Harvard Journal of Law and Public Policy 

About: Harvard Journal of Law and Public Policy is an academic journal. The journal publishes majorly in the area(s): Supreme court & Constitution. It has an ISSN identifier of 0193-4872. Over the lifetime, 573 publications have been published receiving 3648 citations. The journal is also known as: Harvard journal of law & public policy.

The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter

Abstract: I. INTRODUCTION On a hot afternoon in July 2001, one of those rare, revealing scenes played out in Washington that seemed to convey, in one memorable moment, more than volumes of explanatory commentary and analysis. Testifying before the Senate Foreign Relations Committee was William J. Perry, Secretary of Defense during the Clinton Administration. His topic was the ABM Treaty. Toward the end of his testimony, almost as an aside, Perry presented a brief proposal. As a backstop to a missile defense system, he suggested the United States should establish a policy "that we will attack the launch sites of any nation that threatens to attack the U.S. with nuclear or biological weapons." (1) While Perry did not elaborate on the idea, its logic is compelling. An adversary considering the development of such weapons will have less incentive if it is aware that its effort ultimately will come to naught. But implementing the policy would present a slight problem, noted neither by Perry nor by any Senator: it would plainly violate Article 51 of the United Nations Charter, (2) which permits defensive use of force only in response to an armed attack. Why would senior American officials openly consider such a proposal in complete indifference to its violation of the Charter? Because, I have suggested, international "rules" concerning use of force are no longer regarded as obligatory by states. (3) Between 1945 and 1999, two-thirds of the members of the United Nations--126 states out of 189--fought 291 interstate conflicts in which over 22 million people were killed. (4) This series of conflicts was capped by the Kosovo campaign in which nineteen NATO democracies representing 780 million people flagrantly violated the Charter. The international system has come to subsist in a parallel universe of two systems, one de jure, the other de facto. The de jure system consists of illusory rules that would govern the use of force among states in a platonic world of forms, a world that does not exist. The de facto system consists of actual state practice in the real world, a world in which states weigh costs against benefits in regular disregard of the rules solemnly proclaimed in the all-but-ignored de jure system. The decaying de jure catechism is overly schematized and scholastic, disconnected from state behavior, and unrealistic in its aspirations for state conduct. The upshot is that the Charter's use-of-force regime has all but collapsed. This includes, most prominently, the restraints of the general rule banning use of force among states, set out in Article 2(4). (5) The same must be said, I argue here, with respect to the supposed restraints of Article 51 limiting the use of force in self-defense. Therefore, I suggest that Article 51, as authoritatively interpreted by the International Court of Justice, cannot guide responsible U.S. policy-makers in the U.S. war against terrorism in Afghanistan or elsewhere. (6) II. THE ILLOGIC OF ARTICLE 51: AN ANLAYSIS OF THREE COROLLARIES In one sense, the conclusion that Article 51 has no practical force follows a fortiori from my earlier argument: If there is no authoritative general prohibition of use of force, it makes no sense to consider the breadth of a possible exception. Yet an examination of Article 51 reveals a measure of inconsistency, illogic, and, indeed, incoherence that provides independent grounds for questioning its importuned restraints in decisions concerning use of force. The received interpretation of Article 51 consists in hopelessly unrealistic prescriptions as to how states should behave. Its more concrete sub-rules illustrate why policymakers have come to ignore the Charter's use-of-force regime in fashioning how states behave. In this Part, I discuss three of those subrules. A. Corollary #I--Providing Weapons and Logistical Support to Terrorists Does Not Constitute an "Armed Attack" The meaning of the term "armed attack" as used in Article 51 was authoritatively determined by the International Court of Justice in Nicaragua v. …

Assessing Regulatory Impact Analyses: The Failure of Agencies to Comply with Executive Order 12,866

