Digital Commons Network^™

The Future Of Securitization, Steven L. Schwarcz

Faculty Scholarship

Securitization, a process in which firms can raise low-cost financing by efficiently allocating asset risks with investor appetite for risk, has been one of the most dominant and fastest-growing means of capital formation in the United States and the world. The subprime financial crisis, however, has revealed certain defects with how securitization is sometimes utilized. This article examines these defects and the extent they can, and should, be remedied going forward.

Israel's Invasion Of Gaza In International Law, George Bisharat, Timothy Crawley, Sar Elturk, Carey James, Rose Mishaan, Akila Radhakrishnan, Anna Sanders

Faculty Scholarship

No abstract provided.

After Sosa: The Future Of Customary International Law In The United States, William S. Dodge

Faculty Scholarship

No abstract provided.

Explaining The Sioux Military Commission Of 1862, Maeve Glass

Faculty Scholarship

Part I of this Note describes current scholarship on the history of military commissions and identifies a gap in the prevailing narrative, namely, an explanation for why the military favored a legal process over collective reprisals or summary executions. Part II seeks to address this gap, by examining the circumstances in which the military convened the commission and the context in which President Abraham Lincoln approved it. Part III concludes that this historical perspective helps clarify the original role of military commissions as articulated in the Supreme Court case of Hamdan v. Rumsfeld and calls into question whether an institution …

Latina/Os' And Latina/O Legal Studies: A Critical And Self-Critical Review Of Latcrit Theory And Legal Models Of Knowledge Production, Margaret E. Montoya, Francisco Valdes

Faculty Scholarship

For the twelfth time in as many years, the LatCrit community convened its annual conference to underscore the importance of location and locality in the work that we do. The conference theme's framing around Critical Localities: Epistemic Communities, Rooted Cosmopolitans and Knowledge Processes not only focused our collective attention on questions of epistemic community and intellectual (as well as physical) location, but also invited reflection on the meanings we inscribe onto the positions we elect to stake out for ourselves and our work in light of the options and traditions that serve as background. The "Critical Localities" theme invites an …

The Law Of Armed Conflict And Detention Operations In Afghanistan, Matthew C. Waxman

Faculty Scholarship

In reflecting on the arc of US and coalition detention operations in Afghanistan, three key issues related to the law of armed conflict stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court's holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial …

Roles, Missions,And Equipment: Military Lessons From Experience In This Decade, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Beyond Protection, Philip A. Hamburger

Faculty Scholarship

Do foreign terrorists have rights under American law? And can they be prosecuted under such law? These questions may seem novel and singularly dificult. In fact, the central legal questions raised by foreign terrorism have long been familiar and have long had answers in the principle of protection.

This Article explains the principle of protection and its implications for terrorism. Under the principle of protection, as understood in early American law, allegiance and protection were reciprocal. As a result, a person without allegiance was without protection, including the protection of the law. Not owing allegiance, such a person had no …

Administrative Detention Of Terrorists: Why Detain, And Detain Whom?, Matthew C. Waxman

Faculty Scholarship

This article aims to reframe the administrative detention debate, not to resolve it. In doing so, however, it aspires to advance the discussion by highlighting the critical substantive choices embedded in calls for legal procedural reform and by pointing the way toward appropriately tailored legislative options. It argues that the current debate’s focus on procedural and institutional questions of how to detain suspected terrorists has been allowed to overshadow the questions of why administratively detain, and whom to detain. Not only are the answers to these questions at least as important as the procedural rules in safeguarding and balancing liberty …

Is Justice Relevant To The Law Of War, George P. Fletcher

Faculty Scholarship

Intellectual work on the law of war suffers from chronic isolation. The commentators on the Rome Statute are international lawyers who pay no attention to the work either of theoretical criminal lawyers or of the philosophers. The philosophers – Jeff McMahan as an outstanding example – ignore the legal details that dominate the books of the international lawyers. Criminal lawyers have much to contribute to the discussion of international law, but they seem not to be interested. Writers with limited audiences, living in closed worlds, are unaware of what they have to learn from those with a different take on …

Guantánamo, Habeas Corpus, And Standards Of Proof: Viewing The Law Through Multiple Lenses, Matthew C. Waxman

