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Unquiet Americans: U.S. Catholics, Moral Truth, and the Preservation of Civil Liberties

Gerard V. Bradley

Before the Second Vatican Council, America’s Catholics operated largely as a coherent voting bloc, usually in connection with the Democratic Party. Their episcopal leaders generally spoke for Catholics in political matters; at least, where America’s bishops asserted themselves in public affairs there was little audible dissent from the faithful.

More than occasionally, the immigrant Church’s eagerness to demonstrate its patriotic bona fides furthered its tendency to speak with one voice about national matters, and in line with the broader societal consensus. And, notwithstanding the considerable conflict which Catholics encountered, and generated, in American political life, there was before the Council broad agreement in American culture about the centrality of Biblical morality to the success of Americans’ experiment with republican government.

In other words: before the Council, American Catholics’ relationship to the political common good was mediated, somewhat uncritical, and insulated from conflict (both within and without the Church) over such fundamental matters as protection of innocent life, marriage and family life, and (to a lesser extent) religious liberty.

This has all changed since the mid-1960s. For the first time in the Church’s pilgrimage on these shores, controversial questions about the basic moral requirements of the political common good are front and center for America’s Catholics. These questions require Catholics to confront matters which heretofore they either took for granted, read off from the background culture, or which they left to the bishops to handle. But the Council Fathers rightly recognized that Jesus calls upon a formed and informed laity to act as leaven in the public realm, to bring Gospel values to the temporal sphere. In this book of essays touching upon Catholic social doctrine, the truth about human equality and political liberty, and religious faith as it bears upon public life and the public engagement of lay Catholics, Gerard Bradley supplies indispensable aid to those seeking to answer Jesus’ call.
Equity and Law: Fusion and Fission

Samuel L. Bray

Book Chapter

Samuel Bray, Equity in Equity and Law: Fusion and Fission 31(John C.P. Goldberg, Henry E. Smith & P.G. Turner, ed., 2019)

The fusion of law and equity in common law systems was a crucial moment in the development of the modern law. Common law and equity were historically the two principal sources of rules and remedies in the judge-made law of England, and this bifurcated system travelled to other countries whose legal systems were derived from the English legal system. The division of law and equity - their fission - was a pivotal legal development and is a feature of most common law systems. The fusion of the common law and equity has brought about major structural, institutional and juridical changes within the common law tradition. In this volume, leading scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a 'post-fusion' world.
International Survey of Family Law

Margaret Brinig

The International Society of Family Law is an independent, international, and non-political scholarly association dedicated to the study, research and discussion of family law and related disciplines. The Society’s membership currently includes professors, lecturers, scholars, teachers, and researchers from more than 50 different countries, offering a unique opportunity for networking within a truly international family law community.

The International Survey of Family Law is the annual review of the International Society of Family Law. It brings together reliable and clearly structured insights into the latest and most notable developments in family law from all around the globe.
Routledge Handbook of International Family Law

Margaret F. Brinig

Book Chapter

Margaret F. Brinig, Child Support, in Routledge Handbook of International Family Law 144 (Barbara Stark & Jacqueline Heaton eds., 2019)

Globalisation, and the vast migrations of capital and labour that have accompanied it in recent decades, has transformed family law in once unimaginable ways. Families have been torn apart and new families have been created. Borders have become more porous, allowing adoptees and mail order brides to join new families and women fleeing domestic violence to escape from old ones. People of different nationalities marry, have children, and divorce, not necessarily in that order. They file suits in their respective home states or third states, demanding support, custody, and property. Otherwise law-abiding parents risk jail in desperate efforts to abduct their own children from foreign ex-spouses.

The aim of this Handbook is to provide scholars, postgraduate students, judges, and practioners with a broad but authoritative review of current research in the area of International Family Law. The contributors reflect on a range of jurisdictions and legal traditions and their approaches vary. Each chapter has a distinct subject matter and was written by an author who was invited because of his or her expertise on that subject. This volume provides a valuable contribution to emerging understandings of the subject.
Constitutions in Times of Financial Crisis

Barry Cushman

Book Chapter

Barry Cushman, The Place of Economic Crisis in American Constitutional Law: The Great Depression as a Case Study, in Constitutions in Times of Financial Crisis 95 ( Tom Ginsburg, Mark D. Rosen, Georg Vanberg, eds. 2019).

