Law Faculty Scholarship
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Benchmarks for Reducing Civilian Harm in Armed Conflict: Learning Feasible Lessons About Systemic Change

Why Indiana Harbor is the Worst Torts Decision in American History

Helping Self-Represented Litigants Isn’t Charity Work, It’s A Professional Obligation

The Legality of Online Daily Fantasy Sports Versus the Illegality of Online Poker

Searching for Accountability Under FISA: Internal Separation of Powers and Surveillance Law

Biden’s Border Problem, and How to Fix It

Is This a Christian Nation? An Introduction

EU Privacy Law and U.S. Surveillance: Solving the Problem of Transatlantic Data Transfers

Ninth Circuit Says President Trump Can Ban Immigrants Without "Approved" Health Insurance

Hernandez v. Mesa: A Catalyst for Change?

Rethinking the Role of NGOs in an Era of Extreme Wealth Inequality: The Example of the Bill & Melinda Gates Foundation

Asylum Ruling Halts Restrictions in New Rule

Federal Court Halts Trump’s Ban on Nonimmigrant Visas

The Libertarian Case for Immigration (and Against Trump)

Asylum Update: Ninth Circuit Upholds Injunction Against Third Country Rule

Boldly Marching Through Closed Doors: The Experiences of the Earliest Female Attorneys in Their Own Words

History of the First Women Project

The Supreme Court Rules That Trump’s DACA Rescission Doesn’t Pass Muster

Immigration Update: Ninth Circuit Rules Against Trump Ban on Uninsured

Trump’s Coronavirus Immigration Order Is a Restriction in Search of a Rationale

Asylum Update: Ninth Circuit Deals Two Defeats to the Trump Administration

Paying for Law School: Law Student Loan Indebtedness and Career Choices

In West Philadelphia Born and Raised or Moving to Bel-Air? Racial Steering as a Consequence of Using Race Data on Real Estate Websites

Fair Housing Enforcement in the Age of Digital Advertising: A Closer Look at Facebook’s Marketing Algorithms

United States Supreme Court Survey: 2018 Term: Iancu v. Brunetti: Free Speech Meets "Immoral and Scandalous" Trademarks in the Supreme Court

The Boundaries of Habeas: Due Process, the Suspension Clause, and Judicial Review of Expedited Removal under the Immigration and Nationality Act

Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan

Justice Department Inspector General’s Report Raises Troubling Questions About FBI’s Role in FISA Cases

Court Issues Preliminary Injunction Against President Trump’s Ban on Uninsured Immigrants

New Homeland Security Asylum Rule Allows Removal to Central American Countries That Have Signed Agreements With the U.S.

Judge Issues Temporary Restraining Order Against Proclamation Barring Uninsured Immigrants

Rescinding Inclusion in the Administrative State: Adjudicating DACA, the Census, and the Military's Transgender Policy

President Trump Bars Uninsured Immigrants From the U.S.

So You Want to Talk About Race by Ijeoma Oluo

Supreme Court Stays Asylum Injunction: Signal on the Merits or Procedural Snag?

What Ending the Flores Agreement on Detention of Immigrant Children Really Means

Ninth Circuit Stays Part of Injunction Against Third Country Asylum Rule

East Bay District Court Enjoins New Asylum Rule

The Administration's New Asylum Rule Exceeds Statutory Authority

Asylum Update: Trump’s ‘Remain in Mexico’ Policy Can Continue, the Ninth Circuit Rules

New Asylum Limits: A Balancing Act for the Homeland Security Secretary

Another Hague Judgements Convention? Bucking the Past to Provide for the Future

Legal Dilemmas Facing White HOuse Counsel int he Trump Administration: The Costs of Public Disclosure of FISA Requests

Supreme Court Reinforces Mandatory Detention of Immigrants

Framing Israel: The U.N. Commission of Inquiry on the Spring 2018 Gaza Border Confrontations

The Role of Deference in Adjudicating the Military Transgender Policy, DACA and the Census

Learning From Millennials in the Legal Workspace

The Travel Ban Decision, Administrative Law

Labor Law Illiteracy: Epic Systems Corp. v. Lewis and Janus v. AFSCME

Digital Realty Trust v. Somers: Whistleblowers and Corporate Retaliation

Rhode Island Women's Bar Association & The History of Women Lawyers in Our State

When Forum Selection Clauses Meet Choice of Law Clauses

The Hard, Simple Truth about Gun Control

The DACA Case: Agencies’ “Square Corners” and Reliance Interests in Immigration Law

Asylum Ban Litigation: Supreme Court Declines to Stay Injunction

Litigation Over the Asylum Ban Continues: District Court Grants Preliminary Injunction

