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Operational Terms, United States Army

United States Army: Field Manuals

Operational Terms, United States Army Field Manual FM 1-02.1

Federal Common Law Stare Decisis And The Doctrine Of Equitable Apportionment, Eric P. Leis

Buffalo Environmental Law Journal

United States Supreme Court Justice Clarence Thomas erred in his concurrence to Gamble v. United States when he derived his “demonstrably erroneous” standard of stare decisis because he overlooked a significant portion of federal law: federal common law. In Gamble, Justice Thomas argued for a weak standard of stare decisis under which the Supreme Court would overrule any “demonstrably erroneous” precedent that is contrary to our written laws, regulations, and Constitution. This standard may be functional when applying positive law, but it simply cannot be maintained when confronted with matters of federal common law. Were Justice Thomas’ “demonstrably erroneous” standard …

Pesticide-Coated Seeds: How The Treated Articles Exemption Circumvents Regulation And Harms The Environment, Scott Hudson

Buffalo Environmental Law Journal

Pesticide-coated seeds dominate the seed market for a wide range of crops, making them the primary means of delivering pesticides to many agricultural plants. Scientific research has revealed increasingly adverse effects from pesticide-coated seeds, including contamination of native plants, surface waters and groundwater, as well as causing the death of non-targeted insects and birds. Evidence also shows that pesticides from the seeds migrates to drinking water supplies and potentially imperils human health. Yet pesticide-coated seeds are not regulated by the United States Environmental Protection Agency due to a little-known exemption called the Treated Articles Exemption. This Article argues that EPA’s …

Navigating The Battlefield Of Hunger During Armed Conflicts: Obligations, Obstacles And Solutions, Ying Chen, Tarisa Yasin

American University International Law Review

Despite sufficient global food supplies, food insecurity remains a persistent problem in many countries. In recent years, conflict has emerged as one of the key drivers of acute food insecurity, affecting hundreds of millions of people worldwide. The situation has worsened since 2022, as the impacts of the Russia-Ukraine war are felt worldwide. This Article investigates food security challenges arising from armed conflicts and proposes potential solutions to tackle these challenges. It first examines the right to food as enshrined in both international and national laws. These legal frameworks set out the rules that govern the responsibilities of States and …

Adopting The Benefit-Of-The Doubt Rule In Veterans' Affairs Adjudication That Congress Intended, Christopher L. Galarza

American University Law Review

This Comment examines the Federal Circuit’s interpretation of 38 U.S.C § 5107(b), more commonly known as the “benefit-of-the-doubt” rule as it applies to the adjudication of claims by the U.S. Department of Veterans Affairs. The benefit-of-the-doubt rule is a unique standard of proof in American jurisprudence in that, by its own text, purports to instruct the Department of Veterans Affairs to give claimants the benefit of the doubt in situations where the available evidence does clearly support a case for benefits. This Comment proceeds by reviewing the history of veteran benefits adjudication in the United States and the regulatory history …

Critical Theories, Justice, And The Rule Of Law, Adam J. Macleod

Scholarly Articles

An increasing number of legal scholars and activists now identify law as an impediment to justice that must be deconstructed. The deconstructionists tear down the resources we need to sustain the rule of law. And as they deconstruct law, they also deconstruct justice itself. Against deconstructionism, the classical tradition of jurisprudence that gave us our fundamental law affirms that we can know justice and that we can achieve justice through the establishment of law.

That classical tradition made possible the conviction that law is not a mere product of power, as the deconstructionists assert. And that conviction made the rule …

Under The Golden Arch: Permanent Neutrality And Authoritarian International Law In Turkmenistan, Madison Wall

Emory International Law Review

No abstract provided.

The Forty-Seven Years’ War: Identifying The Cold War As An Armed Conflict As A Matter Of International Law, Peter S. Konchak

Emory International Law Review

No abstract provided.

