Digital Commons Network^™

Market Failure And Censorship In The Marketplace Of Ideas, John P. Anderson, Jeremy Kidd

Oklahoma Law Review

No abstract provided.

Criminal Law—The Cruel And Unusual Practice Of Sentencing Young Adults To Life Behind Bars—People V. Parks, 987 N.W.2d 161 (Mich. 2022), Catherine Treseler

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Consent And Disagreement, Aditi Bagchi

Faculty Scholarship

Contracts purport to settle rights and obligations between parties. The fact that parties have consented to a given set of terms seems to hold the promise of preempting conflict about those terms after the fact. But contract gives rise to disputes about consent itself. Many disputes about implied conditions, for example, are best understood as disagreements about the scope of consent.

This article identifies several moral ambiguities in the concept of concept. We not only disagree about the analytic merits of competing conceptions among ourselves but, even as individuals, we tend not to endorse and consistently apply a single version …

“With Intent To Destroy, In Whole Or In Part”: Genocide, Ethnic Cleansing, And A Lost History, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

Drawing upon original research into the travaux préparatoires of the 1948 Genocide Convention, this Article advances several claims that complicate the standard account according to which genocide must entail a purpose to physically destroy at least a substantial part of a protected group. The core of the Article closely explores the words “intent,” “destroy,” and “in part,” showing how international authorities have settled on a received and largely uninterrogated wisdom regarding the meaning of these terms, one which is supported neither by the drafting history of the Genocide Convention, nor even by the actual results of the judicial decisions that …

Blinded By The Light: Resolving The Conflict Between Satellite Megaconstellations And Astronomy, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The sudden emergence of large constellations of small satellites in low altitude orbits represents one of the most dramatic contemporary innovations in outer space. Promising low-cost, low-latency global communications and spectacular capacities for remote sensing of the Earth, these satellites will soon number in the tens of thousands, sponsored by diverse corporations and countries around the world. But this proliferation of spacecraft comes at a steep cost in unavoidable interference with ground-based astronomy: as the satellites overfly the observatories, they block the views of remote objects and phenomena, leaving obliterating white streaks on the collected imagery, and obscuring access to …

Human Rights, Poverty, And Care Of Girls And Women With The Prospect Of A Baby, Mccauliff, Catherine M.A.

Santa Clara Law Review

Human rights provide the lens used here to examine the treatment of women and girls at a time in their lives when they deserve the utmost respect, understanding and assistance, when they are early in a pregnancy, wanted or not, the result of violence or not, or a miscarriage of a wanted child. We live in a society where “[e]ssentially, people will have children if they feel they have job security, a stable economy, and feel supported in starting a family.” Some countries and cities provide assistance to a mother upon the birth of a child in the form of …

Power Dynamics And Oppression: Analyzing Structural Control In Suzanne Collins’S The Hunger Games, Hannah Micciolo

Capstone Showcase

The Hunger Games is a popular novel universe that describes a totalitarian dictatorship through the lens of the oppressed. Through the book, the viewer is given insight into how Panem operates the way it does even though the majority of its citizens are oppressed by the minority in a much more obvious manner. However, within modern society, the tactics used by the oppressors are much more ambiguous and distorted. This essay will explore the structures put in place by the Capitol in tandem with modern examples to mirror each other and increase awareness of the the tactics governments use both …

Administering A Democratic Industrial Policy, Joel Michaels, Amy Kapczynski

Center for Law and the Economy

In Washington today, we are witnessing what many call the “return of industrial policy.” Some argue that a new political economic paradigm is emerging, departing from the neoliberal order of the last several decades. High-stakes questions about how to administer industrial policy have followed, for good reason: industrial policy necessarily involves a great deal of administrative discretion. Yet we have no adequate literature discussing how that discretion should be deployed. Administrative law scholarship has largely ignored the distinctive tools of industrial policy, such as grantmaking, lending, government contracts and ownership stakes. These tools require flexibility and discretion, and often cannot …

Diamonds (And War Crimes) Are Forever: Creating A Time-Immune Framework For The Repatriation Of Stolen Cultural Heritage Objects Applying Pillage Principles, Olivia Tyler Dickinson Dibb

