Digital Commons Network^™

Gentlemen Under Fire: The U.S. Military And Conduct Unbecoming, Elizabeth L. Hillman

Minnesota Journal of Law & Inequality

No abstract provided.

A Near Term Retrospective On The Al-Dujail Trial & The Death Of Saddam Hussein, Michael A. Newton

Vanderbilt Law School Faculty Publications

Saddam Hussein al-Tikriti died at the hands of Iraqi officials at dawn on December 30, 2006, following a tumultuous fourteen month trial3 for crimes committed against the citizens of a relatively obscure Iraqi village known as al-Dujail.4 Maintaining his façade of disdain when the verdict and sentence were announced on November 5, 2006, Saddam entered the courtroom with an arrogant strut and refused to stand until the guards made him do so to hear the judge’s opinion.5 When Saddam interrupted the reading of the verdict, Judge Ra’ouf Rasheed Abdel Rahman turned down the volume of his microphone and spoke over …

On The Commander-In-Chief Power, David Luban

Georgetown Law Faculty Publications and Other Works

Since September 11, the Bush administration has asserted broad, exclusive presidential war powers under the Commander in Chief Clause. However, the minimalist language of the Clause never specifies what powers a commander in chief possesses. This paper argues, based on military history, original understanding, and the contemporary theory of civilian-military relations, that the commander-in-chief power is narrow rather than broad. In ancient and feudal societies, like contemporary military dictatorships, civilian and military dominion are fused to consolidate power in the hands of a single leader – a warrior-king or fighting executive, whose military prowess validates the claim to civilian rule. …

Can Might Make Right? The Use Of Force To Impose Democracy And The Arthurian Dilemma In The Modern Era, Scott Thompson

Publications

This article explains that under international law nations are not permitted to use force to impose democracy on other nations and that such an approach is also impracticable and undesirable from a policy perspective.

The Child Protection Pretense: States' Continued Consignment Of Newborn Babies To Unfit Parents, James G. Dwyer

Faculty Publications

No abstract provided.

Hacking Into International Humanitarian Law: The Principles Of Distinction And Neutrality In The Age Of Cyber Warfare, Jeffrey T.G. Kelsey

Michigan Law Review

Cyber warfare is an emerging form of warfare not explicitly addressed by existing international law. While most agree that legal restrictions should apply to cyber warfare, the international community has yet to reach consensus on how international humanitarian law ("IHL") applies to this new form of conflict. After providing an overview of the global Internet structure and outlining several cyber warfare scenarios, this Note argues that violations of the traditional principles of distinction and neutrality are more likely to occur in cyber warfare than in conventional warfare. States have strong incentives to engage in prohibited cyber attacks, despite the risk …

Front Matter

Michigan Law Review

No abstract provided.

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander

Michigan Law Review

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …

The Terrorism Exception To Asylum: Managing The Uncertainty In Status Determination, Won Kidane

Faculty Articles

The Immigration and Nationality Act ("INA "), as it must, excludes a terrorist from receiving asylum. The substantive criteria, and the adjudicative procedures set forth under the INA for the identification of the undeserving terrorist inevitably exclude those who are neither terrorists nor otherwise undeserving. Such unintended consequences are perhaps unavoidable in any well-conceived statutory scheme. What is disconcerting is, however the margin of the possible error in the application of this statutory scheme. Those who may be excluded by the application of these provisions are often not those who are supposed to be excluded as terrorists. Moreover, the existing …

Book Review: Outsourcing Sovereignty: Why Privatization Threatens Democracy, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This is a review of Paul Verkuil's new book: Outsourcing Sovereignty: Why Privatization Threatens Democracy and What we Can Do About It. The book consists of a wide-ranging and well-documented critique of what Verkuil views as excessive reliance on private contractors to perform a variety of inherently governmental tasks, with particular emphasis on military and other national security functions. Verkuil discusses in detail numerous ways in which the U.S. might reduce the scope and severity of the severe problems that excessive reliance on poorly-supervised contractors is now having.

