Digital Commons Network^™

Over Under Or Through: Physicians, Law, And Health Care Reform, William M. Sage

Saint Louis University Law Journal

No abstract provided.

The Absolute Prohibition Of Torture And Necessary And Appropriate Sanctions, Jordan J. Paust

Valparaiso University Law Review

No abstract provided.

The Promise Of Interrogation V. The Problem Of Torture, Steven M. Kleinman

Valparaiso University Law Review

No abstract provided.

National Security Courts: Star Chamber Or Specialized Justice?, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

In October 2008, the author moderated a panel discussion addressing the utility of establishing a new national security court system for administering the detention and trial of terrorist suspects. The discussion featured comments by five lawyers with significant academic and practical experience in the field: Richard Zabel, a litigation partner at Akin Gump Strauss Hauer & Feld LLP, a former Assistant U.S. Attorney and co-author of In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts; Glenn L. Sulmasy, an Associate Professor of Law at the United States Coast Guard Academy and author of the forthcoming book, The National …

An Overt Turn On Covert Action, Afsheen John Radsan

Faculty Scholarship

Long past the soul-searching of Watergate, very few people question the need for covert action as a part of American foreign policy. The world is so dangerous after 9/11 that it would be irresponsible to suggest that our intelligence agencies should be disbanded or that our government should acknowledge everything it does on the dark side. Today the question is not whether we should engage in covert action at all, but how often and under what circumstances.

Not everything stays secret. Our Nation has been conducting covert action with greater transparency and more congressional participation than during the Cold War. …

Failures To Punish: Command Responsibility In Domestic And International Law, Amy J. Sepinwall

Michigan Journal of International Law

This Article embraces one of two contested understandings of what a failure to punish entails. On the first understanding, a military commander's failure to punish is construed solely as a dereliction of duty. Accordingly, his failure to punish constitutes a separate offense from the underlying atrocity that his troops have committed. The failure to punish is, then, a substantive offense in its own right. On a second understanding, for which I argue here, the failure to punish renders the commander criminally liable for the atrocity itself, even if he neither ordered nor even knew about the atrocity before its occurrence. …

Life At The Center, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Responses To Ten Questions, Gregory E. Maggs

William Mitchell Law Review

No abstract provided.

An Overt Turn On Covert Action, A. John Radsan

Saint Louis University Law Journal

No abstract provided.

Teaching Federal Courts Where Outcomes Matter: A Curricular Conjecture, Richard A. Matasar

Saint Louis University Law Journal

No abstract provided.

Red: Racism And The American Indian, Bethany Berger

Faculty Articles and Papers

How does racism work in American Indian law and policy? Scholarship on the subject has too often assumed that racism works for Indians in the same way that it does for African Americans, and has therefore either emphasized the presence of hallmarks of White-Black racism, such as uses of blood quantum, as evidence of racism, or has emphasized the lack of such hallmarks, such as prohibitions on interracial marriage, to argue that racism is not a significant factor. This Article surveys the different eras of Indian-White interaction to argue that racism has been important in those interactions, but has worked …

Vol. 7, No. 01 (January/February 2009)

Indiana Law Update

No abstract provided.

The Resilience Of Law, Joseph Vining

Book Chapters

One of the striking developments in academic law in the past half century is the reconception of law as one of the social sciences. The idea at work in this movement, as Joseph Vining says in this essay, is not that the law should use the findings of other disciplines for its own purposes and in its own way, but that in some deep way law itself - legal thinking, legal life - can and ought to proceed on the premises of social science, indeed of science itself. This is in one sense obviously impossible: a scientific rule is a …

Brief Remarks On The Supreme Court's Role After 9/11: Continuing The Legal Conversation In The War On Terror, Anthony J. Colangelo

SMU Law Review

In thinking about what I might say on the topic of civil liberties after 9/11, an idea that occurred to me was to give a snapshot of the Supreme Court's role in the perceived tug-of-war between national security and individual rights, arising out of the "war on terror." How has the Court responded to the government's positions? And in what ways has it attempted to strike the proper balance under the Constitution?

The Supreme Court decisions are long and, at points, exceedingly technical. But I think there are a couple of themes we can pull out, and in doing so, …

The Integration Of Unmanned Aerial Vehicles Into The National Airspace, Timothy M. Ravich

North Dakota Law Review

No abstract provided.

Law From Above: Unmanned Aerial Systems, Use Of Force, And The Law Of Armed Conflict, Chris Jenks

North Dakota Law Review

No abstract provided.

Equality And The Free Exercise Of Religion , Bret Boyce

Cleveland State Law Review

Part I of this Article begins with a brief overview of Supreme Court case law on free exercise exemptions, which provides a background for modern historical and normative debates. Part II examines the original understanding of the Religion Clauses, which proponents of “substantive neutrality” claim supports their position. This Part rejects that claim, concluding that the limited evidence of the original understanding of the First Amendment and the Fourteenth Amendment (under which current doctrine makes the First Amendment's guarantees applicable to the states) does not provide a firm basis for resolving modern debates over exemptions, but is at least as …

Application Of The U.C.C. To Nonpayment Virtual Assets Or Digital Art, Sarah Howard Jenkins

Law Faculty Scholarship

No abstract provided.

