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27 February 2026
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Journal Article
27 February 2026
Hold Your Horses: The Eleventh Circuit Recognizes a Direct Cause of Action Under the Takings Clause in Fulton v. Fulton County Board of Commissioners
“[No person shall be] deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” In just twelve words, the drafters of the Bill of Rights guaranteed property owners a significant protection. The Fifth Amendment Takings Clause is not an express ban on government takings. Rather, it guarantees that when the government takes property from private citizens, it must provide just compensation. Although this guarantee is generally well established, its enforcement in federal court introduces unique and significant challenges. Plaintiffs must have a cause of action to invoke the power of the federal courts and seek the specific remedy they wish to recover. This remains true when plaintiffs seek just compensation from local governments in federal court. For nearly half a century, 42 U.S.C. § 1983 supplied the only federal cause of action to vindicate this right. But this year, the United States Court of Appeals for the Eleventh Circuit provided a novel alternative to the classic § 1983 framework. In Fulton v. Fulton County Board of Commissioners, the Eleventh Circuit became the first federal appellate court to hold that plaintiffs can invoke the text of the Takings Clause—via the Fourteenth Amendment —to bring a direct cause of action against local governments. Although the Eleventh Circuit emphasized its decision’s “limited” practical effect, a direct cause of action might raise constitutional implications beyond the scope of the court’s considerations. Specifically, the court’s decision may frustrate the delicate balance of power between Congress and the Judiciary.Current Articles
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Marked for Prosecution: The Use of Tattoo Recognition Technology in Criminal Trials and the Case for Evidentiary Limits
In recent years, tattoos have taken on a new and largely overlooked role in our criminal trial system. Once viewed primarily as personal or cultural expression, tattoos are now treated by law enforcement as biometric data which can be analyzed, codified, and then searched by artificial intelligence (“AI”). Police departments and prosecutorial offices have begun using tattoo recognition software to identify suspects, assume gang membership, and establish guilt based on imagery or symbols. Yet, despite the rapid growth of this technology, its use in the courtroom has received almost no scholarly attention and even less judicial scrutiny. This Article seeks to examine the use of tattoo recognition tools in criminal trials focusing on potentially serious, but largely unaddressed, evidentiary concerns. Questions over the authenticity and reliability of source information AI tools used to analyze this forensic evidence cast doubt on the admissibility of this type of information. Most individuals have no idea that their tattoos might be used against them in a legal context by an algorithm that is relatively new and untested. In fact, the rules that govern these systems are often vague or nonexistent, opening the door to arbitrary application and discriminatory enforcement. Moreover, courts have not meaningfully addressed whether tattoo recognition technology meets evidentiary standards under Daubert, or whether the inferences it generates are grounded in anything close to scientific rigor. This Article begins with a brief history of how tattoos have been used in criminal trials, such as in gang enhancements and character evidence. It then explores the emergence of tattoo recognition software and its growing role in law enforcement. The Author then turns to the evidentiary implications of these tools, focusing on evidentiary issues surrounding reliability, accuracy, and admissibility. Finally, the Article offers a set of reforms designed to ensure greater transparency, judicial oversight, and evidentiary limits on the use of tattoo‑based AI in criminal prosecutions. As biometric surveillance becomes more common place in policing, attorneys and judges must confront the distinct risks that tattoo recognition poses to fundamental fairness and the integrity of the judicial process. While societal acceptance of tattoos may be less judgmental than in previous generations, computerized law enforcement must also recognize the risks of relying on tattoos as biometric markers, ensuring that their use does not perpetuate bias, unduly influence jurors, or erode individual rights.Journal Article27 February 2026
The Culture Cure: Behavioral Supervision and the Regulation of Financial Institutions
