Digital Commons Network^™

Recycling The Past: Resettling Displaced Persons Communities In Northern Iraq With The Aid Of Heirless Property, Samantha Klein

Cardozo Journal of International and Comparative Law

No abstract provided.

Jupiter As Everyman: Michael Reisman And The Scholar As Teacher, James E. Baker

Georgetown Law Faculty Publications and Other Works

These are Chief Judge Baker’s remarks reflecting on the scholarship of Professor Michael Reisman in the field of national security law. Chief Judge Baker comments that Professor Reisman is a prolific writer and Scholar-Teacher dedicated to the study of force, minimization of suffering, and the advancement of human dignity and the law. He discusses how Professor Reisman’s work is distinctive in that it identifies and incorporates the critical influence of process, both formal and informal, in decisionmaking, which sometimes overshadows substance.

The Future Of The Securities And Exchange Commission As A Market Regulator, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

The Nature Of Universal Moralities, Bailey Kuklin

Faculty Scholarship

No abstract provided.

The Future Of The Securities And Exchange Commission As A Market Regulator, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Khalifa V. Shannon: How Much Interference Is Too Much When It Comes To A Tort For Interfering With The Parent-Child Relationship?, Beth Rosenberg

Maryland Law Review Online

No abstract provided.

Standing Doctrine, Judicial Technique, And The Gradual Shift From Rights-Based Constitutionalism To Executive-Centered Constitutionalism, Laura A. Cisneros

Case Western Reserve Law Review

No abstract provided.

Sophistry, Situational Ethics, And The Taxation Of The Carried Interest, Darryll K. Jones

Journal Publications

This Article is, in essence, a strident expression of indignation about what a majority of tax scholars and, indeed, legislators consider a glaring yet persistent inequity in the tax code. In short, sometimes extraordinarily well-paid fund managers receive compensation taxed at capital gains rates. All other, usually very much lower-compensated, service providers are taxed at ordinary rates. The result is clearly regressive and yet, as of late, even some respected and knowledgeable scholars-though still in the minority-have unabashedly set forth sophisticated-sounding justifications. Objections based on unfairness, real, or even merely perceived, are difficult to express without a tone of indignation, …

Judicial Review As Soft Power: How The Courts Can Help Us Win The Post-9/11 Conflict, Dawinder S. Sidhu

Faculty Scholarship

This Article seeks to answer these questions. In this Article, I will argue that the American response to Islamic terrorist factions must move outside the military sphere in which battles are fought between arms and men to a more conceptual contest for hearts and minds, where the ammunition in this abstract war will be fundamental American principles, particularly a constitutional commitment to the rule of law, and where advancements in the war will be based on incrementally increased attraction to America. This approach will speak to one’s will and conscience in an effort to secure a more lasting respite from …

Avoid Or Compensate? Liability For Incidental Injury To Civilians Inflicted During Armed Conflict, Yael Ronen

Vanderbilt Journal of Transnational Law

Under international law, civilians suffering injuries that are incidental to a lawful attack on a military objective are left to bear the cost of their losses. In recent years there have been calls for a change in policy that would entitle victims of military attacks to compensation, even if their losses are incidental and non-fault-based. This Article explores the notion of such a quasi-strict liability rule, which is likely to disrupt the existing balance of powers and interests under the laws of armed conflict. Following an exploration of the conceptual basis for such an obligation, the Article examines the effect …

Constitutional Law-In-Home Interrogation In A Police-Dominated Atmosphere Ruled Custodial Requiring Miranda Warnings-United States V. Craighead, 539 F.3d 1073 (9th Cir. 2008), Steven Vallarelli

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

This Right Is Not Allowed By Governments That Are Afraid Of The People: The Public Meaning Of The Second Amendment When The Fourteenth Amendment Was Ratified , Clayton E. Cramer, Nicholas J. Johnson, George A. Moscary

