Vol. 5, No. 4: Sep 17, 2010

Associate Dean for Faculty and Research Professor of Law and Judge Frederick B. Lacey Scholar, Rutgers Law School - Newark

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Table of Contents

Remembering the Other's Others: Theorizing the Approach of International Law to Muslim Fundamentalism

Karima Bennoune, Rutgers School of Law - Newark

Are Debtors Rational Actors? An Experiment

Chrystin D. Ondersma, Rutgers University School of Law

Martha Nussbaum, Essentialism, and Human Sexuality

Carlos A. Ball, Rutgers University School of Law (Newark)

From the Closet to the Courtroom: Five LGBT Rights Lawsuits that Have Changed Our Nation

Carlos A. Ball, Rutgers University School of Law (Newark)

Conflicts of Interest: Slicing the Hot Potato Doctrine

John Leubsdorf, Rutgers Law School Newark

Dean Me: The Checkerboard World of Law School Administration (A Play in Five Acts)

Carol A. Roehrenbeck, Rutgers, The State University of New Jersey - School of Law-Newark
Gail Levin Richmond, Nova Southeastern University - Shepard Broad Law Center

International Crime: In Context and in Contrast

Adil Ahmad Haque, Rutgers, The State University of New Jersey - School of Law-Newark

Criminal Law and Morality at War

Adil Ahmad Haque, Rutgers, The State University of New Jersey - School of Law-Newark


"Remembering the Other's Others: Theorizing the Approach of International Law to Muslim Fundamentalism" 
Columbia Human Rights Law Review, Vol. 41, pp. 635-698, 2010
Rutgers School of Law-Newark Research Paper No. 075

KARIMA BENNOUNE, Rutgers School of Law - Newark

Muslim fundamentalist movements pose major challenges to international law. Yet, the field of international law has failed to offer a significant response. Seeking to provide simple counter-narratives to the admittedly problematic narratives of some governments in the context of the "war on terror", international lawyers have often omitted discussion of Muslim fundamentalism altogether. While Edward Said's notion of Orientalism may manifest in stereotypical approaches to fundamentalism, it may also surface in the refusal to address the question at all because it is deemed to be embedded in Muslim culture.

The silences of international law with regard to Muslim fundamentalism speak volumes about the discipline. There are a number of explanations for such lacunae. These include decreasing confidence in universality, the misapplication of legitimate concerns about discrimination, and narrow discourses about victimhood. Whatever their causes, the result of these silences is that international legal scholarship and the human rights policy it informs may misrepresent significant global controversies. For example, the admittedly flawed "war on terror" becomes solely a misguided assault on an undifferentiated Muslim population (which it sometimes has been, sometimes not), while the existence of an organized jihadist international, the "other" side of the "war on terror," is disappeared. Such narratives undercut opponents of fundamentalists in Muslim populations.

Why does any of this matter? Consequently, the very governments that international lawyers seek to constrain may cease to take us seriously. Potential allies among anti-fundamentalists of Muslim heritage (whose projects are critical to the success of international law) may be further disempowered. Worse still, international law may be misused to the benefit of social movements antithetical to its goals. To better respond to the challenges posed by Muslim fundamentalism, international lawyers must apply their discipline's universalist principles with scrupulous consistency. Moreover, they need to confront the complexity of international law and construct a non-discriminatory, yet unashamedly critical, human rights account of Muslim fundamentalism.

Ultimately, international lawyers need to reconceptualize international law's world. They must cease opposing Samuel Huntington's problematic paradigm of the "clash of civilizations" with what is simply a post-colonial inversion of this same construct. By accepting his basic binary dividing "the West" and "Islam," even in the name of "difference," this approach actually reifies Huntington's notion of immutable inter-cultural fault lines that delimit the contemporary moment. The only way to refute Huntington is to recognize that the clashes about international law and human rights within civilizations, such as those between fundamentalists and their opponents, are as determinative as those between civilizations.

"Are Debtors Rational Actors? An Experiment" 
Lewis & Clark Law Review, Vol. 13, No. 1, 2009
Rutgers School of Law-Newark Research Paper No. 076

