Digital Commons Network^™

A Genesis Of Conflict: The Zero-Sum Mindset, Jonathan R. Cohen

Cardozo Journal of Conflict Resolution

Parties in conflict often operate under the assumption that for one party to win, the other party must lose. This concept, known as the "zero-sum mindset, " can lead to undesirable results, both because it can make disputes harder to resolve and because people holding such beliefs are more likely to get into conflicts to begin with. Over the past several decades, legal educators specializing in dispute resolution have worked hard to challenge that mindset. This task is not simple, for framing conflict in zero-sum terms has very deep cultural roots tracing back at least to the Biblical stories in …

Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli

Cardozo Journal of Conflict Resolution

If Donald Trump, in kicking off his campaign for the White House, was saying "what everyone is thinking" about illegal immigration, it must be that his message mirrored a narrative that already existed in the minds of his audience. That fearful story of criminals invading the U.S. borders has long been a dominant theme in the mainstream news immigration story. Like all news stories, this one focuses attention on some facts at the expense of others. Like many news stories, it draws its power from earlier, well-known tales-some as old as The Flood. This article reconsiders news stories-and the storytelling …

Cosmopolitanism, Custom And Complexity: Kant's Cosmopolitan Norms In Action, Tracey Leigh Dowdeswell

Osgoode Legal Studies Research Paper Series

Immanuel Kant's Cosmopolitanism has come to stand alongside Political Realism and Liberal Internationalism as one of three broad theories of ethics in international relations. Yet Cosmopolitanism has been subjected to criticisms that the universal norms identified by Kant - including such norms as hospitality, reciprocity, and publicity (transparency and free political participation) - are Western and Eurocentric in nature, incompatible with cultural pluralism, and lack the justification and legitimacy for the broad-based consensus required for a Cosmopolitan politicalsphere to emerge among the world’s diverse peoples. This paper seeks to address these criticisms of Cosmopolitanism by studying examples of Cosmopolitan norms …

Contested Citizenship In Bosnia And Herzegovina, Elena Cirkovic

Osgoode Legal Studies Research Paper Series

According to Article 15 of the Universal Declaration of Human Rights (UDHR), the right to nationality and citizenship can be considered as a universal human right: ‘(1) everyone has the right to nationality’ and ‘(2) no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’. However, the qualifications of the bearer of ‘universal’ rights are unspecified. Equating nationality with citizenship has contributed to a situation where people(s) have to fit the category of being a ‘national’ in order to obtain citizenship. The question of access to national and international rights remains the question …

The Destruction Of Cultural Heritage: A Crime Against Property Or A Crime Against People?, 15 J. Marshall Rev. Intell. Prop. L. 336 (2016), Patty Gerstenblith

UIC Review of Intellectual Property Law

The destruction of cultural heritage has played a prominent role in the ongoing conflicts in Syria and Iraq and in the recent conflict in Mali. This destruction has displayed the failure of international law to effectively deter these actions. This article reviews existing international law in light of this destruction and the challenges posed by the issues of non-international armed conflict, non-state actors and the military necessity exception. By examining recent developments in applicable international law, the article proposes that customary international law has evolved to interpret existing legal instruments and doctrines concerning cultural heritage in light of the principles …

Nagpra And Its Limitations: Repatriation Of Indigenous Cultural Heritage, 15 J. Marshall Rev. Intell. Prop. L. 472 (2016), Kevin Ray

UIC Review of Intellectual Property Law

The historical conditions under which indigenous (and specifically Native American) cultural heritage objects have been collected present tremendous difficulties, since collecting efforts were frequently influenced, or even directed, by racist or colonialist ideologies. Recent decades have seen efforts to redress past wrongs, as well as to correct misunderstandings and misrepresentations. The restitution and repatriation processes of the Native American Graves Protection and Repatriation Act of 1990, enacted as human rights legislation, provide powerful, but imperfect tools for the protection of Native American cultural heritage. The challenges are both domestic and international. Recent French auction sales of Hopi, Zuni, and Navajo …

Illusory Borders: The Myth Of The Modern Nation-State And Its Impact On The Repatriation Of Cultural Artifacts, 15 J. Marshall Rev. Intell. Prop. L. 486 (2016), Lubna El-Gendi

UIC Review of Intellectual Property Law

While the current world order of independent nation-states may seem like a natural state that has existed for centuries, in reality, it is a relatively new development that was forged after the demise of imperial rule. Yet, the nation-state is the foundational entity of our current international political and legal framework. International treaties and relations are structured around the nation-state, which is recognized as the core entity in which rights are vested and on which obligations are imposed. This prioritization of the nation-state leads to issues when we consider the repatriation of cultural heritage, particularly in light of the history …

