Law Commons^™

Mindful Justice: The Search For Gandhi’S Sympathetic State After Bhopal, Nehal A. Patel

Nehal A. Patel

One of the most startling examples of unmitigated disaster occurred in Bhopal, India, in 1984, when a Union Carbide pesticide plant exploded tons of methyl isocyanate into the air, killing 3800 people overnight. 30 years later, the plant site has not been remediated, and the estimated death toll from the explosion now has reached over 20,000. Disaster victims repeatedly have sought relief directly from the government. Yet, the Indian and US governments and Union Carbide have refused to provide the necessary resources for proper remediation. In this Article, I examine the state’s response to the Bhopal disaster using the thought …

Addressing Prescription Opioid Abuse Concerns In Context: Synchronizing Policy Solutions To Multiple Public Health Problems, Kelly Dineen

Kelly Dineen

No abstract provided.

In Defense Of Surrogacy Agreements: A Modern Contract Law Perspective, Yehezkel Margalit

Hezi Margalit

The American public’s attention was first exposed to the practice of surrogacy in 1988 with the drama and verdict of the Baby M case. Over the last twenty-five years the practice of surrogacy has slowly but surely become increasingly socially accepted and even welcomed. This evolution serves to emphasize the bizarre judicial and legislative silence regarding surrogacy that exists today in the vast majority of U.S. jurisdictions. In this article I describe and trace the dramatic revolution that took place during the recent decades as the surrogacy practice has totally changed from one viewed as problematic and rejected to a …

Global Adversarial Legalism: The Private Regulation Of Fdi As A Species Of Global Administrative Law, Ariel Meyerstein

Ariel Meyerstein, JD, PhD

This article explores the theoretical paradigm I refer to as “global adversarial legalism,” building on Robert Kagan’s description of the American legal system. Adversarial legalism has also been explained as a governance strategy deployed by the relatively weak central governance institutions of the European Union as a means of spreading EU law. It usefully captures the fragmented political authority and relatively weak hierarchical control of the global governance, or lack thereof, of foreign direct investment.

One facet of this global adversarial legalism, already much debated, is the concern that investment arbitration tribunals exercise an overly broad and perhaps illegitimate form …

Imfing With Your Economic Rights: The Greek Tragedy Of The Eurozone, James C. Brady

James C Brady

While international human rights law promulgates that economic, social and cultural rights (economic rights) be supported just as fervently as civil and political rights, the reality is, they are not. The Greek debt crisis and resulting austerity measures demonstrate how a growing world economy is having an increasingly large impact on economic rights. States treat economic rights obligations similar to how businesses treat risk – that is, states seek to reduce their obligations like businesses seek to reduce their risk. As a result, economic rights remain second fiddle to their civil/political counterpart and a victim of supranational monetary monoliths like …

The Corrupting Influence Of The United States On A Vulnerable Intercountry Adoption System: A Guide For Stakeholders, Hague And Non-Hague Nations, Ngos, And Concerned Parties, David M. Smolin

David M. Smolin

This article provides an extensive analysis of the corrupting influence of the United States on the development and present workings of the intercountry/international adoption system. A context for this corrupting influence is provided through a careful analysis of the theoretical and practical vulnerabilities of the intercountry adoption system. The distinctive approaches of the United States to social work, adoption, human rights, children's rights, constitutional law and humanitarian intervention also provides careful analysis. The article is designed to be practical in providing both a clear guide to those interested in reforming the United States' approach to intercountry adoption and related matters, …

After Privacy: The Rise Of Facebook, The Fall Of Wikileaks, And Singapore’S Personal Data Protection Act 2012, Simon Chesterman

Simon Chesterman

This article discusses the changing ways in which information is produced, stored, and shared — exemplified by the rise of social-networking sites like Facebook and controversies over the activities of WikiLeaks — and the implications for privacy and data protection. Legal protections of privacy have always been reactive, but the coherence of any legal regime has also been undermined by the lack of a strong theory of what privacy is. There is more promise in the narrower field of data protection. Singapore, which does not recognise a right to privacy, has positioned itself as an e-commerce hub but had no …

Grumpy Old Men: A Correlation Between Irritation And Intolerance For Marriage Equality, Aaron J. Shuler

Aaron J Shuler

The Gay Equality Movement has made expeditious strides in the last few decades. Most progress in accepting attitudes toward homosexuals has been made in groups that are traditionally associated with liberal views toward minority groups: the young, the educated, and, to a lesser extent, women. This paper seeks to use membership in those groups as control variables to determine whether another less understood independent variable bears on tolerance. Specifically, this paper uses data from the American National Election Survey from 2008-09 and Alan Gerber’s work on the “Big Five” personality traits to determine whether irritated or less agreeable citizens are …

Finding A Voice Of Challenge: The State Responds To Religious Women And Their Communities, Marie A. Failinger

Marie A. Failinger

The appropriate response of Western nation-states to the situation of religious women who are caught between democratic norms of gender equality and the demands of their religious community has been a source of tension in many Western nations, including the U.S. This article attempts to give voice to the complex nature of women’s religious conduct as tied to their identities, and to propose alternative ways that the state might further its norms of gender equality besides intrusive regulation of religious communities.

