Digital Commons Network^™

Detention As Targeting: Standards Of Certainty And Detention Of Suspected Terrorists, Matthew C. Waxman

Faculty Scholarship

To the extent that a state can detain terrorists pursuant to the law of war, how certain must the state be in distinguishing suspected terrorists from nonterrorists? This Article shows that the law of war can and should be interpreted or supplemented to account for the exceptional aspects of an indefinite conflict against a transnational terrorist organization by analogizing detention to military targeting and extrapolating from targeting rules. A targeting approach to the detention standard-of-certainty question provides a methodology for balancing security and liberty interests that helps fill a gap in detention law and helps answer important substantive questions left …

Humanitarian Assistance And The Private Security Debate: An International Humanitarian Law Perspective, Benjamin Perrin

All Faculty Publications

The changing nature of armed conflict has had a dramatic impact on the security risks facing humanitarian personnel. Historically, the safety of humanitarian aid delivery was secured through the consent of the relevant Parties to the conflict. However, non-international ethnically-motivated armed conflicts, failed and failing states, and insurgency-based warfare have fundamentally challenged the viability of this traditional security paradigm. In confronting today's complex security climate, humanitarian organizations are faced with a diverse menu of alternatives to enhance their security. The debate over armed protection that has sharply divided the humanitarian community is explored in this paper, including a critique of …

The Lawful Acquisition And Exercise Of Monopoly Power And Its Implications For The Objectives Of Antitrust, David S. Evans, Keith N. Hylton

Faculty Scholarship

The antitrust laws of the United States have, from their inception, allowed firms to acquire significant market power, to charge prices that reflect that market power, and to enjoy supra-competitive returns. This article shows that this policy, which was established by the U.S. Congress and affirmed repeatedly by the U.S. courts, reflects a tradeoff between the dynamic benefits that society realizes from allowing firms to secure significant rewards, including monopoly profits, from making risky investments and engaging in innovation; and the static costs that society incurs when firms with significant market power raise price and curtail output. That tradeoff results …

Health Care Reform In America: Beyond Ideology, George J. Annas

Faculty Scholarship

The inspiration for the following keynote address was drawn from an article authored by Professor Annas in 1995 which appeared in the New England Journal of Medicine.² In that article, Professor Annas sought to explain the Clinton healthcare plan's failure by analyzing the power and importance of the healthcare reform metaphors used in promoting the plan. In his remarks here, Professor Annas extends his analysis of healthcare related metaphors to those common in current healthcare reform parlance, theorizing that current efforts at healthcare reform have been unsuccessful, in part, because the metaphors used fail to frame the issues involved …

Neuroimaging Research Into Disorders Of Consciousness: Moral Imperative Or Ethical And Legal Failure?, Stacey A. Tovino

Scholarly Works

This article explores the ethical and legal implications of enrolling individuals with disorders of consciousness (DOC) in neuroimaging research studies. Many scientists have strongly emphasized the need for additional neuroimaging research into DOC, characterizing the conduct of such studies as morally imperative. On the other hand, institutional review boards charged with approving research protocols, scientific journals deciding whether to publish study results, and federal agencies that disburse grant money have limited the conduct, publication, and funding of consciousness investigations based on ethical and legal concerns. Following a detailed examination of the risks and benefits of neuroimaging research involving individuals with …

Beyond Intention, Kimberly Kessler Ferzan

Cardozo Law Review

No abstract provided.

The Public Trust Doctrine, Environmental Human Rights, And The Future Of Private Property, David Takacs

Faculty Scholarship

No abstract provided.

Two Tailors: The Pursuit Of Racial Justice In 1970s Chicago, Susan L. Waysdorf

University of the District of Columbia Law Review

Every legal case has a story behind it, and some, like this one, also have a legacy. This is a story about two immigrant tailors in Chicago-the white tailor's attempt to sell his tailor shop to the black tailor, and the racial discrimination they confronted together. One tailor, Ivan Thompson, was a black citizen of Great Britain living in Chicago, and the other, Martin Waysdorf, was a white Jew from Poland. He became a. U.S. citizen in 1949, after emigrating from his Polish shtetl to Chicago and escaping the Nazi Holocaust.' The Jewish tailor was my father. This article will …

Does Congress Have The Power To Limit The President's Conduct Of Detentions, Interrogations And Surveillance In The Context Of War?, Shayana Kadidal

City University of New York Law Review

No abstract provided.

