Showing papers in "Washington and Lee Law Review in 1998"

Is Emissions Trading an Economic IncentiveProgram?: Replacing the Command andControl/Economic Incentive Dichotomy

Abstract: I. Introduction Is an emissions trading program' an economic incentive program? Emissions trading programs allow polluters to avoid pollution reductions at a regulated pollution source, if they provide an equivalent reduction elsewhere.2 Most scholars, government officials, and practitioners equate emissions trading with economic incentives, but they do not define "economic incentives." This failure to define economic incentives leaves unsupported the suggestion that emissions trading realizes environmental goals through economic incentives, but that traditional regulations (rules that limit discharges of pollutants into the environment without allowing trading) do not. Both traditional regulation and emissions trading rely upon the threat of a monetary penalty to secure compliance with government commands setting emission limitations.3 Perhaps neither traditional regulation nor emissions trading should be considered economic incentive programs, because both rely upon government commands.4 Or perhaps both should be considered economic incentive programs, because monetary penalties provide a crucial economic incentive in both systems. Rather than define economic incentives, scholars employ a conventional dichotomy that contrasts "command and control" regulations (rules that dictate precisely how a polluter must clean-up) with economic incentives.5 They claim that command and control regulations work inefficiently, discourage innovation, and fail to provide continuous incentives to reduce pollution, but that emissions trading and other economic incentive programs overcome these problems.6 The dichotomy between command and control regulations and economic incentives has had a powerful influence upon policy.7 On October 22, 1997, President Clinton outlined his plans to address global climate change, an increase in global mean surface temperatures that emissions of carbon dioxide and other "greenhouse gases" cause.8 The President's speech stressed the issue's importance by referring to some possible consequences of climate change including "disruptive weather events" (such as droughts and floods), the spread of "disease bearing insects," and receding glaciers (which might cause inundation of coastal areas).9 President Clinton did not mention a single new traditional regulatory program or propose any specific cuts in greenhouse gas emissions, such as carbon dioxide, below 1990 levels to combat this potential menace. Instead, he announced a "package of strong market incentives, tax cuts and cooperative efforts with industry."'o The President's package included emissions trading, which is the "economic incentive program" most often implemented. His proposal would allow polluters in one country to avoid greenhouse gas reductions at home in exchange for pollution reductions abroad." Not surprisingly, emissions trading became an important element of the subsequently negotiated Kyoto Protocol on climate change, in which the developed countries apparently agreed to modest cuts in greenhouse gas emissions.'2 A few days prior to Clinton's speech on climate change, the Environmental Protection Agency (EPA) released its proposal to address interstate pollution, an important impediment to delivering healthful air under the 1990 Amendments to the Clean Air Act.'3 The EPA, predictably, called for an interstate emissions trading program.'4 This Article develops a theory of economic incentives. Any program to regulate or to deregulate creates economic incentives.'5 The programs referred to as "economic incentive" programs all envision a substantial governmental role of some kind. That is why lawyers, experts in law, write about them.'6 Moreover, traditional environmental law creates free markets. Law performs a fundamental role in creating markets generally," and environmental law is no different. For example, laws requiring businesses to keep promises to customers and suppliers (contract) make commercial transactions possible. …

International Law and Abolition of theDeath Penalty

Abstract: I. Introduction The Universal Declaration of Human Rights (Universal Declaration), adopted December 10, 1948, proclaimed that "[e]veryone has the right to life" and "[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."' The same approach was taken in the American Declaration of the Rights and Duties of Man, adopted May 4, 1948.2 At the time, the vast majority of United Nations Member States still employed capital punishment. Moreover, the death penalty was also recognized as an appropriate penalty for major war criminals and was imposed by the postwar tribunals at Nuremberg and Tokyo.3 When the Universal Declaration's provisions were transformed into treaty law in universal and regional instruments, the death penalty was specifically mentioned as a form of exception to the right to life.4 Fifty years later, as we commemorate the anniversary of the adoption of the Universal Declaration of Human Rights, the compatibility of the death penalty with international human rights norms seems less and less certain. The second generation of international criminal tribunals - the ad hoc tribunals for the former Yugoslavia and Rwanda and the nascent international criminal court - rule out the possibility of the death penalty, even for the most heinous crimes.5 The basic international human rights treaties have been completed with additional protocols that prohibit capital punishment.6 Fiftyone states are now bound by these international legal norms abolishing the death penalty,7 and the number should continue to grow rapidly.8 The importance of international standard-setting was evidenced by parallel developments in domestic legal systems. The list has grown steadily from a handful of abolitionist states in 1945 to considerably more than halfthe countries in the world having abolished the death penalty de facto or de jure. According to the United Nations Secretary General in his January 16, 1998 report to the Commission on Human Rights, 102 states have abolished the death penalty and 90 retain it.9 Those that retain it find themselves increasingly subject to international pressure in favor of abolition. Sometimes, this pressure is quite direct, as evidenced by the refusal of certain countries to grant extradition when a fugitive will be exposed to a capital sentence. Abolition of the death penalty is generally considered to be an important element in democratic development for states breaking with a past characterized by terror, injustice, and repression. In some countries, abolition is effected by explicit reference in constitutional instruments to the international treaties prohibiting the death penalty. In others, it has been the contribution of the judiciary that has brought about abolition of the death penalty. Judges have applied constitutions that make no specific mention of the death penalty but enshrine the right to life and prohibit cruel, inhuman, and degrading treatment or punishment.'o Thus, the question of abolition of the death penalty stands as one of the sharpest examples of both the evolution of human rights norms and the ongoing relevance of the broadly-worded texts in the Universal Declaration. In 1948, Rene Cassin and Eleanor Roosevelt rejected suggestions that the Universal Declaration contain a reference to capital punishment as an exception to the right to life. They did so not because international law had reached the stage of abolition, but because they saw such a trend emerging and wanted the Universal Declaration to retain its relevance for decades and perhaps centuries to come." Half a century later, we must acknowledge their clairvoyance. While it is still premature to declare the death penalty prohibited by customary international law, it is clear that we are somewhere in the midst of such a process, indeed considerably close to the goal. The many signs of this development are the subject of this paper.'2 II. International Legal Norms Concerning the Death Penalty The issue ofthe death penalty is associated with two fundamental human rights norms: the right to life and the protection against cruel, inhuman, and degrading punishments. …

Student-Athlete Sexual Violence against Women: Defining the Limits of Institutional Responsibility

Abstract: I. Introduction On August 26, 1991, Katherine Redmond moved to Lincoln, Nebraska to attend the University of Nebraska (University).' Upon her arrival, Redmond moved into a women's residence hall operated by the University.2 According to Redmond, less than a week after her arrival, she was sexually assaulted and raped in an adjacent University residence hall.3 A few days later, Redmond's assailant allegedly appeared at her residence hall and sexually assaulted and raped her while two other males watched and stood guard.4 Redmond identified her assailant as Christian Peter, a prominent scholarship athlete on the University's football team.5 According to Redmond, Peter's sexual assault of her represented another incident in a pattern of sexually abusive and lawless behavior by Peter that included arrests for: sexual assault against another female student,6 assault for threatening to kill a parking lot attendant, disturbing the peace, trespassing, and urinating in public.7 On June 26, 1995, attorneys for Redmond filed a lawsuit against, inter alia, the University and Christian Peter.' Redmond alleged that the University engaged in a pattern of conduct- including refusing to investigate her allegations of sexual harassment, failing to alleviate the sexual harassment,9 and failing to investigate, counsel or discipline Peter" - that created a hostile educational environment in violation of Title IX." Redmond specifically claimed that the University had a duty to provide and ensure an educational environment for the Plaintiff free of sexual innuendo, intimidation, and discriminatory animus and to enforce the regulations, rules and laws necessary to protect the Plaintiff and other female students from acts of sexual abuse, including but not limited to bias and discrimination. The failure of the Defendants to take action to prevent or stop sexual harassment constitute[d] deliberate indifference and intentional discrimination.'2 Redmond also asserted claims against Peter sounding in sexual assault and battery,l3 false imprisonment,l4 and intentional infliction of emotional distress.'5 Redmond's allegations against Peter attracted national attention when the New England Patriots selected him in the 1995 National Football League (NFL) draft.'6 Following a public outcry over allegations of Peter's sexual misconduct, the Patriots relinquished their rights to the football player.'7 However, in January 1997 the NFL's New York Giants agreed to sign Peter to a contract. According to the Giants, Peter had proven he was getting treatment for the alcoholism and attention deficit disorder that he claimed were the source of his behavioral problems.'8 In March 1997, the University agreed to pay Katherine Redmond an estimated $50,000 in settlement of her claims against the school.19 The terms of Redmond's settlementwith Peter were undisclosed.20 The forgoing scenario draws attention to a complex and emotionally charged issue residing within institutions of higher education: male studentathlete violence against women students.2' This Article explores the availability of Title IX as a vehicle for imposing legal liability on colleges and universities for acts of sexual violence22 committed by their athletes against women students. In addressing this issue, this Article endeavors to avoid the hyperbole that so often accompanies the discourse regarding this issue. Such overstatement often involves claims without empirical basis regarding the extent to which athletes, in contrast to other males in our society, engage in acts of sexual violence against women.23 Therefore, a necessary predicate to this Article's discussion of institutional accountability is to present the social and factual context surrounding student-athlete sexual violence against women students. Part II begins this process with a review of literature that attempts to answer a fundamental question: Do male athletes, in contrast to nonathletes, possess a greater propensity to engage in acts of sexual aggression against women? …

