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Present And Future Conceptions Of The Status Of Government Forces In Non-International Armed Conflict, Sean Watts

International Law Studies

No abstract provided.

War And Peace: Where Is The Divide?, Charles Garraway

International Law Studies

No abstract provided.

An End To The Violence: Justifying Gender As A "Particular Social Group", Suzanne Sidun

Pepperdine Law Review

No abstract provided.

International Financial Standards And The Explanatory Force Of Lex Mercatoria, Cally Jordan

Faculty Papers & Publications

The global financial crisis has cast a strong light on some hitherto obscure corners of the financial world, provoking an outpouring of calls for concerted international action. “Hard law” having disappointed, can “soft law”, in the form of international financial standards, substitute for traditional national legislation. This article examines some of the difficulties associated with the “international standards as soft law” discourse.

First of all, conceptual problems in the “soft law” discourse itself reveal profoundly different patterns of legal thought cutting across national boundaries, resulting in different understandings of international financial standards. Secondly, recent experience, over the past decade, with …

Don't Ask, Don't Tell: Employment Discrimination As A Means For Social Cleansing, E. Gary Spitko

Faculty Publications

In December 2010, President Barack Obama signed into law the “Don’t Ask, Don’t Tell Repeal Act of 2010,” which provided for repeal of the policy prohibiting gay people from serving openly in the military, after consideration of a Department of Defense review on the implementation of such a repeal. This article examines the history of the exclusion of openly gay people from military service in the United States from the early twentieth century up until the time of the repeal. The author concludes from this review that the dominant purpose of the military’s exclusion of openly gay people was to …

Newsletter Summer 2012

Newsletter

No abstract provided.

How Puppet Masters Create Genocide: A Study In The State-Sponsored Killings In Rwanda And Cambodia, Joel H. Feigenbaum

University of Miami National Security & Armed Conflict Law Review

This paper calls on the United States to assess where its true interests lie in evaluating genocide and mass killings. Through an examination of the social and political factors which were paramount in bringing about the atrocities in Cambodia in the late 1970s and Rwanda in the mid-1990s, the U.S. is urged to take heed of the tried-and-true methods used by ruthless regimes throughout history in bringing about the destruction of their own citizenry. Consideration of the psychological imperatives necessary for ordinary men or women to depart from the standard boundaries of civilized society and butcher their neighbors and countrymen …

Silent Partners: Private Forces, Mercenaries, And International Humanitarian Law In The 21st Century, Steven R. Kochheiser

University of Miami National Security & Armed Conflict Law Review

In response to gritty accounts of firefights involving private forces like Blackwater in Iraq and Afghanistan, many legal scholars have addressed the rising use of private forces——or mercenaries——in the 21st century under international law. Remarkably, only a few have attempted to understand why these forces are so objectionable. This is not a new problem. Historically, attempts to control private forces by bringing them under international law have been utterly ineffective, such as Article 47 of Additional Protocol II to the Geneva Conventions. In Silent Partners, I propose utilizing the norm against mercenary use as a theoretical framework to understand at …

Reevaluating Itar: A Holistic Approach To Regaining Critical Market Share While Simultaneously Attaining Robust National Security, Justin Levine

University of Miami National Security & Armed Conflict Law Review

This note considers the application of the International Traffic and Arms Regulations (““ITAR””) framework and proposes statutory and policy modifications to promote both national security and industry growth. ITAR is the regulatory framework that controls the export of munitions and defense technologies from the United States. However, as applied, free trade is now grossly over-regulated to such an extent that both significant market share and industry opportunity have been lost and national security itself has simultaneously been threatened. Due to heavy restrictions, many previous industry partners are now looking elsewhere for trade and systematically avoiding the United States for inclusion …

The Au Convention On Refugees And The Concept Of Asylum, Cristiano D'Orsi

Pace International Law Review Online Companion

This article analyzes several specific aspects of the current refugee legal regime in Sub-Saharan Africa in order to assess how the institution of asylum, considered the traditional solution for both individuals and groups who are obliged to flee their countries of citizenship, is legally perceived and applied. The analysis will focus on the 1969 African Union Convention Governing the Specific Aspects of Refugee Problems in Africa, the pillar for refugee protection in SSA and "considered the most generous and flexible international agreement on refugee protection."

The Fog Of War Reform: Change And Structure In The Law Of Armed Conflict After September 11, Peter Margulies

Marquette Law Review

Salim Hamdan’s conviction in a military commission for material support of Al Qaeda separates utilitarians, who generally defer to state power, from protective theorists, who seek to shield civilians by curbing official discretion. Utilitarians view military commissions as efficient means for trying suspected terrorists. Protective theorists criticize the amorphous nature of material support charges.

