Law Commons^™

Portland's Exiles: Pricing Out African Americans, Henry Mcgee

Henry W McGee Jr.

Abstract Displacement of Blacks by unprejudiced whites who are willing to live next door to people of color continues to plague African Americans who suffer disrupted neighborhoods. African Americans in Portland, Oregon in the period between 1990 and 2000, were displaced by whites who moved to Northeast Portland because of significantly lower house prices, a consistent characteristic of Black neighborhoods. Hitherto insulated from inflated house prices because of racial prejudice, African Americans developed businesses and social institutions over the decades in which they were able only to purchase homes in Portland’s Black “ghetto.” A sea change in racial attitudes has …

Executing Foster V. Neilson: Enforcing Treaties Against The States, David Sloss

David Sloss

In Medellin v. Texas, the Supreme Court held that Article 94 of the United Nations Charter is non-self-executing. In so holding, the Court applied the “intent-based” doctrine of self-execution. Conventional wisdom traces that doctrine to an 1829 opinion by Chief Justice Marshall in Foster v. Neilson. The conventional wisdom is wrong. Marshall applied the “two-step” approach to self-execution, not the modern intent-based doctrine. The two-step approach distinguishes clearly between questions of international and domestic law. International law governs the content and scope of the United States’ treaty obligations. Domestic law determines which government officers are responsible for domestic treaty implementation. …

Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin

Peter G. Danchin

Since 2001 the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political orders. These controversies raise anew two critical questions for ECHR jurisprudence: first, regarding the proper scope of the right to religious freedom; and second, regarding the …

Undue Equation Of 'Savings' With 'Compensation For Services': Case Comment, Belachew M. Fikre

Belachew M Fikre

Individual employer-employee relations are regulated by a regime called 'employment law'. Despite the inadequate semantic clarity in our legal system regarding the usage of the words 'employment law' and 'labour law', the latter is 'understood as the regime that governs workers' efforts to advance their own shared interests through self-organisation and collective protest, pressure, negotiation and agreement with employers. Among the numerous benefits accorded to an outgoing employee is severance payment that somehow provides an interim income during transition from one engagement to another. And this form of benefit represents one variety of the 'third wing' within the regime of …

Disintermediating Avarice: A Legal Framework For Commercially Sustainable Microfinance, Steven L. Schwarcz

Steven L Schwarcz

Although microfinance has emerged as a key tool to alleviate poverty, the need for microfinance lending vastly exceeds the amount of funds that can be raised from charitable donors. Commercial bank lending is supplementing donor money, but microfinance loans made by banks are expensive and sometimes even exploitive. This article examines how innovative legal structures can enable microfinance loans to be funded directly from lower-cost, and virtually limitless, capital market sources by removing, or “disintermediating,” the need for a bank intermediary. In that context, the article identifies and attempts to resolve the resulting law-and-business issues of first impression and also …

A Protocol Against Trafficking In Persons: Is It Enough?, Michelle K. Forrest

Michelle K Forrest

Human Trafficking is a flourishing, criminal business that brings in more than thirty-two billion dollars yearly. This paper will discuss how the trafficking enterprise is difficult to eliminate because of its growing sophistication; unique flexibility and mobility; infiltration of lawful business; lucrative profit; and transnational operation. Potential infringement upon fundamental ideals of American society, such as privacy and liberty, weakens the fight against trafficking. As a result, trafficking has become a grave threat to human rights, the rule of law, and world peace.

This paper examines the current operation of trafficking in Cambodia, a country that supplies individuals for trafficking; …

Fueling The Coal War--The Courts, The Feds, And The Epa: Who Is In A Better Position To Curb Coal-Related Pollution?, Corwyn Davis

Corwyn M Davis

ABSTRACT: With the United States’ continued and growing dependence on the use of coal for energy production, it is vital that the country examines ways to eliminate coal wastes more efficiently. The courts have varying opinions on who should ultimately bear responsibility for environmental torts connected with carbon pollution. With greenhouse gases and global warming stealing the environmental spotlight, the equally hazardous nature of coal combustion waste disposal has taken a back door to national policy reform. This paper introduces the problems associated with the disposal of this hazardous by-product. By analyzing the status quo of environmental regulation, it becomes …

Fighting Terrorism With One Hand Tied Behind The Back: Delineating The Normative Framework For Conducting The Struggle Against Terrorism Within A Democratic Paradigm, Emanuel Gross

Emanuel Gross

Israel, Aug 2010.

