Military, War, and Peace Commons^™

Legal Lessons Learned From Operation Enduring Freedom, Michael F. Noone Jr.

Scholarly Articles

No abstract provided.

Delegalization Of Arms Control – A Democracy Deficit In De Facto Treaties Of Peace, Antonio F. Perez

Scholarly Articles

Delegalization of arms control is now an accomplished fact. In this period of potential dramatic revision of the international order, it is not surprising that the US is seeking increased flexibility in pursuing several strategies, including the full use of military and technological advantages. The motivations behind this include US interests, as well as long run global interests. What may be surprising, however, is the potential risk to our democratic processes from delegalization of arms control-that is to say, the danger posed by reduced use of arms control treaties with built-in processes of transparency and democratic accountability.

The potential risk …

Putting Health Care Providers At A Loss And Consumers At Risk: Why Hmos Should Be Held Accountable For The Financial Instability Of Their Delegated Networks., Anish P. Michael

St. Mary's Law Journal

This Comment explores why health maintenance organizations (HMOs) such as PacifiCare should be held accountable for the financial instabilities of their delegated networks. Part II discusses the organization of the managed care system and the assessment of Texas laws currently enforcing managed care in the state. Incorporated in this discussion is a look at the risks delegated networks bear when contracting with HMOs to provide payment for individualized care. Part III analyzes the increasing trend of financial instability by presenting the views of the HMOs, the delegated networks, the health care providers, and the consumers enrolled in the health plan. …

Privacy Lost: Comparing The Attenuation Of Texas's Article 1, Section 9 And The Fourth Amendment., Kimberly S. Keller

St. Mary's Law Journal

The Fourth Amendment to the United States Constitution requires that all searches and seizures be reasonable. Article I, Section 9 of the Texas Constitution mirrors its federal counterpart, requiring reasonableness in regard to intrusive governmental action. In examining these texts, both the federal and state provisions are comprised of two independent clauses: (1) the Reasonableness Clause, which prohibits unreasonable searches and seizures; and (2) the warrant clause, which provides that warrants may issue only upon a showing of probable cause. Both the federal and Texas constitutions include explicit language regulating the government’s right to intrude on a person’s privacy. This …

Holding The United States Accountable For Environmental Damages Caused By The U.S. Military In The Philippines, A Plan For The Future, 4 Asian-Pac. L. & Pol'y J. 320 (2003), Kim D. Chanbonpin

UIC Law Open Access Faculty Scholarship

No abstract provided.

Democracy, Judicial Review And The Rule Of Law In The Age Of Terrorism: The Experience Of Israel - A Comparative Perspective, 31 Ga. J. Int'l & Comp. L. 493 (2003), Ralph Ruebner

UIC Law Open Access Faculty Scholarship

No abstract provided.

Law School Branding And The Future Of Legal Education., Michael Ariens

St. Mary's Law Journal

It is too early to determine if law school branding will have a positive or a negative effect on legal education. A recent shift in legal education has led law schools to consciously brand themselves, claiming an educational distinctiveness in selling their services to consumers. Branding is an attempt to create a desire in targeted prospective students to join the branded law school. Although a law school may brand itself by claiming it delivers an excellent legal education, branding is about distinctiveness, not quality. Law schools have used a number of approaches to attract students, including aggressive marketing of a …

Separation V. Patriotism: Expelling The Pledge From School., Bill W. Sanford Jr.

St. Mary's Law Journal

Abstract Forthcoming.

Rethinking The Prohibition Of Death Row Prisoners As Organ Donors: A Possible Lifeline To Those On Organ Donor Waiting Lists., Donny J. Perales

St. Mary's Law Journal

Organ transplantation continually brings hope and new life to thousands of patients suffering from a myriad of diseases. Despite the advances in medical science and the increased survival rates of organ recipients, many are unable to receive an organ transplant because the demand for organs drastically exceeds the available supply. Much of the organ deficit lies in the current system of organ procurement. The altruism-based organ system leaves the donative decision to the individual; however, it is this system which hinders effective organ procurement. Under this system, the donor must give prior consent before a doctor can remove any organ. …

Dealing With Default Judgements., Julia F. Pendrey, Shawn M. Mccaskill, Hilaree A. Casada

St. Mary's Law Journal

Abstract Forthcoming.

