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Legal Education In Transition: Trends And Their Implications, Michael A. Millemann, Sheldon Krantz

Faculty Scholarship

This is a pivotal moment in legal education. Revisions in American Bar Association accreditation standards, approved in August 2014, impose new requirements, including practice-based requirements, on law schools. Other external regulators and critics are pushing for significant changes too. For example, the California bar licensing body is proposing to add a practice-based, experiential requirement to its licensing requirements, and the New York Court of Appeals, New York’s highest court, is giving third-year, second semester students the opportunity to practice full-time in indigent legal services programs and projects. Unbeknown to many, there have been significant recent changes in legal education that …

The Failure Of Environmental International Law During Times Of War, Blake Lara

University of Baltimore Journal of Land and Development

Throughout history, war and armed conflict have maintained a continuous presence around the world. Though the reasons for war change, various nations emerge and subside, and populations alter, one of the constant elements of war is its degrading effect on the environment. In addition to indirect effects on the environment that ultimately result from war, nations have used the environment as both a weapon and target of war. For example, during the Peloponnesian War, the Spartans salted Athenian lands to make them infertile. In the Franco-Dutch War from 1672 to 1678, dikes and damns were destroyed in order to create …

Of Drones And Justice: A Just War Theory Analysis Of The United States' Drone Campaigns, Ethan A. Wright

Richard T. Schellhase Essay Prize in Ethics

No abstract provided.

The Changing Function And Structure Of International Law, Joel P. Trachtman

Florida State University Journal of Transnational Law & Policy

No abstract provided.

The Protection Of Conscience: On Aca, Rfra And Free Exercise Guarantees, Mark Strasser

Tennessee Law Review

No abstract provided.

A Word On The Third: Three Approaches To The Third Amendment's Place In Constitutional Rhetoric, Gabriel Latner

Tennessee Law Review

"War is not a courtesy but the most horrible thing in life; and we ought to understand that, and not play at war. We ought to accept this terrible necessity sternly and seriously."

"[The Constitutional Amendment prohibiting forced quartering except in times of] War, (ooh, yeah, good God y'all), what is it good for?"

- War & Peace by Leo Tolstoy and Edwin Starr

An Unavoidably Brief Historiography Of The Third Amendment, Scott D. Gerber

Tennessee Law Review

"For the record, many of my colleagues, after learning that I was to speak on the Third Amendment, sheepishly asked me what the Third Amendment is."

-Morton J. Horwitz in Valparaiso University Law Review

"The earliest efforts to curb the abuses relating to the involuntary quartering of soldiers appeared in the charters of towns and boroughs. Examples of those early enactments included Henry I's London Charter of 1130, which contained the passage '[1]et no one be billeted within the walls of the city, either of my household, or by force of anyone else . .. .' Those charters were the …

Cpa Dictates On Iraq: Not An Update To The Customary International Law Of Occupation But The Nucleus Of Blowback With The Emergence Of Isis, Robert Bejesky

Syracuse Journal of International Law and Commerce

No abstract provided.

The Legitimacy Of Administrative Law, Jed Handelsman Shugerman

Tulsa Law Review

Reviewing Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940; Joanna Grisinger, The Unwieldy American State: Administrative Politics Since the New Deal; Philip Hamburger, Is Administrative Law Unlawful?; Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law; and Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940.

End The Popularity Contest: A Proposal For Second Amendment "Type Of Weapon" Analysis, Cody J. Jacobs

Tennessee Law Review

The Supreme Court's recognition in District of Columbia v. Heller of an individual Second Amendment right to bear arms for self defense raised many questions about the scope of that right. One issue that will become increasingly important in the years ahead, but that has received relatively little attention from scholars and courts, is the question of which "arms" are protected by that right. Heller purports to establish a test that asks whether the weapon at issue is in "common use" at the time the case is decided. This Article critiques that test, arguing that it creates poor incentives, is …

Are Juvenile Gang Members Victims Of Labor Trafficking?, Christina M. Rizen

Children's Legal Rights Journal

No abstract provided.

