Law Commons^™

Trade, Labor And International Governance: An Inquiry Into The Potential Effectiveness Of The New International Labor Law, Kevin Banks

Kevin Banks

Globalization has led states and civil society groups to seek new and more effective governance in international labor law. The United States and Canada have each concluded a path-breaking, controversial and still-evolving series of international trade-related labor agreements with their trading partners. These agreements, and ongoing critiques that continue to influence their development, have been shaped by a particular model of governance. That model seeks, in the interests of effectiveness, a set of sharply defined rules and court-like adjudication processes directly linked to economic sanctions. The potential effectiveness of this governance model has received no systematic evaluation. This article undertakes …

Disintermediating Avarice: A Legal Framework For Commercially Sustainable Microfinance, Steven L. Schwarcz

Steven L Schwarcz

Although microfinance has emerged as a key tool to alleviate poverty, the need for microfinance lending vastly exceeds the amount of funds that can be raised from charitable donors. Commercial bank lending is supplementing donor money, but microfinance loans made by banks are expensive and sometimes even exploitive. This article examines how innovative legal structures can enable microfinance loans to be funded directly from lower-cost, and virtually limitless, capital market sources by removing, or “disintermediating,” the need for a bank intermediary. In that context, the article identifies and attempts to resolve the resulting law-and-business issues of first impression and also …

A Protocol Against Trafficking In Persons: Is It Enough?, Michelle K. Forrest

Michelle K Forrest

Human Trafficking is a flourishing, criminal business that brings in more than thirty-two billion dollars yearly. This paper will discuss how the trafficking enterprise is difficult to eliminate because of its growing sophistication; unique flexibility and mobility; infiltration of lawful business; lucrative profit; and transnational operation. Potential infringement upon fundamental ideals of American society, such as privacy and liberty, weakens the fight against trafficking. As a result, trafficking has become a grave threat to human rights, the rule of law, and world peace.

This paper examines the current operation of trafficking in Cambodia, a country that supplies individuals for trafficking; …

Security Council Targeted Sanctions, Due Process And The 1267 Ombudsperson, Grant L. Willis

Grant L Willis

Since its inception the Security Council’s 1267 sanctions regime has come under fire from UN member states, listed individuals and entities, domestic and international courts and tribunals, human rights NGO’s and even other organs of the UN, that all claim the 1267 sanctions regime does not secure targeted individuals’ procedural due process rights, particularly the right to an effective remedy. For instance, in June 2009 a Canadian Federal Court Judge noted that the 1267 sanctions regime creates a situation for the listed individual that is “not unlike that of Josef K. in Kafka’s The Trial, who awakens one morning, and …

Fueling The Coal War--The Courts, The Feds, And The Epa: Who Is In A Better Position To Curb Coal-Related Pollution?, Corwyn Davis

Corwyn M Davis

ABSTRACT: With the United States’ continued and growing dependence on the use of coal for energy production, it is vital that the country examines ways to eliminate coal wastes more efficiently. The courts have varying opinions on who should ultimately bear responsibility for environmental torts connected with carbon pollution. With greenhouse gases and global warming stealing the environmental spotlight, the equally hazardous nature of coal combustion waste disposal has taken a back door to national policy reform. This paper introduces the problems associated with the disposal of this hazardous by-product. By analyzing the status quo of environmental regulation, it becomes …

Are Immigration Officials Overturning Plyler V. Doe?, Andres J. Ortiz

Andres J Ortiz

In 1982, the Supreme Court determined that a Texas statute, which forced children who had not been “legally admitted to the United States” to pay tuition to attend public schools unconstitutionally denied these children’s equal access to a public school education. Justice Brennan reasoned that because undocumented children are largely victims of circumstances beyond their control, it would be fundamentally unjust to deny these children equal access to a public school education. Further, that requiring undocumented children pay tuition would institute a barrier to education that would create a caste of illiterate people who would have little to no access …

On The Road To Recognition: Irish Travellers’ Quest For Ethnic Identity, Kamaria A. Kruckenberg

Kamaria A Kruckenberg

This paper explores and defends Irish Travellers’ efforts to push the Republic of Ireland to recognize them as an ethnic minority group under law. Irish Travellers are a small indigenous minority group who have lived primarily in Ireland for centuries. They rank at the bottom of Irish society in rates of poverty, unemployment, life expectancy, infant mortality, health, education levels, political representation and access, and living conditions. Much like the Roma, with whom they share a nomadic tradition, Irish Travellers are in the midst a movement to improve living conditions, fight widespread discrimination, and gain recognition as an ethnic minority …

Fighting Terrorism With One Hand Tied Behind The Back: Delineating The Normative Framework For Conducting The Struggle Against Terrorism Within A Democratic Paradigm, Emanuel Gross

Emanuel Gross

Israel, Aug 2010.

