ZiefBrief

Nuclear Non-Proliferation — A New Way Forward from Prof. Jack Garvey

Addressing acknowledged flaws in the consensual regime of the Nuclear Non-Proliferation Treaty, USF's Professor Jack I. Garvey calls for a New Architecture for the Non-Proliferation of Nuclear Weapons. The keystone of the new architecture would be a United Nations Security Council resolution declaring nuclear weapons proliferation to be a "threat to peace" and engaging the sanctions regime of Chapter VII of the United Nations Charter. The proposed new regime would be mandatory, and would apply to non-state actors as well as to states. It would also seek to formalize and strengthen the inspection and verification role of the IAEA. Professor Garvey presents evidence that the political will exists to move toward the new architecture.

This is Professor Garvey's second article on nuclear proliferation issues. The first, also published in the Journal of Conflict and Security Law, was The International Institutional Imperative for Countering the Spread of Weapons of Mass Destruction: Assessing the Proliferation Security Initiative.

Professor Richard Leo's New Book on Police Interrogation

Professor Richard Leo's new book, Police Interrogation and American Justice, will be available from Harvard University Press in February 2008.  Professor Leo "draws on extensive research to argue that confessions are inherently suspect and that coercive interrogation has led to false confession and wrongful conviction. He looks at police evidence in the court, the nature and disappearance of the brutal 'third degree,' the reforms of the mid-twentieth century, and how police can persuade suspects to waive their Miranda rights."  Police Interrogation and American Justice will be available in the Zief Law Library in a few weeks.  You can find Richard Leo's faculty profile here along with a list of his extensive scholarly works on criminal justice issues.

Life Without Parole for Juvenile Offenders: A Human Rights Report

Today ZiefBrief celebrates Human Rights Day by featuring Sentencing our Children to Die in Prison: Global Law and Practice [PDF; 51 pages], a newly-released report from the Center for Law and Global Justice here at USF.

The report, co-authored by Professor Connie de la Vega and Michelle Leighton, the Center's Director for Human Rights Programs, deals with the practice of sentencing juvenile offenders to life without the possibility of parole ("LWOP"). It surveys the countries where juvenile LWOP sentences are or may be imposed, argues that international law prohibits such sentences, and explores alternative juvenile justice and rehabilitation models. And for legal researchers, the report's appendix contains a 50-state survey, complete with citations and annotations, on juvenile LWOP laws.

USF Professor Honigsgberg Adds Expertise to Guantanamo Coverage

No sooner had USF Law Professor Peter Jan Honigsberg returned from attending the oral arguments before the Supreme Court on the Guantanamo Bay detainee cases than he was asked by the local ABC affiliate to comment. Asked if he thought Guantanamo's combatant status review tribunals are fair he said "Absolutely not."

Professor Honigsberg has taken a deep interest in the ongoing controversy around the handling of the prisoners in Guantanamo, having traveled to the prison to witness conditions first hand.

The complete video and text of the story, Supreme Court hearing Guantanamo cases, is available on KGO's web site.

Professor Hoingsberg has also conducted a much longer interview with the local Fox affiliate KTVU. In it he is able to go into much more depth about the situation in Guantanamo. It is available in the continuation of this post below.

Prof. Freiwald Helps Court of Appeals See Its Way Clear to Protect E-Mail Privacy.

In what is being heralded as an important expansion of privacy protection for e-mail, the US Court of Appeals for the 6th Circuit recently released a decision on the case of Warshak v. US

The court ruled that a citizen does have a reasonable expectation of privacy in their email stored on the computers of their Internet Service Provider or other intermediary (such as HotMail or GMail.) As a result, the warrant seizure provisions of the Stored Communications Act need to be applied when prosecutors are seeking such electronic communications and to the extent the SCA permits access without a warrant, the court found those provisions to be unconstitutional.

The local angle in this decision is that University of San Francisco School of Law Professor Susan Freiwald filed an Amicus brief in support of plaintiff Warshak's privacy rights. Check out Prof. Freiwald's publications at her faculty bibliography page for list of more of her work on Cyberlaw and privacy issues.

