Law Commons^™

Bringing The Spies In From The Cold: Legal Cosmopolitanism, And Intelligence Under The Laws Of War, Peyton A. Cooke

Peyton A. Cooke

Recently, as never before, intelligence operations have come under international humanitarian law. The Supreme Court has handed down the Hamdan and Boumediene decisions; President Obama has required the CIA and other interrogators to abide by Geneva Conventions Common Article 3 standards for all interrogations; district courts have declared stringent law of war criteria for overseas detentions; the Executive has applied the laws of war to terrorist targeting; and the private groups which have initiated this litigation, and pressed for these changes, continue to work for even more reform. This paper addresses the roots and effects of such changes. It begins …

Matters Of Preference: Tracing The Line Between Citizens, Democratic States, And International Law, Mark A. Chinen

Mark A. Chinen

In this Article, we assess the role the aggregation of citizen preferences into the foreign policy choices of a democratic country might play in the legitimization of international law. After addressing some of the theoretical and empirical issues associated with such an approach, we use an anticipated reaction model developed by Michael Bailey to show that even in large democracies there are mechanisms through which citizen preferences can be and are reflected in the policy choices of their representatives. Incumbents and candidates for office take policy positions in hopes of maximizing their future election chances. Although policymakers each have their …

Plural Vision: International Law Seen Through The Varied Lenses Of Domestic Implementation, D. A. Jeremy Telman

D. A. Jeremy Telman

This essay introduces a collection of essays that have evolved from papers presented at a conference on “International Law in the Domestic Context.” The conference was a response to the questions raised by the U.S. Supreme Court’s decision in Medellín v. Texas and also a product of our collective curiosity about how other states address tensions between international obligations and overlapping regimes of national law.

Our constitutional tradition speaks with many voices on the subject of the relationship between domestic and international law. In order to gain a broader perspective on that relationship, we invited experts on foreign law to …

Indianizing Hollywood: The Debate Over Bollywood's Copyright Infringement, Hariqbal Basi

Hariqbal Basi

For decades, the mainstream Indian film industry, known as Bollywood, has remade copyrighted Hollywood films for the Indian audience without legal repercussions. This practice has gone unnoticed by Hollywood until recently, and accusations have since been brought against Indian filmmakers for copyright infringement. This note provides an in depth analysis of why these potentially infringing films have only become the subject of litigation over the last two years, cultural arguments advanced by Indian filmmakers for why their remakes should constitute original, and not infringing, works, and what the effects of litigation have been. As the two industries become increasingly intertwined, …

Something Is Rotten In The State Of Denmark: The Deprivation Of Democratic Rights By Nation States Not Recognizing Dual Citizenship, Myanna Dellinger

Myanna Dellinger

No abstract provided.

Extraordinary Justice, David Gray

David C. Gray

This article is squarely opposed to views advanced by Eric Posner, Adrian Vermeule, and others that transitional justice is just a special case of “Ordinary Justice.” Paying special attention to debates about reparations, this article argues that transitional justice is extraordinary, reflecting the source and nature of atrocities perpetrated under an abusive regime, and focused on the challenges and goals that define transitions to democracy. In particular, this Article argues that transitional justice is not profane, preservative, and retrospective, but, rather, Janus-faced, liminal, and transformative. The literature on reparations in transitions is divided between critics who regard reparations as quasi-tort …

A Dark Descent Into Reality: Making The Case For An Objective Definition Of Torture, Michael W. Lewis

Michael W. Lewis

The definition of torture is broken. The malleability of the term “severe pain or suffering” at the heart of the definition has created a situation in which the world agrees on the words but cannot agree on their meaning. The “I know it when I see it” nature of the discussion of torture makes it clear that the definition is largely left to the eye of the beholder. This is particularly problematic when international law’s reliance on self-enforcement is considered. After discussing current common misconceptions about intelligence gathering and coercion that are common to all sides of the torture debate, …

Do You Swear To Tell The Truth, The Whole Truth, And Nothing But The Truth Against Your Child?, Hillary B. Farber