The clash between utilitarians and protective theorists colors other issues, including “enhanced” interrogation and limits on targeting. Protective theorists merit praise for their scrutiny of interrogation. In contrast, utilitarians have trivialized interrogation abuses. However, protective theorists’ scrutiny of states is burdened by hindsight bias. Failing to …

Who Decides On Security?, Aziz Rana

Cornell Law Faculty Publications

Despite over six decades of reform initiatives, the overwhelming drift of security arrangements in the United States has been toward greater—not less— executive centralization and discretion. This Article explores why efforts to curb presidential prerogative have failed so consistently. It argues that while constitutional scholars have overwhelmingly focused their attention on procedural solutions, the underlying reason for the growth of emergency powers is ultimately political rather than purely legal. In particular, scholars have ignored how the basic meaning of "security" has itself shifted dramatically since World War II and the beginning of the Cold War in line with changing ideas …

Toward A Situational Model For Regulating International Crimes, Andrew K. Woods

Law Faculty Scholarly Articles

The international criminal regime, as currently conceived, relies almost exclusively on the power of backward-looking criminal sanctions to deter future international crimes. This model reflects the dominant mid-century approach to crime control, which was essentially reactive. Since then, domestic criminal scholars and practitioners have developed and implemented new theories of crime control—theories notable for their promise of crime prevention through ex ante attention to community and environmental factors. Community policing crime prevention through environmental design, and related "situational" approaches to crime control have had a significant impact on the administration of domestic criminal law.

This Article evaluates the implications of …

Cover & Front Matter

Journal of Strategic Security

No abstract provided.

War Without Violence: Leveraging The Arab Spring To Win The War On Terrorism, Pat Proctor

Journal of Strategic Security

After a decade of war, the United States has failed to eradicate the threat of salafist jihadism. No matter how hard it tries, the United States cannot kill its way to victory in the war on terrorism. Sweeping changes across the Middle East—dubbed the "Arab Spring" by the media—have presented the West with a unique opportunity to pursue an alternative approach. Rather than engaging in war (politics through violence), the United States should engage in mass politics (war without violence) to compel the Arab world to reject the salafist jihadism idea. This article proposes a strategy calibrated to defeat international …

Hugo Black’S Vision Of The Lawyer, The First Amendment, And The Duty Of The Judiciary: The Bar Applicant Cases In A National Security State, Joshua E. Kastenberg

Faculty Scholarship

Centered on Justice Black, this Article is a legal history of the decisional processes, political influences, and jurisprudential ideologies involved in Konigsberg v. State Bar of California (Konigsberg I), Schware v. Board of Bar Examiners, Konigsberg v. State Bar of California (Konigsberg II ). It also provides a window into what the Justices saw as the role of the legal profession in the criminal justice system, as well as in national security. Within the Court, two opposing camps led by Justice Hugo Black and Justice John Harlan sparred over the ability of state judicial branches to determine bar admission based …

Beyond War: Bin Laden, Escobar, And The Justification Of Targeted Killing, Luis E. Chiesa, Alexander K.A. Greenawalt

Journal Articles

Using the May 2011 killing of Osama bin Laden as a case study, this Article contributes to the debate on targeted killing in two distinct ways, each of which has the result of downplaying the centrality of international humanitarian law (IHL) as the decisive source of justification for targeted killings.

First, we argue that the IHL rules governing the killing of combatants in wartime should be understood to apply more strictly in cases involving the targeting of single individuals, particularly when the targeting occurs against nonparadigmatic combatants outside the traditional battlefield. As applied to the bin Laden killing, we argue …

Confronting The Wizard Of Oz: National Security, Expertise, And Secrecy, David Cole

Georgetown Law Faculty Publications and Other Works

Aziz Rana’s account of the takeover of American national security by experts, and of the public’s acceptance of that state of affairs, offers an important and novel perspective on what ails us in national security today. In this Comment, I suggest that while Rana is correct to identify our deference to experts as a central aspect of the problem, the problem is more complicated. First, the phenomenon of elite control over foreign and security policy questions is not new, but likely dates back to the founding—when elites ruled not based on expertise but on the basis of status, class, and …

Democratic Inclusion, Cognitive Development, And The Age Of Electoral Majority, Vivian E. Hamilton

Faculty Publications

No abstract provided.

Making Executive Privilege Work: A Multi-Factor Test In An Age Of Czars And Congressional Oversight, Ken Klukowski

Faculty Publications and Presentations

No abstract provided.

