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Abstract:
The number of states, corporations, and religious groups formally disowning past records of egregious human injustice is mushrooming. Although the Age of Apology is a global phenomenon, the question of reparations - a tort-based mode of redress whereby a wrongdoing group accepts legal responsibility and compensates victims for the damage it inflicted upon them - likely consumes more energy, emotion, and resources in the U.S. than in any other jurisdiction. Since the final year of the Cold War, the U.S. and its political subdivisions have apologized or paid compensation to Japanese-American internees, native Hawaiians, civilians killed in the Korean War, and African American victims of medical experiments, racial violence, and lending discrimination; a barrage of lawsuits demanding reparations from slavery profiteers is on the dockets of several courts, and more are expected. In the U.S. circa 2004, reparations is the stuff not only of litigation but legislative proposals, academic and popular articles, news editorials, town hall meetings, campus demonstrations, television programs, office water cooler debates, dinner table conversations, and cyberchat groups. If reparations is not a uniquely American remedy, it is no stretch to say that in the U.S. reparations talk is very much with us. Still, although advocates maintain that reparations is the first step in recovering history and fashioning a more equitable collective future, critics describe a divisive and retrospective movement threatening to widen racial and ethnic fault lines running through the American body politic. Consequently, reparative justice is hotly contested on doctrinal, political, and practical grounds: opponents reject the notion of collective harm and responsibility for ancient wrongs, deny linkages between the relative socioeconomic status of aggrieved racial minority groups and past injustices, and cling to limiting doctrines that deny remedies for acts and omissions that were lawful centuries ago. Reparations thus fuels unresolvable debates over the nature of minority disenfranchisement, the adequacy of civil rights legislation, the constitutionality of group entitlements, the ideal racial distribution of socioeconomic power, and the appropriate channel to pilot between the pursuit of racial justice and the preservation of social peace. Moreover, because a successful reparations movement might awaken other dormant claims, reparations debates generate resistance and backlash. Nevertheless, even if it can be realized only at the price of social unrest and the painful reopening of old wounds, reparations may well be the appropriate remedy in the case of specific meta-wrongs, foremost among them slavery. A significant element in the slavery reparations claim is the lost value consequence of the unpaid labor extracted from slave ancestors and thus it is logical that, with few exceptions, proponents of slavery reparations equate the remedy with financial compensation. Although money cannot undo history, it can ameliorate the socioeonomic conditions of the descendants of former slaves, and money is the lodestar of most reparationists. However, justice is not a one-size-fits-all commodity, and the potential suitability of compensatory remedies to the harms absorbed by any particular group is not dispositive of, nor even instructive in regard to, the question of whether reparations is appropriate for other claimant groups. Slavery is not the sole, nor the first, nor even, arguably, the most egregious historical injustice for which the U.S. bears responsibility. Moreover, cash is not the primary, or even an important, objective of some aggrieved groups. Non-monetary modes of redress may be more effective in inducing the national government to accept moral responsibility, in restoring the dignity and autonomy of injured groups, and in healing, reconstituting, and relegitimizing the nation. In other words, the specific claims posed by each aggrieved group bear examination and evaluation on their unique merits. Although the interests of groups may converge on particular issues and proposals emerging in reparations debates, what suffices to make one group whole may be wholly inadequate for, or even harmful to, another. Prevailing theories of justice, even those drafted in good-faith with the intent that they be universally applicable or at least readily malleable in transit from one application to another, may in fact be so bounded by the cultures and worldviews in which they were incubated that they are unable to recognize, capture, and remedy all the injuries inflicted upon the aggrieved group. Without judging its value as a remedy in general, reparations, as well as other theories of justice sketched and pitched at a high level of abstraction but without a comprehensive analysis of the context and history of the claims of the particular group in question, may, when applied, be useless at best and damaging at worst. Just as all politics is local, so is all (in)justice. For the indigenous people who have inhabited, since time immemorial, the lands within the external borders of the U.S., remediation of historical injustice is a pressing issue. Despite this, reparations would fail to advance, and might even frustrate, important Indian objectives, primarily the reacquisition of the capacity to self-determine as autonomous political communities on ancestral lands. Because the immense injustice at the core of U.S. national history is neither broadly acknowledged nor deeply understood, Part I of this Article provide some historical foundation and briefly sketches the necessary factual predicate to the Indian claim for redress. Part II presents and evaluate several theories of justice with respect to this claim. Part III counters the shortcomings and omissions of these theories with an indigenist theory that propounds a program of land restoration and above all legislative reform intended to accord the full measure of relief to Indian claimants consistent with the requirements of justice for all individuals and groups.

