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Abstract:
This paper represents a very early stage of a collaborative research project on transnational NT regulation. In this project, we seek to apply a multidisciplinary perspective to the question of regulation of nanotechnology (NT).

We begin in Section I by considering the nature of NT and some risks it may pose as it is more fully developed and utilized over time. We next consider the nature of transnational "regulation," suggesting the range of legal, institutional and substantive forms this term can encompass. Because NT and its regulation are (like our project) at such early stages of development, we emphasize the importance of regulatory flexibility.

In Section II, we consider a series of strategic choices that must be faced in designing transnational regulation in any issue area, including NT; these include the level and scope of regulation, the actors authorized to promulgate regulatory norms, the legal and institutional form of regulation, and finally its substantive content.

In Section III, we argue that it is useful, although not definitive, to study models of transnational regulation developed for similar issues arising out of other forms of technology. While few if any of these models will be directly applicable to the unique characteristics of NT, the designers of these regulatory regimes faced similar strategic choices as well as similar problems, and the models they created can offer useful lessons. We briefly discuss a few potential models to illustrate the approach. Our larger research project will expand the study of transnational models beyond those discussed here, with a view to developing more specific recommendations for NT regulation.

Consistent with our emphasis on regulatory flexibility, we conclude by tentatively suggesting a sequencing of regulatory approaches designed to allow NT regulation to develop over time into broader, more elaborate and more highly legalized form as we gain greater knowledge of, and experience with, the benefits and costs of NT.

nanotechnology, regulation, international law, technology, international relations, soft law

Abstract:
With nanotechnology now a major funding priority for governments and industry around the world, devising the manner and timing of regulation presents a challenge. Too much regulation too soon could hinder development of beneficial technologies, while too little regulation too late may allow dangerous technologies to enter the market.

Kenneth Abbott, Gary Marchant, and Douglas Sylvester argue that any solution to this regulatory dilemma must have four basic characteristics: the solution must be flexible, innovative, international, and official. In this Article, they advocate a framework convention on nanotechnology as a regulatory tool meeting these four requirements.

The authors use a series of case studies to reveal framework convention best practices, and conclude with a summary of how a nanotechnology framework convention might be structured.

nanotechnology, regulation, international law, technology, international relations, soft law, framework, convention, environmental, trade, Gatt, WTO, tobacco convention

Abstract:
As an international policy issue, nanotechnology (NT) presents a unique set of attributes and poses an extraordinary set of regulatory challenges. Given that NT is a major funding priority for governments and industry groups around the world, it is expected to rapidly evolve and advance, presenting risks and benefits that are still largely unknown and even unanticipated. While some politicians, social scientists and activists call for robust regulatory oversight, regulators struggle with their lack of data and knowledge, still far more limited than the levels of information they typically require as a prerequisite for regulatory action. This situation poses a dilemma: while the lack of regulation has the potential to undercut public confidence in this nascent technology, premature and inappropriate regulation could impede the development of socially beneficial products and applications.

One regulatory tool that may prove useful is an international framework convention for NT. This paper describes the concept of the framework convention, briefly discusses several examples of framework conventions and related agreements that may provide relevant analogues or lessons for NT, and concludes with a summary on how a framework convention on NT might be structured.

nanotechnology, regulation, international law, technology, international relations, soft law, framework, convention, environmental, trade, Gatt, WTO, tobacco convention

Abstract:
Law’s engagement with evil is nowhere as evident as in the trials of history’s brutal dictators, thugs, and war criminals. The imaginative range of law’s response to such evil may be ably captured by reviewing the major international atrocity trials of the last half-century. And indeed, international law scholars have long been interested in assessing the impact and import of such trials. In legal circles, these trials (and Nuremberg in particular) have achieved somewhat mythical status. Often praised for their commitment to the substantive criminalisation and de-politicisation of mass-crimes, they are also subject to academic panegyrics for their perceived commitment to the principle that all trials, regardless of defendant or circumstance, must be “fair” and conducted with “due process.” In and of itself, this commitment appears uncontroversial—but in the context of mass-crime trials such as those used in the prosecutions of Nazi war criminals and, of late, the murderers of Yugoslavia and Rwanda, the unquestioning commitment to a defendant’s due process rights is not without its costs. This paper examines some of those costs and attempts to place Nuremberg in a broader historical context that reveals its institutional commitment to pageantry as much as process.

