Military, War, and Peace Commons^™

Time Limitations For Objecting To Claims: The Interplay Between Sections 502(D) And 546(A) Of The Bankruptcy Code., Gregory G. Hesse

St. Mary's Law Journal

It is common lore among bankruptcy trustees and lawyers that a bankruptcy trustee has an unlimited time period under the Bankruptcy Code (the Code) to file objections to claims. Neither Section 502(a) of the Code nor Federal Rule of Bankruptcy Procedure 3007 contains time limitations within which an objection to a claim must be filed. Yet, creative creditor attorneys have fashioned arguments that the two-year limitations period placed on avoidance actions by Section 546(a) of the Code applies to claim objection proceedings brought under Section 502(d). Because courts have held the limitations period of Section 546(a) applies to claim objection …

U.S. Taxation Of U.S. Persons Doing Business Or Investing In Mexico: An Overview., William H. Hornberger

St. Mary's Law Journal

U.S. persons who plan to do business in Mexico or invest in new or existing Mexican business ventures are faced with a myriad of U.S. federal income tax issues. U.S. counsel advising U.S. persons regarding the ownership structure for a contemplated business or investment in Mexico should have a basic understanding of the U.S. system of international taxation. While a working knowledge of Mexico’s tax system is also helpful, Mexican counsel can provide information regarding the Mexican tax implications of doing business or investing in Mexico. A review of the U.S. system of international taxation should begin with a consideration …

Banning Motherhood: An Rx To Combat Child Abuse., Toni Driver Saunders

St. Mary's Law Journal

Abstract Forthcoming.

Enhanced Punishment Under The Texas Hate Crimes Act: Politics, Panacea, Or Pathway To Hell., David Todd Smith

St. Mary's Law Journal

Nearly without exception, modern legislatures have responded to the reprehensible nature and detrimental social effects of hate crime by enacting laws specifically designed to punish the offender’s discriminatory animus. The term “hate crime” describes criminal conduct which is motivated by the offender’s bias or prejudice against another cognizable group. Although the reprehensible nature of a hate crime is often apparent from the facts of any given case, the repercussions of these offenses exceed the ignoble character of any one specific act. Texas has now joined the ranks of these jurisdictions by adopting legal provisions which authorize heightened penalties upon a …

The Theory And Practice Of Regional Organization Intervention In Civil Wars, Christopher J. Borgen

Faculty Publications

The United Nations' reach in peacekeeping is fast outdistancing its grasp. Spread across seventeen countries, the U.N.’s over 80,000 civilian and military personnel monitor cease-fires, protect aid convoys, and separate warring parties. As the U.N. extends its arms, financial resources seem to slip through its fingers like grains of sand. In short, the U.N. lacks the resources to continue increasing its peacekeeping responsibilities.

In An Agenda for Peace (Agenda), Secretary-General Boutros Boutros-Ghali proposes that part of the solution to the economic problems of the U.N. lies in reconsidering how regional organizations interact with the U.N., a suggestion which revisits a …

United Nations Intervention In Internal Conflicts: Iraq, Somalia, And Beyond, Ruth Gordon

Michigan Journal of International Law

Part I of this article will examine the concept of domestic jurisdiction. One of the principal purposes of the United Nations is the maintenance of international peace and security, which in 1946 was thought to essentially entail maintaining the peace between nation States. Internal power struggles and conflicts were thought to be within the jurisdiction of the State where they took place, unless they posed a rather substantial "threat" to the peace. Thus, the drafters of the U.N. Charter made sharp distinctions between internal and international conflicts. For instance, the Charter generally proscribes international, but not domestic, conflict, and the …

Perspectives On The Gulf War, Majid Khadduri

Michigan Journal of International Law

Review of Crisis in the Gulf: Enforcing the Rule of Law by John Norton Moore, and The Gulf Conflict, 1990-1991: Diplomacy and War in the New World Order by Lawrence Freedman and Efraim Karsh

War, Law & Liberal Thought: The Use Of Force In The Reagan Years, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Terrorism, Territorial Sovereignty, And The Forcible Apprehension Of International Criminals Abroad, Jimmy Gurulé

Journal Articles

Examines current international law governing use of force extraterritorially; in light of the Alvarez-Machain case in which a Mexican national suspected of murder was forcibly extradited to stand trial in the US.

Policy Guidance For The Transfer Of Dod Installations To The Government Of Panama, Jeffrey F. Addicott

Faculty Articles

Under the provisions of the 1977 Panama Canal Treaty, all United States military forces will be withdrawn from the Government of Panama (GOP). Additionally, by December 31, 1999, all United States military installations and other facilities will be turned over to the GOP.

