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Overview and Operation of U.S. Financial Sanctions, Including the Example of Iran
Get PDFFinancial sanctions are increasingly being used in the mix of international economic sanctions being employed by the United Nations, regional entities, and individual countries, including the United States. These financial sanctions have become more focused and effective as the tools and techniques have improved significantly for tracing and identifying the financial transactions of terrorists, weapons proliferators, human rights violators, drug cartels, and others. These sanctions can not only freeze financial assets and prohibit or limit financial transactions, but they also impede trade by making it difficult to pay for the export or import of goods and services.
In spite of this growing impact of financial sanctions, these sanctions are not well understood outside of a small group of experts. This article provides an introduction to the mechanics and operation of U.S. financial sanctions, and it illustrates their use against Iran
Continued Oversight of the Foreign Intelligence Surveillance Act : Hearing Before the S. Committee on the Judiciary, 113th Cong., October 2, 2013 (Remarks by Professor Laura K. Donohue, Geo. U. L. Center)
Get PDFCongress introduced the 1978 Foreign Intelligence Surveillance Act (FISA) to make use of new technologies and to enable the intelligence community to obtain information vital to U.S. national security, while preventing the National Security Agency (NSA) and other federal intelligence-gathering entities from engaging in broad domestic surveillance. The legislature sought to prevent a recurrence of the abuses of the 1960s and 1970s that accompanied the Cold War and the rapid expansion in communications technologies.
Congress purposefully circumscribed the NSA’s authorities by limiting them to foreign intelligence gathering. It required that the target be a foreign power or an agent thereof, insisted that such claims be supported by probable cause, and heightened the protections afforded to the domestic collection of U.S. citizens’ information. Initially focused on electronic surveillance, the Foreign Intelligence Surveillance Act gradually expanded over time to incorporate physical searches, pen registers and trap and trace, and business records and tangible goods. The addition of these provisions took place within the same general framing that Congress had adopted in enacting the legislation in the first place.
Documents related to the recently revealed telephony metadata program, conducted under the auspices of the Foreign Intelligence Act and its subsequent amendments, suggests that the National Security Agency is now interpreting the statutory provisions in a manner directly contrary to Congress’ intent. It reflects neither the particularization required by Congress prior to acquisition of information, nor the role anticipated by Congress for the Foreign Intelligence Surveillance Court (FISC) and Court of Review.
The specific legal reasoning offered in defense of the program, moreover, violates the statutory language in three important ways: (a) it contradicts the requirement the records sought “are relevant to an authorized investigation”; (b) it violates the statutory provision that requires that information sought could be obtained via subpoena duces tecum; and (c) it bypasses the statutory framing for pen registers and trap and trace devices. In addition, the program raises serious constitutional concerns. The FISC order amounts to a general warrant, which the Fourth Amendment is designed to preclude. Efforts by the government to save the program on grounds of third party doctrine are similarly unpersuasive in light of the unique circumstances of Smith v. Maryland, new technologies, and changed circumstances. An end to the telephony metadata program and FISA reform are necessary to bring surveillance operations and emerging technologies within the bounds of the Constitution
The Historical Contingencies of Conflict Resolution
Get PDFThis article reviews the historical contingency of theory and practice in conflict engagement. World War II and the Cold War produced adversarial, distributive, competitive, and scarce resources conceptions of negotiation and conflict resolution, as evidenced by game theory and negotiation practice. More recent and more optimistic theory and practice has focused on party needs and interests and hopes for more party-tailored, contingent, flexible, participatory and more integrative and creative solutions for more than two disputants to a conflict. The current challenges of our present history are explored: continued conflict in both domestic and international settings, the challenge of “scaling up” conflict resolution theory and the problematics of developing universal theory in highly contextualized and diverse sets of conflict sites. The limits of “rationality” in conflict resolution is explored where feelings and ethical, religious and other values may be just as important in conflict engagement and handling
Performance Anxiety: Copyright Embodied and Disembodied
Get PDFThe primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance—both as protected work and as right—is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects.
