American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

/pdf/current-index-to-legal-periodicals-8re353ze53.pdf

Current index to legal periodicals

In 1982, James Q. Wilson and George Kelling suggested in an influential article in the Atlantic Monthly that targeting minor disorder could help reduce more serious crime. More than 20 years later, the three most populous cities in the U.S. - New York, Chicago and, most recently, Los Angeles - have all adopted at least some aspect of Wilson and Kelling's theory, primarily through more aggressive enforcement of minor misdemeanor laws. Remarkably little, though, is currently known about the effect of broken windows policing on crime. According to a recent National Research Council report, existing research does not provide strong support for the broken windows hypothesis - with the possible exception of a 2001 study of crime trends in New York City by George Kelling and William Sousa. In this paper, we re-examine the Kelling and Sousa 2001 study and independently analyze the crime data from New York City for the period 1989-98. In addition, we present results from an important social experiment known as Moving to Opportunity (MTO) underway in five cities, including New York, Chicago and Los Angeles as well as Baltimore and Boston, which provides what is arguably the first truly rigorous test of the broken windows hypothesis. Under this program, approximately 4,800 low-income families living in high-crime public housing communities characterized by high rates of social disorder were randomly assigned housing vouchers to move to less disadvantaged and disorderly communities. The MTO program thus provides the ideal test of the broken windows theory. Taken together, the evidence from New York City and from the five-city social experiment provides no support for a simple first-order disorder-crime relationship as hypothesized by Wilson and Kelling, nor that broken windows policing is the optimal use of scarce law enforcement resources.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID755124_code249436.pdf?abstractid=743284&mirid=1

Broken Windows: New Evidence from New York City and a Five-City Social Experiment

In 1982, James Q. Wilson and George Kelling suggested in an influential article in the Atlantic Monthly that targeting minor disorder could help reduce more serious crime. More than twenty years later, the three most populous cities in the United States—New York, Chicago, and, most recently, Los Angeles—have all adopted at least some aspect of Wilson and Kelling’s theory, primarily through more aggressive enforcement of minor misdemeanor laws. Remarkably little, though, is currently known about the effect of broken windows policing on crime. According to a recent National Research Council report, existing research does not provide strong support for the broken windows hypothesis—with the possible exception of a 2001 study of crime trends in New York City by George Kelling and William Sousa. In this Article, we reexamine the 2001 Kelling and Sousa study and independently analyze the crime data from New York City for the 1989–1998 period. In addition, we present results from an important social experiment known as Moving to Opportunity (MTO) underway in five cities, including New York, Chicago, and Los Angeles, as well as Baltimore and Boston, that provides a unique opportunity to overcome some of the problems with previous empirical tests of the broken windows hypothesis. Under this program, approximately 4,600 low-income families living in highcrime public housing communities characterized by high rates of social disorder were randomly assigned housing vouchers to move to less disadvantaged and disorderly communities. Taken together, the evidence from New York City and from the five-city social experiment provides no support for a simple first-order disorder-crime relationship as hypothesized by Wilson and Kelling, nor for the proposition that broken windows policing is the optimal use of scarce law enforcement resources.

/pdf/broken-windows-new-evidence-from-new-york-city-and-a-five-1usmho68zv.pdf

Considerable attention has been given to the Implicit Association Test (IAT), which finds that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups. Implicit bias poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so. Some aspects of current law operate, whether intentionally or not, as controls on implicit bias; it is possible to imagine other efforts in that vein. An underlying suggestion is that implicit bias might be controlled through a general strategy of debiasing through law.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID897553_code170891.pdf?abstractid=897553&mirid=2

The Law of Implicit Bias

For multiple reasons, deliberating groups often converge on falsehood rather than truth. Individual errors may be amplified rather than cured. Group members may fall victim to a bad cascade, either informational or reputational. Deliberators may emphasize shared information at the expense of uniquely held information. Finally, group polarization may lead even rational people to unjustified extremism. By contrast, prediction markets often produce accurate results, because they create strong incentives for revelation of privately held knowledge and succeed in aggregating widely dispersed information. The success of prediction markets offers a set of lessons for increasing the likelihood that groups can obtain the information that their members have.

