Law Commons^™

Towards A Unique Theory Of International Criminal Sentencing, Jens David Ohlin

Jens David Ohlin

International criminal law currently lacks a robust procedure for sentencing convicted defendants. Legal scholars have already critiqued the sentencing procedures at the ad hoc tribunals, and the Rome Statute does little more than refer to the gravity of the offense and the individual circumstances of the criminal. No procedures are in place to guide judges in exercising their discretion in a matter that is arguably the most central aspect of international criminal law - punishment. This paper argues that the deficiency of sentencing procedures stems from a more fundamental theoretical deficiency - the lack of a unique theory of punishment …

International Law And Prosecutorial Discretion, Jens David Ohlin

Jens David Ohlin

No abstract provided.

The Bounds Of Necessity, Jens David Ohlin

Jens David Ohlin

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 …

The Co-Perpetrator Model Of Joint Criminal Enterprise, Jens David Ohlin

Jens David Ohlin

No abstract provided.

The Duty To Capture, Jens David Ohlin

Jens David Ohlin

The duty to capture stands at the fault line between competing legal regimes that might govern targeted killings. If human rights law and domestic law enforcement procedures govern these killings, the duty to attempt capture prior to lethal force represents a cardinal rule that is systematically violated by these operations. On the other hand, if the Law of War applies then the duty to capture is fundamentally inconsistent with the summary killing already sanctioned by jus in bello. The following Article examines the duty to capture and the divergent approaches that each legal regime takes to this normative requirement, and …

The One Or The Many, Jens David Ohlin

Jens David Ohlin

The following Review Essay, inspired by Tracy Isaacs’ new book, Moral Responsibility in Collective Contexts, connects the philosophical literature on group agency with recent trends in international criminal law. Part I of the Essay sketches out the relevant philosophical positions, including collectivist and individualist accounts of group agency. Particular attention is paid to Kornhauser and Sager’s development of the doctrinal paradox, Philip Pettit’s deployment of the paradox towards a general argument for group rationality, and Michael Bratman’s account of shared or joint intentions. Part II then analyzes, with cautious support, Isaacs’ two-level solution, which entails both individual and collective moral …

Group Think: The Law Of Conspiracy And Collective Reason, Jens David Ohlin

Jens David Ohlin

Although vicarious liability for the acts of co-conspirators is firmly entrenched in federal courts, no adequate theory explains how the act and intention of one conspirator can be attributed to another, simply by virtue of their criminal agreement. This Article argues that the most promising avenue for solving the Pinkerton paradox is an appeal to the collective intention of the conspiratorial group to commit the crime. Unfortunately, misplaced skepticism about the notion of a "group will" has prevented criminal scholars from embracing the notion of a conspiracy's collective intention to commit a crime. However, positing group intentions requires only that …

Is The Concept Of The Person Necessary For Human Rights?, Jens David Ohlin

Jens David Ohlin

The concept of the person is widely assumed to be indispensable for making a rights claim. But a survey of the concept's appearance in legal discourse reveals that the concept is stretched to the breaking point. Personhood stands at the center of debates as diverse as the legal status of embryos and animals to the rights and responsibilities of corporations and nations. This Note analyzes the evidence and argues that personhood is a cluster concept with distinct components: the biological concept of the human being, the notion of a rational agent, and unity of consciousness. This suggests that it is …

Meta-Theory Of International Criminal Procedure: Vindicating The Rule Of Law, Jens David Ohlin

Jens David Ohlin

International criminal procedure is in a second phase of development, moving beyond the common law/civil law dichotomy and searching for its sui generis theory. The standard line is that international criminal procedure has an instrumental value: it services the general goals of international criminal justice and allows punishment for violations of substantive international criminal law. However, international criminal procedure also has an important and often overlooked intrinsic value not reducible to its instrumental value: it vindicates the Rule of Law. This vindication is performed by adjudicating allegations of criminal violations that occurred during periods of anarchy characterized by the absence …

Three Conceptual Problems With The Doctrine Of Joint Criminal Enterprise, Jens David Ohlin