One key problem of performance from copyright’s perspective is how to identify the creative elements that make a work of performance original and protectable, as distinguished from elements that make it a work (a fixed artifact). A major variant of this question involves authorship: who is sufficiently responsible for a work of performance to be deemed its author, and thus its default owner? In a world where works require dozens and even hundreds of people to complete them, this question will often be difficult to answer while both respecting creativity and recognizing economic imperatives. Another set of questions involves whether there are ways to recognize performers’ creative contributions without contributing to copyright’s bloat, and how to assess claims of infringement in a performance context when the alleged copying isn’t exact. This article addresses these puzzles of performance, arguing that manageability rather than creativity is generally the basis for the rights allocations and distinctions copyright law makes. The recent controversy over the film Innocence of Muslims, along with other instances in which subjects of audiovisual works claimed copyright in those works, demonstrate the limited role played by creativity in copyright law
Carrots, Sticks, and Salience
Get PDFThis Article considers the second-best design of Pigouvian taxes and subsidies in the presence of agents who are imperfectly aware of the instrument. Until very recently, the price instrument literature has assumed perfect rationality, and even the handful of prior attempts to account for “hidden” prices focus mainly on the income tax. I extend these efforts in several directions. First, I show that the best available instrument for correcting negative externalities is often one whose price is partially adjusted upwards -- or, in the case of subsidies, downwards -- to counter-act the neglect of irrational actors. In addition, I argue that the salience of a price instrument can affect the choice between sticks and carrots, potentially making carrots a more viable option than is usually claimed in existing literature. I also address the cases of positive externalities, “hyper-salient” actors who are excessively attentive to price instruments, and combinations of each. Finally, I highlight evidence suggesting that the problem of imperfect awareness of price instruments is likely inevitable and widespread, implying that even if government does not intentionally set out to manipulate public awareness of its policies, salience will typically be an important factor in policy design
Creditors and the Feme Covert
Get PDFAs is well-known, the Court of King’s Bench in Marshall v. Rutton (1800), under Chief Justice Lloyd Kenyon, overruled earlier King’s Bench decisions by Lord Mansfield that had allowed creditors to prevail in suits against married women in an expanding set of factual circumstances. As Kenyon confessed in Marshall, he had never been satisfied with the Mansfield decisions, and had wished that a case “should come to take away all the difficulties.” The Marshall case fulfilled his wish. Kenyon, however, was not the powerful leader of King’s Bench that Mansfield had been, and but for fortuities of judicial turnover, the turnabout in Marshall might not have been effected.
The Marshall case was argued twice before eleven of the twelve common law judges, first on May 9, 1798 (absent Baron Perryn), and again on May 10, 1780 (absent Justice Buller). The printed report of the case (8 Term Reports 545) is relatively brief, containing only Chief Justice Kenyon’s judgment. The Paper Book belonging to junior King’s Bench justice Soulden Lawrence, however, survives at Lincoln’s Inn Library, and it contains extensive notes by Lawrence of the two arguments before all the judges. The notes reveal that by the time of the second argument, a sea change in judicial attitudes had occurred. When the case was first argued in 1798, two of the justices who had voted with Lord Mansfield in earlier cases were still serving–Justice Ashhurst on King’s Bench, and Justice Buller, formerly Mansfield’s protégé on King’s Bench, who had transferred to Common Pleas in 1794. By the time the second argument arrived in 1800, Justice Ashhurst had resigned and Justice Buller was in failing health (he died a month after the second argument, which he did not attend). Also, Chief Justice Eyre of the Court of Common Pleas, who attended the first argument, died in July 1799 and was replaced by former Attorney General Sir John Scott, newly-created Lord Eldon. Further, plaintiff’s counsel at the second argument was Edward Law (who in 1802 became Lord Ellenborough and succeeded Kenyon as Chief Justice of King’s Bench), and it is clear from colloquies between Law and the judges that Law did not have his heart in the case.