Emory International Law Review Recent Developments

There is a long global history of invading countries laying claim to the cultural heritage object of the states they conquer. In the modern age, there is some international law in place to govern the repatriation of misappropriated (stolen) cultural heritage items. However, none of the applicable conventions is retroactive, rendering them ineffective concerning all objects misappropriated prior to 1954. Given the timing of globalization and global colonization practices, this means that the range of object to which existing international law applies is very limited indeed. This comment proposes a new legal framework for repatriation of cultural heritage objects incorporating …

Enhancing Fairness And Compassion In Military Disciplinary Proceedings, Rinat Kitai-Sangero

Cardozo International & Comparative Law Review

This Article critically assesses the disciplinary proceedings carried out by judicial officers within the military, shedding light on the absence of crucial procedural guarantees, such as the right to legal representation and an impartial judge. After comparing the Israeli disciplinary proceedings with the Summary Court-Martial system in the United States and considering arguments used to justify the lack of procedural guarantees, the Article emphasizes the emotional distress experienced by soldiers who feel powerless due to power imbalances with their commanders and the severity ofprison sentences they may face. While the Article primarily focuses on the Israeli army, its main arguments …

Reuniting "Active" And "Direct" Participation: The International Criminal Court's Dph Divorce In Lubanga, Josef Danczuk

Cardozo International & Comparative Law Review

Throughout treaty-making processes and turn-of-the-century international criminal tribunal decisions, scholars and judges alike determined that the terms "direct" and "active," when referring to participation in hostilities, were synonymous. However, the International Criminal Court ("ICC'), in interpreting the Rome Statute in the Lubanga case, determined that they were not, creating disparity between interpretations of the same terms within International Criminal Law ("ICL") and the Law of Armed Conflict ("LOAC"). Not only is the ICC's interpretation legally wrong, it is also practically unworkable and distorts the well-established doctrine of DPH as defined in LOAC. Lubanga may have broadened protectionfor child soldiers, but …

Temporary Protection For Ukrainians In The European Union: Why Now And When Again, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Blinded By The Light: Resolving The Conflict Between Satellite Megaconstellations And Astronomy, David A. Koplow

Vanderbilt Journal of Transnational Law

The sudden emergence of large constellations of small satellites in low altitude orbits represents one of the most dramatic contemporary innovations in outer space. Promising low-cost, low-latency global communications and spectacular capacities for remote sensing of the Earth, these satellites will soon number in the tens of thousands, sponsored by diverse corporations and countries around the world. But this proliferation of spacecraft comes at a steep cost in unavoidable interference with ground-based astronomy: as the satellites overfly the observatories, they block the views of remote objects and phenomena, leaving obliterating white streaks on the collected imagery, and obscuring access to …

Temporary Protection For Ukrainians In The European Union: Why Now And When Again?, Maryellen Fullerton

Vanderbilt Journal of Transnational Law

In 2022, the Russian invasion of Ukraine produced an unprecedented wave of temporary immigration protections throughout the European Union (EU). Within the first few months of the war in Ukraine, over 4 million displaced individuals had registered for temporary protection. EU States distant from Ukraine sheltered hundreds of thousands of displaced families, while Poland and other EU States that border Ukraine sheltered more than 2 million. This groundswell response marked a striking departure from just seven years earlier, when the EU Commission and EU Council failed to use readily available laws to provide a temporary protection program for Syrians displaced …

Addressing Unlawful Cyber Operations In Armed Conflict Through Human Rights Bodies Instead Of The International Criminal Court, Zachary R. Orr

Vanderbilt Journal of Transnational Law

Although the ICC-or other similarly-situated international criminal tribunals-could soon see the first cyber war crime prosecution, two glaring issues persist. First, the universe of conduct that could give rise to such a prosecution is limited. Second, heavy reliance on the war crimes framework fails to provide a forum for redress of many harms caused by other unlawful cyber operations in armed conflict. The fragmented nature of international law and its enforcement mechanisms requires solutions that harness the full range of the integrated architecture of the international system. Cyber operations might soon feature at the ICC, but only a fraction of …

Farewell To Cultural Superiority: Resolving The Alleged Chinese Misappropriation Of Korean Cultural Heritage Through Unesco's 2005 Convention For The Protection And Promotion Of The Diversity Of Cultural Expressions, Daniel Hyungtae Kim

Cardozo Journal of Conflict Resolution

No abstract provided.

