Timothy K. Kuhner

Bio: Timothy K. Kuhner is an academic researcher from University of Auckland. The author has contributed to research in topics: Democracy & Politics. The author has an hindex of 6, co-authored 18 publications receiving 108 citations. Previous affiliations of Timothy K. Kuhner include Georgia State University & Duke University.

The Status of Victims in the Enforcement of International Criminal Law

Abstract: This article examines the link between international judicial fora and social development: namely, the role allocated to victims by the norms and values of international criminal law. Since victims constitute one of few points of entry from which the effects of justice emanate throughout society, their role is crucial for any post-conflict transition. The role provided for victims is central to the ongoing definitional process associated with international justice. In examining the role of victims, this article provides a sense of both the promise and the danger of international justice as it is presently evolving. Contained within its promise are the protection and enforcement of human rights, the facilitation of post-conflict transitions, and the building of healthy societies. In terms of dangers, international justice can lead to the disempowerment of victims and the insertion of undue foreign influence into social affairs unrelated to the violations of international criminal law at issue.

The Democracy to Which We are Entitled: Human Rights and the Problem of Money in Politics

Abstract: This Article is the first to argue that campaign finance, corporate political activity, lobbyists, and other ‘money in politics issues’ fall within the purview of human rights treaties. The universal assumption that domestic political finance is a purely domestic issue is mistaken. Domestic political finance is actually a matter of concern for international law. This is so because the provisions of the democratic entitlement under international law cannot be reconciled with the high levels of money in politics observed in many democracies. If this argument is sound, then human rights law requires States to enact political finance reforms.

Human Rights Treaties in U.S. Law: The Status Quo, its Underlying Bases, and Pathways for Change

Abstract: As of this day, the United States has ratified three of the major seven global human rights treaties (HRTs). (1) The three it has ratified have been assented to only conditionally. They have been qualified by reservations, understandings, and declarations (RUDs) to prevent their direct enforcement in U.S. courts, and bring their provisions into sync with U.S. domestic law. This being said, the greater issues remain far from settled. Limited and conditional consent to HRTs provokes controversy in the form of two interrelated questions: first, whether U.S. RUDs are legal under international law (the "legality question"), and, second, why the United States has chosen not to increase domestic human rights protection through fuller adherence to HRTs (the "human rights question"). Conditional consent to HRTs--i.e., the policy that raises the legality question--can only be explained by answering the human rights question. Further, unlike the answer to the legality question, the answer to the human rights question responds to the assumedly desirable goal of guaranteeing the protection of human rights. Accordingly, this article examines various theories asserting claims to truth as to why the United States has tendered only conditional and limited consent to HRTs. This examination of theories and the diverse hypotheses they produce yields a socio-structural theory of human rights. From this theory, a policy suggestion emerges: to construct social arrangements for a minimum substantive floor of human rights protection. This policy suggestion disposes of the legality question, because it effectively reinterprets U.S. RUDs in a manner that satisfies applicable international rules. Most significantly, it directly addresses the concerns underlying the human rights question. In times of war and external threat, domestic human rights guarantees have been repealed within the United States--consider, for example, McCarthyism and Japanese internment. Parting from the premise that such practices are undesirable, this article assumes first that such practices may recur during present and future threats, and, second, that it is possible that future instances of such human rights infringement will not be as brief. Both assumptions are worth entertaining, given the ongoing and potentially protracted struggle against terrorism in the post-September 11th era. At its close, the article suggests that although the United States has severely curtailed the effect of human rights treaties within its territory, the HRTs--even in their diminished state--can serve to establish a substantive standard of human rights protection. That standard would be a mast to which the United States could bind itself to ensure that a meaningful level of freedom be maintained and preserved within its territory, come what may. Part I contains a summary of relevant U.S. law and practice as regards HRTs. Part II analyzes existing explanations for this law and practice and presents a socio-structural theory for human rights protection. Finally, in Part III, the article surveys two existing proposals for change and suggests a minimum floor approach for U.S. human rights law and policy that builds off the socio-structural theory. Given the breadth and quantity of the issues germane to this matter, this article does not seek to arrive at definitive or exhaustive answers. Rather, it seeks to re-conceptualize a complex problem and facilitate a resolution responsive to the multiple underpinnings of limited and conditional consent, on the one hand, and the necessity for certain inalienable and permanent rights within the United States on the other. I. HRTs IN DOMESTIC LAW Traditional U.S. judicial conceptions of international law are both antithetical to and insistent upon the enforcement of international human rights. In respect to the former, the U.S. Supreme Court has depicted international law as concerned not with domestic rights and duties, but instead with international rights and duties. …