School Shooting Simulations: At What Point Does Preparation Become More Harmful Than Helpful?, Lauren Rygg

Children's Legal Rights Journal

No abstract provided.

The First Century Of Right To Arms Litigation, David B. Kopel

Sturm College of Law: Faculty Scholarship

This Article examines state court cases involving the right to arms, during the first century following ratification of the Amendment in 1791. This is not the first article to survey some of those cases. This Article includes additional cases, and details the procedural postures and facts, not only the holdings. The Article closely examines how the Supreme Court integrated the nineteenth century arms cases into Heller and McDonald to shape modern Second Amendment law.

Part I briefly explains two English cases which greatly influenced American legal understandings. Semayne’s Case is the foundation of “castle doctrine” — the right to home …

Legal Problems In Data Management: The Impact Of International Data Restriction Laws On U.S. Companies, 31 J. Marshall J. Info. Tech. & Privacy L. 609 (2015)

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Who Was Sherem?, A Keith Thompson

Law Papers and Journal Articles

The Book of Mormon’s first anti-Christ, Sherem, “came among” the Nephites before their first generation was ended. Because he was an eloquent believer in the Law of Moses, there has been a variety of surmise as to his background. Was he a Lamanite, or a Jaredite or Mulekite trader? Was his presence among the separated Nephites evidence of early interaction between the Nephites and other civilisations in Nephite lands from the time of their first arrival? This short article reviews the various suggestions about Sherem’s identity and suggests he was most likely a descendant of the original Lehite party but …

The Cyber Civil War, Eldar Haber

Hofstra Law Review

Public and private actors engage in cyber warfare. In the private field, the role of individuals is rather limited: Individuals are usually either hackers or targets of cyber crimes. This paradigm could change soon, as individuals might now face a new threat: Information. In 2014, a group of hackers launched a cyber attack on Sony Pictures Entertainment, and released, inter alia, personally identifiable information on their employees, including email correspondence and information about executive salaries. This incident revealed a terrifying new reality: Cyber attacks could result in a revelation of our entire personal information held by third parties. Emails, search …

Ethical, Legal, Social, And Policy Issues In The Use Of Genomic Technology By The U.S. Military, Maxwell J. Mehlman, Tracy Yeheng Li

Case Western Reserve Journal of International Law

No abstract provided.

Rape By Any Other Name: Mapping The Feminist Legal Discourse Regarding Rape In Conflict Onto Transitional Justice In Cambodia, Sarah Diebler

American University International Law Review

No abstract provided.

Talking Foreign Policy, Michael P. Scharf

Case Western Reserve Journal of International Law

No abstract provided.

Protecting Ancient Heritage In Armed Conflict: New Rules For Targeting Cultural Property During Conflict With Isis, Hannah G. He

Maryland Journal of International Law

No abstract provided.

Three Arguments About War, Robert Tsai

Scholarly Articles in Law Reviews & Journals

The rise of the United States as a military power capable of mounting global warfare and subduing domestic rebellions has helped produce a corresponding shift in the language of liberal constitutionalism. Arguments invoking war have become prevalent, increasingly creative and far-reaching, and therefore an emerging threat to rule of law values. It is not only legal limits on the capacity to wage war that have been influenced by the ascendance of war-inspired discourse; seemingly unrelated areas of law have also been reshaped by talk of war, from the constitutional rules of criminal procedure to the promise of racial and sexual …

Trade Secret Hacking, Online Data Breaches, And China’S Cyberthreats, Peter K. Yu

Cardozo Law Review de•novo

Taking advantage of the forum provided by this timely Symposium, this Article closely examines the ongoing debate on China’s sustained effort in using online hacking and other intrusive techniques to steal trade secrets and proprietary data from U.S. businesses. Part I outlines the five common narratives that have thus far been advanced to recount this widely criticized effort. Sensing the narratives’ negative overtones, Part II offers five modest suggestions on how a more positive debate can be constructed to help identify ways to reduce online hacking and data breaches as well as to enhance the protection of trade secrets and …

Military Law: Time To Mandate Best Interests Of The Child To Restrict Deployments Of Parents That Affect Preschool Children, John A. Lynch Jr.

