Digital Commons Network^™

Voice, Strength, And No-Contest Clauses, Karen J. Sneddon

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The will is a unilateral written disposition of probate property to be effective upon the will-maker's death. To have any legal effect, however, the will-maker's family, beneficiaries, and personal representatives, along with the probate court, need to implement the will provisions. To buttress the strength of the will, the language of the will is definitive, certain, and strong. But when the will relies upon standardized language, the voice of the will-maker is flattened or even non-existent. The absence of the willmaker's voice may jeopardize the legal effect of the will.

This Article argues that the over-reliance on "time-tested" formulaic language …

The Clear And Present Dangers Of The Clear And Present Danger Test: Schenck And Abrams Revisited, Ronald J. Krotoszynski Jr.

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From March 3 1919 to November 10 1919 Justice Oliver Wendell Holmes's understanding of the First Amendment underwent a transformation In Schenck Debs and Frohwerk all decided in March 1919 Justice Holmes authored majority opinions that embraced a "bad tendencies" test as the constitutional standard required to regulate "“ or even proscribe entirely "“ political speech that includes a call to unlawful action Although Holmes used the language of a "clear and present danger" these decisions applied a very deferential standard of review and did not require the government to prove beyond a reasonable doubt the probability of political speech …

Employees As Regulators: The New Private Ordering In High Technology Companies, Jennifer S. Fan

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There is mounting public concern over the influence that high technology companies have in our society. In the past, these companies were lauded for their innovations, but now as one scandal after another has plagued them, from being a conduit in influencing elections (think Cambridge Analytica) to the development of weaponized artificial intelligence, to their own moment of reckoning with the #MeToo movement, these same companies are under scrutiny. Leaders in high technology companies created their own sets of norms through private ordering. Their work was largely unfettered by regulators, with the exception of the Securities and Exchange Commission’s oversight …

Professionally Responsible Artificial Intelligence, Michael Hatfield

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As artificial intelligence (AI) developers produce more applications for professional use, how will we determine when the use is professionally responsible? One way to answer the question is to determine whether the AI augments the professional’s intelligence or whether it is used as a substitute for it. To augment the professional’s intelligence would be to make it greater, that is, to increase and improve the professional’s expertise. But a professional who substitutes artificial intelligence for his or her own puts both the professional role and the client at risk. The problem is developing guidance that encourages professionals to use AI …

Binaries: Remarks On Chaim N. Saiman's "Halakhah", Richard Weisberg

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Binaries are helpful but deceptive, and this may be particularly true of simplistic theological dichotomies purporting to show that the Talmud is "Nitpicking" and Christian Biblical understandings "Expansive", or that Jews believe in the "letter" and Christians in the "spirit", Jews in strict Justice and Christians in "mercy", etc. This essay, which focuses on the character of Shylock and the legalistic cruelty inflicted upon him by Venice's Christians, dissolves such Binaries, leaving in their wake greater clarity about the contrary need to "re-binarize" the falsely unified hyphenated adjective "Judaeo-Christian".

Armed Conflict At The Threshold, Deborah Pearlstein

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Seventeen years into the United States’ engagement in what America has controversially understood as a global, non-international armed conflict against a shifting set of terrorist groups, a growing array of scholars has called for a reassessment of the significance of the “armed conflict” classification under international humanitarian law (IHL). The existence of an “armed conflict” has long been understood as a proxy on/off switch of inescapable importance. When an “armed conflict” exists, lethal targeting—without regard to particular self-defensive need or immediacy of threat—is permitted as a first resort. When an “armed conflict” does not exist, it is not. Challenging the …

Sitaraman’S Mistaken Case For The Middle-Class Constitution, Richard A. Epstein

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No abstract provided.

