Episode 29 of Borderlines features distinguished scholar Professor Curt Bradley (Chicago) discussing his new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). Berkeley Law professor and Borderlines guest host Elena Chachko brings her foreign relations and administrative law background to guide this fascinating interview.

In the more than two centuries since the U.S. Constitution was adopted, the constitutional law that governs how the United States interacts with the rest of the world has evolved significantly. This evolution did not come about through formal amendments to the text of the Constitution or even through U.S. Supreme Court rulings. Instead, it came about primarily through the actions and interactions of Congress and the executive branch, as they responded to the changing nature of both the United States and the world environment.

Listeners will learn how and why the law governing the separation of powers, covering topics such as the making of “executive agreements,” the termination of treaties, and the waging of war, has been developed over time through historic governmental practices, rather than through judicial decisions or constitutional redrafting.

In his 1952 concurrence in the Youngstown steel seizure case, Justice Felix Frankfurter invoked the term “the gloss of history” to describe this phenomenon. Professor Bradley’s pioneering research illuminates the role of historical practice, or gloss, to justify both expansions of, and limitations on, presidential and legislative power relating to foreign affairs. The conversation brings fresh insights about the role of courts, the U.S. legal system’s relationship with international law, and “undeclared” U.S. military conflicts such as the Korean War and the “war on terrorism.”

Be sure to follow Borderlines on Apple Podcasts, Spotify, or wherever you get your podcasts to be notified about upcoming episodes. And please rate us on your favorite podcast app – it helps other people find our show and lets us know how we are doing. Thanks for listening!

For a full transcript and more show notes, please visit this episode page in the Berkeley Law podcast hub.

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Berkeley Law’s Borderlines podcast host, Professor Katerina Linos, and guest co-host, Professor Mark Pollack (Temple University), conduct a special interview series profiling Judges and Advocates General serving at the Court of Justice of the European Union (CJEU) in Luxembourg.

Episode #4 of the Borderlines CJEU Series features CJEU Vice President Lars Bay Larsen of Denmark. Vice President Bay Larsen served as a Judge at the Court of Justice since 2006 upon being nominated by his home country, Denmark. He was elected by his peers to two six-year terms as Chamber President before being elected Vice President of the Court of Justice, the position he held from October 2021 to October 2024.

Highlights of the interview include detailing the role of the Vice President at the Court and the use of interim and provisional measures; evolving Court decisions regarding privacy, security and technology; candid views on landmark cases such as Weiss and recent legislative policies like NextGenerationEU; and personal perspectives on taking time to find a career path and work-life balance.

Berkeley Law’s Borderlines features exclusive content with the world’s leading international law experts. Check out recent interviews with former ICJ President Donoghue and ICC President Hofmański – be sure to subscribe so you don’t miss an episode!

Please visit the episode page for a transcript and links to the cases and sources mentioned in the podcast.

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Episode #3 of the Borderlines CJEU Series features CJEU Vice President Thomas von Danwitz in conversation with Professor Katerina Linos (Berkeley) and Professor Mark Pollack (Temple University). Vice President von Danwitz has been a Judge at the Court of Justice since his nomination by Germany in 2006. Elected as President of Chamber by fellow Judges, he sat at the Court in that function between October 2012 and October 2018. In October 2024, Judge von Danwitz was elected by his peers to serve as Vice President of the Court of Justice.

As the first guest welcomed back to conduct a second Borderlines interview, Vice President von Danwitz further develops his incisive observations regarding the CJEU’s fundamental role in Europe’s integration project. His renowned expertise on cases involving surveillance and the regulation of technology, and the role of the German Constitutional Court in dialogue with CJEU decisions, gives listeners a unique look behind recent impactful rulings. Vice President von Danwitz also reviews key Court concepts and functions such as judicial independence, injunction procedures, and the ongoing evolution of competences undertaken by Europe’s highest court.

Berkeley Law’s Borderlines features exclusive content with the world’s leading international law experts. Check out recent interviews with former ICJ President Donoghue and ICC President Hofmański – be sure to subscribe so you don’t miss an episode! And please rate Borderlines on Apple Podcasts, Spotify, or your favorite app, which can help others find useful resources. Thanks for listening!

Please see the episode page for a transcript, links to some of the cases and sources mentioned in the podcast, and selected speeches by Vice President von Danwitz for further research.

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Episode #2 of the Borderlines CJEU Series features CJEU President Koen Lenaerts in conversation with Professor Katerina Linos (Berkeley) and Professor Mark Pollack (Temple University). President Lenaerts has been re-elected to the Court’s top office by his peers three times since 2015, having served tirelessly since his nomination to the CJEU in 2003 by home country of Belgium. His interview traces the historic path to today’s Court of Justice, and illuminates differences from other courts, including the U.S. federal judicial system.

