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A Convenient Untruth: Fact And Fantasy In The Doctrine Of Odious Debts, Sarah Ludington, Mitu Gulati Jan 2008

A Convenient Untruth: Fact And Fantasy In The Doctrine Of Odious Debts, Sarah Ludington, Mitu Gulati

Faculty Scholarship

The few years since the U.S. incursion into Iraq in 2003 have witnessed an explosion in the literature on odious debts - that is, debts incurred (a) without the consent of the people (e.g., by a despotic regime); (b) from which no benefits accrued to the people; and (c) when the creditors had knowledge of the foregoing. The key question in the literature is whether successors to the despotic regime are obligated to pay the debts of the despot. That is, whether the newly democratic nation of Iraq is obligated to pay the debts of Saddam Hussein. The starting point …


Nonconsensual International Lawmaking, Laurence R. Helfer Jan 2008

Nonconsensual International Lawmaking, Laurence R. Helfer

Faculty Scholarship

This article documents the rise of nonconsensual international lawmaking and analyzes its consequences for the treaty design, treaty participation, and treaty adherence decisions of nation states. Grounding treaties upon the formal consent of states has numerous advantages for a decentralized and largely anarchic international legal system that suffers from a pervasive “compliance deficit.” But consent also has real costs, including the inability to ensure that all nations affected by transborder problems join treaties that seek to resolve those problems. This “participation deficit” helps explain why some international rules bind countries without their acceptance or approval. Such rules have wide applicability. …


Prosecuting Aggression, Noah Weisbord Jan 2008

Prosecuting Aggression, Noah Weisbord

Faculty Scholarship

The Assembly of States Parties to the International Criminal Court will soon have its first opportunity to revise the Rome Statute and activate the latent crime of aggression, which awaits a definition of its elements and conditions for the exercise of jurisdiction. The working group charged with drafting a provision is scheduled to complete its task by 2008 or 2009, one year before the International Criminal Court’s first review conference. Beginning with a history of the crime meant to put the current negotiations in the context of past initiatives, this article sets out the status of the negotiations and begins …


After Inclusion, Mitu Gulati, Devon W. Carbado, Catherine Fisk Jan 2008

After Inclusion, Mitu Gulati, Devon W. Carbado, Catherine Fisk

Faculty Scholarship

What forms of discrimination are likely to be salient in the coming decade? This review flags a cluster of problems that roughly fall under the rubric of inclusive exclusions or discrimination by inclusion. Much contemporary discrimination theory and empirical work is concerned not simply with mapping the forces that keep people out of the labor market but also with identifying the forces that push them into hierarchical structures within workplaces and labor markets. Underwriting this effort is the notion that, although determining what happens before and during the moment in which a prospective employee is excluded from an employment opportunity …


Preemption And Federal Common Law, Ernest A. Young Jan 2008

Preemption And Federal Common Law, Ernest A. Young

Faculty Scholarship

No abstract provided.


A Sanctuary In The Jungle: Terry Lynn Nichols And His Oklahoma City Bombing Trial, Michael E. Tigar, James E. Coleman Jr. Jan 2008

A Sanctuary In The Jungle: Terry Lynn Nichols And His Oklahoma City Bombing Trial, Michael E. Tigar, James E. Coleman Jr.

Faculty Scholarship

No abstract provided.


The Lost Sanctuary: Examining Sex Trafficking Through The Lens Of United States V. Ah Sou, M. Margaret Mckeown, Emily Ryo Jan 2008

The Lost Sanctuary: Examining Sex Trafficking Through The Lens Of United States V. Ah Sou, M. Margaret Mckeown, Emily Ryo

Faculty Scholarship

No abstract provided.


Why John Mccain Was A Citizen At Birth, Stephen E. Sachs Jan 2008

Why John Mccain Was A Citizen At Birth, Stephen E. Sachs

Faculty Scholarship

No abstract provided.


Maximum Carbon Intensity Limitations And The Agreement On Technical Barriers To Trade, Charles O. Verrill Jr. Jan 2008

Maximum Carbon Intensity Limitations And The Agreement On Technical Barriers To Trade, Charles O. Verrill Jr.

Faculty Scholarship

Emission of greenhouse gases is a global problem. Any nation seeking to restrict such emissions by its manufacturers should avoid putting them at a disadvantage in world and domestic markets where they are likely to compete with producers that do not bear the cost of emission controls. One approach being considered in the United States would be adoption of technical regulations limiting the carbon intensity of basic products, such as cement, aluminum, steel, etc., offered for sale in the US market (carbon intensity would be defined as the C02 equivalent emissions per ton of product). Domestic and imported products that …


Military Lawyering And Professional Independence On The War On Terror : A Response To David Luban, Charles J. Dunlap Jr., Linell A. Letendre Jan 2008

Military Lawyering And Professional Independence On The War On Terror : A Response To David Luban, Charles J. Dunlap Jr., Linell A. Letendre

Faculty Scholarship

No abstract provided.