Federal Indian law, constitutional law, jurisprudence, moral philosophy, remedies, reparations, restorative justice, indigenous rights

Abstract:
Upon his capture in 1934, the legendary bank robber Willie Sutton was asked by FBI agents, Why do you rob banks, Willie? Sutton, who believed the question to be rhetorical, replied, dryly, Because that's where the money is. In other words, Sutton understood his interrogator to be inquiring as to why he robbed banks rather than, say, homes, or gas stations, or church offering plates. Had he understood the query as intended - i.e., what was it about Willie Sutton the impelled Willie Sutton to crime when many others, struggling to survive the Great Depression, were not? - Sutton could not likely have offered as pithy a response. This Article indirectly poses a similar question - Why do you rob corporations? - to seven chief executive officers [CEOs] recently ensnared in circumstances not unlike Sutton's in the hope of generating answers more useful to the explanation, prediction, and suppression of corporate crime than simply, Because that's where the money is.

In the last decade, a series of scandals involving insider trading, fraudulent accounting, fictional business entities, bribery, lavish executive perquisites, and outright theft destroyed over $1 trillion in shareholder value, eliminated hundreds of thousands of jobs, and felled corporate giants such as Enron, WorldCom, Arthur Andersen, and Adelphia. Outrage at these breaches of the public trust, which some liken to a "corporate 9/11," prompted prosecutors to imprison many senior executives and Congress to impose yet stricter obligations upon public firms and the executives who run them.

Although the Sarbanes-Oxley Act is now associated in the public mind with a sordid parade of handcuffed executives perp walking their way to prison, in years to come SOX may be better remembered as the machine that privatized public corporations. As much as a quarter of every dollar a public firm earns is consumed complying with a panoply of laws and regulations, and in the first four years since its passage SOX alone has cost firms $1.8 trillion. While some commentators hail SOX as a significant weapon in the battle against corporate crime, others believe its price for reducing managerial malfeasance is far too dear.

Many post-Enron Era firms now tout their compliance management programs [CMPs], which typically consist of written codes of ethics, new lines for chief compliance officers, internal systems for protecting whistleblowers, and mandated employee training, as proof against future corporate criminality. For their part, government regulators have encouraged and rewarded CMPs, reducing firms' liability upon violations of laws and regulations to the extent to which firms have actually implemented them. Still, many commentators remain skeptical, viewing CMPs as symbolic attempts to pose firms as corporate good citizens when in fact they are merely cheap ploys to reduce regulatory oversight without real behavioral transformation. Indeed, many of the most egregious offenders had implemented well-articulated CMPs and earned high independent corporate governance ratings even as the tangled webs of their secret misdeeds were unraveling.

It should come as scant surprise that enhanced penalties and CMPs are inadequate to induce firms to comply consistently with corporate law. Indeed, as the “Enron Era” has proven, noncompliance - at long as it goes undetected - can be profitable. One would be naïve to believe that SOX or any other legislation could relive these pressures. Still, despite its persistence noncompliance is an ethical cancer that shakes public faith in the integrity of the free market, imposes negative externalities upon stakeholders, and fosters corruption. As recent experience demonstrates, in the long run noncompliance drives away investment and destroys noncompliant firms. Simply put, noncompliance is bad for business, for the firm, and for the nation.

Yet as injurious as noncompliance is, and despite all the measures instituted to combat it, the phenomenon is ubiquitous. Studies suggest that at least two-thirds of public firms have engaged in serious illegal conduct in the past decade. Is law simply epiphenomenal to firm behavior? Is illegality part of the business of business? Or can a well-designed legal regime, buttressed by CPMs and other instrumentalities, induce a degree of corporate compliance sufficient to protect the integrity of the market and the state? Why, and under what conditions, will firms comply with the legal regime governing corporate conduct, particularly when rules run contrary to their parochial interests? These are among the most pressing questions, and enhancement of compliance is one of the most important tasks, in the realm of public governance.

Accordingly, Part I surveys and critiques existing theories of corporate legal compliance [CLC]. Part II develops an alternative theory that traces associations between the personalities of CEOs and firm compliance with or violation of obligations arising under corporate law. Part III surveys historical data to test heuristically the proffered theory and offer explanations and predictions of firm behaviors regarding CLC. Part IV, followed by a Conclusion, summarizes the associative relationships between CEO personalities and CLC, anticipates criticisms, and suggests future research to build upon evidence that evaluation and selection of CEOs on the basis of their CLC propensities is an important constituent of corporate strategy that bears heavily on firm survivability and prosperity.

legal compliance, business law, corporate strategy, ethics, Sarbanes-Oxley, personality, CEO

Abstract:
If for many the perception that global competition is intensifying reinforces the maxim that business is war, it stands to reason that the acquisition of actionable CI should become a growth industry. Indeed, nearly every Fortune 500 firm and more than one hundred foreign governments have created a CI office tasked to reveal information about competitors. Moreover, when lawful methods of CI, which are restricted primarily to the systematic examination and analysis of publicly available records and other open-source materials, are insufficient, many firms turn to private investigative agencies and other contractors to acquire the trade secrets they desire through corporate espionage [“CE”], which does not recognize legal boundaries and is thus regarded as the dark side or unlawful subset of CI.

