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91 N.Y.U. L. Rev. 689 (2016)
Presidential War Powers as an Interactive Dynamic: International Law, Domestic Law, and Practice-Based Legal Change

handle is hein.journals/nylr91 and id is 720 raw text is: NEW YORK UNIVERSITY LAW REVIEW VOLUME 91 OCTOBER 2016 NUMBER 4 ARTICLES PRESIDENTIAL WAR POWERS AS AN INTERACTIVE DYNAMIC: INTERNATIONAL LAW, DOMESTIC LAW, AND PRACTICE-BASED LEGAL CHANGE CURTIS A. BRADLEYt & JEAN GALBRAITHt There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allow the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be distinct legal issues. This Article, by contrast, considers these two bodies of law together as they relate to the United States. In doing so, it makes three main contri- butions. First, it demonstrates striking parallels between the structure of the interna- tional and domestic legal regimes governing the use of force, and it explains how this structure tends to incentivize unilateral action. Second, it theorizes that these two bodies of law are interconnected in previously overlooked ways, such that how the executive branch interprets law in one context can be and often is informed by the other legal context. Third, it documents these interactions over time for several t William Van Alstyne Professor, Duke Law School. t Assistant Professor, University of Pennsylvania Law School. For their helpful com- ments and suggestions, we thank Jos6 Alvarez, Mitch Berman, Ron Bettauer, Joseph Blocher, Kathy Bradley, Bill Burke-White, Harlan Cohen, Ashley Deeks, Claire Finkel- stein, Michael Glennon, Jack Goldsmith, David Golove, Monica Hakimi, Oona Hathaway, John Harrison, Rebecca Ingber, Benedict Kingsbury, Harold Koh, Marty Lederman, John Manning, Martha Minow, Jide Nzelibe, Sai Prakash, Michael Ramsey, Kal Raustiala, Ganesh Sitaraman, Peter Spiro, Matt Waxman, and participants in the 2015 Duke-Yale Foreign Relations Law Roundtable, the 2015 American Society of International Law Research Forum, and workshops held at Duke Law School, George Washington University Law School, Harvard Law School, New York University School of Law, and the University of Pennsylvania School of Law. We also thank the editors of the New York University Law Review for their contributions. For research support, we thank our law libraries, and partic- ularly Gabriela Femenia. Copyright @ 2016 by Curtis A. Bradley & Jean Galbraith. 689 Imaged with Permission of N.Y.U. Law Review

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