The American constitutional law of political economy underwent significant transformations in the years between the Wall Street Crash of 1929 and the Allied victory in World War II. Both state and federal power to regulate economic activity were enhanced substantially. The reasons for these developments have been explored at length in a voluminous literature. This chapter considers the role that conditions of economic crisis might have played in cases involving judicial review of economic regulation.
The Foreclosure Echo: How the Hardest Hit Have Been Left Out of the Economic Recovery

Judith Fox and Linda E. Fisher

The Foreclosure Echo tells the story of the ordinary people whose quest for the American dream was crushed in the foreclosure crisis when they were threatened with losing their homes. The authors, Linda E. Fisher and Judith Fox - each with decades of experience defending low-to-moderate-income people from foreclosure and predatory lending practices - have employed a range of legal, economic, and social-science research to document these stories, showing not only how people experienced the crisis, but also how lenders and public institutions failed to protect them. The book also describes the ongoing effects of the crisis - including vacant land and abandoned buildings - and how these conditions have exacerbated the economic plight of millions of people who lost their homes and have increased inequality across the country. This book should be read by anyone who wants to understand the fallout of the last financial crisis and learn what we can do now to avoid another one.
Religious Freedom and the Law: Emerging Contexts for Freedom for and Freedom From Religion

Richard W. Garnett

Book Chapter

Richard W. Garnett, Freedom 'for' Religion: (Yet) Another View of the Cathedral, in Religious Freedom and the Law: Emerging Contexts for Freedom for and Freedom From Religion 15 (Brett G. Scharffs, Asher Maoz, & Ashley Isaacson Woolley eds., 2019)

This volume presents a timely analysis of some of the current controversies relating to freedom for religion and freedom from religion that have dominated headlines worldwide. The collection trains the lens closely on select issues and contexts to provide detailed snapshots of the ways in which freedom for and from religion are conceptualized, protected, neglected, and negotiated in diverse situations and locations. A broad range of issues including migration, education, the public space, prisons and healthcare are discussed drawing examples from Europe, the US, Asia, Africa and South America. Including contributions from leading experts in the field, the book will be essential reading for researchers and policy-makers interested in Law and Religion.
Routledge Handbook of the Study of the Commons

Bruce R. Huber

Book Chapter

Bruce Huber, The U.S. Public Lands as Commons, in Routledge Handbook of the Study of the Commons 135 (Blake Hudson, Jonathan Rosenbloom & Dan Cole eds., 2019)

This comprehensive Handbook serves as a unique synthesis and resource for understanding how analytical frameworks developed within the literature assist in understanding the nature and management of commons resources. Such frameworks include those related to Institutional Analysis and Development, Social-Ecological Systems, and Polycentricity, among others. The book aggregates and analyses these frameworks to lay a foundation for exploring how they apply according to scholars across a wide range of disciplines. It includes an exploration of the unique problems arising in different disciplines of commons study, including natural resources (forests, oceans, water, energy, ecosystems, etc), economics, law, governance, the humanities, and intellectual property. It shows how the analytical frameworks discussed early in the book facilitate interdisciplinarity within commons scholarship. This interdisciplinary approach within the context of analytical frameworks helps facilitate a more complete understanding of the similarities and differences faced by commons resource users and managers, the usefulness of the commons lens as an analytical tool for studying resource management problems, and the best mechanisms by which to formulate policies aimed at addressing such problems.
Problem Properties: A Guide to Legal Strategies and Remedies

James J. Kelly Jr.

Book Chapter

James J. Kelly Jr., Controlling, Acquiring, and Disposing of Vacant Properties, in Problem Properties: A Guide to Legal Strategies and Remedies 199 (Alan Mallach, Jessica Bacher, & Meg Byerly Williams, eds., 2019).

No survey of urban neighborhood vacant property solutions can be complete without consideration of the approaches that involve wresting control of derelict properties away from their delinquent owners. Some of these methods can abate nuisances and return properties to productive use without permanently displacing the owners, but, frequently, no long-term resolution can be reached without the local government taking ownership and transferring title to persons ready, willing, and able to rehabilitate the property. Part II of this chapter will examine the structural and legal challenges that municipalities with many vacant properties face in disposing of vacant houses and lots that they have acquired from their delinquent former owners. It will show how land banking reforms have mitigated the problems presented by conventional approaches to the sale of publicly owned real property. Part I of the chapter will look at the various ways municipalities first take control of vacant properties that cannot be remedied through traditional code enforcement means. It begins with an overview of three situations where seizing control is the only effective way of abating the nuisance and reclaiming the property.

