Law Commons^™

Third Party Access And Refusal To Deal In European Energy Networks: How Sector Regulation And Competition Law Meet Each Other, Michael Diathesopoulos

Michael Diathesopoulos

In this paper, we will analyse the issue of concurrence between competition and sector rules and the relation between parallel concepts within the two different legal frameworks. We will firstly examine Third Party Access in relation to essential facilities doctrine and refusal of access and we will identify the common points and objectives of these concepts and the extent to which they provide a context to each other’s implementation. Second, we will focus on how Commission uses sector regulation and objectives as a context within the process of implementation of competition law in the energy sector and third, we will …

Witt V. Department Of The Air Force Subjects "Don't Ask, Don't Tell" To Intermediate Scrutiny, Jessica L. Beeler

Golden Gate University Law Review

"Don't Ask, Don't Tell" ("DADT") refers to the statutory U.S. policy of excluding openly homosexual individuals from serving in the military. It prohibits members of the armed forces from engaging in homosexual acts, stating that they are gay or bisexual, or openly marrying a person of the same sex. Although the constitutionality of DADT has been upheld several times in federal Court, these cases preceded the United States Supreme Court's holding in Lawrence v. Texas. In Lawrence, the Supreme Court struck down a Texas antisodomy statute as unconstitutional and declared that the private homosexual conduct targeted by the law was …

Case For Overseas Article Iii Courts: The Blackwater Effect And Criminal Accountability In The Age Of Privatization, The, Alan F. Williams

University of Michigan Journal of Law Reform

A series of high-profile cases involving the alleged murders of Iraqi civilians by U.S. contractors operating overseas has highlighted the longstanding problem of how best to address crimes committed overseas by civilian employees, dependents, or contractors of the U.S. government. Among the most notorious of these incidents is the alleged killing of seventeen Iraqi civilians in Nisour Square in Baghdad on September 16, 2007 by employees of Blackwater Worldwide, a private corporation specializing in military operations that has subsequently renamed itself "Xe."2News reports of this incident prompted embarrassment and outrage as many Americans learned that U.S. civilian contractors like the …

Free Speech And The Military Recruiter: Reaffirming The Marketplace Of Ideas, Charles G. Kels

Nevada Law Journal

No abstract provided.

Filling The Criminal Liability Gap For Private Military Contractors Abroad: U.S. V. Slough And The Civilian Extraterritorial Jurisdiction Act Of 2010, Missye Brickell

Legislation and Policy Brief

To ensure that all contractors who commit crimes in Iraq and Afghanistan can be prosecuted effectively in the United States, Congress must pass legislation to update Federal criminal law and fill the gaps that may leave certain types of contractors free from any criminal liability. The Civilian Extraterritorial Jurisdiction Act of 2010 (CEJA) attempts to do just that, and while it may deter some PMCs from participating in the U.S. military and security contracting market, the benefits of having a fully accountable U.S. legal system outweigh the drawbacks for individual contracting companies.

“Bring[Ing] Our Enemies To Justice”: Terrorism And The Court, Anna Elazan

Legislation and Policy Brief

This article focuses on the venue of Mohammad’s trial and is broken into three sections. The first section reviews the historical use of military tribunals. This section begins by looking at the basis for Presidential authority to authorize the use of military commissions. This section then outlines the first use of military commissions since World War II. President George W. Bush’s authorization parallels the provisions in President Franklin Roosevelt’s authorization of the use of commissions in the 1940s. However, following authorization, the military commissions were subject to judicial challenges and significant revision by Congress. Finally, this section tracks recent developments …

“For Any Reason”: Paper Promises To Protect Service Members, Tami Martin

Legislation and Policy Brief

In short, "Don't Ask, Don't Tell" (DADT) is the law that prohibits lesbian, gay, and bisexual (LGB) individuals from serving openly in the military. Despite the fact that the Obama Administration has yet to fulfill the campaign promise of ending DADT, many believe the question is more "when" than "if" it will be repealed. Much attention has focused on ending the policy, but it is also important to consider what might happen after repeal. This article briefly examines the history of DADT, major policies meant to protect service members from harassment they experience because of their actual or perceived sexual …

