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Articles 1 - 22 of 22

Full-Text Articles in Law

Prologue To A Voluntarist War Convention, Robert D. Sloane Dec 2007

Prologue To A Voluntarist War Convention, Robert D. Sloane

Michigan Law Review

This Article attempts to identify and clarify what is genuinely new about the "new paradigm" of armed conflict after the attacks of September 11, 2001. Assuming that sound policy counsels treating certain aspects of the global struggle against modern transnational terrorist networks within the legal rubric of war, this Article stresses that the principal challenge such networks pose is that they require international humanitarian law, somewhat incongruously, to graft conventions-in both the formal and informal senses of that word-onto an unconventional form of organized violence. Furthermore, this process occurs in a context in which one diffuse "party" to the conflict ...


The Eighteenth Birthday Of The Convention Of Rights Of The Child: Achievements And Challenges, Jaap E. Doek Oct 2007

The Eighteenth Birthday Of The Convention Of Rights Of The Child: Achievements And Challenges, Jaap E. Doek

University of Michigan Journal of Law Reform

Although the U.N. Convention on the Rights of the Child has produced positive results in many countries, the United States remains one of the few nations that has not signed on to this treaty. This Essay will begin by describing the content of the treaty. This Essay will discuss the achievements, challenges, and solutions resulting from the treaty in the areas of child poverty, violence against children, and child labour. Given the positive results produced in other countries, this Essay will conclude with an invitation to the United States to join the Convention on the Rights of the Child.


International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Brunk Wuerth Oct 2007

International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Brunk Wuerth

Michigan Law Review

The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This Article analyzes why the Commander in Chief Clause is difficult and argues that international law helps resolve some of the problems that the Clause presents. Because of weaknesses in originalist analysis, changes over time, and lack of judicial competence in military matters, the Court and commentators have relied on second-order interpretive norms like congressional authorization and executive branch practice in interpreting the ...


Transboundary Pollution: Harmonizing International And Domestic Law, Noah D. Hall Jul 2007

Transboundary Pollution: Harmonizing International And Domestic Law, Noah D. Hall

University of Michigan Journal of Law Reform

Addressing transnational pollution requires both international and domestic law. Transnational pollution is an international problem that demands and deserves the attention of international legal mechanisms such as treaties, agreements, arbitration, and international management and governance. At the same time, transnational pollution problems can often be addressed more effectively and efficiently through the domestic legal system. An ideal approach is to harmonize transnational pollution management and dispute resolution under international and domestic law. This Article seeks to provide pragmatic, feasible, and politically realistic solutions to transnational pollution by harmonizing international and domestic law. However, given the diversity in geography, domestic legal ...


Diversifying Without Discriminating: Complying With The Mandates Of The Trips Agreement, Graeme B. Dinwoodie, Rochelle C. Dreyfuss Jan 2007

Diversifying Without Discriminating: Complying With The Mandates Of The Trips Agreement, Graeme B. Dinwoodie, Rochelle C. Dreyfuss

Michigan Telecommunications & Technology Law Review

Since the Patent Act was revised in 1952, patent law has expanded to cover an array of novel endeavors--new fields of technology (notably computer science and business methods) as well as the activities of researchers engaged in fundamental scientific discovery. These changes have been accompanied by shifts in the organizational structure of the technological community, with smaller firms and universities emerging as important players in the patent system, and by new marketplace expectations arising from consumer demand for interoperable technology and converging functionality. As a result of these developments, structural flaws in the legal order have become evident. Although the ...


Patents And Diversity In Innovation, Brian Kahin Jan 2007

Patents And Diversity In Innovation, Brian Kahin

Michigan Telecommunications & Technology Law Review

Over the past quarter-century, the patent system has expanded in scope and significance, claiming a central position in a U.S. economy increasingly based on knowledge and intangible assets. This historic expansion has come at the cost of controversy and, within the past five years, growing public scrutiny from outside the system--from the press, business, Congress, and finally the Supreme Court. However, proposed reforms are marked by deepening divisions between sectors of the economy. The information technology (IT) and services industries favor strong reforms while pharmaceutical and biotech industries, as well as the patent bar, favor modest, incremental reforms. This ...


Protection Elsewhere: The Legal Implications Of Requiring Refugees To Seek Protection In Another State, Michelle Foster Jan 2007

Protection Elsewhere: The Legal Implications Of Requiring Refugees To Seek Protection In Another State, Michelle Foster

Michigan Journal of International Law

This Article first questions the legitimacy of protection elsewhere practices. It then considers the circumstances in which the transfer of refugees might take place. It should be emphasized that the Michigan Guidelines set out the minimum requirements and constraints imposed by international law when a state wishes to implement a protection elsewhere policy. In addition, in some instances the Michigan Guidelines engage in "progressive development" of the law by suggesting safeguards that, while not strictly required by international law, should be respected in order to ensure the implementation of such policies in a way that protects and ensures the rights ...


