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Articles 91 - 114 of 114
Full-Text Articles in Entire DC Network
United States Opposition To The 1998 Rome Statute Establishing An International Criminal Court: Is The Court's Jurisdiction Truly Complementary To National Criminal Jurisdictions?, Jimmy Gurule
Journal Articles
Although the United States supports the creation of a permanent International Criminal Court (ICC), it opposes such a court as set forth in the 1998 Rome Statute because it leaves open the potential for United States military personnel and government officials to be prosecuted for unintended loss of civilian life. Can the United States formulate a legal argument to support its view that inadvertent civilian casualties should not be considered a war crime within the jurisdiction of the ICC? The article argues that it can because the ICC’s jurisdiction under the Rome Statute is not complementary to national prosecutions held …
Reason, Revelation, Universality And Particularity In Ethics, John M. Finnis
Reason, Revelation, Universality And Particularity In Ethics, John M. Finnis
Journal Articles
This address to a philosophical conference on truth and faith in ethics engages in an extended critique of the account of truth in Bernard Williams, Truth and Truthfulness: an essay in genealogy (Princeton University Press, 2002). For any jurisprudential, moral or political theory that affirms natural law needs to respond first to sceptical denials that reason can discover any truths about what ends all human individuals or groups ought to pursue. But any such theory also needs to make clear how it differs from, even when it coincides in moral judgment with, bodies of moral teaching self-identified as part of …
Children's Beliefs And Family Law, Margaret F. Brinig
Children's Beliefs And Family Law, Margaret F. Brinig
Journal Articles
In a recent series of opinions authored by Justice Stevens, the Court has recognized that children may have independent religious rights, and that these may be in conflict with their parents'. The questions for this piece are whether considering children's rights independently is a good thing whether it is warranted by children's actual religious preferences and whether children's religious activities actually do anything measurable for the children.
I do not advocate that the Supreme Court become more involved with family law than it has been since the substantive due process days of Meyer and Pierce. I am also not one …
Can There Really Be "Free Speech" In Public Schools?, Richard W. Garnett
Can There Really Be "Free Speech" In Public Schools?, Richard W. Garnett
Journal Articles
The Supreme Court's decision in Morse v. Frederick leaves unresolved many interesting and difficult problems about the authority of public-school officials to regulate public-school students' speech. Perhaps the most intriguing question posed by the litigation, decision, and opinions in More is one that the various Justices who wrote in the case never squarely addressed: What is the "basic education mission" of public schools, and what are the implications of this "mission" for officials' authority and students' free-speech rights. Given what we have come to think the Free Speech clause means, and considering the values it is thought to enshrine and …
Business Lawyers, Baseball Players, And The Hebrew Prophets, Thomas L. Shaffer
Business Lawyers, Baseball Players, And The Hebrew Prophets, Thomas L. Shaffer
Journal Articles
This article is a reflection on the ethics of practiving law for business, building on the career of Scott Boras, who acts as agent and lawyer for professional baseball players. The reflection wonders at the clout corporate lawyers have over their clients, mentioning, of course, some personal experiences (back before the invention of moveable type) from the author's two years in a large business-oriented law firm, as well as on Mr. Boras's significant influence in the baseball world. The object, finally, is ethical reflection on such things as the particular a lawyer has when she in in house rather than …
Procedural Common Law, Amy Coney Barrett
Procedural Common Law, Amy Coney Barrett
Journal Articles
Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called procedural common law - common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized …
Are All Contracts Alike?, Margaret F. Brinig
Are All Contracts Alike?, Margaret F. Brinig
Journal Articles
This Article compares two sets of contracts that are structurally and contextually similar. They originate in two quite different fields, however: the commercial arena and the family. The contracts come from two separate empirical investigations. The first investigation studied 131 telecommunication interconnection agreements made between SBC Communications, Inc. ("SBC") and various local phone companies in Michigan beginning in 1998. The second investigation involved 141 divorce cases granted in 1998 in Johnson County, Iowa, all of which involved children, and 130 of which involved contracts, or "stipulations" as they are called locally. Though each empirical project has been described separately elsewhere, …
Jail For Juvenile Child Pornographers?: A Reply To Professor Leary, Stephen F. Smith
Jail For Juvenile Child Pornographers?: A Reply To Professor Leary, Stephen F. Smith
Journal Articles
Even though Professor Leary and I are united in the goal of protecting children against sexual exploitation, we part company on the proper societal response to the problem of self-produced child pornography. In my view, children who produce and distribute pornographic images of themselves ordinarily should not be regarded as proper objects of punishment. In this context, child protective services, backed up if necessary by the threat of criminal prosecution, is a much more appropriate way of reforming minors and protecting them against the serious dangers to which they expose themselves by creating and distributing pornographic images of themselves. A …
The Nobel Effect: Nobel Peace Prize Laureates As International Norm Entrepreneurs, Roger P. Alford
The Nobel Effect: Nobel Peace Prize Laureates As International Norm Entrepreneurs, Roger P. Alford
Journal Articles
