Law Commons^™

Refocusing The United States’ Perspective Of China And The South China Sea, Gaaret Marinelli

San Diego International Law Journal

There is a shift in world power that can be felt by world leaders and ordinary citizens alike, and its movement will realign the rest of the world. Since its rise to a great world power after World War II, the United States has maintained its position as the world’s predominant leader, both militarily and economically. However, this dominance is threatened by a formidable challenger. A rapidly ascending China is challenging the United States’ military and economic power, but the United States is not adequately positioned to meet this challenge. Some scholars theorize that China and the United States are …

Re-Conceptualizing The International Human Right To Health: An Analysis Of The Trends In Developing And Developed Countries’ Responses To Substance Use Disorders, Leonard Mukosi

San Diego International Law Journal

This Article juxtaposes addiction paradigms seen in the United States of America and Zimbabwe, two countries with diametrically dissimilar political, economic, and social systems. Thus, an insight is provided by this Article into how developing and developed countries are transitioning from punitive to curative approaches in addressing the problem of drug addiction. Positing that addiction is a health condition, this Article recognizes the optimum realization of the addict’s right to health is best met if the required international standards of health are implemented nationally to insure, treat, and evaluate addiction like other chronic illnesses.

Drug addiction is a brain disease …

Designing A Standard Assets Registration System To Reduce Corruption In Afghanistan: What Afghanistan Can Learn From Examining Model Assets Declaration Systems, Zalmay Mallyar

San Diego International Law Journal

Corruption in Afghanistan has emerged as one the greatest challenges to strengthening national and subnational governance and rebuilding a transparent and accountable system public services. One way that corrupt actors in Afghanistan have perpetuated corrupt practices is through hiding assets. Currently, Afghanistan has no specific mechanism or system for implementing or overseeing the declaration of assets—even though it has committed to creating an assets declaration criteria system as a means to fight corruption under Article 154 of the Afghan Constitution, Article 12 of the Anti-Corruption Strategy act, and various international treaties. This paper recommends that that Afghanistan seek to create …

Remedies For United States-Mexico Cross-Border Incidents, Sebastian A. Navarro

San Diego International Law Journal

Countries that share borders inevitably encounter issues with each other. The United States and Mexico, however, face a uniquely complicated issue: United States federal officers standing in United States territory have shot and killed individuals standing in Mexican territory, generating much tension between the United States and Mexico. Some believe that a remedy for cross-border incidents is best addressed through litigation in United States federal courts, particularly through common law causes of action that afford monetary compensation based on claims of constitutional violations. This issue was recently addressed in part by the United States Supreme Court.

Nonetheless, there are numerous …

Fish Don't Litter In Your House: Is International Law The Solution To The Plastic Pollution Problem?, Taylor G. Keselica

Pace International Law Review

This article addresses the complex issue of plastic pollution—focusing on ocean plastics. Specifically, this article examines the ocean plastics problem, critiques current binding and non-binding international environmental law surrounding ocean plastics, hazardous wastes, and pollution, and proposes a more effective solution to the ocean plastics problem. Section I provides a basic history of the creation of plastics and discusses plastics as they are used today. Section II considers the concerns surrounding ocean plastics, focusing on impacts of plastic on marine ecosystems as well as human health effects. Section III, IV, and V discuss the ongoing attempts to address the ocean …

Right To Health In Gats: Can The Public Health Exception Pave The Way For Complementarity?, Swati Gola

Pace International Law Review

This paper demonstrates how a right to health approach in the interpretation of the public health exception outlined in GATS Article XIV(b) can bring about a harmonious application of international human rights and international trade law regimes. Focusing on the interpretive value of the right to health for the public health exception in GATS, it examines whether a WTO Member, who has committed itself under GATS to fully liberalize all service sectors that have implications for health (e.g., hospital and other healthcare services), still retains the regulatory space to undertake measures to fulfill their right to health obligations and can …

An Australian Conundrum: Genomic Technology, Data, And The Covidsafe App, David Morrison, Patrick T. Quirk

Pace International Law Review

This paper examines the difficulties that have arisen in Australia in the use of its contact-tracing app. We examine the privacy implications around the use of the app, the wider economic imperative, and the balancing of those concerns against the health threat of the COVID-19 pandemic. We posit that default options are superior in times of emergency and rather than begging for the adoption of lifesaving technology, we suggest that the evidence gathered by behavioral economists provides an apposite and powerful alternative worthy of consideration.