International law, Nuremberg, genocide, Hussein, trials

Abstract:
Like all technologies, nanotechnology will inevitably present risks, whether they result from unintentional effects of otherwise beneficial applications or from the malevolent misuse of technology. Increasingly, risks from new and emerging technologies are being regulated at the international level, although governments and private experts are only beginning to consider the appropriate international responses to nanotechnology. In this paper, we explore both the potential risks posed by nanotechnology and potential regulatory frameworks that law may impose. In so doing, we also explore the various rationales for international regulation including the potential for cross-boundary harms, sharing of regulatory expertise and resources, controlling protectionism and trade conflicts, avoiding a "race to the bottom" in which governments seek economic advantage through lax regulation, and limiting the "nano divide" between North and South. Finally, we examine some models for international regulation and offer tentative thoughts on the prospects for each.

nanotechnology, regulation, international law, technology

Abstract:
Risk management of nanotechnology is challenged by enormous uncertainties about the properties, risks, benefits, and future direction of nanotechnology applications. Because of these uncertainties, traditional risk management principles including acceptable risk, cost-benefit analysis and feasibility are unworkable, as is the more recent precautionary principle. Yet simply waiting for these uncertainties to be resolved before attempting to manage nanotechnology risks would not be prudent, in part because of growing public concerns driven by risk perception heuristics such as affect and availability. A more reflexive, incremental, and cooperative approach is required. Such an approach will not only help manage emerging risks from nanotechnology, but will also serve as a model for managing future technologies.

Technology, Psychology, Heuristics, Nanotechnology, Regulation, International, precautionary, risk regulation, risk perception, voluntary programs, norms

Abstract:
Risk management of nanotechnology is challenged by the enormous uncertainties about the risks, benefits, properties, and future direction of nanotechnology applications. Because of these uncertainties, traditional risk management principles such as acceptable risk, cost-benefit analysis, and feasibility are unworkable, as is the newest risk management principle, the precautionary principle. Yet, simply waiting for these uncertainties to be resolved before undertaking risk management efforts would not be prudent, in part because of the growing public concerns about nanotechnology driven by risk perception heuristics such as affect and availability. A more reflexive, incremental, and cooperative risk management approach is required, which not only will help manage emerging risks from nanotechnology applications, but will also create a new risk management model for managing future emerging technologies.

technology, heuristic, risk, regulation, uncertainty, braithwaite, model, emerging, psychology, precautionary

Abstract:
The rule of law is no simple subject; indeed, it is not even an easy task to define what "rule of law" means. Yet people go to great lengths to demonstrate their adherence to the principles of the rule of law. An underlying assumption of those who advocate a formal view of the rule of law is that there is inherent value in adhering to rules. But is that assumption valid? Of what importance are rules, and what consequences do those who violate rules suffer in the eyes of others?

In this Article, we present the findings of a factorial survey exploring questions about the rule of law. Although respondents expressed nearly unanimous support for the general importance of the rule of law, their judgments in response to the case scenarios showed strong sensitivity to the particulars of the situation - especially the purposes that motivated the violations. These findings lend support to the view that whatever the cultural or psychological preference for rules over outcomes, or strict equality over fairness, there may be circumstances in which most people are willing to make situation-specific reassessments of what is just.

Rule of law, survey, legitimacy, justice, procedural justice, psychology

Abstract:
This Article is divided into five parts.

In Part II, we summarize the development of concepts of privacy and confidentiality, and examine how legal and statistical communities have reacted to two major changes in the privacy landscape of the last twenty years. The first is the challenge brought by new online and potentially privacy invasive technologies. The second is the privacy and security effects of September 11th. We argue that law's innovations, perhaps reactive to overwrought public concerns regarding privacy and the aftershocks of September 11th, represent real challenges to traditional notions of data access, confidentiality, and respondent trust. Finally, we review statistical societies' quick condemnation of many of the privacy- and trust-erosive measures contained in post-September 11th legislation and their lobbying to overturn the most egregious of these.