Hillary B. Farber

Currently in the United States forty-five states and the federal system do not recognize an evidentiary parent-child privilege. The United States Supreme Court has never granted certiorari in a case involving recognition of a parent-child privilege. For many, it is a revelation to learn that the government can compel testimony about communications and observations between parents and their children. A rights-based argument in favor of a parent-child privilege has not been articulated before in legal scholarship. This paper singles out one specific context, the prosecution of juveniles, and argues that such a privilege is essential in order to ensure children …

Kant, Habermas And Democratic Peace, John C. Yoo, Robert J. Delahunty

John C Yoo

Philosophers of great stature rarely write about international law or international relations. When they do, their writing, though often illuminating, tends to be brief, episodic and marginal to the rest of their work. Major exceptions include the towering eighteenth-century Enlightenment thinker Immanuel Kant and the contemporary German thinker Jürgen Habermas, much of whose highly influential work is devoted to international affairs. The relationship between Kant and Habermas is an extremely close one, and few later thinkers have done as much as Habermas to demonstrate the continuing importance and relevance of Kant’s political thought for the contemporary world. Briefly stated, our …

By Prohibiting Foreign Lawyers From Participating, California Is Missing Out, David D. Caron, Leah D. Harhay

David D. Caron

California Code of Civil Procedure §1282.4 and Local Rule 9.43 govern the ability of attorneys who are not members of the State Bar of California to act as counsel in international arbitrations here. Both allow out-of-state attorneys to participate in these arbitrations, but provide no similar provisions for out-of-country attorneys. However, even out-of-state attorneys are not safe. In 2011, when §1282.4 sunsets, out-of-state attorneys will also be barred from appearing as counsel in California-based international arbitrations.

To Testify Or Not To Testify: A Comparative Analysis Of Australian And American Approaches To A Parent-Child Testimonial Exemption, Hillary B. Farber

Hillary B. Farber

Among many legal systems there are certain relationships that are deemed to possess such societal worth that despite the evidentiary value a witness may possess, he is immune from being compelled to testify against the other party in the relationship. In the United States, courts have recognized an evidentiary privilege for spouses, lawyers and their clients, psychotherapists and their patients. Surprisingly, the United States has not adopted a federal common law or statutory parent-child privilege. Among the civil law countries in Europe and Asia, a majority of countries prohibit parents and children from testifying against one another. Australia is the …

China, A Sui Generis Case For The Western Rule-Of-Law Model, Jialue Li

Jialue Charles Li

This article synthesizes the Chinese rule of law theories based on their historic and theoretical development in China, and offers in-depth comparison between the Western and Chinese rule of law models. The current rule of law discussions about China usually premise on the Western rule of law model. The article first summarizes the Western framework in broad categories of substantive theory versus formal theory. But it goes further and explores how these concepts apply in the real world, especially in the context of American jurisprudence. The in-depth analysis of the Western rule of law theories, both at the theoretical and …

A Viable "Sweatshop Free" Model? The Ilo's Better Factories Program And Labor Rights In Cambodia's Garment Industry, John A. Hall

John A. Hall

The International Labour Organization's (ILO' s) innovative program, Better Factories Cambodia ("Better Factories"), represents one of the more important attempts made by the international community to promote labor rights in a developing nation. The lessons Better Factories offers are significant for all stakeholders in the global labor market and suggest at least the outline of a practical blueprint for the future promotion of international labor standards globally. While the ILO's program in Cambodia has achieved notable success in reaching specific criteria, future ILO efforts elsewhere must be adjusted to reflect lessons learned in the Better Factories model. Specifically, future programs …

State Immunity And Jus Cogens Violations: The Alien Tort Statute Against The Backdrop Of The Latest Developments In The ‘Law Of Nations’, Michele Potestà

Michele Potestà

No abstract provided.

