Digital Commons Network^™

The Relative Bargaining Power Of Employers And Unions In The Global Information Age: A Comparative Analysis Of The United States And Japan, Kenneth G. Dau-Schmidt, Benjamin C. Ellis

Articles by Maurer Faculty

In this paper, we examine and compare the impact of American and Japanese labor law on the relative bargaining power of the labor and management within the context of the new global economy based on information technology. We begin by providing a simple economic definition of bargaining power and examining how it can be influenced by economic and legal factors. Next, we discuss the impact of new information technology and the global economy on the employment relationship and how this has decreased union bargaining power relative to management bargaining power. Finally, we compare various facets of American and Japanese labor …

Lawyers, Guns & Public Monies: The U.S. Treasury, World War One, And The Administration Of The Modern Fiscal State, Ajay K. Mehrotra

Articles by Maurer Faculty

The First World War was a pivotal event for American political and economic development, particularly in the realm of public finance. For it was during the war years that the federal government ended its traditional reliance on regressive import duties and excise taxes as principal sources of revenue and began a modern era of fiscal governance, one based primarily on the direct and progressive taxation of personal and corporate income. Like other aspects of war mobilization, this fiscal revolution required an enormous infusion of national administrative resources. Nowhere was this more evident than within the corridors of the U.S. Treasury …

Guns, Originalism, And Cultural Cognition, Jamal Greene

Faculty Scholarship

In a legal regime whose canonical text is Marbury v. Madison, it should be unremarkable that the Supreme Court's actions are bounded rather severely by public opinion. What makes the proposition remarkable – enough to be well worth Barry Friedman's time – is also what makes Marbury remarkable: namely, that judges so often go out of their way to deny it. Though not unheard of, it is rare for a judge to advertise that the content of a constitutional rule she is announcing is motivated by public opinion. Such an admission would be self-defeating, since it invites the charge …

Citizenship In The Humanities And Social Sciences: A Selective Bibliography, 2000-2009, Wayne State University School Of Library And Information Science, Winter 2010 Lis 7160, James E. Van Loon, H.G.B. Anghelescu

School of Information Sciences Faculty Research Publications

Citizenship in the Humanities and Social Sciences is a selective bibliography consisting of citations to works published during the years 2000-2009 on citizenship-related topics in the humanities and social sciences. Primarily consisting of books/chapters and scholarly journal articles, the bibliography also includes other materials (case studies, reports, dissertations, and working papers) for which scholarship, authority and relevance have been established. Most cited works are published in the English language, although articles published in other languages using a Latin alphabet are also included. Citations were retrieved during January-March 2010 from a variety of aggregated databases accessed through the Wayne State University …

Self-Defense And The Limits Of Wmd Intelligence, Matthew C. Waxman

Faculty Scholarship

During the 2008 presidential campaign, then-candidate Barack Obama stated: “Sometimes, the preventive use of force may be necessary, but rarely. The experience of Iraq underscores that often, perceived threats are not as real [as] they may seem, and our intelligence may be imperfect. But, when our intelligence is good and defensible we should not rule out the use of force.” This chapter examines ways of assessing legally whether that intelligence is sufficiently good and defensible. It argues that an objective reasonable necessity approach to WMD capability assessments can serve long-term peace and security objectives and, more specifically, how the law …

The Structure Of Terrorism Threats And The Laws Of War, Matthew C. Waxman

Faculty Scholarship

This article considers a major debate in the American and European counterterrorism analytic community – whether the primary terrorist threat to the West is posed by hierarchical, centralized terrorist organizations operating from geographic safe havens, or by radicalized individuals conducting a loosely organized, ideologically common but operationally independent fight against western societies – and this debate’s implications for both jus ad bellum and jus in bello. Analysis of how the law of armed conflict might be evolving to deal with terrorism should engage in more nuanced and sophisticated examination of how terrorism threats are themselves evolving. Moreover, the merits of …

Leverhulme Lecture: The Future Of Securitization, Steven L. Schwarcz

Faculty Scholarship

Lecture given November 11, 2010, the third of three delivered by Prof. Schwarcz as Leverhulme Visiting Professor of Law, Oxford University.

The securitization of subprime mortgage loans is widely viewed as a root cause of the financial crisis. This lecture balances the costs and benefits of securitization, focusing on what went wrong and on what needs to be fixed to curtail securitization’s abuses and make it viable again as an important financing tool. Finally, the lecture examines alternatives to securitization, focusing on covered bonds and comparing and contrasting covered bonds and securitization.

