Law Commons^™

Troubled Indictments At The Special Court For Sierra Leone: The Pleading Of Joint Criminal Enterprise And Sex-Based Crimes, Cecily E. Rose

Cecily E. Rose

This article argues that the indictments at the Special Court for Sierra Leone have pleaded joint criminal enterprise and sex-based crimes in ways that threaten the rights of the accused to notice of the charges against them. While the Taylor Indictment neglects to outline the purpose of the joint criminal enterprise in which the accused allegedly took part, the Prosecution’s recent arguments in this respect have further confused the matter. In addition, the RUF and AFRC Indictments alleged forced marriage without clearly indicating what crime such conduct would violate. Although the Appeals Chamber provided guidance on the issues of joint …

An African Marshall Plan: Changing U.S. Policy To Promote The Rule Of Law And Prevent Mass Atrocity In The Democratic Republic Of Congo, Gregory S. Gordon

Gregory S. Gordon

Since 1998, 5.4 million citizens of the Democratic Republic of Congo (DRC) have been killed in what many refer to as "Africa's First World War" -- the deadliest armed conflict since World War II. Despite a 2003 peace deal and the country's first elections in 2006, a staggering 45,000 people continue to die each month and as many as 4,000 women per year are being raped. As Western Europe needed a massive infusion of American assistance to lift itself from misery after World War II, this article contends that the DRC needs such an infusion now. It posits that ending …

State Actors Beating Children: A Call For Judicial Relief, Deana Ann Pollard Sacks

Deana A Pollard

Controversy over public school corporal punishment is at an all-time high. On August 20, 2008, the Human Rights Watch/ACLU brought public attention to the issue by releasing its report on corporal punishment of children in American public schools. Lawsuits challenging this state action on constitutional grounds continue to be filed, as advocates seeking to ban school paddling refuse to accept that beating students is constitutionally permissible, despite their repeated losses in the federal courts, and the Supreme Court’s refusal to consider the issue again on June 23, 2008. Ignoring the uproar, nearly half of the United States continue to employ …

The Right To Privacy And America's Aging Population, Kristine Knaplund

Kristine Knaplund

As the number of elderly grows significantly, especially those with cognitive impairments, how do we as a society deal with their need for privacy and intimate association? Two critical issues have so far gone unaddressed in the legal literature: the lack of personal freedom suffered by those who move into large assisted living facilities and nursing homes, versus the lack of social support for those who remain in their own homes. While seniors in nursing homes are lectured and ridiculed, even transferred involuntarily, for having a sexual relationship, elderly living alone are being preyed upon by unscrupulous caregivers who know …

Gendercide And The Cultural Context Of Sex Trafficking In China, Susan W. Tiefenbrun, Susan W. Tiefenbrun

Susan W Tiefenbrun

Abstract:Gendercide and the Cultural Context of Sex Trafficking in China

By Susan Tiefenbrun and Christie Edwards

Women in China are bought and sold, murdered and made to disappear in order to comply with a strict government One Child Policy that coincides with the cultural tradition of male-child preference and discrimination against women. Everyday “500 female suicides” occur in China because of “violence against women and girls, discrimination [against women] in education and employment, the traditional preference for male children, the country’s birth limitation policies, and other societal factors…” As a result of a widespread and arguably systematic disappearance and death …

"Smile, You're On Cellphone Camera!": Regulating Online Video Privacy In The Myspace Generation, Jacqueline D. Lipton

Jacqueline D Lipton

In the latest Batman movie, Bruce Wayne’s corporate right hand man, Lucius Fox, copes stoically with the death and destruction dogging his boss. Interestingly, the last straw for him is Bruce’s request that he use digital video surveillance created through the city’s cellphone network to spy on the people of Gotham City in order to locate the Joker. Does this tell us something about the increasing social importance of privacy, particularly in an age where digital video technology is ubiquitous and largely unregulated? While much digital privacy law and commentary has focused on text files containing personal data, little attention …

Some Penetrating Observations On The Fifth Anniversary Of Lawrence V. Texas: Privacy, Dominance, And Substantive Equality Theory, Shannon Gilreath