Dronenburg V. Zech: Fundamental Rights And The Military, Robert A. Dalby

Golden Gate University Law Review

In Dronenburg v. Zech, the United States Court of Appeals, District of Columbia Circuit, upheld the discharge of a Navy Petty Officer on the grounds that he had engaged in homosexual relations while a member of the service. The initial basis for the discharge was Instruction 1900.9C, promulgated by the Secretary of the Navy, which provided for the "separation" from the naval service of any member who "solicits, attempts, or engages in homosexual acts." In reaching its decision, the court held that the Navy had not violated Dronenburg's constitutional rights to privacy and equal protection of the laws. The court …

Rostker V. Goldberg: The Uneven Development Of The Equal Protection Doctrine In Military Affairs, Sara Macdwyer

Golden Gate University Law Review

This Note examines the Court's refusal in Goldberg to apply heightened scrutiny to a discriminatory statute. The Court never satisfactorily answered the constitutional challenge: Whether, under the equal protection component of the fifth amendment's due process clause, women as a class may be excluded from military registration. Further, this Note argues that the Court improperly and unnecessarily deferred to congressional findings in ruling that Congress acted within its authority by registering only men.

Adding Force Behind Military Sexual Assault Reform: The Role Of Prosecutorial Discretion In Ending Intra-Military Sexual Assault, Mitsie Smith

Buffalo Journal of Gender, Law & Social Policy

No abstract provided.

Just War In International Law: An Argument For A Deontological Approach To Humanitarian Law, Ryan Dreveskracht

Buffalo Human Rights Law Review

No abstract provided.

A Conceptual Framework To Support A Multi-Level Planning Capability, Jitu Patel, Michael C. Dorneich, David Mott, Ali Bahrami, Cheryl Giammanco

Michael C. Dorneich

Over the years, military planning has attracted a lot of attention by researchers with the aim of providing automated planning support tools. There have been some successes (e.g., DART system which was used for movement during Gulf war) however, to-date, planning still remains a very human activity with little or no automated support tools. Why? A possible reason for this predicament is that researchers have not fully conceptualized the problem. For instance, a common approach has been to consider planning as a single process or a homogenous set of problems to be solved. Unfortunately, military planning is not a single …

Simplify, Simplify, Simplify-An Analysis Of Two Decades Of Judicial Review In The Veterans' Benefits Adjudication System, Rory E. Riley

West Virginia Law Review

Prior to the Veterans' Judicial Review Act, the Department of Veterans Affairs existed in "splendid isolation," meaning that the Department was insu- lated from judicial review by statute. After the due process revolution of the 1960s and pressure from various veterans' organizations after the Vietnam War, Congress passed the Veterans' Judicial Review Act in 1988. The Act created the U.S. Court of Appeals for Veterans Claims, an Article I court with exclusive jurisdiction over decisions by the Board of Veterans' Appeals. This Article argues that twenty years after the Veterans' Judicial Review Act was imple- mented, the system has become …

Physical-Strength Rationales For De Jure Exclusion Of Women From Military Combat Positions, Maia Goodell

Seattle University Law Review

Women have been serving in the military in steadily increasing numbers for decades. Nevertheless, the military remains one of the few areas in which the U.S. government decides what roles are open to women based on de jure exclusions. This Article examines the law governing de jure classification, noting that a mere normative belief about women’s proper place in society is an insufficient basis to justify a sex-based exclusion. It then probes the most common rationale advanced in support of the continued de jure exclusion of women: physical strength. The Article examines four problems with the physical strength rationale: (1) …

Fighting The War On Terrorism With The Legal System: A Defense Of Military Commissions, Jessica Erin Tannenbaum

Annual Survey of International & Comparative Law

In early 2002, the United States began transporting prisoners captured in Afghanistan to the naval base at Guantanamo Bay. Almost immediately, an uproar broke out over the detention of prisoners there. The United States was, and continues to be, almost universally criticized by the international community for its handling of the prisoners at Guantanamo Bay. The most common criticisms are of the detention of accused terrorists without charges and the indefinite detention of non-citizens certified as dangers to national security as authorized by the USA PATRIOT Act. Although all of the issues regarding the detention of prisoners in the War …

Trojan Horse Bill Hurts Veterans It Purports To Help, Thomas Reed

Thomas J Reed

No abstract provided.