The Right of Self-Determination in theTwenty-First Century

Abstract: I. Introduction One can address the right of self-determination from a number of different perspectives. For example, the exercise of this right in the past decade has had a dramatic effect on theories of international organizations, the role of force, and conflict resolution. Claims of self-determination led in part to the destruction of the former Yugoslavia, and the specter of secessionist movements has magnified the attention given to the rights of minorities and indigenous peoples. In the following discussion, I will link self-determination to human rights in two different ways. First, I explore self-determination as a human right, addressing issues of content and definition. Second, I discuss the impact of self-determination claims on other human rights. II. Self-Determination as a Human Right Self-determination is a human right. Although there are many hortatory references to self-determination in General Assembly resolutions and elsewhere, the only legally binding documents in which the right of self-determination is proclaimed are the two international covenants.' The first paragraph of common article 1 states: "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."2 Although the quoted language fails to answer several questions, at least some aspects ofthe right have become clear through subsequent reflection and interpretation. The first clarification is that self-determination is a right that belongs to collectivities known as "peoples," not to individuals. Thus, the Human Rights Committee has consistently made clear that claims that the right of self-determination has been violated cannot be raised under the First Optional Protocol, which applies only to individuals.3 I think that the Committee is probably wrong to exclude self-determination claims automatically from the scope of individual complaints, but its jurisprudence has been consistent on this point. It also is clear that self-determination is a right that belongs to peoples, but not to minorities.4 This truism may only shift the debate to definitions and semantics, but the distinction between minorities and peoples remains an article of faith for states and international bodies concerned with monitoring human rights. There are numerous problems in defining both "peoples" and what they are entitled to "determine." Without reviewing the entire history of selfdetermination, let me just outline how the concept has passed through at least two distinct phases and is now entering a third one.5 Initially, meaning perhaps the middle of the nineteenth century when the phrase "self-determination" came into common usage, self-determination was not a right but was a principle. It was a principle that first allowed disparate people who spoke the same language, such as Germans and Italians, to group themselves together and form a new state. This "grouping," of course, did not occur without coercion and, in some cases, a good deal of violence. A bit later, at the end of World WarI, the principle of self-determination provided a guiding principle orrationale for dismembering the defeated Austro-Hungarian and Ottoman empires. As a political principle, but not a right under international law, selfdetermination in this period was subject to many limitations. The most obvious limitation, consistent with realpolitik concerns, was that the successful exercise of self-determination required the support of the victorious powers if there had been a war or the support of major powers even absent a war. Philosophically, "external" self-determination or independence would be rejected if the resulting state would not be economically and politically viable. Self-serving political restrictions made the principle of self-determination applicable to Europe, for instance, but not to colonial empires; thus to Poland, but not to Ireland. …

The European Human Rights Convention:A New Court of Human Rights in Strasbourgas of November 1, 1998

Abstract: I. Introduction Protocol No. 11 to the European Convention on Human Rights (ECHR), ratified by all Council of Europe member states - in other words, ratified by all of the forty contracting states parties to the ECHR (Albania, Andorra, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, "the former Yugoslav Republic of Macedonia," Turkey, Ukraine and United Kingdom)-establishes a full-time, single court to replace the Convention's prior monitoring machinery. It entered into force on November 1,1998.1 This text, opened for signature on May 1 1994, is one of the concrete results of decisions taken by the Council of Europe's Heads of State and Government at their first summit meeting in Vienna on October 8-9, 1993. II. Main Aspects of the Reform A. The prior part-time monitoring institutions, namely the European Commission of Human Rights and the European Court of Human Rights, ceased to exist. A new European Court of Human Rights, operating full-time, was set up in Strasbourg, France. B. The system has been streamlined and, above all, all applicants now have direct access to the new court. Any cases that are clearly unfounded will be sifted out of the system at an early stage by a unanimous decision of the court sitting as a three-judge committee (the cases will therefore be declared inadmissible). In the large majority of cases, the court will sit as a seven-judge chamber. Only in exceptional cases will the court, sitting as a Grand Chamber of seventeen judges, decide on the most important issues. The President of the court and the presidents of chambers will always be able to sit in the Grand Chamber so as to ensure consistency and uniformity of the main caselaw. A judge elected in respect of the state party involved in a case will also sit in the Grand Chamber in order to ensure a proper understanding of the legal system under consideration. C. All allegations of violations of individuals' rights will be referred to the court. The Committee of Ministers (the Council of Europe's executive organ) will no longer have jurisdiction to decide on the merits of these cases. It will, however, retain its important role of monitoring the enforcement of the court's judgments. D. The right of individual application will be mandatory, and the court will have jurisdiction with respect to all inter-state cases. III Operation of the New Procedure as of November 1, 1998 As under the past system, individual applications and inter-state applications will exist side by side. As the secretariat of the Commission did in the past, the registry of the court will establish all necessary contacts with the applicants and, if necessary, request further information. Then, a chamber of the court will register the application, and the application will be assigned to a judge-rapporteur. The judge-rapporteur may refer the application to a three-judge committee, which may include the judgerapporteur. The committee may, by a unanimous decision, declare the application inadmissible; this decision will then be final. When the judge-rapporteur considers that the application raises a question of principle and is not inadmissible or when the committee is not unanimous in rejecting the complaint, a chamber will examine the application. (This procedure matches the prior system that was in force before the Commission.) A chamber, composed of seven judges, will decide on the merits of an application and, if necessary, its competence to adjudicate the case. The judge-rapporteur will prepare the casefile and establish contact with the parties. The parties will then submit their observations in writing. …

Blood Ties: A Rationale for Child Visitation by Legal Strangers

Abstract: I. Introduction This Article addresses some of the issues that arise when nonparents seek visitation with other peoples' children. More often than not, natural parents successfully resist assertions of child visitation rights by legal strangers such as stepparents and so-called lesbian "coparents."' However, grandparents, aided by a raft of legislation and judicial decisions, fare infinitely better when petitioning for visitation with their grandchildren. This Article discusses the current law and legal scholarship concerning visitation rights of legal strangers and concludes that courts and legislatures should support legal parents' rights to raise their children without unwanted interference from legal strangers. Legislative enactments that deal explicitly with visitation by third parties do not provide uniform or clear standards reflecting the circumstances under which visitation claims will be honored. However, the statutes generally reflect the requirement, whether express or implicit, that visitation be in the best interests of the child. By and large, courts have adopted the same standard in third party visitation cases. Against this background, some commentators have proposed changes in the law of third party visitation that would redefine parent and family to give legal recognition to relationships between children and third parties. These proposals would treat third parties and natural parents identically in visitation cases. This Article rejects these proposals on constitutional and policy grounds. Instead, the decisions of fit natural parents concerning who may visit their children should be controlling, absent a showing of significant harm or danger to the child. This position finds support in long standing and highly cherished traditional views about family autonomy and its concomitant, parental authority. Part II examines the current law relating to third party visitation claims by "coparents", stepparents, grandparents, and foster parents. Part III discusses scholarship critical of the current bases for legal recognition of parental status. Finally, Part IV proposes adoption of a third party visitation standard grounded in family autonomy and parental authority that respects the child rearing decisions of fit natural parents in the absence of a showing of harm to the child. II. The Law's Response to Third Party Visitation Claims A. "Coparents" The New York Court of Appeals's 1991 decision in Alison D. v. Virginia M.2 inspired the writing of this Article.3 Two years after Alison D. and Virginia M. established a relationship and began living together, they decided to have a child and agreed that Virginia M. would be artificially inseminated.4 The parties also agreed to share the rights and responsibilities of child rearing.5 Virginia M. gave birth to a baby boy, who was given both Alison D.'s and Virginia M.'s surnames.6 Alison D. shared in the expenses relating to the child's birth, provided support, participated with Virginia M. in child care, and was active in making parental decisions.' The parties separated when the child was 2 years and 4 months old, and his natural mother, Virginia M., eventually terminated Alison D's visitation.8 Alison D. then commenced a legal action seeking visitation rights.9 Affirming lower court decisions to dismiss the action, New York's highest court, the Court of Appeals, emphasized Alison D.'s concession that she was not the child's biological or adoptive parent.lo Instead, she claimed that she had acted as a de facto parent,11or that the court should view her as a parent by estoppel,12 with standing to seek visitation rights.13 Discussing the requirements and traditional judicial interpretation of the governing statute, the court observed: Traditionally, in this state it is the child's mother and father who, assuming fitness, have the right to the care and custody of their child, even in situations where the nonparent has exercised some control over the child with the parents' consent. …