The Debate, David M. Smolin, Elizabeth Bartholet

David M. Smolin

This chapter is taken from a forthcoming book on Intercountry Adoption, edited by Judith L. Gibbons and Karen Smith Robati and forthcoming in June of 2012. The chapter constitutes a debate between Professor Elizabeth Bartholet and Professor David Smolin. Each independently was given three questions to answer, and then one opportunity to respond to the other's answers to those three questions, all with strict space limitations. The debate illustrates some of the starkly different perspectives regarding the law, policies, and facts relevant to intercountry adoption.

How The British Gun Control Program Precipitated The American Revolution, David B. Kopel

David B Kopel

Abstract: This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least …

"A Sea Change In Security: How The War On Terror Strengthened Human Rights", Michael Galchinsky

Michael Galchinsky

The UN Security Council's initial response to 9/11 (UNSC Res. 1373) deemphasized the requirement that states respect human rights and humanitarian law in their counter-terrorism efforts. However, starting in 2002, a backlash by numerous global governance institutions asserted that human rights and security are mutually reinforcing. The emerging norm of mutual reinforcement influenced the SC to direct its Counter-Terrorism Committee to incorporate human rights concerns more robustly into its work. The SC’s increasing adoption of a rights-based approach indicates that the UN's security and human rights missions are bound more closely together than ever before.

Justice, The Bretton Woods Institutions And The Problem Of Inequality, Frank J. Garcia

Frank J. Garcia

The Bretton Woods Institutions are, together with the WTO, the preeminent international institutions devoted to managing international economic relations. This mandate puts them squarely in the center of the debate concerning development, inequality and global justice. While the normative analysis of the WTO is gaining momentum, the systematic normative evaluation of the World Bank and the International Monetary Fund is comparatively less developed. This essay aims to contribute to that nascent inquiry. How might global justice criteria apply to the ideology and operations of the Bank and Fund? Political theory offers an abundance of perspectives from which to conduct such …

Cognitive Dissonance In A Recession: Minnesota Gop Attacks Marriage Equality In Land Of "Gayest City In America", Aaron J. Shuler

Aaron J Shuler

Despite a tradition of progressive thinking on civil rights and recent specific gains for gays in Minnesota, the State's Republican party is trying to place an anti-marriage equality amendment on the 2012 ballot.

Utilizing The Past To Shape The Future: The Rehabilitation Of Child Soldiers In Darfur, Michael K. Marriott

Michael K Marriott

Child soldiering, an unfortunate reality of war, has become increasingly common in modern warfare. With world attention focused on the genocide taking place in the Darfur region of Sudan, issues regarding the use of child soldiers in the conflict have come to light. By providing an overview of the use of child soldiers both globally and in Sudan, discussing the relevant legal norms theoretically governing the country and providing a case study on Sierra Leone, this paper ultimately provides an analysis and proposed framework for comprehensive programs that could be put into action after cessation of hostilities in an attempt …

Don’T Split The Baby: How The U.S. Could Avoid Uncertainty And Unnecessary Litigation And Promote Equality By Emulating The British Surrogacy Law Regime, Austin R. Caster

Austin R Caster

This article will show that the United States can protect the rights of the intended parents, the surrogate, and the child while avoiding uncertainty and unnecessary litigation by enacting uniform legislation akin to the United Kingdom’s regime. The first section will examine the history of surrogacy law in the United States, demonstrate the inconsistency of these laws, and suggest that reform is needed. Section two will discuss the United Kingdom’s legislative response to the problem of surrogacy arrangements, which has provided more uniformity despite obstacles similar to those faced in the United States. The third section will illustrate that 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 …

The Greatest Legal Movie Of All Time: Proclaiming The Real Winner, Grant H. Morris

Grant H Morris

In August, 2008, the ABA Journal featured an article entitled: “The 25 Greatest Legal Movies.” A panel of experts, described in the article as “12 prominent lawyers who teach film or are connected to the business” selected “the best movies ever made about lawyers and the law.” This distinguished panel ranked its twenty-five top legal movies, choosing To Kill a Mockingbird as its number one legal movie. The panel also selected twenty-five films as “honorable mentions,” which were listed in alphabetical order. In my opinion, however, the real greatest legal movie of all time was not selected as the winner. …

Why Same-Sex Marriage Will Not Repeat The Errors Of No-Fault Divorce, Austin R. Caster