Irrevocable Proxies, Deborah A. Demott Jan 2008

Irrevocable Proxies, Deborah A. Demott

Faculty Scholarship

This short article explores the circumstances under which the power to vote shares owned by another may be made irrevocable. Irrevocable proxies often serve as integral ingredients within corporate governance arrangements because they serve as mechanisms that enable alliances among shareowners or enhance the holder’s voting power in disproportion to the holder’s residual economic interest in the corporation. The rights and duties of holders of irrevocable proxies are best understood against a background of common-law agency relationships, in which agent and principal always have the power–albeit having contracted otherwise–to terminate their relationship and the agent’s actual authority. Courts in the …


Punishing Family Status , Jennifer M. Collins, Ethan J. Leib, Dan Markel Jan 2008

Punishing Family Status , Jennifer M. Collins, Ethan J. Leib, Dan Markel

Faculty Scholarship

This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of family ties burdens, laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental responsibility laws, incest, bigamy, adultery, nonpayment of child support, and nonpayment of parental support. …


Standardization And Pluralism In Property Law , Nestor M. Davidson Jan 2008

Standardization And Pluralism In Property Law , Nestor M. Davidson

Faculty Scholarship

At the heart of contemporary property theory stands an intriguing puzzle. Unlike the relatively unconstrained freedom that contract law provides for private ordering, property law recognizes only a limited and standard list of mandatory forms. This standardization-known as the numerus clausus from the civil law concept that the "number is closed" -poses a basic conundrum: what can explain a persistent feature of the law that seems, at first glance, so clearly to restrict the autonomy and efficiency gains conventionally associated with private property? This Article proceeds in four parts. Part I describes the numerus clausus principle and the problems that …


Judicial Power And Moral Ideology In Wartime: Shaping The Legal Process In World War I Britain , Rachel Vorspan Jan 2008

Judicial Power And Moral Ideology In Wartime: Shaping The Legal Process In World War I Britain , Rachel Vorspan

Faculty Scholarship

Offering a cautionary lesson of contemporary significance, the Article suggests that judicial power is not in and of itself the solution to executive infringements on due process rights in wartime. It examines the response of the British judiciary to serious threats to its institutional power during the First World War. To facilitate prosecution of the war, the government narrowed the jurisdiction of the traditional courts by eliminating jury trial, subjecting civilians to court-martial, and establishing new administrative tribunals to displace the traditional courts. Rather than remaining passive and deferential to the executive, as scholars have generally assumed, the judges moved …


Anti-Corruption Principle, The, Zephyr Teachout Jan 2008

Anti-Corruption Principle, The, Zephyr Teachout

Faculty Scholarship

There is a structural anti-corruption principle, akin to federalism or the separation-of-powers principle, embedded in the Constitution. The Constitution was designed, in large part, to protect against corruption. This structural principle - like the other structural principles - should inform how judges "do" modern political process cases. This paper documents the corruption concerns at the Constitutional convention in detail. It then examines how the modern Supreme Courts' conception of corruption is fractured and ahistorical, and has led to an incoherent jurisprudence. Instead of starting with Buckley v. Valeo, as so many modern cases do, the Court should return to the …


Recidivism As Omission: A Relational Account , Youngjae Lee Jan 2008

Recidivism As Omission: A Relational Account , Youngjae Lee

Faculty Scholarship

Are repeat offenders more culpable than first-time offenders? In the United States, the most important determinant of punishment for a crime, other than the seriousness of the crime itself, is the offender's criminal history. Despite the popularity of the view that repeat offenders deserve to be treated more harshly than first-time offenders, there is no satisfactory retributivist account of the "recidivist premium." This Article advances a retributivist defense of the recidivist premium and proposes that the recidivist premium be thought of as punishment not, as sometimes suggested, for a defiant attitude or a bad character trait, but as punishment for …


The Transatlantic Divergence In Legal Thought: American Law And Economics Vs. German Doctrinalism, The, Kristoffel Grechenig, Martin Gelter Jan 2008

The Transatlantic Divergence In Legal Thought: American Law And Economics Vs. German Doctrinalism, The, Kristoffel Grechenig, Martin Gelter

Faculty Scholarship

Law and economics has become an integral part of U.S. legal scholarship and the law school curriculum. Ever since the legal realist movement, scholars mostly view the law from an external perspective. It may be surprising to many in the United States that European legal scholarship has been largely resistant to this development. Law is typically viewed "from the inside," that is as an autonomous discipline independent from the other social sciences. Most legal scholarship is doctrinal, meaning that legal scholars employ interpretative methods in order to systematically expose the law and to find out what the law is, frequently …


Discourse Of Disobedience: Law, Political Philosophy, And Trials Of Conscientious Objectors, Hadar Aviram Jan 2008

Discourse Of Disobedience: Law, Political Philosophy, And Trials Of Conscientious Objectors, Hadar Aviram

Faculty Scholarship

No abstract provided.


