| Author | Title | Citation | Summary | Year | Key Terms |
| Jonathan Remy Nash |
Doubly Uncooperative Federalism and the Challenge of U.s. Treaty Compliance |
55 Columbia Journal of Transnational Law L. 3 (2016) |
This Article explores the undertheorized and understudied phenomenon of doubly uncooperative federalism. While most commentary examining the behavior of U.S. states with respect to treaty regimes focuses on cooperative behavior--that is, states that aid in the implementation of duly ratified treaties, or even aid in the implementation of treaties... |
2016 |
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| Michael D. Ramsey |
Evading the Treaty Power?: the Constitutionality of Nonbinding Agreements |
11 FIU Law Review 371 (Spring, 2016) |
The U.S. Constitution states that the President can make treaties with the advice and consent of the Senate, provided two thirds of the Senators present concur. This high threshold for consent reflects the framers' concern that treaties not be too easy to make. It represented a radical departure from the British system most familiar to the... |
2016 |
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Fifth Amendment--double Jeopardy--dual-sovereignty Doctrine--puerto Rico v. Sanchez Valle |
130 Harvard Law Review 347 (November, 2016) |
The inaugural words of America's Constitution make plain that We the People are the nation's wellspring of sovereign authority, yet the doctrines of our one supreme Court often suggest that ultimate power resides in polities alone. One area of constitutional jurisprudence that exhibits this ironic turn is the dual-sovereignty doctrine, a... |
2016 |
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| Kristen E. Eichensehr |
Foreign Sovereigns as Friends of the Court |
102 Virginia Law Review 289 (April, 2016) |
Introduction. 290 I. The History of Foreign Sovereign Amici. 297 II. Assessing Foreign Sovereign Amicus Participation. 302 A. When and How Foreign Sovereigns File. 303 B. What Foreign Sovereigns File: The Arguments They Make. 312 1. International Facts. 312 2. International Law. 314 a. Treaty Interpretation. 314 b. Customary International Law.... |
2016 |
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| Daniel J. Hessel |
Founding-era Jus Ad Bellum and the Domestic Law of Treaty Withdrawal |
125 Yale Law Journal 2394 (June, 2016) |
The Constitution provides no textual guidance for how, as a matter of domestic law, the United States can withdraw from an Article II treaty. The Supreme Court has not clarified matters. In the face of this uncertainty, government officials and scholars alike have long debated whether the President may unilaterally withdraw from a treaty or whether... |
2016 |
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| Sarath Pillai |
Fragmenting the Nation: Divisible Sovereignty and Travancore's Quest for Federal Independence |
34 Law and History Review 743 (August, 2016) |
Speaking at the Travancore legislative assembly on February 2, 1938, Sir C.P. Ramaswamy Aiyar said: The federation contemplated in the Government of India Act (1935) was founded on the recognition of the fundamental idea that the Ruler alone represents his state and that the Ruler is the government of the state. Travancore was one of the oldest... |
2016 |
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| Christopher Mirasola |
Historic Waters and Ancient Title: Outdated Doctrines for Establishing Maritime Sovereignty and Jurisdiction |
47 Journal of Maritime Law and Commerce 29 (January, 2016) |
This article critically examines two doctrines that States have used to declare exceptional maritime sovereignty: Historic Waters and Ancient Title. Despite their long pedigree in customary international law, I argue that both doctrines are largely irrelevant in the modern regime of maritime delimitation established by the United Nations Convention... |
2016 |
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| Michael A. Johns |
How Forest Treatment Saved the Bray Creek Ranch |
48 Arizona State Law Journal 35 (Spring 2016) |
Bray Creek Ranch is an old homestead along the Highline National Recreation Trail, which is a part of the Arizona Trail, at the base of the Mogollon Rim about twelve miles north of Payson, Arizona between Boy Scout Camp Geronimo and Girl Scout Camp Shadow Rim. The ranch is surrounded by National Forest in the Ponderosa Pine type at about 6,000 feet... |
2016 |
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| Michael A. Newton |
How the International Criminal Court Threatens Treaty Norms |
49 Vanderbilt Journal of Transnational Law 371 (March, 2016) |