Pierce praises Verkuil's description and documentation of the problem he addresses in …

Public Safety And The Right To Bear Arms, Robert J. Cottrol, Raymond T. Diamond

GW Law Faculty Publications & Other Works

On Tuesday November 20th, 2007 the United States Supreme Court granted certiorari in a case involving the District of Columbia's ban on handguns. The statute had been successfully challenged in the United States Court of Appeals for the District of Columbia Circuit on the grounds that it violated the Second Amendment's guarantee of "the right of the people to keep and bear arms." With its decision to grant certiorari, the Supreme Court entered a constitutional controversy from which it had been largely absent for nearly seventy years, the meaning and scope of the Second Amendment. That controversy, the debate over …

The United States And The International Court Of Justice: Coping With Antinomies, Sean D. Murphy

GW Law Faculty Publications & Other Works

Since 1946, the United States has had an uneasy relationship with the International Court of Justice (ICJ or World Court or Court). This chapter addresses certain salient aspects of that relationship. Following an introductory Part I, Part II briefly sets forth three "antinomies" (i.e. equally rational but conflicting principles) in U.S. foreign relations that have had important ramifications for the U.S. relationship with the Court from the outset. First, the United States operates on the basis of conflicting principles with respect to the relevance of international law and institutions for U.S. foreign policy. These conflicting principles have been referred to …

Ip Litigation In The 21st Century, Michael H. Baniak, Daniel A. Boehnen, Jeanne Gills, Binal J. Patel

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

The Children Of War, Jennifer Plante

Human Rights & Human Welfare

There are more than 300,000 child soldiers in the world today. Complex economic and psychological factors have contributed to this large number; while some of these child soldiers qualify as slaves, many do not. Although there are several United Nations (U.N.) conventions that protect the rights of the child, many states have had difficulty implementing such protections. This has led to the perpetuation of the child slavery problem. Unfortunately for the children involved, their troubles do not end with the fighting. After the conflict, former soldiers must undergo the oftentimes-painful process of rehabilitation and integration back into society.

A Tripartite Battle Royal: Hamdan V. Rumsfield And The Assertion Of Separation-Of-Powers Principles, Sean Mulryne

Seton Hall Law Review

No abstract provided.

Judicial Review In Japan: An Overview Of The Case Law And An Examination Of Trends In The Japanese Supreme Court's Constitutional Oversight, Jun-Ichi Satoh

Loyola of Los Angeles Law Review

No abstract provided.

The Influence Of Law On Sea Power Doctrines: The New Maritime Strategy And The Future Of The Global Legal Order, Craig H. Allen

Articles

For much of the 2006-07 academic year, elements of the US Naval War College facilitated an elaborate process designed to provide the intellectual foundations for the Chief of Naval Operations (CNO) and his staff to draw upon in drafting a new maritime strategy. The process brought together experts from throughout the world to take part in workshops, strategic foundation "war" games, conferences and listening sessions.

It was my privilege as the Charles H. Stockton Chair of International Law to serve as legal advisor throughout the process. This article summarizes the contributions of the Naval War College International Law Department (ILD) …

Silence Of The Laws? Conceptions Of International Relations And International Law In Hobbes, Kant, And Locke, Michael W. Doyle, Geoffrey S. Carlson

Faculty Scholarship

This Essay explains how the political theorists Hobbes, Kant, and Locke interpret the decision to go to war (us ad bellum) and the manner in which the war is conducted (just in bello). It also considers the implications of the three theories for compliance with international law more generally. It concludes that although all three can lay claim to certain key features of modern international law, it is Locke who provides the most complete support for both the laws of war, in particular, and with international law, in general.

Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt

Faculty Scholarship

The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states – states that have historically carried out few or no executions – probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and …

Amicus (Volume 6, Issue No. 2) (Winter 2008), Roger Williams University School Of Law

Amicus

No abstract provided.

Protean Jus Ad Bellum, Sean D. Murphy

GW Law Faculty Publications & Other Works

The jus ad bellum is generally viewed as a static field of law. The standard account is that when the UN Charter was adopted in 1945, it enshrined a complete prohibition on the use of force in inter-state relations, except when action is being taken in self-defense against an armed attack or under authorization of the UN Security Council. Yet it seems likely that in the years to come, many states and non-state actors will increasingly insist upon a different vision of the jus ad bellum, one that conceives of it as more protean in nature.

