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Articles 1 - 30 of 43
Full-Text Articles in Law
The Progression And Evolution Of International Law Scholarship Over The Past 50 Years: Some Quantitative Observations, Donald J. Kochan
The Progression And Evolution Of International Law Scholarship Over The Past 50 Years: Some Quantitative Observations, Donald J. Kochan
Donald J. Kochan
The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow
The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow
Kevin Crow
Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel
Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel
Nehal A. Patel
AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …
Democracy And Torture, Patrick A. Maurer
Democracy And Torture, Patrick A. Maurer
Patrick A Maurer
September 11th spawned an era of political changes to fundamental rights. The focus of this discussion is to highlight Guantanamo Bay torture incidents. This analysis will explore the usages of torture from a legal standpoint in the United States.
"Should I Stay Or Should I Go Now": Analyzing The Federal Prosecution Of Aliens Who Attempt To Stop Living Unlawfully In The United States, Sergio Garcia
Sergio Garcia
Abstract: Title 8 U.S.C. § 1326(a) makes it a crime for a previously deported alien to be “found in” the United States without the Attorney General’s consent. There is, however, a conflict among the circuits over whether an illegal alien is “found in” the United States for purposes of § 1326 when he voluntarily travels to a port of entry and is detained there by immigration authorities while he is seeking to leave the country. The circuit courts bordering Mexico and Canada disagree on this issue as a matter of law, as well as a matter of Congressional intent. This …
The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad
The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad
Zeina Jallad
The Power of the Body:
Analyzing the Logic of Law and Social Change in the Arab Spring
Abstract:
Under conditions of extreme social and political injustice - when human rights are under the most threat - rational arguments rooted in the language of human rights are often unlikely to spur reform or to ensure government adherence to citizens’ rights. When those entrusted with securing human dignity, rights, and freedoms fail to do so, and when other actors—such as human rights activists, international institutions, and social movements—fail to engage the levers of power to eliminate injustice, then oppressed and even quotidian …
The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan
Trevor J Calligan
No abstract provided.
The Eu's Human Rights Obligations Towards Distant Strangers, Aravind Ganesh
The Eu's Human Rights Obligations Towards Distant Strangers, Aravind Ganesh
Aravind Ganesh
The EU has perfect human rights obligations towards distant strangers. My argument has two limbs: Firstly, in numerous policy areas, the EU asserts jurisdiction via ‘territorial extension’, which combines territorially limited enforcement jurisdiction with a claim of geographically unbounded prescriptive jurisdiction. Doctrinally, this strongly resembles the Lotus principle, and viewed analytically, amounts to a claim not just of power but of political authority. Thus, the EU creates not just factual effects, but legal effects abroad. Secondly, assertions of political authority, even if only de facto, give rise to perfect human rights obligations. I illustrate this by reference to the Strasbourg …
Do We Know How To Punish?, Benjamin L. Apt
Do We Know How To Punish?, Benjamin L. Apt
Benjamin L. Apt
A number of current theories attempt to explain the purpose and need for criminal punishment. All of them depend on some sort of normative basis in justifying why the state may penalize people found guilty of crimes. Yet each of these theories lacks an epistemological foundation; none of them explains how we can know what form punishments should take. The article analyses the epistemological gaps in the predominant theories of punishment: retributivism, including limited-retributivism; and consequentialism in its various versions, ranging from deterrence to the reparative theories such as restorative justice and rehabilitation. It demonstrates that the common putative epistemological …
Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence
Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence
Michael Anthony Lawrence
This Article looks back to the United States Supreme Court’s jurisprudence during the years 1953-1969 when Earl Warren served as Chief Justice, a period marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association and religion, voting rights, and more. The Article further discusses the constitutional bases for the Warren Court’s decisions, principally the Fourteenth Amendment equal protection and due process clauses.
