Digital Commons Network^™

Changing The Paradigm Of Internet Access From Government Information Systems: A Solution To The Need For The Dod To Take Time-Sensitive Action On The Niprnet, Joshua E. Kastenberg

Faculty Scholarship

The DOD is currently lacking sufficient regulatory authority to ensure the availability of access to conduct operations through cyberspace, because the conduct of its members is predicated on a number of false assumptions which are written into outdated or otherwise poorly designed current regulations. This article addresses those assumptions and existing regulations and argues for new guidance to alter the current paradigm of almost unfettered access. This article is divided into three sections. Section I touches on the nature of DOD cyberspace and the potential harms that result from current social behaviors of the department's personnel. Section II analyzes shortcomings …

War, Peace, And The Landscape Of The Inka Heartland, Terence N. D'Altroy, Darryl A. Wilkinson

Cardozo Public Law, Policy & Ethics Journal

The article argues that the conservation of cultural heritage in the Inka imperial heartland must move beyond the protection of discrete archaeological sites to encompass the broader landscape, which includes intangible elements such as social memory, power dynamics, and historical narratives. The authors advocate for a holistic approach to heritage management that integrates the physical environment with the cultural and historical contexts that give landscapes their significance.

Cause And Effect: The Origins And Impact Of Justice William O. Douglas’ Anti-Military Ideology From World War Ii To O’Callahan V. Parker, Joshua E. Kastenberg

Faculty Scholarship

The intention underlying this Article is to analyze the sources and effects of Douglas's antipathy for the military's legal construct, especially the practice of trial by courts-martial. Douglas did have an effect on the evolution of the military's legal construct, and he almost succeeded in narrowing the military's jurisdiction over its servicemen to a narrow fraction of what its jurisdictional reach is today. Along with Justices Hugo Black, Earl Warren, Felix Frankfurter, William Brennan, and shorter-tenured justices, he succeeded in judicially mandating due-process rights for servicemen accused of offenses.8 However, in his ultimate goal, the extent to which he succeeded …

Non-Intervention And Neutrality In Cyberspace: An Emerging Principle In The National Practice Of International Law, Joshua E. Kastenberg

Faculty Scholarship

The enforcement of neutrality in cyberspace has not yet occurred, and there appears to be no policy for enforcement. This article suggests a rubric using existing laws for exerting executive authority. Section I of this article discusses the emergence of conflict in cyberspace. This article focuses on the executive branch's authority to enforce neutrality in cyberspace. Section II provides a basic rubric of neutrality rules as applied to conflict in cyberspace. Section III analyzes the most recent cyberconflict, the Georgian-Russian War of 2008, and the potential consequences the United States risked because it lacked a cyber neutral position. Finally, the …

Targeted Killing In U.S. Counterterrorism Strategy And Law, Kenneth Anderson

Working Papers

Targeted killing, particularly through the use of missiles fired from Predator drone aircraft, has become an important, and internationally controversial, part of the US war against al Qaeda in Pakistan and other places. The Obama administration, both during the campaign and in its first months in office, has publicly embraced the strategy as a form of counterterrorism. This paper argues, however, that unless the Obama administration takes careful and assertive legal steps to protect it, targeted killing using remote platforms such as drone aircraft will take on greater strategic salience precisely as the Obama administration allows the legal space for …

A Whale Of A Tale: The Supreme Court Sets A New Trend Favoring National Security Over Environmental Concerns. Winter V. Nrdc, Brian Schierding

Journal of Environmental and Sustainability Law

No abstract provided.

Fighting For Human Rights: The Application Of Human Rights Treaties To United States' Military Operations, Patrick Walsh

Penn State International Law Review (1982 - 2011)

No abstract provided.

Rhetoric Without Results: United Nations Security Council Resolutions Concerning Rape During Armed Conflict, Rachel Schreck

Penn State International Law Review (1982 - 2011)

No abstract provided.

