Digital Commons Network^™

Property's Morale , Nestor M. Davidson

Faculty Scholarship

A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Respect for expectations unites otherwise disparate strands of property theory focused on ex ante incentives, individual identity, and community. It also privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, such changes are thought to generate disincentives that Frank Michelman famously labeled demoralization costs. Although rarely approached in these terms, arguments for legal certainty reflect underlying psychological assumptions about how people contemplate property rights when choosing whether and how to work, invest, create, bolster identity, join …

Changes To The Culture Of Adversarialness: Endorsing Candor, Cooperation And Civility In Relationships Between Prosecutors And Defense Counsel, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

Following a brief history of prior versions of the relevant Standards in Part I, Part II describes the current draft of the proposed Prosecution and Defense Functions, focusing on new requirements for candor, civility, and cooperation. The article concludes that the proposed revisions represent a healthy step toward a more reliable, trustworthy, and efficient criminal justice system. The revisions explicitly recognize the central, powerful, and multidimensional role of the prosecutor and attempt to respond accurately and realistically to the needs and demands of that role. As the drafting and approval process continues, certain specific areas need greater clarification and thus …

Consumer Casualties, Amy J. Schmitz

Faculty Publications

On July 21, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank),' which among other things calls for creation of the Consumer Financial Protection Bureau (CFPB) to serve as a centralized agency charged with protecting consumers from lending abuses and improper practices. The question is when and whether this agency will come to fruition-or suffer as a casualty of political warfare.

Measure Twice, Shoot Once: Higher Care For Cia-Targeted Killing, Afsheen John Radsan, Richard Murphy

Faculty Scholarship

For almost a decade, the United States has deployed unmanned aerial vehicles, or "drones," to kill targeted members of Al Qaeda and the Taliban. Central Intelligence Agency (CIA) drone strikes in Pakistan have, in particular, stirred strong debates over the legality of such actions. Some commentators insist that these strikes are legal under international humanitarian law (IHL) or as a matter of self-defense. Others insist that the United States' targeted killing amounts to murder.

It is critical for the law to determine how to control killer drones and the future of warfare. As technology evolves, drones will develop sharper senses …

A Grotian Moment: Changes In The Legal Theory Of Statehood, Milena Sterio

Law Faculty Articles and Essays

This article examines the Grotian Moment theory and its practical application toward the legal theory of statehood. To that effect, this article describes, in Part II, the notion of a Grotian Moment. In Part III, it examines the legal theory of statehood in its traditional form. Part IV describes changes in the legal theory of statehood brought about by the forces of globalization in a Grotian Moment manner. These changes include a new notion of state sovereignty and the accompanying right to intervention, the emergence of human and minority rights that sometimes affect state territorial integrity, the existence of de …

Responses To The Ten Questions, Michael W. Lewis

William Mitchell Law Review

No abstract provided.

Responses To The Ten Questions, Eric Jensen

William Mitchell Law Review

No abstract provided.

Responses To The Ten Questions, John Cary Sims

William Mitchell Law Review

No abstract provided.

Responses To The Ten Questions, Jordan J. Paust

William Mitchell Law Review

No abstract provided.

Responses To The Ten Questions, Amos N. Guiora

William Mitchell Law Review

No abstract provided.

Policing Al Qaeda's Army Of Rhetorical Terrorists, Jarret Brachman

William Mitchell Law Review

No abstract provided.

Drones And The U.S. Courts, Richard D. Rosen

William Mitchell Law Review

No abstract provided.

Real Rape, Too, Bennett Capers

Faculty Scholarship

No abstract provided.

The Mystery Of Life In The Laboratory Of Democracy: Personal Autonomy In State Law, Adam J. Macleod

Faculty Articles

Recent controversies, such as enactment of an individual mandate to purchase health insurance and the legalization of assisted suicide in Washington and Montana, have renewed the war over personal autonomy. Debates about the value and limits of personal autonomy also play major roles in the controversies over abortion, same-sex intimacy, and same-sex marriage. On one side of the autonomy war, advocates of unfettered individual freedom assert that by her un-coerced and autonomous choice, the individual person determines the value of human goods such as life, health, and marriage.