This Article advances a normative claim: U.S. financial regulators must move beyond primarily adversarial, enforcement-driven models and adopt behavioral supervisory tools—particularly elements of culture assessments—to proactively help guide ethical firm conduct and mitigate systemic risk. Importantly, the proposal here is incremental and resource-efficient. Many recommendations place the onus on firms to assess and demonstrate their culture, while regulators set expectations, review outputs, and selectively verify findings. The framework proceeds in progressive stages—beginning with voluntary, partnership-based initiatives, moving toward light-touch integration within existing examinations, and scaling only where persistent governance weaknesses or systemic risks warrant closer attention. This tiered approach reflects U.S. regulatory principles of proportionality and risk-based supervision, ensuring that culture oversight develops gradually rather than through sweeping structural change. In this sense, culture supervision is feasible within existing statutory authority and scalable to large, complex markets. It contributes to legal scholarship on regulatory design, compliance, and corporate and behavioral governance by offering a novel, legally grounded framework for incorporating culture assessments into U.S. financial oversight. Crucially, it demonstrates that culture-focused supervision is both legally grounded and essential to address today’s regulatory challenges. This argument also complements a rich body of legal scholarship examining how organizational culture, governance failures, and incentive systems profoundly shape ethical conduct within firms. Scholars have illuminated both the importance of fostering ethical organizational cultures and the limitations of traditional, rules-based compliance models. Yet while this work has deepened our understanding of organizational culture and compliance risks, far less attention has been paid to how financial regulators themselves can systematically evaluate and strengthen organizational culture as part of routine supervision, particularly within the distinctive legal and institutional environment of the United States. This Article addresses that gap by offering a novel and comprehensive legal framework to adapt global culture supervision practices to U.S. financial oversight. In doing so, it provides a pragmatic, behaviorally informed roadmap for enhancing regulatory effectiveness and remains firmly grounded in the leading legal scholarship on compliance, governance, and organizational culture. This Article makes three principal contributions. First, it develops a novel, behaviorally informed model of financial supervision that reimagines how regulators can evaluate and influence organizational culture within existing statutory authority, moving from reactive enforcement to preventive behavioral oversight. Second, it grounds this model in comparative insights and fieldwork from leading global regulators, translating those practices into a scalable and legally feasible framework tailored to U.S. institutions and markets. Third, it contributes to legal and compliance scholarship by reframing organizational culture as an assessable dimension of regulatory effectiveness—one that links corporate governance, behavioral science, and compliance theory within a unified, culture-informed supervisory approach. This Article proceeds in six Parts. Part II defines what culture assessments are and are not, clarifying their differences from traditional audits and what they aim to measure. Part III surveys global regulatory approaches to culture supervision, including the tools and methodologies employed by leading financial regulators in the Netherlands, U.K., Australia, and Canada. Part IV analyzes the U.S. model of adversarial legalism, exploring its institutional limitations and the structural barriers it poses to behavioral supervision. Part V addresses common criticisms of culture assessments, including concerns about subjectivity, enforceability, and overreach. Part VI proposes a series of pragmatic and scalable reforms to integrate culture assessments into the U.S. financial regulatory framework, tailored to the constraints and realities of the American system. Part VII makes the case for culture assessments as a light-touch, forward-looking strategy that aligns with U.S. regulatory values of flexibility, transparency, and risk-based oversight. It further outlines the practical benefits that such assessments can offer to regulators, firms, investors, and the public. The Conclusion situates this argument within broader conversations about the law’s preventive and strategic functions, showing how culture supervision can help build a more ethical, adaptive, and intelligent regulatory paradigm.Journal Article27 February 2026
Mansion Markets: Re-Evaluating the Treatment of Customs Unions in Antidumping Cases