This Article demonstrates the disadvantages of permitting a supranational institution like the International Criminal Court (ICC) to aggrandize its authority by overriding agreements between sovereign states. The Court's constitutive power derives from a multilateral treaty designed to augment sovereign enforcement efforts rather than annul them.... |
2016 |
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| Calvin Cohen |
How to Assert State Sovereign Immunity under the Federal Rules of Civil Procedure |
69 Vanderbilt Law Review 761 (April, 2016) |
Introduction. 762 I. The Unclear History of State Sovereign Immunity in the United States. 766 A. Importation of State Sovereign Immunity and Chisholm v. Georgia. 767 B. The Eleventh Amendment and Its Interpretation. 768 1. The Ex Parte Young Exception. 771 2. The Section Five Exception. 772 C. The Twentieth Century: Defense from Congressional... |
2016 |
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| Laura Jacobs |
How to Sidestep Saying "See Ya Real Soon" to the Public Domain: Using Droit D'auteur to Justify a Trademark-favored Treatment of Mickey Mouse |
39 Boston College International and Comparative Law Review 387 (2016) |
Abstract: Mickey Mouse is one of the most recognizable characters in the world, but this famous character will be passing into the public domain when his copyright expires in 2024. The Walt Disney Company also has registered Mickey Mouse as a trademark. Thus, when Mickey passes into the public domain, an interesting conflict between copyright and... |
2016 |
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| Neve Gordon, Nicola Perugini |
Human Shields, Sovereign Power, and the Evisceration of the Civilian |
110 AJIL Unbound 329 (2016) |
Human shields were prominent in the 2016 military campaign seeking to recapture Mosul from the hands of ISIS militants. On October 24, 2016, Pope Francis expressed his concern over the use of over two hundred boys and men as human shields in the Iraqi city. In an election rally the following day, Donald Trump decried the enemy's use of human... |
2016 |
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| Jeffrey M. Schmitt |
In Defense of Shelby County's Principle of Equal State Sovereignty |
68 Oklahoma Law Review 209 (Winter, 2016) |
In Shelby County v. Holder, the Supreme Court struck down a key aspect of the Voting Rights Act of 1965 based on the principle that all States enjoy equal sovereignty. Legal scholars have exhaustively attacked Shelby County's equal sovereignty principle with a surprising degree of unanimity and contempt. These critics argue that the principle is... |
2016 |
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| Thomas B. Colby |
In Defense of the Equal Sovereignty Principle |
65 Duke Law Journal 1087 (March, 2016) |
The Supreme Court of the United States based its landmark decision in Shelby County v. Holder on the proposition that the Constitution contains a fundamental principle of equal sovereignty among the States. For the central holding of a blockbuster constitutional case, that assertion was surprisingly unsupported. The Court simply declared it to be... |
2016 |
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| Kent Greenawalt, University Professor, Columbia Law School |
Individual Conscience and How it Should Be Treated |
31 Journal of Law and Religion 306 (November, 2016) |
The Rise and Decline of American Religious Freedom. By Steven D. Smith. Cambridge, MA: Harvard University Press, 2014. Pp. 240. $42.00 (cloth). ISBN: 978-0674724754. Free to Believe: Rethinking Religious Freedom and Conscience in Canada. By Mary Anne Waldron. Toronto: University of Toronto Press, 2013. Pp. 312. $30.95 (Canadian) (paper). ISBN:... |
2016 |
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| Rory Bahadur |
Individual Sovereignty, Freer Sex, and Diminished Privacy: How an Informed and Realistic Modern Sexual Morality Provides Salvation from Unjustified Shame |
8 Elon Law Review 245 (2016) |
C1-3Table of Contents I Introduction. 246 II. Traditional Sexual Morality. 249 III. Traditional Sexual Morality as an Instrument of Racism and Female Oppression. 253 A. The Augustinian Origins of Judeo-Christian Sexual Morality. 254 B. The Judeo-Christian Justification of Female Oppression. 257 C. The Effect of Normative Judeo-Christian Sexual... |
2016 |
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| John W. Head |
International Law, Agro-ecological Integrity, and Sovereignty-proposals for Reform |
63-JUN Federal Lawyer 56 (June, 2016) |
