Military, War, and Peace Commons^™

Panel 1: Are Adequate Legal Frameworks In Place At The Domestic Level?: Domestic Incorporation Of Obligations Under The Convention Against Torture, Claudio Grossman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Women's Protocol To The African Charter And Sexual Violence In The Context Of Armed Conflict Or Other Mass Atrocity, Susana Sacouto, Katherine A. Cleary

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta

St. Mary's Law Journal

The United States Supreme Court has never explained the Eighth Amendment’s impact in noncapital cases involving a mentally retarded or brain-injured defendant. The Court has not provided guidance to legislatures or lower courts concerning the acceptable balancing of aggravating and mitigating factors and the role that mitigating factors must play in the sentencing decision. A definitive gap exists between the protections afforded to a criminal defendant facing a life sentence as opposed to those confronted with the death penalty. The Court requires sentencing procedures to consider aggravating and mitigating factors, including mental retardation and brain damage, when imposing a death …

The "War On Terror" Is Over--Now What? Restoring The Four Freedoms As A Foundation For Peace And Security, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

This article observes that the "Global War on Terror" as an organizing concept has been abandoned and proposes that the Obama Administration restore FDR's Four Freedoms in its place.

Saving Private Ryan's Tax Refund, Francine J. Lipman

Scholarly Works

No abstract provided.

A New Way For Lawyers To Assist Veterans, Hillary A. Wandler

Faculty Journal Articles & Other Writings

This article addresses the ever-increasing need for knowledgeable and effective veterans' advocates, and in particular, for veterans in Montana. The author notes that Montana Veterans Service Officers (VSOs) have demonstrated, effective representation can significantly increase a veteran's chance at submitting a successful benefits claim and nearly double a veteran's ultimate compensation. The author encourages Montana attorneys to come alongside Montana's VSOs to meet the legal needs of those who have served and are currently serving our country overseas and at home.

Double Jeopardy And Multiple Sovereigns: A Jurisdictional Theory, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article offers a coherent way of thinking about double jeopardy rules among sovereigns. Its theory has strong explanatory power for current double jeopardy law and practice in both U.S. federal and international legal systems, recommends adjustments to double jeopardy doctrine in both systems, and sharpens normative assessment of that doctrine.

The Article develops a jurisdictional theory of double jeopardy under which sovereignty signifies independent jurisdiction to make and apply law. Using this theory, the Article recasts the history of the U.S. Supreme Court's dual sovereignty doctrine entirely in terms of jurisdiction, penetrating the opacity of the term sovereign as …

Law From Above: Unmanned Aerial Systems, Use Of Force, And The Law Of Armed Conflict, Chris Jenks

Faculty Journal Articles and Book Chapters

The United States employing armed unmanned aerial systems (UAS) or “drones” against al qaeda and Taliban targets in northwest Pakistan continues to spur discussion and disagreement. Some label UAS “armed robotic killers,” while others describe them as providing a much greater degree of distinction between intended targets and the surrounding population and infrastructure, thus limiting civilian casualties and property damage. The overt disagreement as to whether the strikes are legal masks that the discussants are utilizing wholesale different methodologies, talking past each other in the process. The origin of this divergence is to what extent the law of armed conflict …

Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of International Armed Conflict, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks

Faculty Journal Articles and Book Chapters

The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that …

The Rules Against Scandal And What They Mean For The First Amendment’S Religion Clauses, Marci A. Hamilton

Articles

No abstract provided.