From Energy Sector Inquiry To Recent Antitrust Decisions In European Energy Markets: Competition Law As A Means To Implement Energy Sector Regulation In Eu, Michael Diathesopoulos

Michael Diathesopoulos

This paper presents the conceptual path followed by European Union, European Commission and European Competition Network, after the Energy Sector Inquiry (2007) towards the realisation of the objective of an Energy Internal Market, fully functional and open to competition. Firstly, we examine the findings of Sector Inquiry and then we describe how the Third Energy Package - that followed - tried to address the issues highlighted by the Inquiry and how Third Energy Package introduces a promising but complex system, in order to develop sector rules. Following the above, we proceed to a brief but close examination of 10 recent …

Limites A La Vigencia Del Principio Contradictorio En Los Juicios De Familia / Limits To The Adversarial Ideal In The Family Courts, Claudio Fuentes Maureira

Claudio Fuentes Maureira

The relevance of the adversarial ideal in the design of judicial proceedings is due to two major ideas: the right to a proper defence for the parties and the important role that the parties perform during the questioning and the control of the other party’s case. Once the relevance of the adversarial ideal is acknowledged, one could ask if this ideal is properly welcomed under the family procedure stated in the law. I propose that in order to answer this question properly, it is pertinent to use some sort of instrument to measure the amount of the adversarialness that the …

Informe De Funcionamiento De Los Tribunales De Familia De Santiago / Report On The Family Courts Of Santiago City, Claudio Fuentes Maureira, Felipe Marín Verdugo, Erick Rios Leiva

Claudio Fuentes Maureira

In October 2005, the Chilean government launched the new family courts. The new tribunals were the second major judicial reform that Chile’s executive power supported and it was a huge failure. The system collapsed after a couple of months, and in the beginning of the 2006, the executive branch called for a group of academics and experts to elaborate some kind of response.

After years of problems the authorities arrived at identifying the main problems, and because of that in September 2008 a new bill was enacted, containing modifications to the family law system. Also, the Supreme Court of Chile …

Mōri V. Japan: The Nagoya High Court Recognizes The Right To Live In Peace, Hudson Hamilton

Washington International Law Journal

The following is a translation of the Nagoya High Court’s decision in Mōri v. Japan, a case challenging the constitutionality of Japan’s deployment of its Self-Defense Forces (“SDF”) to the Middle East in connection with the United States-led occupation of Iraq. Beginning in December of 2003, Japan deployed ground and air forces of the SDF to the Middle East, including three C-130H “Hercules” transport aircraft which were used to airlift coalition forces and supplies between Kuwait and Baghdad. In response, more than 5,700 citizens, represented by over 800 attorneys, filed lawsuits in eleven district courts across the country in …

Seeking Civilian Control: Rule Of Law, Democracy, And Civil-Military Relations In Zimbabwe, Jeremiah I. Williamson

Indiana Journal of Global Legal Studies

Rule of law and democratic reform projects often concern lofty questions of constitutional law. But in many countries desperate for reform, deeply entrenched social and political problems present preconditions to any discussion of constitutional reforms aimed at democracy and the rule of law. Zimbabwe is one such nation, which like many others faces the problem of military intervention into domestic politics. This Note examines structural and historical aspects of Zimbabwe's military problem and utilizes the theory of objective civilian control to demonstrate the plausibility of meaningful reforms. In so doing, this Note provides a demonstrative model for reforming civilmilitary relations …

Relational Contract Theory And Management Contracts: A Paradigm For The Application Of The Theory Of The Norms, Michael Diathesopoulos

Michael Diathesopoulos

This paper examines management contracts as a paradigm for the application of relational contracts theory and especially of the theory of contractual and relational norms. This theory, deriving from Macauley's implications, but structured and analysed by I.R. MacNeil gives us a framework for the explanation and understanding of contractual obligations and business relations' rules and practice. After presenting the key literature about the norms theory and especially defining the content of MacNeil's norms, we define management contracts as relations, characterised by a high relational element and we explain why, investigating all their features, which make them a suitable object for …

The Somali Piracy Problem: A Global Puzzle Necessitating A Global Solution, Milena Sterio

Law Faculty Articles and Essays

Over the past few years, piracy has exploded off the coast of Somalia. Somali pirates congregate on a "mother ship" and then divide into smaller groups that sail out on tiny skiffs. Using potent weapons such as AK-47s and hand-propelled grenades, Somali pirates attack civilian ships carrying cargo through the Gulf of Aden, a body of water between Yemen and Somalia. Once they have overtaken the victim vessel, the pirates typically hijack the vessel's cargo and kidnap the crewmembers. The cargo is often resold to willing buyers or held for ransom. The crew are kept hostage in Somalia until either …