In Part III, we provide a basic framework for enacting future privacy legislation to govern federal statistical agencies. We argue that federal agencies, and the laws that govern their conduct, should be framed with three broad principles in mind: (i) a commitment to bureaucratic justice; (ii) a level of regulatory coherence that justifies choices made; and (iii) a flexibility that allows anticipation of, rather than merely post hoc response to, challenges posed by future technology and methods. In so doing, we note that law's previous attempts to maneuver between these principles have often resulted in second-best solutions, changing with shifting public opinions that are, themselves, based on various cognitive processes that result in consistent and recognizable errors. We argue that laws that fail to consider methods available in computer science and statistics often underestimate the privacy threats posed by seemingly nonindividually identifiable data disclosures. Such laws also overlook, to the detriment of the trust-based statistical regime that has proven so successful for two centuries, the importance of statistical associations' ethical standards for determining appropriate disclosures.

In Part IV, we set out various statistical methods that have been, and could be, employed to protect the confidentiality of data released to the public or government agencies. In describing these options, we discuss the limitations inherent in each and note the law's continuing role in enforcing these measures.

Finally, in Part V, we conclude that increased dialogue between our disciplines can, and should, result in a better privacy regime that combines sound statistical methods designed to protect anonymity where appropriate, with legal enactments that promote legitimate sharing yet punish abuses. In so doing, we provide some specific approaches for legislating privacy that account for the trust needed to make statistical programs successful and for the data access and disclosure so important for the challenges currently facing this country.

Privacy, Census, Trust, Cognition, Behavioral, History, Statistics, Confidentiality, Institutional Theory, NSA Wiretapping, Patriot Act

Abstract:
United States statistical programs and practices are among the best in the world. Lurking underneath this success, however, is a riddle - given the potential for abuse and harm, why do Americans willingly hand over their personal information to government data collection programs? In this article, we seek an answer to this riddle by examining the evolution of United States legal and statistical programs, with a particular focus on the United States Census of Population. In so doing, we explore the statistical programs, policies, regulations, and codes of ethics that have evolved in the United States over the past two centuries. We conclude that the willingness of individuals to disclose their personal information is not linked to programs of legal coercion or to simple cost/benefit analyses. Instead, we note that the intent of United States statistical programs has been to increase the level of trust and confidence that individuals have that their information will be kept strictly confidential. Various legal frameworks and the promulgation of statistical society codes of ethics buttress our basic conclusion that trust is an essential characteristic of a successful and efficient modern statistical program. We conclude by noting some recent developments that may threaten this trust program, including post 9/11 national security efforts, the rise of new data-gathering and analysis technologies, and the increasing use of private data collectors for government statistical programs.

Privacy, Census, Trust, Cognition, Behavioral, History

Abstract:
The rise of the internet and electronic commerce has transformed United States trademark law in significant ways. The technological and structural choices that created the internet spawned online trademark uses that challenged traditional legal doctrines governing the power of trademark owners to control the uses of their marks. The result of these challenges has been the rapid expansion of prior doctrines to apply to these new issues, with somewhat dubious reasoning, and the creation of new causes of action to protect trademark owners' interests. Although the final impact of the internet has yet to be felt, some basic conclusions may be drawn: (i) courts and regulators in the United States have rapidly expanded trademark owners' rights; (ii) the pace of technological change will continue to challenge existing laws and interpretations; and (iii) United States legal decision makers should be mindful of the possible future effects of the doctrines they espouse. In this essay, I focus on two areas: (i) cybersquatting and dilution; and (ii) metatagging, keywords, and initial interest confusion. Although these two areas provide only a taste of the legal issues raised by online trademark usage, they capture the basic approach that lawmakers have taken in the face of technological challenge - protect trademark owners' interests.

trademarks, cyberspace

Abstract:
Entrepreneurs often look on the law as an inconvenience - an issue to be left for later when time and budget permit. Many reasons may explain this attitude. Early-stage ventures are often more concerned with payroll than paying attorneys for issues that do not seem to matter today. Lawyers contribute to this entrepreneurial malaise. They are trained to provide conservative advice - designing solutions around "worst-case" rather than "likely" scenarios.

Entrepreneurs are, by definition, risk-takers and out-of-the-box thinkers and are justifiably frustrated when legal counsel seems more of an impediment to ideas or opportunities rather than a facilitator. The widespread view that lawyers "always say no" is a major reason why entrepreneurs avoid legal advice - lawyers also often cost a lot.