The Ninth Circuit’s Asylum Ban Ruling is a Message to Trump

The Temporary Restraining Order Against Trump’s Asylum Ban: Statutory Structure and Agency Discretion

Barring Asylum Claims: The President Versus the Statute

The IDF MAG’s Gaza Report and Its Critics: Context, Compliance, and Credibility

Kavanaugh and the Military Commissions: Reading the Law “As Written” for an Unpopular Defendant

Forum Selection Clauses and Consumer Contracts in Canada

Trump’s Travel Ban at the Supreme Court: Deference Joined by Nudges Toward Civility

Use of Force at the Gaza Border: A Hybrid Approach to Tactical Challenges

The Inspector General on the FBI in Fall 2016: How a Fateful Delay Set the Stage for the Ultimate October Surprise

Unfit for the Constitution: Nativism and the Constitution, From the Founding Fathers to Donald Trump

The Travel Ban at the Supreme Court: Deference Seems to Prevail

The Travel Ban and Presidential Power

Bans, Borders, and Sovereignty: Judicial Review of Immigration Law in the Trump Administration

Travel Ban Update: Fourth Circuit Affirms Injunction as Supreme Court Awaits Argument

Travel Ban Update: Supreme Court Grants Certiorari

Critical Infrastructure, Cybersecurity, and Market Failure

U.S. Supreme Court Surveys: 2016 Term. Murr. v. Wisconsin: Identifying the Proper "Parcel as a Whole" in Regulatory Takings Cases

U.S. Supreme Court Surveys: 2016 Term. Matal v. Tam: Free Speech Meets "Disparaging" Trademarks in the Supreme Court

United States Supreme Court Surveys: 2016 Term. Still Standing After All These Years: Five Decades of Litigation Under the Fair Housing Act and the Supreme Court Still Can't Say for Sure Who Is Protected

Treason and Terror: A Toxic Brew

Deconstructing Sanctuary Cities: The Legality of Federal Grant Conditions That Require State and Local Cooperation on Immigration Enforcement

Curbing Remedies for Official Wrongs: The Need for Bivens Suits in National Security Cases

Nation-States and Their Operations in Planting of Malware in Other Countries: Is It Legal Under International Law

The Klan's Constitution

Sky Is the Limit: Protecting Unaccompanied Minors by Not Subjecting Them to Numerical Limitations

Travel Ban Update: Ninth Circuit Holds EO-3 Exceeds President’s Power

The Fourth Circuit Travel Ban Argument: Framing the Challengers’ Case for the Supreme Court

Ninth Circuit Argument Turns on Whether the Ban Clashes with the Immigration Act

Travel Ban Update: Without Addressing the Merits, the Supreme Court Stays Injunction Pending Further Proceedings

Travel Ban 3.0: The Hawaii TRO Is Right on the Statute

The New Travel Ban: Undermining the Immigration and Nationality Act

Full Supreme Court Stays Ninth Circuit Order on Refugee Assurances

Ninth Circuit Protects Refugees with Assurances of Sponsorship

Refugee EO: Hawaii’s Response to the Government’s Request for a Stay

Refugee EO Update: The Supreme Court Hands Each Side a Partial Victory

Refugee EO Stay: Ninth Circuit Dismisses Hawaii’s Appeal But Draws a Roadmap for Future Litigation

Hawaii Judge Watson Declines to Clarify Scope of Preliminary Injunction on Executive Order 13,780

The EO Stay: The Government Doubles Down on Excluding Grandparents and Refugees

Implementing the Refugee EO: The State Department Should Consider Refugee Agency Assurances as Bona Fide Relationships

Implementing the Refugee EO: Add Grandparents

Containing Iran and Maintaining Legitimacy

The Ninth Circuit’s Refugee EO Decision: Methodically Misreading the Immigration Statute

The Fourth Circuit and the Refugee EO: Establishing Confusion

The Ninth Circuit and the Refugee EO: Back to the Statute?

The Fourth Circuit Argument on the Refugee EO: Second-Guessing the President or Safeguarding Individual Rights?

Searching for Federal Judicial Power: Article III and the Foreign Intelligence Surveillance Court

Attaching Domestic Assets to Remedy High Seas Pollution: Rule B and Marine Debris

Introduction to the 10th Marine Law Symposium

Children Crossing Borders: Internationalizing the Restatement of the Conflict of Laws

Enjoining the Revised Refugee EO: The Hawaii District Court “Waters Down” the Separation of Powers

Upholding the Revised Refugee Executive Order: A Virginia District Court Clari􀂽es the Establishment Clause Issues

The Revised Refugee Executive Order in the Courts: Detour or Speed-Bump?