The President's Unconstitutional Treatymaking, David H. Moore

Faculty Scholarship

The President of the United States frequently signs international agreements but postpones ratification pending Senate consent. Under international law, a state that signs a treaty subject to later ratification must avoid acts that would defeat the treaty's object and purpose until the nation clearly communicates its intent not to join. As a result, the President in signing assumes interim treaty obligations before the treatymaking process is complete. Despite the pervasiveness of this practice, scholars have neglected the question of its constitutionality. As this Article demonstrates, the practice is unconstitutional. Neither the text, structure, nor history of the Constitution supports the …

Countering Persistent Contemporary Sea Piracy: Expanding Jurisdictional Regimes, Joseph M. Isanga

American University Law Review

No abstract provided.

No Habeas For You! Al Maqaleh V. Gates, The Bagram Detainees, And The Global Insurgency, Michael J. Buxton

American University Law Review

No abstract provided.

Corporate War Crimes: Prosecuting Pillage Of Natural Resources, James G. Stewart

All Faculty Publications

Pillage means theft during war. Although the prohibition against pillage dates to antiquity, pillaging is a modern war crime that can be enforced before international and domestic criminal courts. Following World War II, several businessmen were convicted for the pillage of natural resources. And yet modern commercial actors are seldom held accountable for their role in the illegal exploitation of natural resources from modern conflict zones, even though pillage is prosecuted as a matter of course in other contexts. This book offers a doctrinal road-map of the law governing pillage as applied to the illegal exploitation of natural resources by …

The Insurance Policy As Statute, Jeffrey W. Stempel

Scholarly Works

Insurance policies are classified as a subspecies of contract. Although the taxonomy is correct, rigid adherence to this classification system limits the legal system's ability to deal with some of the most problematic and frequently litigated questions of insurance coverage. Restricting conception of insurance policies to the contract model unduly limits analysis of the meaning and function of the policies. In addition, restricting characterization of insurance as a matter of “contract” does not necessarily produce swift, inexpensive, efficient, or uniform decisions (to say nothing about accuracy, justice, or fairness). Within contract law, scholars, and courts differ over the respective primacy …

Fighting The New Wars Of Religion: The Need For A Tolerant First Amendment, Leslie C. Griffin

Scholarly Works

No abstract provided.

Sodom's Shadow: The Uncertain Line Between Public And Private Morality, Todd E. Pettys

UC Law Journal

In citizens' debates about issues of public policy, we frequently encounter what this Article calls the "divine accountability thesis"-the controversial claim that the divine realm will punish a city, state, or nation unless it performs or proscribes certain forms of conduct. Many of us reject that claim, but its persistent usage in numerous societies over the past five thousand years teaches us a great deal about citizens' political selfconceptions. This Article begins by arguing that the divine accountability thesis illustrates human beings' deeply ingrained tendency to regard their political communities as discrete moral entities, individually deserving of punishment or reward. …

Getting Right Without Lincoln, Daniel W. Hamilton

Scholarly Works

No abstract provided.

Cyber Warfare And Precautions Against The Effects Of Attacks, Eric Talbot Jensen

Faculty Scholarship

Ninety-eight percent of all U.S. government communications travel over civilian-owned-and-operated networks. Additionally, the government relies almost completely on civilian providers for computer software and hardware products, services, and maintenance. This near-complete intermixing of civilian and military computer infrastructure makes many of those civilian objects and providers legitimate targets under the law of armed conflict. Other civilian networks, services, and communications may suffer collateral damage from legitimate attacks on government targets. To protect those civilian objects and providers from the effects of attacks, the law of armed conflict requires a state to segregate its military assets from the civilian population and …

A.I.M.D. Ltd. V. Mordechai, Edna Arbel, Edmond E. Levy, Hanan Melcer

Translated Opinions

Facts: This is a petition to quash the decision of the Diamonds Supervisor to seize and confiscate goods imported by the petitioner. In February 2007, the petitioner – a company that imports and exports diamonds – imported into Israel a diamond weighing 14.32 carats from the African state of Mali. Mali is not a member of the Kimberley Process Certification Scheme, in which Israel is a participant. The imported diamond was not accompanied by a “Kimberley Process Certificate,” as required under the Israeli legislation implementing the Kimberley Process. Therefore, the Supervisor did not issue an import license for the diamond, …

Boumediene V. Bush: Habeas Corpus, Exhaustion, And The Special Circumstances Exception, Brandon C. Pond

BYU Law Review

No abstract provided.

Teaching Without Infringement: A New Model For Educational Fair Use , David A. Simon

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Cynic At The Circus, Jamison E. Colburn

Tulsa Law Review

No abstract provided.

