Law Commons^™

Why France Needs To Collect Data On Racial Identity . . . In A French Way., David B. Oppenheimer

David B Oppenheimer

The Inter-American System And The Protection Of Indigenous Peoples’ Rights (Spanish)., Giovanna E. Gismondi

Giovanna E. Gismondi

The present article underscore the role of the Inter-American Commission and the Inter-American Court of Human Rights in regards to the protection of the rights of indigenous communities, including their right to lands, natural resources and a healthy environment. In this regard, the intervention of the human rights organs of the Organization of American States (OAS), has had a positive impact on the laws and policies of Latin American countries towards the protection of indigenous peoples' rights. The article discusses four cases that set the standards of the legal protection of indigenous communities within the Inter-American System for the protection …

Affordable Housing And Civic Participation: Two Sides Of The Same Coin, Goutam U. Jois

Goutam U Jois

Over the past several decades, America’s inner cities have deteriorated socially, economically, and politically. Simultaneously, civic engagement, almost by any measure, has been on the decline: Americans vote less and volunteer less, go out to dinner with friends less and attend PTA meetings less. In this Article, I argue that the two phenomena are linked, at least from the perspective of remedies. Specifically, by rebuilding our inner cities to promote mixed-use, mixed-income development, we can revitalize some of the most impoverished neighborhoods in our country while simultaneously engendering the mechanisms to foster increased civic engagement in our participatory democracy.

A Comprehensive Analysis Of The National Security Agency’S Wiretapping Program And Its Correlation With The Foreign Intelligence Surveillance Act, Michael Fraggetta

Michael Fraggetta

ABSTRACT This paper is an analysis of the unitary executive theory as ascribed to by the Bush/Cheney administration. The central focus of the paper analyzes the NSA wiretapping program, which was made public in 2005 and the correlation and support found for the program in the unitary executive theory. The paper proceeds with a brief history of the warrantless surveillance in the United States and the evolution of electronic surveillance jurisprudence culminating with the passage of the Foreign Intelligence Surveillance Act in 1978. The paper then explores the NSA program and analyzes, in depth, the legal arguments set forth by …

Egypt’S Supreme Administrative Court Denies Constitutional Rights To Bahá’Í Religious Minority, Karlijn Van Der Voort

Karlijn Van der Voort

No abstract provided.

Constraints On The President's Power To Interpret Common Article Three Of The Geneva Conventions, Heather Sensibaugh

Heather Sensibaugh

This paper explores whether the President has authority to violate customary international law norms prohibiting outrages upon personal dignity, in particular humiliating and degrading treatment by his own interpretation in the form of an executive order pursuant to the Military Commissions Act of 2006. This article argues that, in interpreting the MCA, the President is bound to comply with definitions provided by Congress and where no definitions are specified. The President’s interpretive authority is constrained by customary meanings of Common article 3 of the 1949 Geneva Conventions.

Market Triumphalism, Electoral Pathologies, And The Abiding Wisdom Of First Amendment Access Rights, Gregory P. Magarian

Working Paper Series

Forty years ago, Professor Jerome Barron made the classic case that the First Amendment requires not merely protection of speech against government interference but provision of access to the means of mass communication. The Supreme Court in the ensuing decades has largely rejected Barron’s approach. In this article, Professor Magarian defends Barron’s case for access rights against the two theoretical critiques that have underwritten its doctrinal rejection. The libertarian critique attacks the normative underpinnings of access rights, maintaining that the First Amendment insulates market-driven distributions of expressive opportunities. Professor Magarian demonstrates that politically progressive and conservative libertarian critics of access …

The Transatlantic Divide Over The Implementation And Enforcement Of Security Council Resolutions, Daniel S. Meyers

Daniel S Meyers

American and European governmental institutions adopt vastly divergent approaches to the implementation and enforcement of targeted sanctions adopted by the United Nations Security Council under Chapter VII of the Charter of the United Nations. In Europe, targeted sanctions mandated under Chapter VII of the Charter are regarded as absolute obligations outside the reach of local due process constraints. In America, by contrast, such Chapter VII measures are regarded as mandatory obligations only to the extent that they are consistent with domestic law. As a consequence, a commonly held belief -- that in the "war" on terror, American institutions are more …

Fallibility + Unchecked Power = Trouble, C. Peter Erlinder

C. Peter Erlinder

No abstract provided.

