2208 research outputs found
Sort by
Destruction of Cultural Heritage as a Violation of Human Rights: Application of the Alien Tort Statute
Get PDFIn recent years, armed conflicts around the world have occasioned widespread destruction of cultural heritage sites. From the demolition of Palmyra in the Syrian Arab Republic to the destruction of Sufri Shrines in Mali, the intentional despoliation of these important cultural heritage sites is not only an uncontroverted violation of international law but a form of cultural genocide. The destruction of cultural heritage profoundly impacts citizenry on a local, national, and global level. Cultural heritage is an expression of fundamental and universally recognized human rights, including rights to freedom of expression, freedom of thought, freedom of conscience and religion, and freedom of culture. Despite the importance of this expression, suing the perpetrators of these wanton attacks in U.S. courts is extraordinarily difficult, if not impossible. While many plaintiffs have successfully stated a claim under the Alien Tort Statute for violation of the law of nations, involving personal injury or death suffered by a foreign plaintiff, the destruction of property has consistently failed to meet the stringent legal thresholds imposed by the United States Supreme Court.
This Article reviews the evolving law pertaining to the Alien Tort Statute (“ATS”) and the challenges posed by its application to torts against cultural heritage. In light of recent precedent, this paper sets forth a bold proposal: Under existing international law, the destruction of cultural heritage should qualify as a violation of a norm of the law of nations and thus fall under the penumbra of the Alien Tort Statute. A discussion of the value of cultural heritage is particularly important as the United States grapples with the divisive conversation over the destruction of confederate monuments. Although the concept of invoking “universal jurisdiction” is controversial in principle and practice, this avenue is necessary to effectively redress the harms to individuals and cultural groups caused by the destruction of heritage sites and in doing so holds accountable those who commit these crimes against humanity
Crisis and Cultural Evolution: Steering the Next Normal from Self-Interest to Concern and Fairness
Get PDFThis essay examines the current time of crisis and offers a vision of the way in which our society and our law can evolve in response. Crises of this scale are evolution-forcing events and I argue that the current moment can move us towards a fundamentally different vision of law and justice. It is the first essay or article to show that the autonomous pursuit of self-interest was a common assumption or value in the major intellectual forces of the twentieth century: classical free market economics, behavioral economics, and sociobiology, as well as in the competing visions of a just society of John Rawls and Robert Nozick. After introducing the alternative normative frameworks of caring developed by Carol Gilligan and of concern developed by Leslie Bender, I show how the common law of torts and contracts embraced self-interest as a value and then how tort and contract law could embrace the values of concern and fairness. I conclude that the danger of a culture that values the autonomous pursuit of self-interest above all else has been exposed by our current crisis and that an evolution towards a cultural regard for concern and fairness is a must
Intellectual Property Through a Non-Western Lens: Patents in Islamic Law
Get PDFThe intersection of secular, Western intellectual property law and Islamic law is undertheorized in legal scholarship. Yet the nascent and developing non-Western law of one form of intellectual property—patents—in Islamic legal systems is profoundly important for transformational innovation and economic development initiatives of Muslim-majority countries that comprise nearly one-fifth of the world’s population.
Recent scholarship highlights the tensions of intellectual property in Islamic law because religious considerations in an Islamic society do not fully align with Western notions of patents. As Islamic legal systems have begun to embrace patents in recent decades, theories of patents have presented conceptual and theological debates under classical Islamic law, creating an undefined scope of patent protection under international agreements. On the one hand, patents are not mentioned in sources of Islamic law, which, unlike Western systems, gives a religious guide to Muslim societies, and which some Muslim scholars argue create impermissible monopolistic effects. On the other hand, patents should be implicitly derived based on human reasoning of a divine law with theoretically and theologically sound commercial justifications.
This Article’s thesis is that patents are permissible in an Islamic legal system. It develops a positive, normative framework and justifications for the construct of a theory of patents within Islamic law, provides normative implications within a commercial lens, and provides prescriptions for patentable subject matter and public interest considerations in a modern Islamic legal system. Recognizing the role and need of patents in Islamic legal systems is a pressing issue for innovation policy and requires articulation of conceptual, theological, and theoretical principles
Ashes to Ashes: A Way Home for Climate Change Survivors
Get PDFIn 2020, the United States suffered a record number of named storms, a record number of storms causing $1 billion or more in damage, a derecho that destroyed much of Iowa’s corn crop, and previously unheard-of levels of wildfire frequency and damage in California, Oregon, and Washington. The effects of climate change are causing a crisis of affordable, available homeowner insurance. As more and more homes in the United States are in high-risk areas for natural catastrophes, insurers increasingly choose not to offer insurance at all in some communities, exclude disaster risks from coverage in others, and dramatically raise prices in still others. For ever-growing numbers of homeowners, the only option is an inadequate and unattractive public insurance product of last resort. As a result, growing numbers of climate change survivors are finding there is no way home.
Building on three recent proposals from regulators and prominent academics to solve the problem of affordability and availability, this Article provides a novel solution: first, establish a requirement that an insurer who offers homeowner hazard insurance anywhere in a state must offer it everywhere, with no exception— full stop. Second, adopt state rules providing that rate filings or form filings for homeowner hazard insurance will not be approved if the insurance would exclude any natural disaster peril. Third, adopt state rules providing that rate filings for homeowner hazard insurance will not be approved if the insurance discriminates against homes based on the location of the home.
By building a set of market incentives to sell affordable, comprehensive insurance everywhere and protecting insurers from price-cutting by competitors, insurance will be affordable everywhere and will be available everywhere. Insurers will want to sell it, and homeowners will be able to buy it. And virtually all homes in the United States will have access to affordable insurance for the next peril, regardless of what it may be
The Unlikely Underdog: Skilled Immigrants in Tech Face Unique Mandatory Arbitration Challenges
No full text
SCOTUS in the Strait of Messina: Steering the Course between Private Rights and Public Powers
Get PDFThe greatest challenge for any civilized society is to find the appropriate balance of rights and responsibilities between the individual and society. In the United States, the Supreme Court is the ultimate arbiter of the line between individual rights and governmental powers. The prerogatives and protections for private property rights help to define that line. The Supreme Court has developed two distinct bodies of constitutional jurisprudence bearing on the protections for private property, one under the doctrine of substantive due process and the other under the Takings Clause. But the appropriate balance has been difficult to achieve, and the Supreme Court’s jurisprudence has been prone to slippage. Thus, substantive due process has lost its teeth. Unless fundamental rights are implicated, modern substantive due process claims are so unlikely to succeed they are rarely worth making. Modern takings jurisprudence has not lost its teeth, but it has become incoherent and dysfunctional. The Supreme Court does not apply its takings jurisprudence consistently across different types of claims, and its expansive interpretation of public uses has allowed government takings powers to be exploited by powerful political interests. Takings jurisprudence could be made more coherent and less dysfunctional by clarifying the nuisance rule, extending the public use requirement to all takings, and narrowing the interpretation of public uses. These refinements of takings law would empower governments to resolve nuisance conflicts, improve the coherence of the Court’s jurisprudence across different types of takings, constrain governments from using their regulatory and takings powers on behalf of special interests, and reduce the burden of government on private property