The Revised Refugee EO in the Courts II: The Flawed Maryland District Court Decision

The Revised Refugee EO: Reports Show a Clear Turn Toward Legal Compliance

The DHS Border Memo II: Removal First, Hearing Later?

The DHS Border Memo: Ramping Up Expedited Removal and Raising Tensions with Mexico and with Due Process

Ninth Circuit Agrees to Wait for Revised Refugee Executive Order

The Ninth Circuit on the Refugee EO: The Government’s Least Bad Option

The Refugee EO in the Ninth Circuit: Rights, Wrongs, and Remedies

The Refugee Executive Order, the Immigration Act, and the Government’s Bottom Line

Judge Gorsuch on Empathy and Institutional Design

A Legal and Policy Analysis of Driver's Licenses for Undocumented Rhode Islanders

Franchise Tax Board of California v. Hyatt: A Split Court, Full Faith and Credit, and Federal Common Law

DIRECTV, Inc. v. Imburgia and the Continued Ascendance of Federal Common Law: Class-Action Waivers and Mandatory Arbitration Under the Federal Arbitration Act

Illegal Stops and the Exclusionary Rule: The Consequences of Utah v. Strieff

Wealth Inequality as Explained by Quantitative Easing and Law's Inertia

How the Constitution Become Christian

Surveillance’s Future: A Pragmatic Take from the Center for a New American Security

The D.C. Circuit’s En Banc Decision in Bahlul: Sui Generis or Guidance for Future Military Commissions?

NSA Compliance and Congress’s Plan: How to Account for Flaws in the Metadata Program?

Whose Law of Personal Jurisdiction? The Choice of Law Problem in the Recognition of Foreign Judgements

It is black-letter law that in order to recognize and enforce a foreign judgment, the rendering court must have had personal jurisdiction over the defendant. While the principle is clear, it is an open question as to whose law governs the question of personal jurisdiction: that of the rendering court or that of the recognizing court. In other words, is the foreign court's jurisdiction over the defendant governed by foreign law (the law of F1), domestic law (the law of F2), or some combination thereof? While courts have taken a number of different approaches, it seems that many courts regard foreign law as relevant to the question of whether the foreign court possessed personal jurisdiction over the defendant.

In this Article, I argue that U.S. courts should not be looking to foreign law (in whole or in part) to determine whether a foreign court had jurisdiction over the defendant in the original action. I present five arguments in support of this contention: (1) there is no statutory authority pointing to the application of foreign law; (2) U.S. courts are not well-positioned to apply foreign jurisdictional law; (3) re-examining assertions of jurisdiction under foreign law violates international comity, (4) an examination of foreign law is usually unnecessary because jurisdiction is also assessed according to U.S. standards; and (5) U.S. courts do not do a good job applying foreign jurisdictional law. Instead, I argue that courts should apply American law to assess whether a foreign court was jurisdictionally competent. This, in turn, raises the question: What is "American" law? I maintain that courts should apply broad federal standards of jurisdiction, and not state-based ones, to determine whether the rendering court had personal jurisdiction over the defendant.

This Article also looks closely at two particular areas of jurisdiction law that are particularly complicated as they relate to the choice of law issue: submission and notice. With respect to submission, U.S. courts seem to be unclear as to whose law applies in assessing whether a defendant in a foreign action submitted to the jurisdiction of the foreign court. In particular, many U.S. courts defer to the foreign court's interpretations as to whether the acts of the defendant constituted submission. With respect to notice, there is a lack of clarity as to how notice relates to personal jurisdiction in the context of the recognition and enforcement of foreign judgments. Here too, there is confusion as to whose law of notice applies in assessing whether a defendant received adequate notice of the proceeding. Consistent with the argument above, this Article takes the position that U.S. standards, and not foreign ones, should ultimately guide the submission and notice inquiries in the recognition context.

Finally, because much of the law in this area is codified in either the 1962 Uniform Foreign Money-Judgments Recognition Act or the 2005 Uniform Foreign-Country Money Judgments Recognition Act, I propose concrete changes to the language of the uniform acts that would address the choice of law problem in the recognition of foreign judgments and would clarify the intersection between notice and personal jurisdiction in the uniform acts.

https://docs.rwu.edu/law_fac_fs/127

DC Circuit in Al-Nashiri: All Clear for Military Commission Trial

Lessons from Gaza: The Rhetoric and Reality of Independence in War Crimes Investigations

Surveillance by Algorithm: The NSA, Computerized Intelligence Collection, and Human Rights

Madison at Fort Meade: Checks, Balances, and the NSA

Centcom Report on the Kunduz Hospital Attack: Accounting for a Tragedy of Errors

Executive Power and the SCOTUS Argument on President Obama’s Immigration Plan

Transatlantic Setback or Invitation to Dialogue?: EU Data Regulators’ Verdict on Privacy Shield