Challenges to the Future of Civil and Political Rights

Abstract: I. Introduction The Universal Declaration of Human Rights (Universal Declaration)1 and the American Declaration of the Rights and Duties of Man2 first articulated in 1948 the list of internationally recognized human rights and fundamental freedoms. Since that time, only a few new claims have emerged to add to the list of basic rights, although subsequent treaty and soft law texts have further defined and refined the stated rights.3 On the other hand, none of the rights contained in the declarations seems to have been "de-certified" and denied continuing normative value. As this century nears its end, it may be asked whether the relative stability of the human rights catalogue will remain with the existing guarantees deemed adequate to meet coming challenges to human dignity and development, or whether, instead, new rights and obligations will be claimed and recognized. A response to this question and any attempt to predict the future of civil and political rights require evaluating present and foreseeable threats to human dignity and well-being. Law in general is responsive to emerging values, conflicts, fears, and social problems. The initial articulation of international human rights norms fifty years ago responded to the "barbarous acts" referred to in the Universal Declaration of Human Rights.4 The Universal Declaration sees human rights instrumentally, as "the foundation" and the means to achieve "freedom,justice and peace."5 Neither the barbarous acts nor the need for freedom, justice, and peace has disappeared. In this regard, the demand for civil and political rights, as part of the indivisible human rights canon, remains a fundamental objective. The task of drafting the canon of human rights is largely complete, and international supervisory institutions are functioning more or less as intended, however limited that intent may have been.6 Although improvement of procedures and institutions is necessary, what currently demands attention is perhaps best expressed in a series of conjunctive phrases - human rights and democracy, human rights and technology, human rights and the environment, and human rights and trade. These phrases reflect the need to consider civil and political rights in the context of emerging social problems and values and the need to integrate human rights into all areas of human activity in the light of globalization, the increased interdependence of states, growth of transboundary civil society, and deregulation. In some instances, new rights may need to be articulated. In others, existing rights may be adequate to resolve the perceived problems if adapted to the new contexts. In fact, it may be in regard to obligations, not rights, that reformulation may be most needed in the future. II. The Debate over New Rights Not every social problem must result in the expression of a new human right. Even the existing catalogue is not always met with consensus; states and scholars occasionally challenge the concept and the content of rights from freedom of the press to the right to development.' There are legitimate fears that expanding the list will not only create further dissension, but will undermine the very concept of fundamental and inalienable rights by devaluing or trivializing core norms, taking time and energy away from the essential task of implementing and enforcing those rights that are nonderogable and universally accepted.' The concern is legitimate and must be taken seriously; at the same time, the list can never be considered closed. It is impossible to predict future threats to human dignity, the foundation of all human rights, although it may be possible to identify current issues and developments that may require reformulated or expanded rights. Some scholars attempt to establish criteria that a claim must meet before it is included as a human right. Ramcharan speaks of qualitative characteristics such as appurtenance to the human person or group; universality; essentiality to human life, security, survival, dignity, liberty, or equality; essentiality for international order; essentiality in the conscience of mankind; and essentiality for the protection of vulnerable groups. …

Hard Bargains: The Politics ofHeterosexuality

Abstract: I'm working on a couple of things at the moment - a book about sex, a woman's guide to law schools, and a book based on my dissertation, which is a revision of Thomas Hobbes's social contract theory. And since I know you're not interested in sex, I thought I'd talk about the social contract -just kidding! As you know, Jane Larson, a legal historian from the University of Wisconsin, and I have written a book, to be published by the Oxford University Press this year, which we call Hard . . . Bargains: Sex and Politics. And since in a very important sense Washington and Lee School of Law enabled me to get started on the book when I was the Lewis Scholar here two years ago, it seems very fitting to present the grand conclusions in the same place.1 You may think it is a little weird to talk about sex and politics in the same sentence (other than perhaps about some female's knowledge of the President's anatomy), so the first subject in a grand theory of the politics of sex is "why bother?" Let's start to answer that question with a definition of politics, or at least political theory. Since no one has elected me queen of the world yet that I've noticed, I'm more doing political theory than politics. Political theory, according to the Encyclopedia of Philosophy, is the study of the real or ideal organization of people into societies.2 Now you notice there's nothing in that definition which limits what can constitute a human society, and it is in fact the case that political theory for centuries addressed itself to relationships of all sorts: ruler/ruled, to be sure, but also master/servant, husband/wife, father (no one was very interested in mothers until recently)/son, deity/worshipper, and so forth.3 It is only in the aftermath of the wars of religion in the sixteenth and seventeenth centuries that people began to worry about the murderous possibilities of the state and to theorize that politics should be limited to only certain aspects of life, like keeping us from killing one another, rather than telling us how to treat our spouses.4 Thus the state/society or public/private divide was born. Now the alert among you may be thinking that nothing in this process of reining in a murderous state necessarily requires us to withdraw political analysis from the relationships we have assigned to the "private" sphere - and there have always been philosophers who understood that. The great analyst of American Democracy, Alexis de Tocqueville, about whom I will have more to say later, was one of them. But for reasons both honorable and dishonorable, after the Catholics and Protestants agreed to disagree in England in the seventeenth century, and in most of the rest of Europe thereafter, the state was limited and the society of the family and of the heterosexual pairing (among many other things) was largely relegated to the private sphere.5 But just because it's been going on for three hundred years doesn't mean it's right to cast the sexual relationship into the unexamined private sphere. Think about it: politics is about the terms in which people "live" together. Controlling violence or defining the legitimate limits of coercion within that living together is the core subject matter of even the most limited, post-sixteenth century political theory. Like the problem of violence, the problem of sex involves human beings seeking physical access to each other. Like the problem of force, sex raises the question of the just terms of such access; when, if ever, is it just to force, extort, pressure, or persuade others to submit to one's will? Like the problem of force, sex raises the question of controlling the exposure to harm from necessary contact, as well as the danger of overreaching and the possibility of life-altering consequences. Seen this way, the historical decision of some great enlightenment philosophers to assign sex out of the public sphere should not compel us to make the same mistake. …

The Development of United NationsMechanisms for the Protection andPromotion of Human Rights