Although modern agriculture presents profound problems that are potentially fatal to the human species, a dramatically different natural-systems agriculture is possible and now under development. International law will need to undergo major reforms in order to facilitate the transition to such a natural-systems agriculture. Two types of reforms are... |
2016 |
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| Rebecca M. Kysar |
Interpreting Tax Treaties |
101 Iowa Law Review 1387 (May, 2016) |
ABSTRACT: The circumstances, if any, that permit non-uniform, or differentiated, treaty interpretation are difficult to define. Generally, a differentiated approach stands in tension with the Vienna Convention's rules of interpretation, which apply a methodology based on plain meaning to all treaties. Yet courts, states, and scholars widely accept... |
2016 |
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| Leah M. Litman |
Inventing Equal Sovereignty |
114 Michigan Law Review 1207 (May, 2016) |
The Supreme Court's 2013 decision in Shelby County v. Holder relied on the fundamental principle and historic tradition of equal sovereignty to hold one of the Voting Rights Act's key provisions unconstitutional. Yet almost three years after Shelby County, and despite a recent wave of equal sovereignty challenges to major federal programs, the... |
2016 |
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| P. Sean Morris |
Is Zero Disarmament Possible? Multilateralism and Nuclear Arms Control Treaties |
8 William & Mary Policy Review 40 (Fall, 2016) |
This article concerns two Cold War treaties on nuclear nonproliferation and arms control and whether the success of one treaty can be instrumental in leading to the reduction of nuclear weapons. The Nuclear Non-Proliferation Treaty (NPT) and the Intermediate-Range Nuclear Forces Treaty (INF) have been essential to world peace. Although it might be... |
2016 |
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| Emilia Justyna Powell |
Islamic Law States and the Authority of the International Court of Justice: Territorial Sovereignty and Diplomatic Immunity |
79 Law and Contemporary Problems 209 (2016) |
The principal judicial organ of the United Nations (UN)--the International Court of Justice (ICJ)--adjudicates interstate disputes and issues advisory opinions on legal questions referred to it by authorized UN organs and specialized agencies. The Court has contributed to the peaceful resolution of disputes by delivering justice in a variety of... |
2016 |
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| Joanna V. Theiss |
It May Be Here to Stay, but Is it Working? The Implementation of the Affordable Care Act Through an Analysis of Coverage of Hiv Treatment and Prevention |
12 Journal of Health & Biomedical Law 109 (2016) |
On June 25, 2015, the Supreme Court upheld a crucial element of the Affordable Care Act (the Act), which provides for subsidies to defray the cost of health insurance for applicable individuals. This decision, coupled with the Court's 2012 decision to uphold the individual mandate, led President Obama to declare that the Affordable Care Act... |
2016 |
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| Julianne Hill |
Jailhouse Warehouse |
102-DEC ABA Journal 42 (December, 2016) |
The audience sitting in the gymnasium bleachers is charged with excitement as the graduation speaker approaches the podium. Student artwork hangs on the cinder block walls nearby, along with handwritten signs that declare The harder I work, the luckier I get and Failing to prepare is preparing to fail. The graduating class of 86 men is dressed... |
2016 |
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| Ian Bartrum |
James Wilson and the Moral Foundations of Popular Sovereignty |
64 Buffalo Law Review 225 (April, 2016) |
The dread and redoubtable sovereign, when traced to his ultimate and genuine source, has been found, as he ought to have been found, in the free and independent man. This truth, so simple and natural, and yet so neglected or despised, may be appreciated as the first and fundamental principle in the science of government. --James Wilson Even most... |
2016 |
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| Darryl Li |
Jihad in a World of Sovereigns: Law, Violence, and Islam in the Bosnia Crisis |
41 Law and Social Inquiry 371 (Spring, 2016) |
This article argues that jihads waged in recent decades by foreign fighter volunteers invoking a sense of global Islamic solidarity can be usefully understood as attempts to enact an alternative to the interventions of the International Community. Drawing from ethnographic and archival research on Arab volunteers who joined the 1992-1995 war in... |
2016 |
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| Philip Thai |
Law, Sovereignty, and the War on Smuggling in Coastal China, 1928-1937 |
