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Current Issue : Winter 2007-2008

Claire Kelly

Professor Claire Kelly's scholarship has deep roots in her experience confronting complex issues as a lawyer. Following her graduation from Brooklyn Law School, she went to work for Coudert Brothers, the first U.S. firm to open international offices. "I trace my interest in international law to my time at Coudert," she explains. There, she worked with the customs practice group in New York. Her first scholarly article grew from the need she saw for an academic analysis of the international trade issues she was researching and advising clients about.

Kelly's current scholarship focuses on international organizations and reform and harmonization of international legal rules. In 2006, she published an article on the World Trade Organization's influence as an international rule-making body. In "Power, Linkage and Accommodation," she addresses two different aspects of the WTO's interaction with other international organizations: pressure on the WTO to account for, or "link" the values of other organizations; and other organizations' accommodation of the WTO's continued primacy and power. "While initially such linkage and accommodation has some appeal, it may also mask important normative differences among regimes," she writes. "Modeling linkage and accommodation mechanisms can shed light on the structural and normative influences of powerful regimes."

Kelly has written an article more recently that explores the concept of "derivative legitimacy" of international law-making alliances (see abstract). The article addresses the process of how international norms are created: "First there is the issue of how international rules emerge," she says. "Then it's important to look at how those rules and laws are harmonized among nations. Equally important is to ask what can lead to more legitimate rules and, consequently, more compliance with them."

Grounded in the application of theory to life, her next project will look empirically at how general counsels conduct international transactions. "We need to know what the people on the ground are doing, what they think they're doing, and what they want out of commercial law," she says. Her research will specifically focus on the choices practitioners make with regard to governing law, which she hopes will lead to a better understanding of how harmonization should operate.

Kelly has also taught legal writing at the Law School and remains committed to helping her international law students publish their work. "Scholarly writing gives students an experience that will be valuable to them once they are practitioners," explains Kelly, who recently published an article about an innovative scholarly writing course she designed and taught at Brooklyn Law School.

Kelly is faculty advisor for the Brooklyn Journal of International Law, and she is an associate director of the Dennis J. Block Center for the Study of International Business Law. In November, she helped organize a symposium, "Corporate Liability for Grave Breaches of International Law," which was co-sponsored by the Journal and the Center. "I'm very fortunate that I like all the different parts of my job," she says. "I love being in the classroom and working with students and colleagues, but I also love spending the whole day writing."

Claire Kelly | Abstract

Legitimacy and Law-Making Alliances

Law-making institutions seek legitimacy to secure compliance with the norms that they generate. In the international setting this quest is made more difficult by the lack of both an identifiable public that international organizations represent and competing normative prescriptions for international law-making. In light of these obstacles, various legitimacy theories attempt to evaluate the law-generating efforts of international organizations. These theories consider whether the organizations are representative, inclusive, or effective. Law-making organizations that satisfy the legitimacy criteria articulated in these theories can claim legitimacy and expect greater compliance as a result.

Although these theories are helpful, a powerful new phenomenon forces us to reassess international law-making legitimacy and how we evaluate it. International organizations now form law-making alliances with each other in order to tackle complex problems. These alliances claim and sometimes are credited with legitimacy derived from the very relationship between the organizations. Any framework that assesses the legitimacy of these alliances needs to approach "derivative legitimacy" by examining that relationship. A framework must also address the particular concerns raised by these alliances, including marginalization, entrenchment, false legitimacy claims, and abuse.

This article suggests that derivative legitimacy should be evaluated by examining whether the international law-making alliances employ good procedures. Although process is not a perfect assessment tool, it is best suited to ensure that the relationship between law-making alliances fosters inclusion and effectiveness. Good procedures also ward against the negative consequences these alliances generate. Although the necessary procedures will depend upon the particular organizations involved and their goals, the available procedures include: participatory mechanisms (such as notice and comment procedures), transparency procedures, rules against corruption, and rules requiring explanation.


SCHOLARSHIP FOCUS International Business Law, International Organizations

COURSES International Business Transactions, International Trade Law, Administrative Law/Writing Practicum, New York Civil Practice

  • An Evolutionary Endeavor: Teaching Scholarly Writing to Law Students, 12 Legal Writing Institute — (forthcoming 2007)
  • The Dangers of Daubert Creep in the Regulatory Realm, 14 J.L. & Pol'y 165 (2006), reprinted in 26 J. Nat'l Ass'n Admin. L. Judges 469 (2007)
  • Power, Linkage and Accommodation: The WTO as an International Actor and Its Influence on Other Actors and Regimes, 24 Berkeley J. Int'l L. 79 (2006)