Digital Commons Network^™

Market Fragmenting Regulation - Why Gasoline Costs So Much (And Why It's Going To Cost More), Andrew P. Morriss, Nathaniel Stewart

Faculty Scholarship

Virtually everyone holds an opinion on what is wrong with gasoline markets. Some critics argue that gasoline costs too much, fattening greedy oil barons at the expense of consumers. Some link reducing oil producers' profits to stopping terrorism. Others contend that gasoline costs too little, subsidizing suburban sprawl and gas-guzzling SUVs at the expense of the environment. Web sites track gasoline prices and grocery stores sell low-cost fuel to lure shoppers. Policy makers debate whether gas taxes should be cut to lower the cost of living; need to be increased to make drivers pay the full cost of their behavior; …

Advancing The Rule Of Law: Report On The International Rule Of Law Symposium Convened By The American Bar Association November 9-10, 2005, Katharina Pistor

Faculty Scholarship

The American Bar Association hosted the first International Rule of Law Symposium in Washington, D.C. on November 9-10, 2005. The Symposium brought together representatives from all over the world who share a common interest in advancing the rule of law as a means to tackle major obstacles that hamper social and economic growth and development around the globe. Some were ministers and government officials, others entrepreneurs and business people, yet others represented non-governmental organizations or employees of multilateral donor organizations. The topics addressed at the Symposium were equally far reaching in scope, covering everything from poverty alleviation and improving public …

A Tale Of Two Platforms, Tim Wu

Faculty Scholarship

This paper discusses future competitions between cellular and computer platforms, in the context of a discussion of Jonathan Zittrain, The Generative Internet, 119 Harv. L. Rev. 1974 (2006).

Physicians And Torture: Lessons From The Nazi Doctors, Michael Grodin, George J. Annas

Faculty Scholarship

How is it possible? What are the personal, professional and political contexts that allow physicians to use their skills to torture and kill rather than heal? What are the psychological characteristics and the social, cultural and political factors that predispose physicians to participate in human rights abuses? What can be done to recognize at-risk situations and attempt to provide corrective or preventive strategies? This article examines case studies from Nazi Germany in an attempt to answer these questions. Subjects discussed include the psychology of the individual perpetrator, dehumanization, numbing, splitting, omnipotence, medicalization, group dynamics, obedience to authority, diffusion of responsibility, …

Prologue To A Voluntarist War Convention, Robert D. Sloane

Faculty Scholarship

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 …

Before Competition: Origins Of The Internal Affairs Doctrine, Frederick Tung

Faculty Scholarship

To the modern corporate scholar and lawyer, the internal affairs doctrine seems in the natural order ofthings. Corporate law is state law. Each corporation is formed under the law of its chosen state ofincorporation. To ensure consistency and predictability, that law must govern the corporation's internalaffairs. Yet the origin of such a doctrine is puzzling. Respecting the firm's choice of corporate law, thedoctrine forces state legislatures into competition to attract incorporations. But how did legislatures come to concede their traditional territorial regulatory authority, and instead agree to compete? This Article solves this puzzle, offering the first account of the doctrine's …

American Wartime Values In Historical Perspective: Full-Employment Mobilization Or Business As Usual, Timothy A. Canova

Faculty Scholarship

This paper explores the range of values implicated by war and compares today's dominant values with those that prevailed during previous American wars, with a particular emphasis on the World War Two and early Cold War period. War is related to values, and as economists like to remind us, what we value becomes apparent in the movement of people and prices. Part I of this Article considers the moral, ethical and monetary values that prevailed throughout the 1940's and early 1950's. The normative threads that kept the World War Two effort on track were those of mobilization and shared sacrifice. …

Federal Criminal Law And Tribal Self-Determination, Kevin Washburn

Faculty Scholarship

Under the rubric of "tribal self-determination," federal policymakers have shifted federal governmental power and control to tribal governments in nearly all areas of Indian policy. Normatively, this shift reflects an enlightened view about the role of Indian tribes in Indian policy. As a practical matter, it has also improved services to Indians on reservations by placing functions with tribal service providers who are more knowledgeable and more accountable than their federal counterparts. Despite broad adoption of self-determination as the dominant federal policy, felony criminal justice on Indian reservations has remained an exclusive federal function, and a highly ineffective enterprise, according …

First Amendment Cases In The October 2004 Term, Joel Gora

Faculty Scholarship

No abstract provided.