Privacy Shield’s Prospects: The Good, the Bad, and the Ugly

Terrorist Sanctions: The Clash in US and EU Approaches

Reauthorizing the FISA Amendments Act: A Blueprint for Enhancing Privacy Protections and Preserving Foreign Intelligence Capabilities

Fighting Over the Conservative Banner

LOAC and Artillery in Urban Areas: The Case of Gaza 2014

Justice at War: Military Tribunals and Article III

DOJ’s “All-Tools” Approach to Cyber and National Security

Schrems and the FAA’s “Foreign Affairs” Prong: The Costs of Reform

Deferred Action and the Bounds of Agency Discretion: Reconciling Policy and Legality in Immigration Enforcement

The New Road to Serfdom: the Curse of Bigness and the Failure of Antitrust

This Article argues for a paradigm shift in modern antitrust policy. Rather than being concerned exclusively with consumer welfare, antitrust law should also be concerned with consolidated corporate power. Regulators and courts should consider the social and political, as well as the economic, consequences of corporate mergers. The vision that antitrust must be a key tool for limiting consolidated corporate power has a venerable legacy, extending back to the origins of antitrust law in early seventeenth century England, running throughout American history, and influencing the enactment of U.S. antitrust laws. However, the Chicago School's view that antitrust law should be exclusively concerned with consumer welfare - that is, total industry output and consumer prices-has now become the consensus view. The result has impoverished communities, decreased innovation, increased corporate cronyism, and diminished the freedom of American citizens. This is too important a topic to be left up to antitrust specialists alone. As it was during the presidential election of 1912, antitrust must again be a subject of wide public debate.

https://docs.rwu.edu/law_fac_fs/116

Defining Foreign Affairs in Section 702 of the FISA Amendments Act: The Virtues and Deficits of Post-Snowden Dialogue on U.S. Surveillance Policy

Second-Guessing Congress on Military Commissions

The Boundaries of Executive Discretion: Deferred Action, Unlawful Presence, and Immigration Law

Clapper and the Costs of Overlooking Use Restrictions

Presidential Power and Enjoining the Obama Immigration Plan

The Role of Naval Power in the Development of Customary International Law

The SSCI Report and Its Critics: Torturing Efficacy

Dynamic Surveillance: Evolving Procedures in Metadata and Foreign Content Collection After Snowden

President Obama’s Immigration Plan: Rewriting the Law

The Al Bahlul Argument: Article III, Conspiracy, and Precepts of International Law

Sweeping Claims and Casual Legal Analysis in the Latest U.N. Mass Surveillance Report

Designing Law School Externships That Comply with the FLSA

Reply to Steve on al Bahlul, the “Law of War,” and Article III

Article III, the Framers, and al Bahlul: A Reply to Steve

Al Bahlul and Article III: A Reply to Marty and Steve

Bahlul and the Power of Congress to Define International Law

The PCLOB on Human Rights & 702: Punt or Long Game?

Abstention, Balancing the Equities, and Armed Conflict in Al-Nashiri: A Reply to Steve Vladeck and Kevin Jon Heller

Al-Nashiri, the Cole Bombing, and the Start of the Conflict with Al-Qaeda

Yale Symposium: Unpacking NSA's Global Problem

In Re Qimonda AG: The Conflict Between Comity and the Public Policy Exception in Chapter 15 of the Bankruptcy Code

The US and Human Rights: A Federalist Society Debate

A Reply to Wittes on the United States and Extraterritoriality

Extraterritoriality and Human Rights: Time for a Change in the U.S. View?

Of Relevance and Reform Under Section 215

FISC Query Preapproval: Intelligence Burden or Bump in the Road?

The American Liberty League and the Rise of Constitutional Nationalism

Judge Pauley’s Opinion in Clapper: Reset Button for Bulk Collection Debate?

This article was originally found in Lawfare, available here:
https://docs.rwu.edu/law_fac_fs/256

Desperately Seeking Substance (Not Slogans) in Review Group Report on NSA Surveillance

The First Circuit and the First Amendment

Jurisdiction and the Enforcement of Foreign Judgments

Al-Libi and Detention at Sea

Final Word on the Bahlul Brief

Sur-Reply to Heller on al Bahlul

A Response to Steve Vladeck and Kevin Jon Heller

(Still) A "Real and Substantial" Mess: The Law of Jurisdiction in Canada

Immigration Consequences to a Charge of Simple Assault or Battery

Networks in Non-International Armed Conflicts: Crossing Borders and Defining "Organized Armed Group"

Defining, Punishing, and Membership in the Community of Nations: Material Support and Conspiracy Charges in Military Commissions

Customary International Law as Explained by Status Instead of Contract

Reforming Lawyers into Irrelevance?: Reconciling Crisis and Constraint at the Office of Legal Counsel

Is Canada the New Shangri-La of Global Securities Class Actions?