The Political Balance Of Power Over The Military: Rethinking The Relationship Between The Armed Forces, The President, And Congress, Geoffery S. Corn, Eric Talbot Jensen

Faculty Scholarship

Recent events related to the planning and execution of the war in Iraq, most notably the perceived 2003 "firing" of then Army Chief of Staff Eric Shinseki, have raised concerns over the effect of Executive Branch dominance of the military and how that dominance impacts the ability of Congress to obtain timely and important information. Such actions, perceived to discourage members of the military from providing candid views to Congress when they differ with the Administration, even if implied instead of express, strike at the very core of the founder's intent to balance military power within the national government. The …

The Icj's Uganda Wall: A Barrier To The Principle Of Distinction And An Entry Point For Lawfare, Eric Talbot Jensen

Faculty Scholarship

The intermixing of combatants with civilians while engaging in hostilities violates one of the most fundamental principles of the law of armed conflict: the principle of distinction. This bedrock principle of the law of war requires those involved in conflict to mark themselves so they can be distinguished from those who are not involved in combat. The most common method of compliance is for combatants to wear a uniform. By requiring distinction, both combatants and civilians know who is involved in the combat and who is not. Derogation from the principle of distinction is among the most serious issues facing …

Post-Conflict Reconstruction, Eric Talbot Jensen

Faculty Scholarship

No abstract provided.

Agbar V. Idf Commander In Judaea And Samaria, Elyakim Rubinstein, Edmond E. Levy, Yoram Danziger

Translated Opinions

Facts: In 2007, an administrative detention order was made against the petitioner in HCJ 9441/07 on the ground that he was active in the Hamas organization and presented a threat to security in the territories. The order was made for six months and was subsequently renewed for an additional period of six months.

In 2006, an administrative detention order was made against the petitioner in HCJ 9454/07 on the ground that he was active in the Popular Front terrorist organization and presented a threat to security in the territories. The order was made for six months and was subsequently renewed …

The Man Behind The Torture, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Shake & Bake: Dual-Use Chemicals, Contexts, And The Illegality Of American White Phosphorus Attacks In Iraq, Joseph D. Tessier

The University of New Hampshire Law Review

[Excerpt] “On November 29, 2005, in a Department of Defense press conference with Secretary of Defense Donald Rumsfeld and Gen. Peter Pace, Chairman of the Joint Chiefs of Staff, General Pace stated that white phosphorus “is a legitimate tool of the military,” and can be used for illumination, smoke, and incendiary purposes. Incredibly, the Department of Defense released an addendum to the press conference clarifying that white phosphorus was not used as an incendiary weapon. According to General Pace, “it was well within the law of war to use white phosphorus . . . for marking and screening.” This was …

Introduction To Law And Economic Development In Latin America: A Comparative Approach To Legal Reform, Thomas H. Hill

Chicago-Kent Law Review

No abstract provided.

Motions 2007 Volume 43 Number 3, University Of San Diego School Of Law Student Bar Association

Newspaper, Motions (1987-2019)

No abstract provided.

Healing The Trauma Of America's Past: Restorative Justice, Honest Patriotism, And The Legacy Of Ethnic Cleansing, Howard J. Vogel

Buffalo Law Review

No abstract provided.

Prologue To A Voluntarist War Convention, Robert D. Sloane

Michigan Law Review

This Article attempts to identify and clarify what is genuinely new about the "new paradigm" of armed conflict after the attacks of September 11, 2001. Assuming that sound policy counsels treating certain aspects of the global struggle against modern transnational terrorist networks within the legal rubric of war, this Article stresses that the principal challenge such networks pose is that they require international humanitarian law, somewhat incongruously, to graft conventions-in both the formal and informal senses of that word-onto an unconventional form of organized violence. Furthermore, this process occurs in a context in which one diffuse "party" to the conflict …

Human Shields, Homicides, And House Fires: How A Domestic Law Analogy Can Guide International Law Regarding Human Shield Tactics In Armed Conflict, Douglas H. Fischer

American University Law Review

No abstract provided.

2007 Scholars And Artists Bibliography, Michael Schwartz Library, Cleveland State University, Friends Of The Michael Schwartz Library, Joanne E. Goodell Ph.D.

Scholars and Artists Bibliographies

This bibliography was created for the annual Friends of the Michael Schwartz Library Scholars and Artists Reception, recognizing scholarly and creative achievements of Cleveland State University faculty, staff and emeriti. Dr. Joanne Goodell was the guest speaker.

The Origins Of Shared Intuitions Of Justice, Owen D. Jones, Paul H. Robinson, Robert Kurzban

Vanderbilt Law School Faculty Publications

Contrary to the common wisdom among criminal law scholars, empirical evidence reveals that people's intuitions of justice are often specific, nuanced, and widely shared. Indeed, with regard to the core harms and evils to which criminal law addresses itself-physical aggression, takings without consent, and deception in transactions-the shared intuitions are stunningly consistent across cultures as well as demographics. It is puzzling that judgments of moral blameworthiness, which seem so complex and subjective, reflect such a remarkable consensus. What could explain this striking result?

