Digital Commons Network^™

Changing The Paradigm Of Internet Access From Government Information Systems: A Solution To The Need For The Dod To Take Time-Sensitive Action On The Niprnet, Joshua E. Kastenberg

Faculty Scholarship

The DOD is currently lacking sufficient regulatory authority to ensure the availability of access to conduct operations through cyberspace, because the conduct of its members is predicated on a number of false assumptions which are written into outdated or otherwise poorly designed current regulations. This article addresses those assumptions and existing regulations and argues for new guidance to alter the current paradigm of almost unfettered access. This article is divided into three sections. Section I touches on the nature of DOD cyberspace and the potential harms that result from current social behaviors of the department's personnel. Section II analyzes shortcomings …

Cause And Effect: The Origins And Impact Of Justice William O. Douglas’ Anti-Military Ideology From World War Ii To O’Callahan V. Parker, Joshua E. Kastenberg

Faculty Scholarship

The intention underlying this Article is to analyze the sources and effects of Douglas's antipathy for the military's legal construct, especially the practice of trial by courts-martial. Douglas did have an effect on the evolution of the military's legal construct, and he almost succeeded in narrowing the military's jurisdiction over its servicemen to a narrow fraction of what its jurisdictional reach is today. Along with Justices Hugo Black, Earl Warren, Felix Frankfurter, William Brennan, and shorter-tenured justices, he succeeded in judicially mandating due-process rights for servicemen accused of offenses.8 However, in his ultimate goal, the extent to which he succeeded …

Non-Intervention And Neutrality In Cyberspace: An Emerging Principle In The National Practice Of International Law, Joshua E. Kastenberg

Faculty Scholarship

The enforcement of neutrality in cyberspace has not yet occurred, and there appears to be no policy for enforcement. This article suggests a rubric using existing laws for exerting executive authority. Section I of this article discusses the emergence of conflict in cyberspace. This article focuses on the executive branch's authority to enforce neutrality in cyberspace. Section II provides a basic rubric of neutrality rules as applied to conflict in cyberspace. Section III analyzes the most recent cyberconflict, the Georgian-Russian War of 2008, and the potential consequences the United States risked because it lacked a cyber neutral position. Finally, the …

Over Under Or Through: Physicians, Law, And Health Care Reform, William M. Sage

Faculty Scholarship

My purpose in this commentary is twofold. First, I want to offer a few thoughts on why the American medical profession sometimes has a hard time accepting law on its own terms. Second, I want to suggest that even “good law” from the perspective of the medical profession—should it overcome its habits of resistance—may still be bad health policy for the United States.

Solidarity: Unfashionable, But Still American, William M. Sage

Faculty Scholarship

Illness, we are often told, is a private matter. Accordingly, none must interfere in the medical decisions that emerge from the confidential relationship be- tween physician and patient. Yet evidence of interdependence is ubiquitous in health care. One person’s malady can harm families, workplaces, clubs, churches, and sometimes entire communities. Similarly, a suffering pa- tient must rely on many individuals, associational groups, corporate entities, and government agencies for support and assistance. It is, therefore, unsurprising that various social units claim an interest and a voice in maintaining health and treating disease.

However, explicit solidarity has long been out of vogue …

Lincoln's Populist Sovereignty: Public Finance Of, By, And For The People, Timothy A. Canova

Faculty Scholarship

No abstract provided.

Enhancing The Fighting Force: Medical Research On American Soldiers, Catherine L. Annas, George J. Annas

Faculty Scholarship

During President Barack Obama's first primetime press conference, reporters asked primarily about the state of the economy and terrorism. Wedged between questions on these two vital issues was a query from the Washington Post's Michael Fletcher:

Question: What is your reaction to Alex Rodriguez's admission that he used steroids as a member of the Texas Rangers?