For the first time in scholarly literature, this article traces the history of modern international law from the perspective of the constructivist theory of international relations. Constructivism is one of the leadings schools of thought in international relations today. This theory posits that state preferences emerge from social construction and that state interests are evolving rather than fixed. Constructivism further argues that international norms have a life cycle composed of three stages: norm emergence, norm acceptance (or norm cascades), and norm internalization. As such, constructivism treats international law as a dynamic process in which norm entrepreneurs interact with state actors …
The Evangelical Debate Over Climate Change, John Copeland Nagle
The Evangelical Debate Over Climate Change, John Copeland Nagle
Journal Articles
In 2006, a group of prominent evangelicals issued a statement calling for a greater response to climate change. Soon thereafter, another group of prominent evangelicals responded with their own statement urging caution before taking any action against climate change. This division among evangelicals concerning climate change may be surprising for a community that is usually portrayed as homogenous and as indifferent or hostile toward environmental regulation. Yet there is an ongoing debate among evangelicals regarding the severity of climate change, its causes, and the appropriate response. Why? The answer to this question is important because of the increasing prominence of …
Legal Status And Effect On Children, Margaret F. Brinig, Steven L. Nock
Legal Status And Effect On Children, Margaret F. Brinig, Steven L. Nock
Journal Articles
One of the haunting claims of each poor, unmarried mother in Edin and Kefalas' Promises I Can Keep is that at least she can guarantee she will love her child, even though she cannot promise to make a lifelong commitment to a mate. That love, each young mother says, will be a sustaining gift both to her and the child. Similarly, in work done by sociologists McLanahan and Garfinkel to counteract the claim that it was not single parenting that made children's prospects dim, but poverty, sociologists have found that many of the bad effects of single parenting go away …
Fourth Amendment Protection For Stored E-Mail, Patricia L. Bellia, Susan Freiwald
Fourth Amendment Protection For Stored E-Mail, Patricia L. Bellia, Susan Freiwald
Journal Articles
The question of whether and how the Fourth Amendment regulates government access to stored e-mail remains open and pressing. A panel of the Sixth Circuit recently held in Warshak v. United States, 490 F.3d 455 (6th Cir. 2007), that users generally retain a reasonable expectation of privacy in the e-mails they store with their Internet Service Providers (ISPs), which implies that government agents must generally acquire a warrant before they may compel ISPs to disclose their users' stored e-mails. The Sixth Circuit, however, is reconsidering the case en banc. This Article examines the nature of stored e-mail surveillance and argues …
"No Taking Without A Touching?" Questions From An Armchair Originalist, Nicole Stelle Garnett
"No Taking Without A Touching?" Questions From An Armchair Originalist, Nicole Stelle Garnett
Journal Articles
This paper is an invited contribution to the Bernard Siegan Memorial Conference on Economic Liberties, Property Rights, and the Original Meaning of the Constitution at the University of San Diego School of Law. The paper poses three questions about the historical evidence used to support the dominant academic view that the Fifth Amendment's Takings Clause, as originally understood, extended only to physical appropriations or invasions of private property. First, the paper questions the relevance of state and local regulatory practices to the pre-incorporation understanding of the Takings Clause. Second, the paper expresses concern about the use of state-court cases decided …
Lower Courts And Constitutional Comparativism, Roger P. Alford
Lower Courts And Constitutional Comparativism, Roger P. Alford
Journal Articles
The issue of constitutional comparativism has been a topic of significant commentary in recent years. However, there is one aspect of this subject that has been almost completely ignored by scholars: the reception, or lack thereof, of constitutional comparativism by state and lower federal courts. While the Supreme Court's enthusiasm for constitutional comparativism has waxed and now waned, lower state and federal courts have remained resolutely agnostic about this new movement. This is of tremendous practical significance because over ninety-nine percent of all cases are resolved by lower state and federal courts. Accordingly, if the lower courts eschew constitutional comparativism, …
Sarbanes-Oxley, Kermit The Frog, And Competition Regarding Audit Quality, Matthew J. Barrett
Sarbanes-Oxley, Kermit The Frog, And Competition Regarding Audit Quality, Matthew J. Barrett
Journal Articles
The regulatory scheme after Sarbanes-Oxley has significantly improved public company audits in the United States, or at least has demonstrated the potential to do so, but the obligation to preserve client confidentially still prevents auditors from competing for new clients on the basis of audit quality. This paper suggests a simple way for the SEC to facilitate such competition within the existing regulatory framework. The SEC should require issuers and registrants to disclose whether their independent audits uncovered any financial fraud and, within specified ranges, the number and amount of all audit adjustments incorporated into the financial statements filed with …
Beyond Wealth: Stories Of Art, War, And Greed, Mary Ellen O'Connell
Beyond Wealth: Stories Of Art, War, And Greed, Mary Ellen O'Connell
Journal Articles
The article tells three stories of great art and priceless antiquities: one about early Christian mosaics from Cyprus, another about five paintings by the Viennese master, Gustav Klimt, and the third about an ancient statute of a Sumerian king from Iraq. All three stories discuss the international law protecting cultural heritage in time of war and occupation. They all tell of individuals pursuing extraordinary profits from the sale of the objects despite the international law that, properly applied, should have protected them from damage and kept them all in places of public display.