Faculty Scholarship

The Supreme Court held in Boumediene v. Bush that Guantánamo detainees have a constitutional right to habeas corpus review of their detention, but it left to district courts in the first instance responsibility for working through the appropriate standard of proof and related evidentiary principles imposed on the government to justify continued detention. This article argues that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about competing risks and their distribution. How one approaches these questions depends on the lens through which one views the problem: through that of a courtroom concerned …

United States Detention Operations In Afghanistan And The Law Of Armed Conflict, Matthew C. Waxman

Faculty Scholarship

Looking back on US and coalition detention operations in Afghanistan to date, three key issues stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court’s holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial the longer the Afghan conflict continues. And the …

The Cost Of Conflation: Preserving The Dualism Of Jus Ad Bellum And Jus In Bello In The Contemporary Law Of War, Robert D. Sloane

Faculty Scholarship

Much post-9/11 scholarship asks whether modern transnational terrorist networks, the increasing availability of catastrophic weapons to nonstate actors, and other novel threats require changes to either or both of the two traditional branches of the law of war: (i) the jus ad bellum, which governs resort to war, and (ii) the jus in bello, which governs the conduct of hostilities. Scant recent work focuses on the equally vital question whether the relationship between those branches-and, in particular, the traditional axiom that insists on their analytic independence-can and should be preserved in contemporary international law. The issue has been largely neglected …

No More Secret Laws: How Transparency Of Executive Branch Legal Policy Doesn't Let The Terrorists Win, Sudha Setty

Faculty Scholarship

One of the key hallmarks of a democratic nation is that there are no secret laws. In the post-September 11, 2001 era, the George W. Bush administration relied on national security concerns and the unitary executive theory of presidential power as justifications for maintaining secret legal policies that govern parts of the war on terrorism that affect serious issues of human rights and civil liberties. These legal policies sometimes staked out positions that are at odds with legislation, treaties, and court decisions—but the parameters of the executive branch legal policies were sometimes unknown because of the lack of public disclosure. …

U.S. Class Actions And The "Global Class", George A. Bermann

Faculty Scholarship

Robert Casad's articles on comparative civil procedure were among the first comparative law pieces that caught my eye when, as a freshly-minted associate at a leading New York law firm, I found myself leafing through comparative law journals, rather than amassing billable hours. I had no idea then that comparative law could be as fascinating as I have come to find it, certainly not in a field like civil procedure where the dividends of comparative law work were by no means obvious to me. (Comparative law was not even taught in any guise at Yale Law School in the late …

Untying The Gordian Knot: A Proposal For Determining Applicability Of The Laws Of War To The War On Terror, Geoffery S. Corn, Eric Talbot Jensen

Faculty Scholarship

No abstract provided.

Exercising Passive Personality Jurisdiction Over Combatants: A Theory In Need Of A Political Solution, Eric Talbot Jensen

Faculty Scholarship

On March 4, 2005, a car carrying Nicola Calipari and Andrea Carpani, members of the Italian Ministry of Intelligence, and Giuliana Sgrena, a journalist who had been taken hostage one month before and who had just been released and was on her way back to Italy, was traveling to the Baghdad Airport. The car was fired on by US forces from a checkpoint, killing Mr. Calipari and wounding Ms. Sgrena and Mr. Carpani. As a result of this tragic event, a joint investigation occurred and but Italy and the United States could not agree on the results. The United States …

Dances With Elephants: Administrative Resolution Of Medical Injury Claims By Medicare Beneficiaries, Eleanor D. Kinney, William M. Sage

Faculty Scholarship

In our judgment, Hoffmann and Rowthorn's research clearly demonstrates that the QIO-based complaint review process does not provide genuine relief to beneficiaries. People who complain typically want an explanation of their bad experience, compensation for harm they may have suffered, and assurance that future experiences will be better for themselves and for others. Medicare beneficiaries, however, receive minimal information about the resolution of their complaints and no substantive relief whatsoever.

