Digital Commons Network^™

The Hostilities-Occupation Dichotomy And Cultural Property In Non-International Armed Conflicts, Anne-Marie Carstens

All Faculty Scholarship

No abstract provided.

Saving The Farm Or Giving Away The Farm: A Critical Analysis Of The Capital Gains Tax Preferences, Phyllis C. Taite

Faculty Articles

Over the years the topic of capital gain preferences has been thoroughly debated. Discussions range between whether the tax rates on capital gains should be raised, reduced, or repealed. Other discussions have centered on whether capital gains has an effect on the economy, and if so, how the research supports those assertions. It would be difficult to cover all aspects of the issues associated with capital gains taxes in one article; therefore this discussion will focus on capital gains as applied to individual income taxes. The capital gains tax has been criticized for the questionable effect it has on the …

A Meaningful Floor For "Meaningful Human Control", Rebecca Crootof

Law Faculty Publications

To the extent there is any consensus among States, ban advocates, and ban skeptics regarding the regulation of autonomous weapon systems (AWS), it is grounded in the idea that all weaponry should be subject to "meaningful human control." This "intuitively appealing" principle is immensely popular, and numerous States have explicitly declared their support for it or questioned the lawfulness of weapons that operate without such control. Lack of opposition has led some to conclude that it is either a newly developed customary norm or a preexisting, recently exposed rule of customary international law, already binding on all States.

But this …

Consent Is Not Enough: Why States Must Respect The Intensity Threshold In Transnational Conflict, Rebecca Crootof

Law Faculty Publications

It is widely accepted that a state cannot treat a struggle with an organized non-state actor as an armed conflict until the violence crosses a minimum threshold of intensity. For instance, during the recent standoff at the Oregon wildlife refuge, the U.S. government could have lawfully used force pursuant to its domestic law enforcement and human rights obligations, but President Obama could not have ordered a drone strike on the protesters. The reason for this uncontroversial rule is simple—not every riot or civil disturbance should be treated like a war.

But what if President Obama had invited Canada to bomb …

Change Without Consent: How Customary International Law Modifies Treaties, Rebecca Crootof

Law Faculty Publications

In 1903, Panama ceded its sovereign rights over the Panama Canal to the United States in perpetuity. The 1930 London Naval Treaty required submarines to comply with the contemporary law of war, including the prohibition on neutralizing enemy merchant vessels without having first ensured the safety of their passengers and crew. In 1945, the United Nations Charter prohibited its members from threatening or using force against another state, save for two limited exceptions. And, in 1969, Spain and Morocco concluded a permanent fisheries convention, setting the limit of their territorial seas at twelve miles.

Some of these treaties were bilateral …

War Torts: Accountability For Autonomous Weapons, Rebecca Crootof

Law Faculty Publications

Unlike conventional weapons or remotely operated drones, autonomous weapon systems can independently select and engage targets. As a result, they may take actions that look like war crimes—the sinking of a cruise ship, the destruction of a village, the downing of a passenger jet—without any individual acting intentionally or recklessly. Absent such willful action, no one can be held criminally liable under existing international law.

Criminal law aims to prohibit certain actions, and individual criminal liability allows for the evaluation of whether someone is guilty of a moral wrong. Given that a successful ban on autonomous weapon systems is unlikely …

Guiding Griswold: Reevaluating National Organizations' Role In The Connecticut Birth Control Cases, Allison Day

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Cutting Female Genital Mutilation From The United States: A European-Influenced Proposal To Alter State And Federal Legal Responses When Affording Relief To Somali Victims In Minnesota, Pooja Shah

Cardozo Journal of Equal Rights & Social Justice

The note advocates for a comprehensive legal and public health approach to combat Female Genital Mutilation (FGM) in the United States, particularly focusing on Somali immigrants in Minnesota. It highlights the inadequacies of current federal and state laws in addressing FGM and proposes a new legislative framework inspired by European models to strengthen penalties, improve enforcement, and raise awareness.

Children, Diane Marie Amann

Scholarly Works

This chapter, which appears in The Cambridge Companion to International Criminal Law (William A. Schabas ed. 2016), discusses how international criminal law instruments and institutions address crimes against and affecting children. It contrasts the absence of express attention in the post-World War II era with the multiple provisions pertaining to children in the 1998 Statute of the International Criminal Court. The chapter examines key judgments in that court and in the Special Court for Sierra Leone, as well as the ICC’s current, comprehensive approach to the effects that crimes within its jurisdiction have on children. The chapter concludes with a …

After The Golden Victory: Still Lost At Sea, Victor P. Goldberg

Faculty Scholarship

In The Golden Victory the House of Lords held that when determining damages for a repudiatory breach, in a conflict between the compensatory principle and finality, the former trumped. The decision was recently ratified by the Supreme Court in Bunge SA v. Nidera BV. The claim in this paper is that this was a mistake; properly conceived, there is no conflict. The contract should be viewed as an asset and compensation would entail determining the decline in value of that asset at the time of the breach. The value of the contract at that moment would reflect the possible effects …

Do Religious Exemptions Save?, Maimon Schwarzschild

Faculty Scholarship

No abstract provided.