Eros And Polemos: Eroticized Combat In The Trojan War Myth, John Dayton

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The connections between belligerence and sexuality are well known to ethologists and anthropologists and have received some attention in literary analysis. This study examines the Trojan War, in the mythical matter itself and in its treatment by Homer, as a figurative amatory conquest. We note first the element of female eroticism in the background: the war begins with a beauty contest and Helen’s abduction, and Homer’s Iliad begins in a symmetrical pattern with a quarrel over desirable captive women. These events reflect a primal relationship between combat and access to females. But we also notice that the Trojan males are …

The Politics Of Access: Examining Concerted State/Private Enforcement Solutions To Class Action Bans, Myriam E. Gilles

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Procedural and substantive constraints on the ability of ordinary people to access the civil justice system have become all too commonplace. The “justice gap” owes much to cuts in funding for legal aid and court administration, heightened pleading standards, ever-rising costs of discovery, increasingly restrictive views on standing to sue, and the co-opting of small claims court by businesses seeking to collect debts, among other obstacles in the path to the courthouse. But the most consequential impediment, surely, is the enforcement of mandatory arbitration clauses with class action bans, which bar consumers and employees from bringing or being represented in …

Economic Analysis In Labor Regulation, Hiba Hafiz

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No abstract provided.

Civil War: A Board Game As Pedagogy And Critique, Hugh Mccabe

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This paper describes the use of a board game, Civil War, as a learning experience in the context of a course on critical theory. Civil War was created by the Educational Games Company of Lebanon and is set during the 1975-1990 Lebanese civil war. The game functions both as a pedagogical instrument, in that players learn about the situation in Lebanon while playing the game, but also as a form of critique, in that its makers are clearly using it as a means of articulating their lived experiences and challenging the dominant narratives around the conflict. We suggest that the …

Reconciliation Of Development And Ecosystems: The Ecology Of Governance In The International Columbia River Basin, Barbara Cosens

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This article explores the emergence of formal and informal bridging organizations to facilitate solutions to water conflict at the scale of the water resource. This new approach to governance is of particular importance on rivers within or shared by countries in which water management is fragmented among national and sub-national levels of government as well as among governmental sectors. This article focuses on the Columbia River Basin, in the United States and Canada. Review of the Columbia River Treaty governing shared management of the river has opened a public dialogue on river governance. Treaty review coincides with change in both …

The Origins Of The Espionage Act Of 1917: Was Judge Learned Hand's Understanding Of The Act Defensible?, Geoffrey R. Stone

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No abstract provided.

Of Loaded Weapons And Legal Alchemy, Great Cases And Bad (?) Law: Korematsu And Strict Scrutiny, 1944-2017, Scott Dewey

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This article traces in detail how dicta in the wartime Japanese American internment cases of Korematsu v. United States and Hirabayashi v. United States was taken out of context and gradually transmuted, through a process of legal alchemy or "precedent laundering, " into holdings supporting the postwar strict scrutiny doctrine regarding equal protection under the Fifth and Fourteenth Amendments. The article addresses the complex, twisted prehistory ofKorematsu, which includes the troubled Japanese American immigrant experience leading up to the internment and the growing interwar geopolitical rivalry between Japan and the United States over domination of the Asia/Pacific region. This prehistory …

Indigenous Rights To Water & Environmental Protection, Robert T. Anderson

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This article examines the rights of Indian nations in the United States to adequate water supplies and environmental protection for their land and associated resources. Part I of this article provides a brief background on the history of federal-tribal relations and the source and scope of federal obligations to protect tribal resources. Part II reviews the source and nature of the federal government’s moral and legal obligations to Indian tribes, which are generally referred to as the trust responsibility. Indian reserved water rights and the difficulty tribes experience in protecting habitat needed for healthy treaty resources is discussed in Part …

Heretical Archives: Heterotopic Institutions And Fictive Records, Peter Goodrich

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No abstract provided.

