evolved from highjackings of the 1970s to the use of bombs and targeted destruction of military targets in the late 1980s and 1990s.

Events that occurred in the time that preceded the attacks of 9/11 are written in a way that shows the convergence of intelligence reports, a long history of threats from Bin Laden, and many alerts and warnings (‘the system was blinking red’ in the words of Tenet, CIA director). The information about the movements of the terrorists in their planning and the worldwide involvement of cells, support systems, and finances makes it clear that these events were truly the result of a network that reaches virtually everywhere.

After the attacks, reading of the efforts of the fire, police, and other rescue squads in New York adds specifics that are terrible and remarkable. On 9/11, I ran up and down the stairs between patients to watch on television as it was all happening. All of us who watched that day wondered what those people who were clearly doomed were thinking, feeling, and seeing. Their actual words in this report are not fiction, they are the words, for most the last words, of people who died as we watched. Their words are the hardest part of this long, detailed report to deal with.

Much of the final third of the report is devoted to what a fire captain friend of mine once called a PFE — a post-fire evaluation — which he mandated for his squad after every fire. In a PFE, the entire squad reconstructed, relived, and discussed the events to see what could be improved next time. The 9/11 Commission engaged in a world-scale PFE. Although all US politicians state that they intend to follow the recommendations of The 9/11 Commission Report, the backing and filling is already well underway. What politician, for example, is going to agree that major conurbations, and political and tactical targets should receive preference over their hometown fire departments and that homeland security money should ‘not be used as a pork barrel’?

Rather than bringing a grieving country together in a way that will make such events unlikely to happen again, the reactions from the report have begun to cleave along party lines once again. The 9/11 Commission was almost unique in its thoroughness, transparency, and its ability to focus on the real issue of terror and lawlessness. However, the extent to which a violent stateless ideology has negatively affected the tolerance of differences, the sense of community, and the level of civic discourse in the US means that terrorism has affected our neighborhoods as much as it has affected our country. And fear rather than determination, despite the President's stump speech, has become the dominant emotion.

Robert Byrd, from his 45-year perspective in the US Senate, understands that cheques and balances are essential to avoid tragedy, even if they, at times, impede progress. His book, Losing America, contains several ‘under-the-table’ looks at Congress and the manipulations and arrogance of the coterie of ideologues who surround George W. Bush. Byrd, from the Southern tradition of politeness and respect, which often cloaks bar-room politics, is steeped in the history of the institution of the Senate. He is personally offended by Bush's lack of interest or curiosity in the legislative process prior to 9/11, and his dishonesty and deception afterwards. Byrd's address to the Senate on the eve of the war on Iraq was widely quoted and is contained in this book. While people marching in the streets made headlines, it was an 85-year-old senator, not previously known as an outraged progressive, who took on both the Administration for its hypocrisy and many of his colleagues for their lack of courage and principle. He voted against the war and continues to point out the dishonesty of the people who guide it. The book reads with a sensibility from another age. Although his own history is certainly not without problems, Senator Byrd's belief in the true democratic process, rather than the gun-barrel approach of George W. Bush, should be given the respect that he, and it, deserve.

Arthur Schlesinger Jr has been writing history since 1946 and has Pulitzer prizes to prove he does it well. His voice is considered, thoughtful, and scholarly — as one might expect from a historian and distinguished teacher. Toward the end of his book War and the American Presidency, however, Schlesinger's voice rises with outrage at those who surround and influence George W. Bush, the ‘small group of Messianic statesman whose self righteousness bids fair to wreck our age’. He writes of the imperial presidencies of the early years of the country, which repressed dissent during wartime, and how the US moved from wars based on pique to engaging international diplomacy and internationalism. Schlesinger reminds us that all presidents since Wilson, with George W. Bush being the glaring exception, believed in statesmanship, diplomacy, alliances to guard against capricious choices and, when necessary, taking on common enemies.