Drawing Lines Among The Persecuted, Kate Evans

Faculty Scholarship

Should a victim of persecution be denied protection in the United States if his persecutors forced him to participate in their campaign of terror? In its 2009 decision, Negusie v. Holder, the Supreme Court recognized the “difficult line drawing problems” presented by this question, but failed to offer concrete guidance to the lower courts or the executive agencies charged with drawing those lines. Circuit courts employ a variety of standards, leaving the law in disarray.

This Article offers original historical research to argue that asylum seekers charged with participating in persecution should be afforded a duress defense. It traces the …

Obama's Aumf Legacy, Curtis A. Bradley, Jack Landman Goldsmith

Faculty Scholarship

No abstract provided.

The Dod Law Of War Manual And Its Critics: Some Observations, Charles J. Dunlap Jr.

Faculty Scholarship

The U.S. Department of Defense’s (DoD) new Law of War Manual has generated serious debate about its treatment of a variety of issues including human shields, the status of journalists, cyber operations, the precautions to be taken prior to attacks and even the role of honor in war. Although this article does not purport to be a comprehensive response to every critique of the Manual and, indeed, cites opportunities for its improvement, it nevertheless concludes that on balance the Manual provides an excellent, comprehensive and much-needed statement of DoD’s view of the lex lata of the law of war.

Towards A New International Law Of The Atmosphere?, Peter H. Sand, Jonathan B. Wiener

Faculty Scholarship

Inclusion of the topic ‘protection of the atmosphere’ in the current work programme of the UN International Law Commission (ILC) reflects the long overdue recognition of the fact that the scope of contemporary international law for the Earth’s atmosphere extends far beyond the traditional discipline of ‘air law’ as a synonym for airspace and air navigation law. Instead, the atmospheric commons are regulated by a ‘regime complex’ comprising a multitude of economic uses including global communications, pollutant emissions and diffusion, in different geographical sectors and vertical zones, in the face of different categories of risks, and addressed by a wide …

Why Declarations Of War Matter, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

American Military Culture And Civil-Military Relations Today, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

The Third Player-Illegal Combatant, Emanual Gross

San Diego International Law Journal

This Article will examine the current status of the international law of war with respect to terrorist organizations and their operatives. The central argument of this article is that international humanitarian law is unable to cope with the reality of international terrorism. The basic definitions of "combatant" and "civilian" are not suitable within the context of the age of terrorism. In the past, combatants were presumed to be either a member of a state, or in the alternative, freedom fighters expressing an idea of resistance against a colonial occupation. Terrorist organizations and their members are not freedom fighters, but rather, …

The Evolution Of China’S Legislation On Reproduction, Du Yifang

San Diego International Law Journal

This Article discusses how Chinas policy on reproduction developed from one that encouraged population growth to the very restrictive one-child policy. Part I discusses the factors underlying the establishment of the reproduction system after 1949. Part II analyzes the transition of national olicy and legislation over the period from 1980 to 2001 from encouraging to controlling childbirth. Part III discusses, in detail, the development and implementation of the one-child policy, and Part IV discusses the effects of this development. Finally, Part V explains the 2016 amendment to the Population and Family Planning Law in China, which abandoned the one-child policy.

No Good Options Against Isis Barbarism? Human Shields In 21st Century Conflicts, Charles J. Dunlap Jr.

Faculty Scholarship

One of the most vexing conundrums of 21st century warfare has been not just the explosive growth in the use of human shields, but the apparent systemization of the tactic, particularly by nonstate actors. In noting the international prohibition, the International Committee of the Red Cross (ICRC) defines the practice as the “intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.”