Updating The Caroline Doctrine: A Relic In An Age Of Hypersonic Weapons, David S. Jonas, Tyler Breeden

American University International Law Review

The United States dropped “Little Boy” and “Fat Man” on the cities of Hiroshima and Nagasaki in 1945, bringing an end to World War II and killing between 110,000 and 210,000 people. Japan surely needed much more than rock and roll to help them—especially since Japan had no nuclear weapons of their own to deter the United States from attacking with nuclear weapons. Nuclear weapons technology has evolved considerably in the years since 1945, when only the United States possessed nuclear weapons. Nine states now have or are suspected of having them, and at least one other state appears to …

Ecocide In War And Peace, From The Air Pollution Consequences Of The War In Ukraine To Japan's Disposal Of Fukushima Water Into The Ocean, Giovanni Chiarini

Case Western Reserve Journal of International Law

This Article will propose and analyze potentially prosecutable cases of alleged global ecocide and propose targeted amendments to Articles 36(3) and (5) of the ICC Rome Statute. These proposed amendments may serve as a blueprint to procedurally ensure environmental expertise at the international judicial level. Ecocide is unfortunately not currently recognized under the Rome Statute. However, certain scholars have suggested defining it as a fifth international crime. This analysis identifies environmental crises, international criminal law expectations and examines the environmental pollution caused by the Russian invasion of Ukraine and the Japanese government’s decision to dispose of radioactive treated water from …

Guardians Of Ethics For The Profession Of Arms: Judge Advocates Assisting Commanders To Choose The Harder Right Over The Easier Wrong, Lisa M. Schenck

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

What’S The Game Plan? An Analysis Of How Antitrust And Sanction Laws Currently Apply And Should Apply To The International Sports Investment Boom, Eric Geringer

Emory International Law Review

No abstract provided.

Encryption Backdoors And The Fourth Amendment, Robert M. White

Marquette Law Review

The National Security Agency (NSA) reportedly paid and pressured technology companies to trick their customers into using vulnerable encryption products. This Article examines whether any of three theories removed the Fourth Amendment’s requirement that this be reasonable. The first is that a challenge to the encryption backdoor might fail for want of a search or seizure. The Article rejects this both because the Amendment reaches some vulnerabilities apart from the searches and seizures they enable and because the creation of this vulnerability was itself a search or seizure. The second is that the role of the technology companies might have …

Defeat Fascism, Transform Democracy: Mapping Academic Resources, Reframing The Fundamentals, And Organizing For Collective Actions, Francisco Valdes

Seattle University Law Review

The information we gathered during 2021–2023 shows that critical faculty and other academic resources are present throughout most of U.S. legal academia. Counting only full-time faculty, our limited research identified 778 contacts in 200 schools equating to nearly four contacts on average per school. But no organized critical “core” had coalesced within legal academia or, more broadly, throughout higher education expressly dedicated to defending and advancing critical knowledge and its production up to now. And yet, as the 2021–2022 formation of the Critical (Legal) Collective (“CLC”) outlined below demonstrates, many academics sense or acknowledge the need for greater cohesion among …

Legal Endearment: An Unmarked Barrier To Transforming Policing, Public Safety, And Security, Emmanuel Mauleón

Articles

The problems of racialized policing have come into renewed focus over the past decade. The advent of viral bystander videos has not only forced a popular confrontation with moments of both routine and extraordinary policing violence but also sparked protests, uprisings, and grassroots movements to challenge current practices in policing and determine what must be done to transform it. And yet, even after the mobilization of one of the largest racial justice movements in American history, transformative change remains elusive. This Article offers an answer to this puzzle by foregrounding White people’s collective relationship with policing and describing how this …

Policing The Strait: How China’S Policing Of The Taiwan Strait Violates The U.N. Convention On The Law Of The Sea, Elizabeth C. Parker