The Article explains that the Warren Court’s equity-based jurisprudence closely resembles, at its root, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 work, A Theory of …
Discrimination In Customer Segmentation Marketing Practices, Jude A. Thomas
Discrimination In Customer Segmentation Marketing Practices, Jude A. Thomas
Jude A Thomas
Customer segmentation is a powerful analytical marketing practice that is employed by a wide range of businesses to segregate customers with similar characteristics into subgroups in order to inform operational business processes. Such practices allow firms to better allocate their resources in order to form more profitable customer relationships, but they also have the capacity to lead to unfair discriminatory impact upon customer groups. Current legislation is largely unprotective of customers so positioned, but recent trends in the insurance and lending industries suggest that a broader application of anti-discrimination laws could foretell a future of greater restrictions on the implementation …
Adam Smith's Lectures On Jurisprudence-Justice, Law, And The Moral Economy, Walter J. Kendall Lll
Adam Smith's Lectures On Jurisprudence-Justice, Law, And The Moral Economy, Walter J. Kendall Lll
Walter J. Kendall lll
Adam Smith, a leading thinker of the British Enlightenment, is universally known as the author of the Wealth of Nations and an economic theorist. He is less well known as the author of a Theory of Moral Sentiments and an ethicist. And known almost not at all for his Lectures on Jurisprudence or as a legal theorist. This essay looks at Smith’s thought through the lens of his Lectures on Jurisprudence. It highlights the almost paradoxical positions Smith had on self-interest, markets, government, and economic expansion. Obscured by his reputation and these paradoxes are his views on justice, equality, and …
Nigger Manifesto: Ideological And Intellectual Discrimination Inside The Academy, Ellis Washington
Nigger Manifesto: Ideological And Intellectual Discrimination Inside The Academy, Ellis Washington
Ellis Washington
Draft – 22 March 2014
Nigger Manifesto
Ideological Racism inside the American Academy
By Ellis Washington, J.D.
Abstract
I was born for War. For over 30 years I have worked indefatigably, I have labored assiduously to build a relevant resume; a unique curriculum vitae as an iconoclastic law scholar zealous for natural law, natural rights, and the original intent of the constitutional Framers—a Black conservative intellectual born in the ghettos of Detroit, abandoned by his father at 18 months, who came of age during the Detroit Race Riots of 1967… an American original. My task, to expressly transcend the ubiquitous …
Behavioral International Law, Tomer Broude
Behavioral International Law, Tomer Broude
Tomer Broude
Economic analysis and rational choice have in the last decade made significant inroads into the study of international law and institutions, relying upon standard assumptions of perfect rationality of states and decision-makers. This approach is inadequate, both empirically and in its tendency towards outdated formulations of political theory. This article presents an alternative behavioral approach that provides new hypotheses addressing problems in international law while introducing empirically grounded concepts of real, observed rationality. First, I address methodological objections to behavioral analysis of international law: the focus of behavioral research on the individual; the empirical foundations of behavioral economics; and behavioral …
"Toiling In The Danger And In The Morals Of Despair": Risk, Security, Danger, The Constitution, And The Clinician's Dilemma, Michael L. Perlin, Alison Julia Lynch
"Toiling In The Danger And In The Morals Of Despair": Risk, Security, Danger, The Constitution, And The Clinician's Dilemma, Michael L. Perlin, Alison Julia Lynch
Michael L Perlin
Abstract: Persons institutionalized in psychiatric hospitals and “state schools” for those with intellectual disabilities have always been hidden from view. Such facilities were often constructed far from major urban centers, availability of transportation to such institutions was often limited, and those who were locked up were, to the public, faceless and often seen as less than human.
Although there has been regular litigation in the area of psychiatric (and intellectual disability) institutional rights for 40 years, much of this case law entirely ignores forensic patients – mostly those awaiting incompetency-to-stand trial determinations, those found permanently incompetent to stand trial, those …
“Friend To The Martyr, A Friend To The Woman Of Shame”: Thinking About The Law, Shame And Humiliation, Michael L. Perlin, Naomi Weinstein
“Friend To The Martyr, A Friend To The Woman Of Shame”: Thinking About The Law, Shame And Humiliation, Michael L. Perlin, Naomi Weinstein
Michael L Perlin
The need to pay attention to the law‘s capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior has increased exponentially as we begin to also take more seriously international human rights mandates, especially – although certainly not exclusively – in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person...."
