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Full-Text Articles in Law

Beware The "Terror Gap": Closing The Loophole Between The U.S. Terrorist Watchlist System And The Right To Bear Arms, Elizabeth M. Sullivan Nov 2017

Beware The "Terror Gap": Closing The Loophole Between The U.S. Terrorist Watchlist System And The Right To Bear Arms, Elizabeth M. Sullivan

Cornell Law Review

No abstract provided.


Data Institutionalism: A Reply To Andrew Woods, Zachary D. Clopton Jul 2016

Data Institutionalism: A Reply To Andrew Woods, Zachary D. Clopton

Cornell Law Faculty Publications

In "Against Data Exceptionalism," Andrew K. Woods explores “one of the greatest societal and technological shifts in recent years,” which manifests in the “same old” questions about government power. The global cloud is an important feature of modern technological life that has significant consequences for individual privacy, law enforcement, and governance. Yet, as Woods suggests, the legal challenges presented by the cloud have analogies in age-old puzzles of public and private international law.

Identifying these connections is a conceptual advance, and this contribution should not be understated. But, to my mind, the most telling statement in Woods’s excellent article comes …


Territoriality, Technology, And National Security, Zachary D. Clopton Jan 2016

Territoriality, Technology, And National Security, Zachary D. Clopton

Cornell Law Faculty Publications

Across various contexts, parties and courts have pressed for territorial rules in cases implicating technology and national security. This Essay suggests that presumptively territorial approaches to these questions are misguided. Territorial rules do not track the division of authority or capacity among the branches, nor are they effective proxies for the important interests of regulators or regulatees. On issues of technology and national security, territorial rules seem particularly ill suited: territorial rules aspire to certainty, but technology makes it harder to define “territoriality” in a consistent and predictable way; technology weakens territoriality as a proxy for policy goals because data …


Constitutionalism And The Foundations Of The Security State, Aziz Rana Apr 2015

Constitutionalism And The Foundations Of The Security State, Aziz Rana

Cornell Law Faculty Publications

Scholars often argue that the culture of American constitutionalism provides an important constraint on aggressive national security practices. This Article challenges the conventional account by highlighting instead how modern constitutional reverence emerged in tandem with the national security state, critically functioning to reinforce and legitimize government power rather than primarily to place limits on it. This unacknowledged security origin of today’s constitutional climate speaks to a profound ambiguity in the type of public culture ultimately promoted by the Constitution. Scholars are clearly right to note that constitutional loyalty has created political space for arguments more respectful of civil rights and …


Who Decides On Security?, Aziz Rana Jul 2012

Who Decides On Security?, Aziz Rana

Cornell Law Faculty Publications

Despite over six decades of reform initiatives, the overwhelming drift of security arrangements in the United States has been toward greater—not less— executive centralization and discretion. This Article explores why efforts to curb presidential prerogative have failed so consistently. It argues that while constitutional scholars have overwhelmingly focused their attention on procedural solutions, the underlying reason for the growth of emergency powers is ultimately political rather than purely legal. In particular, scholars have ignored how the basic meaning of "security" has itself shifted dramatically since World War II and the beginning of the Cold War in line with changing ideas …


Responses To The Ten Questions, Aziz Rana Jan 2011

Responses To The Ten Questions, Aziz Rana

Cornell Law Faculty Publications

This essay responds to a question posed by the William Mitchell Law Review for its annual national security issue: Has Obama Improved Bush's National Security Policies? I maintain that Obama Administration practices have been marked by striking continuities with those of the previous Administration. I then attempt to explain these continuities by discussing how American policymakers across the political spectrum share basic assumptions about the concept of national security and the need for an aggressive and interventionist foreign policy.


Executive Branch Lawyers In A Time Of Terror: The 2008 F.W. Wickwire Memorial Lecture, W. Bradley Wendel Oct 2008

Executive Branch Lawyers In A Time Of Terror: The 2008 F.W. Wickwire Memorial Lecture, W. Bradley Wendel

Cornell Law Faculty Publications

This article discusses the ethical responsibilities of the lawyers who advise executive branch officials on the lawfulness of actions taken in the name of national security. To even talk about this subject assumes that there is some distinction between a government that does all within its power to protect its citizens, and one that does all within its lawful power. If there are good normative reasons to care about maintaining this distinction, then we have the key to understanding the ethical responsibilities of government lawyers. The Bush administration took the position that the role of lawyers is to get out …


The Bounds Of Necessity, Jens David Ohlin May 2008

The Bounds Of Necessity, Jens David Ohlin

Cornell Law Faculty Publications

The current controversy surrounding the legality of torture can only be understood through an analysis of the distinction between justified necessity and excused necessity. Although there may be strong prudential reasons for international criminal courts to declare torture unlawful under any circumstance, this would not necessarily prevent a court from recognizing that an excuse may apply. However, the hallmark of the necessity excuse should not be understood, as it is in German law, as an exception that only applies when a defendant breaks the law to save someone close to him. Rather, the basic principle of the excuse ought to …


Aedpa: The "Hype" And The "Bite", John H. Blume Jan 2006

Aedpa: The "Hype" And The "Bite", John H. Blume

Cornell Law Faculty Publications

On April 24, 1996, President Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Thus, the AEDPA era began. While Clinton's presidential signing statement paid lip service to meaningful federal court review of state court convictions, AEDPA's supporters knew better. The fix was in, and happy habeas days were here again. But, as the old saying goes, "What if you gave a revolution and nobody came?" As I will argue, that is in many (but not all) respects what happened. In this Article, I have argued that AEDPA was, in many respects, more "hype" than "bite." For …