Law Commons^™

The Limits Of Advocacy, Amanda Frost

Articles in Law Reviews & Other Academic Journals

Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called “issue creation”—that is, raising legal claims and arguments that the parties have overlooked or ignored—on the ground that doing so is antithetical to an adversarial legal culture that values litigant autonomy and prohibits agenda setting by judges. And yet, despite the rhetoric, federal judges regularly inject new legal issues into ongoing cases. Landmark Supreme Court decisions such as Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), and Mapp v. Ohio, 367 U.S. …

History And Action: The Inter-American Human Rights System And The Role Of The Inter-American Commission On Human Rights, Robert K. Goldman

Articles in Law Reviews & Other Academic Journals

This article examines the historical origins of the Inter-American human rights system and key achievements of the Inter-American Commission on Human Rights over the past fifty years. The article also focuses on various notable activities and achievements of the Commission during three discreet periods between 1960 and 2004. It explores the Commission’s use of on-site visits and country reports to expose human rights violations of military governments during the 1970s and its increased use of the case system since the restoration of democratic rule in the 1990s. The article notes how key themes and shifts in US foreign policy, from …

Experiential Education And The Rule Of Law: Teaching Values Through Clinical Education In China, Elliott Milstein

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The author summarizes his discussions with Chinese law professors regarding the issues that separate American from Chinese attitudes in creating clinical legal education. The author observes that the baseline orientation of American lawyers to turn to the courts for redress is usually not the same for the Chinese, where bribery of judges is accepted. He also notes that in addition to teaching practical skills such as client interviewing and persuasive advocacy, American clinicians devote attention to value questions, such as client-centeredness, the demands and limits of zealous advocacy, and the commitment to bring about social justice. The inclusion of these …

Constitutional Borrowing, Robert L. Tsai

Articles in Law Reviews & Other Academic Journals

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. The authors' examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law …

Human Rights Implications Of Climate Change, David Hunter

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No abstract provided.

"Best Practices": What's The Point?, Ira P. Robbins

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No abstract provided.

United Nations Collective Security And The United States Security Guarantee In An Age Of Rising Multipolarity: The Security Council As The Talking Shop Of The Nations, Kenneth Anderson

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This essay considers the respective roles of the United Nations and the United States in a world of rising multipolarity and rising new (or old) Great Powers. It asks why UN collective security as a concept persists, despite the well-known failures, both practical and theoretical, and why it remains anchored to the UN Security Council. The persistence is owed, according to the essay, to the fact of a parallel US security guarantee that offers much of the world (in descending degrees starting with NATO and close US allies such as Japan, but even extending to non-allies and even enemies who …

Turkey: At The Crossroads Of Secular West And Traditional East, Padideh Ala'i

Articles in Law Reviews & Other Academic Journals

On January 9, 2008 Washington College of Law at American University sponsored a conference entitled: Turkey: At the Crossroads of Secular West and Traditional East. This conference was percipitated by the recent election of the AKP party in Turkey and my trip to Turkey in summer 2007. In this short introduction to the American University International law Review symposium issue, I summarize the major issues raised in that one day conference specifically by Dean Haluk Kabaalioglu of Yeditepe University Facutly of Law, expert on EU law and Turkish-EU relations,and Professor Feroz Ahmad, the learned historian of modern Turkey. The aim …

The Appropriations Power And Sovereign Immunity, Paul F. Figley

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Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence - or nonexistence - of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers’ Case (1690–1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the …

The Women's Protocol To The African Charter And Sexual Violence In The Context Of Armed Conflict Or Other Mass Atrocity, Susana Sacouto, Katherine A. Cleary

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No abstract provided.

Reforming The State Secrets Privilege, Amanda Frost

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No abstract provided.

Lessons Learned From The European Union’S Climate Policy, David Hunter

Articles in Law Reviews & Other Academic Journals

INTRODUCTION The United States, after ignoring climate policy for the last decade, now finds itself debating the merits of a national cap-and-trade policy. Currently, U.S. environmentalists are divided over whether to support the watered-down American Climate and Energy Security bill (ACES), also known as the Waxman-Markey bill. ACES passed the U.S. House of Representatives only after significant changes were made to address concerns from the coal industry and other powerful forces; and the bill likely faces even more compromises if it is to be passed in the U.S. Senate.' Supporters of the Waxman-Markey bill believe it is best to establish …

Substance Or Illusion - The Dangers Of Imposing A Standing Threshold, Amanda Leiter

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No abstract provided.

Inter-American System, Claudia Martin

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No abstract provided.

The 60th Anniversary Of The Udhr, Juan E. Mendez

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No abstract provided.

Human Rights Hero - President Barack Obama, Stephen Wermiel

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No abstract provided.

