Digital Commons Network^™

Gas Smalls Awful: U.N. Forces, Riot-Control Agents, And The Chemical Weapons Convention, James D. Fry

Michigan Journal of International Law

This Article takes a comprehensive look at the use of riot-control agents (RCAs) by U.N. forces and the legal issues that arise as a result. This Article is the first to look at these legal issues from a practical perspective, not merely a theoretical one, because prior publications have questioned what would happen if U.N. forces used these weapons, whereas this Article analyzes forty instances of actual use. This Article is designed to spark debate within the areas of peacekeeping law, collective security law, the responsibility of international organizations, and arms control law relating to RCAs, and provides compelling legal …

Bioethics And Biosecurity Education In China: Rise Of A Scientific Superpower., Barr S. Michael, Joy Yueyue Zhang

Book Chapters

This chapter explores ethics, education and the life sciences in China. It is based on work conducted by the authors in two separate but complimentary projects. Barr’s observations derive from interviews and discussions in Beijing, Shanghai and Guangzhou with life scientists and policymakers in infectious-disease hospitals, university-research labs, the Chinese Academy of Sciences, and the Ministry of Health. Zhang’s study focused on China’s governance of stem-cell research and involved interviews with scientists, ethicists and policymakers at more than 25 sites across China. Below, we set the context by describing the role of science in China’s quest to become a leading …

Law And The Social Control Of American Capitalism, William J. Novak

Articles

This Essay is part of a larger, ongoing investigation of the role of law in the creation of a modern American state from 1877 to 1932. That project charts the decline of an early nineteenth-century world of local, common law self government (what I called in a previous work a “well-regulated society”) and the rise of a distinctly modern administrative regulatory state in the United States. This new legal-political regime was rooted in three interlinked developments: the centralization of public power; the individualization of private right; and the constitutionalization of the rule of law. Beginning soon after the Civil War, …

Katrina, Federalism, And Military Law Enforcement: A New Exception To The Posse Comitatus Act, Sean Mcgrane

Michigan Law Review

In the days following Hurricane Katrina, as lawlessness and violence spread throughout New Orleans, the White House considered invoking the Insurrection Act so that members of the U.S. military could legally perform law enforcement functions inside the flooded city. This Note contends that the White House's decision not to invoke the Act was substantially driven by federalism concerns-in particular, concerns about intruding on Louisiana's sovereignty. But, this Note further contends, in focusing so heavily on these state sovereignty concerns, the White House largely ignored the other side of the 'federalism coin "-namely, enabling the federal government to act where national …

Populist Retribution And International Competition In Financial Services Regulation, Adam C. Pritchard

Articles

The pattern of regulatory reform in financial services regulation follows a predictable pattern in democratic states. A hyperactive market generates a bubble, the bubble deflates, and much financial pain ensues for those individuals who bought at the top of the market. The financial mess brings the scrutiny of politicians, who vow "Never again!" A political battle ensues, with representatives of the financial services industry fighting a rearguard action to preserve its prerogatives amidst cries for the bankers' scalps. Regulations, carefully crafted to win the last war, are promulgated. Memories fade of the foolish enthusiasm that fed the last bubble. Slowly, …

Vol. 59, No. 11, April 21, 2009, University Of Michigan Law School

Res Gestae

•Revisiting PRS a Year Later •Letter from the Editor •No Other Warranties •This is Water •Bless Your Heart •Kicking it Old School •Beer Guy •MLaw Softball Pics •Prof. Green Retires •When You Were Cooler •Bold As Tech •Save Yourself •Law Prom Pics •Campbell Finals Pics •SFF BBall Pics

Bordering Capabilities Versus Borders: Implications For National Borders, Saskia Sassen

Michigan Journal of International Law

A core argument of this Essay is that the capability to make borderings has itself switched organizing logics: from institutionalizing the perimeter of a territory to multiplying transversal borderings cutting across that perimeter. This switch is partly linked to the types of scalar shifts in the operational space of a growing number of systems. To the more economic systems already mentioned above, let me add such diverse instances as the policing of the illegal drug trade, the war on terror, the judicial and political struggle to protect human rights, and the environmental effort to reorganize transnational economic sectors, including the …

The Use Of Force Against States That Might Have Weapons Of Mass Destruction, Matthew C. Waxman

Michigan Journal of International Law

This Article argues that the most difficult future crises for which this legal debate is most consequential will not resemble those described by Prime Minister Thatcher or Director ElBaradei. Rather, in confronting potentially hostile and aggressive states believed to pose a WMD threat, decisionmakers contemplating the use of force will face an intelligence picture that is open to reasonable debate (contra Thatcher) and irresolvable to high levels of certainty (contra ElBaradei). This paper examines how competing legal approaches deal with this epistemic problem.