American University International Law Review

As tensions continue to grow across the Taiwan Strait, China is using domestic maritime law to justify an expansion of police power in the international waters of the Taiwan Strait in violation of international law. This Comment will argue that the People’s Republic of China has violated the UN Convention on the Law of the Sea (“UNCLOS”) by implementing non-resource-related police power in waters meant only for resource exploration and management. In comparing the language of China’s domestic maritime law with that of UNCLOS, this Comment will show that the People’s Republic of China has used domestic law to reinterpret …

Charting Extraterritoriality: Jurisdiction, Corporate Conduct, And Environmental Harm, Kalika Mehta

National Law School of India Review

Chimni’s TWAIL critique of the principle of jurisdiction, the subject of this symposium, implicates its development with the evolution of capitalism. Against this backdrop, this paper uniquely focuses on international criminal law and the selective application of principle of extraterritorial jurisdiction, particularly its exclusion of corporate entities from prosecution for large-scale violence. Through an analysis that engages with Chimni’s critique, the paper illustrates how these extraterritorial prosecutions align with the mainstream liberal theory of jurisdiction, while also exposing gaps in corporate accountability. Further, the paper contributes to ongoing legal reform debates by exploring the proposed international crime of ecocide, a …

Ok, Computer: Harnessing Ai In Contracts To Change How Our Students Will Practice And How We Will Teach, Mark E. Need

Transactions: The Tennessee Journal of Business Law

No abstract provided.

The Sixth Warfighting Domain?: Governing The Space-Cyber Nexus, Eytan Tepper, Scott Shackelford, James B. Romano, Sergei Dmitriachev

Georgia Law Review

This Article reviews the recent emergence of the space-cyber nexus as a distinct warfighting domain, solidified during the Russian invasion of Ukraine, and analyzes the (missing?) laws of space-cyber warfare. The Article further suggests a roadmap for the development of norms and rules under the constraints of contemporary geopolitics and difficulties in multilateral rulemaking. As space-based infrastructure became critical to modern militaries and economies, it has, as a result, become a prime target. While only four countries possess antisatellite missiles (United States, Russia, China, and India), cyberattacks require much less in terms of funds and technological sophistication and can also …

Adapting A Human Rights-Based Framework To Inform Militaries’ Artificial Intelligence Decision-Making Processes, Daragh Murray

Saint Louis University Law Journal

Key global powers are engaged in the development of artificial intelligence (“AI”) for military purposes, and it is widely accepted that the development and deployment of AI tools will lead to a revolution in military strategy and the practice of warfighting. The question is whether these tools can be designed, developed, and deployed in a manner that facilitates compliance with international legal obligations—in particular the law of armed conflict and international human rights law—and if so, how. To date, this question has not been answered satisfactorily. This article examines how concepts and procedures derived from international human rights law can …

Second-Tier Marriages, Jeremiah A. Ho

Saint Louis University Law Journal

This Essay interrogates the reasoning behind the retrenchment toward LGBTQ rights progress that has taken place since marriage equality. With marriage rights for same-sex couples now “on the books,” the Supreme Court’s treatment of same-sex couples in both Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n and 303 Creative LLC v. Elenis reveals the status quo’s hesitancy to recognize same-sex relationships on equal footing. Retrenchment, however, only describes the moment itself; it alludes to but offers no comprehensive or satisfying theory that identifies the motives behind the moves. This Essay theorizes from within the context of the Supreme Court’s LGBTQ …

Establishment Clause Mythology, Peter J. Smith, Robert W. Tuttle

Case Western Reserve Law Review

No abstract provided.

The Success Of Pre-Enforcement Challenges To Antidiscrimination Laws, Alexander Gouzoules

Faculty Publications

Formally, judicial analysis of a challenged statute's validity should be consistent, regardless of the challenge's pre- or post-enforcement posture. A post-enforcement posture arises when an aggrieved party defensively challenges a purportedly unconstitutional statute being enforced against them. Alternatively, a pre-enforcement posture arises when an impacted party strikes first, attacking the statute by asserting a credible threat that the law will be enforced against them in the future. Either way, judicial evaluation of a statute's validity should turn on its content and effect-not on whether it was challenged before or after enforcement.