Much of Schlesinger's book, however, also chronicles the record of the current Administration which, by being ‘judge, jury, and executioner resurrects the imperial presidency’. An imperial presidency in the age of frigates and single-shot rifles cannot be compared with one that possesses weapons of mass destruction and a wooly-headed sense of divine guidance. We used to think of Henry Kissinger as the prototype for Dr Strangelove, but I wish Kubrick were still alive to do the remake with Dick Cheney and Donald Rumsfeld in mind.

Needless to say, the recent election, instead of relegating George W. Bush and his hangers-on to the historical trashbin, has pushed them to the front of the international agenda. A secretive, defensive, unreflective president will now shape the world for our grandchildren. Each of these books elaborates on the ineffectiveness of Bush dealing with the real enemy while he digs deeper into a country where he is creating more enemies by the day.

One has to ask why, instead of quietly writing their memoirs, two distinguished 87-year-old statesmen are raising the alarm and shaking us by the throat — like the aging Thomas Jefferson who, in his famous letter of 1820, said of the first compromise to try to divide the country between slave and free states: ‘this momentous question, like a firebell in the night, awakened and filled me with terror’. Byrd and Schlesinger hear the firebell and are ringing it to wake us up. Another quote that might better capture Bush and his legacy would be from the Bible he uses as justification for his policies: ‘He that troubleth his own house shall inherit the wind’ (Proverbs 11, 29).

The 9/11 Commission Report: Final Report of the National Commission on Terrorist attacks upon the United States.

Acknowledgements Table of cases Table of treaties Introduction 1. Francisco de Vitoria and the colonial origins of international law (i) Introduction (ii) Vitoria and the problem of universal law (iii) War, sovereignty and the transformation of the Indian (iv) Conclusion 2. Finding the peripheries: colonialism in nineteenth-century international law (i) Introduction (ii) Elements of positivist jurisprudence (iii) Defining and excluding the uncivilized (iv) Native personality and managing the colonial encounter (v) Reconceptualizing sovereignty 3. Colonialism and the birth of international institutions: the mandate of the League of Nations (i) Introduction (ii) Creation of the mandate system (iii) The league of nations and the new international law (iv) The mandate system and colonial problems (v) The mandate system and the construction of the non-European state (vi) Government, sovereignty, and economy (vii) The mandate and the discussion of sovereignty (viii) The legacies of the mandate system: toward the present (ix) Conclusion 4. Sovereignty and the post-colonial state (i) Introduction (ii) Decolonization and the universality of international law (iii) Development, nationalism and the post-colonial state (iv) Development and the reform of international law (v) Permanent sovereignty over natural resource and the new international economic order (vi) The 1962 resolution on PSNR (vii) The 1974 charter of rights and duties among states (viii) Colonialism and the emergence of transnational law (ix) Sources of law and international contracts (x) Overview and conclusions 5. Governance and globalization, civilization and commerce (i) Introduction (ii) Good governance and the third world (iii) Governance, human rights and the universal (iv) International financial institutions, human rights and good governance (v) International financial institutions and the mandate system (vi) Conclusions and overview 6. On making war on the terrorists: imperialism as self-defense (i) Introduction (ii) The war against terrorism (WAT) (iii) The United States and imperial democracy (iv) Historical origins: war, conquest and self-defense (v) Terrorism and the United Nations: a Victorian moment (vi) Terrorism, self-defense and third world sovereignty Conclusion.

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Imperialism, sovereignty, and the making of international law

1. Introduction PART I: CUSTOMARY INTERNATIONAL LAW 2. A Theory of Customary International Law 3. Case Studies PART II: TREATIES 4. A Theory of International Agreements 5. Human Rights 6. International Trade PART III: RHETORIC, MORALITY, AND INTERNATIONAL LAW 7. A Theory of International Rhetoric 8. International Law and Moral Obligation 9. Liberal Democracy and Cosmopolitan Duty 10. Conclusion

The limits of international law

1. Introduction 2. How long should constitutions endure? 3. Conceptualizing constitutions 4. A positive theory of constitutional endurance 5. Empirical implications of the theory: identifying risks to constitutional life 6. An epidemiological analysis of constitutional mortality 7. Contrasts in constitutional endurance 8. Contexts of chronic failure 9. Conclusion.

