Law Commons^™

Classification Of Participants In Suicide Attacks And The Implications Of This Classification For The Severity Of The Sentence: The Israeli Experience In The Military Courts In Judea And Samaria, Chagai D. Vinizky, Amit Preiss

Chagai D Vinizky

*** A revised version of this article is forthcoming in 30 Pace Law Review (Winter2010) *** The twenty-first century witnessed a considerable rise in the number of suicide attacks. The largest suicide attacks were carried out by Al-Qaeda in the United States on 11.9.2001 when that organization crashed four passenger planes (two into the Twin Towers and one into the Pentagon building) killing 2,973 civilians. Between the 11th September and the present time, suicide attacks have taken place throughout the world, including in Turkey, Great Britain, Egypt, India, Jordan, Spain and Iraq leading to thousands of deaths. A large proportion …

Charles Sumner: History's Misunderstood Idealist, Chad G. Marzen

Chad G. Marzen

Few historical figures in the history of the United States have received such contrasting treatment by historians and scholars than Senator Charles Sumner. One view of Sumner mainly focuses on Sumner as a “Cardboard Yankee,” a figure who was arrogantly too tied to principle and was someone who seldom tried to understand others, was lacking in humor, was a pedant, lacked the judgment and self-control to be effective in settling disputes, and was unable to compromise.

A more recent “revised” interpretation of Sumner contends Sumner was driven into reform movements and politics for two reasons: first, that Sumner believed the …

Protecting Statements In Catholic Tribunal Proceedings Under The Priest-Penitent Privilege: Cimijotti V. Paulsen Considered, Chad G. Marzen

Chad G. Marzen

No abstract provided.

The Furundzija Judgment And Its Continued Vitality In International Law, Chad G. Marzen

Chad G. Marzen

The Furundzija decision of the International Criminal Tribunal for the Former Yugoslavia stands as a landmark decision in international jurisprudence since it not only affirmed that the norm prohibiting torture has attained jus cogens status under international law, but expanded accountability and liability for violations of commission as well as omission. In this essay, I not only address Furundzija’s holdings and its implications in the international sphere, but specifically analyze the legacy of the Furundzija judgment on U.S. domestic civil cases involving the Alien Tort Statute.

Significantly, the Tribunal’s decision not only properly recognizes faults and crimes of commission, but …

What Does Kosovo Teach Us About Using Human Rights Law To Prosecute Corruption Offences?, Bryane Michael

Bryane Michael (bryane.michael@stcatz.ox.ac.uk)

If a patient must pay a bribe to obtain life-saving surgery, does the doctor’s solicitation of a bribe represent a violation of the victim’s human rights? This paper explores the ways in which anti-corruption practitioners can look to various provisions in human rights law in order to prevent or prosecute corruption-related offences. We use Kosovo as a case study because its constitution gives direct effect to the major international human rights conventions. We find -- using Kosovo as a case study -- that some types of corruption lead to separately prosecutable human rights offences. We also find that pre-existing violations …

What Do We Know About Corruption (And Anti-Corruption) In Customs?, Bryane Michael, Nigel Moore

Bryane Michael (bryane.michael@stcatz.ox.ac.uk)

What are the lessons from anti-corruption programmes in Customs agencies over the last 20 years? The data suggest that many of the usual activities -- like codes of conduct and posters do not work. Internal inspectorates, and particularly internal audit, has a large effect on reducing corruption. A review of the literature and best practice presented.

Do Customs Trade Facilitation Programmes Help Reduce Customs-Related Corruption?, Bryane Michael, Frank Ferguson, Alisher Karimov

Bryane Michael (bryane.michael@stcatz.ox.ac.uk)

Customs-related corruption costs World Customs Organisation (WCO) members at least $2 billion in customs revenue each year. Using recent data only about bribe payers’ actual experiences in paying bribes, we show that trade facilitation would only help reduce corruption and improve efficiency – in a large number of customs agencies -- if the customs agency’s director undertakes a big-bang approach to reform. We also find support for the corruption clubs theory – that customs agencies in the process of reform are either moving toward OECD levels of integrity and efficiency; or they are sliding toward a “red zone” group of …

Foreign Under-Investment In Us Securities And The Role Of Relational Capital, Bryane Michael

Bryane Michael (bryane.michael@stcatz.ox.ac.uk)