Despite its dubious pedigree, CI is so prevalent circa 2007 that it might fairly be said that everybody spies on everybody. The sheer magnitude of contemporary CI operations is astounding. Theft of proprietary business information costs Fortune 1000 firms approximately $100 billion annually, and a single attempted CE operation against Intel Corp, only narrowly averted, would have deprived the firm of an expected $300 million in future profits. Yet even if CI and CE are ubiquitous, and even if no firm can claim clean hands, the resort to such methods - and in particular CE - imposes externalities on firms that lose information wars and reallocates the benefits of innovation from innovators to firms less skilled in R&D but more capable as criminals. This observation did not escape the attention of regulators, and in 1996, the U.S., responding primarily to the theft of the intellectual property of U.S.-incorporated firms by foreign firms and governments but also to the its domestic variant, passed the Economic Espionage Act [EEA] which imposes 10 years' imprisonment and fines of up to $5 million per form upon conviction of the knowing receipt, purchase, or possession of trade secrets.

However, eleven years after passage of the EEA fewer than forty cases have been filed - far fewer than anticipated. Moreover, most prosecutions have arisen not out of the theft of high-value R&D secrets regulators expected would be targeted by CI operations but from the theft of information regarding low-tech and industrial products. Even when defendants have been convicted, punishment has been rather gentle: courts have imposed sentences averaging under two years' imprisonment and fines averaging less than $50,000 - or about a penny for every $10 of value targeted. If indeed everybody spies on everybody, and if CI/CE potentially quite costly to its targets, is actionable under criminal and civil statutes, then the lack of effective prosecution cannot be explained away solely by reference to the criminal law burden of proof or to the skill of CI/CE operatives.

In fact, the regulated and the regulators oppose strict enforcement of laws governing CI/CE, albeit for differing rationales. For firms, CI is a double-sided blade that cuts through uncertainty to serve either competitive or collusive ends, depending on the manner in which it is wielded. For firms waging price wars, attempting to enter markets, or seeking to deny entry to other firms, CI is an efficient instrumentality that allows firms to anticipate and counter rivals' strategies - in other words, to defect from or avoid cooperation in order to claim private benefits at the expense of their rivals. In contrast, for firms seeking to establish and maintain the high profits available through cooperation and collusion, CI provides a reasonably efficient if imperfect means to verify and stabilize collusive equilibria. Finally, in its third manifestation, CI serves the state as an indirect yet cheap regulatory mechanism that encourages firms to acquire information about their rivals and to use that information as the basis for defecting from price collusion agreements - in other words, in the hands of the state CI is a public good that supports the anti-trust regime and benefits consumer welfare.

antitrust law, collusion, competition, game theory, competitive intelligence, private negotiation theory

Abstract:
There is an ongoing social battle over the power to determine the legal, ethical, and economic substance of the regime that governs corporations and specifies their powers and duties with regard to the protection of human rights. Whereas for much of the history of the modern corporation its object and purpose were widely considered to be settled by domestic law, custom, and social contract, revelations of massive corporate fraud at Enron et al., environmental disasters at Bhopal and in Alaska, allegations of corporate complicity in widespread violations of human rights in the developing world, and the gathering transnational strength of the human rights movement have unraveled this common understanding to form two contending camps with ideologically opposed visions of how corporations should be structured and held responsible for harms connected to their conduct. Both contend upon the terrain mapped out by a new social movement, entitled corporate social responsibility [CSR], which engages a variety of state and non-state actors in contestation over a host of political and legal projects designed by their architects to restrain corporations in their pursuit of self-interest and to hold them accountable to constituencies other than shareholders for their performance along dimensions such as the protection of the environment and human rights.

For much of the past two decades the struggle between the two leading paradigms of corporate governance - shareholder theory and stakeholder theory - and, in turn, the evolution of the CSR movement, has been fought within the academy. However, the wave of corporate scandals in the first few years of the third millennium and the increasing sophistication of the international human rights movement have combined to draw the battle out of the academy and into new arenas - judicial, legislative, and regulatory. In this new phase of ideological and political contestation, the champions of shareholder theory are, naturally, many (and perhaps most) corporations and their shareholders. On the other side of the equation, a broad spectrum of nongovernmental organizations [NGOs] - pressure groups, charities, religious groups, interested individuals, and other entities organized around specific themes such as the promotion and protection of human rights, labor rights, indigenous rights, women's rights, and the environment - are the major proponents of stakeholder theory and of a much more expansive view of the obligations owed by corporations to constituencies under the rubric of CSR.