Abstract: I. Introduction The development of human rights protection mechanisms at the United Nations has been inextricably linked with the organization's efforts to promote human rights. The two approaches have been mutually reinforcing and have created strong human rights constituencies. In fact, this process itself has been gradually depoliticizing the international mechanisms in the area of human rights. The concept of human rights has always been dynamic, as has the entire discipline of international law. Human rights concepts and mechanisms have developed historically along with interventions by civil society and by states. The right to self-determination is one of the most eloquent examples. The development of international human rights mechanisms over the past five decades since the adoption of the Universal Declaration of Human Rights has been linked as much with the rise of pro-democracy and pro-human rights movements around the world as with the end of the Cold War and the growing interdependence of states, markets, and peoples. I therefore discuss the development of United Nations human rights protection mechanisms from this broader angle and try to explain the "whys" and "why nots" accordingly. For the purposes ofthis discussion, I concentrate on the human rights mechanisms ofthe United Nations proper without including the mechanisms ofthe United Nations Educational, Scientific and Cultural Organization (UNESCO) and the International Labour Organisation (ILO). I first discuss the treaty-based human rights mechanisms and their significance in the protection and promotion of human rights. I then refer to the extra-conventional system of protection of human rights. Third, I discuss the contribution of the World Conference on Human Rights in 1993 to the protection and promotion of human rights. Fourth, I discuss the United Nations human rights field presences and their contribution. Fifth, I examine recent efforts to mainstream human rights in the areas of peace and security, humanitarian issues, and development. Finally, I outline some ofthe main challenges ahead in protecting and promoting human rights. II. A Treaty-Based System of Protection and Promotion of Human Rights After the adoption of the Universal Declaration of Human Rights (Universal Declaration),' the United Nations faced the challenge of preparing binding international human rights instruments. One day before the adoption of the Universal Declaration on December 9, 1948, however, the General Assembly had already adopted the first United Nations human rights treaty, the Convention on the Prevention and Punishment of the Crime of Genocide.2 Initially, the ascending Cold War ideological rift between civil and political rights on the one hand and economic, social, and cultural rights on the other was bridged by the inclusion of both families of rights in one unified document, the Universal Declaration. This was due in part to the overwhelming momentum after the tragedies of World War II and in part to the leadership of Eleanor Roosevelt and her peers. Yet, this rift reemerged during the subsequent two decades when it became obvious that the polarized world around the table was not ready to allow the same fusion when preparing binding legal instruments. Thus in 1966, the United Nations separately adopted the International Covenant on Economic, Social and Cultural Rights3 and the International Covenant on Civil and Political Rights4 and its (First) Optional Protocol.5 The year before, the United Nations had adopted the International Convention on the Elimination of All Forms of Racial Discrimination.6 These three treaties corrected an omission of the earlier antigenocide convention by establishing the first three human rights monitoring mechanisms in the form of "treaty bodies," as this type of mechanism is now called.' The first treaty bodies were later joined by three others under the following subsequent human rights treaties: the Convention on the Elimination of All Forms of Discrimination Against Women,8 the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,9 and the Convention on the Rights of the Child. …

The Future of Islamic Legal Arguments inInternational Boundary DisputesBetween Islamic States

Abstract: I. Introduction In 1975, the International Court of Justice (ICJ) issued an advisory opinion on the question of the "legal ties" existing between Western Sahara and Morocco and between Western Sahara and the Mauritanian entity.' In its memorials to the ICJ, Morocco advanced several arguments based on traditional Islamic legal principles and Islamic concepts of sovereignty.2 Morocco's Islamic legal arguments found their source in the traditional body and principles of Islamic international law: the Siyar.3 Specifically, Morocco argued that it had established ties of sovereignty over Western Sahara, under Islamic legal concepts of sovereignty, at the time of Spanish colonization.4 Morocco attempted to persuade the ICJ that the people of Western Sahara owed religious allegiance to the Sultan of Morocco and that this religious allegiance amounted to territorial sovereignty.5 Relying on the special character of the Sherifian State, Morocco maintained that "anyone who was a religious subject of the Sultan was ipso facto a political subject as well."6 In its advisory opinion, the ICJ noted the special character of the Sherifian State at the time of Spanish colonization of the Western Sahara.' It also recognized the religious ties between the inhabitants of Western Sahara and Morocco.8 The Court even acknowledged the allegiance of various Western Sahara tribes to the Sultan of Morocco. However it determined that such an allegiance, "if it is to afford indications of the ruler's sovereignty, must clearly be real and manifested in acts evidencing acceptance of his political authority."'o This conclusion illustrates the ICJ's adherence to the traditional Western legal concept of territorial sovereignty and its unwillingness to give real consideration to arguments based on traditional principles of Islamic international law. The ICJ's unwillingness is hardly surprising. The Siyar developed over one thousand years ago to govern the relations between the unitary Islamic State and the non-Islamic world." Also, the Siyar relies on a concept of sovereignty that is inherently personal rather than territorial.12 These two characteristics make the Siyar inapplicable in a world comprised of independent nation-states and governed by concepts of territorial rather than personal sovereignty.'3 The central importance of the Siyar in the larger body of Islamic law, however, causes an understandable reluctance among Muslim jurists to abandon the traditional Islamic legal approach to international relations.14 Apologists attempt to show common ground between some ofthe general principles found in the Siyar and the generally accepted principles of Western international law.15 This attempt at reconciliation ultimately fails for two reasons. First, the common ground it offers is not substantively and legitimately Islamic.16 Second, the general principles it offers are too ambiguous to offer any real guidance to Islamic states seeking to structure their international relations.17 This does not necessarily mean that Islamic law has no role to play in modern international relations between Islamic states. It does, however, indicate the need for a new Islamic approach to international relations that is compatible with the world of nation-states. The scope of this Note is not so ambitious as to attempt to offer a solution to all of the issues raised by the Siyar's inapplicability. Instead, this Note addresses only the specific issue of international boundary disputes between Islamic States. Part II of this Note describes the origins, sources, and principles of the traditional body of Islamic international law: the Siyar. To illustrate the inapplicability of the Siyar in modern international relations, Part III examines the traditional Islamic legal arguments in two modern boundary disputes, as well as the ICJ's reaction to those arguments.ls Finally, Part IV provides a doctrinal basis and justification for a new Islamic approach to boundary and territorial disputes between Islamic nation-states. …

The Underlying Causes of Withdrawal and Expulsion of Partners from Law Firms

Abstract: The law governing the withdrawal and expulsion of partners from law firms is undergoing rapid change as demonstrated in the papers presented in this symposium. ' Under the older, traditional conception of lawyer affiliation, withdrawal or expulsion was unthinkable: Once a lawyer became a partner it was assumed that he - in the old days it was almost always "he" - stayed with the firm until death or retirement. The firm cleaved to the lawyer over the same course, or so we were led to believe. In the good old days, decisions about membership in partnerships involved organizations that were actually partnerships and participants who were actually partners. The decision about partnership was thus crucial in a professional lifetime, a decision of perhaps the same solemnity as marriage and indeed possibly more solemn. The traditional conception was largely myth, transforming an ideal into an assumption about reality. Be that as it may, in today's world we accept marital divorce on demand, recognizing that basic social forces have required the law to permit no-fault divorce, and we similarly accept that corporate takeovers and dissolutions are inevitable. Social forces similar to those that have radically changed family life and corporate life have also changed life in law firms. Thus, in considering the evolution of the law governing law firm withdrawal and expulsion, it may be beneficial to consider the underlying social forces that drive the law to respond. What follows is a sketch of those forces rather than a detailed inventory. First, these external social forces manifest themselves in changes in the character of law practice itself. Among these social forces are the manifold changes in the work performed by law firms. The following litany of changes is familiar: the specialization and hyper-specialization in lawyer functions; the increasingly rapid rate of obsolescence in legal knowledge acquired in law school as compared to relevant legal knowledge needed at later stages in a professional career; the increasing competition in law practice; the transformation of law from a local vocation practiced in the county courthouse and law offices on the town square into a national and increasingly globalized vocation; and the need to assemble large teams on short notice to deal with heavy transactions or heavy litigation. The cumulative effects of these changed conditions on law firms are similar to the cumulative effects of modern social pressures on marriage, on the family, on neighborhoods, and on business organizations. That is, the vectors of social force are strongly centrifugal. Second, and relatedly, are changes occurring in the structure of legal service organizations. In this context, I am using the term "legal service organization" advisedly. A law firm is an organization created to perform professional services. As such, it must adapt its structural form to perform the specific work it undertakes. What constituted effective organization a century ago is not necessarily effective organization today. This change is partly due to the fact that much law practice today, although not most, is carried out in settings that are not law firms. I refer here to the law departments of corporations and of nonprofit institutions such as hospitals and universities; to prosecutorial and defender offices; to civil law departments of local, state, and federal governments; and, last and unfortunately least, to offices providing legal services for the poor. Third, law practice within independent law firms has radically changed. Law practice in towns and smaller cities remains much as it was a half century ago, but that is not where most visible change is occurring. This change is occurring on the now familiar grounds of the large law firms. There are now more than a dozen or so law firms of five hundred lawyers or more, firms of one hundred lawyers exist all over the country, and firms of no fewer than fifty lawyers exist in virtually all cities with a population greater than 250,000. …

Death Is Different, Even on the Bayou:The Disproportionality of Crimeand Punishment in Louisiana'sCapital Child Rape Statute