Some customs unions look like glorified trade deals, while other customs unions look like nation‑states in the making. Since 1979, U.S. trade law has treated both kinds of customs unions the same, but this state of affairs ignores the variety of ways in which some (though not all) modern customs unions are remarkably economically integrated. Presidents from both parties have treated the European Union as a singular entity in regulating foreign trade with their Section 232 authority, and more recently, the current presidential administration has issued ad valorem tariffs against the European Union as a bloc. But due to a statutory prohibition, similar treatment cannot be afforded to the EU, or other similarly sophisticated customs unions, when it comes to antidumping law. In this Article, I argue that in light of both increased economic integration by customs unions around the world and the treatment of some of those customs unions in other contexts, Congress should reconsider how U.S. antidumping law treats countries which are parties to sophisticated customs unions—that is, mansion markets. When a customs union has fully or nearly fully removed barriers to trade, making distinctions between the countries inside that union for trade law purposes would be like foreign countries making distinctions between different U.S. states. While not all customs unions are created equal, the purpose of some customs unions is to give products within those unions a mansion market, and American antidumping law should be clarified to recognize this distinction.Journal Article27 February 2026
From Phone Booths to Digital Booths: Rethinking Fourth Amendment Privacy in the Age of Open Source Intelligence
The use of Open Source Intelligence (“OSINT”) by the U.S. intelligence community marks a paradigm shift in national security practices, leveraging vast troves of publicly available and commercially acquired data. Yet this shift raises urgent constitutional questions regarding the applicability of the Fourth Amendment’s protections in the digital age. As OSINT practices increasingly rely on sophisticated aggregation techniques and artificial intelligence tools, the line between publicly available information and constitutionally protected privacy interests begins to blur. This Article critically examines whether certain forms of OSINT collection and analysis, particularly those that aggregate digital data at scale or use predictive algorithms, may constitute an unreasonable search or seizure under the Fourth Amendment. Relying on an evolving body of caselaw, this Article argues that the long‑standing Third Party Doctrine is increasingly ill‑suited for the realities of the modern digital age. It explores how the aggregation of seemingly public data can reveal deeply private patterns, behaviors, and insights, thereby implicating a reasonable expectation of privacy under the Fourth Amendment. To help courts, the intelligence community, and policymakers navigate this complex legal terrain, this Article introduces a three‑part framework to assess when OSINT practices risk constitutional infringement: (1) whether the government obtains aggregated data, including commercially available information, of a type and volume that implicates a reasonable expectation of privacy; (2) whether advanced technologies are employed to extract digital information that would otherwise be unknowable through conventional means; and (3) whether such technologies are used to enhance insights into areas where courts have recognized a reasonable expectation of privacy. This Article concludes by urging a more balanced approach that reflects both the operational needs of the intelligence community and civil liberties. As technology evolves and OSINT capabilities grow courts, the intelligence community, and policymakers must act to ensure that the Fourth Amendment remains a meaningful safeguard, not an obsolete artifact, in the digital era.Journal Article27 February 2026
Requesting Less, Winning More: A Plaintiff Strategy to Eliminate Low-Value Anchors
Picture this: You are a plaintiffs’ lawyer representing a permanently injured client in a high-stakes lawsuit. You think you can earn millions of dollars for your client based on their injuries—but something is holding you back: your client’s past medical bills. To date, she has only had to pay around $20,000. You worry that this fact might make your request for several million dollars in non-economic damages seem excessive to a jury. So, you make a plan: on the eve of trial, you withdraw your request for economic damages and stick to only requesting non-economic damages in the millions. There are no concrete bills presented to the jurors at trial—not even a whisper of the $20,000 in medical bills. In closings, you ask the jury for $20,000 less than you were initially planning to request. And it works—the jury comes back and awards millions of dollars to your client. We have seen variations of this exact scenario play out in favor of plaintiffs repeatedly in the last year. We work as trial consultants; we consult on new civil cases every week and pick multiple juries for trials each