Dear Editor.

I would like to submit my note entitled: Fighting Terrorism with One Hand Tied Behind the Back: Delineating the Normative Framework for Conducting the Struggle against Terrorism within a Democratic Paradigm.

The new age and the globalization process exposed us to many new phenomenons; some are totally unfamiliar, and some are deviate variation of their old version. Terrorism, one of the most despised and rejected phenomenon, can meet both these descriptions. The purpose of this article is to suggest a preference for a democratic state to conduct itself in her struggle against terrorism. The article …

Bringing Peace To Darfur And Uganda: A Matter For Sovereign States Or The Icc?, Kate Allan Miss

Kate Allan Miss

Sudan and Uganda challenge our notions of peace and justice. Decades of conflict have left millions dead and displaced. Should the international community react? Should it prosecute? Or should it be deferent to domestic efforts to instill peace through negotiation and amnesty?

The International Criminal Court has assumed jurisdiction over the situations in Sudan and Uganda. The adoption of the ICC Statute at the Rome Conference in 1998 was a landmark event in international law. It expressed States’ intention to cede what was guardedly reserved as a sovereign power to prosecute in exchange for international justice and the prevention of …

The International Control Of Illegal Drugs And The U.N. Treaty Regime: Preventing Or Causing Human Rights Violations?, Daniel P.P. Heilmann Ph.D., Ll.M.

Daniel P.P. Heilmann Ph.D., LL.M.

The article attempts to answer the question whether the international drug control system (i.e. the three conventions on which the U.N. regime is based) is still serviceable in light of recent trends on the illegal drugs markets and whether the regime is up to the standards of modern human rights law. In a first step, the set-up of the international control system is outlined in order to give an overview of the situation (Part II). The second step is to summarize recent trends in global drug markets and to assess the impact of the control system on illicit manufacturing, trafficking …

Parallel Paths And Unintended Consequences: The Role Of Civil Society And The Icc In Rule Of Law Strengthening In Kenya, Christine S. Bjork Ms., Juanita Goebertus Estrada Ms.

Christine S Bjork

This paper examines the nexus between international criminal law and capacity building of domestic criminal justice systems. We question whether the ICC can contribute to either concrete domestic criminal justice reform or broader rule of law strengthening through its so-called preliminary examinations. Using Kenya as a case study, the paper discusses whether the ICC’s preliminary examination that took place between February 2008 and March 2010 (when the Pre-trial Chamber authorized the Prosecutor to open a formal investigation) has provided civil society fighting impunity for the post-election violence with a lever to trigger accountability. We assert that although Kenyan civil society …

At Least You (Should) Have Your Health: Implementing The Right To Health Through The Capability Approach, Michael R. Ulrich

Michael R. Ulrich

The United States spends more on health care than any other country in the world, yet health indicators illustrate it is far from the healthiest. This paper argues that improving the country’s health requires us to shift our focus from viewing health as an individual problem to examining potential solutions that are concerned with the public’s health. Once we make this shift, it becomes apparent that we must attend to discrepancies in social determinants of health, such as income, education, and job status, which affect the social gradient of health. These social determinants, which are at the crux of good …

The Invading Waters: Climate Change Dispossession, State Extinction, And International Law, Jared D. Hestetune

Jared D Hestetune

The level of the sea is inevitably rising. Even the conservative estimates of the IPCC portray a dire future for low-lying island nations such as the Republic of Maldives. The future of an inundated state bodes ill for Maldives's continued participation in international relations. This essay analyzes the possibility of the persistence of a state after its territory has been submerged and destroyed, and it comes to the unfortunate conclusion that a submerged state will de facto become extinct in international law. Thus, entire nationalities will disappear, which likely consequence is strong motivation to protect the human right of national …

The Evolution Of A Partisan: Observations Of A Criminal Defense Attorney At The Ictr, Beth S. Lyons

Beth S. Lyons

No abstract provided.

Using Cognitive Neuroscience As A Basis Upon Which To Accurately Predict The Future Dangerousness Of Violent Criminals And Thus Provide A Procedure For The Involuntary Commitment Of Such Individuals As A Part Of Or Following The Duration Of Their Sentence, Adam Lamparello

Adam Lamparello

No abstract provided.