Three types of vacant property situations present such intractable resistance to conventional code enforcement responses as to require more aggressive action by local authorities. First, some vacant properties could be rehabbed and returned to productive use but for the fact that their owners are unwilling and/or unable to execute the needed repairs. Second, some vacant properties are so burdened by competing ownership claims, mortgages, and/or other liens as to make further secured investment in them impossible. Third, many vacant houses are located in communities where the prices for habitable houses are not sufficiently high to justify the investment of capital needed to restore the derelict ones. In situations of the first type, in particular, short-term interventions focused on completion of essential repairs would, at first glance, appear to be sufficient. But, as the various solutions are explored, the need to transfer title to the property to a new owner will become more apparent. This chapter will focus on the legal mechanics of, and limits on, the various processes by which local authorities can gain control over nuisance vacant properties.
The Oxford Handbook of Fiduciary Law

Paul B. Miller, Daniel B. Kelly, Lloyd Histoshi Mayer, Samuel L. Bray, and Julian Velasco

Book Chapters

Paul B. Miller et al., Introduction, in The Oxford Handbook of Fiduciary Law (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019)

Daniel B. Kelly, Fiduciary Principles in Fact-Based Fiduciary Relationships in The Oxford Handbook of Fiduciary Law 3 (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019)

Julian Velasco, Fiduciary Principles in Corporate Law in The Oxford Handbook of Fiduciary Law 61 (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019)

Lloyd Hitoshi Mayer, Fiduciary Principles in Charities and Other Nonprofits in The Oxford Handbook of Fiduciary Law 103 (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019)

Paul B. Miller, The Identification of Fiduciary Relationships in The Oxford Handbook of Fiduciary Law 367 (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019)

Samuel L. Bray, Fiduciary Remedies in The Oxford Handbook of Fiduciary Law 449 (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019)

Paul B. Miller, New Frontiers in Private Fiduciary Law in The Oxford Handbook of Fiduciary Law 891 (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019)

The Oxford Handbook of Fiduciary Law provides a comprehensive overview of critical topics in fiduciary law and theory through chapters authored by leading scholars. Chapters in the Handbook explore the defining features of fiduciary relationships, clarify the distinctive fiduciary duties that arise in these relationships, and identify the remedies available for breach of fiduciary duties. The volume lays the groundwork for future research on fiduciary law and theory by highlighting cross-cutting themes, identifying persistent theoretical and practical challenges, and exploring how the field could be enriched through empirical analysis and interdisciplinary insights from economics, philosophy, and psychology.
The Art of Law in the International Community

Mary Ellen O'Connell

International law evolved to end and prevent armed conflict as much as for any other reason. Yet, the law against war appears weaker today than ever in its long history, evidenced by raging armed conflicts in which people are killed, injured, and forcibly displaced. The environment is devastated, and the planet impoverished. These consequences can be traced to the dominant ideology of realism. In 1946, Hersch Lauterpacht challenged that ideology by contrasting it with the idea of international law, composed of natural law, positive law, and process theory. The Art of Law in the International Community revives his vision, rebuilding the understanding of why international law binds, what its norms require, and how courts are the ideal substitutes for war. The secret to the renewal of international law lies in revitalizing the moral foundation of natural law through drawing on aesthetic philosophy and the arts.
Self-Defence Against Non-State Actors

Mary Ellen O'Connell, Christian J. Tams, and Dire Tladi

Book Chapter

Mary Ellen O'Connell, Self-Defence, Pernicious Doctrines, Peremptory Norms, in Self-Defence against Non-State Actors 174(Mary Ellen O'Connell, Christian J. Tams & Dire Tladi eds., 2019)