All Faculty Scholarship

As America viewed the first massive deployment of its all-volunteer force at the beginning of the first Persian Gulf War, one journalist commented:

When this war is over, Americans need to do some serious thinking about the all-volunteer armed forces, the one legacy of the Vietnam War with which the nation seemed comfortable. Among other things, we have to decide whether a single parent, and, in many cases, both parents, should be deployed in war zones.

Is the nation's reliance on an army of volunteers worth the emotional grief that comes from ripping military parents away from their children? Do …

Cyberwar, International Politics, And Institutional Design, Daniel Abebe

University of Chicago Law Review

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 necessi-tate a new regulatory framework. For others, cyberwar is not …

Checks And Balances From Abroad, Ashley Deeks

University of Chicago Law Review

Judicial and scholarly discussions about checks and balances almost always focus on actions and reactions by domestic actors. At least in the intelligence area, however, foreign actors can have direct and indirect influences on US checks and balances. New national-security challenges require increased cooperation with foreign intelligence partners. Leaks and voluntary transparency mean that far more information is publicly available about intelligence missions. And robust legal rules now bind the United States and other Western intelligence services. These changes create opportunities for foreign leaders, citizens, corporations, and peer intelligence services to affect the quantum of power within the executive or …

The Mutual Dependency Of Force And Law In American Foreign Policy, Richard A. Epstein, Mario Loyola

University of Chicago Law Review

A successful American grand strategy requires a close integration of interna-tional and domestic institutions and practices. This Essay explores the vital inter-dependence of grand strategy and law, both international and domestic. First, it asks how the United States should formulate its foreign policy strategy by pointing to the three primary components that must be deployed in tandem to forge a suc-cessful American foreign policy—persuasion, inducements, and force. Second, this Essay shows that in light of the distribution of powers between the president and Congress, and within the executive branch, the execution of that strategy requires a high level of bipartisan …

Constitutional Implications Of The Cost Of War, Lucas Issacharoff, Samuel Issacharoff

University of Chicago Law Review

Institutional practices evolve to fill gaps in all constitutional blueprints. One of the underappreciated features of the initial constitutional settlement of war powers was the accountability of the executive through the process of budgetary authorization and the corresponding need for Congress to answer to the citizenry for the tax implications of military expenditures. This political accountability is more complex than often described, consisting not merely of the division of the Declare War and Commander-in-Chief Clauses of Article I and Article II, but also of the temporal limitation of the budgetary power for the army and a variety of practical and …

The Norm Against Economic Espionage For The Benefit Of Private Firms: Some Theoretical Reflections, Samuel J. Rascoff

University of Chicago Law Review

For decades, the American intelligence community has adhered to a norm against spying for the sake of enriching private firms. More recently, the norm has figured in a prominent presidential directive as well as in various international agreements. But notwithstanding its durability and its newfound renown, the norm has largely eluded scholarly consideration. In this Essay, I aim to address that gap by showing how theories of agency capture and institutional culture can help make sense of the norm’s past and inform judgments about its future.

Fall Symposium On The 2001 And 2002 Authorization For The Use Of Military Force Resolutions And Their Relevance To The Current Military Operations Against The Islamic State In Iraq And Syria, Harvey Rishikof

American University National Security Law Brief

No abstract provided.

The Legitimacy Of Administrative Law, Jed H. Shugerman

Faculty Scholarship

Reviewing Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940; Joanna Grisinger, The Unwieldy American State: Administrative Politics Since the New Deal; Philip Hamburger, Is Administrative Law Unlawful?; Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law; and Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940.