Jens David Ohlin

This article dissects the Tadic court’s argument for finding the doctrine of joint criminal enterprise in the ICTY Statute. The key arguments are identified and each are found to be either problematic or insufficient to deduce the doctrine from the statute: the object and purpose of the statute to punish major war criminals, the inherently collective nature of war crimes and genocide and the conviction of war criminals for joint enterprises in World War II cases. The author criticizes this overreliance on international case law and the insufficient attention to the language of criminal statutes when interpreting conspiracy doctrines. The …

The Merchants Of Wall Street: Banking, Commerce, And Commodities, Saule T. Omarova

Saule T. Omarova

This Article explores the legal, regulatory, policy, and theoretical aspects of an ongoing transformation of large U.S. banking organizations into global merchants of physical commodities and energy. In the absence of detailed and reliable information, it is difficult to draw definitive conclusions as to the social efficiency and desirability of allowing this transformation to continue. What we can already ascertain about U.S. financial institutions' physical commodity assets and activities, however, raises potentially serious public policy concerns that must be addressed through a fully-informed public deliberation. Even if big U.S. FHCs were, in fact, to scale down their physical commodity operations …

The Dodd-Frank Act: A New Deal For A New Age?, Saule T. Omarova

Saule T. Omarova

This short essay is an attempt to present a few early "big picture" observations on the broad regulatory philosophy underlying the Dodd-Frank Act. The question raised here is whether the Dodd-Frank Act, in fact, provides a blueprint for the twenty-first-century version of the New Deal - a qualitatively new approach to resolving the regulatory challenges posed by today's financial markets. Answering this complex question in full is hardly possible at this stage in the process, when many critical details of the new legal and regulatory regime are yet to be determined. Nevertheless, it is worthwhile to reflect upon some of …

Rethinking The Future Of Self-Regulation In The Financial Industry, Saule T. Omarova

Saule T. Omarova

In today's post-crisis world, arguing in favor of self-regulation in the financial services industry is sure to raise many eyebrows and invite significant disagreement. Much of the skepticism in this respect may be fully justified: the lack of truly effective incentives or political obstacles may ultimately foreclose the possibility of creating a new regime of embedded self-regulation aimed at detection and prevention of systemic financial risks. Nevertheless, as this Article sought to demonstrate, the realities of today's financial marketplace make it critically important that we give the idea of industry self-regulation a full consideration. The main goal of this Article …

Wall Street As Community Of Fate: Toward Financial Industry Self-Regulation, Saule T. Omarova

Saule T. Omarova

This Article proposes an approach to regulatory design that aims to create structural incentives for the emergence of a new model of embedded self-regulation in the financial industry. Without a doubt, the ideas laid out in this Article are more of a thought experiment than a polished set of fully developed regulatory proposals. These ideas and suggestions need a great deal of additional thought and a deeper, more granular and rigorous analysis of their potential consequences, benefits, and costs. Moreover, this Article explores only how to create conditions conducive to the emergence of comprehensive industry self-regulation that is embedded in …

Beyond Finance: Permissible Commercial Activities Of U.S. Financial Holding Companies, Saule T. Omarova

Saule T. Omarova

!is essay explains the legal basis for, and examines public policy implications of, recent expansion of large U.S. financial holding companies’ non-financial business activities. Despite its potentially significant impact on economic growth and systemic stability, this phenomenon of financial conglomeration beyond finance remains poorly understood. Yet, any truly comprehensive and effective reform of financial services regulation must address public policy issues that arise when “too-big-to-fail” banks grow even bigger and more systemically significant by combining finance with commerce.

From Gramm-Leach-Bliley To Dodd-Frank: The Unfulfilled Promise Of Section 23a Of The Federal Reserve Act, Saule T. Omarova

Saule T. Omarova

This Article examines the recent history and implementation of one of the central provisions in U.S. banking law, section 23A of the Federal Reserve Act. Enacted in 1933 in response to one of the perceived causes of the Great Depression, section 23A imposes quantitative limitations on certain extensions of credit and other transactions between a bank and its affiliates that expose a bank to an affiliate's credit or investment risk, prohibits banks from purchasing low-quality assets from their nonbank affiliates, and imposes strict collateral requirements with respect to extensions of credit to affiliates. The key purpose of these restrictions is …

That Which We Call A Bank: Revisiting The History Of Bank Holding Company Regulations In The United States, Saule T. Omarova, Tahyar E. Margaret