Once More Unto The Breach: American War Power And A Second Legislative Attempt To Ensure Congressional Input, Jonathan T. Menitove

University of Michigan Journal of Law Reform

Once again embroiled in an unpopular overseas armed conflict, the United States faces difficult questions concerning the constitutional use of military force. Records from the Constitutional Convention suggest the Framers intended to lodge America's power to go to war with the Congress. While American presidents' early use of military force displays deference to the legislature, more recent military actions illustrate the executive's dominance in making war. Notwithstanding a few early court decisions in Congress 's favor, the judiciary has been unhelpful in restoring the constitutional Framers' vision for the administration of the war power Congress, therefore, has been forced to …

The Impact Of Civilian Aggravating Factors On The Military Death Penalty (1984-2005): Another Chapter In The Resistance Of The Armed Forces To The Civilianization Of Military Justice, Catherine M. Grosso, David C. Baldus, George Woodworth

University of Michigan Journal of Law Reform

In 1984, the U.S. Armed Forces amended its capital punishment system for death eligible murder to bring it into compliance with Furman v. Georgia. Those amendments were modeled after death penalty legislation prevailing in over thirty states. After a brief period between 1986 and 1990, the charging decisions of commanders and the conviction and sentencing decisions of court martial members (jurors) transformed the military death penalty system into a dual system that treats two classes of death eligible murder quite differently. Since 1990, a member of the armed forces accused of a killing a commissioned officer or murder with a …

The Untouchables: Private Military Contractors' Criminal Accountability Under The Ucmj, Katherin J. Chapman

Vanderbilt Law Review

September 16, 2007 has been called Baghdad's "Bloody Sunday."' On that scorching afternoon in Baghdad, Iraq, a team of Blackwater Worldwide private military contractors slew seventeen Iraqi civilianS and wounded twenty-seven others. A Blackwater spokesperson claimed that the civilian contractors reacted in response to an attack by enemy combatants and "heroically defended American lives." Despite such claims, U.S. soldiers who arrived at the scene within twenty-five minutes found no evidence of enemy activity and characterized the event as criminal. Despite such evidence and notwithstanding four potential sources of criminal law-international law, host-nation law, U.S. civilian law, and U.S. military law-these …

Terrorism And The Law: Show Trials And Why The Show Must Go On, Ibpp Editor

International Bulletin of Political Psychology

The author discusses the nature and meaning of terrorism trials during the United States’ war on terror.

Heterosexuality And Military Service, Zachary A. Kramer

NULR Online

The Kentucky National Guard’s 940th Military Police Company is based in Walton, Kentucky, just south of the Kentucky-Ohio border. In November 2004, in anticipation of its deployment to Iraq, the 940th was mobilized and stationed at Fort Dix, New Jersey. Love was in the air at Fort Dix that fall. While the 940th was preparing for its year of service in Iraq, five couples in the unit got married. Amanda and Todd McCormick were one of those couples. The McCormicks spent their first year of marriage in an active war zone, where their duties included training the Iraqi police force, …

Genocide Myopia: How Reframing Mass Atrocity Could Backfire, Sonia Cardenas

Human Rights & Human Welfare

The United States has long viewed genocide and mass atrocity as tragic, moral problems divorced from national interests. This may be changing under the Obama administration, with genocide and mass atrocity being reframed as problems to be solved pragmatically. Michael Abramowitz and Lawrence Woocher celebrate this “unprecedented breakthrough” in Foreign Policy, urging President Obama to follow up with specific measures: strategic military planning, interagency coordination, firm leadership, and concrete action on Darfur. Despite the promise of overcoming inaction and focusing on prevention, the new vision of genocide and mass atrocity Abramowitz and Woocher depict remains myopic. It is narrowly focused …

A Break From The Old Routine...., Todd Landman

Human Rights & Human Welfare

Abramowitz and Woocher highlight a potentially significant shift in policy discourse in international relations with respect to humanitarianism and the prevention of genocide. For many years, the United States has suffered from the twin problems of the human rights “double standard” and “Catch-22.” On the one hand, particular countries have been seen as vital by the United States for intervention on humanitarian grounds even though many believed other geostrategic interests are at stake (e.g. Kosovo in 1999) and others have not (e.g. Rwanda in 1994). On the other hand, US intervention on humanitarian grounds can be criticized as heavy-handed or …