Avoid Or Compensate? Liability For Incidental Injury To Civilians Inflicted During Armed Conflict, Yael Ronen

Vanderbilt Journal of Transnational Law

Under international law, civilians suffering injuries that are incidental to a lawful attack on a military objective are left to bear the cost of their losses. In recent years there have been calls for a change in policy that would entitle victims of military attacks to compensation, even if their losses are incidental and non-fault-based. This Article explores the notion of such a quasi-strict liability rule, which is likely to disrupt the existing balance of powers and interests under the laws of armed conflict. Following an exploration of the conceptual basis for such an obligation, the Article examines the effect …

Plea To The Jurisdiction: Defining The Undefined., Rebecca Simmons, Suzette Kinder Patton

St. Mary's Law Journal

Pleas to the jurisdiction have been part of Texas jurisprudence since shortly after Texas became a state. The resulting confusion over the procedure and standards to be employed in resolving a plea was partially alleviated by the Texas Supreme Court’s decision in Texas Department of Parks and Wildlife v. Miranda. From a number of reports from Texas’s reviewing courts, however, it is evident the courts continue to struggle with the plea. Currently there are no established procedural rules to assist with the resolution of a plea to the jurisdiction. Thus, procedures vary from court to court and case to case. …

Practitioners Beware: Under Amended Trap 47, Unpublished Memorandum Opinions In Civil Cases Are Binding And Research On Westlaw And Lexis Is A Necessity., Andrew T. Solomon

St. Mary's Law Journal

In 2003 and 2008, the Texas Rule of Appellate Procedure (TRAP) 47 was amended. TRAP 47 is the rule which governs the issuance, citation, and precedential value of unpublished and memorandum opinions. The 2003 amendment was designed to make the law more readily available by prohibiting the issuance of unpublished opinions in civil cases and authorizing memorandum opinions in place of unpublished opinions. Despite its intention, the 2003 amendment failed to make civil case law more readily available. This is because such new opinions are only available via electronic repository, such as Westlaw or Lexis. As a result, to completely …

Procedural And Judicial Limitations On Voir Dire - Constitutional Implications And Preservation Of Error In Civil Cases., R. Brent Cooper, Diana L. Faust

St. Mary's Law Journal

The right to a trial by jury is meaningless without an effective voir dire. Recurring tort reform, rapid technological advancements, immediate access to media coverage of incidents that give rise to litigation have greatly expanded. Consequentially, courts are faced with the prospect that potential jurors’ opinions and attitudes have been tainted. In addition to these issues, trial courts display significant interest in promptly expediting the advancement of their dockets. Voir dire is an essential element of trial strategy. Voir dire allows counsel to establish rapport with potential jurors, introduce them to the issues and facts of the case, and identify …

Civil Jury Trials R.I.P. - Can It Actually Happen In America Essay., Royal Furgeson

St. Mary's Law Journal

Civil jury trials in America have been declining at a steady rate for the last thirty years. This is a well-documented trend. If the trend continues, within the foreseeable future, civil jury trials in American may eventually become extinct. Jury trials have been central to justice in America and its states since their inception. Their importance has been stated as bringing accountability to the law and to society. As all persons, even the powerful and wealthy ones, are accountable under the law. Yet, as important as juries and jury trials are to the health of justice in America, the civil …

Professional Malpractice In A World Of Amateurs., Thomas D. Morgan

St. Mary's Law Journal

Clients experience the speed at which the world changes, both technologically and socially. They expect lawyers to keep pace. The technology which permits lawyers to deliver legal services faster also chains lawyers to their electronic devices. This technology has also led to a growing market of those who promise to do the same work faster, better, and cheaper. Such developments will ultimately affect how lawyers view professional malpractice or the way the industry understands “competence and diligence normally exercised by lawyers.” The malpractice question becomes: to what standard of care and competence should such “amateur” lawyers be held? The legal …

Loyalty In Limbo: The Peculiar Case Of Attorneys' Loyalty To Clients., Eli Wald

St. Mary's Law Journal

Attorney loyalty to clients is considered a cornerstone of the attorney-client relationship. Yet, loyalty is underexplored, misunderstood, and the subject of heated discord. Advocates of client-centered loyalty and their opponents both fail to provide a compelling accounting of loyalty to clients and its consequences. Leaving loyalty in limbo is an unacceptable state of affairs. The legal profession bears the continuous burden of accounting for its own practices. Because the Bar cannot assert broad client-centered loyalty as self-explanatory, the burden of disproving loyalty shifts to the critics. Critics of broad loyalty to clients are not helping advance the discourse by advocating …