The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas

Pace International Law Review

The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while …

Aamodt Litigation Settlement Completion, United States 116th Congress

Native American Water Rights Settlement Project

Amends the Aamodt Litigation Settlement Act (Pub. L. 11-291) to increase funding for Pueblo Water Facilities from $106.4 million to $243.4 million and making available $137 million for Regional Water System funding.

Navajo-Utah Water Rights Settlement Act, United States 116th Congress

Native American Water Rights Settlement Project

The purposes of this section are: (1) to achieve a fair, equitable, and final settlement of all claims to water rights in the State of Utah for (A) the Navajo Nation and (B) the United States, for the benefit of the Nation; (2) to authorize, ratify, and confirm the agreement entered into by the Nation and the State, to the extent that the agreement is consistent with this section; (3) to authorize and direct the Secretary (A) to execute the agreement and (B) to take any actions necessary to carry out the agreement in accordance with this section; and (4) …

Montana Water Rights Protection Act, United States 116th Congress

Native American Water Rights Settlement Project

The purposes of this Act are: (1) to achieve a fair, equitable, and final settlement of claims to water rights in the State of Montana, and in recognition of article I, and section 3 of article IX, of the Montana State Constitution for (A) the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation; and (B) the United States, for the benefit of the Tribes and allottees; (2) to authorize, ratify, and confirm the water rights compact entered into by the Tribes and the State, to the extent that the Compact is consistent with this Act; (3) to authorize …

Human-Machine Teaming And Its Legal And Ethical Implications, Jim Q. Chen, Thomas Wingfield

Military Cyber Affairs

Humans rely on machines in accomplishing missions while machines need humans to make them more intelligent and more powerful. Neither side can go without the other, especially in complex environments when autonomous mode is initiated. Things are becoming more complicated when law and ethical principles should be applied in these complex environments. One of the solutions is human-machine teaming, as it takes advantage of both the best humans can offer and the best that machines can provide. This article intends to explore ways of implementing law and ethical principles in artificial intelligence (AI) systems using human-machine teaming. It examines the …

When Vertical Is Horizontal: How Vertical Mergers Lead To Increases In “Effective Concentration”, Serge Moresi, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This article explains the inherent loss of an indirect competitor and reduction in competition when a vertical merger raises input foreclosure concerns. We then calculate a measure of the effective increase in the HHI measure of concentration for the downstream market, and we refer to this “proxy” measure as the “dHHI.” We derive the dHHI measure by comparing the pricing incentives and associated upward pricing pressure (“UPP”) involved in two alternative types of acquisitions: (i) vertical mergers that raise unilateral input foreclosure concerns (and the associated vertical GUPPI measures), and (ii) horizontal acquisitions of partial ownership interests among …

December 25, 2020: Merry Christmas To All, Bruce Ledewitz

Hallowed Secularism

Blog post, “Merry Christmas to All“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Long Shadow Of Jacobson V. Massachusetts: Public Health, Fundamental Rights, And The Courts, Daniel Farber

San Diego Law Review

The COVID-19 pandemic struck the United States in early 2020. The coronavirus prompted public health mandates without precedent for at least a century. Some states almost entirely locked down. These measures inevitably impinged on activities that the Constitution would normally protect. In confronting these cases, many courts have turned to a 1905 Supreme Court case decision, Jacobson v. Massachusetts, often considered the leading case in public health law. There is little agreement, however, about how that decision fits into the current framework of constitutional law. As a result, courts have differed widely in the degree of deference they give …

We Are All Gig Workers Now: Online Platforms, Freelancers & The Battles Over Employment Status & Rights During The Covid-19 Pandemic, Orly Lobel

San Diego Law Review

Since the early days of the Coronavirus pandemic, unemployment rates leapt to the highest they have been since 1975. Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act in March 2020, a $2 trillion relief package, offering augmented unemployment relief not only to employees but also to the self-employed, including gig workers. The Families First Coronavirus Response Act (FFCRA) was passed to provide sick leave in the form of tax credits that also extended to the self-employed. Beyond the governmental responses, platform companies offered new limited relief to their workers in the form of sick leave, even as …