These reasons and, we suspect, many others often lead entrepreneurs to ignore legal issues at the earliest stages of their ventures. Yet this is often the precise moment at which legal opinion and protection are most valuable. Unfortunately, as many find out too late, entrepreneurs ignore legal issues at their peril. The field of new business ventures is littered with companies that fail for no other reason than that their legal house was not in order. Some fail to defend their investments with appropriate intellectual property protections. Others sign contracts that included unknown onerous terms. Some fail to separate their knowledge from that of prior employers. Many entrepreneurs lose personal savings by failing to properly incorporate. Finally, in a post 9/11 environment, technology ventures that fail to account for changes in immigration laws and enforcement jeopardize, not just the business, but the visa-status of their employees and founders.

This Handbook seeks to encourage legal compliance and ordering by simply and accessibly introducing entrepreneurs to the most common areas of law that affect early-stage companies. From contracts to intellectual property, corporations to immigration, this Handbook serves as a primer on these important areas of law. Recognizing and identifying the legal issues that impact your ventures is the first step in ensuring that they do not endanger the health of the company.

Entrepreneurship, Intellectual Property, Immigration, Innovation, Copyright, patent, trademark

Abstract:
Forthcoming in Regulation and Governance (2009). Although it is often argued that government oversight is needed to assure public opinion does not mistakenly view nanotechnology as dangerous or to restore public trust in government agencies, a question that we ask in this article, and one that implicates many of the themes raised in the other papers in this symposium, is whether governments can truly play this role. In short, as the world lurches toward regulation of NT we should ask: Why the rush? Can anticipatory regulation, perceived as the government doing something, fulfill the competing hopes to "restore trust," "pave-the-way," "increase awareness," or "satisfy democratic notions of accountability"? Or, is regulation more likely to increase existing divisions about nanotechnology's future?

Nanotechnology, Regulation, Technology, Genetics, Genetically modified, Governance, Risk, Cognitive, Psychology, Culture, Public Engagement

Abstract:
As the restorative justice movement surges breathlessly forward, its proponents feel an irresistible urge to glance back. Discontented with the view that restorative justice is a novel and innovative approach to criminal justice, many scholars have begun to disseminate a far older ideological and institutional history than the scant 30 years or so that restorative justice has been considered a real criminal justice movement. John Braithwaite, considered by many as the world’s foremost scholar on restorative justice, has declared no less than that “restorative justice has been the dominant model of criminal justice throughout most of human history for all of the world’s peoples.” Others have added that “humans have used restorative justice for the larger part of their existence.”

These bold assertions, that restorative justice approaches are far older than retributivist or rehabilitative models, are more than just historical claims of equality - they are clear signals of legitimacy and illegitimacy. With this historical move, scholars are claiming not only that restorative justice approaches have modern utility, but also that they are more “traditional” than our modern approaches. These restorative justice histories are an attempt to show that modern justice is “bad” and that traditional justice, couched in restorative justice principles, is “good.” As proponents have argued “[f]orms of restorative justice, as we could find them in acephalous and especially in early state societies, seem to be the better answer to the crime problem of today’s societies.”

In this article, I explore the history put forward by these proponents and compare their uses of history to those often employed in the more mainstream narratives of feature fils. In the end, it appears that restorative justice scholars go too far in their uses of history. There is no need for restorative justice scholars to create a “golden age” of past mercy and restoration. The fact that past societies employed criminal justice processes that were simultaneously brutal, illiberal, and class-conscious, can be accepted. That these processes may have existed simultaneously with more restorative processes may be accepted - but even these processes, whether victim-oriented, or seeking to restore balance, are nevertheless radically incompatible with our current ideals of individual sovereignty and liberty. There is simply no reason why advocates need to create a false context about how “it used to be.” Instead, they should focus on what it should be. Tradition is a powerful force, but it is not the only force. Indeed, overreaching attempts to create history where one does not exist seem like a waste of mental effort and rhetorical capital.

Restorative Justice, History, Anthropology, Retribution, Vengeance, Hollywood, Law Office History, Objectivity, Methodology

Abstract:
Law's engagement with evil is nowhere as evident as in the trials of unquestionably evil men. The imaginative range of law's response to evil may be ably captured by reviewing the major international atrocity trials of the last half-century. From Nuremberg to Eichmann, Milosovic to Akeyasu, Tojo to Barbie, these trials represent the many problems of mastering judgment, memory, justice, and vengeance inherent in conflicts where the guilt of the defendant seems far less important than the desire to expose atrocities, heal a people, and transition from old to new regimes.