34 Law and History Review 75 (February, 2016) |
In October 1934, agents from the Chinese Maritime Customs Service received a hot tip that an otherwise unremarkable village off the coast of Shandong was hiding valuable contraband. A search party dispatched to investigate verified the claim after raiding several homes and uncovering sixty-nine bags of sugar. Seeking to add to this already sizeable... |
2016 |
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| Fred Smith |
Local Sovereign Immunity |
116 Columbia Law Review 409 (March, 2016) |
When governmental actors offend federal rights, victims are often left with no one to hold accountable in federal courts. This Article explores this accountability gap in cases involving local officials' violations of the Constitution. Local government, after all, is the layer of government that is often closest to our daily lives, from law... |
2016 |
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| Mitchell A. Kane |
Location Savings and Segmented Factor Input Markets: in Search of a Tax Treaty Solution |
41 Brooklyn Journal of International Law 1107 (2016) |
Introduction. 1108 I. Source Based Taxation of Labor Rents: A Normative Analysis. 1116 A. Efficiency Consequences. 1116 1. Tradeoffs Between Organizational Neutrality and Non-distortionary Rents Taxes. 1117 2. Rethinking Article 5--the Source Entitlement Proposal. 1120 3. Organizational Distortions and the Cushion to Tax Organizational Gains. 1125... |
2016 |
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| Spencer Dew, Assistant Professor of Religious Studies, Centenary College of Louisiana |
Moors Know the Law: Sovereign Legal Discourse in Moorish Science Religious Communities and the Hermeneutics of Supersession |
31 Journal of Law and Religion 70 (March, 2016) |
Among the many individuals and groups espousing affiliation with the Moorish Science Temple of America movement, some continue founding prophet Noble Drew Ali's emphasis on engaging in American citizenship as a religious duty, while others interpret the prophet's scriptures to lend authority to claims of being outside the jurisdiction of American... |
2016 |
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| Lindsey Ratcliff |
Native American Law Students Association, Natural Resources and Environmental Law Society, and the University of Denver Water Law Review Panel |
20 University of Denver Water Law Review 125 (Fall, 2016) |
On September 27, 2016, the University of Denver Sturm College of Law (DU) hosted a panel discussion about the current legal fight over the Dakota Access Pipeline in North Dakota. The panel addressed legal, historical, social justice, and environmental justice topics related to the dispute. The discussion was co-sponsored by DU's Natural Resources... |
2016 |
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| Vinita Banthia |
Neglected Diseases: How Intellectual Property Can Incentivize New Treatment |
16 Chicago-Kent Journal of Intellectual Property 241 (Fall, 2016) |
I. Introduction. 241 II. Background on Neglected Tropical Diseases. 244 A. Neglected Diseases: What are they?. 244 B. Current Legal and Social Initiatives in Place to Address Neglected Diseases. 246 III. Argument/Analysis. 249 A. Why Should We Care?: Impact of the Neglected Diseases on Communities--Overseas and In the United States. 249 B. Reasons... |
2016 |
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| Jessica K. Phillips |
Not All Pro Se Litigants Are Created Equally: Examining the Need for New Pro Se Litigant Classifications Through the Lens of the Sovereign Citizen Movement |
29 Georgetown Journal of Legal Ethics 1221 (Fall, 2016) |
Much to the chagrin of many trial court judges, the number of pro se litigant filings in the U.S. judicial system has steadily increased over the past two decades. While some judges view accommodating the needs of individual pro se litigants as a necessary aspect of ensuring equal access to justice, others view pro se litigants collectively as a... |
2016 |
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| Deepa Sharma |
Out of Thin Air: Evaluating the Legality of the Clean Power Plan under the Equal Sovereignty Principle |
43 Hastings Constitutional Law Quarterly 949 (Summer 2016) |
On October 23, 2015, the Environmental Protection Agency (EPA) finalized a groundbreaking rule, known as the Clean Power Plan, which would reduce carbon emissions by focusing on pollution from power plants and setting state-specific emissions goals. The overall purpose of the rule is to decrease the United States' CO2 emission levels from the... |
2016 |
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| Deepa Sharma |