There has been significant academic buzz about Silver v. Imax, an Ontario case certifying a global class of shareholders alleging statutory and common law misrepresentation in connection with a secondary market distribution of shares. Although global class actions on a more limited scale have been certified in Canada prior to Imax, it can now be said that global classes have "officially" arrived in Canada. Many predict that the Imax decision means that Ontario will become the new center for the resolution of global securities disputes. This is particularly so after the United States largely relinquished this role in Morrison v. National Australia Bank.

Whether Imax proves to be a meaningful precedent or simply an aberration will largely depend on whether the court dealt appropriately with the conflict of laws issues at the heart of the case. No author has yet addressed the conflict of laws complications posed by the certification of global class actions in Canada; this Article seeks to fill that void. In particular, I use the Imax case as a lens through which to canvass the conflict of laws issues raised by the certification of global classes. I look at the difficult questions of jurisdiction simpliciter, recognition of judgments, choice of law, parallel proceedings, and notice/procedural rights that need to be addressed now that global classes have come to Canada.

A Fundamental Flaw with UNCITRAL's Approach to Cross-Border Secured Transactions: The Failure to Address Creditor Due Diligence Issues

Transnational Class Actions and the Illusory Search for Res Judicata

The transnational class action-a class action in which a portion of the class consists of non-US claimants-is here to stay Defendants typically resist the certification of transnational class actions on the basis that such actions provide no assurance of finality for a defendant, as it will always be possible for a non-U.S. class member to initiate subsequent proceedings in a foreign court. In response to this concern, many U.S. courts will analyze whether the "home" courts of the foreign class members would accord res judicata effect to an eventual U.S. judgment prior to certifying a U.S. class action containing foreign class members. The more likely the foreign court is to recognize a US. class judgment, the more likely an American court will include those foreigners in the U.S. class action.

Current scholarship accepts propriety of the res judicata analysis but questions the manner in which the analysis is carried out. This Article breaks from the existing literature by arguing that the dynamics of class litigation render the res judicata effect of an eventual U.S. class judgment inherently unknowable to a U.S. court ex ante. In particular, I argue that certain "litigation dynamics"-specifically the process of proving foreign law via experts, the principle of party prosecution, and the litigation posture of the action-complicate the transnational class action landscape and prevent a court from accurately analyzing the res judicata issues at play. This is exacerbated by the "structural dynamics" of class litigation: the complexity of foreign law on the recognition and enforcement of judgments, the newness of class action law in most foreign countries, and the distinction between general and fact-specific grounds for nonenforcement of a U.S. class judgment. Accordingly, I argue that U.S. courts should abandon their illusory search for res judicata.

Instead courts should avoid the res judicata problem altogether by employing an opt-in mechanism for foreign class plaintiffs, whereby such plaintiffs are not bound unless they affirmatively undertake to be bound by U.S. class judgment. An opt-in mechanism for foreign plaintiffs also provides several advantages over the current opt-out mechanism: it allows all foreign claimants to participate in U.S. litigation if they so choose; it provides additional due process protections for absent foreign claimants; it respects international comity; and it sufficiently deters defendant misconduct.

Learning How to Learn: Carnegie's Third Apprenticeship

When the Restatement is not a Restatement: The Curious Case of the "Flagrant Trespasser"

Can Popular Constitutionalism Survive the Tea Party Movement?

The Tea Party Movement and the Perils of Popular Originalism

The Tea Party movement presents something of a curiosity for constitutional theory because it combines originalist ideology and popular constitutionalist methods. Like minotaurs, werewolves, and other half-man, half-animal hybrids of myth and legend, the Tea Party's hybrid of originalism and popular constitutionalism serves to expose the limitations of both sources upon which it draws. Although originalists assert that interpreting the Constitution according to its original meaning would take politics out of constitutional law, the Tea Party movement shows that originalism also provides a powerful political rhetoric. Moreover, while popular constitutionalists assert that democracy would be advanced by empowering the people to effectuate their constitutional understandings through ordinary politics, the Tea Party movement shows that when a popular movement advances a narrow, nationalist understanding of the Constitution, popular constitutionalism can also serve to restrict popular democracy

Advising Terrorism: Material Support, Safe Harbors, and Freedom of Speech

The Tea Party's Constitution

Judging Myopia in Hindsight: Bivens Actions, National Security Decisions, and the Rule of Law