Why The Supreme Court Rejected The Prospect Theory Of Copyright Scope, Michael W. Carroll

Cardozo Arts & Entertainment Law Journal

In Google LLC v. Oracle America, Inc. ("Google v. Oracle"), and again in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith ("Warhol"), the parties and various amici presented the Court with a variety of arguments about the relationship between a copyright owner's right to make derivative works from a protected work and a user's right to make fair uses of that same work. At bottom, these arguments were about the proper, or even optimal, scope of copyright.

This Essay argues that these arguments were instead grounded in a form of "prospect theory" of copyright scope that …

Infinite Queerness And American Settler Colonialism, Jeremiah A. Ho

All Faculty Scholarship

In Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes For Racial Reform, the late Derrick Bell refined his theory of racial progress in the United States by merging his interest convergence and racial sacrifice theses into a theoretical “two-sided coin” he called “racial fortuity.”¹  Bell’s original interest convergence thesis posited that racial progress for Blacks would only occur if their interests in obtaining equality for themselves and the interests of the dominant White establishment in granting such equality “converged.”²  This theory famously underpinned Bell’s interpretation of Brown and the Supreme Court’s eagerness to overturn …

Toward Best Practices For Trade-Security Measures, Harlan G. Cohen

Faculty Scholarship

The global economy is increasingly being weaponized. Citing security concerns from traditional defence to economic competitiveness, health emergency, and climate crisis, states are turning to sanctions, tariffs, export controls, investment screening, and subsidies. But while economic statecraft is becoming common, rules remain scarce. Questions about notice, duration, proportionality, harm minimization, compensation, retaliation, and/or rebalancing lack clear answers and seem almost theoretical. Once, we might have hoped the World Trade Organization (WTO) would play a role in developing such rules. But in the absence of an Appellate Body and in the face of state rejections of review, WTO’s deliberative processes have …

Garland V. Cargill: It’S A Duck! Except At The Supreme Court . . ., Maureen Johnson

Chapman Law Review

Garland v. Cargill may go down as one of the most notorious cases ever handed down by the Supreme Court. By a 6-3 tally, “bump stocks”—which essentially turn semi-automatic weapons into machine guns—were deemed outside the purview of the National Firearms Act of 1934 (NFA). Initially, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) determined that bump stock-converted weapons did not fall within the statutory definition of a machine gun. Amidst a bipartisan outcry following the 2017 Las Vegas Massacre, the ATF changed course, determining that bump stock conversions were indeed “machine guns” and therefore prohibited by the NFA. …

For Richer Or Poorer: The Warren Court's Relationship To Socioeconomic Class, Nicole Jonassen

CMC Senior Theses

The U.S. Constitution does not enshrine socioeconomic rights. Why does this matter? Many argue that socioeconomic rights have value in and of themselves because they secure certain minimum conditions of human dignity, but socioeconomic rights also have instrumental value because abject material deprivation often makes traditional political and civil rights meaningless. In this thesis, I explore the relationship between U.S. constitutional law and socioeconomic rights through an analysis of the Warren Court’s decisions regarding socioeconomic class. In Chapter 1, I present existing literature on socioeconomic rights, socioeconomic rights in the American context, and what many scholars see as the Warren …

‘Locke’D Out: The Unrealized Potential Of The Fiduciary Duty Through The Lens Of Western Property Theory, Deborah Klebansky

Student Works

No abstract provided.

The Short And Troubled History Of The Printed State Administrative Codes And Why They Should Be Preserved, Kurt X. Metzmeier

Faculty and Staff Scholarship

This article makes a case for the historical importance of early state administrative codes and urges that law libraries preserve them for future researchers of state administrative law and policy.