Obama: You know, I think it's depressing news.... And if you're a fan of Major League Baseball, I think it - it tarnishes an entire era, to some degree. And it's unfortunate, because I think there are a lot of ballplayers who played it …

From Greed To Grievance: The Shifting Political Profile Of The Colombian Paramilitaries, Winifred Tate

Faculty Scholarship

On June 28, 2004, indicted drug trafficker and paramilitary leader Salvatore Mancuso, wearing a fashionable Italian suit and tie, addressed the Colombian Congress from the podium. "The judgment of history will recognize the goodness and nobility of our cause," he told the assembled legislators and press. The day before, Mancuso, along with two other paramilitary leaders, had traveled in an official air force plane from the small northern Colombia hamlet where paramilitary leaders had assembled to begin talks with the Colombian government. After almost a decade of fighting outside the law, Mancuso was now addressing the heart of the state, …

Indigenous Peoples And The Law - Ancient Customs: Modern Dilemmas, David S. Bogen

Faculty Scholarship

Indigenous people have a variety of complex relationships to law in nations such as Australia, Canada, New Zealand and the United States where non-indigenous people constitute the majority of the population. Customary law has been recognised in each of these nations as a source of domestic law, but this recognition has created various tensions. For instance, Native Title looks to customary law for its definition, but non-indigenous society demands that Native Title be managed by modern Indigenous institutions created under non-indigenous law. Issues of federalism and international law influence the interaction of Indigenous and non-indigenous law against a background of …

Laboratories Of Destitution: Democratic Experimentalsim And The Failure Of Antipoverty Law, David A. Super

Faculty Scholarship

Democratic experimentalism, the procedural component of the “new governance” movement, has won widespread acceptance in calling for decentralization, deliberation, deregulation, and experimentation. Democratic experimentalists claim that this approach offers pragmatic solutions to social problems. Although the democratic experimentalist movement formally began only a decade ago, antipoverty law has reflected its major principles since the 1960s. This experiment has gone badly, weakening antipoverty programs. Key elements of this participatory approach to antipoverty law – decentralization, privatization, and the substitution of ad hoc problemsolving for individual rights – all contributed to the calamity that low-income people suffered during and after Hurricane Katrina. …

The Universal Declaration And Developments In The Enforcement Of International Human Rights In Domestic Law, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.

Privilege-Wise And Patent (And Trade-Secret)-Foolish?: How The Courts' Misapplication Of The Military And State Secrets Privilege Violates The Constitution And Endangers National Security, Davida H. Isaacs, Robert M. Farley

Faculty Scholarship

It is every inventor's nightmare: a valuable idea, stolen, with no legal recourse. Yet that is precisely what happened in Lucent v. Crater, where the Federal Circuit permitted the Federal Government to defeat the inventors' claims using the military and state secrets privilege. In light of the recent upsurge in the Government's invocation of this privilege, it is time to scrutinize more carefully courts' highly deferential response to its use. There is little question that the executive branch must be able to invoke the privilege in order to ensure that national security is not imperiled by public disclosure of information. …

Environmental Law: The Policy Implications Of The Reaction To Climate Change, Jeffrey S Sutton, Jonathan Adler, John C. Dernbach, Steven F Hayward, Jeremy A Rabkin

Faculty Scholarship

No abstract provided.

Life At The Center Reflections On My Career, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

The Nature Of Universal Moralities, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Madison In Post-9/11 Cyberspace: Applying Federalist No. 10 To The Online Battle For ‘Hearts And Minds’, Dawinder S. Sidhu

Faculty Scholarship

To be sure, there are at least a few problems with the approach of drawing upon the Framers for guidance with respect to the issues of the day. First, the Framers did not reach consensus on all matters. The famous rivalry between the Alexander Hamilton, a staunch nationalist from New York who favored a strong federal banking system and central government, and Jefferson, a republican from Virginia who preferred an agrarian lifestyle and trusted the people to do right by American society, perhaps best illustrates the fact that the Framers themselves were not in lockstep as to the makeup of …

The Law And The Host Of The Canterbury Tales, Frederick B. Jonassen

Faculty Scholarship

No abstract provided.