Over 70 academic papers attempt to explain why foreigners invest in US securities. All ignore the vital role of the US broker-dealer. Macroeconomic factors like a trade balance or corporate governance may guide foreign investors toward certain markets. But US broker-dealers provide information to foreign investors and execute the actual trades. We hypothesize that particular foreign investors under-invest in US securities because of a lack of relational capital with US broker-dealers. We find that broker-dealer marketing intensity in foreign markets partly explains foreigners’ decisions to invest in US securities. We also estimate “pent-up” demand for US securities in developing countries …

The Size And Structure Of Government, Bryane Michael, Maja Popov

Bryane Michael (bryane.michael@stcatz.ox.ac.uk)

Does government size and structure adapt to changes in government’s organisational environment (particularly to uncertainty and complexity) as predicted by organisational theory? We find – using a range of statistical analyses – support for each of the major theories of organisation adaptation (the contingency-based view, resource-based view, and rational choice view). We find that both government size and structure change – holding other factors constant – for changes in the uncertainty and complexity of governments’ organisational environments. We find seven clusters of governments which adapt their organisational sizes differently in response to changes in the uncertainty and complexity of their …

The Other Side Of The Story: Using Graphic Organizers As Cognitive Learning Tools To Teach Students To Construct Effective Counter-Analysis (Forthcoming 2010), Lisa T. Mcelroy, Christine N. Coughlin

Christine Nero Coughlin

In law school, it is critical for students to look at issues from both sides, whether in responding to a law school exam hypothetical or in writing predictive memorandum assignments. In teaching students to engage in thoughtful legal analysis, therefore, professors should provide strategies to help students address counter-analysis as a critical component of the analysis. Developing a method for effectively teaching counter-analysis is important because good lawyering requires complex analysis that recognizes the subtleties of the situation being analyzed.

This article begins by defining counter-analysis generally and using social science and educational psychology theory to explain why the process …

Failure Is Not An Option: An Essay On What Legal Educators Can Learn From Nasa's Signature Pedagogies To Improve Student Outcomes, Christine N. Coughlin, Lisa T. Mcelroy

Christine Nero Coughlin

The story of the Apollo 13 mission is just one of the inspirational stories from the space program. it was an age of exploration, of pushing boundaries, of discovering new ways of doing things. In this essay, we examine three of NASA's signature pedagogies -- simulation, teamwork, and optimism--and discuss how those practices can be used effectively in legal education to prepare students for the realities of practice.

When Doctors Become “Patients”: Advocating A Patient-Centered Approach For Health Care Workers In The Context Of Mandatory Influenza Vaccinations And Informed Consent, Christine N. Coughlin, Nancy King, Kathi Kemper

Christine Nero Coughlin

Today’s health care delivery has evolved from the physician-centered model showcased in The Doctor into a more patient-centered model. Although the definition and boundaries of the patient-centered health care movement are still being developed and refined, patient-centered care is arguably distinguishable, both historically and conceptually, from public health. Nonetheless, just as public health concerns and individual medical choices have come together in some health care decision-making contexts for centuries, contemporary questions such as whether hospitals should mandate annual influenza vaccinations for their health care workers involve legal and ethical principles underlying the patient-centered movement, most notably that of informed consent. …

Data Sharing, Latency Variables And The Science Commons, Jorge L. Contreras

Jorge L Contreras

Over the past decade, the rapidly decreasing cost of computer storage and the increasing prevalence of high-speed Internet connections have fundamentally altered the way in which scientific research is conducted. Led by scientists in disciplines such as genomics, the rapid sharing of data sets and cross-institutional collaboration promise to increase scientific efficiency and output dramatically. As a result, an increasing number of public “commons” of scientific data are being created: aggregations intended to be used and accessed by researchers worldwide. Yet, the sharing of scientific data presents legal, ethical and practical challenges that must be overcome before such science commons …

Bermuda's Legacy: Policy, Patents And The Genome Commons, Jorge L. Contreras

Jorge L Contreras

The multinational effort to sequence the human genome generated vast quantities of data about the genetic make-up of humans and other organisms. But, in some respects, even more remarkable than the impressive quantity of data generated by the human genome project (HGP) is the speed at which that data has been released to the public. At a 1996 summit in Bermuda, leaders of the scientific community agreed on a groundbreaking set of principles requiring that all DNA sequence data be released in publicly-accessible databases within twenty-four hours after generation. These “Bermuda Principles” contravened the typical practice in the sciences of …

A Consequential Approach To Interpretation And Interpretive Risk: Rethinking Judicial Intervention From Contracts To The Chrysler Bankruptcy, Juliet P. Kostritsky