The Geoeconomics Of Belt And Road Disputes: A Case Study On The China-Pakistan Economic Corridor, Mark Mclaughlin

Research Collection Yong Pung How School Of Law

This article argues that the dovetailing economic, geopolitical, and security interests that underpin the Belt and Road Initiative demands a dispute resolution mechanism that focuses on broader interests and legal rights. Using the China-Pakistan Economic Corridor (CPEC) as a case study, it identifies the conditions in which Chinese investors could have initiated an investment arbitration but did not. This can be explained by the rights-based orientation of investment treaties failing to reflect the interests of multi-project initiatives. Instead, alternative methods of home state intervention, such as state-funded political risk insurance, are used to protect investors. In other words, the political …

Free Speech Is Incomplete? Big Tech In A Distant Mirror, Jan Polański

Yearbook of Antitrust and Regulatory Studies

In 1961, Alexander Meiklejohn claimed that the First Amendment, the US provision guaranteeing free speech, is an absolute. Echoing this in the context of the rise of fake news, Tim Wu has recently asked whether the First Amendment might have become obsolete. Yet, with the growing power of Big Tech, concerns are also voiced that their impact on free speech may go too far. However, there is tension here: on the one hand, the unprecedented role of Big Tech provides incentives for regulation; on the other, free speech is such a sensitive subject that there are reasons for limiting government …

National Security And Federalizing Data Privacy Infrastructure For Ai Governance, Margaret Hu, Eliott Behar, Davi Ottenheimer

Faculty Publications

This Essay contends that data infrastructure, when implemented on a national scale, can transform the way we conceptualize artificial intelligence (AI) governance. AI governance is often viewed as necessary for a wide range of strategic goals, including national security. It is widely understood that allowing AI and generative AI to remain self-regulated by the U.S. AI industry poses significant national security risks. Data infrastructure and AI oversight can assist in multiple goals, including: maintaining data privacy and data integrity; increasing cybersecurity; and guarding against information warfare threats. This Essay concludes that conceptualizing data infrastructure as a form of critical infrastructure …

Judicial Protection Of Personal Non-Property Rights Of Military Chaplains In Ukraine, Artem Makovskiy, Svitlana Hrynko, Maksym Levytskyi, Valerii Vychavka, Oleksandr Tuz

Occasional Papers on Religion in Eastern Europe

The article provides a theoretical overview of the Ukrainian legislative framework addressing the issue of judicial protection of personal non-property rights of military chaplains. Additionally, it justifies the necessity of restoring the institution of military courts for a more effective protection of the personal non-property rights of military chaplains in Ukraine. The theoretical analysis method is employed through its theoretical-multiple variety under implementation approaches. It has been established that the specific nature of military service involves risks to the life and health of military chaplains, as there are various factors that can lead to injuries, concussions, other health impairments, capture, …

Aggressor Status And Its Impact On International Criminal Law Case Selection, Nancy Amoury Combs

Faculty Publications

The laws of war apply equally to all parties to a conflict; thus, a party that violates international law by launching a war is granted the same international humanitarian law rights as a party that is required to defend against the illegal war. This doctrine—known as the equal application doctrine—has been sharply critiqued, particularly by philosophers, who claim the doctrine to be morally indefensible. Lawyers and legal academics, by contrast, defend the equal application doctrine because they reasonably fear that applying different rules to different warring parties will sharply reduce states’ willingness to comply with the international humanitarian law system …

Breaking Cultural And Financial Barriers In Olympic Sports, Maureen A. Weston, Professor Of Law

Vanderbilt Journal of Entertainment & Technology Law

Nelson Mandela has said that “[s]port has the power to change the world. It has the power to inspire. It has the power to unite people in a way that little else does . . . . It is more powerful than governments in breaking down barriers.” Sports can have tremendous value, not only to the individual participants in promoting physical and mental health, skills, and teamwork, but also to society in fostering community, civic pride, and a sense of belonging, even among the fans. Sports have significant economic, political and cultural impacts at the local, national, and international spheres. …

Feature Comment: Don’T Let Post-Employment Conflicts Derail Your Contract Award, Jessica Tillipman, Bryan Dewan

GW Law Faculty Publications & Other Works

Often referred to as “revolving door” restrictions, the U.S. Government has devised numerous laws, policies and procedures designed to combat unethical or anti-competitive conduct that may stem from a Government employee’s decision to leave federal service. The laws range from ethics restrictions designed to minimize the appearance of impropriety while a federal employee endeavors to leave the Government, to criminal laws, which seek to punish conflicts of interest and improper conduct that may occur after Government service concludes.

In addition to the ethical and criminal considerations that must be taken into account when navigating the Government’s myriad post-Government employment restrictions, …