Humiliation and shaming, …
The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson
The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson
Hillary A Henderson
Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …
Masculinity And Title Ix: Bullying And Sexual Harassment Of Boys In The American Liberal State, Nancy C. Cantalupo
Masculinity And Title Ix: Bullying And Sexual Harassment Of Boys In The American Liberal State, Nancy C. Cantalupo
Nancy C Cantalupo
This article examines two recent “hot topics” related to Title IX of the Educational Amendments of 1972 (“Title IX”): sex-segregated schooling and gender-based violence including sexual harassment and bullying. First, in 2006, the Department of Education suspended Title IX’s prohibition of sex-segregated education in K-12 public schools amidst some sex segregation advocates’ claims that a “feminized” educational system causes sex discrimination against boys. Second, over the last decade an increasing number of boys have sued or complained against their schools for sex discrimination in the form of gender-based violence (including same-sex bullying, sexual harassment, hazing, and sexual violence).
This article …
Four Challenges Confronting A Moral Conception Of Universal Human Rights, Eric Blumenson
Four Challenges Confronting A Moral Conception Of Universal Human Rights, Eric Blumenson
Eric Blumenson
This Essay describes some fundamental debates concerning the nature and possibility of universal human rights, conceived as a species of justice rather than law. It identifies four claims entailed by such rights and some significant problems each claim confronts. The designation “universal human rights” explicitly asserts three of them: paradigmatic human rights purport to be (1) universal, in that their protections and obligations bind every society, regardless of its laws and mores; (2) human, in that the rights belong equally to every person by virtue of one’s humanity, regardless of character, social standing, disabilities, or other individual attributes; and (3) …
Surveillance, Speech Suppression And Degradation Of The Rule Of Law In The “Post-Democracy Electronic State”, David Barnhizer
Surveillance, Speech Suppression And Degradation Of The Rule Of Law In The “Post-Democracy Electronic State”, David Barnhizer
David Barnhizer
None of us can claim the quality of original insight achieved by Alexis de Tocqueville in his early 19th Century classic Democracy in America in his observation that the “soft” repression of democracy was unlike that in any other political form. It is impossible to deny that we in the US, the United Kingdom and Western Europe are experiencing just such a “gentle” drift of the kind that Tocqueville describes, losing our democratic integrity amid an increasingly “pretend” democracy. He explained: “[T]he supreme power [of government] then extends its arm over the whole community. It covers the surface of society …
U.S. Institutionalized Torture With Impunity: Examining Rape And Sexual Abuse In Custody Through The Icty Jurisprudence, Allison Rogne
U.S. Institutionalized Torture With Impunity: Examining Rape And Sexual Abuse In Custody Through The Icty Jurisprudence, Allison Rogne
Allison Rogne
It is a well-established principle, both domestically and internationally, that rape is torture when suffered as part of confinement. It is also well documented, both domestically and internationally, that rape is rampant in U.S. prisons. And it is well established, both domestically and internationally, that those who torture should not do so with impunity, that that impunity is an affront to civilization and the human rights principles to which we all strive. And yet, in U.S. prisons, shocking numbers of women are systematically raped and sexually abused by those that would rehabilitate them. Female prisoners are victims of vaginal and …
The Issue Is Being Intersex: The Current Standard Of Care Is A Result Of Ignorance, And It Is Amazing What A Little Analysis Can Conclude., Marla J. Ferguson
The Issue Is Being Intersex: The Current Standard Of Care Is A Result Of Ignorance, And It Is Amazing What A Little Analysis Can Conclude., Marla J. Ferguson
marla j ferguson
The Constitution was written to protect and empower all citizens of the United States, including those who are born with Disorders of Sex Development. The medical community, as a whole, is not equipped with the knowledge required to adequately diagnose or treat intersex babies. Intersex simply means that the baby is born with both male and female genitalia. The current method that doctors follow is to choose a sex to assign the baby, and preform irreversible surgery on them without informed consent. Ultimately the intersex babies are mutilated and robbed of many of their fundamental rights; most notably, the right …
Global Poverty And The Right To Development In International Law, Patrick Macklem
Global Poverty And The Right To Development In International Law, Patrick Macklem
Patrick Macklem
This Article advances an account of the right to development as a legal instrument that holds the international legal order accountable for its role in the production and reproduction of global poverty. It first distinguishes moral conceptions of human rights, as instruments that protect universal features of humanity, from legal conceptions, which tie their existence to their specification in international instruments promulgated in compliance with international legal norms governing the creation of legal rights and obligations. Despite textual ambiguities in the various instruments in which it finds expression, the right to development vests in individuals and communities who have yet …
The Right To Life Of The Unborn Child And The Case Artavia Murillo And Others V. Costa Rica, Emercio J. Aponten Núñez Phd
The Right To Life Of The Unborn Child And The Case Artavia Murillo And Others V. Costa Rica, Emercio J. Aponten Núñez Phd
Emercio J Aponten Núñez PHD
No abstract provided.