Deliberating Groups Versus Prediction Markets (Or Hayek's Challenge to Habermas)

The United States is party to several treaties that regulate the conduct of war, including the 1949 Geneva Conventions on the Protection of War Victims. These treaties require belligerent states, as a matter of international law, to accord fair and humane treatment to enemy nationals subject to their authority in time of war. Moreover, these treaties are, as a matter of domestic law, part of the Supreme Law of the Land. The scope and content of the Conventions have assumed central importance in debates about U.S. policy toward al Qaeda and Taliban detainees held at Guantanamo Bay, Cuba. Indeed, several aspects of U.S. policy toward the detainees arguably violate the Conventions. In response, the Bush Administration maintains in effect that the Conventions, even if they are applicable and even if U.S. policy is inconsistent with them, are not binding on the President as a matter of domestic law because the President has the constitutional authority to choose to violate the Conventions in the interest of protecting national security. This Article evaluates the Bush Administration's claim. The Administration's position has certain non-trivial virtues. Even if the United States has no legal right to violate the treaties as a matter of international law, there are good reasons to recognize an implied power to violate (or supersede) treaties as a matter of domestic law. The central question is who should have this authority: the President or Congress. We consider in detail three variations of the Administration's position - read in its best light. The President's power to violate treaties might stem from (1) the President's law-making authority; (2) the President's law-breaking authority; or (3) the President's unfettered discretion to interpret U.S. treaty obligations. Following detailed consideration of each variation, we conclude that the President has no authority to violate a treaty obligation if Congress has the authority under Article I to enact legislation superseding that treaty obligation. Because the rules embodied in the Geneva Conventions address matters within the scope of Congress' Article I powers, the President lacks the constitutional power (absent congressional authorization) to violate these treaties. Building on this claim, we also argue that the President never has the unilateral authority to violate treaties because the existence of international rules empowers Congress to regulate matters governed by the treaty, even if those matters would otherwise be subject to the President's exclusive power. Finally, we suggest that there is some meaningful role for courts to play in enforcing treaty obligations - irrespective of whether the President's interpretation of any given treaty is entitled to substantial deference. In short, we conclude that the President is bound by the Geneva Conventions - as a formal legal matter and as a practical matter.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID566983_code340759.pdf?abstractid=566983&mirid=1&type=2

Is the President Bound by the Geneva Conventions

The United States is party to several treaties that regulate the conduct of war, including the 1949 Geneva Conventions on the Protection of War Victims These treaties require belligerent states, as a matter of international law, to accord fair and humane treatment to enemy nationals subject to their authority in time of war Moreover, these treaties are, as a matter of domestic law, part of the Supreme Law of the Land The scope and content of the Conventions have assumed central importance in debates about US policy toward al Qaeda and Taliban detainees held at Guantanamo Bay, Cuba Indeed, several aspects of US policy toward the detainees arguably violate the Conventions In response, the Bush Administration maintains in effect that the Conventions, even if they are applicable and even if US policy is inconsistent with them, are not binding on the President as a matter of domestic law because the President has the constitutional authority to choose to violate the Conventions in the interest of protecting national security This Article evaluates the Bush Administration’s claim The Administration’s position has certain non-trivial virtues Even if the United States has no legal right to violate the treaties as a matter of international law, there are good reasons to recognize an implied power to violate (or supersede) treaties as a matter of domestic law The central question is who should have this authority: the President or Congress We consider in detail three variations of the Administration’s position read in its best light The President’s power to violate treaties might stem from (1) the President’s law-making authority; (2) the President’s law-breaking authority; or (3) the President’s unfettered discretion to interpret US treaty obligations Following detailed consideration of each variation, we conclude that the President has no authority to violate a treaty obligation if Congress has the authority under Article I to enact legislation superseding that treaty obligation Because the rules embodied in the Geneva Conventions address matters within the scope of Congress’ Article I powers, the President lacks the constitutional power (absent congressional authorization) to violate these treaties Building on this claim, we also argue that the President never has the unilateral authority to violate treaties because the existence of international rules empowers Congress to regulate matters governed by the treaty, even if those matters would otherwise be subject to the President’s exclusive power Finally, we suggest that there is some meaningful role for courts to play in enforcing treaty obligations—irrespective of whether the President’s interpretation of any given treaty is entitled to substantial deference In short, we conclude that the President is bound by the Geneva Conventions—as a formal legal matter and as a practical matter † Associate Professor of Law, Arizona State University College of Law; Visiting Professor of Law, University of Chicago Law School, 2003-2004 JD, Yale Law School; MA MPhil, Yale Univeristy †† Associate Professor of Law, Saint Louis University School of Law JD, Stanford Law School; MPP, Harvard University Thanks to Alexander Aleinikoff, Jose Alvarez, Curtis Bradley, Lori Damrosch, Martin Flaherty, Jack Goldsmith, David Golove, Ryan Goodman, Mattias Kumm, Thomas Lee, Michael Matheson, Gerald Neuman, Eric Posner, Catherine Powell, Michael Ramsey, Beth Stephens, Ed Swaine, Michael Van Alstine, Beth Van Schaack, and Ingrid Wuerth for helpful comments The project also benefited from comments we received at the 2003 Annual Meeting of the American Society of International Law Interest Group on International Law in Domestic Courts at the University of Maryland School of Law, international law workshops at NYU School of Law and Columbia Law School, an international law workshop sponsored jointly by Washington University School of Law and Saint Louis University School of Law, and the faculty workshop at the University of Cincinnati School of Law Is the President Bound by the Geneva Conventions? Draft – July 17, 2004 2 We have seen the war powers, which are essential to the preservation of the nation in time of war, exercised broadly    in conditions for which they were never intended, and we may well wonder in view of the precedents now established whether constitutional government as heretofore maintained in this republic could survive another great war even victoriously waged