Juliet P Kostritsky

Abstract When contracts remain ambiguous or incomplete, courts and scholars must confront the inevitable question of when intervention in private contracts is justified. To deal with the unresolution or residual uncertainty, the Austrian economists and the new textualists suggest that any intervention would be a fool’s errand. Their position amounts to an unvarying posture that any party asking for an additional term or a broad interpretation will always lose. Recognizing that there is an interpretive risk in all contracts, the court should adopt an interpretive methodology that parties would be willing to adopt and that would enhance the willingness of …

Individualism Submerged: Climate Change And The Perils Of An Engineered Environment, Juliet P. Stumpf, Daniel J. Chepaitis, Andrea Panagakis

Juliet P Stumpf

Current approaches to addressing the negative impacts of climate change rely on collective capabilities. Welfare economics and contractualism, the two conventional perspectives that dominate the debate, support the pursuit of adaptive strategies such as large-scale geoengineering projects to reduce solar radiation or ameliorate sea-water inundation. In place of returning greenhouse gas emissions to natural levels, these approaches put the global climate system and compensation for losses resulting from climate change under the control of some group of fellow humans. In other words, they privilege mechanisms that increase each individual=s dependence on a collective decisionmaker and decrease the individual=s capacity to …

Recensión: L'Ordine Giuridico Dei Privati, Jimmy J. Ronquillo Pascual

Jimmy J. Ronquillo Pascual

No abstract provided.

"Should I Stay Or Should I Go?"- Covenants Not To Compete In A Down Economy, Kathleen (Kate) M. O'Neill

Kathleen M. O'Neill

Suppose an employee assents to a covenant not to compete in exchange for a job. The formation of this “contract” is unexceptionable and one would suppose that ordinarily the employee ought to be bound by her promise. But suppose that, between the formation of the covenant and a dispute over enforcement of the covenant, the employer’s business deteriorates and the employer begins to squeeze the employee to work harder or take a cut in benefits. Should the squeeze be irrelevant if the employee eventually decides to quit and tries to take a job within her field that’s barred by the …

Constructing Commons In The Cultural Environment, Katherine J. Strandburg, Michael J. Madison, Brett M. Frischmann

Katherine J. Strandburg

This Article sets out a framework for investigating sharing and resource pooling arrangements for information and knowledge-based works. We argue that the approach to commons arrangements in the natural environment pioneered by Elinor Ostrom and collaborators provides a template for examining the construction of commons in the cultural environment. The approach promises to lead to a better understanding of how participants in commons and pooling arrangements structure their interactions in relation to the environments in which they are embedded, in relation to information and knowledge resources that they produce and use, and in relation to one another.

An improved understanding …

Hacia La Construcción De Una Teoría De La Ineficacia Procesal En El Proceso Civil Peruano, Renzo Cavani

Renzo Cavani

This essay has the objective to build the dogmatic fundaments for a procedure inefficacy theory for the peruvian civil procedure.

O presente ensaio tem por objetivo a construção dos fundamentos dogmáticos para uma teoria da ineficácia processual para o processo civil peruano.

El presente ensayo tiene como objetivo la construcción de los fundamentos dogmáticos para una teoría de la ineficacia procesal para el proceso civil peruano.

The Meaning And The Mining Of Legal Texts, Mireille Hildebrandt

Mireille Hildebrandt

Positive law, inscribed in legal texts, entails an authority not inherent in literary texts, generating legal consequences that can have real effects on a person’s life and liberty. The interpretation of legal texts, necessarily a normative undertaking, resists the mechanical application of rules, though still requiring a measure of predictability, coherence with other relevant legal norms and compliance with constitutional safeguards. The present proliferation of legal texts on the internet (codes, statutes, judgments, treaties, doctrinal treatises) renders the selection of relevant texts and cases next to impossible. We may expect that systems to mine these texts to find arguments that …

Human Rights As Preconditions For Intercultural Society, Mireille Hildebrandt

Mireille Hildebrandt

In this contribution human rights will be considered not simply as conditions for an intercultural society such as the European Union but as preconditions, or, in other words, human rights will be conceptualized as constitutive and not as causal or moral conditions for 'European Integration'. This means that the level of the analysis is epistemological rather than methodological, though at many points I will indicate the consequences of this approach for the way comparative law can be practiced, if it is to contribute to an intercultural 'area of freedom, security and justice' (art. 29 of the Treaty of the European …