Punishment And Rights, Benjamin L. Apt
Punishment And Rights, Benjamin L. Apt
Benjamin L. Apt
Prevalent theories of criminal punishment lack a rationale for the precise duration and nature of state-ordered criminal punishment. In practice, too, criminal penalization suffers from inadequate evidence of punitive efficacy. These deficiencies, in theory and in fact, would not be so grave were the state to enjoy unfettered power over the disposition of criminal penalties. However, in societies that recognize legal rights, criminal punishments must be consistent with rights. Efficacy, even where demonstrable, does not suffice as a legal justification for punishment. This article analyzes the source of rights and how they function as primary rules in a legal system. …
Judicialization Of Socio-Economic Rights In Brazil: The Subversion Of An Egalitarian Discourse, Vanice L. Valle
Judicialization Of Socio-Economic Rights In Brazil: The Subversion Of An Egalitarian Discourse, Vanice L. Valle
Vanice L. Valle
This article describes the historical origins of the Brazilian constitutional frame of socio-economic rights, and the political context that lead to their enforcement through the Judiciary. Based in a particular constitutional text that asserts socioeconomic rights’ immediate enforceability, the present theoretical comprehension is that they establish the State’s obligation to provide goods and services. The consequence is an intense judicialization of rights such as health, education and housing, which results in a wide exercise of judicial activism in controlling public policies – with the Judiciary renouncing to the objective rational criteria consubstantiated in the law, and to an approach that …
Through A Prism Darkly: Surveillance And Speech Suppression In The Post-Democracy Electronic State", David Barnhizer
Through A Prism Darkly: Surveillance And Speech Suppression In The Post-Democracy Electronic State", David Barnhizer
David Barnhizer
Through a PRISM Darkly: Surveillance and Speech Suppression in the “Post-Democracy Electronic State” David Barnhizer There is no longer an American democracy. America is changing by the moment into a new political form, the “Post-Democracy Electronic State”. It has “morphed” into competing fragments operating within the physical territory defined as the United States while tenuously holding on to a few of the basic creeds that represent what we long considered an exceptional political experiment. That post-Democracy political order paradoxically consists of a combination of fragmented special interests eager to punish anyone that challenges their desires and a central government that …
"Linguistic Cleansing": Strategies For Redesigning Human Perception And Behavior, David Barnhizer
"Linguistic Cleansing": Strategies For Redesigning Human Perception And Behavior, David Barnhizer
David Barnhizer
James Madison recognized the need to balance competing interests in his analysis of factious groups. In Federalist No. 10, Madison sets out the idea of faction in the following words. “By a faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Madison goes on to describe two “cures” for faction. One is to “destroy the liberty” that allows it to bloom, …
After Privacy: The Rise Of Facebook, The Fall Of Wikileaks, And Singapore’S Personal Data Protection Act 2012, Simon Chesterman
After Privacy: The Rise Of Facebook, The Fall Of Wikileaks, And Singapore’S Personal Data Protection Act 2012, Simon Chesterman
Simon Chesterman
This article discusses the changing ways in which information is produced, stored, and shared — exemplified by the rise of social-networking sites like Facebook and controversies over the activities of WikiLeaks — and the implications for privacy and data protection. Legal protections of privacy have always been reactive, but the coherence of any legal regime has also been undermined by the lack of a strong theory of what privacy is. There is more promise in the narrower field of data protection. Singapore, which does not recognise a right to privacy, has positioned itself as an e-commerce hub but had no …
A Bad Trip For Health-Related Human Rights: Implications Of Momcilovic V The Queen (2011) 85 Aljr 957, Tim Vines, Thomas A. Faunce
A Bad Trip For Health-Related Human Rights: Implications Of Momcilovic V The Queen (2011) 85 Aljr 957, Tim Vines, Thomas A. Faunce
Thomas A Faunce
Momcilovic v The Queen (2011) 85 ALJR 957 [PDF] ; [2011] HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic) . The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a defined list of human rights. By a slim majority it also held that the Charter validly created a judicial power to "declare" a law inconsistent with one or …