month. Through this work, we have observed a growing trend in high-stakes civil litigation: plaintiff’s counsel is withdrawing their request for past economic damages on the eve of trial, opting instead to only request non-economic damages. This has happened in all kinds of personal injury cases; we have seen it done in medical malpractice, vehicle accidents, and premises liability cases, to name a few. And each time plaintiff’s counsel has withdrawn the request for economic damages, the judge has swiftly declared that all evidence pertaining to past medical bills is now irrelevant and therefore inadmissible, instructing the parties not to speak a word about the bills at trial. And, more often than not, the plaintiff finishes the trial with a large award. This is no accident. Plaintiffs’ counsels are clearly dropping out low economic damage requests because they believe it can drive up jury awards. But it is counter-intuitive: how could asking for less money in damages result in a significantly higher damage award? What is going on here?Journal Article27 February 2026
Catching Up with the Constitution? Georgia Fixes Its Fatal Burden of Proof for Findings of Intellectual Disability in Capital Cases
In 1988, Georgia became the first state to prohibit the execution of individuals with intellectual disability—a landmark reform spurred by the execution of Jerome Bowden, a Black man with an IQ of 59. Yet, due to a drafting error, the statute imposed an insurmountable burden: requiring defendants to prove their intellectual disability beyond a reasonable doubt. For nearly four decades, that fatal flaw rendered Georgia’s protection illusory. Not a single capital defendant facing intentional murder charges prevailed. While nearly every other jurisdiction adopted the far more workable “preponderance of the evidence” standard, Georgia stood alone, out of step with both national consensus and the Eighth Amendment mandate articulated in Atkins v. Virginia. In 2025, Georgia finally corrected course. With the passage of House Bill 123, the state reduced the burden of proof to a preponderance of the evidence and restructured its procedures to prevent juries from deciding guilt and intellectual disability simultaneously in trial stage cases. This Article situates Georgia’s reform in historical, doctrinal, and policy context. It argues that House Bill 123 marks a long overdue alignment of Georgia’s law with constitutional and clinical norms, transforming Georgia from an outlier into a jurisdiction that can meaningfully safeguard the lives of the intellectually disabled moving forward. But it does so while leaving behind those already condemned—a reminder that progress without remedial action is justice delayed and justice denied.Journal Article27 February 2026
Mergers and Cooptive Acquisitions
A new wave of emerging companies developing foundation models has unleashed fierce competition in generative artificial intelligence. These emergents have significant innovation capabilities threatening incumbent tech companies. To protect themselves, incumbents have responded by partnering with leading product developers and subsuming smaller startups through quasi‑mergers. To determine whether quasi‑mergers are cooptive acquisitions, this Article scrutinizes the Google–Character, Microsoft–Inflection, and Amazon–Adept transactions. These case studies describe the deployment of acquired assets before and after the merger and explore their potential effects. However, the analysis is plagued by the uncertainty inherent in nascent competition. Consequently, through contextual comparisons of circumstantial evidence like exclusive licensing agreements, price premiums, market product proximity and product discontinuation, the Article assesses the relative risk of harm to innovation. Even if there is high probability of harm, the structure of a quasi‑merger shields incumbents from government intervention because enforcement agencies cannot use injunctive relief to restrict employee mobility. To avoid agency inertia, the Article proposes potential remedies involving founders, their employees, and enforcement agencies, without limiting the exit options of startups.Journal Article27 February 2026
Soil and Sovereignty: An Analysis of Federal and State Laws Affecting Foreign Investment in U.S. Agricultural Land