CHRYSTIN D. ONDERSMA, Rutgers University School of Law

In 2005, Congress -- motivated by the assumption that debtor’s were acting rationally and strategically -- changed bankruptcy law to reduce individual discretion. The new law, the Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA"), forced debtors through a cookie-cutter series of steps designed to reduce bankruptcy filings and to develop more national uniformity. Judicial discretion was sharply curtailed, and practicing lawyers were burdened with extensive, detailed obligations that drove up costs and pushed many out of bankruptcy practice altogether. In other words, the burdens and costs associated with bankruptcy were substantially increased in order to deter filings. Bankruptcy provides a natural experiment to empirically test the strength of the Rational Actor model upon BAPCPA was based. Over the past twenty-seven years, millions of American families have filed for personal bankruptcy, each going through a uniform federal process in their own local communities. A decade ago, empiricists discovered wide variations were reported among filing rates and chapter choices, and those variations remained stable over time. Interestingly, these variations could not be explained by any salient external factor, such as variations in income, unemployment, or exemption laws. Bankruptcy filing choices, in other words, were largely due to "unseen or overlooked influences," suggesting that a simple Rational Actor model could not fully explain debtor behavior. In spite of these findings, Congress rooted its bankruptcy reform efforts in the assumption that debtors were acting strategically and rationally. The passage of BAPCPA was expected to radically alter bankruptcy filing patterns, and the question remained whether these filing patterns would be consistent with Congress's assumption that debtors were acting rationally and strategically. My data indicate that, while BAPCPA did reduce bankruptcy filings across the board, unexplained local variations in filing patterns remain, casting doubt upon the simplistic Rational Actor assumptions behind BAPCA.

"Martha Nussbaum, Essentialism, and Human Sexuality" 
Columbia Journal of Gender and Law, Vol. 19, No. 1, 2010
Rutgers School of Law-Newark Research Paper No. 077

CARLOS A. BALL, Rutgers University School of Law (Newark)

The type of liberal humanism defended by Martha Nussbaum can be criticized as "essentialist" because it is grounded in commonalities, found across time and place, which allow us to recognize each other as human. I argue in this Essay, however, that Nussbaum's writings on sex and sexuality are entirely consistent with social constructionist (as opposed to essentialist) understandings of sexual orientation. I also explain why Nussbaum's liberal humanism, which encourages us to recognize the humanity of those who seem least like us, is a compelling form of argumentation on behalf of sexual minorities.

"From the Closet to the Courtroom: Five LGBT Rights Lawsuits that Have Changed Our Nation" 
Rutgers School of Law-Newark Research Paper No. 078

CARLOS A. BALL, Rutgers University School of Law (Newark)

During the second half of the twentieth century, social movements in the United States increasingly turned to the courts to advance their causes. The LGBT rights movement has been no exception. Since the late 1970s, that movement and its lawyers have aggressively pursued a judicial strategy aimed at challenging laws and policies that discriminate against LGBT people.

My book "From The Closet to the Courtroom: Five LGBT Rights Lawsuits That Have Changed Our Nation" (Beacon Press, 2010) tells the human and legal stories behind these leading gay rights cases: Braschi v. Stahl Associates (1989); Nabozny v. Podlesny (1996); Romer v. Evans (1996); Baehr v. Lewin (1993); and Lawrence v. Texas (2003).

I argue in my book that these five lawsuits have played a crucial role in creating the necessary social and political conditions that today provide LGBT people with the opportunity to lead lives that are both open and dignified. In doing so, the lawsuits have compelled the country to account for the interests and hopes of LGBT people.

A key part of the story that I tell in my book is played by LGBT rights attorneys. Over the last twenty years, no group of lawyers has helped to transform the United States more than LGBT rights attorneys, and yet their collective accomplishments have received relatively little attention. My book seeks to remedy that by exploring how a band of largely unheralded civil rights lawyers have attained remarkable legal victories through skill, creativity, and perseverance.

Those interested in reading the Introduction to the book can download this document.

"Conflicts of Interest: Slicing the Hot Potato Doctrine" 
Rutgers School of Law-Newark Research Paper No. 079

JOHN LEUBSDORF, Rutgers Law School Newark

The lawyer conflict of interest rules are more stringent when a firm represents two clients simultaneously than when it represents first one and then the other. Some law firms have tried to take advantage of this difference by "firing" an old client so as to be free to accept a new one. Courts have blocked this move, stating that a lawyer cannot drop a client like a hot potato, and that firms that do so remain subject to the more stringent concurrent representation rule. But that leaves many questions open. Does a natural feeling of repugnance for lawyer opportunism warrant adding a new requirement to the Model Rules of Professional Conduct? Should the doctrine be applied if it is the client who reacts to the conflict of interests by discharging the law firm, rather than the firm that withdraws? Does it matter if the firm dropped one client before accepting another, so that there has never been a time at which it represented two clients with conflicting interests? Should the doctrine apply when the conflict has been brought about by a client rather than a lawyer? And when the doctrine does apply, which of the two clients whose interests conflict should be the one to lose the services of the firm? This article, the first to consider the "hot potato doctrine," tries to answer these and other questions. It will appear in the San Diego Law Review in a memorial issue honoring the late Fred Zacharias.