Saule T. Omarova

This Article does not purport to present an exhaustive and detailed analysis of the entire political or economic history of bank holding company regulation in the United States. Rather, its goal is to examine one particular aspect of that history-the evolution of the BHCA definition of "bank" and the principal exemptions from that definition. Incomplete as it may be, this story highlights some of the key economic, social and political factors that shaped the current institutional structure of the U.S. financial services market and regulation. Without a thorough understanding of the genesis of that structure, it is difficult to envision …

The New Crisis For The New Century: Some Observations On The "Big-Picture" Lessons Of The Global Financial Crisis Of 2008, Saule T. Omarova

Saule T. Omarova

The unprecedented scale and complex contagion effects of the current financial crisis, which rapidly spread across geographic borders and market segmentation lines, forcefully underscored the urgent need for policy-makers, financial regulators, and market participants around the world to develop a deeper substantive understanding of the fundamental changes in the dynamics of modern financial markets. Although, in a historical perspective, all financial crises tend to display certain basic commonalities, two key factors make the crisis of 2008 qualitatively different from the panics and crashes of the past centuries. First, this is the world's first truly global financial crisis. Second, this is …

The Quiet Metamorphosis: How Derivatives Changed The "Business Of Banking", Saule T. Omarova

Saule T. Omarova

In the wake of an unprecedented global financial crisis, one of the fundamental questions preoccupying policymakers and students of financial regulation worldwide is "How did we get here?" This Article uncovers and analyzes an important part of our recent regulatory history, which provides a key to understanding some of the deeper, hidden causes of the crisis but whose significance legal scholars have so far failed to appreciate. The Article examines interpretive letters issued by the Office of the Comptroller of the Currency (OCC), the primary regulator of federally chartered U.S. banks, interpreting the National Bank Act of 1863 to allow …

“Private” Means To “Public” Ends: Governments As Market Actors, Robert C. Hockett, Saule T. Omarova

Saule T. Omarova

Many people recognize that governments can play salutary roles in relation to markets by (a) “overseeing” market behavior from “above,” or (b) supplying foundational “rules of the game” from “below.” It is probably no accident that these widely recognized roles also sit comfortably with traditional conceptions of government and market, pursuant to which people tend categorically to distinguish between “public” and “private” spheres of activity. There is a third form of government action that receives less attention than forms (a) and (b), however, possibly owing in part to its straddling the traditional public/private divide. We call it the “government as …

Bankers, Bureaucrats, And Guardians: Toward Tripartism In Financial Services Regulation, Saule T. Omarova

Saule T. Omarova

This Article advocates the statutory creation of a new form of tripartite regulatory regime aimed at the detection and prevention of systemic risk in the financial sector. Although it leaves many significant details blank and many important questions unanswered, this Article offers a radically new vision of the financial services regulation as a process involving three equal participants: bankers, bureaucrats, and guardians of the public interest. Admittedly, this vision is not likely to become reality in the near future. Nor is it meant as a comprehensive plan to solve the problem of effective systemic risk regulation in the financial sector. …

The Right Not To Use In Property And Patent Law, Oskar Liivak, Eduardo M. Peñalver

Oskar Liivak

In Continental Paper Bag Co. v. Eastern Paper Bag Co., the Supreme Court held (1) that patent owners have an absolute right not to practice their patent and (2) that even these nonpracticing patent owners are entitled to the liberal use of injunctive relief against infringers. Both of these holdings have been very important to the viability of patent assertion entities, the so-called patent trolls. In eBay Inc. v. MercExchange, L.L.C., the Supreme Court softened the injunction rule. In this Article, we argue that Congress or the Court should reconsider Continental Paper Bag’s embrace of an absolute right not to …

Rethinking The Concept Of Exclusion In Patent Law, Oskar Liivak

Oskar Liivak

Patent law’s broad exclusionary rule is one of its defining features. It is unique within intellectual property as it prohibits acts of independent creation. Even if a second inventor had no connection or aid from an initial inventor, patent law allows the first inventor to stop the second. Even though a number of pressing problems can be traced to this rule, it remains untouchable; it is thought to be essential for incentivizing invention. But is it really our only choice? And why is it so different from our otherwise widespread reliance on free entry and competition in markets? The current …