Faculty Scholarship

The lingering question following the U.S. Supreme Court's decision in District of Columbia v. Heller is whether the Court will employ the Fourteenth Amendment to incorporate the newly confirmed right to keep and bear arms as a limitation on states. The answer will hinge substantially on the Court's assessment of the intent and purpose of the Fourteenth Amendment with regard to the right to keep and bear arms. Discerning such intent requires detailed evaluation of the context within which the amendment emerged and the understanding of the right to keep and bear arms at the time. This Essay pursues in …

Asat-Isfaction: Customary International Law And The Regulation Of Anti-Satellite Weapons, David A. Koplow

Georgetown Law Faculty Publications and Other Works

This article asserts the thesis that customary international law (CIL), even in the absence of any new treaty, already provides a legal regime constraining the testing and use in combat of anti-satellite (ASAT) weapons. This argument, if validated, is important for both legal and public policy considerations: the world (especially, but not only, the United States) has grown increasingly dependent upon satellites for the performance of a wide array of commercial and military functions. At the same time, because of this growing reliance (and hence vulnerability), interest has surged in developing novel systems for attacking a potential enemy’s satellites – …

The Terrorism Bar To Asylum In Australia, Canada, The United Kingdom, And The United States: Transporting Best Practices, Won Kidane

Fordham International Law Journal

This Article assesses the wisdom of the substantive laws enacted in the wake of 9/11 and the procedures set up to combat this enemy. This Article is divided into four parts. Part I evaluates the doctrinal debate relating to the definition of terror, terrorism and terrorists. More particularly, it attemps to demonstrate the difficulty in identify the "terrorist" that needs to be excluded, and how that definition affects the immigration laws. Part II sets the stage for a comparative analysis by briefly surverying the terrorism-related immigration laws and procedures of each jurisdiction to this study. Part III provides a detailed …

A Tiny Problem With Huge Implications - Nanotech Agents As Enablers Or Substitutes For Banned Chemical Weapons: Is A New Treaty Needed?, Evan J. Wallach

Fordham International Law Journal

The underlying thesis of this Article is that while smaller-sized particles and separate nano-sized carriers of known agents are clearly covered by the CWC, nanomimics are not as squarely within the relevant provisions. The bulk of this Article deals with that question. Despite the invitation to woolgather, this Article is limited to the tightest possible analytical approach. Part I begins with definitions of chemical and biological agents within existing treaties, and of nanoproducts, including those existing beyond presently-known technical capabilities, but which are at least reasonably conceivable (“nanobots”). Part II provides an overview of treaty law that is potentially applicable …

Legal And Policy Factors Governing The Imposition Of Conditions On Access To And Jurisdiction Over Foreign-Flag Vessels In U.S. Ports, John T. Oliver

South Carolina Journal of International Law and Business

No abstract provided.

Self-Defense, The Law Of Armed Conflict And Port Security, George K. Walker

South Carolina Journal of International Law and Business

No abstract provided.

United Nations Security Council Reform: Collected Proposals And Possible Consequences, Brian Cox

South Carolina Journal of International Law and Business

No abstract provided.

Striking A Sensible Balance On The Legality Of Defensive First Strikes, David A. Sadoff

Vanderbilt Journal of Transnational Law

This Article seeks to develop a clear and sensible legal standard governing defensive first strikes writ large in inter-state conflicts. Imprecise or improperly gauged legal parameters can contribute to an increased risk of hostilities, whether due to abuse, error, or even reasoned calculation. The implications of such conduct for states and their populations alike can be enormous. Although many proposals posit constructive guideposts for such a standard, they tend to be either abstract in structure or limited in material application. This Article sets forth a legal standard that aims to be simultaneously systematic in approach, comprehensive in scope, and functional …

International Security And International Law In The Northwest Passage, James Kraska