Foreign Investment And Indigenous Peoples: Options For Promoting Equilibrium Between Economic Development And Indigenous Rights, George K. Foster

Michigan Journal of International Law

The quotations above refer to distinct conflicts that are widely separated by time and geography but remarkably similar in other respects. The first describes events leading to the Black Hills War of 1876, in which the U.S. Army forced the Lakota Sioux and Northern Cheyenne onto reservations to make way for gold mining by non-Indians. The second describes a violent episode in a conflict between native groups and the Peruvian government, which began in 2009 when the government took steps to expand mining and oil operations by multinational enterprises (MNEs) in the Peruvian Amazon. In both cases, outside commercial interests …

Introduction: The Fukushima Dai-Ichi Nuclear Disaster And The Future Of Nuclear Energy Programs In Japan And East Asia, Hiroshi Fukurai

Washington International Law Journal

On March 11, 2011, a massive 9.0 magnitude quake and powerful tsunami slammed the northeastern region of Japan. Huge seismic activities knocked out the power at the Fukushima Dai-ichi Nuclear Power Plant, and ensuing tidal waves disabled the backup generators for cooling systems to the active reactors. This triggered a series of hydrogen explosions and released dangerously high levels of radioactive particles into the atmosphere. The Japanese government declared a nuclear emergency, due to the worst nuclear crisis in Japanese history, and decided to evacuate 140,000 residents within twenty kilometers of the plant to various relocation centers

The American Duality: Exceptionalism Or Exemptionalism?, Courtney Muniz

Communication Studies

Discusses how the ethnocentric tendencies found within American exceptionalism translate into U.S. foreign policy.

Civil War, Ceasefire, Constitution: Some Preliminary Notes, Sujit Choudhry

Cardozo Law Review

No abstract provided.

Administrative Justice: Using Agency Declaratory Orders In The Fight To Staunch The Financing Of Terrorism, J. David Pollock

Cardozo Law Review

No abstract provided.

Law And Policy Entrepreneurs: Empirical Evidence On The Expansion Of School Choice Policy, Michael Heise

Cornell Law Faculty Publications

This study leverages event history analysis to help explain the expansion of public charter school legislation between 1991–2006. This study expands previous work in two important ways. First, while critical distinctions separate public charter school and school voucher programs, both fall comfortably within the broader rubric of “school choice.” As such, it is difficult to understand the development of state legislation for one school choice variant independent of the other. Thus, this analysis includes the presence of publicly- or privately-funded voucher programs in a state as a possible factor influencing the adoption of charter school legislation in a state. Second, …

From Just War To False Peace, Robert J. Delahunty, John Yoo

Chicago Journal of International Law

This Article addresses the reliance of both policymakers and scholars on just war theory as a guide to twenty-first century war. More especially, it evaluates the assumption that the UN Charter system is a modernized form of historical just war theory. The Article traces the genesis of various just war theories from ancient Greece and Rome through medieval Christianity, arguing that these theories were based on moral and religious obligation. In the early modern era, as papal supremacy weakened, just war theorizing tended to wane. In its place, four different approaches to limiting war began to emerge: public international law, …

Beyond War: Bin Laden, Escobar, And The Justification Of Targeted Killing, Luis E. Chiesa, Alexander K. A. Greenawalt

Washington and Lee Law Review

Using the May 2011 killing of Osama bin Laden as a case study, this Article contributes to the debate on targeted killing in two distinct ways, each of which has the result of downplaying the centrality of international humanitarian law (IHL) as the decisive source of justification for targeted killings. First, we argue that the IHL rules governing the killing of combatants in wartime should be understood to apply more strictly in cases involving the targeting of single individuals, particularly when the targeting occurs against nonparadigmatic combatants outside the traditional battlefield. As applied to the bin Laden killing, we argue …

A Mighty Wind: The Turbulent Times Of America's First Offshore Wind Farm And The Inverse Of Environmental Justice, M.W. Marinakos

Environmental and Earth Law Journal (EELJ)

In 2001, Cape Wind Associates announced its proposal to construct America’s first offshore wind farm in the federal waters of Nantucket Sound. This declaration touched off a storm of law suits, fund raising, and protests in the press that still rages to this day. Political pundits and environmental groups of every stripe have taken some surprising positions, based solely on the location of the renewable energy source. The Alliance to Protect Nantucket Sound, posing as an environmental concern, has risen as the archrival to the wind farm. Interestingly, a closer look under the surface of this group reveals a financial …

Punitive Preventive Justice: A Critique, Bernard E. Harcourt

Public Law and Legal Theory Working Papers

No abstract provided.