On the other side, proponents of strong government restrictions on personal choice …

The "R-Word": A Tribute To Derrick Bell, Kenneth B. Nunn

University of Florida Journal of Law & Public Policy

No abstract provided.

Domestic Violence And State Intervention In The American West And Australia, 1860-1930, Carolyn B. Ramsey

Indiana Law Journal

This Article calls into question stereotypical assumptions about the presumed lack of state intervention in the family and the patriarchal violence of Anglo- American frontier societies in the late nineteenth and early twentieth centuries. By analyzing previously unexamined cases of domestic assault and homicide in the American West and Australia, Professor Ramsey reveals a sustained (but largely ineffectual) effort to civilize men by punishing violence against women. Husbands in both the American West and Australia were routinely arrested or summoned to court for beating their wives in the late 1800s and early 1900s. Judges, police officers, journalists, and others expressed …

The Rights And Liberties Of The Palau Constitution, Kevin Bennardo

Faculty Publications

No abstract provided.

Taking Stare Decisis Seriously: A Cautionary Tale For A Progressive Supreme Court, James G. Wilson

Law Faculty Articles and Essays

To better understand stare decisis and to normatively explore our constitutional future, this article assumes that President Obama's election signifies a constitutional shift similar to the one occurring after President Nixon won in 1968. From that contentious, self-righteous era to the present day, all American Presidents selected Supreme Court nominees who were more conservative than the members of the Warren Court majority, much less that aggressively liberal duo, Justices Brennan and Marshall. Justice Stevens, appointed by the moderate Republican President Gerald Ford, is arguably the most liberal member on the Court. It is impossible to predict how far the country …

Busting Blocks: Revisiting 47 U.S.C. § 230 To Address The Lack Of Effective Legal Recourse For Wrongful Inclusion In Spam Filters, Jonathan I. Ezor

Richmond Journal of Law & Technology

Consider a company that uses e-mail to conduct a majority of its business, including customer and vendor communication, marketing, and filing official documents. After conducting business in this manner for several years, one day the company discovers that its most recent e-mails were not delivered to recipients using a major Internet Service Provider (“ISP”) because the company was recently listed on an automated block list as a sender of unwanted bulk commercial e-mail (“spam”).

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

Cleveland State Law Review

This Article begins in Part II by exploring a recent executive privilege case between the White House and Congress. Part III then explains the constitutional rationale for executive privilege by surveying the tension between Congress's Article I powers and the President's Article II powers. Part IV then explains modern executive privilege doctrine and the different forms of executive privilege, and also proposes a new multi-factor analysis to be incorporated into the current test. Part V moreover explains why the courts should reject both branches' arguments on these issues in favor of a third approach. Part VI then ends with the …

Tale Of Two Policies: A Defense Of China's Population Policy And An Examination Of U.S. Asylum Policy, Mona Ma

Cleveland State Law Review

The U.S. asylum law presents a distorted view of China's policy to the world and unfairly taints China's image in the international arena. It also undermines the effectiveness of the policy by encouraging Chinese citizens to break the law. This article advocates the repeal of IIRAIRA § 601 by demonstrating that China's population policy is a necessary and responsible social policy. Part II gives a brief history of the U.S. asylum law relating to China's population policy, including the pre-1996 court split on whether to grant Chinese nationals asylum based on violations of China's population policy. In re Chang, a …

International Civil Religion: Respecting Religious Diversity While Promoting International Cooperation, Amos Prosser Davis

UC Law SF International Law Review

International civil religion grounds moral claims that permeate and transcend traditional religious paradigms. Given the inevitability of international interactions - interactions that cross geographic, religious, and cultural boundaries - our global society is in need of a universally endorsable framework that undergirds the United Nations international human rights regime. International civil religion provides that framework.