Finding Lost & Found: Designer’S Notes From The Process Of Creating A Jewish Game For Learning, Owen Gottlieb

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This article provides context for and examines aspects of the design process of a game for learning. Lost & Found (2017a, 2017b) is a tabletop-to-mobile game series designed to teach medieval religious legal systems, beginning with Moses Maimonides’ Mishneh Torah (1180), a cornerstone work of Jewish legal rabbinic literature. Through design narratives, the article demonstrates the complex design decisions faced by the team as they balance the needs of player engagement with learning goals. In the process the designers confront challenges in developing winstates and in working with complex resource management. The article provides insight into the pathways the team …

Habitus, The Writings Of Irish Hunger Strikers And Elias's The Loneliness Of The Dying, John Connolly, Paddy Dolan

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»Habitus, die Texte der irischen Hungerstreikenden und Elias', Die Einsamkeit der Sterbenden'«. Elias maintained that over the course of several centuries death has become associated with greater shame and embarrassment feelings due mainly to four interwoven processes. In this paper we consider how these specific processes or 'special conditions' Elias referred to, in conjunction with other processes, shaped the experience of dying and the image of death for twentieth century Irish hunger strikers.

Introduction To Symposium On Sovereignty, Cyberspace, And Talinn Manual 2.0, Tom Ginsburg

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No abstract provided.

Majority Rule And The Future Of Judicial Selection, Richard W. Painter, Michael J. Gerhardt

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No abstract provided.

The 2016 Stein Lecture: A Conversation Between U.S. Supreme Court Justice Sonia Sotomayor And Professor Robert A. Stein, Robert Stein, Sonia Sotomayor

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No abstract provided.

Sexual Minorities In Legal Academia: A Retrospection On Community, Action, Remembrance, And Liberation, Francisco Valdes

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No abstract provided.

Clerking For Grown-Ups: A Tribute To Judge Ed Carnes Writing In Tribute To Chief Judge Carnes' 25 Years On The U.S. Court Of Appeals For The Eleventh Circuit, Paul Horwitz

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No abstract provided.

Toward A History Of The Democratic State, William J. Novak, Stephen W. Sawyer, James T. Sparrow

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Over the past generation, the history of the state has been experiencing a much-noted renaissance, especially in France and the United States. In the United States as late as 1986, Morton Keller complained to William Leuchtenburg in the Journal of American History: “To say that ‘there is much still to be learned about the nature of the State in America’ is … a major understatement. There is close to everything to be learned about the State.” In France as late as 1990, Pierre Rosanvallon’s powerful introduction to L’État en France suggested that an ambitious history of the state could not …

How And Why International Law Binds International Organizations, Kristina Daugirdas

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For decades, controversy has dogged claims about whether and to what extent international law binds international organizations (“IOs”) like the United Nations and the International Monetary Fund. The question has important consequences for humanitarian law, economic rights, and environmental protection. In this Article, I aim to resolve the controversy by supplying a theory about when and how international law binds IOs. I conclude that international law binds IOs to the same degree that it binds states. That is, IOs are not more extensively or more readily bound; nor are they less extensively or less readily bound. This means that IOs, …

Freedom Of Conscience In War Time: World War I And The Civil Liberties Path Not Taken, Laura Weinrib

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No abstract provided.

Cyberwar, International Politics, And Institutional Design, Daniel Abebe

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No abstract provided.

The Mutual Dependency Of Force And Law In American Foreign Policy, Richard A. Epstein, Mario Loyola

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No abstract provided.

Obama’S Aumf Legacy, Curtis A. Bradley, Jack L. Goldsmith

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In the fifteen years since the Authorization for Use of Military Force (AUMF) was enacted on September 18,2001, the Taliban has been removed from power but not eliminated; Osama Bin Laden has been killed and the senior leaders of Al Qaeda as of 9/11 have been captured,killed, or driven underground, although Al Qaeda remains a threat; numerous Al Qaeda affiliates have sprung up around the globe, most notably in Iraq, Yemen, Syria, and Somalia; and most ominously, the Islamic State has arisen from the ashes of Al Qaeda in Iraq to become what the Director of National Intelligence has described …

Afterword: Kindling The Programmatic Production Of Critical And Outsider Legal Scholarship, 1996-2016, Sarudzayi M. Matambanadzo, Francisco Valdes, Sheila Velez

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No abstract provided.