Abstract: I. Introduction A guiding principle of this nation's criminal justice system, deriving its roots from age old notions of fairness, is that the punishment should fit the crime. The United States Supreme Court has adopted this principle through its conclusion that the Eighth Amendment contains a proportionality guarantee.2 The Court has used this guarantee to bar punishments that it finds "grossly disproportionate" to the object crimes.3 Twenty years ago, the Supreme Court used this proportionality doctrine to support its finding that the death penalty was an unconstitutionally excessive punishment for the rape of an adult woman.4 Recently, Louisiana challenged the limits of this decision by enacting a law authorizing the death penalty for the rape of a child under the age of twelve.5 The Louisiana Supreme Court recently upheld this law in the face of a constitutional challenge based on the proportionality doctrine.6 This Note examines whether, in light of Supreme Court precedent, Louisiana's capital child rape statute does, in fact, pass constitutional muster. Part II of this Note outlines the development of the proportionality doctrine in the United States.' This historical survey includes a brief discussion of the rationale of early cases employing proportionality review. Part II also identifies some general factors from these early cases that guide the Supreme Court's decisions in this area.8 Part III of this Note specifically addresses the role of proportionality review in capital sentencing.9 In addition, Part III discusses two important Supreme Court decisions based on the proportionality doctrine.'o This discussion focuses on basic constitutional requirements for proportionality review of capital punishment." Part IV analyzes the Supreme Court's decision finding the death penalty unconstitutionally excessive for the rape of an adult woman.'2 This discussion addresses the reasoning underlying the Court's decision and includes selected state reactions to the Court's decision.13 Part V of this Note details Louisiana's capital child rape statute and discusses the reasoning the Louisiana Supreme Court employed when it upheld the statute in the face of a proportionality attack.'4 Finally, Part VI of this Note critiques the Louisiana court's analysis and concludes that the death penalty for child rape is an unconstitutionally excessive punishment based on United States Supreme Court precedent or a properly conducted proportionality review." II. The History of Proportionality Review in American Jurisprudence Philosophy professor Burton Leiser once wrote that "there must be some principles that can be applied to determine which penalties are appropriate and which are not, which penalties are too light and which are excessive."'6 The proportionality doctrine, embodied within the Eighth Amendment's prohibition against "cruel and unusual punishments,"" establishes these principles in American jurisprudence.ls The United States Supreme Court has long debated the exact meaning of the Eighth Amendment's requirement of proportionality between crime and punishment.'9 However, the definitions and requirements that the Court has provided often have done more to confuse the issue than to provide any meaningful standards.20 Chief Justice Burger described the Court's Eighth Amendment decisions as "less than lucid."2' This sentiment exists due to the Supreme Court's attempts to expand or contract the breadth of the proportionality doctrine in order to adapt to the constantly changing attitudes of our nation's society.' A. Early Doctrine Until the beginning of the twentieth century, the Supreme Court applied the Cruel and Unusual Punishments Clause only to cases of torture and barbaric cruelty.23 Throughout this century, the Court has gradually broadened its interpretation of the Eighth Amendment to include a prohibition against punishments that are greatly disproportionate to the crimes for which they are imposed. …

A Requiem for the Rollover Rule: CapitalGains, Farmland Loss, and the Law ofUnintended Consequences

Abstract: I. Introduction Every year, over one million acres of prime crop land are lost to the sprawling growth of suburban areas in the United States.' Open fields and wildlife habitat are plowed under for the construction of endless rows of new houses. At the same time, traditional town centers collapse, giving way to faceless strip malls at the edge of town. In many cases, the new developments blur into one another, distinguishable only by subdivision name: Eagle's Landing, Wild View, Goose Haven.2 Those names evoke the land's rural heritage, conjuring up images of pastoral tranquillity. Ironically, those appellations describe that which has been lost, rather than that which remains. Are these changes merely the work of free market forces? Do they simply represent the basic, frontier instinct of Americans to spread out across the continent in the quest for that special plot of land that offers space and privacy and safety from the turmoil of the cities?3 Not necessarily. Although many Americans freely choose the comforts of new subdivisions over established neighborhoods, many are motivated to purchase new homes by forces other than personal taste and free choice. What can account for this distortion? One surprising culprit may be the rollover rule of former 1034 of the Internal Revenue Code (Code).4 Although many writers have linked relentless suburban growth to federal tax policies such as the home mortgage interest deduction, few have blamed former 1034.5 That section created a home sale preference, permitting home owners who sold their principal residences at a profit to defer tax liability (to "rollover" the gain). The tax relief, however, was limited by an important prerequisite: to qualify for the benefit of 1034, taxpayers were required to "buy up" by purchasing another home of greater or equal value within two years of the sale.6 The rollover rule first appeared as 318(a) of the Revenue Act of 1951.' After minor amendment, at the time of its repeal in 1997, the rule provided: If property. . . used by the taxpayer as his principal residence is sold by him and, within . . . 2 years. . [a new residence] is purchased and used by the taxpayer as his principal residence, gain (if any) from such sale shall be recognized only to the extent that the taxpayer's adjusted sales price .. ofthe old residence exceeds the taxpayer's cost of purchasing the new residence. 8 Thus, for almost half a century, the rollover rule created a powerful incentive for home sellers to buy up to qualify for tax deferral. Every year, over four million families sell their homes.9 Many complied with the buy-up prerequisite, with fewer than 4% of home sales triggering tax liability for capital gains.10 Was the rollover rule a desirable provision of our national tax policy? A cursory examination misleadingly suggests that 1034 simply created a benevolent preference for home sellers. When enacting the precursor to 1034 in 1951, Congress perceived an urgent need to eliminate the hardship" that taxing the "ephemeral profits" 12 from home sales created. Congress noted that such profits were often the product of inflation, and the taxpayer would need to reinvest the entire proceeds from the sale of the first home to purchase a similar replacement home. '3 In such a case, Congress believed it inequitable to exact an income tax on proceeds that were not clearly "income."'4 Despite its laudable goal of supporting home ownership, 1034 unwittingly promoted the needless destruction of farmland and the unchecked proliferation of suburban housing developments. How did these unintended consequences come about? In many regions of the country, housing prices increase as one moves out of the city center and into the county. 15 As a result, buying up may have required the purchase of a relatively expensive, new suburban home. The tax distortion is particularly evident in communities that experienced a significant influx of new residents from more expensive regions. …

The Supreme Court as an Enforcement Agency

Abstract: I. Introduction Criticism of the Supreme Court as excessively activist abounds in the law reviews,1 in the political science literature,2 and in the popular press.3 The criticism is neither new nor particularly shocking given that judges, like the rest of us, have political preferences. However, the Court has opened itself to a more intense fusillade by relying on a variety of institutional justifications in interpreting the constitutional text. The Court's invocation of institutional and political factors in construing the Constitution jeopardizes its legitimacy as an independent third branch of government. As a result, the Court seemingly has discarded a mantle of neutrality to don instead an overtly political cloak. The Court's explicit discussion and consideration of factors other than the merits of a case, however, should not be alarming. The Court not only sits at the apex of the judiciary, but also exists within our system of separated powers and federalism. In addition to analyzing legal issues, the Court must and would be incredibly naive not to - consider the impact of constitutional rulings on lower courts, coordinate branches, state governments, and society as a whole. The Court may occupy a special role in construing the constitutional text,4 but political and administrative realities temper the Court's interpretive function. In essence, the Supreme Court shares many attributes of any enforcement agency.5 The Court must assess how best, given its limited resources, to control, or at least to influence, constitutional interpretation by others.6 The enforcement tools of the Supreme Court, however, are limited. Unlike most agencies, the Court cannot engage in substantive rulemaking, it has no enforcement agents, and it cannot institute suit.7 Instead, the Court must rely almost exclusively upon its power to decide - or not to decide - cases and controversies. When confronted with a novel or a difficult constitutional claim, the Court, like other enforcement agencies, may decline to act. The Court can deny certiorari, and it also may find a case nonjusticiable even after granting certiorari.8 Thus, even more than most enforcement agencies, the Supreme Court has great flexibility in choosing its docket. Through exercise of such "passive virtues," the Court can avoid tackling constitutional issues that it is not prepared to address and can allow other actors more direct say in formulating constitutional doctrine.9 The Court plays a more direct role by deciding cases and controversies. When resolving issues, the Court, again like any enforcement agency, must fashion rules in a way that will invite obedience by others such as lower courts, Congress, and state legislatures. As has been often noted, bright-line rules serve the Court well by providing a framework for future conduct.10 In addition, the Court must craft constitutional rules that lower courts can administer-not always a simple task.11 Moreover, the Court at times will use its certiorari power to superintend the workings of lower federal and state courts. The Court's recent contretemps with the Ninth Circuit illustrate that the Court must manage lower courts as well as exercise its role as the arbiter of constitutional meaning.12 The Court can also wield its authority effectively by overenforcing or underenforcing constitutional rights. The Court's enforcement strategy can lead the Court to consider more than just constitutional interpretation and precedent when it is addressing the merits of a constitutional claim. Depending upon the presence of institutional or federalism factors, the Court may either deny a claim and leave it to other institutional actors to provide more constitutional protection, or may grant the claim if it fears that, absent such a ruling, other actors would frustrate recognition of an underlying constitutional norm. Two relatively familiar examples may prove helpful. First, in Garcia v. San Antonio Metropolitan Transit Authority,13 the Court declined to enforce the Tenth Amendment principally for institutional reasons. …