This Article challenges that assumption, arguing that pre-enforcement challengers …

The Marijuana Insurgency: Federalism And Social Reframing In Policy Reform, Matthew P. Cavedon

Seattle University Law Review

After fifty years of federal prohibition, marijuana reform efforts have won political and legal success. These victories hold lessons for anyone seeking to resist federal law without being able to directly affect it.

Victory can come from reframing an issue. For marijuana reform, social reframing—not formal legal analysis or material factors—provides the best explanation for how advocates achieved change. Their unconventional political tactics, akin to those used by insurgents in wartime, undercut federal prohibition by winning hearts and minds.

This is an analysis of the sociology of legal change. It is also the story of how ordinary Americans retook personal …

Repairing The Family Law Attorney, Daniel F. Bousquet

Lewis & Clark Law Review

Professor Clare Huntington’s scholarship advances a theoretical “Reparative Model” of family law that seeks to deemphasize adversarial decision-making and decrease litigation. Building off that scholarship, this Article considers the family law attorney’s role and argues that the current Model Rules of Professional Conduct already support—and should be understood to require—a “reparative” advisory role for the family law attorney. Put simply, the harsh realities of the adversarial court system demand that family law attorneys presumptively provide information on litigation’s harmful impacts on families and children and encourage the possibility of pursuing goals via means less detrimental than litigation. To encourage a …

International Cultural Property Protection And Law: Ukraine And Beyond, Susanna Helms

Undergraduate Honors Theses

This project examines the ongoing destruction and theft of Ukrainian cultural heritage by Russian forces since February 2022 in tandem with international cultural property law, and theory, and case studies. By studying relevant cultural property laws and gathering information from associated theories of cultural property nationalism and internationalism, this project examines how these laws and theories apply to modern Ukraine. This thesis utilizes a qualitative approach to analyze theories surrounding cultural property and heritage and explores how these theories influence international law. For a more comprehensive approach, three case studies are used and examined via qualitative historical analysis: Nazi art …

Ukraine, Moral Outrage, And International Law, Heidi Gilchrist

Faculty Scholarship

No abstract provided.

Embodied Ecologies And Legal Wars: The Use Of Force, Ukraine, And Feminist Perspectives On International Law, Gina Heathcote

Saint Louis University Law Journal

In this article, I examine the international law on the use of force alongside a feminist analysis of the ongoing Russian aggression in Ukraine. I draw on records of mushroom foraging to evidence how everyday practices of communities are destroyed by military aggression that disrupts the embodied ecologies reproduced in intergenerational human and nonhuman encounters. The mushrooms foraged in Ukraine, the mushrooms destroyed during military encounters, and the mushrooms growing beside land mines provide an aperture for shifting both feminist and international legal accounts of armed conflict. I argue that ecologies of harm produce means to understand the gendered violence …

Foreword, Afonso Seixas-Nunes S.J.

Saint Louis University Law Journal

On February 24, 2022, the Russian Federation invaded Ukraine. After more than two years, this conflict has caused an uncountable number of victims and more than six million Ukrainian refugees are spread around the world begging for protection and safe harbour. This ongoing conflict and the increasing level of force, the questionable nature of means and methods of warfare used begs the question whether international institutions in general, and International Law in particular, are still effective means “to maintain international peace and security, and to that end: to take effective measures for the prevention and removal of threats to …

War Crimes As Vocabulary Shaping The Visible, Rebecca Mignot-Mahdavi

Saint Louis University Law Journal

The traditional exclusion of sexual violence and rape from the ambit of international humanitarian law stems from the long-established masculinist perception of war and the exacerbated invisibility of women and girls in that context. International criminal law tried to recognize this traditionally invisible suffering and pain in armed conflicts by characterizing rape and sexual violence as war crimes. This contribution explores the effect of the recognition of rape and sexual violence as war crimes on conflicts and societies as a case study to explore the use of war crimes and international criminal law—rather than International Humanitarian Law (“IHL”) norms—as a …