What seem like vastly divergent interests, normative commitments, and worldviews of corporations on the one hand and human rights NGOs on the other would suggest the conclusion that conflict is inevitable and cooperation is impossible, especially in the emotion-laden and politically sensitive issue-area of human rights. This conclusion might appear all the more logical in light of the salience of CSR to the international human rights movement - it has moved to the forefront of its agenda - and in view of the strategies chosen by NGOs - litigation, application of political pressure within the United Nations and domestic governance spheres, and legislative attempts to reform corporations as quasi-public entities with human rights obligations akin to those of states. Yet despite the seeming intractability of and disparity between these two diametrically opposed visions of corporate responsibility for the protection and promotion of human rights, an analysis of the strategies available to corporations and to NGOs, augmented by the use of game theory, reveals that not only is cooperation possible but that a mode of governance dependent upon self-interested cooperation can yield the simultaneous outcomes of corporate profitability and protection of human rights.

Accordingly, this Article will identify and analyze the strategies employed by NGOs and corporations in the battle over whether and to what extent corporations should bear responsibility for violations of human rights. Next, and with the assistance of game theoretic modeling, it will examine the strategic interactions between these two parties, determine optimal strategies for each party, identify any strategic equilibria, and analyze the findings. Integrative solutions will be proposed that might be adopted to facilitate the coexistence of corporate profitability and human rights and advance the theoretical debate beyond simple characterizations of NGOs as good and corporations as evil.

corporate social responsibility, human rights, corporate governance, game theory, negotiation

Abstract:
Does international law matter, or is it but a fairy ship upon a fairy sea: a beautiful construct of the legal imagination floating upon a sea of false assumptions? International legal compliance (ILC), the newest and most rapidly developing subfield in international law, was born in the early 1990s from the revived debate between legalization theorists, a group committed to the belief that the transformations wrought by the end of the Cold War have rendered international law independently capable of constraining and shaping the behavior of states, and their critics, a camp committed to the contrary notion that international law remains primarily an aspirational enterprise subordinate to politics and epiphenomenal to state practice. In attempting to prevail on the question of the efficacy of international law, legalists and skeptics alike have set about propounding and testing an array of interrelated theories, and in the process the questions of whether, and if so, why and under what circumstances states elect to comply with international law have emerged as the most central and pressing issues within the international legal academy. Building upon the insights of international relations theory and the methodologies of the social sciences, the field of ILC has organized around competing answers to these meta-questions, and the body of ILC scholarship now consists of more then ten books and over one hundred articles.

International Legal Compliance: Surveying the Discipline, lists and annotates the major entries within the ILC corpus. For each entry a brief summary, together with one or more numbers corresponding to a list of major ILC themes, is provided. Although it is intended to be complete and comprehensive, the Bibliography does not list every article that could arguably be included within the ILC corpus. Short articles duplicative of the previous work of scholars have been omitted, as have articles that are tangentially connected to ILC or are largely descriptive, rather than analytical. Although the majority of ILC scholars are legal academics, an effort has been made to include the works of authors in related fields such as international relations and economics.

The methodology is as follows. A search of Westlaw, Lexis, and Worldcat was conducted to identify every potential book and article in the field of ILC. Each source was then read to ensure that it fit within the field. Additional articles cited or discussed by the authors of each source were noted for possible inclusion. A preliminary draft of this Article was sent to each author for comments, corrections, and suggestions for additional authors and sources (I have appended their comments infra).

To be included in the bibliography, each source was required to address one or more themes that constitute the field of ILC. These themes, along with the number and letter scheme employed to denote them, are as follows: 1. General theory, 2. Empirical analysis, 3. Skepticism, 4. Critical perspectives, 5. Relationship to domestic law and institutions, 6. High/Low Politics, 7. Literature Survey, 8. Human Agency, 9. Methodological and Epistemological Issues, and 10. Effectiveness.