Shannon Gilreath

This article, “Some Penetrating Observations on the Fifth Anniversary of Lawrence v. Texas: Privacy, Dominance, and Substantive Equality Theory,” asks the reader to look at the equality claims of minority groups at a new conceptual level. With the Lawrence decision as its critical paradigm, the essay proceeds through several observations on the failure of privacy/substantive due process grounded opinions to deliver rights to minorities. This discussion feeds an ultimate criticism of the equality analysis (or lack thereof) of many of the Court’s principal minority rights opinions. Particularly, I am critical of the longstanding notion that equal protection of the laws …

Bloodstains On A "Code Of Honor", Kenneth Lasson

Kenneth Lasson

Abstract In the real world of the Twenty-first Century, deep biases against women are prevalent in much of Muslim society. Although there is no explicit approval of honor killing in Islamic law (Sharia), its culture remains fundamentally patriarchal. As unfathomable as it is to Western minds, “honor killing” is a facet of traditional patriarchy, and its condonation can be traced largely to ancient tribal practices. Justifications for it can be found in the codes of Hammurabi and in the family law of the Roman Empire. Unfortunately, honor killings in the Twenty-first Century are not isolated incidents, nor can they be …

Creating A Torture Culture, Alan Clarke

Alan Clarke

Creating a Torture Culture explores how a culture of torture came about and how the Administration seeks to justify its actions in creating "alternative interrogation techniques."

Voices On The Run: What The Slave Narratives Can Tell Us About The Immigration Debate, Hadley Ajana

Hadley Ajana

This paper compares three accounts of runaway slaves from the eighteenth and nineteenth centuries with three twentieth and twenty-first century accounts of Spanish speaking immigrants to the United States. The works examined are Interesting Narrative of the Life of Olaudah Equiano, or Gustavus Vassa, the African, Written by Himself; Narrative of the Life of Frederick Douglass; Harriet Jacob's Incidents in the Life of a Slave Girl; Barbara Kingsolver's Bean Trees; Victor Villasenor's Rain of Gold; and Sonia Nozaria's Enrique's Journey. Examining the rhetorical strategies used in the earlier works by the abolitions and the devices used in the modern writing, …

Indigenous Recognition In International Law: Theoretical Observations, Patrick Macklem

Patrick Macklem

Drawing on a classic essay by Hans Kelsen, this Article addresses the status of indigenous peoples in international law. It argues that the criteria for determining the legal existence of indigenous peoples in international law are a function of the nature and purpose of international indigenous rights. The twentieth century legal history of international indigenous rights, from their origins in international protection of indigenous workers in colonies to their contemporary expression in the United Nations Declaration on the Rights of Indigenous Peoples, demonstrates that their purpose is to mitigate injustices produced by how the international legal order treats sovereignty as …

Soldiers Of Fortune - Holding Private Security Contractors Accountable: The Alien Tort Claims Act And Its Potential Application To Abtan V. Blackwater Usa, Matthew C. Dahl

Matthew C. Dahl

This article examines the Alien Tort Claims Act and how it can be applied to private security contractors in Iraq, specifically to the case of Abtan v. Blackwater USA.

The Medium Of Exchange Paradigm: A Fresh Look At Compensated Live-Organ Donation, Dean Lhospital

Dean Lhospital

For over twenty years, human live-organ sales have been banned in the United States and most of the rest of the world. Observations and data arising from black market transactions and the few legal markets for organs suggest that permitting and regulating organ sales leads to more humane conditions than outlawing sales. Despite the data, opponents of organ sales still argue that selling human organs devalues human life. This article examines the panoply of organ markets – white, grey, and black – and identifies the source of this cognitive dissonance. Recognizing that there is a fundamental paradox in ethical objections, …

Police Processes And Human Rights:An Indian Criminal Procedure Analysis, Abhishek Bharti

Abhishek Bharti

Across the world there is a revamping of institutions of Government in the light of the well–recognized human rights standards. Human Rights are inherent in a person by virtue of his/her being a human. They comprise both civil and political rights as well as economic, social and cultural rights. Criminal justice as a vital institution is also reoriented in the same spirit. However, there are problems of human rights violations by criminal justice agencies. Thus, the operational styles of the public institutions should be geared to respond to the needs of the good governance and that is assured by the …

Human Rights, Humanitarian Law And The "War On Terrorism" In Afghanistan, Peter G. Danchin

Peter G. Danchin

No abstract provided.