Rights, Remedies And Facial Challenges, Maya Manian

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In a few short years, the Roberts Court has managed to severely restrict the use of facial challenges across substantive areas of constitutional law. Caitlin Borgmann's article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, provides a compelling analysis of the vexing distinction between as applied and facial challenges in constitutional litigation and the impact that limiting facial challenges has on constitutional rights. Borgmann argues that facial challenges are necessary to keep legislatures in check, particularly when legislatures "deliberately or recklessly infringe individual rights" of those who lack political power. Facial challenges are needed in this context not only to protect …

A Fair Trial, Not A Perfect One: The Early Twentieth-Century Campaign For The Harmless Error Rule, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

From just after the turn of the twentieth century through World War II, there was a great deal of activity around criminal justice reform. Much like today, many commentators in the early twentieth century considered the American criminal justice system to be broken. With regard to all of its phases-substance, sentencing, and procedure-the criminal justice system was thought to be inefficient and ineffective, and it failed to inspire the confidence of the bench, bar, or public.

Against this backdrop, a group of reformers sought to address the shortcomings of early twentieth-century criminal justice-during what I consider the "Golden Age" of …

Is There Such A Thing As Postmodern Copyright?, Peter Jaszi

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Back in 1992, artist/entrepreneur Jeff Koons suffered a humiliating setback when the United States Court of Appeals for the Second Circuit repudiated the suggestion that his reuse of objects from public culture might constitute a "fair use" defense to a copyright infringement claim. Fourteen years later, in a case that again involved a photographer's claim of copyright infringement, Koons triumphed in the same judicial forum. What had changed? This Article explores, in particular, one among a variety of alternative explanations: Koons may have caught the very leading edge of a profound wave of change in the social and cultural conceptualization …

Whistle...And You've Got An Audience, Amanda Leiter

Articles in Law Reviews & Other Academic Journals

One of the questions for discussion today is whether public rights litigation is an effective means of social change. This Article does not attempt an answer but begins to explore a set of issues central to any answer: the extent, types, uses, and potential shortcomings of government whistleblowing. There is considerable sociological and legal literature on government whistleblowing, but little of it addresses the issue from the angle relevant to maximizing the efficacy of public rights litigation. This Article begins to fill that gap. Part I discusses the importance of whistleblowers in the vindication and enforcement of public rights. Part …

Sit Down And Count The Cost: A Framework For Constitutionally Enforcing The 501(C)(3) Campaign Intervention Ban, Benjamin Leff

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Section 501(c)(3) of the Internal Revenue Code prohibits charities from intervening in a political campaign for or against a candidate for public office. The IRS currently interprets the campaign-intervention ban to absolutely prevent charities from communicating their views on candidates, even if such communications are completely financed by non-501(c)(3) affiliates.

This article argues that the current IRS enforcement paradigm is unconstitutional because it exceeds the government interest in preventing tax-deductible donations to be used for campaign-intervention. A constitutional interpretation exists under the current statutory framework, but it would require the IRS to shift its focus exclusively to campaign-intervention-related expenditures. The …

Legal Responses To Sexual Violence In Custody: State Criminal Laws Prohibiting Staff Sexual Abuse Of Individuals Under Custodial Supervision, Brenda V. Smith, Jaime M. Yarussi

Articles in Law Reviews & Other Academic Journals

This publication is part of a larger scholarly project and one in a series that aims to create a “legal toolkit” for addressing sexual violence in custody. This publication begins with a brief discussion of staff sexual misconduct, and then examines a variety of definitions of staff sexual misconduct as defined by federal law. Next, the publication explores, in detail, sexual misconduct as defined by state criminal laws in the United States, provides examples of current state criminal laws on staff sexual misconduct and discusses the legal implications of these statutes. Finally, this publication concludes by reviewing the policy issues …

Convergence And Incongruence: Trademark Law And Icann's Introduction Of New Generic Top-Level Domains, Christine Haight Farley

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This paper demonstrates how problematic convergences between Internet technology, the demands of a burgeoning e-market and trademark laws have created myriad issues in international governance of domain names. The Internet Corporation for Assigned Names and Numbers (ICANN), the body that governs internet's infrastructure, recently approved a new policy that would allow it to accept applications for additional generic top-level domains (gTLDs). What ICANN contemplates is a uniform system to approve generic top level domains that is expected to have profound implications. Under this new plan anyone can apply for a new gTLD at any time and it could be literally …

Does Anyone Really Want A Parliament Of Man?, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

American University, WCL Research Paper No. 2010-05Abstract:This is a review-essay of historian Paul Kennedy's recent history of the UN and global governance, The Parliament of Man. It offers a critical look at Kennedy's account of the development of the UN as the gradual, if fitful, progress of the United Nations towards global governance under an order of liberal internationalism - the slow triumph of international institutions and law over the the anarchy of international power politics among sovereign states.The essay argues that what Kennedy views as the gradual movement toward global governance by the UN, or international institutions of any …