Listeners will come away with an overview of the Court’s functions and structural methodology in interpreting the EU legal order, including the role of the President, the Judge rapporteur, and the Advocate General. Presidential responsibilities include assigning cases to Judges and presiding over the Grand Chamber to deal with the most important cases. New developments in case law, evolving technological access, and finding balance between unity and diversity, privacy and security, are addressed by the head of the EU’s judicial institution.

Berkeley Law’s Borderlines features exclusive content with the world’s leading international law experts. Check out recent interviews with former ICJ President Donoghue and ICC President Hofmański – be sure to subscribe so you don’t miss an episode! And please rate Borderlines on Apple Podcasts, Spotify, or your favorite app, which can help others find useful resources. Thanks for listening!

Please see the episode page for a transcript, links to some of the cases and sources mentioned, and selected speeches by President Lenaerts.

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Episode #1 of the Borderlines CJEU Series features UC Berkeley Law School’s Dean and Choper Distinguished Professor Erwin Chemerinsky in conversation with Tragen Professor Katerina Linos (Berkeley) and Freaney Professor Mark Pollack (Temple University), introducing a wider audience to the European Union Court of Justice. Dean Chemerinsky is one of the world’s top legal scholars, with decades of frontline expertise in constitutional law, from the classroom to presenting oral arguments before the U.S. Supreme Court. He is the author of twenty books, including leading casebooks and treatises about constitutional law, criminal procedure, and federal jurisdiction. His most recent major book, No Democracy Lasts Forever: How the Constitution Threatens the United States, was published in August 2024. Dean Chemerinsky also is the author of over 200 law review articles, as well as the host of More Just podcast.

Together, these three leading legal educators introduce listeners to the form and function of the European Union Court of Justice, and contrast its civil law history and consensus methodology with the U.S. common law heritage utilizing dissenting opinions. Learn about the European Court of Justice’s traditions, scope, and unique Advocate General role. Glimpse behind the scenes of the massive EU case load in the Information Age, and compare fundamentals like sovereignty over states, the role of voting in chambers, and balancing accessibility and privacy.

Berkeley Law’s Borderlines features exclusive content with the world’s leading international law experts. Check out recent interviews with former ICJ President Donoghue and ICC President Hofmański – be sure to subscribe so you don’t miss an episode! And please rate Borderlines on Apple Podcasts, Spotify, or your favorite app – it helps other people find our show and lets us know how we are doing. Thanks for listening!

For a transcript of this episode, please visit the episode page on Berkeley Law website.

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Episode 24 of Borderlines features a rare look behind the scenes at the International Court of Justice with The Honorable Joan Donoghue (’81), recently retired president of the ICJ, in candid conversation with host Professor Katerina Linos. They discuss ongoing disputes, including South Africa v. Israel and the Chagos Archipelago advisory proceeding; key Court functions, such as provisional measures, advisory proceedings, and contentious case resolution between nations; and what it’s like to serve in this preeminent global arena.

Established in 1946 to settle legal disputes between Member States and offer advisory opinions to UN organs and agencies, the ICJ is the United Nations’ top court, also known as the World Court. The International Court of Justice is made up of 15 judges, elected to nine-year terms without regard to nationality by the UN General Assembly and Security Council.

Judge Donoghue remains one of Berkeley Law’s most distinguished alumni in the field of international law. She was selected for her qualifications, including high moral character, impartiality, and integrity, to represent the U.S on the Court in 2010, re-elected in 2014, and chosen by fellow ICJ judges as president in 2021.

Before her judicial appointment in The Hague, Judge Donoghue had a long career at the U.S. State Department, cumulating in her role as Principal Deputy Legal Adviser advising Secretary of State Clinton and President Obama on all matters of international law. She also was Deputy General Counsel of the U.S. Treasury Department, overseeing every aspect including international financial institutions, and lead general counsel for Freddie Mac. She has taught international law courses at several law schools, including Berkeley. Judge Donoghue is the recipient of many awards, including Berkeley Law’s 2015 Riesenfeld Award, and is Honorary President of the American Society of International Law.

For a transcript of this episode, please visit the episode page on Berkeley Law website.

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Episode 23 of Borderlines features our guest host, Chancellor’s Clinical Professor of Law Laurel E. Fletcher (Berkeley), in conversation with Professor of Practice Gabor Rona (Cardozo) on the Israel/Hamas conflict from an international law perspective. Fresh off of speaking at Berkeley Law on 22 February 2024 as part of a Bay Area campus lecture series on the crisis, Professor Rona sat down with Professor Fletcher to discuss the relevant frameworks of international law and its institutions, including the UN Charter and the Geneva Convention on Genocide, as well as current cases before the International Court of Justice regarding Israel/Palestine. Listeners will learn how the laws of armed conflict and international humanitarian law are invoked, how historically pressure is brought to bear on governments from international organizations and actors, and why the Red Cross/Red Crescent has been prevented from aiding both Israeli hostages and Palestinian civilians in Gaza despite human suffering. Students in particular will take away powerful lessons about the need to combat misinformation and to seek “justice for an eye” in their pursuit of peaceful solutions to war and violence.