Returning To A Principled Basis For Data Protection, Gus Hosein

Chicago-Kent Law Review

Society must remain conscious of both pragmatic and principle-based rationales for information security rules. The identity card debate in the United Kingdom provides an example of exactly why a governmental information security approach that is sensitive to civil liberties would be the best approach to data protection. In contrast, we should be cautious of a balancing test that places security in parity with civil liberties and, therefore, erroneously allows pragmatism to triumph over principle.

Of Trolls, Davids, Goliaths, And Kings: Narratives And Evidence In The Litigation Of High-Tech Patents, Colleen V. Chien

North Carolina Law Review

No abstract provided.

Sex Play In Virtual Worlds, Robin Fretwell Wilson

Washington and Lee Law Review

No abstract provided.

Response To Mark Danner’S “The Red Cross’ Torture Report: What It Means”, Charli Carpenter

Human Rights & Human Welfare

Danner’s NY Review of Books treatise on torture calls our attention to many significant issues, but in his key argument he is critically wrong.

Professionalizing Moral Deference, Michael Hatfield

NULR Online

As I write this Essay, legal memoranda about torture, once again, are headline news. This Essay considers these memoranda. However, this Essay does not address the legality of torture or the legal limits of interrogation or even if lawyers who provide bad advice on these issues should be punished. Instead, this Essay uses what has come to light about the “torture memoranda” to consider broader issues about the contemporary state of becoming and being an American lawyer. With new memoranda being released, for the sake of convenience, this Essay refers only to the best-known example (at least as things currently …

The Importance Of Intelligence In Combating A Modern Insurgency, Kevin Reamer

Journal of Strategic Security

Throughout history the world has been plagued by insurgencies. While the underlying causes of each new insurgency have been different, they are all similar in certain areas. This similarity entails that the effective countering of an insurgency can be turned into a science with a set of guidelines to follow based on conditions on the ground. Guidelines are important because insurgencies are flexible and to defeat them the counterinsurgency must be equally flexible if not more flexible. Good intelligence is critical to the success of an insurgency. With their small, poorly equipped forces, the leaders of insurgencies need to know …

Forget The Whales: Expanding The Twilight And Diminishing The Nadir Of Youngstown, Landon Wade Magnusson

Brigham Young University Journal of Public Law

No abstract provided.

Case Posed: But Can The Prosecution Rest?, Charli Carpenter

Human Rights & Human Welfare

Julie Flint and Alex de Waal have published a damning article about the ICC prosecutor Luis Moreno Ocampo which reads, by extension, as a trouncing of the entire institution. I’m not in the loop with the court’s day-to-day politics well enough to offer an informed counter-argument, so instead, by way of playing devil’s advocate, let me agree for argument’s sake with a number of the authors’ claims, hyperbolic and partisan though they sound at places, and then (again for argument’s sake), push back on the assumptions the authors make about the implications of those claims.

Vol. 7, No. 03 (May/June 2009)

Indiana Law Update

No abstract provided.

Targeted Killing: Self-Defense, Preemption, And The War On Terrorism, Thomas Byron Hunter

Journal of Strategic Security

This paper assesses the parameters and utility of “targeted killing” in combating terrorism and its role within the norm of state self-defense in the international community. The author’s thesis is that, while targeted killing provides states with a method of combating terrorism, and while it is “effective” on a number of levels, it is inherently limited and not a panacea. The adoption and execution of such a program brings with it, among other potential pitfalls, political repercussions. Targeted killing is defined herein as the premeditated, preemptive, and intentional killing of an individual or individuals known or believed to represent a …

Al-Qaeda In The Lands Of The Islamic Maghreb, Gregory A. Smith

Journal of Strategic Security

This paper is organized into four chapters that focus on the terrorist group Al Qaeda in the Lands of the Islamic Maghreb (AQIM). The four chapters examine different facets of the collective environment that have allowed AQIM to succeed and even thrive at times. The first chapter begins with Algeria’s war of independence with the French. The second chapter focuses on the nomadic Tuareg people. It seeks to show how the Tuaregs were deprived by French occupiers and how European colonization cost the Tuaregs access to vital trade routes used for centuries. The third chapter will very briefly examine Algeria’s …