Austin R Caster

Because so many negative ramifications resulted from changing marriage laws through no-fault divorce legislation, it is understandable that those who rightfully feared no-fault divorce would also fear any additional changes to the definition of marriage. Those fears are unfounded as applied to same-sex marriage legislation, however, because the same consequences resulting from no-fault divorce do not apply to same-sex marriage. Whereas changing marriage exit rights through laws such as no-fault divorce legislation resulted in an increased divorced rate throughout the world, the opposite has happened in countries that have allowed same-sex marriage laws by changing marriage entrance rights. Society has …

International Human Rights Law And Co-Parent Adoption, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

Children would benefit substantially if governments legally recognized same sex marriages and parenting. This article analyzes international human rights law, co-parent adoption, and the recognition of gay and lesbian families. It addresses civil marriage and adoption challenges for same sex families and assesses European Court of Human Rights jurisprudence relating to same-sex adoption. This article considers the international community's efforts to implement the best interest of the child standard concluding that recognition of same sex families is in the best interest of the child and should be facilitated in a timely manner by jurisdictions at all levels.

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] …

"Let's Do The Time Warp Again": Assessing The Competence Of Counsel In Mental Health Conservatorship Proceedings, Grant H. Morris

Grant H Morris

Thirty years ago, I wrote an article on mental health conservatorships in California and the role of counsel for persons for whom a conservatorship has been proposed. Data was gathered on the performance of attorneys in court hearings conducted in San Diego County Superior Court. The data revealed that lawyers representing proposed conservatees were inactive and ineffective in representing their clients’ interests. The lawyers did not consider themselves advocates in an adversary process in which conservatorship was to be avoided. A year after the article was published, the California Supreme Court, citing that article as authority for the “paternalistic attitude” …

The Bridge Connecting Pontius Pilate's Sentencing Of Jesus To The New Jersey Death Penalty Study Commission's Concerns Over Executing The Innocent: When Human Beings With Human Flaws Determine Guilt Or Innocence And Life Or Death, James B. Johnston

James B Johnston

No abstract provided.

Clitoridectomy And The Economics Of Islamic Marriage And Divorce Law - Ryan M Riegg - 2009, Ryan M. Riegg

Ryan M. Riegg

No abstract provided.

Behavioral Economic Issues In American & Islamic Marriage & Divorce Law, Ryan M. Riegg

Ryan M. Riegg

Intercountry Adoption And Poverty: A Human Rights Analysis, David M. Smolin

David M. Smolin

This Article explores the question of whether intercountry adoption is an effective, appropriate, or ethical response to poverty in developing nations. As a matter of methodology, this fundamental question of adoption ethics is explored through the lens of international human rights law. This Article specifically argues that, where the birth parents live under or near the international poverty standard of $1 per day, family preservation assistance must be provided or offered as a condition precedent for accepting a relinquishment that would make the child eligible for intercountry adoption.

Child Laundering: How The Intercountry Adoption System Legitimizes And Incentivizes The Practices Of Buying, Trafficking, Kidnapping, And Stealing Children, David M. Smolin

David M. Smolin

This article documents and analyzes a substantial incidence of "child laundering" within the intercountry adoption system. Child laundering occurs when children are taken illegally from birth families through child buying or kidnapping, and then "laundered" through the adoption system as "orphans" and then "adoptees." The article then proposes reforms to the intercountry adoption system that could substantially reduce the incidence of child laundering.

The Two Faces Of Intercountry Adoption: The Significance Of The Indian Adoption Scandals, David M. Smolin

David M. Smolin

This article summarizes international law, and the law of India and the United States, relevant to intercountry adoption. The article then presents extensive information and analysis of a major series of adoption scandals in Andhra Pradesh, India. The article uses this analysis of law and a major series of adoption scandals to present the "two sides of intercountry adoption:" positively, as a humanitarian act, and negatively as a form of child trafficking. The weaknesses and vulnerabilities of the intercountry adoption system that led to the Indian adoption scandals are extensively analyzed.

Intercountry Adoption As Child Trafficking, David M. Smolin

David M. Smolin

This article analyzes when intercountry adoption constitutes a form of child trafficking, particularly under international law. The article reviews relevant Treaties on the subjects of slavery and human trafficking, as well as analyzing the problem of money and adoption within the domestic (United States) adoption system.

Rights Of Inequality: Rawlsian Justice, Equal Opportunity, And The Status Of The Family, Justin Schwartz

Justin Schwartz

Is the family subject to principles of justice? In A Theory of Justice, John Rawls includes the (monogamous) family along with the market and the government as among the "basic institutions of society" to which principles of justice apply. Justice, he famously insists, is primary in politics as truth is in science: the only excuse for tolerating injustice is that no lesser injustice is possible. The point of the present paper is that Rawls doesn't actually mean this. When it comes to the family, and in particular its impact on fair equal opportunity (the first part of the the Difference …