In this book, self-defence against non-state actors is examined by three scholars whose geographical, professional, theoretical, and methodological backgrounds and outlooks differ greatly. Their trialogue is framed by an introduction and a conclusion by the series editors. The novel scholarly format accommodates the pluralism and value changes of the current era, a shifting world order and the rise in nationalism and populism. It brings to light the cultural, professional and political pluralism which characterises international legal scholarship and exploits this pluralism as a heuristic device. This multiperspectivism exposes how political factors and intellectual styles influence the scholarly approaches and legal answers and the trialogical structure encourages its participants to decentre their perspectives. By explicitly focussing on the authors' divergence and disagreement, a richer understanding of self-defence against non-state actors is achieved, and the legal challenges and possible ways ahead identified.
New Developments in Competition Law and Economics

Avishalom Tor

Book Chapter

Avishalom Tor, Justifying Competition Law in the Face of Consumers' Bounded Reality, in New Developments in Competition Law and Economics 3 (Klaus Mathis & Avishalom Tor eds., 2019)

The central economic justification for competition law is that the protection of competition promotes welfare. In particular, perfect competition among firms catering to consumer demand for goods and services maximizes social welfare by generating both allocative and productive efficiencies. This standard account rests inter alia, however, on the assumption that consumer demand reveals rational consumer beliefs and preferences. Hence, an otherwise competitive market that caters to “erroneous” demand based on consumers’ mistaken beliefs or constructed, ad-hoc preferences will fail to maximize efficiency and welfare. Yet, empirical behavioural findings show that boundedly rational consumers exhibit mistaken beliefs and constructed preferences regarding some of the products and services they demand in the market. These behavioural findings, therefore, challenge the conventional economic justification for the important role served by competition law and its institutions as the means for protecting competition in the market. After explaining the challenges that the behavioural evidence poses for the standard economic account, this chapter outlines two key elements of the behavioural economic case that suggest competition law still has an important role to play in advancing efficiency and welfare even after the bounded rationality of consumers is accounted for, albeit perhaps a more modest role than competition law discourse usually ascribes to it.
International Survey of Family Law

Margaret Brinig

The International Survey of Family Law is the annual review of the International Society of Family Law. It brings together reliable and clearly structured insights into the latest and most notable developments in family law from all around the globe. Chapters are prepared by an international team of selected experts in the field, usually covering 20 or more jurisdictions in each edition.

The 2018 edition addresses highly topical matters ranging from assisted reproductive technology and sterilisation to end-of-life issues and estate settlement. The authors explore legislative changes, common law developments and challenges of integrating customary law or multiple religious legal systems into pluralistic societies. It brings together established and highly regarded academics and judges, as well as emerging scholars.
The Contested Place of Religion in Family Law

Margaret Brinig

Book Chapter

Margaret F. Brinig, Religious Parents Who Divorce, in The Contested Place of Religion in Family Law 234 (Robin Fretwell Wilson ed., 2018)

Even though adherence to organized religion is becoming less common for Americans,religion remains important for many in the United States. This chapter sets out to show some of the effects of religion on a particular group of vulnerable Americans – those going through the divorce process, as they self-identify, not through surveys but through divorce pleadings and parenting agreements.While some will rely more on faith during such difficult times, whatever stigma around divorce remains for divorcing parents may cause others to withdraw from church affiliation, particularly when they seek to remarry. Other work has shown that when both spouses are similarly religious, they are less likely to divorce Of course, some couples quarrel about religion during their marriages, and differences either in religiosity or religious preference may add to the discord in the marriage that eventually culminates in divorce. A prior study based upon data from Iowa showed that when religious couples did divorce, they tended to, more than others, indicate fault-based reasons for the divorce, even when a fault basis could not be used to any legal advantage, and to litigate rather than settle divorce-related issues.

This chapter draws upon divorce pleadings and other records to show how indications of religion, or disaffiliation, that appear in parenting agreements and orders affect the course of the divorce proceedings and any legal activities over the five years following the divorce filing. Some of the apparent findings are normative, but most are merely descriptive and some may be correlative rather than caused by the indicated concern about religion. While parenting plans are accepted by courts only when they are in the best interests of the child, at least in theory, the child’s independent religious needs were never mentioned in the files analyzed for this chapter. Instead the parents’ religious practices and affiliation drove the court’s understanding of what the couple could achieve for their children following dissolution. The data is consistent with more religious parents trying to make the best of what they understand is not ideal for their children.
The Cambridge Companion to the United States Constitution