Dear Editor.

I would like to submit my note entitled: Fighting Terrorism with One Hand Tied Behind the Back: Delineating the Normative Framework for Conducting the Struggle against Terrorism within a Democratic Paradigm.

The new age and the globalization process exposed us to many new phenomenons; some are totally unfamiliar, and some are deviate variation of their old version. Terrorism, one of the most despised and rejected phenomenon, can meet both these descriptions. The purpose of this article is to suggest a preference for a democratic state to conduct itself in her struggle against terrorism. The article …

A High Devolution Region (Hdr): A Community Based Political Solution For Darfur, Ibrahim A. Ibrahim Mr

Ibrahim A Ibrahim Mr

A High Devolution Region (HDR): A Community Based Political Solution for Darfur By/ Ibrahim Ali Ibrahim LLM Sudanese Lawyer & Congressional Researcher Abstract: The main causes of the war in Darfur as the paper highlights lie in both communal conflicts and the imbalance of power between the centre and marginalized regions. Therefore, the power sharing is a valid mechanism for redressing communal conflicts and the years of political marginalization of Darfur. The Darfur Peace Agreement (DPA) demonstrated that there were no powers to share in Darfur and that why it failed. The parties have not been able to achieve peace …

Exploring A New Paradigm For Women's Rights, Rebecca Zietlow

Rebecca E Zietlow

Nearly forty years after the Supreme Court recognized gender as a suspect class under the Equal Protection Clause of the Fourteenth Amendment, and almost half a century after the 1964 Civil Rights Act guaranteed women the right to work free of sex discrimination, women still find found gender equality to be an elusive goal. The persistent gender gap in wages and the continued prevalence of domestic violence are two indications that the predominant model of equality law, based in the Equal Protection Clause, is simply not adequate to address women’s inequality in our society.

The book GENDER EQUALITY: DIMENSIONS OF …

Colonial Cartographies And Postcolonial Borders: The Unending War In And Around Afghanistan, Tayyab Mahmud

Tayyab Mahmud

Many of today’s pervasive and intractable security and nation-building dilemmas issue from the dissonance between the prescribed model of territorially bounded nation-states and the imprisonment of postcolonial polities in territorial straitjackets bequeathed by colonial cartographies. With a focus on the Durand Line, the border between Afghanistan and Pakistan and the epicenter of the prolonged war in the region, this article explores the enduring ramifications of the mutually constitutive role of colonialism and modern law. The global reach of colonial rule reordered subjects and reconfigured space. Fixed territorial demarcations of colonial possessions played a pivotal role in this process. Nineteenth century …

Crumbs From The Table: The Syrophoenician Woman And International Law, Mark Chinen

Mark A. Chinen

In this Article I consider a story from the New Testament for what it might say to international law. A woman of Syrophoenician origin, whose daughter is possessed by an evil spirit, asks Jesus for help. Jesus protests, “First let the children eat all they want, for it is not right to take the children’s bread and toss it to their dogs.” The woman replies, “Yes, Lord, but even the dogs under the table eat the children’s crumbs.” Jesus is impressed by this reply and tells the woman her daughter is well. The way in which the story unfolds is …

Currency Of Love: Customary International Law And The Battle For Same –Sex Marriage In The United States, Sonia B. Green

Sonia Bychkov Green

The battle for same-sex marriage is likely to be the civil rights issue of this decade. Developments all over the world over the last several years have caused celebration, public outcry and passionate debate. In the last year alone, the first Latin American same-sex wedding was performed, Sweden joined the nations who allow same-sex marriage, and the United States saw the “Proposition 8” debacle in California, and the new federal lawsuits that will inevitably propel the issues toward the Supreme Court. The legal debate in the United States has asked the crucial question: is there a legal right to marriage …

Constitutional Faith And Dynamic Stability: Thoughts On Religion, Constitutions, And Transitions To Democracy, David C. Gray

David C. Gray

This essay, written for the 2009 Constitutional Schmooze, explores the complex role of religion as a source of both stability and instability. Drawing on a broader body of work in transitional justice, this essay argues that religion has an important role to play in the complex web of overlapping associations and oppositions constitutive of a dynamically stable society and further contends that constitutional protections which encourage a diversity of religions provide the best hope of harnessing that potential while limiting the dangers of religion evidenced in numerous cases of mass atrocity.