To better accomplish the transfer of Department of Defense’s (DOD) installations to the GOP, the Panama Canal Treaty Implementation Plan Agency (TIPA) released a comprehensive policy guidance document (PGD) entitled “Policy Guidance for the Transfer of DOD Installations to the Government of Panama.” Army lawyers have been instrumental in helping draft this document, and the four major …

The Supreme Court Takes A Weapon From The Drug War Arsenal: New Defenses To Civil Drug Forfeiture., Scott Alexander Nelson

St. Mary's Law Journal

This Comment discusses the history and development of forfeiture law—emphasizing the misnomer of “guilty property”—and addresses the lack of constitutional safeguards in the civil forfeiture statutes. It outlines prospective constitutional defenses announced by the United States Supreme Court, emphasizing the Fifth Amendment guarantee of due process, the Eighth Amendment’s Excessive Fines Clause, and the “innocent owner” defense. The federal statute authorizing civil forfeiture, 21 U.S.C. § 881 (Forfeiture Statute), was initially enacted as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. The Comprehensive Forfeiture Act of 1984 amended the statute to impose forfeiture on real property …

Bridling The International Trade Of Catastrophic Weaponary, Barry Kellman

American University Law Review

No abstract provided.

Military Justice: From Oxymoron To Aspiration, Janet Walker

Osgoode Hall Law Journal

The mandate for Charter-based judicial review of military law is now in its second decade. Comparative analysis of the relationship between military law and the civilian judiciary in common law countries reveals that Canadian courts benefitting from this mandate are so placed within the constitutional structure as to be uniquely able to engage in substantive review of the adherence to the principles of fundamental justice by Canadian courts martial. Accordingly, the question of the jurisdiction of military tribunals which has formed the focal point internationally for judicial review is of passing significance in Canada. The yet critical issues of civilian …

Non-Proliferation, Self-Defense, And The Korean Crisis, Mark E. Newcomb

Vanderbilt Journal of Transnational Law

The United Nations, the United States, and other interested governments have sought to minimize the proliferation of nuclear weapons. North Korea's apparent attempts to begin production of nuclear materials clearly undermine the goal of non-proliferation. Moreover, the introduction of nuclear weapons onto the Korean peninsula, a site of continued political and military tension, has added a threat of potential nuclear conflict. This Article investigates the history of the Korean crisis and places North Korea's attempt to withdraw from the Treaty on the Non-Proliferation of Nuclear Weapons in the context of the international non-proliferation regime and policy. The author then examines …

Sensibility At Nuremberg: A Review Essay On Telford Taylor's The Anatomy Of The Nuremburg Trials, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

Justice Robert H. Jackson's opening statement at the Nuremberg trial has justly been characterized as one of the greatest orations in modern juristic literature. Yet behind its rhetorical power lies a fervent anxiety: a desire to silence the skeptical voices whispering that the Nuremberg trials were just the tarted-up revenge to which Camus alludes.

War Powers: An Essay On John Hart Ely's War And Responsibility: Constitutional Lessons Of Vietnam And Its Aftermath, Philip Chase Bobbitt

Faculty Scholarship

I approached John Ely's' new book with the anticipation of delight, qualified by a certain apprehensiveness. Delight because Ely is almost alone among writers in my solemn field in his ability to write with humor; indeed, he writes in a style that reminds me of the marvelous Joseph Heller. There is no reason, I suppose, for constitutional law professors to be incapable of writing amusing and fresh prose or exposing a false syllogism with the light touch of juxtaposition rather than the heavy bludgeon of irony, but how rare this is! More importantly, Ely's arguments have the satisfying feel of …

Targeting Enemy Merchant Shipping: An Overview Of Law And Practice, L.F.E. Goldie

International Law Studies

No abstract provided.

Jonathan Pollard: A More Genuine Notion Of Justice, Kenneth Lasson

All Faculty Scholarship

Perhaps the president, visibly moved by the film, would sympathize with the moral impulse that drove [Jonathan Pollard] to give vital defense information to Israel. Perhaps he'd likewise equate Nazi Germany with demonic Iraq. Perhaps Mr. [Clinton], currently compiling his own list of presidential pardons, would see to it that the horrendous life sentence handed Pollard in 1985 be commuted to time served.

Particularly galling, though, are the potshots from two former Justice Department prosecutors - the politically ambitious Joseph DiGenova and his former assistant David Geneson - who effectively bargained Pollard out of a trial by promising not to …

Care For Those Who Wore The Uniform, Kenneth Lasson

All Faculty Scholarship

Considerations were granted to American war veterans as far back as 1636, when the pilgrims, in the midst of an Indian insurrection, devised a special law providing rights and assistance to those who fought. Various of the early American colonies passed similar laws for disabled veterans, and by the time of the Revolution the benefits concept had been firmly established.