Amber Tears And Copyright Fears: The Inadequate Protection Of Cultural Heritage In The United States, 15 J. Marshall Rev. Intell. Prop. L. 543 (2016), Ingrida Latoza

UIC Review of Intellectual Property Law

The United States is comprised of many different cultural communities, each rich with expressions of language and custom. Cultural diversity promotes respect among individuals and harmonizes differences between communities—nationally and globally. Through the preservation of cultural heritage, diversity is maintained. Since World War II, with the exile of many from Lithuania, members of the Lithuanian-American community have strived to maintain the cultural heritage of their beloved homeland. After several decades, a Lithuanian-American cultural identity has developed, creating unique and individual traditions, adding to the cultural heritage of the United States as a whole. Most of the international community has adopted …

Incumbent Landscapes, Disruptive Uses: Perspectives On Marijuana-Related Land Use Control, Donald J. Kochan

Texas A&M Journal of Property Law

This Article is entirely agnostic with respect to the issue of whether we should or should not decriminalize, legalize, or otherwise increase legal tolerance for marijuana or any other drugs. One need not discuss these merits to process what property problems and possibilities might emerge when any of those law-relaxation efforts are enacted. But, as society seems to increasingly tolerate marijuana, we undoubtedly will encounter more pot-related property uses in need of analysis. We will be faced with both legal and political regulatory choices as we attempt to integrate the uses of properties associated with marijuana—for use, growing, cultivation, processing, …

A Genesis Of Conflict: The Zero-Sum Mindset, Jonathan R. Cohen

UF Law Faculty Publications

Parties in conflict often operate under the assumption that for one party to win, the other party must lose. This concept, known as the “zero-sum mindset,” can lead to undesirable results, both because it can make disputes harder to resolve and because people holding such beliefs are more likely to get into conflicts to begin with. Over the past several decades, legal educators specializing in dispute resolution have worked hard to challenge that mindset. This task is not simple, for framing conflict in zero-sum terms has very deep cultural roots tracing back at least to the Biblical stories in Genesis. …

The Confluence Of Gender And Poverty: The Shameful History Of The Trafficking Of Poor Persons For Sexual Exploitation, Jody Raphael

Indiana Journal of Law and Social Equality

No abstract provided.

The Temporal Rivalries Of Human Rights, Fleur E. Johns

Indiana Journal of Global Legal Studies

Nation-states' "boundaries" are produced in time: around official working hours and terms of office, for instance, and in the historicomythic "life of the nation." Global human rights practices affirm and depend on nation-states' temporal authority, while also calling that authority into question. In different ways, global markets do likewise. In recent decades, the ubiquity of both finance capital and international human rights law, among other factors, may have encouraged the fracturing of time into intervals of ever-decreasing length. Temporal authority premised on the long-term seems to have declining purchase, even as historicism and futurism abound, discouraging some modes of state-based …

One Pillar: Legal Authority And A Social License To Operate In A Global Context, Hans Lindahl

Indiana Journal of Global Legal Studies

The claim that businesses have a social license to operate acquires concrete form in the second pillar of the U.N. Guiding Principles on Business and Human Rights (UNGPs) in the fundamental distinction between "compliance with all applicable laws" and "respect for human rights." The aim of this paper is to critically examine the presuppositions that undergird this distinction and to explain how and why moving beyond state-centered thinking about law, in response to violations of human rights by globally operating businesses, requires acknowledging that there is one pillar that embraces states and businesses: the legal obligation to comply with international …

Hydropower Development And Involuntary Displacement: Toward A Global Solution, Ali Vancleef

Indiana Journal of Global Legal Studies

This Note addresses the effects of hydropower development projects on displaced persons globally. This Note recognizes that the increasing global energy demand puts great strain on nations to provide their people with electricity, but it also suggests that sustainable energy development projects can be carried out in a way that is fair to the indigenous populations surrounding hydropower dams. The current global trend in involuntary displacement involves ignoring certain groups of affected persons while undercompensating directly displaced persons, leading to homelessness, social stigmatization, and extreme poverty for millions of people worldwide. Thus far, there has been no sufficient global solution …

Mr. Peabody's Improbable Legal Intellectual History, Mark Fenster

UF Law Faculty Publications

Legal intellectual history, I suggest in this Paper, is the street sweeper in the parade of law’s history and its use of history. Lawyers and legal academics want great, important figures, cases, and theories with and against which they can do battle. The student-edited law reviews prefer bold, clear claims that explain why one answer to an historical question presented will bring justice, while a competing answer is manifestly unjust; why one past approach lacks principle or created worse consequences; or how one theory or another can explain all manner of thorny legal issues which bedevils academics and practitioners. Viewing …