Barry Cushman

Book Chapter

Barry Cushman, Federalism, in The Cambridge Companion to the United States Constitution 185 (Karen Orren & John W. Compton eds., 2018)

American constitutional federalism emerged from a complex matrix comprised by multiple intellectual, institutional, and experiential sources: from political theorists ranging from Machiavelli to Montesquieu and from Harrington to Hume; from colonial analogies to other dominions connected to the English realm through a common monarch, such as Ireland and seventeenth-century Scotland; and from an assortment of colonial customs, practices, and formal and informal institutional arrangements that were varied, fluctuating, contested, and in many respects underspecified. The multiplicity and diversity of these conceptual and historical inputs ensured that the nature and implementation of the federal idea would be matters of continuing political and theoretical debate.

Though the Supreme Court of the United States has played a preeminent role in the liquidation of the federal idea, its contours have been shaped by contributions from multiple centers: by state and federal legislators in decisions whether to initiate or enact legislation; by state and federal executives determining whether to approve or veto legislation with which they were presented; by state and federal judges reviewing legislation for constitutionality or determining which rules of decision to apply in cases coming before them; by statesmen and commentators motivated by combinations of high principle and immediate interest; and by the people by whom such officials were elected to or retired from office. Much of the work of constructing a working federal system has been performed incrementally, as actors in each of the branches of government, and judges most particularly, have sought in the context of particular cases or issues to find solutions to the practical problems arising from the coexistence of two semiautonomous levels of government within a single territory. Though the subjects addressed by this accumulative process have varied from generation to generation, many of the themes and tensions have proven remarkably durable. Still, the fallout from two exogenous shocks to the federal system has fundamentally reoriented the trajectory of American constitutional federalism. The first was the Civil War and the Reconstruction that followed; the second was the Great Depression and the resulting New Deal, which in the domain of political economy transformed American federalism from a regime constituted by a set of judicially enforced rules into a system constituted by a collection of political values entrusted to the democratic process.
The Palgrave Handbook of Criminal and Terrorism Financing Law

Jimmy Gurule and Sabina Danek

Book Chapter

Jimmy Gurulé & Sabina Danek, The Failure to Prosecute ISIS’s Foreign Financiers Under the Material Support Statute, in The Palgrave Handbook of Criminal and Terrorism Financing Law 995 (Colin King, Clive Walker & Jimmy Gurulé eds., 2018)

The Palgrave Handbook of Criminal and Terrorism Financing Law focuses on how criminal and terrorist assets pose significant and unrelenting threats to the integrity, security, and stability of contemporary societies. In response to the funds generated by or for organised crime and transnational terrorism, strategies have been elaborated at national, regional, and international levels for laws, organisations and procedures, and economic systems. Reflecting on these strands, this handbook brings together leading experts from different jurisdictions across Europe, America, Asia, and Africa and from different disciplines, including law, criminology, political science, international studies, and business. The authors examine the institutional and legal responses, set within the context of both policy and practice, with a view to critiquing these actions on the grounds of effective delivery and compliance with legality and rights. In addition, the book draws upon the experiences of the many senior practitioners and policy-makers who participated in the research project which was funded by a major Arts and Humanities Research Council grant. This comprehensive collection is a must-read for academics and practitioners alike with an interest in money laundering, terrorism financing, security, and international relations.
What Justices Want: Goals and Personality on the U.S. Supreme Court

Matthew E.K. Hall

The most sophisticated theories of judicial behavior depict judges as rational actors who strategically pursue multiple goals when making decisions. However, these accounts tend to disregard the possibility that judges have heterogeneous goal preferences - that is, that different judges want different things. Integrating insights from personality psychology and economics, this book proposes a new theory of judicial behavior in which judges strategically pursue multiple goals, but their personality traits determine the relative importance of those goals. This theory is tested by analyzing the behavior of justices who served on the US Supreme Court between 1946 and 2015. Using recent advances in text-based personality measurement, Hall evaluates the influence of the 'big five' personality traits on the justices' behavior during each stage of the Court's decision-making process. What Justices Want shows that personality traits directly affect the justices' choices and moderate the influence of goal-related situational factors on justices' behavior.
Drafting Organizational Documents

James J. Kelly Jr.