Abstract: I. INTRODUCTION Although regulations often have no direct fiscal impact, they pose real costs to consumers as well as businesses. Regulations aimed at protecting health, safety, and the environment alone cost over two hundred billion dollars annually -- about two-thirds as much as outlays for federal, nondefense discretionary programs.(1) Yet, the economic impacts of federal regulation receive much less scrutiny than the budget.(2) To encourage the development of more effective and efficient regulations, Presidents Reagan, Bush, and Clinton have directed agencies to perform economic analyses of major regulations that show whether a regulation's benefits are likely to exceed its costs and whether alternatives to that regulation are more effective or less costly. Each president also attempted to increase agency accountability for decisions by requiring that the President's Office of Management and Budget ("OMB") review all major regulations. More recently, Congress embraced regulatory reform and inserted accountability provisions(3) and analytical requirements into laws such as the Safe Drinking Water Act Amendments of 1996, the Small Business Enforcement and Fairness Act of 1996, and the Unfunded Mandates Reform Act of 1995.(4) The most prominent and far-reaching of these regulatory reform efforts are President Reagan's Executive Order 12,291 and President Clinton's Executive Order 12,286. Both require agencies to prepare a Regulatory Impact Analysis ("RIA") for all major federal regulations.(5) Agencies have prepared RIAs for almost twenty years in accordance with the executive orders and guidelines for economic analysis provided by the OMB.(6) This Article suggests that the impact of RIAs has fallen short of the expectations of regulatory reform advocates in part because agencies do not fully comply with OMB's guidelines.(7) The RIAs typically do not provide enough information to enable regulatory agencies to make decisions that will maximize the efficiency or effectiveness of a rule.(8) This conclusion is based on the results of an evaluation of forty-eight major environmental, health, and safety regulations and their associated RIAs.(9) The authors completed a "regulatory scorecard" for each of the forty-eight regulations, which includes a checklist of the requirements for a good economic analysis outlined in the Executive Order and the OMB guidelines.(10) The study of RIAs shows that agencies only quantified net benefits -- the dollar value of expected benefits minus expected costs -- for 29 percent of the forty-eight rules, even though the Executive Order directs agencies to show that the benefits of a regulation "justify" the costs.(11) The agencies also did not adequately evaluate alternatives to the proposed regulation, another element of the Executive Order. Agencies failed to discuss alternatives for 27 percent of the rules and quantified the costs and benefits of alternatives for only 31 percent. In addition, the agencies often failed to present the results of their analysis clearly. Agencies provided executive summaries for only 56 percent of the rules. This Article also offers specific suggestions for improving the quality of RIAs, which will in turn improve the allocation of regulatory resources. These include: (1) the use of clear executive summaries; (2) the provision of on-line RIAs; (3) improved evaluation of regulatory alternatives; and (4) improved assessment of net benefits. Part II of the paper describes the methodology of the study. Part III presents the results. Part IV describes in detail the policy recommendations to improve RIAs. II. METHODOLOGY This study builds on previous efforts to evaluate the quality of RIAs.(12) Whereas previous studies evaluated a few RIAs in great detail, this study assesses the quality of forty-eight RIAs published from April 1996 to July 1999.(13) This approach is advantageous because it is possible to identify common strengths and weaknesses among many RIAs, a task that no previous study has undertaken. …

The Rule of International Law

Abstract: I. This Article will focus on how one should think about the rule of law in the international arena. Asking about the rule of law in the international arena is not just asking whether there is such a thing as international law, or what it is, or what we think of particular treaties (such as human rights covenants), or of the value of customary international law, or of the enforceability of international law in our own courts. The phrase "the rule of law" brings to mind a particular set of values and principles associated with the idea of legality. (1) These values and principles are the ancient focus of our allegiance as lawyers. The rule of law is one of the most important sources of the dignity and honor of the legal profession, and an awareness of the principles and values that it comprises ought to be part of all lawyers' professional ethos, something that disciplines the spirit and attitude that lawyers bring to their work. True, the rule of law is not the only value that lawyers serve. Lawyers must serve justice too, for justice is part of law's promise. (2) And, of course, lawyers serve the interests of their clients and of society generally. But the rule of law constrains lawyers in their pursuit of these other goals: they pursue justice and the social good through the rule of law, not around it or in spite of it. This Article will talk particularly about the obligations the rule of law imposes upon lawyers as they act in various capacities. Is it clear what the rule of law demands of lawyers in the international arena? Many people think it demands less in the international arena--that it demands less of a national government in the international arena, for example, than in the domestic arena--not just because there is less international law but also because a different attitude toward the rule of law is appropriate in international affairs. This Article is skeptical about that suggestion, and I shall present a number of reasons for rejecting it. II. To begin with, what does the rule of law require of lawyers in the municipal arena? (3) Usually one thinks of the rule of law as a requirement placed on governments: the government must exercise its power through the application of general rules; it must make those rules public; it must limit the discretion of its officials; it must not impose penalties on people without due process; and so on. But the rule of law applies to the individual, too. So, what does the rule of law require of the ordinary citizen? Well, it requires that she obey the laws that apply to her. She should be alert to changes in the law; she should arrange for her legal advisors to keep her informed of her legal obligations; she should refrain from taking the law into her own hands; and she should not act in any way that impedes, harms, or undermines the operation of the legal system. Every ordinary citizen has these obligations and can properly expect the assistance of her legal advisors. As the ordinary citizen goes about her business, she may find that there are areas where the law imposes minimal demands. on her or no demands at all, instead leaving her free to her own devices. This is not a matter of regret. Allegiance to the rule of law does not mean that the citizen must wish for more law--or less freedom--than there is. Neither does it require that she play any part in bringing fresh law into existence if she does not want it. She must obey the law where it does exist, but she has no particular obligation where it does not. It is not up to individual citizens or businessmen to do the lawmakers' job for them. For example, they have no duty to extend the scope of the law's constraint (in accordance with common sense, morality, the spirit of the law, social purposes, or anything else), if the sources of law do not disclose an unambiguous enactment to that effect. We can take this point even further. According to most conceptions of the rule of law, individual citizens are entitled to laws that are neither murky nor uncertain but are instead publicly and clearly stated in a text that is not buried in doctrine. …