Out of Thin Air: Evaluating the Legality of the Clean Power Plan under the Equal Sovereignty Principle |
22 Hastings West-Northwest Journal of Environmental Law & Policy 247 (Summer, 2016) |
I. Introduction II. Background III. The Equal Sovereignty Principle A. United States v. Ptasynski B. Nuclear Energy Institute, Inc. v. Environmental Protection Agency (NEI) C. Shelby County v. Holder D. NCAA v. New Jersey IV. Applying the Equal Sovereignty Doctrine to the Clean Power Rule V. The Equal Sovereignty Framework A. Whether the Equal... |
2016 |
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| Adam Bolotin |
Out of Touch: Shelby County v. Holder and the Callous Effects of Chief Justice Roberts's Equal State Sovereignty |
49 John Marshall Law Review 751 (Spring, 2016) |
I. John Roberts Jr. and the Elegant Art of Foreshadowing. 751 II. A Repulsive Past Is Best Left Unforgotten. 753 A. A War Was Won, but a Battle Had Just Begun. 753 1. One Step Forward, Now Turn Around and Keep Walking: The End of Reconstruction. 756 2. Congress Takes a Stand: The Birth of the Voting Rights Act. 759 3. The Scaling Back of the VRA.... |
2016 |
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| Victor Kattan |
Palestine and the Secret Treaties |
110 AJIL Unbound 109 (2016) |
The Sykes-Picot agreement is the foremost example of Western double-dealing in the Middle East since the discovery of oil. The agreement, formalized in an exchange of notes between the British Foreign Secretary and the French Ambassador to the United Kingdom in London, is named after its principal negotiators Sir Mark Sykes (1879-1919) and... |
2016 |
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| Elizabeth A. Wilson |
'People Power' and the Problem of Sovereignty in International Law |
26 Duke Journal of Comparative & International Law 551 (Spring 2016) |
INTRODUCTION. 551 I. NONVIOLENT CIVIL RESISTANCE MOVEMENTS: AN OVERVIEW. 554 II. THE KING'S TWO BODIES (OF LAW). 562 A. Internal and External Sovereignty. 562 B. Nonintervention and Effective Control. 565 III. PROPOSALS FOR RECONCEPTUALIZING EXTERNAL SOVEREIGNTY: PATERNALISTIC, NOT POPULAR. 570 A. Right to Democracy. 571 B. The Responsibility to... |
2016 |
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| Max H. Hulme |
Preambles in Treaty Interpretation |
164 University of Pennsylvania Law Review 1281 (April, 2016) |
Introduction. 1282 I. Defining the Preamble. 1288 A. Preambles in U.S. Domestic Interpretation. 1290 B. Preambles in World Constitutions. 1293 II. The VCLT: Text & Context, Object & Purpose. 1296 A. Articles 31-32 and the Textual Focus. 1297 B. Preambles in Practice: Object and Purpose. 1300 C. Reconciling the Text-and-Context and... |
2016 |
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| Jacquelyn Amour Jampolsky |
Property, Sovereignty, and Governable Spaces |
34 Law & Inequality: A Journal of Theory and Practice 87 (Winter, 2016) |
This Article responds to the controversy surrounding the recent U.S. Supreme Court decision in Michigan v. Bay Mills Indian Community regarding off-reservation assertions of tribal sovereignty. Although the Bay Mills Court upheld tribal sovereign immunity over land purchased outside reservation boundaries, opinions about whether the decision was... |
2016 |
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| Jeffrey Kahn |
Protection and Empire: the Martens Clause, State Sovereignty, and Individual Rights |
56 Virginia Journal of International Law L. 1 (Spring 2016) |
The Martens Clause was a last-minute compromise that saved the 1899 Hague Convention with Respect to the Laws and Customs of War on Land. In its original formulation, the clause shielded individuals under the protection and empire of international law, principles of humanity, and the dictates of the public conscience. F. F. Martens, its author,... |
2016 |
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Reconciling State Sovereign Immunity with the Fourteenth Amendment |
129 Harvard Law Review 1068 (February, 2016) |
The United States was and is an experiment with a previously unknown form of government: not a single sovereign, not a loose coalition of independent states, but both together. When ratified in 1788, the Constitution split the atom of sovereignty and established an unprecedented federal system. The states remained autonomous, but--after the... |
2016 |
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| Adam Sorenson |
South Ossetia and Russia: the Treaty, the Takeover, the Future |
42 North Carolina Journal of International Law 223 (Fall, 2016) |