Liability in national security matters hinges on curbing both official myopia and hindsight bias. The Framers knew that officials could be short-sighted, prioritizing expedience over abiding values. Judicial review emerged as an antidote to myopia of this kind. However, the Framers recognized that ubiquitous second-guessing of government decisions would also breed instability. Balancing these conflicting impulses has produced judicial oscillation between intervention and deference. Recent decisions on Bivens claims in the war on terror have defined extremes of deference or intervention. Cases like Ashcroft v. Iqbal and Arar v. Ashcroft display a categorical deference that rewards officials' myopia. On the other hand, courts in Padilla v. Yoo and al-Kidd v. Ashcroft manifest an equally categorical interventionism that institutionalizes hindsight bias. To break with the categorical cast of both deferential and interventionist decisions, this Article proposes an innovation-eliciting approach. Inspired by remedies for cognitive bias and regulatory failure, it gives officials a stake in developing alternatives to both overreaching and abdication. Officials who can demonstrate they have implemented alternatives in other contexts that are both proportional and proximate in time to the instant case buy flexibility and dismissal of the lawsuit before the qualified immunity phase. By leveraging officials' experiences and expertise, the innovation-eliciting approach tames the "pendular swings" in policy that Justice Kennedy in Boumediene v. Bush viewed as undermining both liberty and security.

The Costs of Abusing Probationary Sentences: Overincarceration and the Erosion of Due Process

The Ivory Tower at Ground Zero: Conflict and Convergence in Legal Education's Responses to Terrorism

Equitable Balancing in the Age of Statutes

Personal Jurisdiction over Non-Resident Class Members: Have We Gone Down the Wrong Road?

From Feudal Land Contracts to Financial Derivatives: The Treatment of Status Through Specific Relief

The Detainees' Dilemma: The Virtues and Vices of Advocacy Strategies in the War on Terror

The State of Rule 3.8: Prosecutorial Ethics Reform Since Ethics 2000

What is Specific about Specific Restitution

Money as Simulacrum: The Legal Nature and Reality of Money

Chapter 15 of the Bankruptcy Code and Its Implicit Assumptions Regarding the Foreign Exchange Market

Prosecutors' New Ethical Duty Relating to Wrongful Convictions

The Clear and Present Internet: Terrorism, Cyberspace, and the First Amendment

True Believers at Law: National Security Agendas, the Regulation of Lawyers, and the Separation of Powers

Ideological agendas distort the deliberation required for sound legal advice about national security. Elite government lawyers after September 11 advanced a theory at the expense of context, labeling legal constraints as "lawfare" against American interests. The lawfare critics failed to recognize that legal constraints can empower decision makers by reinforcing reputational and other long-term values. They also failed their history test, ignoring the lessons of presidents from Jefferson to Kennedy who rejected a rigid adherence to ideology in the national security realm. By discounting context, the construction of the lawfare paradigm produced dire results, including the torture memos drafted by the Justice Department's Office of Legal Counsel ("OLC") and the destruction of CIA interrogation tapes.

Unfortunately, this elevation of ideology over context has failed to yield adequate remedies. Tort litigation, exemplified by Jose Padilla's recent lawsuit against former OLC attorney John Yoo, risks personalizing the problem and neglecting systemic issues. The informal norms approach suggested by a number of OLC alumni, while offering a number of excellent proposals such as citing and distinguishing adverse authority, has not attracted stakeholders across the political spectrum. A structural reform approach that replaces OLC with an adjudicative entity may produce an inquisitorial tribunal that lacks sharp adversarial inputs and loses influence to more pliable players such as White House counsel.

To transcend these difficulties, lawyers should turn to a model of dialogic equipoise relying on two values: transparency and tailoring. Dialogic equipoise allows the President to take action that is consistent with the most accurate reading of sources of authority. Action, however, must be both interstitial-with a clear exit strategy and publicly disclosed. To implement the dialogic equipoise model, this Article recommends an integrated approach, including a safe harbor for publicly disclosed legal opinions, consideration of institutional consequences, assertion of the least drastic rationale for executive power, and an ex ante role for Inspectors General and the OLC in document preservation. This blended regime can counter ideology's corrosive influence on legal deliberation about war, peace, and national security.