Observations from Above: Unmanned Aircraft Systems and Privacy

Abstract: III GOVERNMENT UNMANNED AIRCRAFT AND THE FOURTH AMENDMENT The Fourth Amendment is central to the privacy issues with respect to government UAS operation Although the Supreme Court has never explicitly considered the question of UAS privacy, there is a long list of relevant precedents (90) Among them are several cases from the 1980s that specifically considered aerial observations and the Fourth Amendment The 2001 Kyllo v United States (91) and 2012 United States v Jones (92) decisions are also pertinent A Dow Chemical Co v United States In 1978, the Environmental Protection Agency, without Dow Chemical's consent, contracted with a commercial aerial photographer to provide images of a 2000-acre Dow Chemical manufacturing facility from altitudes of 1200, 3000, and 12,000 feet (93) When Dow Chemical became aware of this, it filed suit in Federal District Court, which granted summary judgment, finding the aerial photography to be a search in violation of the Fourth Amendment (94) The Sixth Circuit reversed the decision, ruling that even though the company had taken precautions, including installing a perimeter fence and alarm system (95) that provided a subjective expectation of privacy from ground-level intrusions, it did not have such an expectation with respect to aerial surveillance (96) Thus, the Sixth Circuit concluded, the acquisition of aerial images without a warrant was not a Fourth Amendment search (97) In reviewing this ruling on certiorari, the Supreme Court affirmed the Sixth Circuit's decision, concluding in a 1986 ruling that the open areas in the 2000-acre industrial facility were more akin to an "open field" (98) than to the curtilage of a home, and, as a result, were "open to the view and observation of persons in aircraft lawfully in the public airspace immediately above or sufficiently near the area for the reach of cameras" (99) The Court also noted the role of technology diffusion as a factor, writing that "surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant" (100) However, the Court observed, "[a]ny person with an airplane and an aerial camera could readily duplicate" (101) the photographs at issue "[T]he taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the Fourth Amendment" (102) B California v Ciraolo Ciraolo (103) was decided in 1986, on the same day as Dow Chemical On September 2, 1982, police in Santa Clara, California, received a tip regarding backyard marijuana cultivation (104) After finding the yard surrounded by high fencing obscuring the view from the street, they obtained a small airplane and flew over the residence at 1000 feet (105) The officers on the airplane observed and photographed what they concluded to be marijuana plants growing in the backyard (106) This evidence was used to obtain a search warrant to seize the plants (107) The Supreme Court granted certiorari after the California Court of Appeal ruled that the warrantless aerial observations violated the Fourth Amendment (108) In May 1986, the Supreme Court issued a five-to-four decision reversing the lower court (109) Writing for the majority, Chief Justice Burger framed the analysis in terms of the "reasonable expectation of privacy" (110) articulated in Justice Harlan's concurrence in Katz (111) For an expectation of privacy to be "reasonable" under Katz, two separate criteria must be satisfied First, the person must "have exhibited an actual (subjective) expectation of privacy" (112) Second, the expectation must "be one that society is prepared to recognize as 'reasonable"' (113) With respect to the first criterion, the Ciraolo Court wrote that although the presence of fences clearly conveyed a "desire to maintain privacy," and indeed successfully did so with respect to "normal sidewalk traffic," the marijuana plants might well have been visible from a truck or two-level bus …