Foreign ownership of U.S. agricultural land has risen significantly in recent years. From 2014 to 2023, the share of agricultural acres owned by foreign interests increased by 67%. Although the share of agricultural acres owned by foreign countries and interests only amounts to just over 3% of the total U.S. private farmland, the U.S. federal government and many states have passed laws to prohibit, restrict, limit, regulate or create requirements for foreign ownership of agricultural land and real property. As of 2025, twenty nine states have passed laws to regulate such foreign ownership. This Comment outlines the regulations on foreign investment in U.S. agricultural land by foreign individuals and entities, including those totally or partially owned by foreign individuals. It provides an overview of the federal regulations and details the specific requirements imposed by each state that has enacted laws restricting foreign ownership of U.S. agricultural land. Section II on Federal Laws Regulating Foreign Ownership outlines the Agricultural Foreign Investment Disclosure Act of 1978, the Committee on Foreign Investment in the U.S. & the Foreign Investment Risk Review Modernization Act of 2018, the International Investment and Trade in Services Act, and the Foreign Investment in Real Property Tax Act of 1980. Section III on State Laws Restricting Foreign Ownership examines the state laws regulating foreign ownership of U.S. agricultural land in Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming. This Comment organizes state laws regulating foreign ownership of U.S. agricultural land into four categories: (A) Restrictions on Ownership based on Proximity or Land Type, (B) Prohibition of Ownership by Foreign Adversaries or by Designated Country, (C) Outright Prohibition on Foreign Ownership, and (D) Acreage Limitations.Journal Article27 February 2026
Stuck in The Waiting Room: Medina v. Planned Parenthood’s Restriction on the Enforcement of Spending Statutes through 42 U.S.C. § 1983
42 U.S.C. § 1983 was originally enacted in response to Ku Klux Klan violence during the Reconstruction era that had gone largely unpunished in state courts. The statute granted individuals an alternative means to enforce their “rights, privileges, or immunities secured by the Constitution and laws” in federal courts. What began as a lifeline for civil rights violations soon expanded to allow enforcement of all rights secured by federal and constitutional law. This broad interpretation of § 1983 language expanded the statute’s reach to include private enforcement of federal spending statutes against the states. The expansion ignited extensive debate over the division of power between state and federal government. The central question was whether allowing private enforcement of federal spending statute conditions risked intruding on state sovereignty. The standards courts developed to determine when a spending statute secures a right—and thus permits private suit—were largely designed to balance the interests of individual beneficiaries against the need to preserve state autonomy. The Supreme Court of the United States has attempted to develop a standard for determining when a spending statute grants a privately enforceable right several times. The Court first attempted to address the standard in Pennhurst State School & Hospital v. Halderman in 1981. In Pennhurst, the Court developed the clear expression standard. Under this standard, a spending statute secured a right only if the statute gave clear notice that noncompliance with its conditions subjected the state to private suit. The Court then went through a series of cases from the 1980s through the late 1990s where it seemed to apply a different standard: a spending statute secured a right if the statute was clearly intended to benefit the enforcer. In response to lower court confusion over the two standards, the Court addressed the issue in Gonzaga University v. Doe in 2002, and again in Health & Hospital Corp. v. Talevski in 2023. Both of these cases faithfully applied the clear expression standard but failed to explicitly overrule the benefits standard. Lower courts responded with various applications of the two standards. Against this backdrop, the Court granted a writ of certiorari in Medina v. Planned Parenthood. In Medina, the Court affirmed the clear expression standard applied in Gonzaga and Talevski. The Court went on to expressly overrule the line of cases applying the more liberal benefits standard. The Court undoubtedly identified the proper standard for private enforcement of a spending statute. However, in abandoning the line of cases that gave Medicaid beneficiaries access to the courts, the Supreme Court left those who rely on state compliance with Medicaid stuck in the waiting room, both at the clinic and in the court.Journal Article27 February 2026
Hold Your Horses: The Eleventh Circuit Recognizes a Direct Cause of Action Under the Takings Clause in Fulton v. Fulton County Board of Commissioners
