Law Commons^™

The Latin American Tradition Of Legal Failure, Jorge L. Esquirol

Faculty Publications

No abstract provided.

Substantial Limitations: Reflections On The Adaaa, Kerri Lynn Stone

Faculty Publications

This Article advocates several ways to reform the American with Disabilities Act Amendments Act of 2008 (ADAAA) and its jurisprudence. It begins with the premise that the “otherwise qualified,” “reasonable accommodation,” and “undue hardship” analyses are questions that call for a focus on, respectively, the plaintiff at issue, the accommodation at issue, and the employer at issue. The article calls for the abolition of the need to demonstrate a major life activity limitation required for coverage under the statute in accommodation cases, noting that this has already effectively occurred in the context of the rest of the ADA’s antidiscrimination jurisprudence. …

Simplifying Discovery And Production: Using Easy Frameworks To Evaluate The 2009 Term Of Cases, Eric R. Carpenter

Faculty Publications

No abstract provided.

Judging Aggression, Noah Weisbord

Faculty Publications

One of the most polarizing debates in international law is how the goal of peace should figure into the work of international criminal tribunals. The freshly minted crime of aggression lands the judges of the International Criminal Court in the middle of the peace versus justice dilemma and will challenge the court to prove its value for advancing peace in appropriate circumstances while building the rule of law and maintaining its legitimacy.

This article, the final installment in the author's trilogy on the crime of aggression, explores the gaps, ambiguities and contradictions woven into the definition of the crime and …

Subject To Surveillance: Genocide Law As Epistemology Of The Object, Tawia Baidoe Ansah

Faculty Publications

This article analyzes the discourse on genocide from two angles: the legal genesis of the term in the 1940s and subsequent legal "capture" of the concept of genocide, and a recent socio-political critique of the legal meaning of genocide. The article suggests that a cross-disciplinary critique of genocidal violence not only describes the event and the victim, but also produces knowledge of them as discursive "objects." The key issue is the "surveillance" role of the outside observer, also produced as such in discursive relation to the object. At stake in this view of genocide law as epistemology is the capacity …

The Demise Of “Drive-By Jurisdictional Rulings”, Howard M. Wasserman

Faculty Publications

No abstract provided.

The United States And The International Criminal Court Post-Bush: A Beautiful Courtship But An Unlikely Marriage, Megan A. Fairlie

Faculty Publications

The article focuses on the relationship status between the U.S. and the International Criminal Court (ICC) from being dormant due to being renewed. The renewal was evident from the U.S. representation at the 2009 ICC's Assembly of States Parties annual meeting and the 2010 ICC Review Conference. Using the Rome Statute, the ICC has been granted subject matter jurisdiction over war crimes, crimes against humanity and genocide.

A Sui Generis Regime For Traditional Knowledge: The Cultural Divide In Intellectual Property Law, J. Janewa Oseitutu

Faculty Publications

To some extent, traditional knowledge can be protected under various intellectual property laws, but there is no effective international legal protection for this subject matter. This has led to proposals for a sui generis regime to protect traditional knowledge. The precise contours of the right are yet to be determined but a sui generis right could include perpetual protection. It could also result in protection for historical communal works and for knowledge that may be useful but that is not inventive according to the standards of intellectual property law.

Developing countries have been more supportive of an international traditional knowledge …

Finding Nino: Mapping The (Glorious) Beginning And (Bitter) End Of Justice Scalia’S Confrontation Clause Legacy, Joelle A. Moreno

Faculty Publications

No abstract provided.

An Overview Of The Capital Jury Project For Military Practitioners: Aggravation, Mitigation, And Admission Defenses, Eric R. Carpenter

Faculty Publications

No abstract provided.

The Reason Behind The Rules: From Description To Normativity In International Criminal Procedure, Noah Weisbord

Faculty Publications

As the International Criminal Court (ICC) continues to mature in its practices, it provokes discussion on whether the comfortable framework of adversarial and inquisitorial systems should be used to evaluate an institution that exists in a fundamentally different context from that of national criminal justice systems. In order to avoid entangling the ICC in rules that are not tailored to fit its specific goals and institutional context, the normative purposes underlying procedural rules derived from domestic institutions should be reexamined.

