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Full-Text Articles in Law
Presumed Imminence: Judicial Risk Assessment In The Post-9/11 World, Avidan Y. Cover
Presumed Imminence: Judicial Risk Assessment In The Post-9/11 World, Avidan Y. Cover
Faculty Publications
Court opinions in the terrorism context are often distinguished by fact-finding that relates to risk assessment. These risk assessments — inherently policy decisions — are influenced by cultural cognition and by cognitive errors common to probability determinations, particularly those made regarding highly dangerous and emotional events. In a post-9/11 world, in which prevention and intelligence are prioritized over prosecution, courts are more likely to overstate the potential harm, neglect the probability, and presume the imminence of terrorist attacks. As a result, courts are apt to defer to the government and require less evidence in support of measures that curtail civil …
Accelerated Formation Of Customary International Law, Michael P. Scharf
Accelerated Formation Of Customary International Law, Michael P. Scharf
Faculty Publications
This article examines the phenomenon of accelerated formation of customary international law. It argues that in periods of fundamental change (which the author characterizes as "Grotian Moments"), whether by technological advances, the commission of new forms of crimes against humanity, or the development of new means of warfare or terrorism, customary international law may form much more rapidly and with less state practice than is normally the case to keep up with the pace of developments. The article examines several case studies that explore the application and contours of the concept of "Grotian Moments."
Terrorism Financing Indicators For Financial Institutions In The United States, Richard K. Gordon
Terrorism Financing Indicators For Financial Institutions In The United States, Richard K. Gordon
Faculty Publications
At least since the Financial Action Task Force (FATF) first published its Forty Recommendations, financial institutions in FATF-compliant jurisdictions have been required to implement preventive measures that require FIs to identify customers, establish client profiles, monitor for unusual transactions, review those transactions to see if there was suspicion that they involved the proceeds of crime and, if so, report the transaction to the authorities in the form of a suspicious transaction report (STR). When these requirements were first established, neither financial institutions nor their supervisors/regulators had much experience as to what in a client's profile and the client's patterns of …
Bus Bombings And A Baby's Custody: Insidious Victories For Terrorism In The Context Of International Custody Disputes, Andrew Zashin
Bus Bombings And A Baby's Custody: Insidious Victories For Terrorism In The Context Of International Custody Disputes, Andrew Zashin
Faculty Publications
This article will address the problematic intersection of terrorism and child custody battles. The most immediate consequences of a terrorist attack are loved ones lost and buildings reduced to rubble. These losses are devastating, shocking and scary. But to end an analysis of terrorist victories with a body count is a fatal mistake. Americans fervently shout we cannot let "them" win, but how do we decide if they are winning? What do the terrorists want? It is not the goal of terrorists to simply kill Americans, causing death and destruction. That is merely a horrific means to their end. Terrorists …
On Terrorism And Whistleblowing, Michael P. Scharf, Colin T. Mclaughlin
On Terrorism And Whistleblowing, Michael P. Scharf, Colin T. Mclaughlin
Faculty Publications
At a Bio-Terrorism Conference at Case Western Reserve University School of Law on March 31, 2006, the government participants were asked what they would do if a superior instructed them not to disclose information to the public about the likely grave health affects of an ongoing bio-terrorist attack. In response, they indicated that they would be reluctant to become a "whistleblower." This is not surprising since, despite the federal and state laws that purport to facilitate such whistleblowing for the public good, government whistleblowers routinely have faced loss of promotion, harassment, firing, and in some instances criminal prosecution when they …
Foreword: Terrorism On Trial, Michael P. Scharf, Amy E. Miller
Foreword: Terrorism On Trial, Michael P. Scharf, Amy E. Miller
Faculty Publications
While the Lockerbie approach is currently out of vogue, are there nonetheless lessons from Lockerbie that policy makers can draw on in determining how to best use law as a weapon against terrorism in the future? To explore this important and timely question, the Frederick K. Cox International Law Center assembled a group of high level United Nations officers, former U.S. government officials, noted prosecutors and defense counsel, and prominent journalists and scholars for a day-long symposium at Case Western Reserve University School of Law on October 8, 2004, entitled "Terrorism on Trial." The conference, which was cosponsored by the …
Defining Terrorism As The Peacetime Equivalent Of War Crimes: Problems And Prospects, Michael P. Scharf
Defining Terrorism As The Peacetime Equivalent Of War Crimes: Problems And Prospects, Michael P. Scharf
Faculty Publications
This article examines the proposal to define terrorism as the peacetime equivalent of war crimes in the context of answering two questions: First, why might it be useful to define terrorism by reference to the existing laws of war? And second, what are the potential negative consequences which might counsel against such an approach?
Security And Freedom: Are The Government's Efforts To Deal With Terrorism Volatile Of Our Freedoms?, Michael P. Scharf
Security And Freedom: Are The Government's Efforts To Deal With Terrorism Volatile Of Our Freedoms?, Michael P. Scharf
Faculty Publications
Introducation to the Proceedings of the Canada-United States Law Institute Conference on Canada-U.S. Security and the Economy in the North American Context, Cleveland, Ohio, 2003.
Defining Terrorism As The Peace Time Equivalent Of War Crimes: A Case Of Too Much Convergence Between International Humanitarian Law And International Criminal Law, Michael P. Scharf
Defining Terrorism As The Peace Time Equivalent Of War Crimes: A Case Of Too Much Convergence Between International Humanitarian Law And International Criminal Law, Michael P. Scharf
Faculty Publications
The problem of defining "terrorism" has vexed the international community for years. The United Nations General Assembly has repeatedly called for the convening of an international conference to define terrorism and distinguish it from legitimate acts in furtherance of national liberation struggles.' A decade ago, representing the United States, I gave a speech in the United Nations Sixth (Legal) Committee, in which I pointed out that general definitions of terrorism "are notoriously difficult to achieve and dangerous in what all but the most perfect of definitions excludes by chance." Today, we hear calls for a renewed effort to reach international …
Terrorism On Trial: The Lockerbie Criminal Proceedings, Michael P. Scharf
Terrorism On Trial: The Lockerbie Criminal Proceedings, Michael P. Scharf
Faculty Publications
On December 21, 1998, a bomb exploded in the cargo hold of Pan Am Flight 103 killing all 259 passengers and crew, as well as eleven residents of the town of Lockerbie where the wreckage of the Bowing 747 crashed 31,000 feet below.