Spring 2020
Distilling the Nuremberg Legacy: Nemo Est Supra Leges
Almost 75 years ago, twenty-four high-ranking Nazi leaders were brought to trial under a new system of law in a courthouse in Nuremberg. In that courtroom, the world bore witness to the old Latin maxim – nemo est supra leges – that “no one is above the law.” But since then, the notion of international law that arose from Nuremberg has not been upheld by some leaders who label ad hoc and permanent international courts collectively as a breach of state sovereignty. It is worth distilling the legacy of the Nuremberg judgment, asking ourselves how far we have come in delivering on its promise.
“What we learn in time of pestilence:” Legal Lessons from Camus’ The Plague
Many have interpreted Albert Camus’ The Plague as an allegory for the opposition to the Nazi occupation of France during World War II — Camus himself was an active member of the French Resistance, writing for and editing the Resistance newspaper Combat. However, now there is opportunity for a completely different interpretation. Over 70 years after its publication, the novel presents other eerie, almost prophetic, similarities to life in the shadow of the novel coronavirus (COVID-19). This article will highlight the lessons we can learn from The Plague by drawing parallels between the fictional events of Camus’ novel and the United States’ early response to the coronavirus pandemic.
The Copyright of Spring: Igor Stravinsky and U.S. Law
Before The Rite of Spring’s premiere incited a riot in a Paris opera house, Russian composer Igor Stravinsky planned to become a lawyer. He received a degree in jurisprudence from St. Petersburg University in 1905 but decided to focus on music shortly after. His long and prolific career took him from Russia to Europe to the United States, where he lived until his death in 1971. Although he had abandoned his legal aspirations decades before, the law was never far from view in his new homeland. This article will examine the history of Stravinsky’s fraught relationship with United States law and its wider implications for classical music.
Privacy in the 21st Century
Privacy is undervalued. Although many people enjoy privacy and view it as an appreciable right, the public is easily willing to sacrifice their rights to privacy as a means to an end. As a result, technology enterprises can sell user data to advertising companies in order to predict future purchases. In addition to market-based encroachment on personal data, the coronavirus pandemic has threatened the existence of privacy altogether. The future of privacy looks grim. Nonetheless, even in the age of governmental surveillance and data markets, privacy is critical to a well functioning society: it ensures the social benefits associated with voluntary intimacy and protects freedom of consciousness. In extenuating circumstances, however, the public must sacrifice a degree of personal privacy for the greater good.
Lawsuits and Literacy: The Dangers of Substantive Due Process
On April 23, the U.S. Court of Appeals for the Sixth Circuit ruled that students at the worst-performing public schools in Detroit had been deprived of an education that would allow for access to literacy. This class action lawsuit against the State of Michigan was originally filed in 2016 under Gary B. v. Snyder, citing the Due Process and Equal Protection Clauses of the Fourteenth Amendment, but the District Court dismissed the plaintiffs’ due process claim and held that basic minimum education is not a fundamental right. The plaintiffs appealed, and the federal court overturned the 2018 decision in Gary B. v. Whitmer. Although most people would not deny that access to education and at the bare minimum — access to literacy — is essential, whether the Constitution guarantees a fundamental right to literacy is an entirely different question.
Flaws in Intercountry Adoption
Intercountry adoption is often viewed as a means to provide children from unstable families with better lives. Because of the increasing demand for children, the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption was signed in 1993 to control the adoption processes. However, illegal intercountry adoption can occur even when the adoption in question seemingly complies with the convention. New policies should be targeted at preventing illegal activities to restore the fundamental principle of adoption — that is, to give a child in need a better environment in which to grow up — and to punish the child laundering that currently escapes legal repercussions.
Quantitative Methods in the Survey of Predictability in Bench Trials
In this article, I compare two predictive models applicable to bench trials. The correlation coefficient approach has the advantage of being straightforward and consistent with our idea of a fair and rational legal system. However, it relies excessively on the assumption that findings are made by rational judges –an assumption that is inconsistent with the conclusions of recent research. The machine learning approach solves that issue since it can capture unexpected predictive factors. However, I show that the training data needs to be carefully chosen to create a model that captures universal predictive factors rather than previous trends inferred from limited observations. Ultimately, I suggest that the search for a predictive model has highlighted the limitation of human-driven adjudication.
The Case for a Rewritten Authorization to Use Military Force
“The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 […].” Though written nearly 20 years ago, this phrase still empowers the President to deploy forces in the Middle East, effectively nullifying the constitutional war powers designated to Congress by the Constitution. After explaining why the AUMF is unconstitutional by design, I will assert that Congress must approve acts of war on a case-by-case basis in the interest of national security and institutional legitimacy.
How Toothless Enforcement of Labor Laws Undermines the Rule of Law
Regulation of business in America is defined by an enduring political conflict between the interests of workers and the interests of businesses. Legislators’ fear of upsetting the business community disincentivizes them from increasing enforcement of labor laws, causing the playing field to be tipped further in favor of employers and leading to stagnation or the defanging of government enforcement of protections. The resulting lax enforcement of regulations reduces labor laws to toothless recommendations, weakening the rule of law in America particularly with respect to business behavior.
Legal Evidence or Distorted Memory: Addressing the Issue of Eyewitness Misidentification
According to the Innocence Project, “mistaken eyewitness identifications contributed to approximately 71% of the more than 360 wrongful convictions in the United States overturned by post-conviction DNA evidence.” However, in the United States, the legal system currently allows conviction based on the testimony of a single eyewitness. Based on the fallibility of memory as evidenced by the cases of Donald Thomson and Calvin Willis, and keeping in mind that we can only know about the cases in which the alleged perpetrator was eventually exonerated, we must ask ourselves how the judicial system can balance the fallibility of memory with the importance of eyewitness testimonies in investigations.
Emergency Presidential Powers
History books are rich with examples of nations across the world and throughout history that resorted to a consolidation of executive power to face exceptional circumstances. The instance of war lends itself particularly well to the reinforcement of executive power. As such, a considerable number of nations have their formal head of state assume the role of Commander in Chief – amongst them the United States of America.[1] However, when a catastrophe with all the attributes of war – short of being war itself – afflicts the nation, wartime presidential authority is not necessarily appropriate. Thus, while constitutional emergency provisions have historically provided the legal mandate for heads of state to carry out projects of war, they are ill-suited to answer non-martial crises.