Maturing Patent Theory From Industrial Policy To Intellectual Property, Oskar Liivak

Oskar Liivak

We have always known that technological progress is important and this country has always aimed to promote it. A large part of that responsibility has fallen on the shoulders of the patent system. Embarrassingly, despite over two hundred years of experience, we still do not actually know if the patent system helps or hinders technological progress. This Essay argues that the problem is not the patent system but rather patent theory. Patent theory suffers from three linked problems: exceptionalness, indeterminacy, and animosity. First, patent law is seen as a necessarily unique exception to the overall market economy. By artificially making …

Finding Invention, Oskar Liivak

Oskar Liivak

One of the biggest problems plaguing modern patent law is its inability to provide predictable and clear exclusive rights. We would improve clarity by simply following the patent statute and extending exclusion only to "the patented invention." That suggestion, as reasonable as it may sound, is actually quite radical to the dominant patent law orthodoxy. It is not even clear under the dominant patent law orthodoxy what it would mean to limit patent scope to the invention, but it is generally presumed that it must lead to unacceptably narrow patents. Thus, even if it provides clarity, the invention is thought …

Maintaining Competition In Copying: Narrowing The Scope Of Gene Patents, Oskar Liivak

Oskar Liivak

In supporting gene patents, the patent office, the courts and other supporters have assumed that gene discoveries are identical to traditional inventions and therefore the patent system should treat them as identical. In other words, they have assumed that the relatively broad claims that are used for traditional inventions are also appropriate for encouraging gene discovery. This article examines this assumption and finds that gene discoveries are critically different from traditional inventions and concludes that the patent system cannot treat them as identical.

As a doctrinal matter, this article applies the generally overlooked constitutional requirements of inventorship and originality and …

Establishing An Island Of Patent Sanity, Oskar Liivak

Oskar Liivak

There is a growing, inescapable sense that something has gone terribly wrong with the patent system. The patent system is described as a failure, broken, and dysfunctional. Yet, despite the fact that much of today’s headline-grabbing patent activity appears facially unproductive, we really can’t be sure that the system has failed in its mission. Current patent theory is so indeterminate that it is hard to decisively criticize these activities. In fact, the current narrative cannot conclusively show that patent trolls or any other patent-related activities are or are not economically justified. Though depressing and perhaps embarrassing, this patent indeterminacy is …

The Forgotten Originality Requirement: A Constitutional Hurdle For Gene Patents, Oskar Liivak

Oskar Liivak

Originality has always been a part of patent law. It bars patents that are obtained by copying from someone or from somewhere. Modern judicial interpretations of the patent act have ignored this second element of originality. But as originality is, at least arguably, a constitutional limit of the Patent and Copyright clause, the courts must interpret the patent act consistently to include originality. As a specific example, the paper focuses on patents claiming isolated and purified naturally-occurring gene sequences. The paper concludes that such patents are not original – they are instead just the result of copying – and thus …

Legitimacy And Impartiality In A Sovereign Debt Workout Mechanism, Odette Lienau

Odette Lienau

Particularly in light of recent developments in sovereign debt litigation, there is a pressing need for discussion of more robust sovereign debt restructuring mechanisms. This paper contends that any sovereign debt workout mechanism (DWM) should embody the principles of legitimacy and impartiality, to the extent possible, in order to garner the stable and long-term adherence of international stakeholders. These two elements are important both for attracting support ex ante, i.e. in the initial development of any treaty, ad hoc, or soft law restructuring mechanism, and for ensuring ex post that a DWM is ultimately utilized by states and their creditors. …

Who Is The "Sovereign" In Sovereign Debt?: Reinterpreting A Rule-Of-Law Framework From The Early Twentieth Century, Odette Lienau

Odette Lienau

Combining legal interpretation with political science analysis, this Article highlights the competing "statist" and "popular" conceptions of sovereignty at stake in sovereign debt issues. It argues that these two dominant approaches do not exhaust the offerings of intellectual history and considers an alternative approach that emerged in the early twentieth century and may be of relevance again today. The Article contends that U.S. Chief Justice Taft's foundational 1923 "Tinoco" decision, which grounds the current approach to sovereign governmental recognition, has been misinterpreted to support a purely statist or absolutist conception of sovereignty. It argues that a proper interpretation presents an …