On May 31, 2010, Israeli Defense Forces (IDF) intercepted an eight-boat humanitarian flotilla en route to the Gaza Strip. In the course of boarding and taking control of the vessels, the IDF killed ten people and injured approximately fifty. In addition, there were allegedly hundreds of incidents of outrages upon personal dignity, and possibly torture. One of the boats was registered to the Union of the Comoros, a state party to the International Criminal Court (ICC), which referred the situation to the Court. The Prosecutor opened a preliminary examination to determine whether a reasonable basis exists to investigate. Read the full paper at The American Society of International Law.

The United States has a liberal citizenship tradition. With the important exception of racial qualifications, which were not fully eliminated from the nationality law until 1952, barriers to citizenship have been low. Since the adoption of the Fourteenth Amendment to the US Constitution in 1868, the United States has maintained a near-absolute rule of territorial birthright citizenship. Naturalisation requirements have been and continue to be satisfied by permanent residents in most cases upon satisfaction of durational residency requirements. Citizenship law has remained stable in recent decades, for the most part insulated from highly charged debates over immigration policy. Restrictionist successes with respect to immigration policy have not translated into tightened access to citizenship. The parameters of citizenship acquisition have been largely uncontested for more than a century and a half. As a historical matter, citizenship’s low profile is attributable to the country’s immigration roots. Immigration to the United States was open until towards the end of the nineteenth century. Those who came to the United States were assumed to stay. The legal assimilation of immigrants …

These have been heady times for those interested in foreign relations law. The last twenty years have seen the field transformed. In the 1970s and 1980s, Vietnam had triggered significant attention on constitutional war powers, but that interest was more political than scholarly. Other foreign relations law issues were debated only at the margins. The Restatement (Third) supplied a largely unchallenged conventional wisdom in the area, even if some of its main points were more aspirational than descriptive. The courts had long been missing in action; though they had been active in the first century or so of the Republic on international law and foreign relations law issues, probably the most important Supreme Court ruling in the area from the second half of the twentieth-century merely served to confirm the judicial timidity. On many of the most important issues of foreign relations, sparse judicial precedents (such as they existed) had no more than oracular application to contemporary questions. Other actors nonetheless managed to achieve constitutional equilibria with little help from the courts or scholars. The …

The scope of Congress’s authority under the Necessary and Proper Clause is being challenged by a theory that is gaining acceptance in the courts and in legal scholarship. The “great powers” theory posits that some implied powers, even if necessary to effectuate an enumerated power, are not “proper” because of the degree of their importance. According to its advocates, powers that are great, important and substantive cannot derived from implication. This theory is said to enforce the principle that implied powers are necessarily inferior to express powers and to explain why some seemingly incidental powers, but not others, are listed as enumerated powers in Article I, Section 8. This theory is gaining traction. It has recently been adopted by three Supreme Court Justices (including by the Chief Justice in the first Health Care Case) and defended in important scholarly works. Critics have challenged this theory as being too indeterminate to apply and contradicted by the conventional reading of McCulloch. The criticisms in this article are more fundamental — the great powers theory is unsound historically, …

This article identifies three distinct concepts of workplace freedom of association, and traces their influence on the law of union security devices — contractual clauses that require workers, on pain of termination, to remit fees to unions. The “social democratic” concept informed the passage of the NLRA and continues to inform social movement practice. It views workplace freedom of association as a means to the end of ensuring economic democracy, and endorses the so-called “union shop,” under which workers must contribute both to unions’ representational activities and to their political and legislative activities. The “civil libertarian” concept was predominant in Supreme Court doctrine from the Warren Court era until recently. It emphasizes individual rights of expression and political participation, and backstopped the line of cases that declared the union shop unlawful but required workers to help defray representational expenses. The “neoliberal” concept now appears ascendant. It views market behavior as a form of expressive behavior, and views compulsory payment of any fees to unions as unconstitutional compelled association. Disaggregating these concepts can enrich debates around …

Intellectual property law is caught in a widespread debate over whether it should serve incentive or natural rights objectives, and what the best means for achieving those ends are. This article reports a series of experiments revealing that these debates are actually orthogonal to how most users and many creators understand intellectual property law. The most common perception of intellectual property among the American public is that intellectual property law is designed to prevent plagiarism. The plagiarism fallacy in intellectual property law is not an innocuous misperception. This fallacy likely helps explain pervasive illegal infringing activity on the Internet, common dismissal of copyright warnings, and other previously puzzling behavior. The received wisdom has been that the public is ethically dismissive or indifferent towards intellectual property rights. This research reveals instead that experts have failed to comprehend what the public’s conception of intellectual property law actually is. The studies reported here uncover several additional intellectual property law findings, including that: (1) the majority of the American public views intellectual property rights as too broad and too …

This paper reports the results of a study on whether political predispositions influence judicial decision making. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze statutory interpretation problems, however, only the responses of the general-public subjects and not those of the judges varied in patterns that reflected the subjects’ cultural values. The responses of a sample of lawyers (n = 217) were also uninfluenced by their cultural values; the responses of a sample of law students (n = 284), in contrast, displayed a level of cultural bias only modestly less pronounced than that observed in the general-public sample. Among …