This essay presents an extended legal analogy. It proceeds by examining two broad areas of law; extracting some salient underlying principles that have been created in those disciplines over the years for important, context-specific reasons; and then considering whether those international and domestic law teachings can usefully be introduced, if not truly applied, in a very different sector—field in which there currently reposes very little law, but from which ongoing events urgently press us for some answers. This sort of logical reasoning exercise can be treacherous. I do not contend that borrowing law in this way can cede us any reliable, dispositive answers, or that it will tell us what we must do with the novel topic to be explored. Still, I am hopeful that presentation of the animating spirit of some second-hand jurisprudence, and exploration of its motivations and its rhetoric, may yet shed some light on what we should responsibly consider doing in the admittedly quite different milieu. . . .
For more information about Professor Koplow’s Donahue Lecture (which served as the basis for this article) please click here.