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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?