A High Devolution Region (Hdr): A Community Based Political Solution For Darfur, Ibrahim A. Ibrahim Mr

Ibrahim A Ibrahim Mr

A High Devolution Region (HDR): A Community Based Political Solution for Darfur By/ Ibrahim Ali Ibrahim LLM Sudanese Lawyer & Congressional Researcher Abstract: The main causes of the war in Darfur as the paper highlights lie in both communal conflicts and the imbalance of power between the centre and marginalized regions. Therefore, the power sharing is a valid mechanism for redressing communal conflicts and the years of political marginalization of Darfur. The Darfur Peace Agreement (DPA) demonstrated that there were no powers to share in Darfur and that why it failed. The parties have not been able to achieve peace …

Samantar V. Yousuf: Development In The Laws Governing Civil Torture Claims In U.S. Courts., Solomon Shinerock

Solomon B. Shinerock

The Supreme Court’s recent opinion in Samantar v. Yousuf forecloses one possible avenue by which former foreign-government officials residing in the United States have sought to escape liability for human rights violations. Ruling simply that the Foreign Sovereign Immunities Act of 1976 does not provide immunity to individuals, the decision raises the question of what common law principles will govern the issue in the future. This article reviews the case and the common law doctrines that are likely to figure prominently in future civil suits alleging torture. Ultimately, the Samantar decision read together with existing principles of domestic and international …

Sugarcoating The Eighth Amendment, Christopher J. Declue

Christopher J DeClue

This Article demonstrates that Eighth Amendment gross disproportionality review is virtually identical to the Fourteenth Amendment rational-basis test. Under the Fourteenth Amendment rational-basis test, a law is upheld so long as it furthers a conceivable government purpose. Case law illustrates a similar standard is applied in the face of an Eighth Amendment challenge to the length of a prison sentence. Under gross disproportionality review, the length of a sentence is upheld so long as the sentence furthers a conceivable penological purpose. Moreover, under this standard, the length of a sentence violates the Eighth Amendment only on the rare occasion that …

Pirates Versus Mercenaries: Purely Private Transnational Violence At The Margins Of International Law, Ansel J. Halliburton

Ansel J. Halliburton

Because of the recent surge in piracy emanating from the failed state of Somalia, the world’s navies have focused unprecedented resources and attention on the Gulf of Aden and Indian Ocean. Despite a few successes, this military might has largely failed to reverse the tide of piracy. Shipping companies have begun to hire armed private guards to protect their vessels and crew where the public navies cannot. But should private force take a larger role? Should shipping companies hire mercenaries to go on the offensive against pirates? Does, or should, international law allow them to do so? This paper surveys …

The United States Are But One Country: A Short History Of Grammar And Liberty, Charles R. Gardner

Charles Gardner

This legal essay traces the conversion of “the United States” from a plural to a singular noun in United States Supreme Court decisions, in presidential proclamations and inaugural addresses, in diplomatic correspondence and in public discourse. It did not happen with a bang at the end of the Civil War, but with a whimper at the beginning of the twentieth century.

Today, at the beginning of the twenty-first, the singularity of humanity, for which that conflagration was allegedly fought, still eludes us. It is that latter singularity that inspires and organizes this essay.

Not until the digital age was it …

Excuse Me, Sir, Can You Spare Some Certiorari? Why Downtown “No Panhandling” Zones Are Constitutionally Suspect, Noah J. Kores

Noah J Kores

Panhandlers are becoming increasingly prevalent in urban areas across the United States. Many cities have taken action to regulate where, when, and how panhandling may be performed. One particular trend raises many First Amendment questions: downtown panhandling bans. As panhandling is a form of free speech, the question is whether downtown bans go too far.

Under the First Amendment, many downtown bans fail both intermediate and strict scrutiny. Specifically, St. Petersburg, Florida’s ordinance fails because it places content-based restrictions on speech -- meaning it restricts speech based on what an individual is attempting to say. Panhandling bans are content-based because …

From Enemy Combatant To American Citizen: Protecting Our Constitution, Not Our Enemy, Annie Macaleer

Annie Macaleer

This Article advocates maintaining the use of Combatant Status Review Tribunals and military commissions in the framework that the executive and legislative branches have already established during the Bush administration, despite the Obama administration’s recent policy to try detainees in federal court. Furthermore, this Article argues against the use of Article III criminal courts as an arena to prosecute unlawful enemy combatants.

