Law Commons^™

Poetic Justice: Connecting The Modern American Prosecutor To Her Rhetorical Roots, Michael Caves

All Dissertations

Poetic Justice: Connecting the Modern American Prosecutor to her Rhetorical Roots explores the gap between rhetoric and the American prosecutor, to eventually advocate for a more creative, inventive trial practice for prosecutors that embraces the spirit and methods of narrative, poetics, and Ulmeric mystories, with the prosecutor’s unique ethical obligations forming the basis of a new prosecutor’s rhetoric. This research opens with an autoethnographic account of the author’s own path to criminal prosecution, to give the reader a sense of the author’s ethos, to identify the shortcomings of rhetorical training in law school pedagogy, and to outline the rhetorical …

Against The Death Penalty, Charles Jessup

Student Research Submissions

My thesis is an argument against the death penalty. Given that public support for the death penalty in America is at a half-century low (according to the Pew Research Center), the timing could not be more appropriate to examine the death penalty. This research project had a two-step approach: first, ethical theory-based arguments for and against the death penalty were examined. Following that ethical theory-based examination, real-world statistics were applied to these theories to test where they stand in modern society. The findings contained in this research project point to a clear reality that the death penalty in America is …

On The Elimination Of Cash Bail, Lucas Baudry

Honors Capstone Projects and Theses

No abstract provided.

Information Warfare: Lessons In Inoculation To Disinformation, Meghan Fitzpatrick, Ritu Gill, Jennifer F. Giles

The US Army War College Quarterly: Parameters

While propaganda and disinformation have been used to destabilize opposing forces throughout history, the US military remains unprepared for the way these methods have been adapted to the Internet era. This article explores the modern history of disinformation campaigns and the current state of US military readiness in the face of campaigns from near-peer competitors and proposes education as the best way to prepare US servicemembers to defend against such campaigns.

China’S Global Monopoly On Rare-Earth Elements, Gustavo Ferreira, Jamie Critelli

The US Army War College Quarterly: Parameters

This article delivers a novel economic analysis of US dependence on China for rare-earth elements and sheds light on how Western nations may exploit the limitations of limit pricing to break China’s global monopoly in rare-earth element production and refinement. This analytical framework, supported by a comprehensive literature review, the application of microeconomic and industrial organization concepts, and two case-study scenarios, provides several policy recommendations to address the most important foreign policy challenge the United States has faced since the end of the Cold War.

Chinese And Western Ways Of War And Their Ethics, C. Anthony Pfaff

The US Army War College Quarterly: Parameters

US officials often portray the Chinese government as having few, if any, ethical boundaries in its pursuit of power. This article argues China, like Western countries, has a rich tradition of constraining this pursuit that can impact the nation’s policies. With a focus on the relationship between ways of war and ethics of war, it relies on traditional and contemporary scholarship from both the East and the West to highlight differences in how each military views the practical and ethical aspects of war and how these views can interact. Understanding the ethical logic available to one’s adversaries will allow US …

Book Reviews, Usawc Press

The US Army War College Quarterly: Parameters

No abstract provided.

On “The Alt-Right Movement And Us National Security” And Authors' Response, Charles J. Dunlap

The US Army War College Quarterly: Parameters

This commentary responds to Matthew Valasik and Shannon E. Reid’s article “The Alt-Right Movement and US National Security” published in the Autumn 2021 issue of Parameters (vol. 51, no. 3).

On "The Battalion Commander Effect" And Authors' Response, Ralph Masi

The US Army War College Quarterly: Parameters

This commentary responds to Everett Spain, Gautam Mukunda, and Archie Bates’s article, “The Battalion Commander Effect,” published in the Autumn 2021 issue of Parameters (vol. 51, no. 3).

On "Broken Nest: Deterring China From Invading Taiwan" And Authors' Response, Eric Chan

The US Army War College Quarterly: Parameters

No abstract provided.

Developing Strategic Lieutenants In The Canadian Army, James R. Mckay, H. Christian Breede, Ali Dizboni, Pierre Jolicoeur

The US Army War College Quarterly: Parameters

This Canadian contribution to Parameters’ Strategic Lieutenant series shows how domestic context creates the conditions for professional military education reform to a greater extent than the global strategic context. The article assesses the junior officer education delivered by Canada’s military colleges and analyzes interviews with key stakeholders responsible for the formulation and implementation of reform at the military colleges.

In The Spotlight: Dealing With The Russians, Andrew Monaghan

The US Army War College Quarterly: Parameters

No abstract provided.