Protean jus ad bellum …

Putting Missouri V. Holland On The Map, Edward T. Swaine

GW Law Faculty Publications & Other Works

This paper, published as part of symposium on Missouri v. Holland, explores how the circumstances of that case relate to modern criticisms of Congress' Necessary and Proper power and the doctrine of non-self-executing treaties. Focusing on some of the original concerns - for example, the need for further domestic implementation by Canada (and not, to the same degree, by the United States), the need for spending legislation, and the provision of criminal penalties - unsettles not only the understanding of the Supreme Court's decision, but also more recent critiques of the doctrines with which it has long been associated.

Germany, Afterwards, Rhoda E. Howard-Hassmann

Human Rights & Human Welfare

A review of:

Race after Hitler: Black Occupation Children in Postwar Germany and America. By Heide Fehrenbach. Princeton: Princeton University Press, 2005.

and

The Holocaust and Catholic Conscience: Cardinal Aloisius Muench and the Guilt Question in Germany. By Suzanne Brown-Fleming. Notre Dame, Indiana: University of Notre Dame Press, 2006.

and

A Woman in Berlin. By Anonymous. New York: Henry Holt, 2000.

and

Johanna Krause, Twice Persecuted: Surviving in Nazi Germany and Communist East Germany. By Carolyn Gammon and Christiane Hemker. Waterloo, Canada: Wilfrid Laurier University Press, 2007.

The Future Of Enterprise Regulation: Corporate Social Accountability And Human Freedom, Lindsay J. Thompson

Journal of Business & Technology Law

No abstract provided.

The 2007 Analysis Of Information Remaining On Disks Offered For Sale On The Second Hand Market, Andy Jones, Craig Valli, Glenn S. Dardick, Iain Sutherland

Journal of Digital Forensics, Security and Law

All organisations, whether in the public or private sector, increasingly use computers and other devices that contain computer hard disks for the storage and processing of information relating to their business, their employees or their customers. Individual home users also increasingly use computers and other devices containing computer hard disks for the storage and processing of information relating to their private, personal affairs. It continues to be clear that the majority of organisations and individual home users still remain ignorant or misinformed of the volume and type of information that is stored on the hard disks that these devices contain …

Quas Primas And The Economic Ordering Of Society For The Social Reign Of Christ The King; A Third Perspective On The Bainbridge/Sargent Law And Economics Debate, Brian Mccall

Faculty Articles

How can it be that respected Catholic legal scholars can reach seemingly opposite conclusions about “Law and Economics?” Stephen Bainbridge has argued that both the descriptive and normative aspects of the Law and Economics movement are consistent with and even demanded by the Catholic understanding of the nature of the human person in a fallen world and our historical experience with totalitarian regimes. Mark Sargent, on the other hand, argues that at least the normative, and perhaps aspects of the descriptive, side of Law and Economics are not completely consistent with the nature and purpose of the human being as …

Family Model And Mystical Body: Witnessing Gender Through Political Metaphor In The Early Modern Nation-State, Allison Anna Tait

Law Faculty Publications

The preferred political metaphor in the constitutionalist context was the mystical political body, a concept that defined a system in which power was shared and the well-being of the community was linked to the well-being of the individual. Within the mystical political body, the theoretical possibility exists for women not only to occupy a civic space through organic (and organological) association but also to articulate their perspective and its consequences for the political community in a civically approved way. In the mystical body, women approach a citizenship status impossible within the traditional family framework and their witnessing is closely associated …

Debugging Software Patents: Increasing Innovation And Reducing Uncertainty In The Judicial Reform Of Software Patent Law, Robert E. Thomas

Santa Clara High Technology Law Journal

No abstract provided.

Protecting Financial Markets: Lessons From The Subprime Mortgage Meltdown, Steven L. Schwarcz

Faculty Scholarship

Why did the recent subprime mortgage meltdown undermine financial market stability notwithstanding the protections provided by market norms and financial regulation? This article attempts to answer that question by identifying anomalies and obvious protections that failed to work, and then by examining hypotheses that might explain the anomalies and failures. The resulting explanations provide critical insights into protecting financial markets.

Information Security Breaches: Looking Back & Thinking Ahead, Fred H. Cate

Articles by Maurer Faculty

No abstract provided.