A Call For Refuge: The Case Of Forced Marriages, Emily A. Harrell

Emily A Harrell

This case note examines the ramifications of the Second Circuit Court of Appeal’s recent decision in Gao v. Gonzalez, 440 F.3d 62 (2d Cir. 2006), holding that women who were forced into marrying within a Chinese community where forced marriage was condoned and enforceable qualified as a “particular social group” eligible for asylum within the meaning of the Immigration and Nationality Act. Gao brings into question the position of the United States and the duties owed to refugees in such circumstances. This issue is particularly significant given the demonstrated concern for human rights as manifested by the United States accession …

Will The Real "Che" Guevara Please Stand Up? Labor And Authoritarianism In Sandinista Nicaragua, Stephen Diamond

Stephen F. Diamond

This paper examines the impact of authoritarian left theory, in particular that of “Che” Guevara, on labor rights during the Sandinista’s Nicaraguan revolution. This is important because of the current revival of movements like that of Hugo Chavez in Venezuela that rely on similar approaches to labor and human rights issues as that of the original Sandinista movement. In addition, there is widespread interest today in “Che” Guevara, yet little is known or understood about his actual politics while in power during the early years of the Cuban revolution. In addition, there is increasing sympathy for such authoritarian approaches to …

Genocide And Jurisdiction: Methods For Achieving Justice Domestically For The International Crimes In Darfur, Matthew N. Thomas

Matthew N. Thomas

The international community as a whole has been reluctant to take action against Sudan for the international crimes being committed in Darfur. However, individual nations, including the United States, have expressed a strong interest in taking proactive measures to achieve justice for those atrocities. Victims of the Sudanese conflict may achieve justice through the domestic courts of the United States. Civilly, the Alien Tort Statute provides a cause of action to foreign citizens for torts committed against them in violation of international law, while the exceptions to the Foreign Sovereign Immunity Act permit personal jurisdiction over individuals acting on behalf …

Towards A Scientific Standard For The Admissibility And Evaluation Of Psychiatric Evidence In War Crimes Prosecutions, Matthew J. Madalo

Matthew J Madalo

"Towards a Standard for the Admissibility and Evaluation of Psychiatric Evidence in War Crimes Prosecutions" explores the nature and use of psychiatric/psychological defenses and evidence in war crimes prosecutions. Part I of the article focuses on the differing goals and overlapping concerns between psychiatry and the law. In the international criminal legal context, the discussion will center on the types of psychiatric evidence and defenses that have been used or are likely to be used in war crimes prosecutions. Part II analyzes the applicable ICTY, ICR and ICC Statutes, Rules of Procedure and Evidence, and relevant United States common law …

Adjudicating Genocide: Is The International Court Of Justice Capable Of Judging State Criminal Responsibility, Dermot M. Groome

Dermot M Groome

Last February, the International Court of Justice issued a judgement adjudicating claims by Bosnia and Herzegovina that Serbia breached the 1948 Genocide Convention – the case marks the first time a state has made such claims against another. The alleged genocidal acts were the same as those that have been the subject of several criminal trials in the Yugoslav Tribunal. The judgment contained several landmark rulings – among them, the Court found that a state, as a state, could commit the crime of genocide and the applicable standard of proof for determining state responsibility is comparable to the standard used …

Regulation And Citizenship For Foreign Spouses In Taiwan―From The Perspective Of Cultural Legal Study, Shu-Chin Grace Kuo

Shu-chin Grace Kuo

In this article, taking a “foreign spouse” as an issue that has made a great impact on the local marriage market, I will use the approach of Cultural Legal Study to explore how the state governs and regulates the marriage of immigrants through written law, in which I primarily focus on Immigration Law and Family Law, legal discourse and the rhetoric of legal reform regarding foreign spouses. In fact, there is one international marriage in every five newly married couples in recent years in Taiwan; most of the foreign spouses are female, and come from China, Indonesia, Vietnam, Thailand and …

The Human Factor: Globalizing Ethical Standards In Drug Trials Through Market Exclusion, Fazal R. Khan