Remedies for the Misappropriation of Intellectual Property by State and Municipal Governments Before and After Seminole Tribe: The Eleventh Amendment and Immunity Doctrines

Abstract: Introduction Consider the following appropriations of intellectual property that might be committed by public employees: ( 1 ) During the course of her development of a new technique for cheaply producing large amounts of the anti-cancer drug taxol, a professor at a public university makes unauthorized uses of a patented cloning process; (2) In the course of training new accountants in a state tax office, a supervisor makes and distributes photocopies of a substantial portion of a popular accounting text; (3) In order to calm parents who are worried about the quality of the food in a public elementary school cafeteria, the principal misleads them into believing that the food is made by a popular local catering service; (4) In the course of her regulatory duties, an employee of a state environmental agency releases confidential business information to the public without the owner's consent; (5) In order to commemorate famous residents of its state, the head of the state's tourism office strikes and sells medals of several popular entertainers. Given the likely inadequacy of a suit for infringement against an individual who has committed a wrongful act, owners of patents, copyrights, trademarks, trade secrets, and publicity rights have begun to bring suits against the governments that benefit from misappropriations by their officials. The answer to the simple but important question of whether a state or local government can be held liable for the unauthorized appropriation of private intellectual property turns out to be frustratingly complex. The result of a lawsuit brought by an aggrieved rights-holder will turn on numerous variables: Is the named defendant in the suit the state government, a state employee acting in his official capacity, a municipality, a municipal employee acting in his official capacity, or an individual? Is the requested relief monetary or injunctive? Is the intellectual property at issue a patent, copyright, trademark, trade secret, publicity right, or the right to be free from false advertising? Is the suit brought in state or federal court? Is the cause of action based on state law or federal law? Is the appropriation an exercise of a state's right of eminent domain or an inverse condemnation of property under the Takings Clause? The recent enactment of federal legislation purporting to abrogate state immunity from suit in cases involving patents,1 copyrights,2 trademarks,3 and false advertising4 promised briefly to simplify the question of state liability. The Supreme Court's subsequent landmark decision in Seminole Tribe of Florida v. Florida,5 however, has reinvigorated state claims to sovereign immunity and thereby increased uncertainty over the potential liability of a state or a state actor for the unauthorized use of intellectual property. Given the increasingly important role played by intellectual property in the economy, particularly in the areas of computer software and biotechnology, and given the pervasive use of intellectual property by state agencies and universities,6 the need for clarity is particularly acute. State and municipal governments desperately need guidance on the precise parameters of their potential liability, especially because courts and commentators have begun to conclude, too hastily in our view, that Seminole Tribe nullifies the abrogating statutes.' In order to construct a liability roadmap for the states, specialists in the substantive law of intellectual property and experts in the field of federal jurisdiction must combine forces. Although the contours of intellectual property protection are continually shifting and the law of federal jurisdiction is notoriously slippery, a convincing picture of much of the law governing the misappropriation of intellectual property by governments and governmental actors can be outlined, and unresolved issues can be identified with some precision. Part I of this Article addresses relief available to intellectual property owners under the Takings Clause ofthe Fifth Amendment. …

Loyalty in the Firm: A Statement of GeneralPrinciples on the Duties of PartnersWithdrawing from Law Firms

Abstract: Introduction For nearly two decades, law firms have been shaken by defections in the ranks of their members. Lawyers associated in firm practice necessarily cast wary eyes on their colleagues, wondering who will be the next to leave, when the exit will occur, and what the damage will be from the loss of clients who seem more often than not to follow defecting lawyers wherever they may go. Loyalty to the firm - by its members and by its clients - is a value that, at best, evokes nostalgic yearnings for some idealized past rather than a standard under which law is practiced in present times. It is hardly a secret that the "grabbing and leaving" activities of law firm members have served to destabilize the American law firm.' What is surprising, at least at first glance, is the extent of the activity in light of the "fiduciary" nature of the relationship that exists among partners in a firm. Whether expressed in terms of a "punctilio of an honor the most sensitive,"2 a duty of "undivided loyalty,"3 or an obligation to act with the "highest good faith,"4 the status of partners as fiduciaries of each other would seem to offer a powerful restraint on lawyer mobility.5 Yet at least in the law firm setting, fiduciary duties have not restricted the placement of individual interest above the interest of the group to any meaningful degree. Perhaps this fact is because, as the Illinois Supreme Court recently observed, "lawyers are [not] necessarily bound by the same fiduciary constraints that apply to nonlawyer officers and directors who are seeking to leave positions in commercial entities."6 The key to reconciling the existence of fiduciary standards with widespread grabbing and leaving activities is to recognize that fiduciary duties function to restrain rather than to eliminate the pursuit of private advantage by law partners.7 The power of the fiduciary norm is the restraint it imposes on the process by which partners pursue opportunities outside their firms. The distinction between motive and process is critical to a realistic application of fiduciary duties. Grabbing and leaving is not in itself a breach of fiduciary duty because no partner is permanently bound to a firm. The manner in which partners plan for and implement withdrawals, on the other hand, is subject to the constraints imposed on them by virtue of their status as fiduciaries. Although inconsistent with some expressions of the obligation of undivided loyalty,8 the idea that an individual may terminate a fiduciary relationship for the purpose of pursuing other opportunities is neither unusual nor new. The venerable Restatement (Second) of Agency, for example, informs us that the agent must act solely for the benefit of the principal and not in competition with the principal in all matters connected with the agency.9 Even the Restatement recognizes, however, that the agent is permitted to make plans, in secret, to compete with the principal in the future,'o and that after termination of employment the agent may not only compete with the principal" but also may use certain information acquired during the course of the agency in competition with the principal.'2 The problem, then, is managing the transition from present fiduciary to future competitor. Given the sheer volume of disputes arising among former law partners, the law firm offers a splendid model for testing and, perhaps, restating ancient expressions of partner duties that are long on generalities, but disturbingly short on specifics. Along this line, many recent reported cases address the duties of partners withdrawing from law firms.'3 Individually, the cases are often insightful, but as a whole there has yet to emerge from the reported decisions a coherent set of principles useful in defining duties (fiduciary and otherwise) owed by partners withdrawing from law firms. This Article attempts to provide a framework helpful in defining and giving meaning to those duties. The framework offered is expressed through a statement of "General Principles" that expresses core ideas rather than a detailed code of conduct. …