Vanderbilt Journal of Transnational Law

Concern over the loss of sea ice has renewed discussions over the legal status of the Arctic and subarctic transcontinental maritime route connecting the Atlantic and Pacific Oceans, referred to as the "Northwest Passage." Over the past thirty years, Canada has maintained that the waters of the Passage are some combination of internal waters or territorial seas. Applying the rules of international law, as reflected in the 1982 United Nations Law of the Sea Convention, suggests that the Passage is a strait used for international navigation. Expressing concerns over maritime safety and security, recognition of northern sovereignty, and protection of …

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

Faculty Publications

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 …

Hearts And Minds And Laws: Legal Compliance And Diplomatic Persuasion, Christopher J. Borgen

Faculty Publications

This Essay considers the role of international legal argument in the war on terror and, in particular, in the attempts to justify the use of military force. Part I looks at challenges posed by the evolution of military conflict and how this affects diplomacy. In particular, I argue that a reputation for honoring one's treaty commitments and for legality, more generally, is an important part of fostering cooperation and undercutting the support of our adversaries. Part II focuses on how the Bush Administration moved between hostility to international law and attempts to rewrite the rules of international law concerning the …

Outsourcing Sacrifice: The Labor Of Private Military Contractors, Mateo Taussig-Rubbo

Journal Articles

Numerous scandals arising from the United States government’s increased use of armed private military contractors have drawn attention to the contractors’ legally ill-defined position. But the complexity of the contractors’ relation to various bodies of law and doctrine — including military law, international law, state tort law, employment law, and sovereign immunity — is not the only salient issue. The contractors are also awkwardly positioned in relation to the traditional understanding of sacrifice, which has structured Americans’ imaginings about those who kill and are killed on behalf of the nation. This Article examines the contractors’ relation to the tradition of …

Private Military Companies & International Law: Building New Ladders Of Legal Accountability & Responsibility, Jackson Nyamuya Maogoto, Benedict Sheehy

Cardozo Journal of Conflict Resolution

The Private Military Company ("PMC") is a relatively new and growing phenomenon. An urgent and ongoing problem facing courts and policy makers is the accountability of PMCs. This article proposes new approaches to developing accountability by examining the potential of two well-established doctrines: command responsibility and state responsibility.

Coping With Combat Claims: An Analysis Of The Foreign Claims Act's Combat Exclusion, Jordan Walerstein

Cardozo Journal of Conflict Resolution

The purpose of this Note is to show that, although the FCA has positively impacted U.S. military operations, the so-called "combat exclusion" severely hampers its effectiveness. Therefore, Congress should eliminate the distinction between combat and noncombat claims and adopt a unified, permanent claims system to adjudicate all claims made by civilians against U.S. military forces operating overseas. Part II of this Note explores the origins of the "combat exclusion" in international law, and Part III traces the history of civilian compensation through World War I and World War II. Part IV surveys U.S. military use of the FCA and ad …

Gerry Spence Was My Third Grade Teacher, Dana Cole

Akron Law Faculty Publications

The author challenges the "trial lawyer is warrior" metaphor and suggests that the "trial lawyer is teacher" metaphor is more useful and productive.

39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes

Akron Law Faculty Publications

The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time.

This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of …

Cultivating Native Intellect And Philosophy: A Community Symposium, Tribal Law Journal

Tribal Law Journal

Cultivating Native Intellect and Philosophy: A Community Symposium Recognizing and Discussing the Contributions of Christine Zuni Cruz was the title of a March 10 symposium at the University of New Mexico School of Law.

Zuni Cruz's work was discussed in two panel discussions, which focused on Native thought and philosophy in tribal courts and community lawyering.

Combatants And The Combat Zone, Mary Ellen O'Connell

Journal Articles

This short essay discusses that definition as it emerged following September 11, 2001. The essay compares the Administration's definition with the definition of combatant found in international law. This essay will not discuss in any detail the additional-and even more questionable-claim by the Administration that certain persons designated "enemy combatants" enjoy neither U.S. nor international human rights or IHL rights or protections.8 Suffice it to say that no human being can be denied his or her fundamental rights-there are no legal black holes.

Like A Hole In The Head, Lief H. Carter

Maryland Law Review

No abstract provided.