Biodefense And Constitutional Constraints,
2011
Georgetown University Law Center
Biodefense And Constitutional Constraints, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
The United States and United Kingdom have different approaches to quarantine law that reflect each country’s unique historical context and constitutional structure. Under the Tudors, England vested quarantine authority in the monarch, with its subsequent exercise conducted by the military. As the constitutional structure changed, the manner in which quarantine was given effect subtly shifted, leading to constitutional reforms. Authorities transferred first to the Privy Council and, subsequently, to Parliament, where commercial interests successfully lobbied them out of existence. By the end of the 19th Century, quarantine authorities had been pushed down to the local port authorities. In the United …
Two Sides Of The Combatant Coin: Untangling Direct Participation In Hostilities From Belligerent Status In Non-International Armed Conflicts,
2011
South Texas College of Law
Two Sides Of The Combatant Coin: Untangling Direct Participation In Hostilities From Belligerent Status In Non-International Armed Conflicts, Geoffrey S. Corn, Chris Jenks
Faculty Journal Articles and Book Chapters
Determining who qualifies as a lawful object of attack in contemporary military operations against non-state belligerents is an increasingly demanding challenge. While it is axiomatic that only persons who qualify as either belligerents or civilians taking a direct part in hostilities fall into this category, the nature, and indeed goal, of counter-insurgencies blurs the line between civilians protected from deliberate attack and belligerents subject to attack. The difficulty in distinguishing the protected (civilians) from the unprotected (belligerents and civilians taking a direct part in hostilities) does not, however, warrant a fundamentally different targeting paradigm in counterinsurgency operations (a non-international armed …
Post-Traumatic Stress Disorder In The Military: The Need For Legislative Improvement Of Mental Health Care For Veterans Of Operation Iraqi Freedom And Operation Enduring Freedom,
2011
Cleveland State University
Post-Traumatic Stress Disorder In The Military: The Need For Legislative Improvement Of Mental Health Care For Veterans Of Operation Iraqi Freedom And Operation Enduring Freedom, Madeline Mcgrane
Journal of Law and Health
This Note argues that legislation requiring improved mental health treatment for veterans of OIF (Operation Iraqi Freedom) and OEF (Operation Enduring Freedom) is necessary to protect American service members from the dangers of mental illness. In order to prevent crimes and suicides committed by veterans of OIF and OEF as a result of undiagnosed PTSD (post-traumatic stress disorder), the United States Congress should enact legislation imposing requirements on all branches of the military that: 1) mandates screening of all veterans at risk for PTSD upon their return from deployment; 2) ensures veterans are provided with adequate and timely mental healthcare; …
An Elucidating Response To Erroneous Outrage: Why Continued Law Of War Detention Under Executive Order 13,567 Is Legal,
2011
Florida A&M University College of Law
An Elucidating Response To Erroneous Outrage: Why Continued Law Of War Detention Under Executive Order 13,567 Is Legal, Jenny Liabenow
Florida A & M University Law Review
No abstract provided.
A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana.,
2011
St. Mary's University
A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana., Mikal C. Watts, Emily C. Jeffcott
St. Mary's Law Journal
Fundamental to the existence of the rights guaranteed to every citizen is the assurance that the right to equal protection under the law will be defended at all costs. Key to the United States’ system of adjudication is the right to a trial by jury, which is embodied in the Sixth and Seventh Amendments to the Constitution. These rights are also incorporated into all state constitutions through the Fourteenth Amendment. During jury selection, the judicial system permits the elimination of a certain number of jurors without cause. This form of elimination is known as a peremptory challenge. Over time, however, …
Issues Concerning Charges For Driving While Intoxicated In Texas Federal Courts.,
2011
St. Mary's University
Issues Concerning Charges For Driving While Intoxicated In Texas Federal Courts., Brian L. Owsley
St. Mary's Law Journal
Each year numerous defendants appear in courts located in Texas, both state and federal, charged with offenses related to driving while intoxicated (DWI). Defendants appearing before state courts are prosecuted pursuant to Texas statutes, regulations, and binding case law. In certain circumstances, defendants appearing in federal courts face the same statutory elements of a crime and the same potential penalties as in a Texas state court. In many of the cases, however, statutory elements and potential penalties differ. Furthermore, certain rights and regulations afforded to Texas state defendants are unavailable to those charged in federal courts located in the state. …