As Hoffmann and Rowthorn point out, several reform proposals are now before Congress, including moving the beneficiary complaint function from QIOs to new "Medicare Provider Review Organizations." It is not …

Review Of The Toxicology Of Chlorpyrifos With An Emphasis On Human Exposure And Neurodevelopment, Robert B. Daroff

Faculty Scholarship

This review examines the large body of toxicological and epidemiological information on human exposures to chlorpyrifos, with an emphasis on the controversial potential for chlorpyrifos to induce neurodevelopmental effects at low doses. The results of this review demonstrate that the use of urinary 3,5,6-trichlorpyridinol (TCPy), a metabolite of chlorpyrifos as a biomarker of nonoccupational exposure is problematic and may overestimate nonoccupational exposures to chlorpyrifos by 10-to 20-fold because of the widespread presence of both TCPy and chlorpyrifos-methyl in the food supply. Current "background" (nonoccupational) levels of exposure to chlorpyrifos are several orders of magnitude lower than those required to inhibit …

Insurance For Acts Of Terrorism, Robert J. Rhee

Faculty Scholarship

This chapter discusses insurance case law arising from acts of terrorism, including those arising from the September 11 attacks. It analyzes the Terrorism Risk Insurance Act of 2002 (TRIA), as amended by the Terrorism Risk Insurance Act of 2005 and the Terrorism Risk Insurance Program Reauthorization Act of 2007, as well as the administrative program created by the legislation. Examples are provided and NAIC Policyholder Disclosure Notice forms are included. Policy considerations surrounding TRIA are also discussed including insurance industry strategies, the difficulties of assessing terrorism risks, the effect of TRIA subsidized insurance on the market, and the benefits and …

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 …

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.

Taking Liberties: The Personal Jurisdiction Of Military Commissions, Madeline Morris

Faculty Scholarship

On September 11, 2001, Al Qaeda operatives attacked civilian and military targets on US territory, causing thousands of deaths and billions of dollars of economic loss. The next day, the United Nations Security Council unanimously adopted Resolution 1368 characterizing the attack by Al Qaeda as a "threat to international peace and security" and recognizing the right of states to use armed force in self defense.

Lawfare Today: A Perspective, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Shortchanging The Joint Fight? An Airman’S Assessment Of Fm 3-24 And The Case For Developing Truly Joint Coin Doctrine, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Could And Should America Have Made An Ottoman Republic In 1919?, Paul D. Carrington

Faculty Scholarship

Numerous Americans, perhaps especially American lawyers, have since the 1780s presumed to tell other peoples how to govern themselves. In 2006, that persistent impulse was once again echoed in an address to the American Bar Association by a Justice of the Supreme Court. The purpose of this essay is to question the wisdom of this evangelical ambition, especially when the form of instruction includes military force. It is draws on Spreading America's Word (2005) and directs attention to the hopes of American Protestant Zionists to make a democratic republic in Ottoman Palestine. It suggests that chances were better in 1919 …

Conciliatory Institutions And Constitutional Processes In Post-Conflict States, Donald L. Horowitz

Faculty Scholarship

There are two important questions in post-conflict constitution making, and at present neither of them has a definitive or uniformly accepted answer. The first relates to the best configuration of institutions to adopt in order to ameliorate the problem of the intergroup conflict. The second concerns the process most apt to produce the best configuration of institutions, whatever it might be. The first question is unanswered because there is a dispute among scholars and practitioners between two opposing views of appropriate institutions to mitigate conflict. Constitutional processes have not generally been geared to yield coherent exemplars of either configuration in …

Unratified Treaties, Domestic Politics, And The U.S. Constitution, Curtis A. Bradley

Faculty Scholarship

Under contemporary treaty practice, a nation's signature of a treaty typically does not make the nation a party to the treaty. Rather, nations become parties to treaties through an act of ratification or accession, which sometimes occurs long after signature. Nevertheless, Article 18 of the Vienna Convention on the Law of Treaties, which many commentators regard as reflecting customary international law, provides that when a nation signs a treaty it is obligated to refrain from actions that would defeat the “object and purpose” of the treaty until such time as it makes clear its intent not to become a party …

Protecting Financial Markets: Lessons From The Subprime Mortgage Meltdown, Steven L. Schwarcz

Faculty Scholarship

Why did the recent subprime mortgage meltdown undermine financial market stability notwithstanding the protections provided by market norms and financial regulation? This article attempts to answer that question by identifying anomalies and obvious protections that failed to work, and then by examining hypotheses that might explain the anomalies and failures. The resulting explanations provide critical insights into protecting financial markets.

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

Faculty Scholarship

No abstract provided.