Peril Invites Rescue: An Evolutionary Perspective, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Neo-Strategicon: Modernized Principles Of War For The 21st Century, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Dunlap’S Very Subjective Reading List For Air Force Judge Advocates, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Legal Issues In Coalition Warfare: A U.S. Perspective, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Precaution Against Terrorism, Jonathan B. Wiener, Jessica Stern

Faculty Scholarship

Stunned by the terrorist attacks of September 11, 2001, the Bush administration adopted a new National Security Strategy in September 2002. The UK government took a similar stance. This new strategy calls for anticipatory attacks against potential enemies with uncertain capacities and intentions, even before their threat is imminent. Rather than wait for evidence of weapons of mass destruction, it shifts the burden of proof, obliging ‘‘rogue’’ states to show that they do not harbor weapons of mass destruction or terrorist cells, or else face the possibility of attack. This new strategy amounts to the adoption of the Precautionary Principle …

Combatant Status Review Tribunals: Flawed Answers To The Wrong Question, Joseph Blocher

Faculty Scholarship

This Comment argues that the Combatant Status Review Tribunals were not competent to deny Prisoner of War status because they were charged only with identifying enemy combatants, a broad category that by its own terms includes many POWs. Given the substantial overlap between the definitions of "enemy combatant" and "POW," a CSRT's affirmative enemy combatant determination actually supports a detainee's POW status. Thus, even after their enemy combatant status has been adjudicated by the CSRTs, Guantánamo detainees should still be treated as presumptive POWs.

From Sec Enforcement Attorney To Commissioner, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

The Morality Of Evolutionarily Self-Interested Rescues, Bailey Kuklin

Faculty Scholarship

No abstract provided.

From Sec Enforcement Attorney To Commissioner, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Supremacy And Diplomacy: The International Law Of The U.S. Supreme Court, Harlan G. Cohen

Faculty Scholarship

In 2003-2004, a Presidential campaign year dominated by debates about international affairs and international law, the U.S. Supreme Court took an unusual number of cases of international import. The Court considered the Alien Tort Claims Act and the future of human rights suits in U.S. courts, the applicability of the Foreign Sovereign Immunity Act to claims involving Nazi-stolen artwork, the applicability of American antitrust law to foreign anticompetitive activity, and the legality of the Guantanamo detentions. A great deal of ink has been spilled analyzing the individual impacts of each of these cases. What has been less considered is how …

The Limits Of Courage And Principle, Jedediah S. Purdy

Faculty Scholarship

Michael Ignatieff, the director of the Carr Center for Human Rights at Harvard's Kennedy School of Government, is not a lawyer. His work, however, treats issues of core concern to lawyers: nation-building, human rights, the ethics of warfare, and now, in his latest book, the proper relationship between liberty and security. The Lesser Evil is, in part, a book a legal scholar might have written: a normative framework for lawmaking in the face of the terror threat. It is also something more unusual: an exercise in an older type of jurisprudence. Ignatieff discusses law in the light of moral psychology …

Waging War Against Terror: An Essay For Sandy Levinson, Philip Chase Bobbitt

Faculty Scholarship

Wars are acts of State, and therefore there has never been a "war on terror." Of course states have fought terrorism, in many guises, for centuries. But a war on terror had to await the development of states – including virtual states like al Qaeda's global ummah – whose constitutional order was not confined to a particular territory or national group and for whom terror could therefore be a permanent state of international affairs, either sought in order to prevent persons within a state's control from resisting oppression by accessing global, empowering resources and networks, or suffered because other states …

The Rose Theorem?, Michael Heller

Faculty Scholarship

Law resists theorems. We have hypotheses, typologies, heuristics, and conundrums. But, until now, only one plausible theorem – and that we borrowed from economics. Could there be a second, the Rose Theorem?