The article also tells how in each …
Corporate Aiding And Abetting Of Human Rights Violations: Confusion In The Courts, Douglass Cassel
Corporate Aiding And Abetting Of Human Rights Violations: Confusion In The Courts, Douglass Cassel
Journal Articles
This article explores whether transnational corporations or their executives can be held criminally or civilly liable for aiding and abetting human rights violations committed by governments, militaries or other actors in foreign countries where they do business. The article particularly examines the mens rea element under international law: whether the aider or abettor must knowingly—or instead purposefully—assist the principal to commit a crime. At present, the principal concern of major corporations about liability for aiding and abetting is the risk of being held liable in U.S. courts under the Alien Tort Statute. But whatever happens with ongoing ATS litigation, the …
No Bonds But Those Freely Chosen: An Obituary For The Principle Of Forced Heirship In American Law, Vincent D. Rougeau
No Bonds But Those Freely Chosen: An Obituary For The Principle Of Forced Heirship In American Law, Vincent D. Rougeau
Journal Articles
This article explains the history of forced heirship in Louisiana and describes the negative implications of its demise. Section IV outlines how the end of forced heirship reveals the changing values of Louisiana culture and views on the family.
Congress's Power To Block Enforcement Of Federal Court Orders, Jennifer Mason Mcaward
Congress's Power To Block Enforcement Of Federal Court Orders, Jennifer Mason Mcaward
Journal Articles
This Article considers the constitutionality and propriety of recent appropriations riders passed by the House of Representatives in response to controversial federal court rulings. The riders prohibit the use of any federal funds for the enforcement of court orders issued in specified cases. These enforcement-blocking provisions raise significant separation-of-powers concerns as between Congress and both coordinate branches of the federal government.
The Article begins by looking at the controversial First Amendment rulings that triggered the enforcement-blocking riders, and the Congressional debates over the proper way to respond to the rulings. The riders are not merely symbolic protests, but could have …
Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford
Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford
Journal Articles
Embodied in the Universal Declaration of Human Rights is the evocative proposition that [e]veryone has the right to freedom of opinion and expression. But beneath that level of abstraction there is anything but universal agreement. Modern democratic societies disagree on the text, content, theory, and practice of this liberty. They disagree on whether it is a privileged right or a subordinate value. They disagree on what constitutes speech and which speech is worthy of protection. They disagree on theoretical foundations, uncertain if the right is grounded in libertarian impulses, the promotion of a marketplace of ideas, or the advancement of …
Arbitrating Human Rights, Roger P. Alford
Arbitrating Human Rights, Roger P. Alford
Journal Articles
Corporate liability for human rights abuses is one of the most important developments in current international law and practice. With the advent of human rights litigation against corporations, there is now the prospect of a deep-pocket defendant that is complicit in grave human rights abuses, subject to personal jurisdiction, and not immune from suit. Indeed, if a corporation is accused of "aiding and abetting" human rights abuses, this is all but a concession that the corporate actor is not the principal wrong-doer. It is of course possible that this controversial trend toward corporate responsibility may reflect a genuine concern about …
The Interpretation Game, Robert E. Rodes
The Interpretation Game, Robert E. Rodes
Journal Articles
Sir James Fitzjames Stephen, embarking on a powerful critique of John Stuart Mill, says: "In stating the grounds of one's dissent from wide-spread and influential opinions it is absolutely necessary to take some definite statement of those opinions as a starting point, and it is natural to take the ablest, the most reasonable, and the clearest." This is my justification for reviewing the present work. My disagreement with it is broad and deep, but, unlike many proponents of similar views, Professor Benson writes clearly and without jargon, and he brings to his work the experience of a working lawyer and …
A Case Of Statutory Interpretation: Does 42 U.S.C. 1981 Prohibit Retaliation, Barbara J. Fick
A Case Of Statutory Interpretation: Does 42 U.S.C. 1981 Prohibit Retaliation, Barbara J. Fick
Journal Articles
This article discusses the case CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008). That case presented two questions: (1) Can an employee bring a claim under 42 U.8.C. § 1981 if he is terminated from employment because he has complained about racial discrimination at work?; and (2) Can the language of the statute be interpreted to include retaliation claims? Professor Fick argues that the this case is of great concern to employers whose liability for retaliation will be greatly expanded if the statute is interpreted to include retaliation claims and also that the case may be important from a …
The Memory Gap In Surveillance Law, Patricia L. Bellia
The Memory Gap In Surveillance Law, Patricia L. Bellia
Journal Articles
U.S. information privacy laws contain a memory gap: they regulate the collection and disclosure of certain kinds of information, but they say little about its retention. This memory gap has ever-increasing significance for the structure of government surveillance law. Under current doctrine, the Fourth Amendment generally requires government agents to meet high standards before directly and prospectively gathering a target's communications. The law takes a dramatically different approach to indirect, surveillance-like activities, such as the compelled production of communications from a third party, even when those activities yield the same information as, or more information than, direct surveillance activities. Because …