The authors theorize that one explanation may be an evolved predisposition toward these shared intuitions of justice, …

"You Fall Into Scylla In Seeking To Avoid Charybdis": The Second Circuit's Pragmatic Approach To Supervised Release For Sex Offenders, Frank E. Correll Jr.

William & Mary Law Review

No abstract provided.

Barring Too Much: An Argument In Favor Of Interpreting The Immigration And Nationality Act Section 101(A)(42) To Include A Duress Exception, Nicole Lerescu

Vanderbilt Law Review

The asylum system is in disarray. The United States is unable to guarantee that every asylum seeker will receive a fair and impartial hearing. Although media attention recently has focused on the asylum system's procedural flaws, unjust statutory interpretations also work against those seeking refuge in the United States. This Note focuses on one particular example within this commonly criticized area of the law: the prevailing interpretation of section 101(a)(42) of the Immigration and Nationality Act to bar those who have persecuted others under duress from attaining refugee status.

It is intuitively appealing that a system of laws should hold …

Toward Informational Privacy Rights, Adam D. Moore

San Diego Law Review

In this paper I will offer several arguments in support of the view that individuals have moral claims to control personal information. Coupled with rights to control access to one's body, capacities, and powers, or physical privacy rights, we will have taken important steps toward a general right to privacy. In Part I, a definition of privacy is offered along with an account of the value of privacy. Simply put, privacy - defined as control over access to locations and information - is necessary for human well-being. In Part II, an attempt to move beyond claims of value to claims …

Decency, Dignity, And Desert: Restoring Ideals Of Humane Punishment To Constitutional Discourse, Eva Nilsen

Faculty Scholarship

American punishment today is degrading, indecent, and harsher than deserved despite a Constitution designed to protect people from cruel and unusual punishment. Unfortunately, the U.S. Supreme Court’s response to the increasing inhumanity of contemporary punishment has been to reduce its Eighth Amendment jurisprudence to tidy categories, legal fictions, and hollow phrases. Absent from the discourse is any acknowledgement of the actual day-to-day experience facing the convicted person, or any suggestion that, although punishments can be degrading, they need not be. The case for treating a convicted person with respect for his human dignity, and for constitutional scrutiny of punishment as …

The Origins Of Shared Intuitions Of Justice, Owen D. Jones, Paul H. Robinson, Robert Kurzban

Vanderbilt Law Review

The role of justice in assigning criminal liability and punishment has been a matter of long-standing debate. A standard argument against a desert distributive principle-that is, against distributing punishment according to an offender's blameworthiness- has been that such a concept of "desert" is simply too vague and the subject of too much disagreement to operationalize. There may be some truth to these complaints when applied to a philosophical notion of desert, which has been the traditional basis of the desert school.

But more recently, a utilitarian-based theory of desert has urged reliance on an empirical notion of desert, drawn from …

Us Policy On Small Arms Transfers: A Human Rights Perspective, Susan Waltz

Human Rights & Human Welfare

From Somalia and Afghanistan to Bosnia, Haiti, Colombia, Rwanda, Sierra Leone, Liberia and Congo, small arms and light weapons were a common feature of the human rights calamities of the 1990’s.

© Susan Waltz. All rights reserved.*

*A shorter version of this paper is published as “U.S. Small Arms Policy: Having It Both Ways,” in the Summer 2007 issue of World Policy Journal.

This paper may be freely circulated in electronic or hard copy provided it is not modified in any way, the rights of the author not infringed, and the paper is not quoted or cited without express permission …

Guns And Gay Sex: Some Notes On Firearms, The Second Amendment, And 'Reasonable Regulation', Glenn Harlan Reynolds

Scholarly Works

In light of the Supreme Court's grant of certiorari in Heller v. District of Columbia, this Essay contains some thoughts inspired by Adam Winkler's "Scrutinizing the Second Amendment," 105 Mich. L. Rev. 683 (2007). Winkler argues, correctly, that judicial acceptance of an individual-rights interpretation of the Second Amendment would not end all firearms regulation. However, Winkler's understanding of what constitutes "reasonable regulation" is excessively broad. In "Guns and Gay Sex," I look at two overlapping lines of Tennessee cases on the right to arms and the right to privacy and conclude that even a "reasonable regulation" model of the right …

Survey Of Cooperation Among Clinical, Pro Bono, Externship And Legal Writing Faculty, Susan Wawrose, Sarah E. Ricks

School of Law Faculty Publications

Recent surveys by a committee of the Legal Writing Institute (LWI) show that many legal writing faculty around the country are engaged in exciting and creative collaborations with their colleagues in clinics and in externship and pro bono programs. Faculty from these different programs work together around course and curriculum planning, on large and small teaching initiatives, and on scholarship. Whether the proper metaphor for this type of collaboration is collision or something more constructive, the inspiring fact is that these collaborations are taking place.