Questions concerning the extraterritorial applicability of the Constitution have come to the fore during the “war on terror.” In Boumediene v. Bush, the Supreme Court held that noncitizens detained in Guantanamo have the right to challenge their detention in federal court. To reach this conclusion, the Court used the “impracticable and anomalous” test, also known as the “functional” approach because of its reliance on pragmatic or consequentialist considerations. The test first appeared in a concurring opinion over fifty years ago; in Boumediene, it garnered the votes of a majority. The test rests on a view of the Constitution abroad that overemphasizes the difference between the foreign and the domestic, improperly relegating constitutional guarantees abroad to a far more uncertain status than they have at home. This Article argues that courts dealing with questions of constitutional extraterritoriality should distinguish between two questions: that of whether a constitutional guarantee applies in a given circumstance, and that of how an applicable guarantee may be enforced. 

Among the most important questions in international criminal law since the mid-1990s have been the status of Anglo-American conspiracy law and the liability of corporations and their officers for human rights violations. The cases and jurists have, despite their otherwise diverse answers, agreed that the Nuremberg trials after World War II are the most important precedent. This Essay examines the five Nuremberg cases that featured economic perpetrators and the legal theories used there. The Essay focuses on the forgotten, crucial months between the first Nuremberg trial (1945–46) and the later twelve trials (1946–49), when theories of corporate and conspiracy liability were considered and debated. Using unpublished memos, letters, and diaries, the Essay concludes that conspiracy was seen to be a vital part of international law, albeit mainly for its evidentiary advantages, and that criminal charges against corporations were considered entirely permissible, though ultimately not used. 

This Note explores problems with the U.S.-Peru Free Trade Agreement’s labor chapter. These problems result from the ambiguity in its novel and celebrated provision obligating both countries to uphold the principles in the International Labor Organization’s Declaration on Fundamental Principles and Rights at Work. While the Bush Administration and pro-labor members of Congress hailed the provision as a substantial improvement on labor protections in previous trade agreements, the potential effectiveness of the new obligation is limited by the inherent vagueness of the ILO Declaration’s principles. The Peru Agreement exacerbates this vagueness by explicitly detaching the principles from the ILO jurisprudence that informs t hem. This Note proposes two possible solutions to overcome this limitation: (1) interpret the obligation with reference to the relevant ILO jurisprudence, and/or (2) establish a cooperative program with the ILO in which it would monitor compliance.