International law, international relations theory, compliance, international economic law, laws of war, human rights law

Abstract:
Whether, and, if so, why states elect to comply with international law are now the most central questions within the international legal academy. A skein of theories has been woven over the last decade to explain and predict state compliance, and a number of factors, including, inter alia, a desire to generate reciprocity, an interest in reducing transaction costs, normative commitments, domestic considerations, the degree of domestic incorporation of international legal regimes, reputational concerns, and fear of punishment, are purported to be causally linked. However, as the study of international legal compliance ["ILC"] has matured, intramural divisions have been compounded by suspicions that many states are prone to accept only those legal obligations that do not significantly impose real constraints. A high level of compliance with a given regime may simply reflect the failure to require states to undertake anything more than "modest departures from what they would have done in the absence of an agreement." Many treaties may in fact be mere codifications of the lowest common denominator achievable across an array of states none of whom have internalized norms obligating conduct contrary to their independent preferences, and thus a high rate of observed compliance is not necessarily an objective indicator of a normative commitment to cooperate. By the same token, certain agreements that impose significant constraints may meet with relatively low levels of compliance without sabotaging the norms states-parties seek to advance. In short, the development of compliance theories requires that causal relationships between the normative fabric from which international legal obligations are woven and state behavior be clearly traced.

However, complicating resolution of the debate between champions of the causal significance of international law and those who view law as epiphenomenal to state practice is the relative paucity of empirical studies testing general propositions regarding relationships between rules and behaviors. Although all theories in the social sciences are indirect, presumptive, and obliquely and incompletely corroborated at best, the field that has organized around the concept of international legal compliance is undernourished with insights from other disciplines: the few studies that describe patterns of compliance without tracing these relationships and establishing their effectiveness are insufficiently rigorous and too under-specified to offer many useful insights. Moreover, insufficient rigor is not all that bedevils the field of ILC: the tacit assumption central to the discipline of international law that regards international relations as uniformly susceptible to legal regulation may well be false. A hierarchy of issue-areas orders the international legal system, and patterns of cooperation have been far easier to generate and sustain in respect to "low politics," generally understood as economic, cultural, and social issues, than in questions of "high politics," defined narrowly as matters of war and peace. Because empirical evidence suggests that the obligations most breached are those trenching in questions of high politics, the ultimate test of whether international law matters may well be whether it can be crafted to regulate the muscular aspects of international life. If international relations are inevitably little more than a Hobbesian state of nature, and if war is inescapably the negation of the rule of law, then international law is and will always be epiphenomenal. If, on the other hand, states can be induced to comply with meaningful normative limitations on their conduct even in issue-areas that implicate their sovereignty, the long-deferred dream of a functioning civil society is no longer fanciful. Thus, if the laws of war, or international humanitarian law ["IHL"], are the soft underbelly of global legalization, developing a theory that explains and predicts IHL compliance and suggests ways in which it can be re-engineered to enhance its effectiveness is of great moment to the broader venture of making international law matter.

Regrettably, however, the field of ILC is still a primitive science, and our ability to explain and predict the effectiveness of IHL is even more protean. While its relative youth accounts for some of this theoretical underdevelopment, and the desire to retain parsimony for still more, the inability to explain and predict IHL compliance is primarily the result of a failure to properly specify the variables most closely associated with compliance decisions. Simply put, the international legal academy has failed to render a coherent body of testable hypotheses that permit empirical investigation across a range of issue-areas, and thus IHL compliance remains an idiopathic phenomenon. To be sure, international law and international relations theorists have catalogued and described patterns of compliance. However, no ILC scholar has offered anything like the list of nomothetic propositions that one expects from a theory. The discipline must recognize that states are an abstraction utterly lacking in the capacity to exercise a choice between alternatives and that those who would answer the question, "Why do states choose to comply with or violate IHL?," must first ask and answer the prior, yet much more impenetrable, question: "Why do the individuals who exercise decisional authority commit their states to comply with or violate IHL?" Simply put, states do not make decisions; people do. Any theory of IHL compliance that aspires to sufficient determinacy to guide practitioners and scholars alike must account for the individual level of analysis and in particular the microfoundations of personality that frame decisions and yield variation across the range of decisionmakers, in its elaboration, testing, and refinement.

Accordingly, Part I of this Article briefly surveys and critiques existing pretheories of ILC generally and particularly with respect to IHL. Part II presents an alternative theory that draws from the insights of personality theory to trace the causal processes whereby the personalities of individual decisionmakers associate with decisions to comply with or violate obligations arising under the IHL regime governing the resort to anticipatory self-defense ["ASD"]. Part III surveys historical data to heuristically test the proffered theory, and Part IV, followed by a Conclusion, anticipates criticisms and proposes directions for further research.

international law, compliance, laws of war, international humanitarian law, empirical research, political psychology, personality theory, anticipatory self-defense