Of Prophets And Proselytes: Freedom Of Religion And The Conflict Of Rights In International Law, Peter G. Danchin

Peter G. Danchin

The case of proselytism presents a tangle of competing claims: on the one hand, the rights of proselytizers to free exercise of religion and freedom of speech; on the other hand, the rights of targets of proselytism to change their religion, peacefully to have or maintain a particular religious tradition, and to be free from injury to religious feelings. Clashes between these claims of right are today generating acute tensions in relations between States and peoples, a state of affairs starkly illustrated by the recent Danish cartoons controversy. Irrespective of their resolution in any particular domestic legal system, how should …

Beyond Rationalism And Instrumentalism: The Case For Rethinking U.S. Engagement With International Law And Organization, Peter G. Danchin

Peter G. Danchin

This Essay advances an argument for rethinking the current terms of engagement of U.S. foreign policy with international law and institutions so as to avoid the current two extremes of power politics and imperial moralizing. First, it is necessary to distinguish between force and the status of political domination on the one hand, and consensus and the status of normative meaning on the other. While it may be possible for a superpower to exercise factual authority and control over foreign states and peoples through sheer assertions of force and will, the attainability of such a situation should not be confused …

Religion, Religious Minorities And Human Rights: An Introduction, Peter G. Danchin

Peter G. Danchin

No abstract provided.

International Law And The Mortal Precipice: A Legal Policy Critique Of The 'Death Row Phenomenon', David A. Sadoff

David A Sadoff

Since 1989, courts around the world have been presented with claims under a controversial legal theory known as the Death Row Phenomenon. A Phenomenon claim alleges essentially that prolonged detention on death row coupled with the solitary and dehumanizing conditions of confinement and the ever-present specter of death is impermissible under domestic constitutional and/or international human rights law. Court judgments vary widely. That diversity stems in part from the Phenomenon’s lack of an established definition, the range of legal standards and jurisprudential contexts that apply, and the fact that it arises under two distinct scenarios: (i) when a capital offender …

Rethinking Johnson V. M’Intosh (1823): The Root Of The Continued Forced Displacement Of American Indians Despite Cobell V. Norton (2001), T S. Twibell

Ty Twibell

International Law And Structural Changes In Venezuela, Joseph Davids

Joseph Davids

This paper looks at the 2007 proposed amendments to Venezuela's constitutional order. The reforms included, among other things, the concentration of national authority in the Presidency, the removal of term limits on the Presidency, the creation and recognition of new forms of property and the creation of citizens’ councils. While the proposed amendments were defeated in a referendum in December 2007 President Chavez announced his continued support for the reforms and his intention to implement them through “a renewed offensive for the great constitutional reform." Mr. Chavez’s plans for reform have the potential to violate international human rights law. While …

On Armed Conflict, Human Rights, And Preserving The Rule Of Law In Latin America, Luz Estella Nagle

Luz Estella Nagle

The rule of law in Latin America is under great stress due to ongoing internal armed conflict, the proliferation of criminal gangs and international crime organizations, the presence of international terrorist cells in the region, government corruption, citizens’ loss of faith in their governments, and other social and political factors all conspire to cast the Latin American world into a region of transborder conflict, lawlessness, and long term political and social instability.

This article examines the impact on the rule of law in Latin America from internal armed conflict and its attendant terrorism and human rights violations committed by state …

No Right To Vote: Suffrage In The District Of Columbia And U.S. Territories, Jennifer L. Stringfellow

Jennifer L Stringfellow

Part I: The United States is not violating the domestic rights of the citizens in the District of Columbia, Puerto Rico, and its other territories by denying them the right to elect voting representation in government or (in the case of the territories) the right to vote for the U.S. President, because U.S. Citizens in the Territories do not currently have the right to vote for president, nor do they or District residents currently have the right to elect voting representation in Congress. Part II: This denial does not violate the International Covenant on Political and Civil Rights and/or the …

Accountable Intelligence And Intelligent Accountability, Mary O'Rawe

Mary O'Rawe

Abstract Intelligence led policing is in the ascendancy on a global level. This poses serious and often delegitimated questions around law’s ability to prevent and sanction wrongdoing by state security agents. The ramifications of law’s failures are particularly felt in conflicted and post conflict societies. This paper, through the prism of the Northern Ireland experience, problematises the more global sanitation and reification of ‘covert intelligence’ approaches and their potential to contribute to insecurity rather than security.