Compensation For Porperty Under The European Convention On Human Rights, Tom Allen Jan 2007

Compensation For Porperty Under The European Convention On Human Rights, Tom Allen

Michigan Journal of International Law

This Article asks whether the right to property, as a human right, serves the same general purpose as other human rights. The Article does so by examining the standards relating to compensation for deprivations of property under the European human rights system. If the system protects property for similar reasons as other fundamental rights, the interpretation of the right to property should draw upon the principles developed in relation to the interpretation of other rights. However, if the right to property is distinct from other human rights, then perhaps guidance on its interpretation should come from comparative law, specifically in ...


Privatization And The Human Right To Water: Challenges For The New Century, Melina Williams Jan 2007

Privatization And The Human Right To Water: Challenges For The New Century, Melina Williams

Michigan Journal of International Law

This Note considers implications for the human fight to water in the context of the trend toward privatization of water supplies. Part II examines the legal bases of the right to water, and Part III discusses the potential obligations that arise from it. Part IV then looks at the interaction between the fight to water and arrangements to privatize water supplies. This Note posits that human rights law does not simply support or oppose privatization of water supplies and services. Rather, bringing a human rights perspective to the problem of providing water to the world's population both clarifies the ...


State Intelligence Gathering: Conflict Of Laws, Charles H.B. Garraway Jan 2007

State Intelligence Gathering: Conflict Of Laws, Charles H.B. Garraway

Michigan Journal of International Law

This Article begins with an examination of the development of the law of war (Part II) and human rights law (Part III) before looking at the differing legal categories of armed conflict (Part IV). It then examines the applicability of human rights law in situations of armed conflict (Part V) and the increasing complexity of defining violence, whether as armed conflict or otherwise (Part VI). The Article proceeds with an examination of the overlap between the law of war and human rights law (Part VII) and the risk of divergence that this overlap causes (Part VIII). Finally, it seeks to ...


The Unresolved Equation Of Espionage And International Law, A. John Radsan Jan 2007

The Unresolved Equation Of Espionage And International Law, A. John Radsan

Michigan Journal of International Law

This Essay, in order to offer up something to that appetite, is divided into five parts. After this introduction, the author, A. John Radsan, describes a Hegelian impulse, the perpetual drive to find unity in disorder. That impulse, for better or worse, creates the train and the track for many of the academy's journeys. Radsan then defines what is meant by "intelligence activities" for purposes of this Essay, after which Radsan surveys the scholarship that existed before this symposium on the relationship between espionage and international law. As the number of pages written on this topic suggests, scholarship on ...


Criminal Conspiracy Law In Japan, Chris Coulson Jan 2007

Criminal Conspiracy Law In Japan, Chris Coulson

Michigan Journal of International Law

Part II of this Note describes CATOC's group criminality requirement. Part III outlines the provisions of several versions of Japan's conspiracy bill and compares these provisions to common-law conspiracy. Part IV analyzes Japan's conspiracy law by examining both substantive and procedural laws in Japan related to criminal conspiracy, as well as criticism within Japan of the conspiracy bills.


Averting Catastrophe: Why The Nuclear Nonproliferation Treaty Is Losing Its Deterrence Capacity And How To Restore It, Orde F. Kittrie Jan 2007

Averting Catastrophe: Why The Nuclear Nonproliferation Treaty Is Losing Its Deterrence Capacity And How To Restore It, Orde F. Kittrie

Michigan Journal of International Law

This Article analyzes from a legal perspective the responses of the international community, and especially the Security Council, to the examples of nuclear proliferation outlined in this Article and the impact of those responses on the vitality of the nuclear nonproliferation regime. In doing so, the Article identifies and focuses on two key, interrelated themes. The first theme is the effect on these responses of the NPT's remarkably weak mechanisms for detecting violations of NPT obligations. The second theme is the frequent strong reluctance of the international community, including the Security Council, to impose serious sanctions for proliferation activity ...


Secrets And Lies: Intelligence Activities And The Rule Of Law In Times Of Crisis, Simon Chesterman Jan 2007

Secrets And Lies: Intelligence Activities And The Rule Of Law In Times Of Crisis, Simon Chesterman

Michigan Journal of International Law

This Article will consider generally the prospects for an approach to intelligence activities based on the rule of law, focusing on the problem of covertness. In particular, it will examine the debate over how law should deal with crises, epitomized by the "ticking time-bomb" hypothetical. On the one hand, some call for a pragmatic recognition that, in extremis, public officials may be required to act outside the law and should seek after-the-fact ratification of their "extra-legal measures." On the other hand, others argue that the embrace of "extra-legal measures" misconceives the rule of law, underestimates the capacity of a constitutional ...