Abstract:
That the millions dragged from their homes, brutalized, caged, and murdered during World War II solely for their membership in human collectivities organized around a common religion, ethnicity, race, and history should not have died in vain, Rafael Lemkin coined the term genocide. Although the victorious Allies did not include it within the jurisdiction of the Nuremburg Tribunal, choosing instead to prosecute such acts as crimes against humanity, genocide - in effect, the first hate crime - rapidly assumed the status of the ultimate transgression. The phrase Never again! - spoken in the steely conviction that the world would never again stand idly by - became the unofficial motto of the State of Israel, while the Genocide Convention (1948) rendered the legal judgment of the international community that a parade of horribles - murder, serious physical or psychological harm, forced contraception, and abduction of children - when committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such - was so far beyond the moral pale that the duty to prevent and punish their commission was incumbent upon all states. Sadly, the promise of Never again! has been broken seriatim. A train of genocides in Timor, Cambodia, Iraq, Bosnia, Rwanda, Congo, and now the Darfur region of Sudan is written in blood upon the pages of post-World War II history. Why, sixty years after the liberation of Auschwitz, does genocide remain too much with us? Anthropologists conclude that mankind is atavistic, and that genocide will bedevil us for so long as resources are finite upon earth and contending human collectives battle over them. Lawyers advise that enforcement of the prohibition of genocide requires effective rules and institutions, and that above all perpetrators must be apprehended and brought to justice. Political scientists explain inactivity in the face of genocide as a rational response to an absence of actionable interests: simply put, what happens to peoples in far-flung corners of the Earth is inconsequential so long as it does not threaten the physical security or economic well-being of the West. Perhaps all or none are correct; at any rate, Kuwait is spared, but Bosnia is bled white before it is rescued, and Rwanda and the Sudan are left to burn. Never again! is at best a bromide quaffed to assuage the consciences of those made uncomfortable, but not too uncomfortable, by the reprise of mass murder motivated by hatred of a targeted group. Lemkin's contribution to the lexicon of law and moral philosophy is a bust. Can we do better? Is it possible to reinvigorate our commitment to eradicating the ultimate crime or, at the very least, to punishing and, better still, deterring would-be perpetrators? If the lessons of Nuremburg have been smothered under a mountain of Srebrenicas - a village in Bosnia where, in 1995, Bosnian Serb forces machine-gunned 8000 Muslim men and boys for the crime of being Muslim - what reason is there to repose our hopes in the International Criminal Court, a permanent tribunal with the jurisdiction to punish the authors of genocide? Unless we can awaken the moral indignation that encouraged the Allies to hang the architects of the Holocaust by the necks until they were dead, how will we inspire the contemporary community of states to commit their blood and treasure to defending the objects of genocidal instinct from their attackers? If genocide is simply an immutable aspect of the human condition because mankind is inherently evil or resource scarcity is so profound that we are doomed to fight and only the strong are to survive, then our work is done. We are observers of, not active participants in, our own futures. But if genocide is not inevitable, we must summon the will to intervene. To do this is largely a prospective challenge: we cannot change what has gone before, much as we wish to do so; we can only devise a future in which genocide is deterred, and when it cannot be deterred it is checked, and when it is not checked in time it is sanctioned, and its practitioners punished. If we are to rise to this challenge, we must recognize that the integrity of the moral norm at the core of the legal prohibition against genocide is, to some degree, a function of the seriousness with which we respond to its violation. Each genocide tolerated makes the counter-argument against its prohibition: isn't killing the enemy what war is all about, and isn't genocide the most effective way of winning wars (and preventing the possibility of future wars, at least with the eliminated groups)? In other words, a genocide-free future demands vigilance and the willingness to put force in service to the vow, Never again! Yet even this expression of commitment may be inadequate. So long as the present consequences of past genocides go unrecognized and unremedied, their ghosts will haunt our present. Worse, as a review of the recent histories of the Balkans, the Middle East, and Africa makes clear, nothing is more likely to motivate the descendants of yesterday's victims to become tomorrow's perpetrators than a stubborn refusal to acknowledge and repair the damage. The risk extends to the spectator class as well: with each successive genocide that slips by with little notice, less intervention, and all but no justice, we become more experienced at living with genocide. The attendant moral hazards require, in short, that we think not merely prospectively but retrospectively if we wish to avoid them, do justice, and bring about the end of history, at least insofar as genocide is concerned. Where do we begin? Many genocidal episodes stain the sands of time: the Nazi butchery of European Jews, the Japanese Rape of Nanking, the Ottoman murder of Armenians, the Mongol devastations of Central Asia, the Roman eradication of Carthage, and the Hebrew destruction of the Canaanites, to name but a few. The unique experience of American Indians presents a logical heuristic whereby to assess more broadly the requirements of justice following genocide. The brutal reality of invasion, murder, slavery, land theft, ethnocide, and sterilization has not percolated deeply into contemporary understandings of U.S-Indian history. The role of the U.S. in the deliberate destruction of Indian populations, property rights, and cultural patrimonies is for most Americans a hidden history. Because the genocide of American Indians is neither broadly acknowledged nor deeply understood, Part I will provide historical foundation. Part II will present and evaluate several theories of justice with respect to the Indian claim for redress. Part III will counter these theories with an indigenist theory intended to accord the full measure of relief to Indian claimants consistent with the requirements of justice for all peoples.