Gender, Human Rights, And Peace Agreements, Christine M. Chinkin

Articles

I would first like to thank the organizers for the very great honor of being asked to present the annual Schwartz Lecture in 2002. It is especially apposite to discuss issues of international peace agreements in Ohio, not far from Dayton which is famous as the location of the process that brought an end to the war in Bosnia-Herzegovina. However this lecture is going to examine issues that were not explored at Dayton, that is, some relationships between gender, peace agreements, and international human rights. In addition, because the function of peace agreements in today's world has become the broader …

The Interface Of National Constitutional Systems With International Law And Institutions On Using Military Force: Changing Trends In Executive And Legislative Powers, Lori Fisler Damrosch

Faculty Scholarship

The perplexities of the twenty-first century over national decision-making in support of international security are an outgrowth of centuries-long trends concerning subordination of military power to constitutional control. Civilian control over the military has been inextricably connected with the strengthening of domestic constitutionalism and safeguards for citizens' liberties in many different democracies.

Along with the establishment of constitutional structures for regulating national military power, national constitutions have contributed to the evolution of contemporary international law prohibiting the use or threat of force in international relations. Milestones along this path begin with the French Constitution of 1791 – the first national …

When Can Nations Go To War? Politics And Change In The Un Securtiy System, Charlotte Ku

Michigan Journal of International Law

In an appreciation of Harold Jacobson written for the American Journal of International Law, the author concluded that following the events of September 11, 2001, we would need the kind of gentle wisdom Harold Jacobson brought to his tasks more than ever. The author also recalled Harold Jacobson's own observation in Networks of Interdependence that his assessment of the global political system was an optimistic, but not a naive one. These qualities of quiet determination to get to the bottom of an issue and of optimism stemmed from a fundamental belief that individuals, armed with information and the opportunity …

The Responsibility To Protect: A Beaver Without A Dam?, Jeremy I. Levitt

Michigan Journal of International Law

Review of International Commission on Intervention and State Sovereignty, The Responsibility to Protect and The Responsibility to Protect: Research, Bibliography, Background (Supp. Vol. to the Responsibility to Portect by Thomas G. Weiss & Don Hubert

United States V. Shell Oil: When Control Is Not Controlling - The Question Of Federal Arranger Liability Under Cercla, Walter Greiner

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Novel Issues, Futile Issues, And Appelate Advocacy: The Troubling Lessons Of Bousley V. United States., Henry J. Bemporad, Sarah P. Kelly

St. Mary's Law Journal

Bousley v. United States may require appellate attorneys to raise meritless claims in order to preserve them for habeas review in the event of a change in the law. Bousley is a habeas corpus case involving the “procedural default” doctrine. The doctrine states that a prisoner may only raise issues that have been adequately preserved, and if not preserved, they have defaulted on their claims. Bousley looked with critical hindsight at the decisions made by appellate counsel and punished the defendant for their lawyer’s failure to preserve an issue rejected by eleven courts of appeals—including the court before which the …

The Military's Involvement In Law Enforcement: The Threat Is Not What You Think, Michael T. Cunningham

Seattle University Law Review

This Article will first briefly discuss the Posse Comitatus Act and its applicability in different situations, the exceptions to the PCA, and the use of DOD military services in counter-drug operations. Next, extraterritorial applications of the PCA will be briefly examined. Finally, the effects law enforcement activities may have on military readiness will be discussed.

The Functions Of Justice And Anti-Justice In The Peace-Building Process, Paul Williams, Michael Scharff

Scholarly Articles in Law Reviews & Journals

Recently, there has been increasing use of the tool of justice/accountability in the peace-building process. Yet, the norms of justice, while increasingly invoked, is seldom defined in the context of peace-building. To understand the role that justice has played and has the potential of playing in the peace-building process, it is important first to define the norm as well as articulate its functions. This article therefore serves as an introduction to The Case Western Reserve Journal of International Law’s “Role of Justice in Building Peace” Symposium Issue by providing a detailed definitional description of the justice norm. In addition, it …

Insuring Against Terrorism -- And Crime, Saul Levmore, Kyle D. Logue

Articles

The attacks of September 11th produced staggering losses of life and property. They also brought forth substantial private-insurance payouts, as well as federal relief for the City of New York and for the families of individuals who perished on that day. The losses suffered during and after the attacks, and the structure of the relief effort, have raised questions about the availability of insurance against terrorism, the role of government in providing for, subsidizing, or ensuring the presence of such insurance, as well as the interaction between relief and the incentives for taking precautions against similar losses in the future. …

It Is Not So Simply Because An Expert Says It Is So: The Reliability Of Gang Expert Testimony Regarding Membership In Criminal Street Gangs: Pushing The Limits Of Texas Rule Of Evidence 702., Placido G. Gomez