Congress's Consistent Intent To Utilize Military Commissions In The War Against Al-Qaeda And Its Adoption Of Commission Rules That Fully Comply With Due Process.,
2011
St. Mary's University
Congress's Consistent Intent To Utilize Military Commissions In The War Against Al-Qaeda And Its Adoption Of Commission Rules That Fully Comply With Due Process., Michael T. Mccaul, Ronald J. Sievert
St. Mary's Law Journal
Congress responded to the terrorist attack of September 11, 2001 by passing the Authorization for the Use of Military Force (AUMF). In the following years Congress augmented that authority with the Military Commissions Act of 2006 (MCA of 2006) and the Military Commissions Act of 2009 (MCA of 2009). In passing these acts, Congress responded to the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that President Bush’s attempt to establish military commissions required Congressional authorization. When drafting both MCAs, Congress recognized numerous evidentiary and trial procedures from federal civilian court were inappropriate for trying unlawful combatants. By these …
Honest Services Fraud After Skilling.,
2011
St. Mary's University
Honest Services Fraud After Skilling., Pamela Mathy
St. Mary's Law Journal
The United States Supreme Court ruling in Skilling v. United States limits honest services fraud prosecutions of both public officials and private individuals to schemes involving bribes or kickbacks. Over the past two decades, federal prosecutors have used the federal mail and wire fraud statutes to reach schemes which deprive citizens of their money or property and of the intangible right to honest services. The Court’s ruling in Skilling removes a category of deceptive, fraudulent, and corrupt conduct from the scope of the honest services law. By limiting honest services fraud under the statute to bribes and kickbacks, the Court …
A Synopsis Of Texas And Federal Sovereign Immunity Principles: Are Recent Sovereign Immunity Decisions Protecting Wrongful Governmental Conduct.,
2011
St. Mary's University
A Synopsis Of Texas And Federal Sovereign Immunity Principles: Are Recent Sovereign Immunity Decisions Protecting Wrongful Governmental Conduct., Marilyn Phelan
St. Mary's Law Journal
The Texas Supreme Court recently rendered several decisions involving governmental entities reflecting the court’s inflexible application of the doctrine of sovereign immunity. These decisions raise concerns that the Court may be insulating government employees from adherence to ethical codes of conduct. Just as Congress enacted legislation requiring accuracy and reliability from financial officers of corporations, there exists a similar need for Texas courts to protect the public from governmental harm through misconduct. The current awareness of governmental officials lessens the likelihood of governmental transparency and accountability. This Article analyzes the Court’s current application of the sovereign immunity doctrine to provide …
A Capital Gains Anomaly: Commissioner V. Banks And The Proceeds From Lawsuits.,
2011
St. Mary's University
A Capital Gains Anomaly: Commissioner V. Banks And The Proceeds From Lawsuits., Stephen T. Black, Katherine D. Black, Michael D. Black
St. Mary's Law Journal
When a litigant receives an award of damages or agrees to a settlement of a lawsuit for which the litigant and her attorney have agreed to a contingent fee, a portion of those damages or the settlement is paid to the attorney. For income tax purposes, there is a question of whether the litigant should include the portion paid to her attorney as her own income. The question is not merely academic. In a tax system that does not always allow the litigant to deduct her attorney's fees, the litigant may end up paying tax on money that she never …
Examining The International Judicial Function: International Courts As Dispute Resolvers,
2011
University of Colorado Law School
Examining The International Judicial Function: International Courts As Dispute Resolvers, Anna Spain
Publications
This article examines the judicial function of international courts by considering both what it is and what it ought to be. The article identifies and describes two distinct functions - dispute settlement and peace promotion - and explores the tensions that exist in pursuing these two aims. It then introduces a third way of understanding the international judicial function that respects international courts’ traditional role as dispute settlers while allowing for their more engaged and proactive function as peacemakers. This third approach conceptualizes that the role of international courts is to resolve disputes. Doing so requires understanding courts as entities …
Repair Versus Rejuvenation: The Condition Of Vaginas As A Proxy For The Societal Status Of Women,
2011
Florida A&M University College of Law
Repair Versus Rejuvenation: The Condition Of Vaginas As A Proxy For The Societal Status Of Women, Patricia A. Broussard
Journal Publications
No abstract provided.
A Hypothetical Postulate For The Polemic Of Extraordinary Rendition Vis-A-Vis The Paradigm Of Asymmetric Warfare,
2011
Florida A&M University College of Law
A Hypothetical Postulate For The Polemic Of Extraordinary Rendition Vis-A-Vis The Paradigm Of Asymmetric Warfare, John C. Duncan, Jr.