"The Momentous Gravity Of The State Of Things Now Obtaining": Annoying Westphalian Objections To The Idea Of Global Governance, Timothy W. Waters

Indiana Journal of Global Legal Studies

Are there situations in which otherwise attractively complex, sub- and cross-national networks are unlikely to replace the hoary old Westphalian state? Perhaps, but whatever the answer, global governance as a discipline seems to have a hard time fully considering the question. One oft he problems with operationalizing global governance may be the simultaneous profligacy and poverty of the idea itself: its definitional overemphasis on change and consequent inattention to the state's capacity to reconstitute its core functions and thus to achieve a predictable continuity. As a result, for all the excellent work done under its name, global governance as a …

Human Rights, American Exceptionalism, And The Stories We Tell, Natsu Taylor Saito

Faculty Publications By Year

The Universal Declaration of Human Rights represents a remarkable expansion in the recognition of the fundamental rights of all peoples. Nonetheless, consensus on the implementation of these rights is elusive. Two commonly referenced obstacles to achieving such a consensus are: (1) the United States’ practice of unilaterally exempting itself from international human rights treaties, i.e., American exceptionalism; and (2) resistance from those who see the international human rights movement as a means of imposing Western values on non-Western cultures. Considering these as related issues, both deriving from the Eurocentric nature of contemporary international law, this essay suggests that a truly …

Empowerment Or Estrangement?: Liberal Feminism's Visions Of The "Progress" Of Muslim Women, Cyra Akila Choudhury

University of Baltimore Law Forum

No abstract provided.

Holding An Arsonist's Feet To The Fire? - The Legality And Enforceability Of The Icc's Arrest Warrant For Sudanese President Omar Al-Bashir, Lucas Buzzard

American University International Law Review

No abstract provided.

Asymmetric World Jurisprudence, Caprice L. Roberts

Seattle University Law Review

This article argues that the Supreme Court should reconsider its prudential justiciability doctrines and their underlying assumptions. As a global theory, this Article offers a judicial dynamism model. It then articulates the relevance of the political question doctrine and the need to view the doctrine as prudential rather than constitutional. First, I discuss the Supreme Court's increased use of judicial minimalism and the political question doctrine to avoid important cases and reduce its docket. Second, I describe my model, in which the court takes a dynamic approach to such issues, dependent upon the political climate, to maintain its appropriate stature …

Confidential Communique From Brussels - Antitrust In America: Fugitive On The Run, Rudolph J. Peritz

SMU Law Review

No abstract provided.

Legal Process Outsourcing To India: So Hot Right Now, Alexandra Hanson

SMU Law Review

No abstract provided.

Legal Issues In The Deployment Of A Dedicated Satellite For The Indian Navy, Anand Mohan

Journal of Air Law and Commerce

No abstract provided.

International Law In Crisis: A Qualitative Empirical Contribution To The Compliance Debate, Michael P. Scharf

Faculty Publications

In the aftermath of the terrorist attacks of September 11, 21, Professors Jack Goldsmith and Eric Posner published The Limits of International Law, a potentially revolutionary book that employs rational choice theory to argue that international law is really just “politics” and does not render a “compliance pull” on State decisionmakers. Critics have pointed out that Goldsmith and Posner’s identification of the role of international law in each of their case studies is largely conjectural, and that what is needed is qualitative empirical data that identifies the international law-based arguments that were actually made and the policy-makers’ responses to such …

Balancing Necessity And Individual Rights In The Fight Against Transnational Terrorism: 'Targeted Killings' And International Law, Karinne Lantz

Articles, Book Chapters, & Popular Press

This article explores the restraints international human rights law and international humanitarian law place on a State’s use of lethal force against suspected terrorists. Although the law restricts the ability to target suspected terrorists, it is argued that these limits should be respected in order to protect innocent civilians from undue harm. Under IHRL, it is argued that the right to life as a peremptory norm restricts extra-territorial targeted attacks of suspected terrorists. Accordingly, such action should only be considered lawful when it is necessary to protect the State’s population from a known threat and lesser force would not suffice. …

Guantánamo, Habeas Corpus, And Standards Of Proof: Viewing The Law Through Multiple Lenses, Matthew C. Waxman

Faculty Scholarship

The Supreme Court held in Boumediene v. Bush that Guantánamo detainees have a constitutional right to habeas corpus review of their detention, but it left to district courts in the first instance responsibility for working through the appropriate standard of proof and related evidentiary principles imposed on the government to justify continued detention. This article argues that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about competing risks and their distribution. How one approaches these questions depends on the lens through which one views the problem: through that of a courtroom concerned …

The Transformation Of The Laws Of War Into Humanitarian Law, Mark Antaki

Studio for Law and Culture

This study undertakes a genealogy of crimes against humanity. It inquires into key historical transformations that preceded the official birth of crimes against humanity in positive international law. The study brings to light changes in understandings of law, politics, and human being-together that accompany the articulation of crimes against humanity.

To speak of crimes against humanity is to speak the death of God. With the French Revolution, man displaces God as ground and measure of law and politics, leading to the articulation of crimes against humanity. The man who displaces God is “natural man,” a man who is naturally …