The Separation of Business and State

Abstract: National scandals involving corporate fraud, political corruption, lobbyists, and campaign finance have called attention to worrisome dynamics: the decreasing power of natural persons relative to legal persons in the political process; and the erosion of civic or democratic values in favor of corporate values. Both dynamics relate to the vexing problem of money in politics. American political thought and constitutional structure offer much-needed guidance in the form of analogies and separationist logic. This Essay recasts the phenomenon of money in politics as a separation problem that is, a problem of the private sphere of business overreaching into the public sphere of governance; in short, excessive entanglement. Once the problem is seen in this light, it is natural to search for insights in the two most significant separations in U.S. law: the separation of powers and the separation of church and state. An analysis of these earlier separations reveals that the forces at work today arise from the same perennial forces contemplated by the Founders: unreformed human nature, dominated by unenlightened self-interest and ideological passion, and factions which emerge as a collective manifestation of interest and passion. Relevant political philosophy from the first two separations helps define the contours of a third, that between business and state. Taken as analogies, the earlier separations help explain what is happening to politics and suggest a solution.

Citizens United as Neoliberal Jurisprudence: The Resurgence of Economic Theory

Abstract: On January 21st of 2010, the Roberts Court freed corporations to spend unlimited general treasury funds on political advertisements, including those that mention candidates by name and those that are run in the weeks before an election. Shown by recent polls to be one of the most unpopular cases in U.S. history, Citizens United v. FEC promises to set the tone for the Roberts Court’s treatment of money-in-politics cases. This article shows that Citizens’ holding and reasoning flow directly from neoclassical economic theory, which assumes a perfect (political) market and resists government intervention aimed at correcting power imbalances and anti-competitive behavior. This laissez-faire stance is not new to the Court, but it had been in decline during Chief Justice Rehnquist’s long tenure. Citizens resuscitates a line of neoclassical jurisprudence that traces back to the mid 1970s, in particular to Buckley v. Valeo and First National Bank of Boston v. Bellotti. After summarizing the neoclassical assumptions of Citizens, this Article provides a thorough explanation and critique of these past cases which, in essence, imported economic theory to determine the meaning of democracy. Justice Stevens’ dissenting opinion in Citizens, and alternatives to neoclassical ideology more generally, are discussed in conclusion. In sum, this Article offers two basic contributions to the literature, the first descriptive and the second normative: It explains the neoclassical underpinnings of the line of cases that culminate in Citizens, thus offering a new way to understand the dominant ideology on the Roberts Court; and it provides an argument, rooted in institutional economic theory and separatist philosophy, that the market sphere should not govern the political sphere.

Current index to legal periodicals

Abstract: 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.

China’s Turn Against Law

Abstract: Chinese authorities are reconsidering legal reforms they enacted in the 1980s and 1990s. These reforms had emphasized law, litigation, and courts as institutions for resolving civil grievances between citizens and administrative grievances against the state. But social stability concerns have led top leaders to question these earlier reforms. Central Party leaders now fault legal reforms for insufficiently responding to (or even generating) surging numbers of petitions and protests.Chinese authorities have now drastically altered course. Substantively, they are de-emphasizing the role of formal law and court adjudication. They are attempting to revive pre-1978 Maoist-style court mediation practices. Procedurally, Chinese authorities are also turning away from the law. They are relying on political, rather than legal, levers in their effort to remake the Chinese judiciary. This Article analyzes the official Chinese turn against law. These Chinese developments are not entirely unique. American courts have also experienced a broad shift in dispute resolution patterns over the last century. Litigation has fallen out of favor. Court trials have dropped in number. Alternative dispute resolution mechanisms have increased in number. Observing such long-term patterns, Marc Galanter concluded that the United States experienced a broad “turn against law” over the 20th century. China’s shift also parallels those in other developing countries. In recent decades, nations such as India, Indonesia, and the Philippines have resuscitated or formalized traditional mediative institutions. This is part of a global reconsideration of legal norms and institutions imported or transplanted from the West.Despite these similarities with global trends, this Article argues that Chinese leaders’ shift against law is a distinct domestic political reaction to building pressures in the Chinese system. It is a top-down authoritarian response motivated by social stability concerns. This Article also analyzes the risks facing China as a result of the shift against law. It argues that the Chinese leadership’s concern with maintaining social stability in the short term may be leading them to take steps that are having severe long-term effects of undermining Chinese legal institutions and destabilizing China.Last, this Article argues for rethinking the trajectory of Chinese legal studies. Scholars need to shift away from focusing on formal Chinese law and legal institutions in order to understand how the Chinese legal system actually operates and the direction it is heading.