Leading Change In Legal Education - Educating Lawyers And Best Practices: Good News For Diversity, Antoinette M. Sedillo Lopez Jan 2008

Leading Change In Legal Education - Educating Lawyers And Best Practices: Good News For Diversity, Antoinette M. Sedillo Lopez

Faculty Scholarship

No abstract provided.


Race In Ordinary Course: Utilizing The Racial Background In Antitrust And Corporate Law Courses, Alfred Dennis Mathewson Jan 2008

Race In Ordinary Course: Utilizing The Racial Background In Antitrust And Corporate Law Courses, Alfred Dennis Mathewson

Faculty Scholarship

This article is about the discourses in law school classes in which non-white students are in classes with white students. While I stake a position distinct from critical race theorists, I do not analyze critical race theory or the large body of scholarship pertaining thereto in this article. I limit my discussion to my use of race in teaching traditional law school subjects, specifically antitrust and corporate law. I present this article in two parts. In Part I, I describe the challenges of using critical race theory to introduce discussions of race in traditional law school subjects. Race is interjected …


Culturally Effective Legal Interviewing And Counseling For The Mexican Immigrant - A Case Study, Antoinette M. Sedillo Lopez Jan 2008

Culturally Effective Legal Interviewing And Counseling For The Mexican Immigrant - A Case Study, Antoinette M. Sedillo Lopez

Faculty Scholarship

No abstract provided.


By Education Or Commerce: The Legal Basis For The Federal Regulation Of The Economic Structure Of Intercollegiate Athletics, Alfred Dennis Mathewson Jan 2008

By Education Or Commerce: The Legal Basis For The Federal Regulation Of The Economic Structure Of Intercollegiate Athletics, Alfred Dennis Mathewson

Faculty Scholarship

This article argues that the commercial characterization of intercollegiate athletics is not required to subject the economic structure of intercollegiate athletics to federal regulation. It further contends that the regulation thereof may be based on either jurisdictional nexus, but that the educational character provides a stronger jurisdictional basis for the regulation of the economic structure of intercollegiate athletic competition. Part II of this article examines the argument for using the commercial character of intercollegiate athletics as the jurisdictional basis for federal regulation of the cost and revenue structures of the intercollegiate athletics programs. Part III examines the argument for using …


Making And Breaking Habits: Teaching (And Learning) Cultural Context, Self-Awareness, And Intercultural Communication Through Case Supervision In A Client-Service Legal Clinic, Antoinette M. Sedillo Lopez Jan 2008

Making And Breaking Habits: Teaching (And Learning) Cultural Context, Self-Awareness, And Intercultural Communication Through Case Supervision In A Client-Service Legal Clinic, Antoinette M. Sedillo Lopez

Faculty Scholarship

This Article begins by offering teaching objectives that can be used to focus supervision and education on effective representation of clients from different cultures as issues arise in the course of representation. The Article then discusses the context of student supervision and explains how case supervision sessions can be extremely effective moments during which to pursue those teaching goals. The Article next examines vignettes that grew out of cases handled by the University of New Mexico's Clinical Law Program.


Old Blood, Bad Blood, And Youngblood: Due Process, Lost Evidence, And The Limits Of Bad Faith, Norman C. Bay Jan 2008

Old Blood, Bad Blood, And Youngblood: Due Process, Lost Evidence, And The Limits Of Bad Faith, Norman C. Bay

Faculty Scholarship

Under the law of lost evidence, absent a showing of bad faith, no due process violation occurs when the police lose potentially exculpatory evidence. This is so even though the evidence may be critical to the defense and even though post-conviction DNA testing has exonerated more than 200 individuals. Ironically, the case that developed that rule of law, Arizona v. Youngblood, is founded on the conviction of an innocent man. This Article critically examines Youngblood and provides a conceptual framework for examining the constitutional right of access to evidence. Supreme Court precedent reflects two different, sometimes competing, visions of procedural …


Taxation Without Liquidation: Rethinking "Ability To Pay", Sergio Pareja Jan 2008