Fazal Khan

This paper proposes a framework of international soft law and domestic drug regulations to a priori remove incentives for unethical clinical drug research in developing nations. The globalization of drug testing is very problematic from a bioethics perspective. While stringent regulations in the U.S. or E.U. may pose an adequate check on unethical research practices, many multinational corporations are engaging in regulatory arbitrage by outsourcing ethically questionable research to countries with less restrictive regulations. Given the tremendous financial reward a blockbuster therapy might generate, there is a strong incentive to move more research and development to countries with even looser …

Regulation And Citizenship For Foreign Spouses In Taiwan―From The Perspective Of Cultural Legal Study, Shu-Chin Grace Kuo

Shu-chin Grace Kuo

In this article, taking a “foreign spouse” as an issue that has made a great impact on the local marriage market, I will use the approach of Cultural Legal Study to explore how the state governs and regulates the marriage of immigrants through written law, in which I primarily focus on Immigration Law and Family Law, legal discourse and the rhetoric of legal reform regarding foreign spouses. In fact, there is one international marriage in every five newly married couples in recent years in Taiwan; most of the foreign spouses are female, and come from China, Indonesia, Vietnam, Thailand and …

From Incitement To Indictment? Prosecuting Iran's President For Advocating Israel's Destruction And Piecing Together Incitement Law's Emerging Analytical Framework, Gregory S. Gordon

Gregory S. Gordon

On October 25, 2005, at an anti-Zionism conference in Tehran, Iran's President, Mahmoud Ahmadinejad, called for Israel to "be wiped off the face of the map" -- the first in a series of incendiary speeches arguably advocating liquidation of the Jewish state. Certain commentators argue that these speeches constitute direct and public incitement to commit genocide. This Article analyzes these arguments by examining the nature and scope of recent groundbreaking developments in incitement law arising from the Rwandan genocide prosecutions. For the first time in the legal literature, the Article pieces together an analytical framework based on principles derived from …

Originalism And The Problem Of Fundament Fairness, R. George Wright

R. George Wright Professor

Originalism is perhaps the most prominent theory of how to interpret the Constitution. Originalism, however, rests upon a process of constitutional drafting and ratification that systematically excluded important demographic groups. Originalism thus rests on a fundamental injustice. Crucially, this fundamental injustice is not confined to the past once the various excluded groups gain the franchise. Originalist theories remain crucially tainted and skewed, particularly with respect to constitutional questions on which originally excluded groups had interests diverging from those of non-excluded groups. The continuing effects of the fundamental unfairness of the constitutional drafting and ratifying process are explored through considering the …

Horizontal Human Rights Law, John H. Knox

John H Knox

One of the most controversial issues in human rights law today is whether it should place duties on individuals, corporations, and other private actors. The usual view of human rights law is that it applies vertically, to protect individuals from governments. Increasingly, however, that view is coming under attack. A UN special rapporteur has drafted a Declaration on Human Social Responsibilities, which would set out duties on all individuals, and a UN body of independent experts has adopted Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, which would set out duties on …

When Obscenity Discriminates, Elizabeth M. Glazer

Elizabeth M Glazer

When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine’s infliction of first generation, or status discrimination against sexual minorities by conflating “sex” – and the prurient representation of sex that constitutes obscenity – and “sexual orientation.” Civil rights lawyers and scholars have turned their attentions away from “first generation” discrimination,” where groups experience discrimination on the basis of their status, and toward “second generation” discrimination, where groups experience discrimination for failing to downplay or …

When Obscenity Discriminates, Elizabeth M. Glazer

Elizabeth M Glazer

When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine’s infliction of first generation, or status discrimination against sexual minorities by conflating “sex” – and the prurient representation of sex that constitutes obscenity – and “sexual orientation.” Civil rights lawyers and scholars have turned their attentions away from “first generation” discrimination,” where groups experience discrimination on the basis of their status, and toward “second generation” discrimination, where groups experience discrimination for failing to downplay or …

Large-Scale Disasters Attacking The American Dream: How To Protect And Empower Homeowners And Lenders, Matthew D. Ekins

Matthew D Ekins

The 2005 hurricane season reminded the world that such catastrophes can and do occur anywhere at anytime. Recovery efforts continue long after tides recede and after-shocks cease. In the context of Hurricane Katrina, this article examines the homeowner-lender relationship to determine risks natural disasters pose to the mortgage industry, likely repercussions a fallout in the mortgage industry may have on the health of the general economy, and what preventative steps have been and may be taken to prevent further economic suffering in a post-catastrophe environment.