Regulating Complexity In Financial Markets, Steven L. Schwarcz

Faculty Scholarship

As the financial crisis has tragically illustrated, the complexities of modern financial markets and investment securities can trigger systemic market failures. Addressing these complexities, this Article maintains, is perhaps the greatest financial-market challenge of the future. The Article first examines and explains the nature of these complexities. It then analyzes the regulatory and other steps that should be considered to reduce the potential for failure. Because complex financial markets resemble complex engineering systems, and failures in those markets have characteristics of failures in those systems, the Article‟s analysis draws on chaos theory and other approaches used to analyze complex engineering …

The Ethical Dimensions Of National Security Law, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Towards A Cyberspace Legal Regime In The Twenty-First Century: Considerations For American Cyber-Warriors, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Lawfare: A Decisive Element Of 21st-Century Conflicts?, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Heller, Citizenship, And The Right To Serve In The Military, Elizabeth L. Hillman

Faculty Scholarship

No abstract provided.

An Overt Turn On Covert Action, Afsheen John Radsan

Faculty Scholarship

Long past the soul-searching of Watergate, very few people question the need for covert action as a part of American foreign policy. The world is so dangerous after 9/11 that it would be irresponsible to suggest that our intelligence agencies should be disbanded or that our government should acknowledge everything it does on the dark side. Today the question is not whether we should engage in covert action at all, but how often and under what circumstances.

Not everything stays secret. Our Nation has been conducting covert action with greater transparency and more congressional participation than during the Cold War. …

The Future Of The Securities And Exchange Commission As A Market Regulator, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Life At The Center, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Judicial Review As Soft Power: How The Courts Can Help Us Win The Post-9/11 Conflict, Dawinder S. Sidhu

Faculty Scholarship

This Article seeks to answer these questions. In this Article, I will argue that the American response to Islamic terrorist factions must move outside the military sphere in which battles are fought between arms and men to a more conceptual contest for hearts and minds, where the ammunition in this abstract war will be fundamental American principles, particularly a constitutional commitment to the rule of law, and where advancements in the war will be based on incrementally increased attraction to America. This approach will speak to one’s will and conscience in an effort to secure a more lasting respite from …

This Right Is Not Allowed By Governments That Are Afraid Of The People: The Public Meaning Of The Second Amendment When The Fourteenth Amendment Was Ratified , Clayton E. Cramer, Nicholas J. Johnson, George A. Moscary

Faculty Scholarship

The lingering question following the U.S. Supreme Court's decision in District of Columbia v. Heller is whether the Court will employ the Fourteenth Amendment to incorporate the newly confirmed right to keep and bear arms as a limitation on states. The answer will hinge substantially on the Court's assessment of the intent and purpose of the Fourteenth Amendment with regard to the right to keep and bear arms. Discerning such intent requires detailed evaluation of the context within which the amendment emerged and the understanding of the right to keep and bear arms at the time. This Essay pursues in …

Supreme Court As Interstitial Actor: Justice Ginsburg's Eclectic Approach To Statutory Interpretation Symposium: The Jurisprudence Of Justice Ruth Bader Ginsberg: A Discussion Of Fifteen Years On The U.S. Supreme Court, James J. Brudney

Faculty Scholarship

The Supreme Court is in the midst of an extended debate regarding the proper approach to construing federal statutes. A number of Justices have engaged in heated dialogue addressing the pros and cons of textualism or intentionalism, as well as the virtues and limitations of Chevron deference. Although Justice Ginsburg has not participated in these judicial exchanges, she has adopted her own approach to the challenge of interpreting federal statutes. This Article explores Ginsburg’s approach by focusing on four opinions that construe federal criminal laws and three that interpret labor relations and anti-discrimination laws. The Article’s central thesis is that …

Untold Stories: Restoring Narrative To Pleading Practice, Elizabeth Fajans

Faculty Scholarship

No abstract provided.

The Future Of The Securities And Exchange Commission As A Market Regulator, Roberta S. Karmel

Faculty Scholarship

No abstract provided.