New Article From Professor Reza Dibadj

Professor Reza Dibadj's article, "From Incongruity to Cooperative Federalism," appears in Volume 40 of the University of San Francisco Law Review.  Here is the abstract from the Legal Scholarship Network:

The conventional wisdom has been that state law governs internal affairs, and federal law governs disclosure. This reassuring construct, however, has little basis in today’s reality. Left alone, states have not provided adequate shareholder protections: state securities laws were historically anemic, and the regulatory reach of state corporate law shrank under a prevailing contractarian ethos. As consequence, beginning in 1933, federal securities laws emerged to regulate many internal affairs. Curiously, however, as federal regulation has grown and become increasingly preemptive over the past decade, it has often decreased shareholder protections. As a consequence, some states have recently reversed course, using newly energized state securities laws to pursue fraud.

The responsibility for regulating the relationship between corporations and their shareholders has thus descended into a welter of confusion. Neither dual federalism nor preemptive federalism has been satisfactory.

In order to begin overcoming this morass, the article draws on new research in the theory of economic regulation. In particular, it proposes that the relationship between corporations and their shareholders operate within the framework of cooperative federalism using a reverse-Erie framework. The federal government would set minimal shareholder protections, but leave implementation and the creation of enhanced standards largely to the states. The article concludes by addressing a number of constitutional issues cooperative federalism might raise, including the creation of federal common law by state instrumentalities, as well as possible non-delegation and anti-commandeering concerns.

Lexis subscribers can retrieve this article by using "Get a Document" and entering the citation: 40 USF L Rev 845.  Westlaw subscribers can retrieve the article by entering the same citation in the "Find By Citation" box.  The Summer 2006 issue of USF Law Review is also available in print at Zief Law Library.  You can find Professor Dibadj's faculty profile here.

Picturing Justice Goes on Permanent Hiatus.

We are sorry to note that the on-line journal Picturing Justice is no longer accepting new articles. A special message on their home page reads: "From 1997 to 2006 Picturing Justice published over 300 short articles on the intersection between law and lawyers on one side and popular culture on the other. While we are no longer accepting new articles, we hope readers will continue to enjoy the articles in our archives."

We at Zief Brief have always enjoyed reading and promoting this pioneering web publication. While Picturing Justice was originally the effort of the USF law community (and especially Professor John Denvir) it has gone on to have a web-wide list of contributors. They will be missed.

Due Process and School Discipline: A New Article From Prof. Denvir

John Denvir, Research Professor of Constitutional Policy here at the USF law school, and his co-author Miriam Rokeach, a consultant in education policy, have just published "Front-loading due process: a dignity-based approach to school discipline."

The article, part of a symposium on "Meeting the Challenge of Grutter—Affirmative Action in Twenty-Five Years,"  proposes changes to school discipline that the authors assert are part of overall school reforms required in the post-Grutter era. In their introduction the authors state, in part:

If America is going to be able to abandon affirmative action in twenty-five years, we must have a wholesale reform of the American education system so that talent and perseverance, rather than family income and race, determine success in achieving entry into our elite universities. We believe that an effective disciplinary process is a small but essential part of this reform, because the cruel but clear truth is that large numbers of poor minority students are expelled from or encouraged to leave school before they have been able to reach their true academic potential.

We suggest a new approach to school discipline based on the constitutional value of human dignity. Dignity upholds the intrinsic worth of every individual; each of us deserves respect as the subject acting out our life story, not merely as an object to be acted upon by others....

We believe that the Supreme Court's opinions on procedural due process can be an important tool in fashioning a disciplinary process based on respect and fairness....

Denvir, John & Rokeach, Miriam, "Front-loading due process: a dignity-based approach to school discipline." (Symposium: Meeting the Challenge of Grutter—Affirmative Action in Twenty-Five Years) 67 Ohio State Law Journal 277 (2006) is available in print in most, if not all, U.S. academic law libraries — including the Zief Library (where it's currently at the Circulation & Reserve Desk). In addition, Lexis subscribers can retrieve the article by using "Get a Document" and entering the citation: 67 Ohio St. L.J. 277. Westlaw subscribers can use "Find by citation" or "Find & Print" and enter: 67 OHSLJ 277.

[Other publications by Professor John Denvir are listed on the Zief Library's Faculty Publications page.  The USF Law School web site has this profile of Professor Denvir.]