Genocide, American Indians, moral philosophy, theory of justice

Abstract:
U.S. v. Lara, hailed as a rare victory by proponents of Indian self-determination, is, under closer scrutiny, a Pyrrhic victory. Although the opinion upheld the essential power of Indian tribes to exercise criminal jurisdiction over non-member Indians, in so doing it granted opportunities and ammunition to opponents of the centuries-long struggle to defend what remains of Indian sovereignty against colonialism. Read with a jaundiced eye, Lara simply reaffirms contemporary judicial understandings of the doctrine of plenary power, long since remolded to connote not merely immunity from judicial review but rather absolute authority over Indian tribes, while telegraphing a message reminding readers that the radical readjustment of the metes and bounds of tribal sovereignty, to include the legislative disappearance of each and every Indian tribe and the abrogation of all four hundred plus Indian treaties, requires only that Congress choose to wield its unbridled legislative authority. If the right to make and enforce law is the most fundamental constituent of sovereignty, the sovereignty of Indian tribes, even post-Lara, survives at the sufferance of Congress, and history suggests that its future is grim.

Non-Indians, contemplating the political and legal enormity of the task of doing justice by the subjects of their policies of conquest, genocide, expropriation, legal assaults on tribal land and sovereignty, and forced political and economic dependency, have long bemoaned their Indian problem. At least it is a problem of their own making: Indians, by contrast, have been saddled with a Euro-American problem created, maintained, and, as Lara reveals, as yet unacknowledged by the political and legal system imposed and preserved by the might of the conqueror. Federal Indian law, not just willfully blind to crucial questions of agency and responsibility for past wrongs but often overtly racist, is the current instrument-of-choice whereby a non-Indian majority thwarts the assertion of sovereign tribal rights to engage in economic development projects resulting in the transborder movement of goods and persons, the production of significant wealth, or the expression of religious or cultural difference. Simply put, Lara, albeit a win for the good guys, offers nothing to contradict the lesson of more than two centuries of practice: federal Indian law, and in particular the doctrines of plenary power and stare decisis, is the thinnest of veneers for de facto rule over both tribes and individual Indians without restraint and across all manner of human affairs.

Even if federal Indian law was not already structurally incompatible with the self-determination of Indian nations and ready-made for exploitation by foes of sovereign governments within the external borders of the U.S., its interpretation, guided by the dominant philosophies of Western liberal jurisprudence and modern international legal positivism - the former distrustful of the Indian normative universe and thus bent upon remaking tribes to comport with a secular, individualist model of governance; the latter unwilling to recognize tribes as subjects of law and as bearers of natural legal rights actionable in domestic and international courts - would prove hostile, and perhaps fatal, to territorially-based Indian sovereignty. Even under the moderating influence of the most sympathetic members of the non-political branch, judicial review of questions of federal Indian law, on balance, has been an engine of the destruction of tribal self-determination since the founding of the United States. Plenary power and Indian sovereignty are mutually exclusive, and Lara only partially and temporarily obscures the existential reality that, for Indians, federal Indian law is an evil legal system. Rather than celebrate Lara, Indians should probe deeper and ask themselves how long before Congress fixes it and divests tribes of non-member Indian criminal jurisdiction, whether they intend to mount an effective defense against the last vestiges of their judicial sovereignty, what instruments of power - legal, political, and moral - they can marshal in support of this mission, and whether their right to self-determine can be meaningfully exercised in continued association with the United States.

Part I of this Article briefly sketches the ongoing historical process whereby tribal sovereignty, once accorded great deference by the international community, has been incrementally denatured and corroded by federal Indian law. Part II situates Lara within this history and reframes the decision as a Pyrrhic victory for Indian tribal sovereignty. Part III defends the premise that federal Indian law and its interpretation and application in courts of the United States is an irremediably evil legal system utterly inconsistent with contemporary understandings of the natural right to self-determination. Part IV propounds an alternative legal theory, rooted in natural law and partly reflected in the international indigenous rights regime, that substantiates the right of Indian tribes to a quantum of self-determination incompatible with continued political association with the United States. Part V elaborates and defends an American Indian Declaration of Independence as the legitimate expression of the natural legal right of Indian peoples to self-determination and as a rejoinder to Lara and the philosophical and historical foundation upon which it rests. Finally, Part VI examines and rejects alternate proposals for the realization of Indian self-determination that stop short of secession.

