Now showing items 21-40 of 1664

    • New Rules or More Global Governance?

      deGuzman, Margaret M. (2018)
      In her book "How Everything Became War and War Became Everything: Tales from the Pentagon," Rosa Brooks argues for “new rules and institutions to manage the paradoxes of perpetual war.” This short Essay suggests that to meet the challenges of the modern war paradigm it is at least as important to expand existing global governance structures as to develop new rules. Such expansion must resist the trend toward centering security and maintain a focus on peace and justice.
    • Complementarity at the African Court

      deGuzman, Margaret M. (2019-05)
      The proposed African Criminal Court, which will form part of the African Court of Justice and Human and Peoples’ Rights, is designed to be complementary to national courts in Africa, as well as to sub-regional courts with criminal jurisdiction. This book chapter analyzes the complementarity provision of the statute of the proposed court, which largely replicates article 17 of the Rome Statute of the International Criminal Court (ICC). It seeks to elucidate the likely relationship between the proposed African Court and the ICC, as well as between the African Court and national and regional courts in Africa. The chapter then addresses the normative question of how the proposed African Court should interact with these other institutions. While a great deal of theoretical work remains to be done in this area, the chapter suggests that as regional and sub-regional criminal courts such as the proposed African Court emerge, they should not be viewed as forming a jurisdictional hierarchy, with national courts at the top and the ICC at the bottom, but rather as providing a menu of adjudicative options. Jurisdictional priority should be decided by balancing a range of factors from practical considerations such as ease of obtaining evidence and custody, to defendants’ rights. Particular attention should be paid to the interests of each institution’s constitutive community in adjudicating a particular case. In this way, national, regional, and international criminal courts can truly complement each other.
    • Defining Crimes Against Humanity: Practicality and Value Balancing

      deGuzman, Margaret M. (2020)
      Since crimes against humanity were first defined in the Charters of the International Military Tribunals at Nuremberg and for the Far East, various international, hybrid and national institutions have adopted definitions that differ in important respects. The International Law Commission’s draft articles are the latest definition, using language that is almost identical to the definition in the Rome Statute of the International Criminal Court. This article explains that decision, as well as the few divergences between the draft articles and the Statute. Defining crimes against humanity involves balancing the value of respecting state sovereignty against that of protecting human rights, and the values of consistency and clarity against those of breadth and flexibility. It argues that in adopting the draft articles, states will affirm the balance among these values that was struck in Rome, but that both definitions contain sufficient flexibility to permit new balances to be found as global values evolve.
    • The International Criminal Court is Legitimate Enough to Deserve Support

      deGuzman, Margaret M.; Kelly, Timothy Lockwood (2019)
      In Allen Buchanan’s essay, "The Complex Epistemology of Institutional Legitimacy Assessments," 33 TEMP. INT’L & COMP. L. J. 323, 323 (2019), he suggests that the legitimacy of the International Criminal Court (ICC) is weak – perhaps so weak that it is unworthy of support. This response argues that Buchanan underestimates the ICC’s legitimacy by misconstruing the institution’s chief justifying function and under-valuing the benefits the institution can provide. Unlike domestic courts, the ICC’s main function is not to uphold the rule of law by deterring crimes, but rather to express global norms in the hopes that over time those norms will permeate the fabric of global society. In light of the complexity of this mandate, and the ICC’s relatively limited resources, it is unsurprising that the institution has faced challenges to its legitimacy in its early years. But these are early years, and we argue that the ICC meets at least to the minimum threshold of legitimacy required to justify giving it support.
    • The Biden Administration Should Signal its Commitment to the Rule of Law by Rescinding the Anti-ICC Executive Order on Day One

      deGuzman, Margaret M. (2021-01-08)
      The Biden administration should rescind President Trump’s executive order attacking the ICC immediately upon taking office. The new administration will have many urgent action items and it may not be immediately apparent why it should give priority to revoking an order that undermines an institution to which the United States is not a party. This comment explains that the importance of this action extends beyond the illegality of the order and the harm it is causing, to the urgent need to signal that the United States is recommitted to the rule of law. By perverting a tool intended to protect people and deter human rights, and using it instead to attack an institution devoted to those aims, the Trump administration has undermined the rule of law in the United States and expressed its disregard for the global rule of law. When President Trump declared ICC efforts to investigate crimes by U.S. personnel to be a “national emergency,” he abused the discretion afforded presidents to keep the United States safe, essentially placing himself above the rule of law. Moreover, by attacking the judicial independence of the ICC, President Trump is seeking to undermine global rule of law. In immediately rescinding the executive order, President Biden will not only undo an illegal action by his predecessor, he will signal to the world a renewed U.S. commitment to the rule of law.
    • Who Bears the Greatest Responsibility for International Crimes?

      deGuzman, Margaret M. (2021)
      This short symposium contribution discusses the concept of greatest responsibility for international crimes in the context of Charles Jalloh's excellent book on the legal legacy of the Special Court for Sierra Leone.
    • Coherentist Deontic Analysis or Dialogic Community Value Identification: Which Way Forward for ICL?