Gun Control and America's Cities: Public Policy and Politics

Heller and Insurrectionism

Introduction: Genuine Tort Reform

Promissory Estoppel and the Protection of Interpersonal Trust

Roger Williams University School of Law Mediation Clinic, Bristol, Rhode Island, USA

Rescuing Burke

The Retrogressive Flaw of Chapter 15 of the Bankruptcy Code: A Lesson from Maritime Law

When to Push the Envelope: Legal Ethics, the Rule of Law, and National Security Strategy Legal Issues Surrounding Guantanamo Bay

Art as Speech

When to Push the Envelope: Legal Ethics, the Rule of Law, and National Security Strategy

The Perils of Glasnost

The New Chapter 15 of the Bankruptcy Code: a Step Toward Erosion of National Sovereignty

Civil Due Process, Criminal Due Process

The Military Commissions Act, Coerced Confessions, and the Role of the Courts

The Democratic Prosecutor: Explaining the Constitutional Function of the Federal Grand Jury

Beyond Absolutism: Legal Institutions in the War on Terror

Fugitive Slaves and Ship-jumping Sailors: The Enforcement and Survival of Coerced Labor

This article explores the relationship between the law of maritime labor and the law of slavery. In the eighteenth century, both sailors and slaves were part of a broad regime of unfree labor relations, with slaves, of course, the most oppressed. In the nineteenth century, an era otherwise supposedly devoted to the ideal of "free" labor, sailors and slaves instead remained unfree, subject to federal laws providing for the forced return to their toils if they deserted - the Merchant Seaman's Act and the Fugitive Slave Act. Both of those statutes were deemed to be within Congress' authority, despite questionable foundations for those conclusions on the face of the Constitution. Exploring the similarities and differences between the conditions and legal treatment of merchant seamen and slaves may yield important insights into the understanding of the congressional reaction to those conditions and the Supreme Court's understanding of Congressional power.

Police Prosecution in Rhode Island: The Unauthorized Practice of Law

Every day in Rhode Island, police officers are practicing law without a license in both the District Court and the Traffic Tribunal. They do so with the full stamp of approval of the judges before whom they appear, despite the fact that the unauthorized practice of law is a crime in Rhode Island, as it is in every other state in the country. While one can certainly speculate about reasons why this practice has developed, there is nothing in any published decision of the Supreme Court of Rhode Island or in any state statute that appears to permit or justify it. And, although the vast majority of police prosecutors in Rhode Island are dedicated and highly qualified public servants who do their jobs in good faith and to the best of their abilities, the fact remains that it is a highly problematic practice to allow police officers, who are not licensed attorneys, to prosecute criminal and traffic cases. After first explaining the various ways in which police officers routinely engage in the unauthorized practice of law in the District Court and the Traffic Tribunal, the authors explore a few of the many reasons why this unlawful practice is simply bad public policy.

Money as a "Specific" Remedy

Statutory Caps and Judicial Review of Damages

Roger Williams on Liberty of Conscience

The United Nations Compensation Commission and the Balancing of Rights Between Individual Claimants and the Government of Iraq

Mixed Signals and Subtle Cues: Jury Independence and Judicial Appointment of the Jury Foreperson

Imagine that you are falsely accused of a serious crime and that you are now on trial before a judge and jury. You knew before the trial began that the judge had a reputation as a “law and order” judge, as a judge who was not at all receptive to the arguments of most criminal defense attorneys. You have been watching as the judge and your attorney have been engaged in what appears to be an adversarial battle throughout the trial, but you have taken some comfort in the fact that it will be the jury, not the judge, who will make the factual determinations with respect to your case. As is typical, you and your attorney are more comfortable with some of the jurors than with others, but you hope that one of the jurors in whom you have more faith will become the foreperson and that he or she will control the deliberation process. You also hope that some of your less favored jurors may ultimately be designated as alternate jurors and, therefore, be excluded from the deliberation process. After the judge has instructed the jury on the law, much to your surprise, the judge hand-picks one member of the jury to be the foreperson, exempting that juror from possible designation as an alternate and effectively guaranteeing that that juror will play a dominant role in the deliberation process. What is not surprising, from your point of view, is that the judge has appointed the juror that you and your attorney – and probably the judge as well – have viewed as the most antagonistic to the defense. You believe – with some significant justification – that the judge has inappropriately interfered with the jury’s deliberative process. You also believe – again with some significant justification – that the judge has violated your right to have a fair and impartial jury decide the facts of your case. But can these beliefs be successfully litigated in an appellate court? These are the issues that this article seeks to address.

Above Contempt?: Regulating Government Overreaching in Terrorism Cases

Prosecutors face the continual temptation to overreach in decisions about the control of information. At each phase of a criminal proceeding, from investigation through trial, prosecutors make crucial decisions about information to disclose and highlight with courts, juries, and the public. In ordinary times, courts, defense counsel, the media, and internal sources of oversight can place some constraints, however tenuous, on the prosecutor’s efforts to monopolize the management of information. However, external events, such as the attacks of September 11, 2001, can weaken these constraints, producing alarming spikes in prosecutorial power.

