Digital Commons Network^™

Respecting The Identity And Dignity Of All Indigenous Americans, Bill Piatt

Faculty Articles

The United States government attempted to eliminate Native Americans through outright physical extermination and later by the eradication of Indian identity through a boarding school system and other "paper genocide" mechanisms. One of those mechanisms is the recognition of some Natives but not the majority, including those who ancestors were enslaved. The assistance provided to recognized tribes by the government is inadequate to compensate for the historical and continuing suffering these people endure. And yet the problem is compounded for those unrecognized Natives whose ancestors were enslaved and whose tribal identity was erased. They are subjected to a double-barreled discrimination. …

Miserable Comforts Or Concrete Protections: Human Rights Conventions, Treaties, Declarations, And The Rights Of Indigenous/Othered Communities—Quo Vadis?, Emeziem, Cosmas

Santa Clara Journal of International Law

It has become an annual ritual for the world—especially through the United Nations (UN)—to organize events and activities celebrating Indigenous Peoples.1 Further to this disposition, the UN has adopted a Declaration on the Rights of Indigenous Peoples.2 Equally, it is now fashionable, to include the needs, and questions, affecting indigenous peoples in our development programs and climate action activities—albeit sometimes as an addendum to the mainstream policies.3 The Sustainable Development Goals (SDGs), and the current prominence of Diversity, Equity, and Inclusion (DEI), and decolonialization language in international policy briefs, give further credence to this apparent commitment to the rights of …

Action Pénale Et Action Disciplinaire: The Origins And Current Activities Of The Criminal And Disciplinary Law Committee Of The International Society For Military Law And The Law Of War, Frank Rosenblatt

Journal Articles

The pinnacle events of the International Society for Military Law and the Law of War (ISMLLW, or Society) are the Congresses. Occurring triennially, the Congresses are the Society’s largest meetings and academic exchanges. The Congresses usually attract hundreds of participants – especially military legal officers, academics, and government officials – from countries around the world. The Congresses, more than any other fora, have grown to become the places to ‘see and be seen’ and to exchange ideas on military law and the law of war.

Managing Cybersecurity And Technology Appropriation Threats To International Investment: Trust Or Verify, Joel P. Trachtman

The International Lawyer

No abstract provided.

Back To Air In Disarray?: Disparity In Practices And Interpretations On Adizs Disrupting The Safety Of Civil Aviation, Sanghoon Lee

Journal of Air Law and Commerce

The interconnectivity of civil aviation has been long praised with the success of the International Civil Aviation Organization (ICAO) in harmonizing navigation standards and procedures, along with the utilization of Flight Information Regions (FIRs). However, continuing geopolitical tensions with different implementations of Air Defense Identification Zones (ADIZs) have belittled the technical achievement. Among different State practices, some ADIZs have expanded beyond territorial airspace and even overlapped with other FIRs, requiring overflying air- craft to submit flight plans and abide by procedures separate or in addition to air traffic control obligations.

The purpose of this Article is to review the ongoing …

Decitizenizing Asian Pacific American Women, Shoba Sivaprasad Wadhia, Margaret Hu

Faculty Scholarship

The Page Act of 1875 excluded Asian women immigrants from entering the United States, presuming they were prostitutes. This presumption was tragically replicated in the 2021 Atlanta Massacre of six Asian and Asian American women, reinforcing the same harmful prejudices. This Article seeks to illuminate how the Atlanta Massacre is symbolic of larger forms of discrimination, including the harms of decitizenship. These harms include limited access to full citizenship rights due to legal barriers, restricted cultural and political power, and a lack of belonging. The Article concludes that these harms result from the structure of past and present immigration laws …

The Direct-Derivative Distinction, The Special Litigation Committee, And The Uniform Act: A Response To Professor Weidner, Daniel S. Kleinberger

Faculty Scholarship

The Unfortunate Role of Special Litigation Committees in LLCs has a deeply pejorative view of the Uniform Law Commission “second generation” limited liability company act, and that view extends far deeper than the target suggested by the article’s title. The article’s fundamental attack is on the distinction between direct and derivative claims; the criticisms of ULLCA’s provisions on special litigation committees depend on that attack. In support of its wide-ranging attack, The Unfortunate Role seeks to marshal history, policy, logic, and a research study pertaining to the outcome of derivative claims. Unfortunately, however, the article (i) misapprehends the drafting history …

Constitutional Small Talk, Jason Mazzone

Constitutional Commentary, Vol. 37 and later (2023–present)

No abstract provided.

The Reign Of Constitutional Positivism: Revolution Reconceived In The New Constitutional Age, Ming-Sung Kuo

Constitutional Commentary, Vol. 37 and later (2023–present)

No abstract provided.