St. Mary's Law Journal

The mechanisms developed by the criminal justice system addressing the criminal activities of street gangs, for the most part, have proved ineffective. The evolution of gangs, their complex structure, and multipurpose focus keep them one step ahead of law enforcement. The most recent weapon created to fight the war on gangs, the civil injunction, suffers from numerous inadequacies. One concern is that civil injunctions raise numerous constitutional concerns. Another is that these injunctions fall short of constitutional demands. Furthermore, the practical implementation of the injunction forces an analysis of the reliability of the gang expert’s testimony. This Article proposes courts …

The Effect Of 8 U. S. C. 1324(D) In Transporting Prosecutions: Does The Confrontation Clause Still Apply To Alien Defendants., Donna F. Coltharp

St. Mary's Law Journal

Cases prosecuted under 8 U.S.C. §1324 present special challenges for the Government and for defendants. Under §1324, it is a crime to transport or smuggle aliens into the United States. Prosecuting transporters or smugglers may present a challenge if a witness is unavailable. Even though transporting or smuggling always has witnesses—the alien(s) who hired the smuggler or transporter—not all witnesses have prolonged detentions, and some are returned to their native country. The transporter or smuggler may then assert their Sixth Amendment right. The Sixth Amendment’s Confrontation Clause requires that in all criminal prosecutions, the accused shall enjoy the right to …

Terrorism, Grand Juries, And The Federal Material Witness Statute., Roberto Iraola

St. Mary's Law Journal

Abstract Forthcoming.

When Parents And Educators Clash: Are Special Education Students Entitled To A Cadillac Education., Judith Deberry

St. Mary's Law Journal

Due to the ambiguous language of the Individuals with Disabilities Education Act (IDEA), there is uncertainty concerning IDEA’s requirements. IDEA mandates that all school districts receiving federal education monies provide for the education of disabled students. According to IDEA, each state must provide disabled children with “free appropriate public education” (FAPE) that emphasizes special education and related services designed to meet the student’s unique needs and prepare him or her for employment and independent living. Parents have argued that IDEA requires school districts to compensate them for commercial programs and private school costs. Courts have held that an individual education …

The Toxic Mold Terrifying Texas: Mold's Hold On The Insurance Industry., Sylvia Pena-Alfaro

St. Mary's Law Journal

It is imperative that more scientific research concerning the effects of mold be conducted to better understand the consequences of long-term exposure to mold. Because of home and building modifications to conserve energy, mold has been able to thrive. Reports of illnesses allegedly caused by mold exposure have increased. No scientific evidence, however, exists that conclusively links the illnesses to the effects of mold. Only a limited number of scientific studies exist showing just how harmful toxic mold can be, but there is disagreement as to whether the harmful effects of toxic mold can compromise the immune system to such …

In Re V.L.K. V. Troxel: Is The Best Interest Standard In A Motion To Modify The Sole Managing Conservator Subject To A Due Process Or Course Challenge., David F. Johnson

St. Mary's Law Journal

Texas Family Code section 156.101 is unconstitutional. In In re V.L.K, the Texas Supreme Court held that the Texas Legislature removed the injurious retention element from section 156.101 and no longer required a finding that the natural parent be injurious to the welfare of the child. The Texas Supreme Court’s ruling is contradictory to the United States Supreme Court’s ruling in Troxel v. Granville. In Troxel, the Supreme Court struck down a state statute that effectively permitted any third party to file a motion to challenge custody. Under Texas law, any affected party, not limited to parties named in the …

Telemedicine In Texas: Solving The Problems Of Licensure, Privacy, And Reimbursement., Gilbert Eric Deleon

St. Mary's Law Journal

Abstract Forthcoming.

Introduction To The Second Annual Symposium On Legal Malpractice & (And) Professional Responsibility The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Adam Boland

St. Mary's Law Journal

Abstract Forthcoming.

Absolute And Perfect Candor To Clients The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Vincent R. Johnson

St. Mary's Law Journal

The fiduciary duty owed to clients by attorneys is defined by the reasonable-care standard of negligence as opposed to the all-encompassing “absolute and perfect candor” rhetoric frequently used to describe the duty owed. Words have meanings and, though the use of “absolute and perfect candor” serves a beneficial purpose, reminding attorneys of the special duty owed to their clients, the fiduciary duty owed to clients is not so all encompassing and impractical. Modern case law fails to establish that a broadly applicable duty of “absolute and perfect” candor applies to the attorney-client relationship, except in a limited number of situations. …

The Legal Profession At The Crossroads: Who Will Write The Future Rules Governing The Conduct Of Lawyers Representing Public Corporations The Second Annual Symposium On Legal Malpractice & Professional Responsibility., David J. Beck

St. Mary's Law Journal

Abstract Forthcoming.

The Liability Of Lawyers For Fraud Under The Federal And State Securities Laws The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Kathy Patrick

St. Mary's Law Journal

Abstract Forthcoming.