Taxation Without Liquidation: Rethinking "Ability To Pay", Sergio Pareja

Faculty Scholarship

This Article proposes a novel way to tax wealth transfers. Specifically, it suggests that we divide all assets transferred by gift or bequest into two classes--illiquid assets and liquid assets. The recipient should include those assets in income but be allowed two options. With respect to illiquid assets, the recipient should be able to avoid immediate income inclusion if he takes the property with an income-tax basis of zero. With respect to liquid assets, the recipient should be allowed a full income-tax deduction if he rolls the gift or bequest into a deductible IRA. The combination of these simple rules …


Are Blue And Pink The New Brown? The Permissibility Of Sex-Segregated Education As Affirmative Action, Dawinder S. Sidhu Jan 2008

Are Blue And Pink The New Brown? The Permissibility Of Sex-Segregated Education As Affirmative Action, Dawinder S. Sidhu

Faculty Scholarship

This Article examines segregation and affirmative action in a different context-that of gender. Title IX of the Education Amendments of 1972 ("Title IX") l° prohibits discrimination on the basis of gender in education programs or activities that receive federal financial assistance. The regulations implementing Title IX, however, explicitly permit recipients of federal funding to offer single-sex schools, classes, and extracurricular activities. The regulations also permit recipients to "take affirmative action to overcome the effects of conditions which resulted in limited participation therein by persons of a particular sex.” This Article discusses whether and to what extent the affirmative action provision …


The Sikh Turban: Post-9/11 Challenges To This Article Of Faith, Dawinder S. Sidhu, Hena Singh Gohil Jan 2008

The Sikh Turban: Post-9/11 Challenges To This Article Of Faith, Dawinder S. Sidhu, Hena Singh Gohil

Faculty Scholarship

This essay examines how the turban has transformed from a sacred piece of attire for Sikhs to a target for discriminatory conduct and an object of marginalization after 9/11. Part I provides an introduction to Sikhism, which originated in 17th century South Asia, and discusses the religious significance of the Sikh turban. Part II examines incidents of discrimination in several contexts involving turbaned Sikhs in America. Part III analyzes the debate surrounding assimilation that has been taking place in the West, which implicates conspicuous articles of faith, including the Sikh turban. The essay also explores the legal remedies available to …


The Alchemy Of Exile: Strengthening A Culture Of Human Rights In The Burundian Refugee Camps In Tanzania, Jennifer Moore Jan 2008

The Alchemy Of Exile: Strengthening A Culture Of Human Rights In The Burundian Refugee Camps In Tanzania, Jennifer Moore

Faculty Scholarship

This Article suggests that our analysis of U.S. immigration policy should also be informed by a broader consideration of the experiences of immigrants and refugees in other parts of the world, including those who will never come to the United States. As we examine the moral, legal, and pragmatic imperatives behind the evolution of U.S. immigration policy, we should bear in mind the historical, political, economic, and cultural realities facing developing countries that host refugees from within their own regions. For some observers, such a global perspective might support calls for greater receptivity to immigrants in the United States. For …


Sex Offender Registration In Indian Country, Kevin Washburn, Virginia Davis Jan 2008

Sex Offender Registration In Indian Country, Kevin Washburn, Virginia Davis

Faculty Scholarship

This article critiques Sex Offender Registration and Notification Act [SORNA] and places it in the context of the broader scheme of public safety and criminal jurisdiction on Indian reservations. Part I briefly explains the jurisdictional background of criminal law and regulatory authority on Indian lands. Part II discusses the particular development of federal and tribal sex offender registration and notification laws. Part III explains how SORNA engages Indian tribes and other registration jurisdictions as a prelude to discussion of the obstacles of effective implementation on Indian lands. Part IV offers some criticisms of SORNA for further fragmenting regulatory and criminal …


The Legacy Of Bryan V. Itasca County: How An Erroneous $147 County Tax Notice Helped Bring Tribes $200 Billion In Indian Gaming Revenue, Kevin Washburn Jan 2008

The Legacy Of Bryan V. Itasca County: How An Erroneous $147 County Tax Notice Helped Bring Tribes $200 Billion In Indian Gaming Revenue, Kevin Washburn

Faculty Scholarship

This Article places Bryan v. Itasca County in historical context and gives credit where credit is due. From the perspective of three decades, it describes the litigation and its ramifications, and highlights the work of the legal services attorneys who brought Indian tribes this landmark victory. Part I briefly describes the litigation through the state supreme court. Part II discusses, in much greater detail, the appeal to the U.S. Supreme Court. Part III analyzes the unanimous Supreme Court opinion reversing the state courts and describes the breathtaking scope of the opinion, as well as its implications. Part IV briefly describes …