The Appearance And The Reality Of Quid Pro Quo Corruption: An Empirical Investigation, Christopher Robertson, D. Alex Winkelman, Kelly Bergstrand, Darren Modzelewski

Faculty Scholarship

The Supreme Court says that campaign finance regulations are unconstitutional unless they target "quid pro quo" corruption or its appearance. To test those appearances, we fielded two studies. First, in a highly realistic simulation, three grand juries deliberated on charges that a campaign spender bribed a Congressperson. Second, 1271 representative online respondents considered whether to convict, with five variables manipulated randomly. In both studies, jurors found quid pro quo corruption for behaviors they believed to be common. This research suggests that Supreme Court decisions were wrongly decided and that Congress and the states have greater authority to regulate campaign finance. …

Trafficking In Narratives: Conceptualizing And Recasting Victims, Offenders, And Rescuers In The War On Human Trafficking, Sabrina Balmgamwalla

Law Faculty Research Publications

Anti-trafficking laws emerge from a complex historical context, shaped in no small part by public perception of this highly complex problem. This Article explores and questions the headlines and examples that drove anti-trafficking reforms over the past century. These "trafficking narratives" have stimulated and shaped the response to trafficking both globally and domestically and have powerful implications for the evolving framework of protection and punishment. Specifically, this Article argues that the roles of "victims," "offenders," and "rescuers" serve as proxies for racialized and gendered assumptions about trafficking, which in turn are reflected in anti-trafficking law and enforcement. This Article builds …

Meyer, Pierce, And The History Of The Entire Human Race: Barbarism, Social Progress, And (The Fall And Rise Of) Parental Rights, Jeffrey Shulman

UC Law Constitutional Quarterly

This article examines the significance of the United States Supreme Court decisions in Meyer v. Nebraska and Pierce v. Society of the Sisters under the backdrop of shifting views on what constitutes appropriate state regulation of education. On its face, the question of how a state may regulate education may not seem so controversial. However, the idea that the state could mandate public education and take children from their parents conflicted with traditional views of family autonomy and parental authority.

Progress would occur with the steady diminution of state authority, but under the guidance of the court. Part I of …

Res Extra Commercium And The Barriers Faced When Seeking The Repatriation And Return Of Potent Cultural Objects: A Transsystemic Critical Post-Colonial Approach, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

The repatriation and return of objects of cultural value are often linked to decolonization projects and efforts to repair past wrongs suffered as a result of colonialism. Yet significant barriers hinder these efforts. These barriers primarily take the shape of time limitations, diverging conceptions of property and ownership, the high costs involved, and the domestic export and cultural heritage laws of both the source country and the destination country. I argue that these barriers are relics of colonialism that replicate and perpetuate the continued imposition of Eurocentric and Western legal notions and values on subaltern source countries and source indigenous …

The High Cost Of Transferring The Dream, Kim Brooks

Articles, Book Chapters, & Popular Press

This paper is part of a larger project where I use the facts in tax decisions to reveal something about who we are. It looks through a small window into the lives of the people who find themselves caught between our collective and their individual expenditure aspirations. More specifically, it explores the circumstances in which individuals find that their outstanding tax debts pose a threat to their ability to maintain ownership of their home.

In this paper I use the facts of tax cases for two ends. First, I am interested in disrupting legal knowledge hierarchies. We choose cases to …

Frontlines: Policing At The Lexus Of Race And Mental Health, Camille Nelson

Scholarly Articles in Law Reviews & Journals

he last several years have rendered issues at the intersection of race, mental health, and policing more acute. The frequency and violent, often lethal, nature of these incidents is forcing a national conversation about matters which many people would rather cast aside as volatile, controversial, or as simply irrelevant to conversations about the justice system. It seems that neither civil rights activists engaged in the work of advancing racial equality nor disability rights activists recognize the potent combination of negative racialization and mental illness at this nexus that bring policing practices into sharp focus. As such, the compounding dynamics and …

Sovereignty And Indigenous Peoples In North America, Kent Mcneil

Articles & Book Chapters

This article examines the concept of sovereignty and its application in the context of European colonization of North America. It seeks to define sovereignty so as to avoid Eurocentric notions that denied sovereignty to Indigenous peoples. The article does this by distinguishing between defacto and de jure sovereignty: the former depends on actual possession and control of a territory, whereas the latter depends on the application of a particular legal system. Unlike de facto sovereignty, which is empirical, de jure sovereignty depends on a choice of law. Because more than one legal system can be applied to territories occupied by …

Placing Twail Scholarship And Praxis: Introduction To The Special Issue Of The Windsor Yearbook Of Access To Justice, Sujith Xavier, Amar Bhatia, Usha Natarajan, John Reynolds

Articles & Book Chapters

This Special Issue of the Windsor Yearbook of Access to Justice collects some of the written reflections of participants from the Third World Approaches to International Law [TWAIL] Conference held in Cairo, Egypt, from 21 to 24 February 2015. TWAIL is a loosely affiliated network of scholars and practitioners of international law and policy. TWAIL scholars and practitioners are animated by the relationship between the Global North and the Global South, and the ensuing disparities in wealth and health spurred on by processes of diverging and converging colonial and postcolonial histories.