Numerous scholars and moral theorists have incrementally discerned the parameters of civil religion including, inter alia, Jean-Jacques Rousseau, Alexis de Tocqueville, Robert Bellah, Martin Marty, and Harold Berman. The tenets of international civil religion infuse the diplomatically drafted United Nations covenants and conventions on human …

The Human Right To Health And Hiv/Aids: South Africa And South-South Cooperation To Reframe Global Intellectual Property Principles And Promote Access To Essential Medicines, Erika George

Indiana Journal of Global Legal Studies

The HIV/AIDS pandemic has had a devastating and disproportionate impact in countries of the Global South. The experience of an individual infected with HIV in Africa is very different than that of an individual infected with HIV in America. Life expectancy varies sharply. The ability or inability to access medicines essential for treatment accounts for much of the variance. This article examines how the rhetoric of human rights used in the context of South Africa's AIDS crisis resonated across the Global South, resulted in a powerful social movement for access to medicines, and contributed to important changes in international intellectual …

Globalization And The Institutional Dynamics Of Global Environmental Governance, Tun Myint

Indiana Journal of Global Legal Studies

This paper is concerned with globalization and the institutional dynamics of global environmental governance. How do the phenomena of globalization shape the study of the institutional dimensions of global environmental governance, and how do these phenomena influence the practicality of law and state-centric politics? These questions guide the direction of this paper and its aim to advance theories and research methods for the study of the dynamics of institutions for governance. By synthesizing the conceptual findings of the literature, this paper develops an analytical framework of globalization and analytical themes to advance the systematic study of the dynamics of institutions, …

Out Of The Channel And Into The Swamp: How Family Law Fails In A New Era Of Class Division, June Carbone

Hofstra Law Review

No abstract provided.

Author Meets Reader, Scholar Meets Worker: An Introduction To The Section On Labor Relations And Employment Law 2011 Aals Panel Presentation, Rachel Arnow-Richman

UF Law Faculty Publications

This article introduces the AALS Section on Labor Relations & Employment’s January 2011 Program, 'Author Meets Reader: Jack Getman’s Restoring the Power of Unions,' while exploring the significance of the contemporaneous union boycott of the Union Square Hilton, the primary site of the AALS 2011 Meeting. When the national leadership of the AALS proved unresponsive to UNITE HERE’s entreaties, a group of interested law professors undertook to convince the organization to relocate its conference using a combination of direct appeals to AALS leadership and grassroots mobilization of faculty attendees. Like many of the union movements described in Jack Getman’s monograph …

Nash Equilibrium And International Law, Jens David Ohlin

Cornell Law Review

No abstract provided.

The Rule Of Law Through Its Economies Of Appearances: The Making Of The African Warlord, Kamari Maxine Clarke

Indiana Journal of Global Legal Studies

The global reach of international law is now becoming relevant to the micromanagement of daily life. In postcolonial African states, everyday actions and their meanings are being opened up by the expansion of national jurisdiction into international jurisdiction. In relation to these changing technologies of managing shifting regimes of power, this article explores the ways that the spectacle of the rule of law is linked to the spectacle of capitalism. By examining the workings of victim and witness testimonies in the Special Court of Sierra Leone, I examine the ways that spectacles of law and articulations of suffering displace the …

Indefinite Detention Under The Laws Of War, Chris Jenks, Eric Talbot Jensen

Faculty Journal Articles and Book Chapters

The recent acquittal of the first Guantanamo Bay detainee to stand trial in U.S. federal court on all but one of the 286 charges he faced stemming from the 1998 bombings of two U.S. embassies in Africa has reinvigorated the discussion on indefinite detention under the laws of war. While the issue has been raised in the past, the discussion hasn’t extended beyond stating that the law of war, or law of armed conflict (LOAC) as it is often called, provides a legal basis for detention, including detention for the duration of hostilities. In fact, the Obama Administration has made …

Internet Access Rights: A Brief History And Intellectual Origins, Jonathon Penney

Articles, Book Chapters, & Popular Press

If there is anything we have learned from recent protest movements around the world, and the heavy-handed government efforts to block, censor, suspend, and manipulate Internet connectivity, it is that access to the Internet, and its content, is anything but certain, especially when governments feel threatened. Despite these hard truths, the notion that people have a "right" to Internet access gained high-profile international recognition last year. In a report to the United Nations General Assembly in early 2011, Frank La Rue, the UN Special Rapporteur on Freedom of Expression, held that Internet access should be recognized as a "human right". …