Counterintuitive: Intelligence Operations And International Law, Glenn Sulmasy, John Yoo Jan 2007

Counterintuitive: Intelligence Operations And International Law, Glenn Sulmasy, John Yoo

Michigan Journal of International Law

The question before us is whether international law is useful or required to govern the covert intelligence-gathering activities of nation-states during peacetime. The very notion that international law is currently capable of regulating intelligence gathering is dubious. In fact, we suggest that international regulation of intelligence operations could have the perverse effect of making international conflict more, rather than less, likely. Certainly, there is legitimate space for coordination and cooperation between states in sharing intelligence, but such "sharing" does not involve significant needs for universal regulation by international law. Simply stated, it is not in the interests of nation-states or ...


Towards A Right To Privacy In Transnational Intelligence Networks, Francesca Bignami Jan 2007

Towards A Right To Privacy In Transnational Intelligence Networks, Francesca Bignami

Michigan Journal of International Law

Privacy is one of the most critical liberal rights to come under pressure from transnational intelligence gathering. This Article explores the many ways in which transnational intelligence networks intrude upon privacy and considers some of the possible forms of legal redress. Part II lays bare the different types of transnational intelligence networks that exist today. Part III begins the analysis of the privacy problem by examining the national level, where, over the past forty years, a legal framework has been developed to promote the right to privacy in domestic intelligence gathering. Part IV turns to the privacy problem transnationally, when ...


Individual And State Responsibility For Intelligence Gathering, Dieter Fleck Jan 2007

Individual And State Responsibility For Intelligence Gathering, Dieter Fleck

Michigan Journal of International Law

It is the purpose of this contribution to examine relevant norms and principles for assessing acts of intelligence gathering under international law (Part I), evaluate legal problems of attribution of such acts (Part II), and, where governments commit wrongful acts, look into circumstances precluding their wrongfulness (Part III). Based on these considerations, legal consequences for criminal accountability (Part IV) and reparation (Part V) will be discussed. Finally, some conclusions may be drawn (Part VI).


Tax Competition, Tax Arbitrage And The International Tax Regime, Reuven S. Avi-Yonah Jan 2007

Tax Competition, Tax Arbitrage And The International Tax Regime, Reuven S. Avi-Yonah

Articles

In the past ten years, I have argued repeatedly that a coherent international tax regime exists, embodied both in the tax treaty network and in domestic laws, and that it forms a significant part of international law (both treaty-based and customary). The practical implication is that countries are not free to adopt any international tax rules they please, but rather operate in the context of the regime, which changes in the same ways international law changes over time. Thus, unilateral action is possible, but is also restricted, and countries are generally reluctant to take unilateral actions that violate the basic ...


The New United States Model Income Tax Convention, Reuven S. Avi-Yonah, Martin B. Tittle Jan 2007

The New United States Model Income Tax Convention, Reuven S. Avi-Yonah, Martin B. Tittle

Articles

On 15 November 2006, the United States Treasury released its long-awaited new Model Income Tax Convention (“New Model”), which replaced the 1996 US Model (“Old Model”). This article reviews some of the major differences between the New and Old Models, as well as some of the major differences between the New Model and the current (2005) OECD Model Tax Convention. The article also discusses some new trends in US treaty policy which are not reflected in the New Model. The article concludes by evaluating the New Model in light of the emerging trend to use tax treaties not just to ...


The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan Jan 2007

The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan

Articles

Conventional wisdom tells us that in Korea–Beef, the Appellate Body interpreted the word ‘necessary’ in GATT Article XX to require a cost–benefit balancing test. The Appellate Body is supposed to have applied this test also in EC–Asbestos, US–Gambling (involving GATS Article XIV), and Dominican Republic–Cigarettes. In this article I demonstrate, by detailed analysis of the opinions, that the Appellate Body has never engaged in such balancing. They have stated the balancing test, but in every case they have also stated the principle that Members get to choose their own level of protection, which is logically ...


A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan Jan 2007

A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan

Articles

In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was "in effect" a "zero-quota", and that such a "zero-quota" violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body's "effects test". This article argues that the Appellate Body's "in effect" analysis is not an "effects test" and is not the real problem. The real mistake is regarding a so-called "zero-quota" as a quota under Article XVI. That is inconsistent with the ordinary meaning ...


Why Refugee Law Still Matters, James C. Hathaway Jan 2007

Why Refugee Law Still Matters, James C. Hathaway

Articles

I am concerned that the singular importance of international refugee law is profoundly misunderstood. My more specific worry is that erroneous and competing claims by governments and the refugee advocacy community about the structure and purpose of refugee law threaten its continuing ability to play a truly unique human rights role at a time when no meaningful alternative is in sight.