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

Michigan Journal of International Law

The argument in this Article proceeds through several steps. As background, Part I outlines the current and projected future human uses of outer space, emphasizing the plethora of civilian and military applications that now rely on satellites. The United States, especially, but other countries, too, are coming to depend on multiple space assets for the performance of a wide array of vital functions; the investment is huge, diverse, and growing, despite the costs and natural perils of operating in the harsh exoatmospheric environment.

Deceit In War And Trade, William I. Miller

Book Chapters

This chapter offers “a genealogy on deceit in war and trade”. It starts with deceit in Ovid and the Old Testament and works its way all the way up to the present day, considering the deceptions of such famous tricksters as Odysseus, David, the Vikings, Machiavelli, William the Conqueror, even Montaigne. It then considers the practices of some famous deceivers in contemporary business culture, such as Bernie Ebbers, Dennis Koslowski, and Kenneth Lay.

Failures To Punish: Command Responsibility In Domestic And International Law, Amy J. Sepinwall

Michigan Journal of International Law

This Article embraces one of two contested understandings of what a failure to punish entails. On the first understanding, a military commander's failure to punish is construed solely as a dereliction of duty. Accordingly, his failure to punish constitutes a separate offense from the underlying atrocity that his troops have committed. The failure to punish is, then, a substantive offense in its own right. On a second understanding, for which I argue here, the failure to punish renders the commander criminally liable for the atrocity itself, even if he neither ordered nor even knew about the atrocity before its occurrence. …

The Resilience Of Law, Joseph Vining

Book Chapters

One of the striking developments in academic law in the past half century is the reconception of law as one of the social sciences. The idea at work in this movement, as Joseph Vining says in this essay, is not that the law should use the findings of other disciplines for its own purposes and in its own way, but that in some deep way law itself - legal thinking, legal life - can and ought to proceed on the premises of social science, indeed of science itself. This is in one sense obviously impossible: a scientific rule is a …

Tax Reform In The (Multi)National Interest, Reuven S. Avi-Yonah

Articles

This letter will attempt to raise some proposals for U.S. corporate and international tax reform. It will begin by asking why we need to tax corporations at all, since the rationale for the corporate tax is important for assessing reform proposals. It will then discuss options for corporate and international tax reform, beginning with long-term options (a 10-year horizon), continuing with the medium term (2-5 years), and concluding with short-term options like the Obama proposals (1-2 years).

The Future Of American Labor And Employment Law: Hopes, Dreams, And Realities, Theodore J. St. Antoine

Articles

In many respects the US is a deeply conservative country. Unique among the major industrial democracies of the world, it imposes the death penalty, provides no national health insurance, fixes a high legal drinking age, and subscribes to the doctrine of employment at will. Perhaps not surprisingly, its labor movement is also one of the most conservative on earth, eschewing class warfare and aiming largely at the bread-and-butter goal of improved wages, benefits, and working conditions. Yet American employers have generally never been as accepting of unionization as their counterparts in other countries (Bok 1971; Freeman and Medoff 1984). Over …

The Resilience Of Law, Joseph Vining

Law & Economics Working Papers Archive: 2003-2009

The development of "law and economics" over the last half-century has expanded and reinforced a perception among academic lawyers that law itself is a social science. During the same period social science has moved closer to the discipline of natural science and the presuppositions and methods of its thought and work. This essay explores why law is not and cannot be a social science, and why there are grounds for hope in a future for democracy grounded in the rule of law.

Think Again: The Geneva Conventions, Steven R. Ratner

Law Quadrangle (formerly Law Quad Notes)

The following essay is based on the author’s article of the same name in the “Think Again” section of the March/April 2008 issue of Foreign Policy (pages 26-32). It is reproduced here with permission from FOREIGN POLICY, www.ForeignPolicy.com, #165 (March/April 2008). Copyright 2008 by the Carnegie Endowment for International Peace. The “Think Again” section of Foreign Policy seeks to educate readers by presenting and responding to common myths and conventional wisdom on important matters of international relations.