"Dean Me: The Checkerboard World of Law School Administration (A Play in Five Acts)" 
Nova Southeastern University Shepard Broad Law Center Research Paper
Rutgers School of Law-Newark Research Paper No. 080

CAROL A. ROEHRENBECK, Rutgers, The State University of New Jersey - School of Law-Newark
GAIL LEVIN RICHMOND, Nova Southeastern University - Shepard Broad Law Center

Dean Me is the third in a series of plays set at Avon Law School. Each play describes a particular issue, in this case the growth in administrative ranks, that Avon and other schools confront. But this time the stakes are higher - library layout and improved student evaluations (discussed in the previous plays) don’t involve the 'Do we really need more of THEM?' hand-wringing occasioned by new administrative hires. As the authors indicate, the increased number of administrators and use of the dean title have many explanations. Hiring freezes caused by current economic conditions may slow this growth, but there is no reason to believe it will end unless law schools stop adding services and programs to support current students and entice new ones.

"International Crime: In Context and in Contrast" 
STRUCTURES OF CRIMINAL LAW, R.A. Duff, Lindsay Farmer, Sandra Marshall, Victor Tadros, eds., 2010
Rutgers School of Law-Newark Research Paper No. 081

ADIL AHMAD HAQUE, Rutgers, The State University of New Jersey - School of Law-Newark

The topic of this chapter is the structure of international crimes, which differs from the structure of national crimes in two important respects. First, international crimes typically include -- in addition to their conduct, result, and attendant circumstance elements -- a contextual element that national crimes rarely contain. For example, the killing of a civilian will be considered a war crime if "[t]he conduct took place in the context of and was associated with" an armed conflict; a crime against humanity if "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack;" or an act of genocide if "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." The first task of this chapter is to explain how this unfamiliar structure relates the values at stake in international crimes to one another. More specifically, the task will be to determine whether the contextual element of each international crime contributes to the moral wrongfulness of the offense or to the justification for subjecting the offense to the jurisdiction of international criminal tribunals.

In addition, to the extent that international crimes and national crimes display parallel structures, the parallel structures they display organize similar values in dissimilar ways. For example, international crimes such as attacking civilians are defined in terms of conduct; national crimes that implicate similar values such as murder are typically defined in terms of result. International crimes such as causing excessive civilian death include justificatory concepts in the definition of the offense; national crimes typically exclude such concepts, which instead appear in the definition of affirmative defenses. The second task of the chapter is to determine whether these international crimes place the relevant values in their proper orientation toward one another, or whether they should be restructured along the lines of national criminal law. In particular, it must be determined whether these international crimes reflect a viable alternative structure according to which crimes are constituted by or related to either an attack or an endangerment.

"Criminal Law and Morality at War" 
Rutgers School of Law-Newark Research Paper No. 082

ADIL AHMAD HAQUE, Rutgers, The State University of New Jersey - School of Law-Newark

The purpose of this chapter is to identify the moral norms applicable to killing in armed conflict and determine whether and to what extent the law of armed conflict (LOAC) and international criminal law (ICL) track these moral norms, justifiably depart from them, or unjustifiably depart from them. Part I explores the moral and legal norms governing the killing of civilians not directly participating in hostilities, both as an intended means and as a foreseen side-effect, and defends one account of these norms against important philosophical challenges by Thomas Scanlon, Victor Tadros, Frances Kamm, and Jeff McMahan. I argue that these moral norms are best understood and defended using the distinctions drawn in criminal law theory between wrongdoing, justifiability, and justification. The LOAC tracks these moral norms quite closely. By contrast, ICL departs from these moral norms in ways that are difficult to defend, in part because ICL seems to mistakenly assign intention a wrong-making rather than a wrong-justifying function.

The balance of the chapter examines the moral and legal norms governing the killing of civilians directly participating in hostilities as well as of members of armed forces and organized armed groups. Part II attempts to identify the conditions under which individuals lose their moral immunity from direct attack, partly by critically examining an analogy drawn by Jeff McMahan between these conditions and the legal doctrine of criminal complicity. Both the LOAC and ICL generally track these conditions fairly closely, but both should be revised to prohibit direct attacks on members of armed forces whom the attacker knows are not directly participating in hostilities and have not assumed a 'continuous combat function'. Finally, Part III argues that moral constraints of necessity and proportionality limit the use of force even against individuals who are morally liable to direct attack. Several arguments to the effect that the LOAC and ICL may justifiably fail to enforce these moral constraints are examined and found unpersuasive.

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