This article draws out basic principles that may be of use in reexamining the reasoning behind the rules of procedure …

Special Court For Sierra Leone: Achieving Justice?, Charles Chernor Jalloh

Faculty Publications

The Sierra Leone war, which lasted between 1991 and 2002, gained notoriety around the world for “blood" or "conflict" diamonds and some of the worst atrocities ever perpetrated against civilians in a modern conflict. On January 16, 2002, the United Nations and the Government of Sierra Leone signed an historic agreement to establish the Special Court for Sierra Leone (SCSL). In setting up a new type of ad hoc criminal tribunal, the parties sought to achieve two key objectives. First, to dispense credible justice by enabling the prosecution of those bearing greatest responsibility for the wartime atrocities based on international …

Debate On Birthright Citizenship, John Eastman Dr., Ediberto Román

Faculty Publications

The following is the transcript from a debate between Dr. John Eastman and Professor Ediberto Roman, and moderated by Dean of the Florida International University College of Law, Alex Acosta. This debate took place on February 24-25, 2011 as a part of the FIU Law Review's Symposium on immigration reform in the United States. Specifically, this debate centers on the Fourteenth Amendment and birthright citizenship. Both Dr. Eastman and Professor Romdn were given ten minutes for their own remarks, beginning with Dr. Eastman. After the opening remarks, the debate goes into a brief back-and-forth between Dr. Eastman and Professor Roman …

The Turn To Legal Interpretation In Latin America, Jorge L. Esquirol

Faculty Publications

No abstract provided.

Sovereignty, Rebalanced: The Tea Party And Constitutional Amendments, Elizabeth Price Foley

Faculty Publications

Arguably since the Marshall Court and undoubtedly since the New Deal, the U.S. Constitution has been subverted to the point where its original meaning has been substantially lost inside a tangled knot of Supreme Court case law. Like termites eating away at the constitutional architecture, Supreme Court interpretations of provisions such as the Commerce Clause, taxing and spending power, Privileges or Immunities Clause, Ninth Amendment, Tenth Amendment, and Eleventh Amendment have so rotted them that they no longer serve the critical functions originally envisioned.

International Decision, International Criminal Court, Decision On The Authorization Of An Investigation Into The Situation In The Republic Of Kenya, Charles Chernor Jalloh

Faculty Publications

On March 31, 2010, in its first ever decision authorizing a prosecutorial proprio motu investigation, the Pre-Trial Chamber of the International Criminal Court (ICC) granted the ICC Prosecutor permission to investigate the shocking violence which followed Kenya’s December 2007 Presidential elections under Article 15 of the Rome Statute of the International Criminal Court. The majority of the Chamber ruled that both the contextual and underlying requirements of crimes against humanity had been fulfilled, including that they were committed as part of a state or organizational policy as required by Article7(2)(a) of the Rome Statute. According to the majority, the latter …

Origins Of The Social Function Of Property In Chile, M C. Mirow

Faculty Publications

In 1925, Chile was one of the first countries in Latin America to adopt a social-function limitation on property. This study traces the importance of Duguit’s work in the construction of the property provisions of the Chilean Constitution of 1925. This contribution notes the shift from the earlier expressions of property as an absolute right, as found in the Constitution of 1833, to the language of the Constitution of 1925 that submits property to “the maintenance and progress of the social order.” It tracks the debates in the drafting committees to expose the various concepts of property open to the …

Is Social Enterprise The New Corporate Social Responsibility?, Antony Page, Robert A. Katz

Faculty Publications

Since at least the famous Berle-Dodds debate, corporate social responsibility (CSR) and later its more muscular and structural iteration, progressive corporate law, have been discussed without much progress. The authors consider whether the social enterprise movement, which envisions a new sector of businesses created both to generate profits and pursue social goals, advances this debate. They conclude that it does. Proponents of social enterprise believe that such businesses can combine the dynamism of for-profit firms with the mission-driven zeal more typical of nonprofit organizations. Social enterprise and CSR have much in common: both want businesses to take the interests of …

An Overview Of The Capital Jury Project For Military Practitioners: Jury Dynamics, Juror Confusion, And Juror Responsibility, Eric R. Carpenter

Faculty Publications

No abstract provided.