Against Circumspection: Judges, Religious Symbols, And Signs Of Moral Independence, Benjamin Berger

Articles & Book Chapters

This chapter questions the interpretation of religious ­ signs and symbols— and the interpretive possibilities that emerge when we demand more from one another in thinking about such symbols— by ­ examining the question of judges and religious dress in the particular context of the judge’s role as wielding the coercive force of the state through the exercise of criminal punishment. I advance the argument that recent debates have proceeded on a misleadingly simplistic approach to understanding the meaning of signs of religious belonging and identity in this setting and that, with this, we miss an opportunity for a deeper …

An Empirical Research Agenda For The Forensic Sciences, Jonathan J. Koehler, John B. Meixner Jr.

Journal of Criminal Law and Criminology

After the National Academy of Sciences issued a stunning report in 2009 on the unscientific state of many forensic science subfields, forensic science has undergone internal and external scrutiny that it had managed to avoid for decades. Although some reform efforts are underway, forensic science writ large has yet to embrace and settle upon an empirical research agenda that addresses knowledge gaps pertaining to the reliability of its methods. Our paper addresses this problem by proposing a preliminary set of fourteen empirical studies for the forensic sciences. Following a brief discussion of the courtroom treatment of forensic science evidence, we …

Training For Bargaining, Jenny Roberts, Ronald F. Wright

Hofstra Law Faculty Scholarship

While plea bargaining dominates the practice of criminal law, preparation for trial remains central to defense attorneys' training. Negotiation is still peripheral to that training. Defense lawyers enter practice with little exposure to negotiation techniques and strategies in the plea bargaining context, the most significant skills they will use every day.

Empirical research on plea negotiations has concentrated on outcomes of negotiations rather than the process itself. Our multiphase field study examines the negotiation techniques that attorneys use during plea bargaining as well as their preparation and training for negotiation. This Article explores the data on the training aspects of …

The Inevitable Legal Pluralism Within Universal Harmonization Regimes: The Case Of The Cisg, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Faced with a world of multiple overlapping normative communities and jurisdictions, law often seeks universal rules and harmonization regimes. Such rules and regimes offer to tame pluralism through the imposition of common codes of conduct. The 1980 Convention on Contracts for the International Sale of Goods (CISG) is a useful example of this phenomenon. Arising from harmonization efforts dating back at least to the 1920s, the CISG purports to solve the problem of jurisdictional overlap and inconsistency in the application of domestic law to cross-border commercial transactions. To its back-ers, the CISG addresses intractable problems of legal uncertainty and forum …

Thugs, Crooks, And Rebellious Negroes: Racist And Racialized Media Coverage Of Michael Brown And The Ferguson Demonstrations, Bryan Adamson

Faculty Articles

The article explores how the media constructs news, and offers extensive history on the adverse narrative media tropes about Black men since colonial newspapers. Through qualitative and quantitative analysis of news narratives and images, this article demonstrates how Ferguson accounts emphasized Brown’s deviance and chaos and disorder. After offering comparative analysis of White criminality and protest news narratives, the article presses upon the social effects of racist and racialized media narratives. The article examines the controversy through First Amendment free speech, hate crimes, and true threat principles as well as FCC regulation of broadcasting, and media ownership. While explicating the …

Copyright In Pantomime, Brian L. Frye

Law Faculty Scholarly Articles

Why does the Copyright Act specifically provide for the protection of “pantomimes”? This Article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amended the Berne Convention to provide for copyright protection of “les pantomimes” and “entertainments in dumb show” in order to ensure copyright protection of silent motion pictures. Unfortunately, the original purpose of providing copyright protection to '“pantomimes” was forgotten. This Article argues that …

Notes From The Underground (Sometimes Aboveground, Too), Richard H. Underwood

Law Faculty Scholarly Articles

When I was invited by Savannah Law Review to be a panelist at The Walking Dead Colloquium at Savannah Law School, I thought . . . that’s no crazier than the Bob Dylan and the Law Symposium. I was compelled to accept.