“The Geneva Conventions are obsolete”. Only in the minor details. The laws of armed conflict are old; they date back millennia to warrior …

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

University of Michigan Journal of Law Reform

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 …

War Tales And War Trials, Patricia M. Wald

Michigan Law Review

In this foreword, I will compare my experiences as a judge on the International Criminal Tribunal for the former Yugoslavia, and the work of war crimes tribunals generally, with a few of the recurrent themes in epic tales of war. Books and trials strive to educate and to persuade their audiences of the barbarity of war and its antipathy to the most fundamental norms of a humane society.3 War crimes tribunals began with Nuremberg and have proliferated in the past fifteen years. These tribunals were established to try and to punish individuals for violations of international humanitarian law ("IHL")-the so-called …

Peace Through Law? The Failure Of A Noble Experiment, Robert J. Delahunty, John C. Yoo

Michigan Law Review

Ever since its publication in 1929, Erich Maria Remarque's All Quiet on the Western Front has been regarded as a landmark of antiwar literature. Appearing a decade after the end of the First World War, the novel became a literary sensation almost overnight. Within a year of publication, it had been translated into twenty languages, including Chinese, and by April 1930, sales for twelve of the twenty editions stood at 2.5 million. Remarque was reputed to have the largest readership in the world. Hollywood took note, and an equally successful film appeared in 1930. The success of the novel was …

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 …

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 …

International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Brunk Wuerth

Michigan Law Review

The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This Article analyzes why the Commander in Chief Clause is difficult and argues that international law helps resolve some of the problems that the Clause presents. Because of weaknesses in originalist analysis, changes over time, and lack of judicial competence in military matters, the Court and commentators have relied on second-order interpretive norms like congressional authorization and executive branch practice in interpreting the …

Alumni, University Of Michigan Law School

Law Quadrangle (formerly Law Quad Notes)

• Alumni directory work approaches completion
• Brian O’Neill, ‘74: The wheels of justice are stuck
• New Dean’s Advisory Council links Michigan Law, legal profession

The Unresolved Equation Of Espionage And International Law, A. John Radsan

Michigan Journal of International Law

This Essay, in order to offer up something to that appetite, is divided into five parts. After this introduction, the author, A. John Radsan, describes a Hegelian impulse, the perpetual drive to find unity in disorder. That impulse, for better or worse, creates the train and the track for many of the academy's journeys. Radsan then defines what is meant by "intelligence activities" for purposes of this Essay, after which Radsan surveys the scholarship that existed before this symposium on the relationship between espionage and international law. As the number of pages written on this topic suggests, scholarship on espionage …

State Intelligence Gathering: Conflict Of Laws, Charles H.B. Garraway

Michigan Journal of International Law

This Article begins with an examination of the development of the law of war (Part II) and human rights law (Part III) before looking at the differing legal categories of armed conflict (Part IV). It then examines the applicability of human rights law in situations of armed conflict (Part V) and the increasing complexity of defining violence, whether as armed conflict or otherwise (Part VI). The Article proceeds with an examination of the overlap between the law of war and human rights law (Part VII) and the risk of divergence that this overlap causes (Part VIII). Finally, it seeks to …

Counterintuitive: Intelligence Operations And International Law, Glenn Sulmasy, John Yoo

Michigan Journal of International Law

The question before us is whether international law is useful or required to govern the covert intelligence-gathering activities of nation-states during peacetime. The very notion that international law is currently capable of regulating intelligence gathering is dubious. In fact, we suggest that international regulation of intelligence operations could have the perverse effect of making international conflict more, rather than less, likely. Certainly, there is legitimate space for coordination and cooperation between states in sharing intelligence, but such "sharing" does not involve significant needs for universal regulation by international law. Simply stated, it is not in the interests of nation-states or …

What's International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker

Michigan Journal of International Law

This Article describes a continuum of contemporary threats to U.S. national security, with a focus on nonstate terrorism. Part III addresses the role of intelligence and national security law, and in particular law addressed to process, in combating these threats. Good process advances the liberty and safety interests embodied in the concept of national security. Good process improves the quality of decision. It also enhances accountability, which in turn improves decision. Where good process is defined in law to include executive directive, it is better insulated from the immediate imperatives of secrecy and speed.

Individual And State Responsibility For Intelligence Gathering, Dieter Fleck

Michigan Journal of International Law

It is the purpose of this contribution to examine relevant norms and principles for assessing acts of intelligence gathering under international law (Part I), evaluate legal problems of attribution of such acts (Part II), and, where governments commit wrongful acts, look into circumstances precluding their wrongfulness (Part III). Based on these considerations, legal consequences for criminal accountability (Part IV) and reparation (Part V) will be discussed. Finally, some conclusions may be drawn (Part VI).