Dodd-Frank, Liability Structure, And Financial Instability Cycles: Neither A (Ponzi) Borrower Nor A Lender Be, Jose M. Gabilondo

Faculty Publications

No abstract provided.

Exporting Subjects: Globalizing Family Law Progress Through International Human Rights, Cyra Akila Choudhury

Faculty Publications

This article examines the global export of domestic U.S. legal projects and strategies in the realm of family law and gender justice to South Asia. While such projects have undoubtedly achieved substantial gains for women in the U.S., there have also been costs. At a remove of two decades, scholars have now begun to theorize those costs and argue that feminism needs to reconsider its commitments to particular projects that have been held central to women’s emancipation. Yet much of these critiques have not reached the transnational women’s movements that are led by U.S. feminist activists and scholars. Relying on …

Clarifying Stereotyping, Kerri Lynn Stone

Faculty Publications

This Article addresses the largely undefined, misunderstood-yet-often-resorted-to concept of “stereotyping” as a basis for, or sufficient evidence of, liability for employment discrimination. Since, the concept’s genesis in Supreme Court jurisprudence in 1989, Price Waterhouse v. Hopkins, plaintiffs have proffered remarks alleged to be tinged with, or indicating the presence of, impermissible stereotypes as evidence of discrimination based on protected-class status – be that sex, race, color, religion, or national origin – in contravention of Title VII of the Civil Rights Act of 1964. The Article examines the language in Hopkins and its precise mandates and guidance for lower courts. It …

Shortcuts In Employment Discrimination Law, Kerri Lynn Stone

Faculty Publications

Are employment discrimination plaintiffs viewed by society and by judges with an increased skepticism? This article urges that the same actor inference, the stray comment doctrine, and strict temporal nexus requirements, as courts have applied them, make up a larger and dangerous trend in the area of employment discrimination jurisprudence- that of courts reverting to special, judge-made "shortcuts" to curtail or even bypass analysis necessary to justify the disposal or proper adjudication of a case. This shorthand across different doctrines reveals a willingness of the judiciary to proxy monolithic assumptions for the individualized reasoned analyses mandated by the relevant antidiscrimination …

Teaching Gender As A Core Value In The Firstyear Contracts Class, Kerri Lynn Stone

Faculty Publications

No abstract provided.

Alternative Justifications For Law School Academic Support Programs: Self-Determination Theory, Autonomy Support, And Humanizing The Law School, Louis N. Schulze Jr.

Faculty Publications

This Article examines a problem that exists in law school academic support programs. While many schools now include extensive academic support opportunities within their curricula, some schools make the choice that more modest investments in these programs are warranted. Obviously, funding such programs is expensive, and law school administrations understandably are reticent to finance such endeavors absent guarantees of results. As such, scholars have attempted to prove, empirically, that law school academic support programs (ASPs) lead to demonstrable results in terms of improvements in student performance in law school and on the bar exam. Setting aside that important project, I …

Assessing The African Union Concerns About Article 16 Of The Rome State Of The International Criminal Court, Charles Chernor Jalloh, Dapo Akande, Max Du Plessis

Faculty Publications

This article assesses the African Union’s (AU) concerns about Article 16 of the Rome Statute of the International Criminal Court (ICC). It seeks to articulate a clearer picture of the law and politics of deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC, or the Council) to invoke Article 16 to suspend the processes initiated by the ICC against President Omar Al Bashir of Sudan. The UNSC’s failure to accede to the AU request led African States to formally withhold cooperation from the ICC in respect to the arrest and surrender of the …