The Hidden Legacy Of Holy Trinity Church: The Unique National Institution Canon, Anita S. Krishnakumar

William & Mary Law Review

This Article explores an underappreciated legacy of the Supreme Court’s (in)famous decision in Church of the Holy Trinity v. United States. Although Holy Trinity has been much discussed in the academic literature and in judicial opinions, the discussion thus far has focused almost exclusively on the first half of the Court’s opinion—which declares that the “spirit” of a statute should trump its “letter”—and relies on legislative history to help divine that spirit. Scholars and jurists have paid little, if any, attention to the opinion’s lengthy second half. In that second half, the Court tells a detailed narrative about the country’s …

To Form A More Perfect Union: Taxation, Economic Efficiency, And The Dormant Commerce Clause In Department Of Revenue V. Davis, Casey J. Jennings

North Carolina Law Review

No abstract provided.

Exempting High-Level Employees And Small Employers From Legislation Invalidating Predispute Employment Arbitration Agreements, E. Gary Spitko

Faculty Publications

On February 12, 2009, lawmakers in the U.S.House of Representatives introduced the "Arbitration Fairness Act of 2009. " This bill, if enacted, will invalidate any predispute arbitration agreement between an employer and its employee. Last year, the 110th Congress considered the narrower "Preservation of Civil Rights Protections Act of 2008, " which would have invalidated such predispute arbitration agreements if they required "arbitration of a dispute arising under" federal civil rights laws. This Article explores how best to structure any such invalidation of predispute employment arbitration agreements, both in light of the rationales for and against regulation of the employment …

Playing By The Rules: Combating Al Qaeda Within The Law Of War, David Glazier

William & Mary Law Review

Although the conflict formerly known as the “war on terror” is now in its eighth year, key legal issues governing the use of force and military detention remain largely unresolved. These questions survive the Bush administration, as the United States continues to launch aerial strikes against al Qaeda and President Obama has indicated his intention to continue the use of preventative detention and military trials even after Guantánamo is closed. Military victory is not possible, but good faith application of authority from the law of war can effectively complement traditional criminal law in combating the threat. Even if the Geneva …

Thio Li-Ann On Free Speech, Social Values And Sustainable Democracy, Knowledge@Smu

Knowledge@SMU

It has been two years since Thio Li-ann delivered the parliamentary speech that would thrust her into the epicentre of a nationwide debate. Her arguments for the continued criminalisation of homosexual acts in Singapore earned her both praises and death threats. And it was perhaps this incident that first led her to scrutinise, more deeply than before, the notion of free speech in society. "Equality is a fundamental tenet that we all have, as citizens of a democracy. But what happens if you have a bigger amplifier or a louder voice than I do? Can speech kill speech?" she asked …

Accountability For Property Crimes And Environmental War Crimes: Prosecution, Litigation, And Development, Mark A. Drumbl

Scholarly Articles

None available.

Uprooting Identities: The Regulation Of Olive Trees In The Occupied West Bank, Irus Braverman

Journal Articles

The Israeli/Palestinian conflict has rarely been associated with trees in the common perception. This article reveals the complex historical and cultural processes that have led to strong identification between the olive tree and the Palestinian people, arguing that this identification is not only a reflection of the olive’s unique economic and cultural status in this region but also an act of resistance to Israel’s occupation. The article also explains how Israel’s tightening of surveillance, practiced in the name of olive protection, actually ends up forcing an alien set of spatial and temporal regimes on the everyday life of Palestinians in …

Counterinsurgency, The War On Terror, And The Laws Of War, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

Since the wars in Afghanistan and Iraq, military strategists, historians, soldiers, and policymakers have made counterinsurgency's principles and paradoxes second nature, and they now expect that counterinsurgency operations will be the likely wars of the future. Yet despite counterinsurgency's ubiquity in military and policy circles, legal scholars have almost completely ignored it. This Article evaluates the laws of war in light of modern counterinsurgency strategy. It shows that the laws of war are premised on a kill-capture strategic foundation that does not apply in counterinsurgency, which follows a win-the-population strategy. The result is that the laws of war are disconnected …

Patening The Curve Ball: Business Methods And Industry Norms, Gerard N. Magliocca

BYU Law Review

No abstract provided.

The Limits Of Executive Action For Human Rights, Henry Krisch

Human Rights & Human Welfare

Between 2001 and 2006 Alejandro Toledo served as President of Peru. He entered office committed to, in his words, “restoring the democratic institutions that had suffered from a steady deterioration during the previous decade,” (that is, during the rule of former President Alberto Fujimori). Moreover, he took up the task of providing Peruvian society with “a full accounting of the atrocities that had occurred in previous decades.” This personal commitment to re-establishing a functioning democracy based on the rule of law, a commitment based in part on his participation in the anti-Fujimori demonstrations, lead him to seek an honest accounting …