Any theorem must generalize, be falsifiable, and have predictive power. Law's theorems, however, seem to require three additional qualities: they emerge from tales of ordinary stuff; are named for, not by, their creators; and have no single authoritative form. For example, Ronald Coase wrote of ranchers and farmers. He has always shied away from the Theorem project. When later scholars formalized his parable, they created multiple and inconsistent …

Bioterror And “Bioart”: A Plague O' Both Your Houses, George J. Annas

Faculty Scholarship

Since September 11, 2001, the threat of bioterrorism has caused Congress and the President to dramatically increase research funding for countermeasures, including funding for new biosecurity laboratories. The new kind of war against non-state actors who use terror to intimidate populations has also made the creation of new ethical and legal rules for researchers seem critical. New laws have been passed, and there have been proposals for new codes of ethics for bioterrorism-related research. Almost five years after September 11, however, the outcome of the development of new research rules remains uncertain.

Combatant Status: It Is Time For Intermediate Levels Of Recognition For Partial Compliance, Eric Talbot Jensen

Faculty Scholarship

Under current international law, combatant status is an all-or-nothing proposition. Either a fighting force qualifies under all the criteria of article 4 of the GPW and receives all the privileges and immunities of combatant status, or a force does not qualify, and is provided no protection above that of any other civilian in the area, and may even be disqualified from the protections afforded to civilians. Given the reality of today's battlefields where the conflict is seldom between the armed forces of two nations, these requirements are counterproductive and provide a disincentive for fighters to distinguish themselves from the civilian …

Field Marshall Douglas Haig: A Negative Leadership Lesson In Military History, Joshua E. Kastenberg

Faculty Scholarship

A very brief analysis of the “bloody mindlessness” leadership trait of Field Marshall Douglas Haig.

For Whom Does The Bell Toll: The Bell Tolls For Brown?, Angela Onwuachi-Willig

Faculty Scholarship

This review essay analyzes Derrick Bell's provocative new book, Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform (2004). In Silent Covenants, Professor Bell reviews Brown v. Board of Education, and inquires "whether another approach than the one embraced by the Brown decision might have been more effective and less disruptive in the always-contentious racial arena." Specifically, Professor Bell joins black conservatives in critiquing what he describes as a misguided focus on achieving racial balance in schools and argues that the quality of education for minority children, in particular Blacks, would have been better today …

Law And Public Health: Beyond Emergency Preparedness, Wendy K. Mariner

Faculty Scholarship

This Article examines three questions: What is public health? What is public health law? What roles can lawyers play in public health? It first describes the breadth of public health, highlighting six trends shaping its future: social determinants of health; synergy between medicine and public health; shifts in focus from external (e.g., environmental and social) to internal (behavioral) risks to health; federalization of public health law; globalization of health risks and responses; and bioterrorism. Because the domains of law that apply to public health are equally broad, the Article next offers a conceptual framework for identifying the types of laws …

Mutual Funds, Pension Funds, Hedge Funds And Stock Market Volatility - What Regulation By The Securities And Exchange Commission Is Appropriate, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Mutual Funds, Pension Funds, Hedge Funds And Stock Market Volatility: What Regulation By The Securities And Exchange Commission Is Appropriate?, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Who's Afraid Of The Precautionary Principle?, Robert V. Percival

Faculty Scholarship

The precautionary principle – the notion that lack of scientific certainty should not foreclose precautionary regulation – has become enormously popular in recent years, as reflected by its endorsement in many important international declarations and agreements. Despite its growing influence, the precautionary principle recently has come under fire by critics who argue that it is incoherent, potentially paralyzing, and that it will lead regulators to make bad choices. They maintain that society faces greater peril from overly costly regulations than from exposure to sources of environmental risks whose effect on human health and the environment is not fully understood at …