I. Introduction. 223 II. The Modern Right of Self-Determination. 225 III. The Treaty on Alliance and Integration. 228 A. The History of South Ossetia. 228 B. The Russia-South Ossetian Treaty on Alliance and Integration. 231 IV. The Legality of The Treaty on Alliance and Integration. 234 A. Russia's Argument for Self-Determination. 234 B. The... |
2016 |
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| Colin Miller |
Sovereign Impunity: Why Double Jeopardy Should Apply in Puerto Rico |
73 Washington and Lee Law Review Online 174 (6/28/2016) |
On January 13th, 2016, the Supreme Court of the United States heard oral arguments in Puerto Rico v. Sanchez Valle. The question that the Court must decide is whether the federal government and the Commonwealth of Puerto Rico are separate sovereigns for purposes of the Double Jeopardy Clause. This essay argues that the Supreme Court cannot answer... |
2016 |
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| Melissa Stewart |
Sovereign Lands |
2 One J: Oil and Gas, Natural Resources, and Energy Journal 391 (September, 2016) |
C1-2Table of Contents I. Introduction. 391 II. State of Wyoming v. United States Department of Interior. 392 A. Background and Facts. 392 B. Analysis. 392 III. Barlow & Haun, Inc. v. United States. 393 A. Background and Facts. 393 B. Analysis. 394 IV. Legislative Activity. 395 |
2016 |
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| Kent McNeil |
Sovereignty and Indigenous Peoples in North America |
22 U.C. Davis Journal of International Law and Policy 81 (Spring 2016) |
I. Introduction. 82 II. Defining Sovereignty. 82 III. Political Authority in Western Europe and Indigenous North America. 88 A. Western Europe. 88 B. Indigenous North America. 90 IV. De Facto Versus De Jure Sovereignty. 94 V. Defining De Facto Sovereignty. 100 VI. Conclusion. 103 |
2016 |
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| Matthew T. King |
Sovereignty's Gray Area: the Delimitation of Air and Space in the Context of Aerospace Vehicles and the Use of Force |
81 Journal of Air Law and Commerce 377 (Summer, 2016) |
Debate over the delimitation of airspace and outer space has persisted since the dawn of the space age, without resolution. With the development of hybrid aerospace vehicles that can operate in and transition between the two zones, the line between their disparate legal regimes will be tested. And this test may not come with an after-the-fact... |
2016 |
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| Noah M. Kazis |
Special Districts, Sovereignty, and the Structure of Local Police Services |
48 Urban Lawyer 417 (Summer, 2016) |
Local government is fragmented--usually. It is fragmented geographically, of course, with metropolitan areas carved into hundreds of independent municipalities. But local government is also fragmented functionally. For decades, single-purpose special districts have been replacing traditional general-purpose local governments, like cities and... |
2016 |
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| Pablo J. Davis |
Spiritual-treatment Exemptions to Child Neglect Statutes--state v. Crank: Vagueness and Establishment Clause Challenges to Selective Prosecution of Faith-healing Parents |
46 University of Memphis Law Review 761 (Spring, 2016) |
I. Introduction. 761 II. Background and Issues. 764 A. Vagueness. 764 B. Establishment Clause. 766 C. Elision. 769 D. Spiritual Treatment Exemptions. 772 1. Early Cases. 772 2. ST Exemptions. 774 3. Oklahoma. 776 4. Ohio. 777 5. California. 778 6. Minnesota. 779 7. Tennessee. 780 III. State v. Crank. 781 A. Background and History. 781 B. The... |
2016 |
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| Josh Blackman |
State Judicial Sovereignty |
2016 University of Illinois Law Review 2033 (2016) |
In our dual sovereignty with a dual judiciary, it is the received wisdom that Congress has plenary power over the state courts through concurrent, mandatory, and exclusive jurisdiction. Congress, the argument goes, can allow, require, or forbid state courts from hearing federal causes of action. The Supreme Court, however, has sketched out an... |
2016 |
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Supreme Court Hears Oral Argument in State Sovereignty Case |
26-MAR Journal of Multistate Taxation and Incentives 43 (March/April, 2016) |
DEBRA S. HERMAN is a partner in the New York City office of the law firm Hodgson Russ LLP. She thanks K. Craig Reilly for his contributions to this column. In this issue of the Journal, we discuss the oral argument in Franchise Tax Board of the State of California v. Hyatt (Docket No. 14-1175). At issue before the Court is the scope of sovereign... |
2016 |
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