The United Kingdom’S Human Rights Act: Using Its Past To Predict Its Future, Joanne Sweeny

JoAnne Sweeny

The results of the recent General Election in the United Kingdom have both highlighted the flexible nature of the UK’s constitution and placed the UK’s existing bill of rights (the Human Rights Act 1998) in jeopardy. In order to predict the HRA’s future, it is useful to consider how and why the HRA was enacted. Through the use of primary data, this article shows that the HRA was enacted as a result of a unique combination of historical factors and the efforts of public interest groups. These two main elements are analyzed using Rational Choice Theory and Social Movement Theory, …

Child Soldiers And The Duty Of Nations To Protect Children From Participation In Armed Conflict, Luz Estella Nagle

Luz Estella Nagle

Children are used as armed combatants throughout the world. Some volunteer in order to alleviate family problems or escape from them, to achieve status in their cultures, or to gain protection and a sense of belonging. Many more, however, are coerced or forced to fight. The indoctrination process is brutal and can involve the most unspeakable depredations and assaults, with the goal being to break child soldiers down into killers who will do anything they are commanded to do.

The body of international law and international humanitarian law intended to protect children is impotent. In most situations where child combatants …

People V. Bermudez: Is A Freestanding Claim Of Actual, Factual Innocence A Ground For Reversal Under The New York State Constitution?, Gregory C. Rosenfeld

Gregory C Rosenfeld

No abstract provided.

Searching For The State’S Guilty Mind: Mens Rea Evidence Against The Authors Of The Torture Memos Under Federal Law And The Model Rules, Daniel Hornal

Daniel Hornal

This article analyzes the mens rea required for a criminal conviction of lawyers in the Office of Legal Counsel (hereinafter OLC) under a theory that they aided and abetted torture when they wrote the so-called torture memos. It then speculates as to what form the evidence to prove that mens rea would take, if it exists. It then looks at the D.C. Bar’s Rules of Professional Conduct to see which rules the OLC lawyers may have violated, based on information in the public record. Finally, it analyzes each rule to determine the minimum mens rea necessary to violate that rule …

Torture, American Style: A Recipe For Civil Tort Immunity, Matthew J. Jowanna

Matthew J. Jowanna

If someone is tortured, surely, at a minimum, an intentional tort has been committed against that person. This article specifically addresses the civil tort remedy, or lack thereof, for victims of torture at the hands of employees of the United States. In ratifying the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and in its subsequent reporting to the United Nations Committee Against Torture, the United States has consistently denounced torture and proclaimed itself to be a nation that provides for civil remedies against torturers. However, this article will draw attention to the hypocrisy and self-protection …

Mohammed Jawad And The Failure Of The Guantanamo Military Commissions, David J. Frakt

David J Frakt

In order to justify outrageous treatment of detainees at Guantanamo during the early years of the “Global War on Terror” it was necessary to portray the detainees as hardened terrorist criminals. But it was not enough to simply label them as such; the Bush Administration knew that in order to maintain popular support for their detention policies, they would have to convict a critical mass of the detainees in some sort of legal proceedings.

The problem for the Bush Administration was that few of the detainees were actually involved in any terrorist criminal activity. Fewer still had committed any offenses …

Homeschooling In Germany And The United States, Aaron Martin

Aaron Martin

In March 2009, the Georgia House of Representatives passed House Resolution 850, urging the German Federal Government to legalize homeschooling. The resolution was one illustration of how advocacy groups throughout the United States have put pressure on Germany to change its draconian laws regarding homeschooling, laws that were enacted in 1938 during the Nazi regime. But while legislators are calling for Germany to change its laws, battles rage within the United States over the same issues.

This Note evaluates the state of homeschooling in the United States and Germany, both by considering the historical development in each country and through …

Fighting Homogenization: The Global Infiltration Of Technology And The Struggle To Preserve Cultural Distinctiveness., Saptarishi Bandopadhyay

Saptarishi Bandopadhyay

While technology and globalization continue to pervade every aspect of the world, the scope for the sustenance of national or regional culture is rapidly disappearing. This paper will seek to use the lessons and experiences obtained through the controversies in the use of Direct Broadcasting Satellites in its more initial years and apply the same to the Internet to assess its effect on the culture of developing States. The eventual thesis proposed here argues that the freedom of information upheld through technology, and the human right to culture need not be seen as perpendicular interests, but that the latter may …