Extraordinary Justice, David Gray

David C. Gray

This article is squarely opposed to views advanced by Eric Posner, Adrian Vermeule, and others that transitional justice is just a special case of “Ordinary Justice.” Paying special attention to debates about reparations, this article argues that transitional justice is extraordinary, reflecting the source and nature of atrocities perpetrated under an abusive regime, and focused on the challenges and goals that define transitions to democracy. In particular, this Article argues that transitional justice is not profane, preservative, and retrospective, but, rather, Janus-faced, liminal, and transformative. The literature on reparations in transitions is divided between critics who regard reparations as quasi-tort …

A Dark Descent Into Reality: Making The Case For An Objective Definition Of Torture, Michael W. Lewis

Michael W. Lewis

The definition of torture is broken. The malleability of the term “severe pain or suffering” at the heart of the definition has created a situation in which the world agrees on the words but cannot agree on their meaning. The “I know it when I see it” nature of the discussion of torture makes it clear that the definition is largely left to the eye of the beholder. This is particularly problematic when international law’s reliance on self-enforcement is considered. After discussing current common misconceptions about intelligence gathering and coercion that are common to all sides of the torture debate, …

The Development Of Gender Within The Particular Social Group Definition Under The United Nations Refugee Convention And United States Immigration Law: Case Studies Of Female Asylum Seekers From Cameroon, Eritrea, Iraq And Somalia, T S. Twibell

Ty Twibell

The Relevance Of International Law To The Domestic Decision On Prosecutions For Past Torture, Bartram Brown

Bartram Brown

From Proclaiming To Realizing Human Rights -- An Indian Perspective, Rishabh Jogani

Rishabh Jogani

This article deals with human rights organisations and their organisational set up along with the indian perspective of the same.

Taking Prevention Seriously: Developing A Comprehensive Response To Child Trafficking And Sexual Exploitation, Jonathan Todres

Jonathan Todres

Millions of children are victims of trafficking and commercial sexual exploitation each year. Governments have responded with a range of measures, focusing primarily on seeking to prosecute perpetrators of these abuses and offering assistance to select victims. These efforts, while important, have done little to reduce the incidence of these forms of child exploitation. This Article asserts that a central reason why efforts to date may not be as effective as hoped is that governments have not oriented their approaches properly toward prioritizing prevention - the ultimate goal - and addressing these problems in a comprehensive and systematic manner. Instead, …

Imbalanced Sex Ratio At Birth And Women’S Human Rights In China: A Rights Analysis And Comparative Implications, Jiayu Zhang

Dr. Jiayu Zhang

Sex Ratio at Birth (SRB) is the ratio of the number of girls born to the number of boys. From the 1980s, the SRB in China has been below the normal level and has kept an overall decreasing trend till today. SRB and women’s status are closely related, it is evident that a declining SRB indicates worsening female advantages. However, most relevant studies have been male-centered and inadequate in analyzing the consequences of the abnormal SRB in China. Instead, this paper will focus on the causal relation between the skewed SRB and women’s human rights, so the existing and potential …

The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, Or Judicially-Constructed “Victor’S Impunity”?, C. Peter Erlinder

C. Peter Erlinder

ABSTRACT The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, or Juridically-Constructed “Victor’s Impunity”? Prof. Peter Erlinder [1] ________________________ “…if the Japanese had won the war, those of us who planned the fire-bombing of Tokyo would have been the war criminals….” [2] Robert S. McNamara, U.S. Secretary of State “…and so it goes…” [3] Billy Pilgrim (alter ego of an American prisoner of war, held in the cellar of a Dresden abattoir, who survived firebombing by his own troops, author Kurt Vonnegut Jr.) Introduction Unlike the postWW- II Tribunals, the U.N. Security Council tribunals for the former Yugoslavia [10] …

Who Watches The Watchmen? 'Vigilant Doorkeeping,' The Alien Tort Statute, & Possible Reform, Keith A. Petty

Keith A. Petty

The Alien Tort Statute (ATS) allows alien plaintiffs to file civil actions in U.S. district courts for torts violating the law of nations or U.S. treaties. After the 2nd Circuit’s Filartiga decision in 1980, the debate began as to whether the ATS was a useful tool against human rights violators or an intrusion into U.S. foreign relations. In 2004, the Supreme Court in Sosa v. Alvarez-Machain resolved some of the questions left open by Filartiga.

Sosa concluded that ATS claims must be limited to law of nations violations as well defined as those recognized in 1789. The Court tasked the …