Journal Publications
This article presents a controversial hypothetical approach to a side of the polemic regarding extraordinary rendition. War is not always controlled by rules, fairness, or ethics. The United States would prefer the foregoing if forced to go to war, but the enemy may not follow the same approach. As a result, the United States becomes hampered by unilaterally self-imposed rules and standards. Conceivably, we could fail to achieve our military objective because of the enemy's adherence to a very different approach and beliefs regarding warfare. Were we to have the privilege of fighting under relatively similar rules with the other …
Cracks In The Firmament Of Burma's Military Government: From Unity Through Coercion To Buying Support,
2011
Indiana University Maurer School of Law
Cracks In The Firmament Of Burma's Military Government: From Unity Through Coercion To Buying Support, David C. Williams
Articles by Maurer Faculty
Despite holding recent elections, Burma’s military government does not intend to relinquish power; its new constitution guarantees the army the right to do whatever it wants. Democracy will therefore not come to Burma through legal, peaceful, incremental steps. Instead, democracy will come to Burma outside the legal process, because the basis for the regime’s power has changed, becoming markedly weaker. When it first seized power in 1961, the military was united and therefore able to rule through coercion alone. In the past several decades, by contrast, the generals have increasingly sought to purchase support by giving income and resource streams …
At Ease: A Primer For Legal Research Related To Military Law Issues,
2011
University of Oklahoma College of Law
At Ease: A Primer For Legal Research Related To Military Law Issues, Darla Jackson
Other Faculty Publications
No abstract provided.
Risk Taking And Force Protection,
2011
Georgetown University Law Center
Risk Taking And Force Protection, David Luban
Georgetown Law Faculty Publications and Other Works
This paper addresses two questions about the morality of warfare: (1) how much risk must soldiers take to minimize unintended civilian casualties caused by their own actions (“collateral damage”), and (2) whether it is the same for the enemy's civilians as for one's own.
The questions take on special importance in warfare where one side is able to attack the other side from a safe distance, but at the cost of civilian lives, while safeguarding civilians may require soldiers to take precautions that expose them to greater risk. In a well-known article, Asa Kasher and Amos Yadlin argue that while …
The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment.,
2011
St. Mary's University
The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs
St. Mary's Law Journal
The notion that the state can punish innocent people disrupts public confidence in the usefulness of the criminal justice system. If, by legislative design, the criminal justice system is not concerned with or is accepting of situations where innocent people are punished by the state, should courts take immediate action? Once criminal defendants exhaust the appellate process, Supreme Court Justices have stated, federal courts should not hear claims of actual innocence. Such statements are supported by the federal habeas corpus statute as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA requires federal habeas courts to …
Respecting The Concept And Limited Liability Of A Series Llc In Texas Comment.,
2011
St. Mary's University
Respecting The Concept And Limited Liability Of A Series Llc In Texas Comment., Bernie R. Kray
St. Mary's Law Journal
The primary advantage of a limited liability company (LLC) is to shield owners from personal liability for the contract and tort obligations of their business entities. To further protect business assets, practitioners often advised clients to form multiple LLCs, each containing single assets. Yet, business owners managing multiple assets and LLCs often found this approach ineffective and cost-prohibitive. Allowing for a single “master” LLC to compartmentalize different series of properties without the need for a distinct holding company, the “series” LLC was the next step. The series LLC permits companies to partition assets and liabilities among various cells or “series,” …
Texas Civil Practice & Remedies Code Sec. 41.0105: A Time For Clarification Comment.,
2011
St. Mary's University
Texas Civil Practice & Remedies Code Sec. 41.0105: A Time For Clarification Comment., April Y. Quinones
St. Mary's Law Journal
The language of the Texas Civil Practice and Remedies Code § 41.0105 is by no means clear. Most Texas practitioners refer to it as the “paid-or-incurred statute.” This is due to the statue stating that recovery of medical or health care expenses are limited to the amount actually paid or incurred by or on behalf of the claimant. Yet, Texas trial lawyers and judges are perplexed by what the statute truly means. Causing further concern, most Texas practitioners do not appear to understand how the statute should be applied. At the center of the debate lies the collateral-source rule and …
Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association.,
2011
St. Mary's University
Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association., Bridget M. Fuselier
St. Mary's Law Journal
Changes must be made to current Texas laws to strike a proper balance between the homeowners’ rights and the homeowners association’s (HOA) rights. The Texas Supreme Court’s decision in Inwood North Homeowners’ Ass’n v. Harris allows liens to attach to what would otherwise be considered homestead-protected property. Although the promise in Inwood was set forth in writing, touched and concerned the land, was intended to run with the land, and was properly recorded, that did not create a contractual lien. The court, however, incorrectly combined the concepts of liens and covenants. Furthermore, the court seemed to ignore the important and …