/pdf/is-the-president-bound-by-the-geneva-conventions-2bqs5nu0k9.pdf

This paper is a chapter for a forthcoming book, the Oxford Guide to Treaties. The chapter addresses the application of treaties within domestic legal systems. Traditional scholarship on the domestic application of treaties has focused on the distinction between monist and dualist legal systems. Although the monist-dualist framework helps illuminate important formal differences among states, the chapter suggests that scholarly preoccupation with the formal distinction between monism and dualism tends to obscure key functional differences among states. After discussing the monist-dualist dichotomy in Part One, the remainder of the chapter adopts a functional approach, focusing primarily on the role of domestic courts in promoting compliance with treaty obligations and protecting treaty-based private rights. Part Two explains the distinction between horizontal, vertical and transnational treaty provisions. Part Three addresses the functional distinction between nationalist and transnationalist approaches to judicial application of treaties. Part Four discusses the crucial role of domestic courts in promoting compliance with treaty obligations, especially transnational and vertical treaty obligations. The analysis shows that domestic courts play a key role in protecting private rights under transnational treaty provisions and promoting compliance with those provisions, but they play virtually no role in promoting compliance with horizontal treaty provisions. This is generally true for both monist and dualist states. The story with respect to vertical treaty provisions is more complicated. When domestic courts adopt a transnationalist approach, they play a key role in protecting private rights under vertical treaty provisions and promoting compliance with those provisions. When domestic courts adopt a nationalist approach, vertical treaty provisions may be under-enforced. There does not appear to be any significant correlation between a state’s formal classification as monist or dualist and the tendency of domestic courts in that state to function in a nationalist or transnationalist mode.

/pdf/domestic-application-of-treaties-4imt8e4f81.pdf

Domestic Application of Treaties

In Socializing States: Promoting Human Rights Through International Law, Professors Ryan Goodman (New York University School of Law) and Derek Jinks (University of Texas School of Law) have made a very important contribution to the growing body of scholarship at the intersection between international law and international relations. Indeed, the American Society of International Law recognized the book by awarding it the 2014 Certificate of Merit for a Preeminent Contribution to Creative Scholarship. The book’s primary goal is to explain how actors in the international legal system influence the behavior of states: in particular, how states can be induced to improve their compliance with international human rights norms. To achieve that goal, the authors draw on an impressive breadth of scholarly work in law, political science, sociology, international relations, and other disciplines. Socializing States addresses the causal mechanisms that influence state behavior. Goodman and Jinks note that the existing literature focuses primarily on two such mechanisms: material inducement and persuasion. Socializing States highlights the importance of a third mechanism, which they call “acculturation” (p. 4). They define acculturation as “the general process by which actors adopt the beliefs and behavioral patterns of the surrounding culture” (id.). “Whereas persuasion emphasizes the content of a norm, acculturation emphasizes the relationship of the actor to a reference group or wider cultural environment” (p. 26). The touchstone of persuasion “is that actors are consciously convinced of the truth, validity, or appropriateness of a norm, belief, or practice” (p. 24). In contrast, “the touchstone of acculturation is that varying degrees of identification with a reference group generate varying degrees of cognitive and social pressures to conform” (p. 26). Socializing States demonstrates that acculturation is a real phenomenon that differs in important ways from both persuasion and material inducement. Goodman and Jinks make a compelling argument that models of state behavior that fail to account for the causal force of acculturation are inaccurate, incomplete, or both. The authors provide a wonderful, concise summary of the process by which acculturation influences state behavior:

Socializing States: Promoting Human Rights Through International Law

/pdf/non-self-executing-treaties-exposing-a-constitutional-psmigc1ovx.pdf

David L. Sloss

Papers

Is the President Bound by the Geneva Conventions

Is the President Bound by the Geneva Conventions

Domestic Application of Treaties

Socializing States: Promoting Human Rights Through International Law

Non-Self-Executing Treaties: Exposing a Constitutional Fallacy