League Of The South's Internet Rhetoric: Neo-Confederate Community-Building Online, Brett A. Barnett

Journal of Hate Studies

A nationwide backlash against the Confederate flag and other Confederatesymbols occurred after the deadly June 17, 2015, church shootings inCharleston, South Carolina, when images of the alleged gunman displayinga Confederate flag surfaced. This backlash sparked a reactionary movementamong pro-Confederate supporters who viewed the attacks on Confederatesymbols as an affront to their Southern heritage. Some neo-Confederategroups exploited the backlash, and the pro-Confederate sympathy it generated,as an opportunity to build their communities. This essay examineshow the neo-Confederate group League of the South (LOS) used its websiteto attract members to its community in the week before the Confederateflag’s removal from South Carolina’s state …

Managing Cyber Risks, Kristin N. Johnson

Georgia Law Review

Cyber risks are as pervasive as the technology that facilitates their execution. The threat of cyber attacks or plots to deploy cyber weapons against critical government entities, private businesses and domestic and international infrastructure resources creates a most significant risk management concern. Pernicious,perilous and ubiquitous, cyber risks have merged as the newest risk management frontier. While the consequences of cyber attacks against individual financial institutions may be alarming, the interconnectedness of the largest financial institutions in the global economy and their shared dependence on technology render these businesses and the systems that execute their transactions shockingly vulnerable. Because of the …

Crowdwork, Corporate Social Responsibility, And Fair Labor Practices, Miriam A. Cherry, Winifred R. Poster

All Faculty Scholarship

Crowdwork, in which large numbers of workers find and perform paid tasks through online platforms, is a paradox. It can make job-matching and production processes more efficient, but it can also lead to a decline in labor standards. We seek to link ethical labor practices in virtual work with well-established notions of corporate social responsibility, that include concerns for worker well-being and fair treatment. We present a typology of trends in labour, and argue that the new phase of ‘crowdwork’ is distinct from previous eras of ‘industrial’ and ‘digital’ employment. The chapter then outlines three best practices for crowdwork. First …

Custom's Method And Process: Lessons From Humanitarian Law, Monica Hakimi

Faculty Scholarship

A central question in the literature on customary international law (CIL) goes to method: what is the proper method for “finding” CIL – that is, for determining that particular norms qualify as CIL? The traditional method is to identify a widespread state practice, plus evidence that states believe that the practice reflects the law (opinio juris). That method has long been criticized as incoherent, unworkable, and out of touch with modern sensibilities. Thus, much of the CIL literature addresses its perceived problems. The principal goals of this literature are to help resolve whether norms that are claimed to …

Autonomous Weapons Systems And Transparency: Towards An International Dialogue, Sarah Knuckey

Faculty Scholarship

The international debate around autonomous weapons systems (AWS) has addressed the potential ethical, legal and strategic implications of advancing autonomy, and analysis has offered myriad potential concerns and conceivable benefits. Many consider autonomy in selecting and engaging targets to be potentially revolutionary, yet AWS developments are nascent, and the debates are, in many respects and necessarily, heavily circumscribed by the uncertainty of future developments. In particular, legal assessments as to whether AWS might be used in compliance with the conduct of hostilities rules in international humanitarian law (IHL) are at present largely predicated upon a forecast of future facts, including …

Cyberwar, International Politics, And Institutional Design, Daniel Abebe

Faculty Scholarship

In the United States, the breadth of the president’s warmaking authority has been governed by the Constitution, the Supreme Court’s jurisprudence, and, over time, historical practice; in short, the president’s powers are constrained by a well-developed body of US foreign relations law. But the prospect of a new kind of conflict — cyberwar — potentially challenges the existing regulatory regime, which rests on assumptions that are common to traditional, conventional war. For some, the complexities of cyberwar generate new foreign relations–law questions about the president’s authority to engage in offensive cyberoperations, and they thus necessitate a new regulatory framework. For …

A "Barbarous Relic": The French, Gold, And The Demise Of Bretton Woods, Michael J. Graetz, Olivia Briffault

Faculty Scholarship

Since the time of the French Revolution, when a gold standard saved the nation from hyperinflation, France has wanted gold to be the linchpin of international monetary arrangements. And, indeed, from the earliest use of bills and coins as money until August 1971, money was, in principle at least, a claim on gold.

At Bretton Woods, New Hampshire, where in July 1944 730 delegates from 44 countries met to create the post-war international financial order, the French argued that gold – which John Maynard Keynes had described two decades earlier as a “barbarous relic” – was the key to international …

Justice Scalia, The 2016 Presidential Election, And The Future Of Church-State Relations, Marci A. Hamilton

Articles

No abstract provided.

From Cause To Responsibility: R2p As A Modern Just War, Zamaris Saxon, Lara Pratt

The University of Notre Dame Australia Law Review

This article examines the relationship between just war theory and the modern principle of responsibility to protect (R2P). In the absence of the principle’s clear use as a justification for the use of force, this article considers two situations which prompted debate about the applicability of the principle - the UN Security Council authorised no-fly-zone in Libya in 2011 and the decision not to use force in Syria in 2012. The article’s core message is that the debates about R2P suggest that rather than view R2P as a ‘new’ principle of international law, it should be viewed as a modern …

Submarine Cables, Cybersecurity And International Law: An Intersectional Analysis, Tara Davenport

Catholic University Journal of Law and Technology

No abstract provided.