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Articles 1 - 12 of 12
Full-Text Articles in Law
The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf
The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf
San Diego International Law Journal
The piece examines the treatment of the Fourth Amendment in immigration courts by surveying its jurisprudential history in those courts and then analyzes the judicial responses thereto. Disparities among circuit court rulings add to the confusion and unpredictability typical of Immigration Court decisions. Finally, the article discusses the difficulties raised by the divergent circuit court opinions and offers suggestions as to how we may resolve these difficulties in accordance with the Constitution's requirement of fair play.
Partitioning Paternity: The German Approach To A Disjuncture Between Genetic And Legal Paternity With Implications For American Courts, Shelly Ann Kamei
Partitioning Paternity: The German Approach To A Disjuncture Between Genetic And Legal Paternity With Implications For American Courts, Shelly Ann Kamei
San Diego International Law Journal
This paper will address the strengths and weaknesses of the German approach as well as the potential use of this approach by American states, with particular emphasis given to the conflict between the right to know one’s origins and a child’s right to care and support. Part II discusses the challenge of defining legal paternity in an age of genetic certainty. It will first give a brief explanation of how courts have used functional–social and genetic considerations in defining legal paternity. It will then evaluate the legal implications of this approach on the rights of the father, mother, and child. …
Sex Representation On The Bench: Legitimacy And International Criminal Courts, Nienke Grossman
Sex Representation On The Bench: Legitimacy And International Criminal Courts, Nienke Grossman
All Faculty Scholarship
This essay examines the relationship between legitimacy and the presence of both male and female judges on international criminal court benches. It argues that sex representation – an approximate reflection of the ratio of the sexes in the general population – on the bench is an important contributor to legitimacy of international criminal courts. First, it proposes that sex representation affects normative legitimacy because men and women bring different perspectives to judging. Consequently, without both sexes, adjudication is inherently biased. Second, even if one rejects the proposition that men and women "think differently", sex representation affects sociological legitimacy because sex …
It's A Bird, It's A Plane, It's Jus Cogens!, Anthony D'Amato
It's A Bird, It's A Plane, It's Jus Cogens!, Anthony D'Amato
Faculty Working Papers
What we require—like the third bowl of soup in the story of the three bears—is a theory of jus cogens that is Just Right. I do not know if such a theory is possible. I don't even know if one is conceivable. But if someone conceives it, that person deserves the very next International Oscar. To qualify for the award, the theory must answer the following questions:
Whales: Their Emerging Right To Life, Anthony D'Amato, Sudhir K. Chopra
Whales: Their Emerging Right To Life, Anthony D'Amato, Sudhir K. Chopra
Faculty Working Papers
We have contended in this article that the evolution of the opinio juris of nations has encompassed five, and perhaps six, inexorable qualitative stages: free resource, regulation, conservation, protection, preservation and entitlement. We have argued that assigning whales an entitlement to life is the consequence of an emerging humanist right in international law — an example of the merging of the "is" and the "ought" of the law in the process of legitimization
Defending A Person Charged With Genocide, Anthony D'Amato
Defending A Person Charged With Genocide, Anthony D'Amato
Faculty Working Papers
I was asked to represent Dr. Milan Kovacevic who had been indicted by the International Criminal Tribunal for Yugoslavia ("ICTY") for complicity in genocide. Had he lived through it, his trial would have been the first by the ICTY for the crime of genocide. I would like to describe some of the tribulations of defending clients accused of grave humanitarian offenses in the ICTY.
International Law And Rawls' Theory Of Justice, Anthony D'Amato
International Law And Rawls' Theory Of Justice, Anthony D'Amato
Faculty Working Papers
The complexity of present-day international law stands in an uneasy relation to the scheme of justice propounded by Rawls. The problems facing international lawyers may pose a conceptual threat to some of the fundamental bases upon which Rawls builds his entire theoretical edifice.
The Role Of Victims In The First Trial Of The International Criminal Court, Aldo Zammit Borda
The Role Of Victims In The First Trial Of The International Criminal Court, Aldo Zammit Borda
Aldo Zammit Borda
The Rome Statute (RS) of the International Criminal Court (ICC) is a milestone for the role it accords to victims in international criminal proceedings. The provisions on victims’ participation in the RS system have been applied for the first time in the case of Mr Thomas Lubanga Dylio. This paper takes the view that a number of significant interlocutory pronouncements on victims’ participation have already been made by the ICC Pre-Trial, Trial and Appeals Chambers which, as such, deserve further analysis. The paper will firstly provide a brief overview of developments with regard to victims’ participation in the area of …
Introductory Note To The Supreme Court Of The United States: Noriega V. Pastrana, Kenneth Anderson
Introductory Note To The Supreme Court Of The United States: Noriega V. Pastrana, Kenneth Anderson
Articles in Law Reviews & Other Academic Journals
No abstract provided.
International Human Rights At The Close Of The Twentieth Century, Anthony D'Amato
International Human Rights At The Close Of The Twentieth Century, Anthony D'Amato
Faculty Working Papers
Speculates as to why the human-rights revolution is increasingly likely to dominate our foreign-policy attentions in the decades to come. Ventures some predictions, of particular interest perhaps to international lawyers, about where the cause of international human rights is heading.
The Coerciveness Of International Law, Anthony D'Amato
The Coerciveness Of International Law, Anthony D'Amato
Faculty Working Papers
This article shows that an important part of the deep structure of international law is its self-referential strategy of employing its own rules to protect its rules. International law tolerates a principled violation of its own rules when necessary to keep other rules from being broken. It extends a legal privilege to states to use coercion against any state that has selfishly attempted to transgress its international obligations. International law thus protects itself through the opportunistic deployment of its own rules.
The Concept Of Special Custom In International Law, Anthony D'Amato
The Concept Of Special Custom In International Law, Anthony D'Amato
Faculty Working Papers
General customary international law contains rules, norms, and principles that seem applicable to any state and not to a particular state or an exclusive grouping of states. For example, norms relating to the high seas, to airspace and outer space, to diplomatic immunities, to the rules of warfare, and so forth, apply equally to all states having occasion to be concerned with these areas. Similarly, the facts of a given case may suggest exclusively the application of general custom—such as cases concerning collision on the high seas between ships of different countries, cases involving general principles of international law, cases …