Drafting Organizational Documents teaches clinical law students the indispensable skill of legal drafting by introducing them to the nonprofit and for-profit corporate documents they are most likely to create before graduating. Also appropriate for simulation and other skills courses, this book takes students through the process of identifying key issues, formulating provision options and crafting legal language. With chapters on the foundational documents for nonprofit corporation, limited liability companies, Delaware corporations and benefit corporations, this book enables students to draft documents from scratch in order to critically analyze and adapt forms.
American Constitutional Law: Governmental Powers and Democracy

Donald P. Kommers, John Finn, Gary Jacobsohn, George Thomas, and Justin Buckley Dyer

American Constitutional Law, Volume 1: Government Powers and Democracy is a unique casebook that encourages citizens and students of the Constitution to think critically about the fundamental principles and policies of the American constitutional order. In addition to its distinguished authorship, the book has two prominent features that set it apart from other books in the field: an emphasis on the social, political, and moral theory that provides meaning to constitutional law and interpretation, and a comparative perspective that situates the American experience within a world context that serves as in invaluable prism through which to illuminate the special features of our own constitutional order. While the focus of the book is entirely on American constitutional law, the book asks students to consider what, if anything, is unique in American constitutional life and what we share with other constitutional democracies. Each chapter is preceded by an introductory essay that highlights these major themes and also situates the cases in their proper historical and political contexts. This new edition offers updated and expanded treatment of a number of important and timely topics that have been addressed by the Supreme Court in recent years.
The Cambridge Handbook of Social Enterprise Law

Lloyd Histoshi Mayer and Paul B. Miller

Book Chapters

Lloyd Hitoshi Mayer, Creating a Tax Space for Social Enterprise, in The Cambridge Handbook of Social Enterprise Law 157 (Benjamin Means & Joseph W. Yockey eds., 2018)

While still relatively few in number compared to traditional nonprofit and for-profit organizations, the rise of social enterprises represents a possible disruption of not only existing models of doing business but also areas of law that in many respects have seen little fundamental change for decades. One such area is domestic tax law, where social enterprises currently find themselves subject to the rules of for-profit activities and entities. Here, both scholars and policymakers are beginning to ask whether it is either necessary or desirable to modify existing tax provisions to better accommodate social enterprise: that is, whether to create a distinct tax space for social enterprise.
This chapter considers some of the initial answers to this question and places them within a larger, tax theory framework in order to advance consideration of this emerging issue.

Paul B. Miller & Andrew S. Gold, Fiduciary Duties in Social Enterprise, in The Cambridge Handbook of Social Enterprise Law 321 (Benjamin Means & Joseph W. Yockey eds., 2018).

This chapter examines theoretical and practical issues relating to fiduciary administration in social enterprise. It argues that social enterprise often calls for fiduciary administration on a hybrid model, combining elements of service-type administration and governance-type administration. Like standard service-type situations, social enterprise calls for administration in the interests of a defined constituency (ordinarily, shareholders). However, hybridity is introduced through the commitment to general public-oriented purposes that distinguish social enterprise from conventional business organizations. We will show that, contrary to common opinion, the fiduciary hybridity found in social enterprise is neither unique nor unworkable. We will briefly discuss other examples of hybrid fiduciary relationships and institutions, and we will explain the value of hybridity and how problems attributed to it are, or may be, resolved.
Fiduciary Government

Paul B. Miller

Book Chapters

Paul B. Miller et al., Introduction - Fiduciary Government: Provenance, Promise, and Pitfalls, in Fiduciary Government 1 (Evan J. Criddle, Evan Fox-Decent, Andrew S. Gold, Sung Kim, & Paul B. Miller eds., 2018)

Paul B. Miller, Fiduciary Representation, in Fiduciary Government 21 (Evan J. Criddle, Evan Fox-Decent, Andrew S. Gold, Sung, Kim, & Paul B. Miller eds, 2018)

The idea that the state is a fiduciary to its citizens has a long pedigree - ultimately reaching back to the ancient Greeks, and including Hobbes and Locke among its proponents. Public fiduciary theory is now experiencing a resurgence, with applications that range from international law, to insider trading by members of Congress, to election law and gerrymandering. This book is the first of its kind: a collection of chapters by leading writers on public fiduciary subject areas. The authors develop new accounts of how fiduciary principles apply to representation; to officials and judges; to problems of legitimacy and political obligation; to positive rights; to the state itself; and to the history of ideas. The resulting volume should be of great interest to political theorists and public law scholars, to private fiduciary law scholars, and to students seeking an introduction to this new and increasingly relevant area of study.
Arcs of Global Justice: Essays in Honour of William A. Schabas