Recht En Markt: Met Falen En Opstaan, Mireille Hildebrandt

Mireille Hildebrandt

Inleiding

Mijn waardering voor Aernout Schmidts bescheidenheid, eruditie en historisch besef is des te groter nu hij tegelijk een scherp analyticus is, altijd bereid om wat voor de hand ligt af te zetten tegen wat onder de voet wordt gelopen. De verscheidenheid van zijn belangstelling drong zich op toen hij liet vallen dat hij Heimito Doderers Die Strudlhofstiege ging aanschaffen, waardoor ik een nieuw stukje van mijn eigen onwetendheid en een nieuwe auteur van het formaat van Musil ontdekte. Schrijvend over het Wenen van de eer- ste helft van de 20e eeuw voegt Doderer zich in de lange rij van …

Juridische Bescherming 'By Design'?, Mireille Hildebrandt

Mireille Hildebrandt

Dit is een redactioneel voor het tijdschrift van de Vereniging Wijsbegeerte van het Recht: Rechtsfilosofie & Rechtstheorie. Zie: http://www.bjutijdschriften.nl/tijdschrift/rechtsfilosofieentheorie/2010/2

Bridging The Accountability Gap: Rights For New Entities In The Information Society?, Mireille Hildebrandt, Bert-Jaap Koops, David-Olivier Jaquet-Chiffelle

Mireille Hildebrandt

New entities in the information society that operate at increasing distance from the physical persons ‘behind’ them, such as pseudonyms, avatars, software agents, and robots, challenge the law. One way of addressing this challenge is to attribute legal rights and/or duties in some contexts to non-humans, thus creating entities that are addressable in law themselves rather than the persons ‘behind’ them. In this article, we review existing literature on rights for non-humans, with a particular focus on emerging entities in the information society. We discuss three strategies for the law to deal with the challenge of these new entities: interpreting …

Privacy En Identiteit In Slimme Omgevingen, Mireille Hildebrandt

Mireille Hildebrandt

Omgevingen zijn slim omdat ze anticiperen op ons toekomstig gedrag. Op basis van een voortdurende opslag van data en de permanente analyse daarvan ontwikkelt de slimme omgeving kennis over onze voorkeuren, gewoonten, leefstijl, gezondheid, stemmingen en voornemens. Die kennis is statistisch van aard en de mate waarin toekomstig gedrag daadwerkelijk wordt voorzien hangt af van de juistheid, de relevantie en de compleetheid van de data. Tegelijk moeten we constateren dat wanneer de bewoner van een slimme omgeving op grond van die afgeleide kennis op een bepaalde manier wordt behandeld, de kans bestaat dat zij zich op den duur gaat gedragen …

Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical Malpractice Claims In Florida, Mirya R. Holman, Neil Vidmar

Mirya R Holman

The public image of medical malpractice cases is one of a courtroom, with an injured plaintiff, lawyers, and a judge. However, the reality of malpractice claims is very different. Approaching the study of alternative dispute resolution methods for medical malpractice claims with an eye towards identifying those contexts by which the claims are resolved, this article focuses on the institutional and informal processes of resolving disputes. These processes include both statutory procedural requirements and informal settlements, many of which occur prior to the filing of a lawsuit. A profile of medical malpractice claims in Florida from 1990 through 2008, indicates …

Balancing Judicial Cognizance And Caution: Whether Transnational Corporations Are Liable For Foreign Bribery Under The Alien Tort Statute, Matt A. Vega

Matt A Vega

This article argues that transnational corporate bribery is actionable under the Alien Tort Statute of 1789 (ATS) as a violation of the law of nations. In the early years of the Republic, bribery of a foreign official was commonly understood to violate the law of nations. Today, bribery is occasionally mentioned in passing as a precursor to human rights violations, but the bribe itself is seldom analyzed as a potential violation of the law of nations. However, the Second Circuit Court of Appeals recently allowed “aiding and abetting” to proceed as a customary international law violation under the ATS in …

Cold War Paradox: The United States And The South Korean Constitutions Of 1948 And 1988, Mattei Ion Radu

Mattei Ion Radu

No abstract provided.

Power Made Flesh: An Examination Of Power In Critical Legal Studies, Neal D. Richards

Neal D Richards

The concept of “power” is central to critical legal studies. Nevertheless, there is little discussion of what theorists mean when they critique an area of law based on underlying power structures. Given the rather slippery nature of the power concept, this is unsurprising. Yet, because how one defines power requires defining one’s normative and epistemological presuppositions, having a coherent theory of power is essential to creating an effective critique of the current state of the legal discourse. Such a theory can be created by walking through the narrative of the history of human interaction leading to the present day. Power …