Property And Transitional Justice, Bernadette Atuahene

Bernadette Atuahene

Transitional justice is the study of those mechanisms employed by communities, states and the international community to deal with a legacy of systematic human rights abuses and authoritarianism in order to promote social reconstruction. There is a well developed transitional justice literature on how states can deal with past violations of civil and political rights, which discusses the value of truth commissions, and international and domestic prosecutions. The transitional justice literature on how to deal with past violations of property rights, however, is significantly less developed. The goal of this essay is to begin an important conversation about how transitional …

The Relevance Of International Law To The Domestic Decision On Prosecutions For Past Torture, Bartram Brown

Bartram Brown

Taking Prevention Seriously: Developing A Comprehensive Response To Child Trafficking And Sexual Exploitation, Jonathan Todres

Jonathan Todres

Millions of children are victims of trafficking and commercial sexual exploitation each year. Governments have responded with a range of measures, focusing primarily on seeking to prosecute perpetrators of these abuses and offering assistance to select victims. These efforts, while important, have done little to reduce the incidence of these forms of child exploitation. This Article asserts that a central reason why efforts to date may not be as effective as hoped is that governments have not oriented their approaches properly toward prioritizing prevention - the ultimate goal - and addressing these problems in a comprehensive and systematic manner. Instead, …

Stop Taking The Bait: The Dilution Of Miranda Does Not Make America Safer From Terrorism, Ryan T. Williams

Ryan T. Williams

On December 25, 2009, a Nigerian tried to blow up a plane over Detroit, Michigan. On May 1, 2010, an American tried to set off explosives in New York's Times Square. Neither man succeeded. After both arrests, lawmakers clamored for more flexibility to interrogate terror suspects and for the suspension (if not elimination) of their Miranda rights. The Supreme Court subsequently decided three cases that severely dilute Miranda protections and Fifth Amendment rights. An examination of these decisions reveals that they fail to make America safer from terrorism.

Worse still, the dilution of American citizens' rights sends a dangerous message …

Law Without The State: The Theory Of High Engagement And The Emergence Of Spontaneous Legal Order Within Commercial Systems, Bryan H. Druzin

Bryan H. Druzin

The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, Or Judicially-Constructed “Victor’S Impunity”?, C. Peter Erlinder

C. Peter Erlinder

ABSTRACT The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, or Juridically-Constructed “Victor’s Impunity”? Prof. Peter Erlinder [1] ________________________ “…if the Japanese had won the war, those of us who planned the fire-bombing of Tokyo would have been the war criminals….” [2] Robert S. McNamara, U.S. Secretary of State “…and so it goes…” [3] Billy Pilgrim (alter ego of an American prisoner of war, held in the cellar of a Dresden abattoir, who survived firebombing by his own troops, author Kurt Vonnegut Jr.) Introduction Unlike the postWW- II Tribunals, the U.N. Security Council tribunals for the former Yugoslavia [10] …

Extending The Scope Of Application Of Labour Laws To The Informal Economy”, Digest Of Comments Of The Ilo Supervisory Bodies Related To The Informal Economy, Cleopatra Doumbia-Henry

Cleopatra Doumbia-Henry

No abstract provided.

Transporting India Into A New Climate: The Implications For Energy Law And Policy, Deepa Badrinarayana

Deepa Badrinarayana

This comment examines the energy challenges that the Indian government faces in developing its infrastructure. It briefly summarizes the policies adopted by the government, as well as their scope and limits.

Who Watches The Watchmen? 'Vigilant Doorkeeping,' The Alien Tort Statute, & Possible Reform, Keith A. Petty

Keith A. Petty

The Alien Tort Statute (ATS) allows alien plaintiffs to file civil actions in U.S. district courts for torts violating the law of nations or U.S. treaties. After the 2nd Circuit’s Filartiga decision in 1980, the debate began as to whether the ATS was a useful tool against human rights violators or an intrusion into U.S. foreign relations. In 2004, the Supreme Court in Sosa v. Alvarez-Machain resolved some of the questions left open by Filartiga.

Sosa concluded that ATS claims must be limited to law of nations violations as well defined as those recognized in 1789. The Court tasked the …

When The Veil And The Vote Collide: Enhancing Muslim Women’S Rights Through Electoral Reform, Amber R. Maltbie

Amber R Maltbie

Voter identification laws serve a critical purpose in the consolidation of emerging democracies and post-conflict situations. By serving as a prophylactic curb against voter fraud when trust in the electoral process is low, voter identification laws strengthen the public’s perception of an election’s integrity and the legitimacy of the government elected. However, even when administered absent any discriminatory intent, these laws can have unintended consequences, especially for Muslim women who wear a veil that covers the face. For new democracies or post-conflict states with large or majority Muslim populations, voter turnout among women can be suppressed if the jurisdiction’s electoral …