Law Commons^™

“Ua Koe Ke Kuleana O Na Kanaka” (Reserving The Rights Of Native Tenants): Integrating Kuleana Rights And Land Trust Priorities In Hawai`I, Jocelyn B. Garovoy

ExpressO

No abstract provided.

Income, Work And Freedom, Philip L. Harvey

ExpressO

The ability of public policies to secure the economic and social rights recognized in the Universal Declaration of Human Rights is proposed as a trumping supplement to the utility-maximization criterion of neo-classical welfare economics. Two progressive proposals for ending poverty and promoting personal development and freedom are then compared using this assessment criterion. The first proposal is that society guarantee everyone an unconditional basic income (BI) without imposing work requirements in exchange for the guarantee. The second proposal is that society use direct job creation to provide employment assurance (EA) for anyone who is unable to find decent work in …

Paradoxes Of Health And Equality: When A Boy Becomes A Girl, Noa Ben-Asher

ExpressO

This paper is about an unusual child custody dispute between the parents of a six-year-old child and the child welfare services of Franklin County, Ohio. The conflict emerged when the child’s parents complied with their male child’s professed desire to be treated as a girl by attempting to enroll the child in the first grade as a girl. The paper treats this case as an exemplary test-case of contemporary co-dependence between scientific-medical discourse and liberal-rights discourse. The paper analyzes the positions of the two sides of the custody dispute according to the classic modern distinction between mind and body. On …

A Case Study In The Banning Of Political Parties: The Pan-Arab Movement El Ard And The Israeli Supreme Court, Ron Harris

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Attempts to outlaw political groups that are alleged to approve the use of violence, to limit the expression of views that challenge the core values of democratic nation-states, and to ban radical, separatist, or religious political parties are more widespread in recent years than at any other time since 1945. They gave rise in the last few years to litigation in Constitutional Courts and Supreme Courts in Spain, Germany, Turkey, France, Israel, and Latvia, as well as in the European courts.

The present article tells the story of the encounter in the years 1959-1965 between the Pan-Arab national movement El …

The Rise Of Managerial Judging In International Criminal Law, Maximo Langer

ExpressO

Abstract This article puts the procedure of the International Criminal Tribunal for the former Yugoslavia (ICTY) in a completely new and previously unexplored light. Rejecting the predominant view of ICTY procedure as a hybrid between the adversarial system of the U.S. and the inquisitorial system of civil law jurisdictions, this article shows that ICTY procedure is best described through a third procedural model that does not fit in either of the two traditional systems. This third procedural model is close to the managerial judging system that has been adopted in U.S. civil procedure. The article then explores some of the …

International Legal Compliance: Surveying The Discipline, William C. Bradford

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No abstract provided.

Evaluating Work: Enforcing Occupational Safety And Health Standards In The United States, Canada And Sweden, Daniel B. Klaff

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The United States’ occupational safety and health enforcement system is breaking down. Klaff argues that much of this breakdown has to do with a fundamental lack of worker participation in the United States’ safety and health system. Klaff makes his case by comparing and contrasting the history and enforcement schemes of the United States, Canada, and Sweden. After arguing for economic rights as human rights, Klaff concludes by offering a set of recommendations for the United States’ occupational safety and health system based upon his value-centered analysis.

Democratic Responses To Terrorism: A Comparative Study Of The United States, Israel And India, Arunabha Bhoumik

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This paper compares counter-terrorist policies in the United States, Israel and India through the lens of three models of counter-terrorist policies: the war model, the intelligence model, and the criminal justice model. After describing each model, the paper introduces different variables that are relevant in understanding a country’s counter-terrorist policies. Using these variables, the paper attempts to analyze and classify each country’s counter-terrorist policies.

“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin

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No abstract provided.

The Right To Family Life And Civil Marriage Under International Law And Its Implementation In The State Of Israel, Yuval Merin

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The article deals with the protection of the right to family life under international law and its implementation in the State of Israel on three levels: protection of the family cell as a single unit; protection of the individuals comprising the family unit; and protection of the family in special circumstances (e.g., immigration rights).

The article begins by analyzing the characteristics of the right to family life and examining various definitions of the “family” under international and Israeli law. It also examines what it is that the right to family life encompasses and how it should be classified within the …

Rights At United States Borders, Jon Adams

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This article explores protections available under the Fourth and Fifth Amendments to the United States Constitution. Contrary to opinions in popular culture, and perhaps even among Customs officials, powers to search, seize, and interrogate at United States border crossings are not unlimited. In the current world climate of security and threat, a discussion regarding the level of intrusiveness available to a zealous Customs agent appears particularly relevant. The article addresses the requirements for search, seizure, and interrogation, as well as the lawful conditions and limits upon each activity.