      deGuzman, Margaret M. (2021)
      This symposium contribution explores how two theoretical approaches to international criminal law affect doctrinal analysis, in particular with regard to command responsibility.
    • Engaging Darryl Robinson’s Justice in Extreme Cases: Introduction to the Symposium

      deGuzman, Margaret M. (2021)
      This symposium introduction provides an overview of the issues raised by fourteen scholars of international criminal law as they engage with Darryl Robinson's excellent book, Justice in Extreme Cases: Criminal Law Theory Meets International Criminal Law.
    • Students are Humans First: Advancing Basic Needs Security in the Wake of the COVID-19 Pandemic

      The Hope Center for College, Community, and Justice (Temple University) (2021-08-31)
      The COVID-19 pandemic has undoubtedly exacerbated the challenging situation facing many students in colleges and universities in the United States. To promote student success and address equity issues in higher education, there is an urgent need to treat students as humans first and attend to their basic needs. In this essay, I present evidence pointing to the fact that the pandemic has made student basic needs insecurity even worse. However, well designed and successfully implemented emergency aid programs and other innovative interventions with equity at the center can help address problems in student basic needs insecurity. I present successful examples in addressing student basic needs insecurity and call for sustained and bold actions.
    • When Must Lawyers Learn Science?

      Epstein, Jules (2016-01-21)
    • "Genetic Surveillance" —The Bogeyman Response to Familial DNA Investigations

      Epstein, Jules (2009)
      Familial DNA investigations are the inevitable and controversial extension of DNA identification and databasing. A DNA sample extracted from probative crime scene evidence may be compared to the national database of offenders and found to nearly match a person's profile but with one or more differences, excluding that individual as the perpetrator but presenting the likelihood that the criminal might be a near relative. Investigation of those relatives, and securing their DNA samples, has raised cries of Fourth Amendment violations and the specter of "genetic surveillance." This Article examines this controversy from an innocence perspective, as familial DNA investigations can also clear the wrongly accused. After analyzing such investigations in light of Fourth Amendment precedent, it turns to debunking many of the objections and proposes a set of restrictions that will permit the use of this process while protecting individual rights.
    • "Gruesome" Evidence, Science, and Rule

      Epstein, Jules; Mannes, Suzanne (2016-03-17)
    • The Myths of School Choice: Reflections on the Two-Income Trap Current Issues in Public Policy

      DeJarnatt, Susan L. (2006)
      This essay is a response to The Two-Income Trap: Why Middle-Class Families Are Going Broke by Elizabeth Warren and Amelia Tyagi. My focus is different than the reviews published to date. I address Warren and Tyagi's proposal for switching the public education system to vouchers. The substantial legal literature on vouchers focuses primarily on their constitutionality and some on whether they will produce better schools. My concern is different - I examine the rhetoric claiming vouchers are a fair, parent-driven, and easy way to reform public education. I conclude that, although Warren and Tyagi are right that middle-class families are paying a high financial price to escape what they perceive as failing public schools, the voucher solution will neither improve the failing schools nor relieve the middle-class of the expense of escaping them. Vouchers are not even likely to offer choice to parents so much as choice to schools in selecting their students. Vouchers and public education reform remain in the forefront of public debate. As the penalty phases of No Child Left Behind loom ever larger for public school systems, it is likely that the pressure for vouchers or other forms of school choice will build. This essay contributes to that debate by taking a closer look at the common justifications for school choice through vouchers and examining how this solution will impose unexpected and undesired burdens not only on poor families who are supposed to benefit but on middle-class ones as well.
    • Teaching Analysis

      DeJarnatt, Susan L. (2000-05-01)
    • Bargaining Bankrupt: A Relational Theory of Contract in Bankruptcy

      Lipson, Jonathan C. (2016)
      This Article studies the growing use of contract in bankruptcy. Sophisticated “distress” investors (for example, hedge funds and private equity funds) increasingly enter into contracts amongst themselves and corporate debtors during bankruptcy in order to evade “mandatory” rules on the priority of distributions, thus preferring themselves at the expense of other stakeholders (for example, employees of the corporate debtor). Bankruptcy courts that supervise these cases struggle with these priority-shifting contracts. They are asked to approve them, but have little theoretical or doctrinal guidance on how to assess them. This Article develops a “relational” framework to explore this shift toward contract in bankruptcy. Relationalism seeks to understand power dynamics, and preferences for formal and informal promissory mechanisms in private ordering. Distress investors, bankruptcy professionals (lawyers), and judges in large cases form a classic relationalist environment. They are a community of repeat players with their own norms and preferences for formal and informal promissory exchange. Their contracting practices can affect the hundreds (sometimes thousands) of stakeholders in a large corporate debtor. At the same time, there are growing calls to amend the Bankruptcy Code. Congress, however, has botched recent efforts to do so. Contract may be a better vehicle for institutional adjustment than Congress — if it is perceived as legitimate. A relationalist framework would help sort legitimate from illegitimate contracts in bankruptcy, thus improving our understanding of the system and its operation.
    • Reforming Institutions: The Judicial Function in Bankruptcy and Public Law Litigation

      Noonan, Kathleen G.; Lipson, Jonathan C.; Simon, William (2019)
      Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise. This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial intervention in both spheres responds to coordination problems that make individual stakeholder action ineffective, and it explains how courts in both spheres can require and channel major organizational change without administering the organizations themselves or inefficiently constricting the discretion of managers. The comparison takes on greater urgency in light of the Trump administration’s vow to “deconstruct the administrative state,” a promise which, if kept, will likely increase demand for PLL.