Ten Years After Burrow V. Arce: The Current State Of Attorney Fee Forfeiture., Jeffrey A. Webb, Blake W. Stribling

St. Mary's Law Journal

“Extreme [attorney] misconduct may warrant an extreme remedy.” Fee forfeiture certainly constitutes an extreme remedy, at least compared to the ordinary remedy for violation of a legal duty. But neither the degree to which the remedy is extreme nor how extreme the misconduct must first be before the forfeiture becomes appropriate is apparent in light of the Texas Supreme Court’s decision in Burrow v. Arce. Understanding the confusion which has arisen with regard to Burrow’s impact depends in large measure on a thorough evaluation of (1) the basis for the court’s determinations relating to forfeiture, (2) the sources from which …

Patent-Holding Patent Attorneys: Conflicts Of Interests, Confidentiality, And Employment Issues Comment., Ashley R. Presson

St. Mary's Law Journal

Patents are grants issued by the United States Patent and Trademark Office (USPTO) which confer upon the holder, the patentee, patent rights to such intellectual property as inventions, technologies, and processes. Patent rights include the right to exclude others from “making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States.” Once the USTPO has granted a patent, the inventor may market the product. Patentees who do not have the funds or time to market the product may profit by conveying the legal rights conferred by the patent to other …

The Texas Supreme Court's Erroneous Doctrine Of Implied Appellate Jurisdiction., Charles R. Flores

St. Mary's Law Journal

A Texas statute gave final appellate jurisdiction over cases not to the state supreme court but to the intermediate courts of appeals. After losing at the appellate level, one of the parties in Eichelberger v. Eichelberger appealed to the state supreme court despite the statute. But because the court of appeals decision conflicted with a United States Supreme Court decision, the Texas Supreme Court held its jurisdiction should be implied. Though legal commentators declared the decision an abrupt departure from standards for judicial decisions, they postulated it would be invoked so infrequently to do no lasting harm to Texas jurisprudence. …

Could Government Speech Endorsing A Higher Law Resolve The Establishment Clause Crisis., Bruce Ledewitz

St. Mary's Law Journal

The Establishment Clause crisis exists due to the Supreme Court’s promise that America would have a secular government—meaning one which was neutral between religion and irreligion, as well as being neutral to all religions. This promise evolved pursuant to the Supreme Court’s interpretation of the Establishment Clause. Nevertheless, the commitment to neutrality was never carried to fulfillment by the Court. The crisis may be illustrated by Congress’ addition of the words “under God” to the Pledge of Allegiance in 1954. This addition seemed to violate the promise of neutrality made by the Supreme Court in Everson v. Board of Education …

Should Texas's Former Ban On Obscene-Device Promotion Pass Constitutional Muster Under A Murky Lawrence Comment., Laura M. Clark

St. Mary's Law Journal

When the Fifth Circuit freed Texans to promote and distribute sexual devices without criminal penalties, it created a split with the Eleventh Circuit’s decision to uphold Alabama’s ban. Both courts based their rulings on the U.S. Supreme Court’s decision in Lawrence v. Texas, which invalidated Texas’s statute banning homosexual sodomy. In upholding Alabama’s sex-toy statute in 2007, the Eleventh Circuit found no fundamental right to sexual privacy under Lawrence and held public morality was a sufficiently rational basis for the statute. The court distinguished Lawrence, which dealt with prohibition of private conduct, rather than public commercial activity. The Fifth Circuit …

Judge William Wayne Justice: A Life Of Human Dignity And Refractory Mules Tribute., Albert H. Kauffman

St. Mary's Law Journal

Judge Wayne Justice had a deep impact on the lives of many people and was an unyielding advocate who protected the rights of all U.S. citizens. Many of the Judge’s orders and consent decrees forced Texas to comply with more stringent federal requirements in education and health care and had a far reaching effect across the nation. Judge Justice presided over Doe v. Plyler that ensured the benefit of public education for the children of undocumented immigrants. In United States v. Texas, Judge Justice required that the Texas Education Agency monitor school district actions and policies to assure that they …