Interrupting Bias In Army Talent Management, Danielle Holt, Susan Davis

The US Army War College Quarterly: Parameters

To meet future threats, US Army talent management modernization must include the development of a more innovative and inclusive culture. Unconscious bias within assignment and evaluation processes is a potential threat and an opportunity for enhanced meritocracy. Assessments should move toward the identification of desired knowledge, skills, and behaviors and the evaluation of potential using relational analytics, and talent management must foster the selection of leaders who demonstrate competencies of confident humility and mental agility to generate organizational psychological safety. Only by leveraging the complete scope of diversity through an inclusive culture will the Army prevail in the cognitive dimension.

Rethinking Female Urinary Devices For The Us Army, Andrea M. Peters, Michael A. Washington, Lolita Burrell, James Ness

The US Army War College Quarterly: Parameters

As women assume more combat roles in the US military and continue to operate in austere environments with varied mission sets, the Department of Defense must rethink its approach to equipment and uniform development to accommodate female anatomical differences. This article analyzes the results of a study conducted during the Sandhurst Military Skills Competition at the United States Military Academy to determine the effectiveness of commercial off-the-shelf products the Army has adopted to aid female urination—products used by competition participants that may not be the best or healthiest options for women.

Srad Director's Corner: The People’S Republic Of China’S Challenge To Us Security, George Shatzer

The US Army War College Quarterly: Parameters

This “SRAD Director’s Corner” is the inaugural contribution by Colonel George Shatzer, director of the Strategy Research and Analysis Division of the Strategic Studies Institute at the US Army War College. In each contribution, Shatzer will discuss books of relevance to US Joint planners and strategists, as well as those of our allies and strategic partners. He will apply his experience and education as a US Army senior strategist to extract insights useful to anyone contemplating how to confront the challenges of today’s strategic environment.

Water Wars Of The Future: Myth Or Reality?, Gerald J. Krieger

The US Army War College Quarterly: Parameters

This article provides background and context for regional trends and historic agreements focused on the Nile River Basin, offers a comprehensive assessment of security challenges, and presents focus areas for future investment and cooperation. The policy recommendations will serve American interests better and improve agricultural practices in the region. Without a marked alteration of existing aid from Western countries, the water scarcity situation will continue without significantly producing the required infrastructure improvements.

A Failure To Innovate: The Second Nagorno-Karabakh War, Zhirayr Amirkhanyan

The US Army War College Quarterly: Parameters

The root cause for the defeat of the Armenian forces in the second Nagorno-Karabakh War was flawed military doctrine inherited from the Soviet Union. This article analyzes the major problems faced by Armenia, uncovers the main reasons for unsuccessful innovation, tests empirical findings against some of the most authoritative theories of the field, and outlines current research on the largest state-onstate warfighting of recent years, while substantiating the analysis with established scholarship in the field of military innovation.

Why Aim Law Toward Human Survival, John William Draper

Librarian Scholarship at Penn Law

Our legal system is contributing to humanity’s demise by failing to take account of our species’ situation. For example, in some cases law works against life and supports interests such as liberty or profit maximization.

If we do not act, science tells us that humanity bears a significant (and growing) risk of catastrophic failure. The significant risk inherent in the status quo is unacceptable and requires a response. We must act. It is getting hotter. When we decide to act, we need to make the right choice.

There is no better choice. You and all your relatives have rights. The …

Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman

All Faculty Scholarship

For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees …

2022 Mlk Keynote Address: Eddie Glaude Jr. Presentation, Center For Social Equity & Inclusion, Eddie Glaude Jr.

Martin Luther King, Jr. Series

One of the nation’s most prominent scholars, Eddie Glaude, Jr. is an author, political commentator, public intellectual and passionate educator who examines the complex dynamics of the American experience. His writings, including his most recent—the New York Times bestseller Begin Again: James Baldwin’s America and Its Urgent Lessons for our Own—take a wide look at Black communities, the difficulties of race in the United States and the challenges we face as a democracy.

In his writing and speaking, Glaude is an American critic in the tradition of James Baldwin and Ralph Waldo Emerson, confronting history and bringing our nation’s …

2022 Mlk Keynote Address: Eddie Glaude Jr. Pre-Event Presentation, Center For Social Equity & Inclusion, Eddie Glaude Jr.

Martin Luther King, Jr. Series

One of the nation’s most prominent scholars, Eddie Glaude, Jr. is an author, political commentator, public intellectual and passionate educator who examines the complex dynamics of the American experience. His writings, including his most recent—the New York Times bestseller Begin Again: James Baldwin’s America and Its Urgent Lessons for our Own—take a wide look at Black communities, the difficulties of race in the United States and the challenges we face as a democracy.