Speaking Truth To Power And Power Speaking Truth: Accurate And Reliable Information In A Pandemic, Leslie E. Gerwin

San Diego Law Review

In this Article, I offer some preliminary ideas for how we might engage in a collective project to enable our government to improve its capacity to help us understand and respond to a future existential health threat. I first deconstruct the government informing process to analyze the points of information contestation based upon the realities we are experiencing. I then outline a project to create a space in which respected experts mediate knowledge claims and moderate contested opinions regarding the human risk of, and government response to, a public health threat. This idea embraces the ambitious goal of educating and …

Deported Veterans: The Unintended Consequences Of “Good Moral Character”, Jonathan Deras

Master's Theses

The purpose of this research is to argue that U.S. immigration policy, specifically the 1996 IIRIRA (also known as IIRAIRA), needs to change regarding the legal treatment of immigrant U.S. military veteran deportees due to the following concepts. The first concept is to articulate how the criminalization of immigration, and how the military system intersects to facilitate the Deportation of U.S veterans. A key concept in this analysis is the standard of “good moral character” set by the U.S. government that enlistees need to meet to be accepted into the military; this standard is also used against immigrant veterans during …

Upah Proses Dalam Pemutusan Hubungan Kerja, Fitriana Gunadi

Jurnal Hukum & Pembangunan

Wages is one of the elements in the employment relationship between an employer and a worker/employee based on the employment agreement. In accordance with the fundamental principle that is basically applicable to every workers/employees, wages will not be paid by employers if the workers/employees do not perform work (no work no pay). However in its development, there is an issue in the application of such principle since the ruling of the Decision of the Constitutional Court of Republic of Indonesia, which obliges employers to pay the wages to workers/employees who do not work because they are in the process of …

Status Kepemilikan Dan Pemanfaatan Tanah Grondkaart Di Stasiun Depok Baru, Lenteng Agung, Dan Tanjung Barat, Sulistiowati Sulistiowati, Nurhasan Ismail, Taufiq El Rahman

Jurnal Hukum & Pembangunan

The disputes over land ownership and utilization of Grondkaart for Railway activities between the government and PT KAI should not have occurred due to both having the same vested interest for the state. However, the reality shown that land ownership dan agreement status on land use with the third party. Through the qualitative analysis, the research findings: First, land originating from Grondkaart at the location still belongs to the goverment due to the land still holding the status of the right to use or Hak Pakai during the course of the time the land used by the Government and the …

Covid-19 And Preventing Harm To Vulnerable Children, Jessica K. Heldman, Margaret A. Dalton, Robert C. Fellmeth

San Diego Law Review

Although COVID-19 mercifully seems to affect children less severely than adults, children are far from immune from the impacts of the virus. Public health orders closing schools and businesses, cancelling events, and keeping children at home have been disruptive and distressing to many children and families. But for children who rely on government entities for protection, care, custody, and services, the effects of the public health orders can be devastating. COVID-19 and the response to it has serious implications for the safety, well-being, and development of these vulnerable children—those within the child welfare, juvenile justice, and special education systems. All …

More Than A Mask: Stay-At-Home Orders And Religious Freedom, Dorit Rubinstein Reiss, Madeline Thomas

San Diego Law Review

COVID-19 has changed our legal universe. Many states are responding by issuing stay-at-home orders, and as cases rise, may have to prohibit gatherings again. One issue states and courts have to grapple with is the relationship between stay-at-home orders and religion. Stay-at-home orders that require closing down churches may be challenged as violating the First Amendment’s guarantee of religious freedom. Under our current jurisprudence, these cases may be handled under a highly deferential standard or under strict scrutiny—depending on the specific order in question, as well as on whether the state has a Religious Freedom Restoration Act (RFRA). We recommend, …

Crisis Standards Of Care And State Liability Shields, Valerie Gutmann Koch

San Diego Law Review

The COVID-19 pandemic has overwhelmed many U.S. systems—including the already-strained medical system—intended to protect and care for its citizens. In the United States, New York became the first epicenter of the pandemic, accounting for approximately five percent of global COVID-19 cases by March 2020. Hospitals, health care providers, and policymakers soon recognized that, in New York and beyond, they faced a bleak reality that—if the spread of the virus could not be controlled—there would soon not be enough ventilators for all patients who needed them, despite hospitals practicing “surge capacity” to reduce the need for ventilators by canceling or postponing …