The fact that newly appointed judges find ways to effect change while pretending to honor stare decisis is hardly surprising. It is nonetheless important where possible to make the historical record transparent. Justice Lawrence’s manuscripts allow us to see behind the curtain in the influential case of Marshall v. Rutton. Further, it is interesting in light of Chief Justice Kenyon’s views as expressed in Marshall to consider who was held liable for the wife’s “necessaries” in cases decided in the years that followed, especially when the husband’s behavior toward the wife was violent, brutish, or shockingly dismissive
A Systematic Plan for Firearms Law Reform
Get PDFTragedy after tragedy has drawn the nation’s attention towards gun violence. Yet the murder of 20 school children in Newtown, CT has done more to drive the national dialogue on gun control than any preceding mass shooting, not to mention the endemic murderous violence that plagues city streets day in and out. President Obama has responded by calling on Congress to (1) close background check loopholes; (2) ban assault weapons and high-capacity magazines; and (3) improve mental health services. All of these measures are necessary to curb gun violence. Yet, in a nation with more firearms per capita than anywhere in the world, they are not sufficient. Violence is depicted and even glorified in the media; law enforcement lacks the ability to track stolen or illegally traded arms; and the National Instant Criminal Background Check System is vastly deficient (and not always consulted before a sale). The public health threat of firearms—whether through inner-city violence, mass murders, suicides, or inadvertent firearm discharges—is tremendous, and reasonable firearm restrictions are both critical and in high public demand. Yet Congress has stalled comprehensive gun safety legislation for years (e.g., mandatory trigger locks, fingerprint and tracking technology, training requirements, limits on mass sales). Moreover, President Obama’s renewed call for change does not touch on these strategies. In short, federal, state, and city officials lack the basic tools needed to detect, prevent, and punish firearm related crime. Before Newtown becomes another sound bite, it must inspire the greatest bipartisan courage to at least stem the mass shootings and street killings that our newly found individual right to bear arms has made so prevalent
Tobacco Endgame Strategies: Challenges in Ethics and Law
Get PDFThere are complex legal and ethical tradeoffs involved in using intensified regulation to bring smoking prevalence to near-zero levels. The authors explore these tradeoffs through a lens of health justice, paying particular attention to the potential impact on vulnerable populations. The ethical tradeoffs explored include the charge that heavy regulation is paternalistic; the potentially regressive impact of heavily taxing a product consumed disproportionately by the poor; the simple loss of enjoyment to heavily addicted smokers; the health risks posed by, for example, regulating nicotine content in cigarettes—where doing so leads to increased consumption. Turning to legalistic concerns, the authors explore whether endgame strategies constitute a form of ‘regulatory taking’; whether endgame strategies can be squared with global trade/investment laws; whether free speech rights are infringed by aggressive restrictions on the advertisement and marketing of cigarettes
Tackling the Global NCD Crisis: Innovations in Law and Governance
Get PDF35 million people die annually of non-communicable diseases (NCDs), 80% of them in low- and middle-income countries—representing a marked epidemiological transition from infectious to chronic diseases and from richer to poorer countries. The total number of NCDs is projected to rise by 17% over the coming decade, absent significant interventions. The NCD epidemic poses unique governance challenges: the causes are multifactorial, the affected populations diffuse, and effective responses require sustained multi-sectorial cooperation. The authors propose a range of regulatory options available at the domestic level, including stricter food labeling laws, regulation of food advertisements, tax incentives for healthy lifestyle choices, changes to the built environment, and direct regulation of food and drink producers. Given the realities of globalization, such interventions require global cooperation. In 2011, the UN General Assembly held a High-level meeting on NCDs, setting a global target of a 25% reduction in premature mortality from NCDs by 2025. Yet concrete plans and resource commitments for reaching this goal are not yet in the offing, and the window is rapidly closing for achieving these targets through prevention--as opposed to treatment, which is more costly. Innovative global governance for health is urgently needed to engage private industry and civil society in the global response to the NCD crisis