Prescribing A Balance: The Texas Legislative Responses To Sell V. United States., Brian D. Shannon

St. Mary's Law Journal

In Sell v. United States, decided in 2003, the United States Supreme Court addressed the question of “whether the Constitution permits the Government to administer antipsychotic drugs involuntarily to a mentally ill criminal defendant – in order to render that defendant competent to stand trial for serious, but nonviolent crimes.” The Court concluded that the Constitution does permit doing so “in limited circumstances…upon satisfaction of conditions” that the Court delineated. This Article will first address the Court’s parameters for determining when the administration of antipsychotic medications on an involuntary basis is permissible. The remainder of the Article, however, will discuss …

The Yearning For Zion Raid And Its Impact On Texas Child Welfare Cases: How A Botched Rescue Effort Exposed A Need To Refocus Efforts On Effective Service Plans Comment., Shannon K. Dunn

St. Mary's Law Journal

The raid of the Yearning for Zion ranch exposed fundamental flaws in the operation of the Texas Department of Children and Family Services (the Department). In the raid, the Department took custody of 468 children without a court order and removed them from their homes. This is one of the most glaring examples of the Department’s disregard for the Texas Family Code. Subchapter B of section 263 of the Texas Family Code mandates for the creation and implementation of a comprehensive service plan whenever the Department removes a child from his home. The Department, however, failed to create service plans …

Terrorist Detention: Directions For Reform, Benjamin Priester

Journal Publications

Counterterrorism efforts by the U.S. government since 2001 have produced numerous legal controversies. One of the most controversial subjects has been the detention of individuals allegedly involved with terrorist organizations or activities. Unlike traditional criminal detainees, such persons are not held pursuant to indictment on charges pending trial or to a verdict of conviction. Unlike traditional military detainees, they are not battlefield captives from combat in a war zone against the military forces of another nation. Rather, terrorist detainees are held based on the individual's alleged connections to terrorist organizations and activities, without more. Terrorist detention, so defined, is an …

Human Dignity, Humiliation, And Torture, David Luban

Georgetown Law Faculty Publications and Other Works

Modern human rights instruments ground human rights in the concept of human dignity, without providing an underlying theory of human dignity. This paper examines the central importance of human dignity, understood as not humiliating people, in traditional Jewish ethics. It employs this conception of human dignity to examine and criticize U.S. use of humiliation tactics and torture in the interrogation of terrorism suspects.

Combatants And The Combat Zone, Mary Ellen O'Connell

Journal Articles

This short essay discusses that definition as it emerged following September 11, 2001. The essay compares the Administration's definition with the definition of combatant found in international law. This essay will not discuss in any detail the additional-and even more questionable-claim by the Administration that certain persons designated "enemy combatants" enjoy neither U.S. nor international human rights or IHL rights or protections.8 Suffice it to say that no human being can be denied his or her fundamental rights-there are no legal black holes.

Asat-Isfaction: Customary International Law And The Regulation Of Anti-Satellite Weapons, David A. Koplow

Georgetown Law Faculty Publications and Other Works

This article asserts the thesis that customary international law (CIL), even in the absence of any new treaty, already provides a legal regime constraining the testing and use in combat of anti-satellite (ASAT) weapons. This argument, if validated, is important for both legal and public policy considerations: the world (especially, but not only, the United States) has grown increasingly dependent upon satellites for the performance of a wide array of commercial and military functions. At the same time, because of this growing reliance (and hence vulnerability), interest has surged in developing novel systems for attacking a potential enemy’s satellites – …

The Bapcoa's Restriction On Attorney-Client Speech In The Fifth And Eighth Circuits: Worth Saving Or Destroying Comment., Sara Berkeley

St. Mary's Law Journal

Abstract Forthcoming.