Filling the "Hollow Core" of Corporate Law - A New Article from Prof. Dibadj

Professor Reza Dibadj's new article, "Delayering Corporate Law," has just appeared in the latest issue of Hofstra Law Review. Writing in the wake of the recent corporate scandals, Prof. Dibadj offers new ideas for simplifying and revitalizing the core of corporate law.

Here's the abstract:

Corporate law has become unnecessarily complicated. Despite the proliferation of laws, problems fester and scandals erupt. Something is wrong. This Article seeks to delayer corporate law—to strip it down to its essence—and after doing so, offer concrete suggestions for reform. It is a first step toward a new minimalist architecture for corporate law.

The Article begins by arguing that the core of state corporate law—corporation statutes and fiduciary duties—currently offers precious little protection to shareholders. Contractarianism, manifested through enabling statues, reflects weak economics. Existing fiduciary duties are little more than rhetorical flourish. Rather than reexamine why the core of corporate law is empty, policymakers have instead added a series of layers, most notably securities laws. These reforms, however, merely operate as bandages to recover from the most recent scandal and further obfuscate the hollow core of corporate law.

The bulk of the Article offers a fresh path to reform. It draws on emerging paradigms in regulatory theory to argue that substantively, corporate law must reinvigorate fiduciary duties by resetting judicial "standards of review" to match "standards of conduct," while at the same time addressing the behavior of officers, not just directors. Finally, the institutional approach proposed is one of cooperative federalism: the federal government would set minimum standards, but implementation would occur through state courts via a "reverse-Erie" principle.

34 Hofstra L. Rev. 469-470

Dibadj, Reza R., "Delayering Corporate Law." 34 Hofstra Law Review 469 (2005) is available in full (as a PDF file) at the Hofstra Law Review web site. The article is also available in print in most, if not all, U.S. academic law libraries — including the Zief Library (where it's currently at the Circulation & Reserve Desk). In addition, Lexis subscribers can retrieve the article by using "Get a Document" and entering the citation: 34 Hofstra L. Rev. 469. Westlaw subscribers can use "Find by citation" or "Find & Print" and enter: 34 HOFLR 469.

[Other publications by Professor Reza Dibadj are listed on the Zief Library's Faculty Publications page. The USF Law School web site has this profile of Professor Dibadj.]

Eliminating Trafficking via Women's Participation in Peacemaking & Peacekeeping - A New Article from Prof. de la Vega

Professor Connie de la Vega's new article, "The Role of Women in Peacekeeping and Peacemaking: Devising Solutions to the Demand Side of Trafficking," has just appeared in the latest issue of the William & Mary Journal of Women & the Law.

The article, co-authored by USF Law School alumna Chelsea E. HaleyNelson, appears as part of the Journal's 2005 Symposium on Women and War.

In their introduction, the authors write:

The liberation of a nation from armed conflict is a time of increased lawlessness and chaos that increases the vulnerability of women and children. There is little protection for women from exploitation during this period because the exploitation is either state condoned or state tolerated, with countries' own armed forces and United Nations (U.N.) peacekeeping forces committing or permitting some of the most egregious violations.

A country's post-conflict period is a critical time for including gender equality and ensuring women's involvement in the political processes that will subsequently shape the state. If new standards and conditions are to solidify into substantive changes in the post-conflict era and sexual slavery is to end, women must be involved in defining these new standards throughout the peace process. Yet, women are far too frequently left entirely out of peace discussions regarding the future of their nation, the drafting of peace accords, and the implementation of peace accords in the reconstruction period.

12 Wm. & Mary J. of Women & L. 437, 438-439

de la Vega, Connie & HaleyNelson, Chelsea E., "The Role of Women in Peacekeeping and Peacemaking: Devising Solutions to the Demand Side of Trafficking." 12 William & Mary Journal of Women & the Law 437 (2006) is available in print in most, if not all, U.S. academic law libraries — including the Zief Library (where it's currently at the Circulation & Reserve Desk). In addition, Lexis subscribers can retrieve the article by using "Get a Document" and entering the citation: 12 Wm. & Mary J. of Women & L. 437. Westlaw subscribers can use "Find by citation" or "Find & Print" and enter: 12 WMMJWL 437.

[Other publications by Professor Connie de la Vega are listed on the Zief Library's Faculty Publications page. The USF Law School web site has this profile of Professor de la Vega.]