Mary Ellen O'Connell

Book Chapter

Mary Ellen O’Connell, The Arc Toward Justice and Peace, in Arcs of Global Justice: Essays in Honour of William A. Schabas 467 (Margaret deGuzman & Diane Marie Amann eds., 2018)

William Schabas, one of the foremost human rights defenders of his generation, courageously declared that peace is a human right during a time when prominent human rights advocates call for the use of military force. The flourishing of human rights requires the condition peace. Thus, human rights law is naturally aligned with the international law restricting resort to force. Both are essential to the flourishing of humanity and the natural world. Those calling for military force to promote human rights likely labor under the false assumption that armed conflict is an effective means for accomplishing a variety of desiderata from humanitarian causes to suppressing terrorism to arms control. Military force is often viewed today as a tool of change, not a method of last resort. In fact, military force takes lives; it destroys homes and the environment; it leaves scars that never heal. One of the most important human rights protections we have is the prohibition on resort to force. Protection human rights, in particular the right to life, is incompatible with advocating greater resort to war. Professor Schabas championed this pairing of rules as this essay in his honor emphasizes. It concludes that for the long arc of history to truly be toward justice, it must also bend toward peace.
Seeking Accountability for the Unlawful Use of Force

Mary Ellen O'Connell

Book Chapter

Mary Ellen O'Connell, The Presumption of Peace: Illegal War, Human Rights, and Humanitarian Law, in Seeking Accountability for the Unlawful Use of Force 526 (Leila Nadya Sadat ed., 2018).

In the search for bold action in the face of serious challenges, it can be overlooked that war is in fact the cause of tragedy, not the solution. Protecting human lives and the natural environment from the ravages of war can best be accomplished by promoting restrictions on force and peaceful resolution of conflict. The contemporary civil wars in Syria, Iraq, Libya, Afghanistan, Congo, Burundi, and else are feeding the flood of migrants. These wars need resolution not escalation through foreign military intervention. It will be argued here that however understandable the calls for greater military force may be, war is rarely the answer. Fostering understanding and respect for law and even expanding restrictions to prohibit civil war hold greater promise. The recent trend toward interpreting the scope of peacetime human rights protections to apply more broadly is an important counterpoint to war-expansion arguments. Expanding human rights follows the plan of the World War II generation to save succeeding generations from the scourge of war through law and moral suasion.
The Use of Force in International Law: A Case Based Approach

Mary Ellen O'Connell

Book Chapter

Mary Ellen O'Connell, The Crisis in Ukraine - 2014, in The Use of Force in International Law: A Case Based Approach 855 (Oliver Corten and Tom Ruys, eds., 2018)

In the early morning hours of February 28, 2014, Russian armed forces moved out of their naval base on the Black Sea and into Crimea, triggering a crisis with Ukraine that continues as this chapter goes to print. The chapter begins with a detailed factual account of the Russian move into Crimea and subsequent intervention on behalf of separatist militias in Eastern Ukraine. Russia has put forward sophisticated arguments under international law to attempt to justify its military interventions in Crimea and Eastern Ukraine. On close analysis, no claim is adequate to avoid the charge of aggression. The United Nations Charter, Article 2(4), generally prohibits the use of force. Any serious violation of the prohibition is aggression. Russia can point to similar conduct by Western states from aiding the separatist Kosovo Liberation Army during in 1999 to assisting insurgents seeking to overthrow the government of Syria to Turkey’s invasion of Cyprus, allegedly under the terms of a treaty. While these and other violations of the Charter have plainly weakened the perception that the prohibition on the use of force is a peremptory norm, requiring strict compliance, peremptory norms are not modified as a matter of law by violations. Russia cannot defend its use of force against Ukraine by pointing to the violations of other states. Maintaining sanctions on Russia is important to support the international rule of law, but actually winning Russian compliance with the Charter and restoring Ukraine’s control of its sovereign territory would be more likely if other states with major militaries demonstrated the same fidelity to the Charter being demanded of Russia.