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The Endurance of National Constitutions

TABLE OF CONTENTS Introduction 3 I. Background on Intemational Dispute Resolution 8 II. Independence and the Role of Intemational Tribunals 12 A. Independence in the Domestic and Intemational Spheres 12 B. Why States Use Intemational Tribunals 14 1. Information Disclosure in Treaty Disputes 15 2. Infonnation Disclosure in Customary Intemational Law Disputes 18 3. The Dispute Resolution Mechanism 20 C. The Design of Dispute Resolution Mechanisms 22 1. The Single Arbitrator 22 2. Three (or More) Arbitrators 23 3. From Arbitration to Courts 24 4. Measuring Tribunal Independence 26 D. Measurements of Effectiveness 27

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Judicial Independence in International Tribunals

Globalization represents the reality that we live in a time when the walls of sovereignty are no protection against the movements of capital, labor, information and ideas—nor can they provide effective protection against harm and damage.1 This declaration by Judge Rosalyn Higgins, the former President of the International Court of Justice, represents the conventional wisdom about the future of global governance. Many view globalization as a reality that will erode or even eliminate the sovereignty of nation-states. The typical account points to at least three ways that globalization has affected sovereignty. First, the rise of international trade and capital markets has interfered with the ability of nation-states to control their domestic economies.2 Second, nation-states have responded by delegating authority to international organizations.3 Third, a “new” international law, generated in part by these organizations, has placed limitations on the independent conduct of domestic policies.4

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Globalization and Sovereignty

War by Other Means: An Insider's Account of the War on Terror

Many international legal scholars and foreign governments have argued that the recent war in Iraq violated international law. This paper, published as part of an Agora in the American Journal of International Law, criticizes this view on two grounds. It explains that these scholars have failed to properly read existing United Nations Security Council resolutions that authorized the use of force against Iraq. Even putting the United Nations to one side, this paper explains that the use of force could have been justified, at the time of the invasion of Iraq in the spring of 2003, as an exercise of self-defense. It argues that traditional notions of self-defense, which permit the anticipatory use of force before an offensive attack occurs, have changed to take into account the greater magnitude of destruction of weapons of mass destruction and the behavior of rogue states.

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International Law and the War in Iraq

Since the September 11 attacks on the United States, the Bush administration has come under fire for its methods of combating terrorism. Waging war against al Qaeda has proven to be a legal quagmire, with critics claiming that the administration's response in Afghanistan and Iraq is unconstitutional. The war on terror - and, in a larger sense, the administration's decision to withdraw from the ABM Treaty and the Kyoto accords - has many wondering whether the constitutional framework for making foreign affairs decisions has been discarded by the present administration. John Yoo, formerly a lawyer in the Department of Justice, here makes the case for a completely new approach to understanding what the Constitution says about foreign affairs, particularly the powers of war and peace. Looking to American history, Yoo points out that from Truman and Korea to Clinton's intervention in Kosovo, American presidents have had to act decisively on the world stage without a declaration of war. They are able to do so, Yoo argues, because the Constitution grants the president, Congress, and the courts very different powers, requiring them to negotiate the country's foreign policy. Yoo roots his controversial analysis in a brilliant reconstruction of the original understanding of the foreign affairs power and supplements it with arguments based on constitutional text, structure, and history. Accessibly blending historical arguments with current policy debates, "The Powers of War and Peace" will no doubt be hotly debated. And while the questions it addresses are as old and fundamental as the Constitution itself, America's response to the September 11 attacks has renewed them with even greater force and urgency.

John Yoo

Papers

Judicial Independence in International Tribunals

Globalization and Sovereignty

War by Other Means: An Insider's Account of the War on Terror

International Law and the War in Iraq

The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11