Professor Rona has worked in armed conflict settings for the International Committee of the Red Cross (ICRC), the UN Office for Coordination of Humanitarian Affairs (OCHA), and as International Legal Director at Human Rights First. He now teaches various international law subjects at both Cardozo and Columbia Law Schools. Professor Fletcher is the International Human Rights Law Clinic Co-Director and the Faculty Co-Director of the Miller Institute for Global Challenges and the Law at Berkeley Law.

For a transcript of this episode, please visit the episode page on Berkeley Law website.

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Host Professor Katerina Linos talks with three international law scholars on sanctions and their role in comparative perspective. Berkeley Law Professor Elena Chachko joins Professor Luis M. Hinojosa-Martínez and Professor Carmela Pérez-Bernárdez from the Department of Public International Law and International Relations at the University of Granada, Spain, for a frank look at international sanctions as a legal tool used by self-governing states via bodies like the UN Security Council, European Union, and the U.S. Treasury’s Office of Foreign Assets Control (OFAC).

Listeners will come away understanding sanctions, and their intended goal to pressure change from countries – as well as individuals, companies, or organizations – causing violent wars, implementing harmful policies, or disregarding international laws. In the 21st century, recommendations have shifted toward restrictive measures, or so-called “smart sanctions,” targeting regimes rather than people. Discussion covers current and historic implementations of sanctions with an incisive review of successes and critiques.

For further study, see, e.g., Enhancing the Rule of Law in the European Union’s External Action, Luis M. Hinojosa-Martínez and Carmela Pérez-Bernárdez (eds.), Edward Elgar, 2023 (Part III.A includes chapters dealing with “sanctions and the rule of law”); and “A Watershed Moment for Sanctions? Russia, Ukraine, and the Economic Battlefield,” Elena Chachko and J. Benton Heath, pp.135-139, and “Ukraine and the Emergency Powers of International Institutions,” Elena Chachko and Katerina Linos, pp. 775–87, in American Journal of International Law 116(4): Symposium on Ukraine and the International Order, AJIL Unbound, 2022; Elena Chachko and Katerina Linos (eds.), published as Open Access articles by Cambridge University Press on behalf of The American Society of International Law.

For a transcript of this episode, please visit the episode page on Berkeley Law website.

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Episode 21 of Borderlines features the president of the International Criminal Court, Judge Piotr Hofmański, sharing his unique perspective with host Katerina Linos, on the ICC’s role and mandate over twenty years since its historic founding in 2002. Elected an ICC judge in 2015 and voted president by his peers in 2021, President Hofmański guides listeners through the Court’s key responsibilities under the Rome Statute: prosecuting genocide, war crimes, crimes against humanity and the crime of aggression; giving victims a voice and just restitution; and preventing future atrocities.

The conversation elucidates the relationship of the ICC to the United Nations and to national jurisdictions as a court of last resort. Challenges, successes, and criticisms are addressed, from the Court’s indictment of more than 50 individuals including heads of state, to the changing signatory and ratification positions of the United States, to ways technological developments impact evidence gathering and witness participation. Addressing the vital importance of fighting impunity, President Hofmański’s confidence in the collective power of international criminal law provides a path of optimism during troubled times and ongoing lethal territorial conflicts.

Be sure to follow Borderlines on Apple Podcasts, Spotify, Google Podcasts, or wherever you get your podcasts to be notified about upcoming episodes. And please rate us on your favorite podcast app – it helps other people find our show and lets us know how we are doing. Thanks for listening!

For a transcript of this episode, please visit the episode page on Berkeley Law website.

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Fourth in a four-part series of special Borderlines episodes with UC Berkeley Law guest hosts Professor Roxanna Altholz and Professor Laurel E. Fletcher shining a spotlight on human rights champions—all guest speakers in their Human Rights Practice Workshop course, where leading practitioners working in a variety of institutional settings share their struggles against corruption and impunity, the relationship between legal and social justice, and the future of human rights movements.

Episode 20 of Borderlines showcases guest host Professor Laurel E. Fletcher, Co-Director of Berkeley Law’s International Human Rights Law Clinic and the Miller Institute for Global Challenges and the Law in conversation with Professor Justin Hansford (Howard) about his role as a member of the new UN Permanent Forum on People of African Descent.

In the aftermath of the murder of George Floyd, in 2021 the United Nations established the Permanent Forum on Peoples of African Descent (PFPAD). This new, consultative body has a mandate to undertake a range of activities with the goal of “improving the safety and quality of life and livelihoods of people of African descent.” Professor Hansford shares his views about this new consultative mechanism, which addresses anti-Black racism as a UN platform, including its development, opportunities and challenges, and what was at stake in getting it approved and realized. He also examines reparations from a global and a US perspective, and discusses ideas for putting human rights strategy and practice into action in local marginalized communities.

For a transcript of this episode, please visit the episode page on Berkeley Law website.

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