“[No person shall be] deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” In just twelve words, the drafters of the Bill of Rights guaranteed property owners a significant protection. The Fifth Amendment Takings Clause is not an express ban on government takings. Rather, it guarantees that when the government takes property from private citizens, it must provide just compensation. Although this guarantee is generally well established, its enforcement in federal court introduces unique and significant challenges. Plaintiffs must have a cause of action to invoke the power of the federal courts and seek the specific remedy they wish to recover. This remains true when plaintiffs seek just compensation from local governments in federal court. For nearly half a century, 42 U.S.C. § 1983 supplied the only federal cause of action to vindicate this right. But this year, the United States Court of Appeals for the Eleventh Circuit provided a novel alternative to the classic § 1983 framework. In Fulton v. Fulton County Board of Commissioners, the Eleventh Circuit became the first federal appellate court to hold that plaintiffs can invoke the text of the Takings Clause—via the Fourteenth Amendment —to bring a direct cause of action against local governments. Although the Eleventh Circuit emphasized its decision’s “limited” practical effect, a direct cause of action might raise constitutional implications beyond the scope of the court’s considerations. Specifically, the court’s decision may frustrate the delicate balance of power between Congress and the Judiciary.Journal Article27 February 2026
No More Monkeying Around: The Eleventh Circuit Deepens the Circuit Split on Corporate Discharge Under 11 U.S.C. § 1192
For small businesses facing financial disarray, the federal bankruptcy system offers a way to bounce back and get a second chance. However, not all mistakes can be forgiven, and some debts must be paid. As Congress adapts and expands the Bankruptcy Code, interpretive issues can arise, making it difficult for creditors and debtors to understand their options and outlook. In 2019, Congress attempted to create a more flexible and forgiving option for small businesses when they enacted the Small Business Reorganization Act (“SBRA”), which created Subchapter V of Chapter 11 of the Bankruptcy code. This subchapter has given rise to dispute regarding the debts that can and cannot be discharged. In the case In re 2 Monkey Trading, LLC, the United States Court of Appeals for the Eleventh Circuit addressed the primary dispute arising from Subchapter V: whether the limitations of 11 U.S.C. § 523(a) apply to corporate small business debtors who file bankruptcy under Subchapter V. In a controversial ruling, the Eleventh Circuit decided that the restraints imposed by § 523(a) do apply to corporate small businesses. This decision deepens the circuit split on the issue, provides creditors with greater protections and leverage in bankruptcy proceedings, and has left many bankruptcy professionals with a bad taste in their mouths.Most Popular Articles
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1 May 1998
Maryland v. Wilson: The Fading Fourth Amendment
In Maryland v. Wilson, the United States Supreme Court held that a police officer may order a passenger of a lawfully stepped car to exit the vehicle. This "bright-line rule" allows these intrusions as a matter of course and does not require case-by-case determination.Journal Article
1 July 1976
The Economic Effects of Monopoly: A Lawyer's Guide to Antitrust Economics
Four factors were influential in my decision to write this survey paper summarizing what economists believe theoretically and have found empirically to be the major economic (and noneconomic) effects of monopoly. First, in my work as an expert witness in antitrust cases representing both private parties and public bodies, I have found a glaring lacuna in the minds of some judges, a number of lawyers and most jurors in the area of antitrust economics. Second, this feeling has been fortified by my guest lectures in antitrust law courses; while the students are bright and the teacher dedicated, an acceptable level of competence in antitrust economics had successfully evaded its pursuers. Third, my reading of several law journals has convinced me that there are a large number of legally competent antitrust lawyers who are not very familiar with antitrust economics. Finally, I was motivated by the growing realization that people do not regard antitrust violations as very serious. The July 1974 issue of SCIENCE DIGEST reported a cross-section study of Baltimore residents in which the respondents were asked to rate the seriousness of crimes from 9 (most serious) to 1 (least serious). The highest mean score recorded was "planned killing of a policeman" (8.474), and the lowest mean score was "being drunk in public places" (2.849). Of the 140 crimes listed three were of an antitrust genus. "Fixing prices of a consumer product like gasoline" ranked 126 from the top (4.629), "fixing prices of machines sold to businesses" ranked 127 (4.619), and "false advertising of a headache remedy" ranked 132 (4.083). Offenses such as "breaking a plate glass window in a shop," "refusal to make essential repairs in rental property," "shoplifting a carton of cigarettes from a supermarket," "driving while license is suspended," "lending money at illegal interest rates," "joining a riot," and "using pep pills" are each regarded as more serious than the antitrust violations! In Part I we will explore in some detail the economic (and some noneconomic) effects of monopoly. In Part II we will examine briefly public policies toward monopoly.Journal Article