Can Environmental Law Solve The "Forever Chemical" Problem?, Mark P. Nevitt, Robert V. Percival

Faculty Articles

Although federal environmental law purports to provide the public with comprehensive protection against chemical risks, the U.S. chemical industry is characterized by self­ regulation. This self-regulation is exemplified by the dangers posed by per- and polyfluoroalkyl substances (''PFAS'')­ broad classes of persistent toxic substances that have now entered nearly every American's bloodstream and hundreds of public drinking water systems. Despite data linking exposure to these "forever chemicals" to cancer, infertility, and a host of other public health harms, environmental law has failed to safeguard the American people from PFAS' toxic legacy. How did this occur? And what should be done …

Every 66 Hours. Dead Or Disappeared. A Colonial Gendered Lens On Genocide: Case Study On Canada's Genocide Against Indigenous Women, Girls, And 2slgbtqqia People, Megan Uren

Denver Journal of International Law & Policy

Genocide is happening today, and it will be happening tomorrow. It is not yet time to tell volunteers to stop dredging the Red River for dead bodies of Indigenous women and girls nor time for red dresses to stop being hung on the Highway of Tears. There are dead bodies in the water. There are missing bodies who were taken along wooded highways...

This article evaluates the current rates of violence against Indigenous women in Canada within (1) the greater context of an ongoing colonial genocide against Indigenous peoples and (2) with a narrow-gendered lens on women. First, I will …

Antitrust Reformers Should Consider The Consequences Of Mandatory Treble Damages: What The Admonition Against Putting New Wine In Old Wineskins Can Teach Us About Antitrust Reform, Henry J. Hauser, Tiffany L. Lee, Thomas G. Krattenmaker

Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)

No abstract provided.

Tech Accountability In Face Of Genocide: Gambia V. Facebook, Laurie Kim

Emory International Law Review

The exigent nature of genocide, inherent costs of litigation that may impede ongoing investigations, and general reluctance of tech companies toward international data disclosure underscore the need for states and intergovernmental organizations to enforce more expedient discovery procedures for cases involving crimes against humanity. The discovery case between the Gambia and Facebook illustrates how the current legal framework regulating international data disclosures is ill-equipped to nimbly address the exigence of genocide in Myanmar.

Existing bilateral agreements and multilateral treaties overseeing international data disclosure should be amended to compel third-party internet service providers to disclose information in the extreme and exigent …

The New Slot Machine: An International Perspective On Why The United States Should Learn To Stop Loving The Loot Box, Ajay Harish

Emory International Law Review

Games of chance are woven into the fabric of human culture. Rapid shifts in technology have resulted in the creation of the loot box, a new video game monetization scheme formed from the dregs of slot machines and trading cards. While extremely lucrative, the existence of loot boxes allows game companies to expose children to wager-like behavior, potentially creating a new generation of problem gamblers. The United States is both financially and culturally tied to video games as an industry and has been slow in its regulation of loot boxes. Given the problematic nature of loot boxes, existing regulations in …

Rural Estrangement And The Regulatory State, Ann M. Eisenberg

Faculty Publications

In today’s polarized social and political climate, rural alienation from government is often dismissed as “just more politics” or a symptom of problematic cultural norms. This Article takes rural disaffection from government seriously, with a focus on rural relationships with the federal regulatory state. The Article argues that rural disaffection from the regulatory state is not solely a cultural or political phenomenon among white conservatives. Rural disaffection is also a broader structural issue that stems in part from the regulatory state’s crisis of legitimacy.

Two factors show that rural disaffection from the regulatory state is more diffuse and profound than …

The Racist Roots Of The War On Drugs & The Myth Of Equal Protection For People Of Color, Steven A. Ramirez, Andre Douglas Pond Cummings

Faculty Publications & Other Works

By 2021, the costs and pain arising from the propagation of the American racial hierarchy reached such heights that calls for anti-racism and criminal justice reform dramatically expanded. The brutal murder of George Floyd by the Minneapolis police vividly proved that the social construction of race in America directly conflicted with supposed American values of equal protection under law and notions of basic justice. The racially-driven War on Drugs (WOD) fuels much of the dissonance between American legal mythology—such as the non-discrimination principle and the impartial administration of the rule of law—and the reality of race in the United States. …

Denying The Violence: The Missing Constitutional Law Of Conquest, Juan F. Perea

Faculty Publications & Other Works

If against these Indians, the end proposed should be their extermination, or their removal beyond the lakes or Illinois [R]iver. The same world will scarcely do for them and us. —Thomas Jefferson to George Rogers Clark, 1780

The United States committed at least two original sins. The one, slavery, is well known. The other, conquest, is both obvious and unknown at the same time.