International Organizations In Us Courts: Reconsidering The Anachronism Of Absolute Immunity, Steven B. Herz

Steven B. Herz

No abstract provided.

Childsoldiers,Slavery, And The Trafficking Of Children, Susan W. Tiefenbrun

Susan W Tiefenbrun

Despite a proliferation of international human rights treaties, labor laws, and humanitarian laws that should provide children with special protection from abduction into child soldiering, the trafficking of children and their use as soldiers is increasing. This paper will examine the relationship of human trafficking, slavery, and child soldiering. Part I will examine the root causes of the development and expansion of child soldiers. Part II will examine the international and domestic laws that protect against the use of children as soldiers. Part III will examine two literary representations of the use of child soldiers and the significant insights such …

Defending Truth: Legal And Psychological Aspects Of Holocaust Denial, Kenneth Lasson

Kenneth Lasson

Today that form of historical revisionism popularly called “Holocaust denial” abounds worldwide in all its full foul flourish – disseminated not only on Arab streets but in American university newspapers, not only in books, articles, and speeches but in mosques and over the Internet. Can we reject spurious revisionism, or punish purposeful expressions of hatred, and still pay homage to the liberty of thought ennobled by the First Amendment? Are some conflicts between freedom of expression and civility as insoluble as they are inevitable? Can history ever be proven as Truth? This article attempts to answer those questions. Part I …

The Illusion Of Transformative Conflict Resolution: Mediating Domestic Violence In Nicaragua, Leticia M. Saucedo, Raquel Aldana

Leticia M. Saucedo

In this article, we examine the implementation of mediation in domestic violence cases in Nicaragua as a case study of the transnational movement of alternative conflict resolution through rule-of-law reforms across the world. Unlike scholarship about mediation in the United States, the effects of mediation’s global implementation are undertheorized. This article examines the importation of U.S. style mediation and its implementation in domestic violence situations in developing countries such as Nicaragua where traditional legal systems are weaker than those institutionalized in the United States. In particular, we evaluate mediation as applied in Mulukukú, an isolated community in the rural north …

Debt To Odious Finance: Avoiding The Externalities Of A Functional Odious Debt Doctrine, Christiana Ochoa

Christiana Ochoa

Christiana Ochoa* Abstract The Odious Debt Doctrine has limped along in the legal imagination for over 100 years and by some estimates even since Aristotle. In recent years, and particu-larly in recent months, legal theorists and practitioners have attempted to define the contours and details of this controversial and undeveloped doctrine. This Article looks at the generally agreed upon characteristics of the odious debt doctrine and considers the spill-over effects and externalities that would ensue if this doctrine were ever made regularly operative. Many commentators have noted the in-creased costs of borrowing and lending that would result from the doctrine. …

The Good, The Bad, And The Ugly: Moral Agency And The Role Of Victims In Reparations Programs, Carlton Waterhouse

Carlton Waterhouse

ABSTRACT Despite the growing interest in reparations, at the domestic and international level, little attention has been given to the role of victims in the design and implementation of reparations programs. Instead, most programs and commentators place emphasis upon the apology, recompense, or restitution required by former wrongdoers rather than the restoration and recovery of victims. This prevailing approach neglects the critical role that communities and individuals suffering from past abuses should play in order to reestablish their personal well being and societal standing. This methodology replicates the past subordination of victims by rendering them the passive recipients of government …

Is There A Progresssive Alternative To Conservative Welfare Reform?, Philip L. Harvey

Philip L. Harvey

Progressive scholars have been strongly critical of conservative trends in the design and administration of public assistance programs in market societies, but it is far from clear what they would propose instead. Believing that it takes something to replace something, this article assess two different progressive strategies for eliminating poverty and promoting individual freedom that could serve as replacements for existing public assistance regimes. The first proposal is that all members of society be guaranteed an unconditional basic income without imposing any work requirements in exchange for the benefit. Such a benefit could be provided either in the form of …