In his writing and speaking, Glaude is an American critic in the tradition of James Baldwin and Ralph Waldo Emerson, confronting history and bringing our nation’s …

How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman

All Faculty Scholarship

The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …

Animal Sentience Science And Policy, Andrew Crump

Animal Sentience

Animal sentience research cannot be divorced from its ethical and political implications. For example, discovering which animals are sentient is vital for deciding which require welfare protection. Two legal case-studies illustrate the importance of scientists in such debates: the UK Animal Welfare (Sentience) Act 2022 had input from animal sentience researchers, whereas the US Animal Welfare Act 1966 did not. The former defined sentient animals much more plausibly than the latter. I accordingly argue that sentience researchers should inform policy, and that this is achievable without sacrificing scientific integrity.

Legal Recognition Of Animal Sentience: The Case For Cautious Optimism, Jane Kotzmann

Animal Sentience

Rowan et al.’s target article provides a valuable indication of the work that was required to reach the point where animals are recognised as sentient in various laws. To ensure this work was not in vain, the language of sentience needs to be used as a moral currency to demand further cultural change involving greater human respect for animals.

Criminal Law’S Core Principles, Paul H. Robinson

All Faculty Scholarship

Modern criminal law scholars and policymakers assume they are free to construct criminal law rules by focusing exclusively on the criminal justice theory of the day. But this “blank slate” conception of criminal lawmaking is dangerously misguided. In fact, lawmakers are writing on a slate on which core principles are already indelibly written and realistically they are free only to add detail in the implementation of those principles and to add additional provisions not inconsistent with them. Attempts to do otherwise are destined to produce tragic results from both utilitarian and retributivist views.

Many writers dispute that such core principles …

The Question Is Not “Can Humans Talk?” Or “Can They Suffer?” But “Can They Reason?”, Clive Phillips

Animal Sentience

In their target article, Rowan et al (2022) make a welcome attempt to chart the development of Western progress over the past two hundred years toward formally recognizing that animals feel. They outline the heroic efforts of Compassion in World Farming to gain for animals the status of sentient beings rather than merely human property. A broader view exists, from human prehistory to the present day, in which animals have been (and still are) understood to be sentient by indigenous peoples as well as by some Eastern religions. Growing recognition in the West that animals feel represents a new age …

Overcoming Inertia To Deliver Sentience Policy Commensurate With Sentience Science, Claire Bass

Animal Sentience

Rowan et al’s target article makes clear that meaningful change in policy and practice to protect animals has failed to progress in lockstep with scientific understanding of their sentience and needs. The underlying causes for inertia in political and practical progress for animals in the UK context are multi-faceted and complex, including economic forces; lack of cross-departmental accountability for animal welfare; and challenges where it suits conservation scientists to dismiss or downgrade the impacts of management decisions on individual animals. All of these influences and more must be understood and addressed if we are to deliver meaningful and timely protections …

Facultas Marginem: Assessing Disability Data And Public Aau Universities’ Affirmative Action Plans For Systemic Barriers Facing Faculty With Disabilities, Joseph Carlton Barry

Theses and Dissertations--Education Sciences

This dissertation contributes to education equity scholarship produced by academics seeking to develop understandings of disability, Persons with Disabilities (PWD), and how both are situated amongst faculty in institutions of higher education. As such, this dissertation centers on a study of public US universities belonging to the Association of American Universities (AAU). This study looks for institutional level associations between respective rates by which college and university faculty with disabilities (FWD) are employed, certain aspects of disability policy drawn from each institution’s 2020 Affirmative Action Plans (AAP), and various other instances of empirical disability data (EDD).

While this study contributes …

Righting Health Policy: Bioethics, Political Philosophy, And The Normative Justification Of Health Law And Policy, D. Robert Macdougall

Publications and Research

In Righting Health Policy, D. Robert MacDougall argues that bioethics needs but does not have adequate tools for justifying law and policy. Bioethics’ tools are mostly theories about what we owe each other. But justifying laws and policies requires more; at a minimum, it requires tools for explaining the legitimacy of actions intended to control or influence others. It consequently requires political, rather than moral, philosophy. After showing how bioethicists have consistently failed to use tools suitable for achieving their political aims, MacDougall develops an interpretation of Kant’s political philosophy. On this account the legitimacy of health laws does …

A Rawlsian Critique Of The Political Speech Constraints On Charities, Johnny Rex Buckles

FIU Law Review

This Essay analyzes whether the Rawlsian concept of public reason explains the substantive content of the lobbying limitation and the campaigning ban, and, more broadly, the implications of public reason for tax-exempt charities and their political speech. The question is notwhether public reasons—distinct premises and conclusions forming an argument—justify these provisions of law, but whether the political activity limitations of IRC § 501(c)(3) are properly understood to manifest or implement the ideal of public reason itself. Additionally, if these statutory constraints do not embody the ideal of public reason, do they offend it?