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 …
Admitting Light Detection And Ranging (Lidar) Evidence In Texas: A Call For Statewide Judicial Notice.,
2011
St. Mary's University
Admitting Light Detection And Ranging (Lidar) Evidence In Texas: A Call For Statewide Judicial Notice., Ryan V. Cox, Carl Fors
St. Mary's Law Journal
The reliability of LIDAR (Light Detection and Ranging) is generally questioned for one of two reasons. First, when the speeding charge is of such great importance to the defendant that he must challenge the technology. Second, when the defendant is charged with a different and more serious crime because of the traffic stop. In this instance the reliability of the equipment provides the opportunity to question the stops’ underlying probable cause. Assuming the particular jurisdiction has not settled the issue of reliability of LIDAR evidence, the court must require the prosecutor to present expert testimony to show reliability. In the …
Carl Schmitt And The Critique Of Lawfare,
2011
Georgetown University Law Center
Carl Schmitt And The Critique Of Lawfare, David Luban
Georgetown Law Faculty Publications and Other Works
“Lawfare” is the use of law as a weapon of war against a military adversary. Lawfare critics complain that self-proclaimed “humanitarians” are really engaged in the partisan and political abuse of law—lawfare. This paper turns the mirror on lawfare critics themselves, and argues that the critique of lawfare is no less abusive and political than the alleged lawfare it attacks. Radical lawfare critics view humanitarian law with suspicion, as nothing more than an instrument used by weak adversaries against strong military powers. Casting suspicion on humanitarian law by attacking the motives of humanitarian lawyers, they undermine disinterested argument, and ultimately …
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 …
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 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 …
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 …
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 …
Limited War And The Constitution: Iraq And The Crisis Of Presidential Legality,
2011
Yale Law School
Limited War And The Constitution: Iraq And The Crisis Of Presidential Legality, Bruce Ackerman, Oona Hathaway
Michigan Law Review
We live in an age of limited war. Yet the legal structure for authorizing and overseeing war has failed to address this modern reality. Nowhere is this failure more clear than in the recent U.S. conflict in Iraq. Congress self-consciously restricted the war's aims to narrow purposes-expressly authorizing a limited war. But the Bush Administration evaded these constitutional limits and transformed a well-defined and limited war into an open-ended conflict operating beyond constitutional boundaries. President Obama has thus far failed to repudiate these acts of presidential unilateralism. If he continues on this course, he will consolidate the precedents set by …
An Overview Of The Capital Jury Project For Military Practitioners: Aggravation, Mitigation, And Admission Defenses,
2011
Chair and Professor, Criminal Law Department, The Judge Advocate General's Legal Center and School, U.S. Army, Charlottesville, Virginia
An Overview Of The Capital Jury Project For Military Practitioners: Aggravation, Mitigation, And Admission Defenses, Eric R. Carpenter
Faculty Publications
No abstract provided.
The Threat Of Force As An Action In Self-Defense Under International Law,
2011
Vanderbilt University Law School
The Threat Of Force As An Action In Self-Defense Under International Law, James A. Green, Francis Grimal
Vanderbilt Journal of Transnational Law
Self-defense is a universally accepted exception to the prohibition of the use of force in international law, and it has been subjected to careful academic scrutiny. The prohibition of the threat of force, although equally important in terms of its normative status to the prohibition on use, has attracted far less academic commentary to date. This Article examines the relationship between the two prohibitions--of the use and threat of force--and considers the largely unexplored possibility of states utilizing a threat of force as a means of lawful defensive response: self-defense in the form of a threat. The status of this …
The Convention On Cluster Munitions: An Incomplete Solution To The Cluster Munition Problem,
2011
Vanderbilt University Law School
The Convention On Cluster Munitions: An Incomplete Solution To The Cluster Munition Problem, Daniel J. Raccuia
Vanderbilt Journal of Transnational Law
Cluster munitions have been a significant weapon in the world's arsenals for the last half-century, but their use has drawn sharp criticism for its impact on civilian populations. The weapons function by releasing dozens of small "bomblets" over a wide area. For years the debate over these weapons was focused on whether they violated the norms of international humanitarian law, but the 2008 Convention on Cluster Munitions has altered the discussion, banning the weapons outright. However, the major states that use the weapons, including the United States, have not joined the Convention, and the use of cluster munitions continues. This …
U.S. Defense Contracts During The Tax Expenditure Battles Of The 1980s,
2011
University of Michigan Law School
U.S. Defense Contracts During The Tax Expenditure Battles Of The 1980s, Susan J. Guthrie, James R. Hines Jr.
Articles
This paper considers the impact of the tax treatment of military contractors on the cost and timing of U.S. military procurement. Prior to the early 1980s, taxpayers were permitted to defer tax obligations on profits earned from long-term contracts. Legislation passed in 1982, 1986, and 1987 required that at least 70 percent of the profits earned on long-term contracts be taxed as accrued, thereby significantly reducing the tax benefits associated with long term contracting. Comparing contracts that were ineligible for these tax benefits with those that were eligible, it appears that between 1981–1989 the duration of U.S. Department of Defense …
Reemployment Under Userra Sections 4312 & 4313: At Will Employment Vs. Temporary Employment,
2011
Sacred Heart University
Reemployment Under Userra Sections 4312 & 4313: At Will Employment Vs. Temporary Employment, Richard L. Pate
WCBT Faculty Publications
As thousands of service members return to the U.S., severe economic conditions render acclimation to civilian life especially difficult. In 2010, as the combat mission in Iraq approached an end, the unemployment rate of Iraq and Afghanistan era veterans had reached 13.1 percent. The Uniform Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301-4333 (1994) ("USERRA"), was enacted, in great part, to mitigate harms such as those caused by the aforementioned perfect storm. Among other things, USERRA protects service members by entitling them to reemployment after military service. More specifically, USERRA Sections 4312 & 4313 entitle returning service members …
A Lesson From The Holocaust Restitution Movement For Armenians: Generate Momentum To Secure Restitution,
2011
Benjamin N. Cardozo School of Law
A Lesson From The Holocaust Restitution Movement For Armenians: Generate Momentum To Secure Restitution, Vartges Saroyan
Cardozo Journal of Conflict Resolution
This Note proceeds in five parts. Part I provides a historical background of the events prior to and during the Armenian Genocide, and the claims arising out of the Genocide. Part II discusses the status of Genocide restitution and the roadblocks that continue to prevent widespread recovery. Part III explains the timeline of the Holocaust restitution movement and how advocates for restitution were finally able to have some success. Part IV proposes that Genocide-era claims be sought not only by filing lawsuits, but also by creating momentum through negotiation and other principles of ADR. Part V concludes by reiterating the …
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 …
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 …