International Child Abductions: The Challenges Facing America , Charles F. Hall

ExpressO

International child abductors often escape domestic law enforcement and disappear without consequence or resolution. International child abductions occur too frequently; in the United States alone, the number of children abducted abroad every year has risen to over 1,000. Currently, 11,000 American children live abroad with their abductors. These abductions occur despite international treaties and the Congressional resolutions that have significantly stiffened the penalties for those caught. Effectively combating international child abductions requires drafting resolutions that are acceptable across the diverse societies and cultures of the international community. Without such resolutions to fill the gaps of current treaties this problem will …

Reverse Moderate Relativism Applied: Third Generation International Human Rights From An Islamic Perspective, Jason G. Morgan-Foster

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This article develops my reverse moderate relativist theory on the universality of human rights, which I proposed in an article forthcoming in the ILSA J. Intl. & Comp. L. In this prior work, I argued that the debate over the universality of international human rights norms is too constrained, and that the three most popular theories in the universality debate – universalism, strict cultural relativism, and moderate cultural relativism – are each conceptually flawed. Universalism is untenable, because it eliminates the tensions between various cultures simply by ignoring them. Strict cultural relativism is unsatisfactory, because it discredits the whole field …

Assisted Reproduction In Germany And The United States: An Essay In Comparative Law And Bioethics , John A. Robertson

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No abstract provided.

Lysistrata, Women And War: International Law's Treatment Of Women In Conflict And Post-Conflict Situations, Emma L. Lindsay

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Aristophanes’ Lysistrata is powerful anti-war play often revived during times of international conflict. This paper uses Lysistrata to highlight and critique binary oppositions that underpin the treatment of women in conflict and post-conflict situations in the play and in international law. While many of the experiences of women and girls in war are similar to those of men and boys, there are important differences. Existing inequalities between women and men, and patterns of discrimination against women and girls, tend to be exacerbated in wartime. There are circumstances in which women suffer harms of a different kind and to a different …

Sex Slavery In The United States And Its Law To Stop It Here And Abroad, Susan Tiefenbrun

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No abstract provided.

A Positive Theory Of Universal Jurisdiction, Eugene Kontorovich

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Academic discussions of universal jurisdiction (“UJ”) have been almost entirely normative, focusing on what UJ “should” be in an ideal world. This Article breaks with the normative approach and analyzes UJ from a positive perspective, drawing on historical evidence and rational choice models to understand what UJ has in fact been and what it can be.

Piracy was for centuries the only UJ offense. This Article begins by isolating the characteristics of piracy that made it uniquely suitable for UJ. While these characteristics show why UJ over piracy would cause fewer problems than UJ over other crimes, they still fail …

Gay And Lesbian Rights To Procreate And Access To Assisted Reproductive Technology, John A. Robertson

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No abstract provided.

The Needle And The Damage Done: How Hoffman Plastics Promotes Sweatshops And Illegal Immigration And What To Do About It , Jennifer S. Berman

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This paper examines the intersection of immigration and labor law as developed in federal law, culminating in the recent Supreme Court case, Hoffman Plastics. Arguing that Hoffman was wrongly decided, the paper further demonstrates that stronger penalties are necessary under the NLRA to deter employer wrongdoing, protect workers’ rights, and slow the proliferation of sweatshops.

Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf

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No abstract provided.

Involuntary Particularism: What The Noahide Laws Tell Us About Citizenship And Alienage, Gidon G. Rothstein

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This article argues that the Jewish picture of the Noahide laws, laws thought to apply to all non-Jews but particularly to those who would reside in a Jewish commonwealth, can shed light on how to balance a strong sense of citizenship with reasonable policies towards Lawful Permanent Residents. The article enunciates models for how to adapt the provisions of one legal system to another, shows that the Noahide system demanded that non-Jews accept fundamental aspects of a Jewish worldview in order to live among them, and then applies those lessons to argue for a reinvigorated view of American citizenship and …

Beyond Reparations: An American Indian Theory Of Justice, William C. Bradford

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The number of states, corporations, and religious groups formally disowning past records of egregious human injustice is mushrooming. Although the Age of Apology is a global phenomenon, the question of reparations—a tort-based mode of redress whereby a wrongdoing group accepts legal responsibility and compensates victims for the damage it inflicted upon them—likely consumes more energy, emotion, and resources in the U.S. than in any other jurisdiction. Since the final year of the Cold War, the U.S. and its political subdivisions have apologized or paid compensation to Japanese-American internees, native Hawaiians, civilians killed in the Korean War, and African American victims …

Beyond Rights: Legal Process And Ethnic Conflicts, Elena A. Baylis

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Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. The realities of ethnic conflict are daunting: ethnic disputes tend to be both persistent and complex, and efforts to use democracy or ethnic-blind policies to deal with those conflicts tend to fail. While multi-ethnic states have struggled to devise political solutions for ethnic conflict, they have largely ignored the role that legal processes might play in resolving ethnic discord. But at certain crucial moments in the development of ethnic conflicts, legal processes such as mediation, adjudication, and constitutional interpretation might effectively address these disputes.

This article explores …

Invasion Of The Clones: Animal Cloning And The Potential Implications On The Future Of Human Cloning And Cloning Legislation In The United States, The United Kingdom, And Internationally, Adrienne N. Calhoun

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Cloning is an area of science that changes daily; with advances being made constantly. This technology has caused great controversy in the United States and across the world. The issue has raised religious, ethical, technical and legal concerns. This paper is broken into four parts in order to best address the complex area of cloning technology. Part one will be a review of the history of the science of cloning and the history of animal cloning. Part two will be a discussion of the risks and benefits of cloning. Part three will address ethical and religious concerns surrounding human cloning. …