Said Calvin Coolidge in 1920: "The nation which forgets its defenders will itself be forgotten." But such platitudes did little to solve the fragmented administration of veterans' affairs, which inevitably was overwhelmed by the sheer volume of cases. Thus was …

Constitutional Review By The Executive In Foreign Affairs And War Powers: A Consequence Of Rational Choice In The Separation Of Powers, John O. Mcginnis

Articles

No abstract provided.

International Human Rights, Morality In War, And The Structure Of Rights, Edward C. O'Dowd, Robert F. Schopp

Washington International Law Journal

A careful analysis of certain issues of morality in war demonstrates important differences in the duties recognized by Western and Chinese military officers toward their soldiers. These differences reflect fundamentally different theories of social morality in the societies these officers represent. Although Western countries and China have endorsed a common set of internationally recognized human rights, a meaningful consensus regarding human rights must remain consistent across three levels of analysis. The putative contemporary consensus among Chinese and liberal societies fails because the fundamental differences in underlying principles of social morality that give rise to divergent principles of morality in war …

The Right To Religion-Based Exemptions In Early America: The Case Of Conscientious Objectors To Conscription, Ellis M. West

Political Science Faculty Publications

One of the more controversial decisions handed down by the Supreme Court in recent years was its decision in the case of Employment Division, Oregon v. Smith, which raised the basic issue of whether the free exercise clause of the First Amendment guarantees a right to religion-based exemptions, i.e., whether it gives persons and groups a prima facie right to be exempt from having to obey valid laws when they have religious reasons for noncompliance. More specifically, in Smith, two Native Americans claimed that their prosecution for using an illegal drug, peyote, was precluded by the free exercise …

Vietnam: A Twenty Year Retrospective, Matthew Lippman

Penn State International Law Review (1982 - 2011)

No abstract provided.

Tort Claims In Counterinsurgency Operations: The British Experience In Ireland, 1919–21, Michael F. Noone Jr.

Scholarly Articles

No abstract provided.

Book Review: Red Scare In Court: New York Versus The International Workers Order, 27 J. Marshall L. Rev. 139 (1993), Elena Marcheschi

UIC Law Review

No abstract provided.

Interest, Principle, And Beyond: American Understandings Of Conflict, Don Herzog

Book Chapters

To understand U.S. foreign policy, we need to understand the concepts and categories that Americans bring to bear. After all, we see the world through our concepts and categories. They identify what's possible, what's desirable, indeed what's visible in the first place. There is simply no possibility of junking all our concepts, stepping outside them, and gaining an unmediated grasp of the world. Here, I offer a sketch of American understandings of conflict. Understandings, not understanding: even in the realm of foreign policy, Americans have long brought intriguingly different categories to bear, categories whose richness isn't captured by some standard …

Industrialization In The Borderlands And The Nafta Treaty., Phillip D. Hardberger

St. Mary's Law Journal

Abstract Forthcoming.

Foreign Investment In Mexico From The Perspective Of The Foreign Investor., Hope H. Camp Jr., Jaime Alvarez Garibary, C. Lee Cusenbary Jr.

St. Mary's Law Journal

A factor contributing to the continuation of the economic revolution in Mexico has been, and will continue to be, foreign investment. The liberalized foreign-investment regulations and the positive attitude of the Foreign Investment Commission (FIC) in approving foreign investment proposals promote a more favorable environment for foreign investors. The Mexican government recently completed negotiating the NAFTA, a proposed free-trade agreement with the United States and Canada. The government is now considering what additional actions may be required to compete successfully with those other nations trying to attract scarce investment funds. Opportunities for foreign investors in Mexico are brighter than they …

Contracting In Mexico: A Legal And Practical Guide To Negotiating And Drafting., Rona R. Mears

St. Mary's Law Journal

This Article is intended as a primer in contracting for the United States attorney counseling clients doing business in Mexico. Thus, this Article begins by surveying the legal foundations of contracting in Mexico. This includes basic contract principles in Mexico’s civil-law system, the distinction between civil and commercial contracts, and procedural formalities applicable to contracts in Mexico. Following the introduction is a discussion of successful contract negotiations in Mexico, including certain cultural factors and Mexican business customs which can affect negotiations. This section includes suggestions for preparing for negotiations and managing the negotiation process to obtain the best result. Next, …

Another "Solemn Public Lie", Frederick Bernays Wiener

University of Richmond Law Review

When Roger Williams, the founder of Rhode Island, and the founder of religious toleration in what was to become the United States of America, examined the charter that King James I had given the Governor and Company of the Massachusetts Bay in New England, he found in that document two significant misstatements. Williams first pointed out the falsity of the recital wherein the King "blessed God that he was the first Christian Prince that had discovered this land."' He then denounced the royal land grant to the Massachusetts Bay Company, because that land belonged, not to the King, but to …