Solidarity: Unfashionable, But Still American, William M. Sage

Faculty Scholarship

Illness, we are often told, is a private matter. Accordingly, none must interfere in the medical decisions that emerge from the confidential relationship be- tween physician and patient. Yet evidence of interdependence is ubiquitous in health care. One person’s malady can harm families, workplaces, clubs, churches, and sometimes entire communities. Similarly, a suffering pa- tient must rely on many individuals, associational groups, corporate entities, and government agencies for support and assistance. It is, therefore, unsurprising that various social units claim an interest and a voice in maintaining health and treating disease.

However, explicit solidarity has long been out of vogue …

The Spoils System In Check? Public Employees' Right To Political Affiliation & The Balkanized Policymaking Exception To § 1983 Liability For Wrongful Termination, Christopher V. Fenlon

Cardozo Law Review

No abstract provided.

The Value Of Values And Assumptions To A Practicing Lawyer, Virginia A. Seitz

Buffalo Law Review

No abstract provided.

Class Conflicts Of Law Ii: Solidarity, Entrepreneurship, And The Deep Agenda Of The Obama Nlrb, James Gray Pope

Buffalo Law Review

No abstract provided.

Gray Zones Of Modern Genocide, Megan Dale Lee

UNLV Theses, Dissertations, Professional Papers, and Capstones

Italian-Jewish chemist and Holocaust survivor Primo Levi wrote in his work The Drowned and the Saved about the "Gray Zone," or holding place for all things difficult to categorize about his experiences in the Nazi camp Auschwitz. Because human tendency is to divide things in a rigid dichotomy, he argued, anything without a set role is brushed aside. I have extended this Gray Zone to include mutually shared situations from modern genocide including: the relationship of race/land to genocide, the "Forced Victim-Perpetrator" (victim forced to commit atrocities against his or her own people), and the complex international reaction to genocidal …

Torture And Habeas Corpus As Information-Forcing Devices, Marc D. Falkoff

Northern Illinois University Law Review

The habeas lawyer, I therefore suggest modestly, is the legal mirror-image of the state as torturer and as outlaw information-gatherer. One of my clients was kept in total darkness for weeks before being transferred to Guantanamo; he was subjected to blaring music in what is commonly known as the "Dark Prison" at Bagram, with the darkness and noise interrupted only by an occasional interrogation session which took place in a red-lit room. I also find compelling her definition of torture as the sum of pain and questioning-an equation that, interestingly, allows Scarry to argue that the torturer asks his questions …

Center For Terrorism Law: Monthly Activity Report, 2009-05, St. Mary's University School Of Law Center For Terrorism Law

Monthly Report

No abstract provided.

Comment On Professor Yoo, Administration Of War, Richard H. Kohn

Duke Law Journal

No abstract provided.

Administration Of War, John Yoo

Duke Law Journal

No abstract provided.

Sacrifice And Sovereignty, Mateo Taussig-Rubbo

Contributions to Books

Published as Chapter 4 in States of Violence: War, Capital Punishment, and Letting Die, Austin Sarat & Jennifer L. Cuthbert, eds.

This Chapter examines a complement to the concept of the state’s monopoly of legitimate violence, what I call a ‘monopoly of sacrifice.’ It describes some of the difficulties the United States government has confronted in authoritatively designating which and whose losses and deaths in the name of the nation are considered transcendent or sacred. Through detailed case studies, it describes a state that uses legal form and policy to construe certain deaths as sacrificial, and others as banal, and …

Vol. 59, No. 11, April 21, 2009, University Of Michigan Law School

Res Gestae

•Revisiting PRS a Year Later •Letter from the Editor •No Other Warranties •This is Water •Bless Your Heart •Kicking it Old School •Beer Guy •MLaw Softball Pics •Prof. Green Retires •When You Were Cooler •Bold As Tech •Save Yourself •Law Prom Pics •Campbell Finals Pics •SFF BBall Pics