The Scope of the Borrower's Liability in aNonrecourse Real Estate Loan

Abstract: I. Introduction People participate in the commercial real estate market for a wide variety of reasons. Some investors plan to construct buildings or renovate existing structures, while others intend to operate and manage commercial property as an ongoing business. Whatever their goals, real estate professionals typically form business entities to hold investment property rather than holding that property personally. Investors in the position of selecting an ownership structure usually seek to minimize their taxes and to shield themselves from personal liability on contract and tort claims. In the past, real estate investors most often chose to hold property in limited partnerships, although limited liability companies have surged in importance during the past several years.' Partners historically have faced a substantially lower effective federal tax rate than corporate shareholders have. Nonetheless, real estate business persons sometimes form corporations and forego the enormous tax advantages of the partnership. This acquiescence to the tax collector arises primarily out of concerns about personal liability: Shareholders of corporations ordinarily cannot be sued personally by creditors of the business, but general partners of partnerships can. Thus, if someone is injured on the property or if the real estate entity does not pay its debts, general partners may encounter unlimited liability in tort or contract that corporate shareholders escape. Real estate professionals often attempt to finesse this decision by forming limited partnerships and then trying to avoid the unlimited liability that this ownership form creates. In some cases, partnerships can minimize these risks easily. A partnership that secures adequate amounts of workers' compensation, property, and liability insurance, for example, virtually eliminates any chance that its general partners will have to pay for the costs of accidents. The partners enjoy the tax benefits of partnership status while avoiding most of the tort risks of that form of ownership. Real estate owners also face potential contract liabilities. The largest obligation that most real estate partnerships confront is their mortgage loan. If the property owner fails to pay its lender and the property sells at foreclosure for less than the outstanding amount of the debt, then the partnership and its general partners are personally liable for the deficiency. Thus, one bad investment can poison an otherwise successful real estate portfolio, and the unpaid lender on this bad investment can eventually have its debt repaid from the partnership's more successful projects or from the general partners' personal assets. For this reason,2 real estate partnerships often seek nonrecourse loans, in which the lender agrees that the mortgaged real estate is the only asset of the partnership and its partners that the lender will pursue if the debt is not repaid. The other assets of the partnership and its partners are shielded, and each partner can lose no more than he or she agreed to invest. This nonrecourse status is accomplished by including exculpatory language in the documents, by which the lender agrees to look solely to the property for satisfaction ofthe secured debt. Real estate lenders readily agree to nonrecourse loans in spite of their greater risk. Lenders are aware of the liability and other concerns facing partners in real estate ventures and may be willing to accommodate their partnership clients rather than risk losing business to competing lenders. If these lenders furnish an amount that does not exceed seventy to eighty percent of the value of the property, they generally are comfortable that the property can be sold at foreclosure for an amount sufficient to repay the debt. The slightly greater risk may translate into a modest increase in the interest rate. Lenders also may seek other forms of assurance that the debt will be repaid, such as limited personal guaranties or letters of credit. …

Unreasonable Risk: Model Rule 1.6,Environmental Hazards, and Positive Law

Abstract: I. Introduction Thousands of Superfund sites - discovered and undiscovered - now dot the American landscape.1 The contaminated condition of these sites creates a variety of risks and tempts some owners to transfer the property without disclosing the condition. While such sites are hardly the only (or the most dramatic) environmental hazards, they provide an example of common environmental hazards and the problems faced by attorneys in complying with positive law and the duty of confidentiality.2 An attorney's nightmare related to contaminated sites is that a client will refuse to inform a purchaser of the existence of dangerous contamination. Imagine you represent a vendor of realestate. You learn that the property to be sold is contaminated with hazardous wastes and that the buyer is ignorant of this problem. Although both state and federal statutes require owners to disclose environmental hazards, the client refuses to reveal the dangers and forbids you to disclose any information regarding the site. You fear that the contamination may cause injury for the buyer and, additionally, that the buyer may sue you for damages resulting from the contamination. What is your ethical duty?3 If an attorney knows that her client has created environmental hazards that threaten others, should she disclose the dangers or maintain her silence in order to protect the client's confidences? The rules of ethics created by the American Bar Association provide little guidance to the attorney facing the dilemma posed by client secrets that can harm third parties.4 Unless the jurisdiction makes the transfer described above a crime,5 Model Rule 1.6 appears to require that the attorney remain silent concerning the danger to the purchaser and his family - even if that danger is likely to result in serious bodily injury or death.6 Considering the expansion of tort liability and the judicial abrogation of the bar of privity for professionals in most jurisdictions, this nightmare scenario could result in negative personal consequences for attorneys.7 The potential for personal liability for lawyers is not trivial.8 Additionally, developing tort law suggests that a professional may face liability for a failure to warn third parties of dangers created by clients. Our system of laws seeks to minimize risks in a variety of ways. Positive law requires disclosure of environmental hazards by the owner or person in charge of a site.9 Both statutes and the common law create prohibitions and sanctions as a means of controlling unreasonable risks. Environmental statutes recognize the unreasonable risks created by environmental hazards and create incentives to minimize these risks. The common law also seeks to reduce risks (both environmental risks and other sorts of risks), generally by imposing liability for conduct deemed negligent or otherwise culpable. It encourages due care by imposing liability for harm that results from a defendant's creation of unreasonable risk of harm to others. Despite the predominance of positive law in our system of justice, Model Rule 1.6 fails to acknowledge the force of judicial or statutory law and sets a standard of confidentiality separate and unhinged from the mandates of positive law. This Article explores the disjuncture of positive law and the duty of confidentiality as formulated by Model Rule 1.6. Its central purpose is to question the decision to exclude positive law from the framework of analysis created by the Rule. Part II of the Article summarizes the duty of confidentiality owed to clients by attorneys. Part III examines Model Rule 1.6, studying the Rule's text, its origins in a rule proposed by the Kutak Commission, and other legislative history. It focuses on the deletion of two exceptions from the Proposed Rule on confidentiality: (1) the exception allowing disclosures to comply with the law, and (2) the exception allowing disclosures of client fraud that will result in serious harm. …

Response to Loyalty in the Firm: A Statementof General Principles on the Duties ofPartners Withdrawing from Law Firms

Abstract: I. Introduction I respectfully submit that no topic is more volatile and important to partners and to the modern-day law firm than the duties of partners withdrawing from law firms. I applaud the Washington and Lee School of Law and in particular, Professor Vestal, Professor Sundby, and Dean Sullivan for sponsoring such a visionary program as the Withdrawals and Expulsions from Law Firms Symposium. I also applaud the law students that participated in this symposium. I strongly believe that establishing programs that mentor law students on the legal and ethical issues that arise while practicing is an obligation of both the law schools and of the profession. We need more programs like this one so as to expose law students to the human side of law firm practice. An interesting thing happened to me between the time I committed to be a participant in the symposium and my appearance at Washington and Lee I became a withdrawing partner. I could not think of a better way to prepare to comment on the presentation of my esteemed colleague, Robert Hillman. I decided that I had to experience firsthand that which I had been litigating, writing, advising, and lecturing about in order to truly do justice to Professor Hillman. I decided actually to live through the experience of withdrawing from a law firm and to apply the principles set forth in Professor Hillman's presentation. No matter who you are, change is one of the most difficult things that any human being can go through, and I am now at the top of the list. My change took place in March of 1998. I say this because in order to truly comprehend the multifaceted framework that Professor Hillman outlined, we must never lose sight of the fact that the person or persons for whom these principles and duties are established are going through a psychologicallycharged life experience. This is true regardless of their stature within the profession or their status within the law firm from which they are withdrawing. Furthermore, one cannot truly predict how one's colleagues at the firm will react to an event that can properly be characterized as one of abandonment and rejection. I left Morrison Cohen Singer & Weinstein, LLP, the law firm that I helped found fourteen years ago, to join Greenberg Traurig Hoffman Lipoff Rosen & Quentel, one of the fastest growing national law firms. Greenberg Traurig solicited me through a legal recruiter. I left with clients and with matters pending in various jurisdictions. I withdrew pursuant to a written partnership agreement that I helped draft and that contained a sixty-day notice provision. I immediately resigned as a member of the firm's Executive Committee and as co-head of the firm's Litigation Department. I took client files and staff with me, and I continue to work on major matters for clients that I actively solicited while at my prior firm. The legal profession has changed drastically in the past decade. I call this the age of attorney mobility. With so many lawyers moving laterally and with law firms operating more and more like big businesses that are ever mindful of the bottom line and of the generation of profits, it was inevitable that our profession would rely more and more upon building from without by bringing in lateral partners or by merging practices to provide growth and to increase profitability. During the current decade, the increasing number of mergers and dissolutions of law firms, the opening of more branch offices by the national firms, and the growing competition for business have led to record numbers of lawyers leaving firms, both voluntarily and involuntarily. This rush of activity indicated to me that more and more law firms are expanding in order to take advantage of the strong legal economy. I am happy to report that these are good times for the legal profession. I believe that in this age of mobility with its grass-is-greener mentality, it is more important than ever for partners and their law firms to understand the legal and ethical issues raised by partner departures and withdrawals. …

Interpreting the Constitution from Inside theJury Box: Affecting Interstate Commerceas an Element of the Crime