China's Turn Against Law

Abstract: Chinese authorities are reconsidering legal reforms they enacted in the 1980s and 1990s. These reforms had emphasized law, litigation, and courts as institutions for resolving civil grievances between citizens and administrative grievances against the state. But social stability concerns have led top leaders to question these earlier reforms. Central Party leaders now fault legal reforms for insufficiently responding to (or even generating) surging numbers of petitions and protests.Chinese authorities have now drastically altered course. Substantively, they are de-emphasizing the role of formal law and court adjudication. They are attempting to revive pre-1978 Maoist-style court mediation practices. Procedurally, Chinese authorities are also turning away from the law. They are relying on political, rather than legal, levers in their effort to remake the Chinese judiciary. This Article analyzes the official Chinese turn against law. These Chinese developments are not entirely unique. American courts have also experienced a broad shift in dispute resolution patterns over the last century. Litigation has fallen out of favor. Court trials have dropped in number. Alternative dispute resolution mechanisms have increased in number. Observing such long-term patterns, Marc Galanter concluded that the United States experienced a broad “turn against law” over the 20th century. China’s shift also parallels those in other developing countries. In recent decades, nations such as India, Indonesia, and the Philippines have resuscitated or formalized traditional mediative institutions. This is part of a global reconsideration of legal norms and institutions imported or transplanted from the West.Despite these similarities with global trends, this Article argues that Chinese leaders’ shift against law is a distinct domestic political reaction to building pressures in the Chinese system. It is a top-down authoritarian response motivated by social stability concerns. This Article also analyzes the risks facing China as a result of the shift against law. It argues that the Chinese leadership’s concern with maintaining social stability in the short term may be leading them to take steps that are having severe long-term effects of undermining Chinese legal institutions and destabilizing China.Last, this Article argues for rethinking the trajectory of Chinese legal studies. Scholars need to shift away from focusing on formal Chinese law and legal institutions in order to understand how the Chinese legal system actually operates and the direction it is heading.

Global Wealth Inequality

Abstract: This article reviews the recent literature on the dynamics of global wealth inequality. I first reconcile available estimates of wealth inequality in the United States. Both surveys and tax data show that wealth inequality has increased dramatically since the 1980s, with a top 1% wealth share around 40% in 2016 vs. 25–30% in the 1980s. Second, I discuss the fast growing literature on wealth inequality across the world. Evidence points towards a rise in global wealth concentration: for China, Europe, and the United States combined, the top 1% wealth share has increased from 28% in 1980 to 33% today, while the bottom 75% share hovered around 10%. Recent studies, however, may under-estimate the level and rise of inequality, as financial globalization makes it increasingly hard to measure wealth at the top. I discuss how new data sources (leaks from financial institutions, tax amnesties, and macroeconomic statistics of tax havens) can be leveraged to better capture the wealth of the rich.

Debt as Power

Abstract: "Debt as power is a timely and innovative contribution to our understanding of one of the most prescient issues of our time: the explosion of debt across the global economy and related requirement of political leaders to pursue exponential growth to meet the demands of creditors and investors. The book is distinctive in offering a historically sensitive and comprehensive analysis of debt as an interconnected and global phenomenon. Rather than focusing on the historical emergence of debt as a moral obligation, the authors argue that debt under capitalism can be conceived of as a technology of power, intimately tied up with the requirement for perpetual growth and the differential capitalization that benefits ‘the 1%’. Their account begins with the recognition that the histories of human communities and their natural environment are interconnected in complex spatial and hierarchical relations of power and to understand their development we need to not only examine the particularities of a given case, but more importantly their interconnected, interdependent and international relations. Since debt under capitalism is increasingly ubiquitous at all levels of society and economic growth is now the sole mantra of dominant political parties around the world, the authors argue that tracing the evolution and transformation of debt as a technology of power is crucial for understanding the ‘present as history’ and possible alternatives to our current trajectory."