The Covid Cases: A Preliminary Assessment Of Judicial Review Of Public Health Powers During A Partisan And Polarized Pandemic, Wendy E. Parmet

San Diego Law Review

In response to the very real possibility that there will be insufficient resources to properly respond to the COVID-19 pandemic, states have been developing crisis standard of care plans, which may authorize the prioritization of patients for scarce resources based on changing circumstances and increased demands. Due to the dearth of necessary resources and trained professionals during a public health emergency, the standard of care that clinicians may be able to provide during the COVID-19 pandemic may, by necessity, depart significantly from standard nonemergency medical practice. Adhering to crisis standards of care may expose health care providers and entities to …

Prisons And Pandemics, Camila Strassle, Benjamin E. Berkman

San Diego Law Review

This Article focuses on how to balance public health, public safety, and incarcerated people’s legal rights when implementing a program for early release from confinement. Ethical, epidemiological, and legal arguments all point to a need for an immediate reduction in the incarcerated population. However, this leaves open several points of reasonable disagreement about how to manage early release. These include how to set priorities for processing and releasing individuals across the country. For example, officials could prioritize screening individuals who are housed in facilities that have been hit hard by infection; or by screening individuals who have a safe place …

V.57-4, 2020 Masthead

San Diego Law Review

No abstract provided.

Perlindungan Data Pribadi Penerima Pinjaman Dalam Transaksi Pinjam Meminjam Uang Berbasis Teknologi Informasi (Peer To Peer Lending), Hendrawan Agusta

Jurnal Hukum & Pembangunan

The development of information technology is very rapid, the collaboration between information technology and various fields of life bring in to various kinds of innovations that make peoples lives easier. Innovations in information technology bring in to new business models which in turn can produce efficiency for the community. The information technology revolution continues to grow and now entering the financial sector which is highly regulated. Collaboration between information technology and finance bring in to Financial Technology (Fintech), which is information technology-based money-lending (Peer to Peer Lending/P2P Lending). It is easier for people to access their financial needs through P2P …

Sistem Manajemen Mutu Pltn Dari Perspektif Regulasi Di Indonesia Dan Standar Yang Berlaku, Fery Putrawan Cusmanri

Jurnal Hukum & Pembangunan

Investment in the construction of nuclear power plants is an interesting investment. This is indicated by the emergence of investment plans for the construction of nuclear power plants in Indonesia. Communities and industries that make electricity a primary need will certainly welcome the potential energy offered by nuclear power plants. However, on the other hand the quality of NPP energy services must of course be maximized. This paper was made to provide a brief description of the management system requirements that need to be met by the NPP permit applicant along with additional best practices from the ISO 9001: 2015 …

Problematika Pengaturan Mengenai Bentuk Badan Usaha Jasa Penunjang Tenaga Listrik Di Indonesia, Vioxcy Ananta Putra, Eny Sulistyowati, Muh Ali Masnun

Jurnal Hukum & Pembangunan

Legal development electricity growing rapidly as evidenced by the amount of law and regulations produced by both legislative and executive that govern all aspects about electricity that resulting in regulatory inflation in electricity law. The consequences of regulatory inflation in electricity law is the potential for legal unsynchronization between law and regulations in electricity sector. One of the potential for legal unsynchronization in the electricity sector is the regulation regarding the scope and form of business entities supporting electricity power in Law of the Republic of Indonesia Number 30 of 2009 on Electricity, Regulation of the Goverment of the Republic …

Parental Responsibility Of Children Crime In Indonesian Criminal Adat Law, Ahmad Irzal Fardiansyah, Sigid Suseno, Mien Rukmini, Lies Sulistiani

Jurnal Hukum & Pembangunan

Children who are in conflict with the law cannot be separated from the responsibilities of parents as the first party in the childs environment. The relationship between parents and children is a harmonized relationship from a strong emotional connection on the basis of blood relations. This situation makes parents unable to release and be released responsibility for their childrens behavior. When children are faced with the law, policies to take over the responsibility of supervising children from parents, by denying that parents actually have the opportunity to deal with the problems of children who are dealing with the law are …