1 March 2022
The Protection of Freedom of Expression from Social Media Platforms
Social media platforms have overturned the previously known system of public communication. As predicted at the outset, the spread of the public Internet that started three decades ago has resulted in a paradigm shift in this field. Now, anyone can publish their opinion outside the legacy media, at no significant cost, and can become known and be discussed by others. Due to the technological characteristics of the Internet, it might also be expected that this kind of mass expression, with such an abundance of content, would necessitate the emergence of gatekeepers, similar in function to the ones that existed earlier for conventional media. The newsagent, post office, and cable or satellite services have been replaced by the Internet service provider, the server (host) provider and the like. However, no one could have foreseen that the new gatekeepers of online communication would not only be neutral transmitters or repositories but also active shapers of the communication process, deciding on which user content on the Internet they deemed undesirable and deciding which content, out of all the theoretically accessible content, is actually displayed to individual users. Content filtering, deleting, blocking, suspending, and ranking are all types of active interference with the exercise of users’ freedom of speech and practices which also affect the interests of other users in obtaining information. All this became an even greater and more difficult-to-manage issue when, in certain sub-markets of the Internet, certain giant tech companies’ services gained a monopoly or came close to doing so. This process has emerged in connection with gatekeepers of a specific type: the most important online platforms (social media, video sharing, search engines, web stores). In this way, a new, unexpected obstacle to the exercise of freedom of speech appeared, with the result that the earlier constitutional doctrines could no longer be applied without any change. The crux of the problem is that the platforms are privately owned. In formal terms, they are simply market players which are not bound by the guarantees of freedom of speech imposed on public bodies and which may enjoy the protection of freedom of speech themselves.Journal Article
1 December 2014
Journal Article
1 March 1992
Assassination and the Law of Armed Conflict
The availability of assassination of foreign leaders as a means of achieving United States foreign policy objectives is an issue that has proven in recent years to be a recurring one. However, it does not arise in isolation; instead it is almost always part of a larger political controversy over United States foreign policy objectives and whether force of any kind should be used to pursue them. Certainly this was true with regard to the controversies that surrounded United States policy, including alleged involvement in assassination plots toward Cuba, Vietnam, the Congo, and the Dominican Republic in the 1960s, and toward Chile in the early 1970s. It is also true, though to a lesser degree, of more recent debates concerning the United States air strike against Libya in April 1986 and the role of the United States in Panama prior to the December 1989 invasion. In each case there was, or later developed, significant disagreement over the appropriateness of United States policy toward the nation involved and over the use of force to induce changes in the nature or activities of its government. Inevitably, such disagreements have tended to distract attention from the manner in which force might be applied; if the chosen objective appears not to be a legitimate one or if the use of force seems unjustified, the relative merit of an -attack on a military installation, for example, as seriously or productively considered. The recent war in the Persian Gulf has again revived the controversy and provided a new opportunity for debate. This time, however, the issue appeared more starkly framed than previously. Public doubt as to the legitimacy of the immediate objective-the ejection of Iraq from Kuwait-was for the most part absent, and although there was disagreement about the timing and amount of coercion to be used, force was generally perceived as a legitimate option. The American public perceived Iraqi President Saddam Hussein, hardly a sympathetic image, as probably the least ambiguous villain of the second half of the twentieth century. Unchallenged by any significant political opposition prior to the war, he appeared as the sole instigator of Iraq's seizure of Kuwait, as well as the cause of its intransigence in the face of international insistence that it withdraw.Journal Article
1 May 1993