Entrenched Inequity: Health Care In The United States Of America, Jean Connolly Carmalt, Sarah Zaidi, Alicia Ely Yamin

Jean Connolly Carmalt

This article analyzes the U.S. system for delivering health services in terms of the international human rights standards that apply to the human right to health. To that end, the article evaluates whether the health care system provides available, accessible, acceptable, and quality health goods and services. It finds that the United States fails to provide available care because services are insufficient in quantity and not located in reasonable proximity to all communities; that it fails to provide accessible care because of financial barriers to access and overly complicated requirements for access; that it fails to provide acceptable care because …

The Suspension Of Liberties, An Extension Of Rights: Examining Habeas Jurisdiction For Non-Citizen Guantanamo Detainees In The Al Odah And Boumediene Appeals, Marina A. Torres

Marina A Torres

This paper seeks to contribute to the literature surrounding the constitutional rights afforded to detainees currently held at the naval base in Guantanamo Bay, Cuba. More specifically, it offers a prospective and predictive analysis of the recent oral arguments heard in the consolidated Al Odah and Boumediene cases, held in December of 2007, in a historical context of previous judicial decisions and legislative decrees. Previous literature has not considered the constitutional protections, if any, afforded to non-citizen detainees held outside the territorial United States. Legal research has mainly focused on the application of either international law to Guantanamo detainees (if …

Power And Cooperation: Understanding The Road Towards A Truth Commission, Ming M. Zhu

Ming M Zhu

Truth commissions, usually described as a softer transitional justice alternative to trials, gained traction in academic circles following the establishment of South Africa’s Truth and Reconciliation Commission. Though they are praised for their value in societal reconciliation and widely recognized for their flexibility; little is understood of their causal factors or requirements. This Article turns to this hole in the research and examines the effects of one potential causal variable, the balance of power between the warring parties. Through an in-depth examination of four case studies, El Salvador, Guatemala, Peru, and East Timor, this Article finds that truth commissions are …

Exploitation Nation: The Thin And Grey Legal Lines Between Trafficked Persons And Abused Migrant Laborers, Dina Haynes

Dina Haynes

People around the world are on the move, pushed by external events such as civil war, political upheaval, and increasingly environmental disasters and pulled by the lure of a better life, a better job, a better way to provide for their families. The United States has created an inconsistent legal framework for responding to the exploitation of immigrants, dependent on the degree of victimhood, with the label of victim only frugally bestowed upon those who are also viewed as essential to sustaining the US economy. Trafficked persons are not useful to legitimate US businesspersons, and are accordingly protected. Agricultural and …

Federal Courts As Constitutional Laboratories: The Rat's Point Of View, Maureen N. Armour

Maureen N Armour

This article examines the operation of the lower federal courts as constitutional laboratories where problems related to implementing the Supreme Court's problematic constitutional decisions are routinely addressed. By using the methodology of a detailed case study of Eighth Amendment litigation the author provides critical insights into the workings of the federal trial courts and three judge appellate panels and insights into the applied phenomenology of ajudicative discretion, the moving force of this judicial laboratory. The article also examines the problematic nature of the Supreme Court's constitutional decisions, their textual openness, doctrinal malleability,and prudential "errors," and how this effects the institutional …

Assuming Bosnia: Taking The Polity Seriously In Ethnically Divided Societies, Timothy W. Waters

Timothy W Waters

This essay is a reflection on democracy, justice and intervention. It focuses on the Bosnian experience, where since the Dayton Accords the indispensable context for reform has been the international protectorate. This essay examines the assumptions used by the international community to govern Bosnia, which suggest a policy premised upon resistance to the fragmentation of the state under any circumstances, and a belief that the international intervention is simultaneously morally justified and a purely technical process for increasing efficiency. How necessary – indeed, how related at all – are those commitments to the dictates of justice? What is their relationship …