Federal Indian law, indigenous rights, natural law, self-determination, secession

Abstract:
States are an abstraction utterly lacking in the capacity to exercise a choice between alternatives. Those who would answer the question, Why do states choose to comply with or violate the laws of war?, must first ask and answer the prior, yet much more impenetrable, question: Why do the individuals who exercise decisional authority commit their states to comply with or violate the laws of war? States do not make decisions; people do. Any theory of compliance that aspires to sufficient determinacy to guide practitioners and scholars alike must account for the individual level of analysis and in particular the microfoundations of personality that frame decisions and yield variation across the range of decisionmakers. Part I briefly surveys and critiques existing theories of international generally and particularly with respect to the laws of war. Part II presents an alternative theory that draws from the insights of behavioralism to trace the causal processes whereby the personalities of individual decisionmakers associate with decisions to comply with or violate obligations arising under the regime governing the resort to anticipatory self-defense. Part III employs historical data to heuristically test the theory, and Part IV anticipates criticisms, propose directions for further research, and summarizes ongoing experimental efforts.

Laws of war, compliance, behavioralism, psychology, formal model, international law

Abstract:
Part I analyzes the primary customary and treaty-based sources constituting the international legal regime governing self-defense, as well as relevant state practice in the post-Charter era, to evaluate the arguments as to the legality of measures undertaken in anticipation of an armed attack, as well as the continued functionality of the UN Charter framework in the Age of Terror. Part II examines the Bush Doctrine as an expression of a doctrine of preventive war that transcends the debate over the use of armed force in anticipation of an imminent attack. Part III claims that an examination of historical sources of international legal obligation and a less restrictivist, less positivist read of the Charter reveals a natural legal basis for the right, and, even more pointedly, the duty of states to engage in preventive war in order to defend against existential threats. Part IV examines the U.S. Constitution as a domestic expression of a presidential legal duty, arising under natural law, to defend the U.S. against external threats. Part IV asserts the claim that the Bush Doctrine is an expression of the intent to faithfully discharge this natural legal duty and that the doctrine of preventive war it elaborates is not only theoretically consistent with obligations under international law but even promotive of the ends law is intended to secure, even if the exercise of the right to preventive war is subject to some important qualifications. Part V offers proposals to harmonize the Bush Doctrine with the UN Charter and guide formal international legal institutions, including the Security Council and the International Criminal Court, toward enhanced functionality in the simultaneous defense of the natural right of states and peoples to life on the one hand and the promotion of law-governed order and justice in the international system on the other.

Preventive war, Bush Doctrine, natural law, anticipatory self-defense, UN Charter, jus ad bellum, International Criminal Court, terrorism

Abstract:
Learning theorists have demonstrated that people vary in the manner in which they absorb, process, and recall what they are taught. Verbal learners, a group that constitutes about 30% of the general population, learn by hearing. They benefit from class lectures and from discussion of class materials in study groups or in oral presentations, but chafe at written assignments. Experiential learners - about 5% of the population - learn by doing and touching, and clinical work, role-playing exercises, and moot court are their best instructional modalities. Visual learners - the remaining 65% of the population - need to see what they are learning, and while they have difficulty following oral lectures they perform well at written assignments and readily recall material they have read. The implications of variance in learning styles are particularly significant for legal educators. Empirical research supports the conclusions that when students are matched with teaching methods that complement their learning styles their absorption and retention is significantly enhanced. However, law professors who rely upon the Socratic method or more traditional lecturing techniques, as do the majority of those who teach doctrinal courses, particularly in the first-year curriculum, may be satisfying the pedagogical needs of their verbal learners without adequately engaging their kinesthetic or visual students, who comprise a majority of their classes. Students for whom traditional teaching methods are unsatisfactory may not only learn less but may suffer motivational problems and enjoy the law school experience less than their peers.

Moreover, variations in learning styles have been linked to gender: women tend to be more visually oriented than men, who are generally more kinesthetic, and consequently female students are systematically more prone to suffer the deleterious effects of learning style-teaching method mismatch than men. However, sixteen years after the American Bar Association Commission on Women in the Profession suggested to law schools that the first-year curriculum would be improved by the use of greater variety of teaching methods in light of the diversity of learning styles in the student body, the typical first-year doctrinal course remains a predominantly verbal domain. In some degree this is a function of the subject matter. After all, law is a bibliocentric profession, and words are the coin of the realm. But we need not seek the radical transformation of the law to teach to the entire class. This Article presents empirical evidence demonstrating that the use of original art can assist legal educators to this end.

Legal education, visual learners, learning theory, art