Abstract: I. Introduction On October 29, 1993, Charles Parker, Jr. entered a Payless Shoe Store in Fort Worth, Texas.2 Curiously, Parker did not browse through the racks of discounted shoes; he had something else on his mind.3 The store's cash register contained $136 - money that Parker found and stuffed into his pocket.4 Over the following two weeks, Parker helped himself to cash in five other store robberies and, including the Payless heist, stole a total of $459.5 Parker's six thefts were less than legendary; they were garden variety robberies that occur each day in every city.6 Unlike other petty criminals, however, Parker was not prosecuted for robbery under state law.' Instead, on January 11,1994,8 a grand jury summoned the resources and power of the federal government and indicted Parker on six counts of violating a federal statute - the Hobbs Act.9 At Parker's two-day trial, federal Judge John McBryde instructed the jury that the Hobbs Act" is a federal criminal statute consisting of two elements: ( 1 ) the commission of a typical robbery or extortion and (2) a resulting effect on interstate commerce." The Government proved the first necessary element to the jury's satisfaction, but its theory of the second element was more attenuated: Parker's targeted stores routinely deposited their proceeds in Texas banks each week; those banks in turn wired the stores' deposits to accounts with banks located in other states.12 By stealing money from Fort Worth stores, the Government argued, Parker prevented the stores from transferring funds to banks outside of Texas; thus, the insignificant robberies "affected interstate commerce."'3 The jury returned a guilty verdict for five counts of federal Hobbs Act violations, and Parker received a sentence of 430 months - almost 36 years in federal prison - for stealing $59.(14) Parker appealed his conviction.15 He claimed that the United States Constitution's Fifth and Sixth Amendments establish that the criminal jury alone may determine whether a defendant is ultimately guilty of a crime.'6 Parker argued that Judge McBryde had impermissibly removed the Hobbs Act's interstate commerce element from the jury by instructing that the jury was merely to decide whether the robbed stores routinely made deposits that were wired to banks in other states." The judge summarily instructed the jury that those facts, if true, would prove the effect on interstate commerce necessary for a Hobbs Act conviction.18 A Fifth Circuit panel, citing the recent Supreme Court opinion in United States v. Gaudin,,19 agreed with Parker that the instructions were improper.20 Although the instructions correctly asked the jury to determine factual questions concerning the interstate bank transfers, the judge erroneously required the jury automatically to find an effect on interstate commerce once those factual allegations were deemed true.2' Sitting en banc, however, the Fifth Circuit reversed and announced without explanation that the jury instructions were not erroneous.zz Thus, Parker's conviction stands on a jury instruction that denied the jury the power to decide whether his robberies did indeed "affect interstate commerce" so as to justify his Hobbs Act conviction.23 Parker's story is not unique. Congress increasingly includes in federal criminal statutes the element that Parker's judge removed from the jury's control - the defendant's effect on interstate commerce;24 moreover, these federal criminal statutes are proliferating.25 As the number of statutes grows and jury instructions on the interstate commerce elements of those crimes continue to remove elements from the jury, courts will undermine the right to jury trial more frequently.26 Parker's story does not raise concerns about only the Constitution's Fifth and Sixth Amendment protections; it also presents an issue about Congress's power to enact federal crimes.2' As a matter of constitutional law, to make simple robbery a federal crime, Congress had to include the affecting interstate commerce element in its definition of the crime. …

Modern Partnership Interests as Securities:The Effect of RUPA, RULPA, and LLPStatutes on Investment Contract Analysis

Abstract: I. Introduction The evolution of business organization law in recent years is striking. Traditionally, lawyers could consistently rely on certain categorical norms. For example, a clear difference existed between general partnerships and limited partnerships.1 Partners in general partnerships faced unlimited personal liability for partnership obligations and were expected to participate in firm management.2 Alternatively, limited partnerships offered limited liability for those partners who had little desire to participate in firm management.3 Such stark formal differences made application of federal securities law4 to partnership interests relatively simple.5 Although federal securities law does not specifically mention partnership interests in the definition of a "security," courts and commentators agree that partnership interests should be analyzed as investment contracts, a term included in the definition of a "security."6 In SEC v. W. J. Howey Co.,7 the Supreme Court announced an investment contract test that required profits to be derived from the "efforts of others."8 Building on Howey's "efforts of others" test, lower federal courts developed presumptions that general partnership interests are not securities and that limited partnership interests are securities.9 These presumptions rely on traditional notions of the roles that general and limited partners play within their respective firms.10 Recent changes in partnership law have uprooted traditional notions of partnership, causing a blurring of the lines and a collision of categories so that traditional presumptions no longer provide sufficient analytical tools when deciding whether partnership interests are securities. General partnership law no longer guarantees general partners enough control over partnership affairs to protect their investment.11 Statutory norms no longer restrict limited partners to merely passive roles.12 Moreover, the development of limited liability partnerships (LLPs) effectively eliminates the traditional tradeoff between partnership control and limited liability.13 This Note considers whether changes to partnership law and the development of LLPs should alter the effect of federal securities law on partnership interests. In Part II, this Note discusses the traditional application of federal securities law on general and limited partnership interests. Part III provides a lengthy but necessary discussion of the changes in modern partnership law that make traditional form-based presumptions less reliable. Specifically, Part III discusses the increased freedom of contract available under the Revised Uniform Partnership Act (RUPA) and explains how this freedom enables partnerships to create strong centralized management and stripped general partners.14 In addition, Part III explains how the Revised Uniform Limited Partnership Act (RULPA) allows limited partners to exercise control without incurring personal liability. Part III concludes with a discussion of LLPs and compares LLPs to general partnerships. Part IV suggests that changes in modern partnership law remove the basis for presuming that partnership interests are or are not securities based solely on formal categories. Furthermore, Part IV proposes a test for determining whether an interest in a general partnership, a limited partnership, or an LLP is a security. Part V concludes that formal categories no longer reflect economic reality and that courts should disregard form-based distinctions when deciding whether partnership interests are securities. II. Federal Securities Law and the Definition of "Security" Congress intended the federal securities laws15 to ensure fair disclosure of financial information to potential investors.16 The federal securities laws apply to transactions involving "securities" as defined in the Securities Act of 1933 17 and the Securities Exchange Act of 1934. 18 According to the Supreme Court, the definitions of the term "security" in the two Acts are essentially the same. …

Human Rights in the United States Courts: The Role of Lawyers

Abstract: The efforts of lawyers who represent clients in courts ofthe United States have transformed the role of the international law of human rights. General statements of policy have become the kind of law dispensed by American judges in American courtrooms. On one level, because the Bill of Rights codifies a very large and progressive view of human rights and because the Bill of Rights is part of the Constitution, which is the highest law of the land, it could be argued that in any case invoking the Bill of Rights, the law of human rights has always been treated as the rule of decision in U.S. courts. This Article does not address that kind of case. Rather, this Article considers cases that, for one reason or another, are not adequately resolved by appeals to the U.S. Constitution: cases in which the international law of human rights is expressly cited as providing the rule of decision. If there were no such cases, then it would be reasonable to ask whether human rights law is anything more than aspirational and hortatory, a statement of hope for an improved future for everyone. But situations in which international human rights law is actually the rule of decision that determines whether the plaintiff wins or the defendant wins place us on the road toward raising international human rights to the level of domestic law, which determines the actual legal rights of actual living people. Until 1979, the question whether the treaties of the United States that have human rights elements are self-executing always framed the direct application of human rights law before U.S. courts. In the 1950s, the Supreme Court of California in Sei Fujii v. State1 found that the human rights provisions of the United Nations Charter are not self-executing: They cannot be relied upon as generating the law of decision of a case without domestic legislative implementation.2 The Sei Fujii court concluded that the legislature never enacted such measures.3 Human rights law will seldom be useful law in U.S. courts if its use is dependent upon the vehicle of a self-executing treaty to import treaty language into the courtroom. It will generally not be law in U.S. courts because the treaties to which the United States is a party that contain human rights elements either expressly or by implication are not self-executing. Moreover, the Congress of the United States has been slow at bringing international human rights norms, beyond those that are already parts of U.S. law by virtue of the Constitution, into American law. In 1979, the case of Filartiga v. Pena-Irala4 presented the following fact pattern: A young Paraguayan woman, whose brother had been tortured to death by the police of Asuncion, saw the man who had allegedly committed the murder on the streets of New York City.5 She went to see a lawyer and asked whether there might be any recourse against him in the U.S. courts for the murder of her brother.6 Because it has never been seriously contested, one can assume that the murder was politically motivated. Specifically, it was an attempt by the police of Asuncion to strike out at the father of the boy who was killed: Joel Filartiga, a physician and artist who was also a leading opposition figure in Paraguay in the days of the Stroessner regime, which did not countenance very much opposition. Dolly Filartiga found the Center for Constitutional Rights in New York City, whose lawyers had long dreamed of the case that would test the contours of a statute enacted in 1789. That statute, passed immediately after the adoption of the Constitution, was Section nine of the First Judiciary Act,7 the very same statute that led to Marbury v. Madison,8 in which the Supreme Court of the United States first asserted its right to find legislative enactments unconstitutional.9 Section nine, now codified as 28 U.S.C. 1350, provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. …