Is There a "Religious Question" Doctrine?: Judicial Authority to Examine Religious Practices and Beliefs

Researching the Laws of the Colony of Rhode Island and Providence Plantations: From Lively Experiment to Statehood

Comparison to Criminal Sanctions in the Constitutional Review of Punitive Damages

Fear-Mongering Torts and the Exaggerated Death of Diving

Another of Roger William's Gifts: Women's Right to Liberty of Conscience: Joshua Verin v. Providence Plantations

Judging Terror in the "Zone of Twilight" Exigency, Institutional Equity, and Procedure After September 11

Culture of Quiescence

The Use of Prior Convictions after Apprendi

Researching the Laws of the Colony of Rhode Island and Providence Plantations

Roger Williams is generally recognized as the founder of Rhode Island. Although his settlement of Providence in 1636 was not the first or only settlement in the area, he was able to open the whole region to English settlement. Due to his friendship with local Indians and knowledge of their language he obtained land from the Indians and assisted other settlers in doing the same. When Williams was banished from the Massachusetts Bay Colony in 1635 because of his rejection of Puritanism, his friend, Governor John Winthrop, suggested that he start a new settlement at Narragansett Bay. Founders of other early settlements also migrated from the Massachusetts colony seeking religious freedom. Rhode Island began as four separate towns, which were not incorporated until a joint government was formed in 1647, under the “Incorporation of Providence Plantations,” or Charter of 1644. Until the granting of that charter, Rhode Island had no authority to exist as an English colony.

The official name of the state remains today “Rhode Island and Providence Plantations.” Rhode Island refers to Aquidneck Island, the location of the present-day towns of Portsmouth, Middletown, and Newport. According to Howard Chapin’s Documentary History of Rhode Island, “the earliest appearance of the name Rhode Island as the designation of the island of Aquidneck is in a letter from Roger Williams to Deputy Governor John Winthrop ... which from its context was evidently written in the spring of 1637.” As described below, the Island was one of the first areas in the Colony to be settled. Providence Plantations refers to early settlements at the northern end of the Narragansett Bay, in Providence and the surrounding area. The word plantation has the meaning of a settlement in a new country or region: colony.

Parts II, III, and IV of this paper consist of bibliographic essays covering three main periods in the early development of the Colonial government and legal institutions of Rhode Island: 1636-1647, the formation of the four original towns and their consolidation under a Parliamentary Patent, or Charter; 1647-1663, government under the Code of 1647 and the issuance of a Royal Charter; and 1663-1776, governance under the Royal Charter and the deterioration of relations with the monarchy leading to a declaration of independence. While the history of Rhode Island is fascinating, only the bare essentials are provided in this article, sufficient to explain the background and context in which legal institutions developed in the Colony.

Part V deals with legislative documents and includes a bibliographic listing of important legislative documents of the colonial period. Part VI addresses the early development of Rhode Island’s court system, and includes a bibliographic listing of both primary and secondary sources on the history of the courts. The conclusion provides a list of additional sources for researching the history, government, and laws of colonial Rhode Island, including archival collections in the state.

The Battle for Separation of Powers in Rhode Island

The Useful, Dangerous Fiction of Grand Jury Independence

Delusions of Grand Juries

Misclassifying Monetary Restitution

Uncertain Arrivals: Immigration, Terror, and Democracy After September 11

Reviewing Congressionally Created Remedies for Excessiveness

WHAT DOES THE SECOND AMENDMENT RESTRICT? A COLLECTIVE RIGHTS ANALYSIS

Democratic Transitions and the Future of Asylum Law

The United States's commitment to protecting refugees is dying a slow death. Two developments have contributed to its demise. The first, widely heralded, is the United States Congress's evisceration of procedural safeguards such as judicial review. The second development is more insidious: expansion of the asylum law doctrine, which holds that changed country conditions can defeat an otherwise valid asylum claim. In an age in which democracy seems triumphant throughout the world, the combination of severely curtailed judicial review and mechanical application of the changed conditions doctrine relegates refugees, as well as asylum law itself, to an uncertain future.' This article argues that the rise of the changed country conditions doctrine stems from judicial and administrative confusion about both the role of both "subjective" and "objective" factors in asylum law and the nature of democratic transitions.

Coercion, Pop-Psychology, and Judicial Moralizing: Some Proposals for Curbing Judicial Abuse of Probation Conditions

Roger Williams's Gift: Religious Freedom in America

Taking the Cop out of Copping a Plea: Eradicating Police Prosecution of Criminal Cases

The Hidden History of the Second Amendment

Sexual Psychopath Legislation: Is There Anywhere to Go but Backwards?

Progressive Lawyering and Lost Traditions