The fact of conquest is proven by the sheer magnitude of the land transfer from indigenous people to white Americans. Before the conquest, native Americans possessed all 1.9 billion acres of the continental United States. After …

A Considered African American Philosophy And Practice Of Arms, Nicholas J. Johnson

Faculty Scholarship

In the spring of 1963, Holmes County, Mississippi voting rights activist Hartman Turnbow fought off a terrorist attack on his home with his sixteen-shot semiautomatic rifle. Later, Turnbow explained that his gunfire was perfectly consistent with the nonviolent philosophy of the freedom movement, declaring, “I wasn’t being non-nonviolent, I was protecting my family.” Turnbow embraced armed self-defense and political nonviolence without any sense of contradiction. In this, he channeled a generations-old practice and philosophy of arms that was an integral part of Black response to racist terrorism, mobbing, state failure, and majoritarian tyranny.

Ai & Arms Control: The Cold War Continued, Robert Sobon

Student Works

No abstract provided.

The Billionaire Space Race: Can Biden Bridle Bezos?, Rachel Jacob

Student Works

No abstract provided.

“Bomb First, Ask Congress Later”: A Proposal To Rebalance War Powers Between The President And Congress, Christopher Camaj

Student Works

No abstract provided.

West Egg Versus East Egg: The Superficial Distinctions And Double Standards Of Cannabis Use, Valerie L. Murphy

Student Works

No abstract provided.

Siege Starvation: A War Crime Of Societal Torture, Tom Dannenbaum

Chicago Journal of International Law

A recent amendment to the Rome Statute of the International Criminal Court has drawn unprecedented attention to the war crime of starvation of civilians as a method of warfare. It comes at a time when mass starvation in war is resurgent, devastating populations in Yemen, Ethiopia, Syria, South Sudan, Nigeria, and elsewhere. The practice has also drawn the scrutiny of the United Nations Security Council. And yet, despite this heightened profile and sharpened urgency, what precisely is criminally wrongful about starvation methods remains underspecified.

A common way of thinking about the criminal wrong is as a form of killing or …

Effectiveness Of The Existing International Humanitarian Law Provisions In Protecting The Natural Environment During Internal Armed Conflicts, Joharah M. Alkahtani

Dissertations & Theses

The environment is inherently at risk in any armed conflict and the natural environment is always a victim of wars. In order to properly protect the environment, the international community must explicitly recognize the civilian nature of the environment and bar all damages to it notwithstanding its extent, longevity and severity. The current study focuses on the environmental protection during armed conflicts. In World War I, parties employed the indiscriminate use of chemical weapons as a way of gaining military advantage over their enemies. The world responded by adopting the Convention on the Prohibition of the Development, Production, Stockpiling and …

The Trial Of Cinque - Steven Spielberg's Amistad, Jonathan Van Patten

Faculty Publications

No abstract provided.

War Torts, Rebecca Crootof

Law Faculty Publications

The law of armed conflict has a built-in accountability gap. Under international law, there is no individualized remedy for civilians whose property, bodies, or lives are destroyed in war. Accountability mechanisms for civilian harms are limited to unlawful acts: Individuals who willfully target civilians or otherwise commit serious violations of international humanitarian law may be prosecuted for war crimes, and states that commit internationally wrongful acts must make reparations under the law of state responsibility. But no entity is liable for lawful but unintended harmful acts—regardless of how many or how horrifically civilians are hurt.

This Article proposes developing an …

Mass Arbitration, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

For decades, the class action has been in the crosshairs of defense-side procedural warfare. Repeated attacks on the class action by the defense bar, the U.S. Chamber of Commerce, and other defense-side interest groups have been overwhelmingly successful. None proved more successful than the “arbitration revolution”—a forty- year campaign to eliminate class actions through forced arbitration provisions in private contracts. The effects for civil justice have been profound. Scores of claims vanished from the civil justice landscape—claims concerning civil rights, wage theft, sexual harassment, and consumer fraud. The effects for social justice, racial justice, gender justice, and economic justice were …

An Uncomfortable Truth: Law As A Weapon Of Oppression Of The Indigenous Peoples Of Southern New England, James D. Diamond

Roger Williams University Law Review

No abstract provided.

Vulnerable Populations: Climate Change And Extreme Weather Threats Facing Urban Communities, Kara Consalo

Journal Publications

This article explores increasing extreme weather threats facing American cities due to global climate change, including hurricanes, floods, heat waves, and wildfires. After explanation of such threats, the paper delves into case studies of the response and resiliency measures being undertaken by three preeminent coastal American cities to prepare for weather disasters: New York, Miami, and San Francisco. The paper concludes by providing guidance and recommendations for urban policymakers seeking to develop resiliency measures in the face of long-term effects and short-term emergencies created by climate and weather extremes. Such recommendations include how to initiate and fund development of climate …

Bias And Biometrics: Regulating Corporate Responsibility And New Technologies To Protect Rights, Erika R. George

Notre Dame Journal of International & Comparative Law

No abstract provided.