The recent capture and inevitable trial of Saddam Hussein raises these same questions - and an important new one. While acknowledging the wealth of thought and response arising out of the major atrocity trials of the last fifty years, this paper asks whether Hussein and other defendants like him, may be morally, legally, or wisely denied "basic" human rights such as the right to a fair trial or due process. The paper explores this question and wonders whether, despite theorists' concerns for slippery-slopes, a "legal pageant" that emphasizes symbolic and discursive ends may be morally and legally justified and may be substantively constructed to avoid the political excesses, and concomitant domestic legal instability, that many fear will occur.

This book chapter is an adapted version of a talk delivered at the Evil, Law & the State Conference at Oxford University (July 2004). The transcribed nature of the talk explains, in part, the at times strident and at other times overly glib analysis within. Despite these reservations, the underlying issue, whether some individuals are less deserving of due process than others, continues to be important.

Saddam Hussein, Genocide, Fair Trials, Due Process, Slobodan Milosevic, Nuremberg, Adolf Eichmann, International Law

Abstract:
The history of international law at the Founding is at the center of a continuing debate on the federal nature of international law in the modern age. In support of federal exclusivity, mainstream scholars have amassed an impressive array of judicial and political quotes from the 1780s and 1790s. The revisionists (those who argue against federal exclusivity) admit the existence of this language but argue that it can be dismissed as politically motivated at the time and as antiquarian from a modern legal perspective. However, a review of the sparse historical literature uncovers a surprising lack of context,either political or social, to support the various contested narratives. Despite, or perhaps because of, the surprising paucity of writings on this essential topic, the few that have been authored have had a far-reaching impact. The unfortunate result has been the further propagation of many myths about the nature of late eighteenth-century America and the role of the law of nations within it.

This paper seeks to place the political discourse of the law of nations into an intellectual, economic, and political history of the times. In so doing, I argue that the law of nations played a central role in formulating federal foreign policy and in shaping the early years of federal jurisdiction.

law of nations, international law, history, vattel, foreign policy, declaration of indepedence

Abstract:
In this Chapter, we set out the pivotal questions relating to the United States approach to nanotechnology and other emerging technologies. We note how the experiences of biotechnology regulation are likely to continue to inform United States approaches. After setting out these principles, we discuss three regulatory experiences and approaches that we believe do and will inform United States regulatory policy going forward. We examine the Coordinated Framework for the regulation of biotechnology and, in so doing, look at the actions of three separate agencies: (1) EPA; (2) FDA; and (3) NIOSH. We conclude with a high-level discussion of the various issues that remain unresolved in the United States approach.

nanotechnology, regulation, technology, biotechnology, EPA, FDA, NIOSH, risk

Abstract:
As policymakers struggle to develop regulatory oversight models for nanotechnologies, there are important lessons that can be drawn from previous attempts to govern other emerging technologies. Five such lessons are: (1) public confidence and trust in a technology and its regulatory oversight is probably the most important factor for the commercial success of a technology; (2) regulation should avoid discriminating against particular technologies unless there is a scientifically-based rationale for the disparate treatment; (3) regulatory systems need to be flexible and adaptive to rapidly changing technologies; (4) ethical and social concerns of the public about emerging technologies need to be expressly acknowledged and addressed in regulatory oversight; and (5) international harmonization of regulation may be beneficial in a rapidly globalizing world.

nanotechnology, regulation, international law, technology, international relations, soft law, biotechnology, genetics

Abstract:
Profs. Kenneth Abbott, Gary Marchant, and Douglas Sylvester argue that regulation of nanotechnology should be flexible and adaptive; innovative; international; and official. In order to meet these requirements, the authors call for negotiation of an international framework convention on nanotechnology as soon as possible. In response, Lynn Bergeson appreciates the inherent logic and appeal of their proposal, but questions whether the timing is right for the necessary parties to undertake the concerted effort needed to create such a convention. Similarly, David Rejeski applauds the idea, but wonders whether competitive pressures and government inaction leave any room for negotiation of such a convention or whether dramatic developments will be necessary to prompt action. On the other hand, Brent Blackwelder believes that the risks posed by nanotechnology are so great that there is no time to negotiate a convention and that a moratorium on nanotechnology should precede any other regulatory efforts.

nanotechnology, regulation, international law, technology, international relations, soft law, framework, convention, environmental, trade, Gatt, WTO, tobacco convention

Abstract:
In less than a decade, nanotechnology has exploded from a relatively obscure and narrow technical field to a scientific, economic, and public phenomenon. The precipitous emergence of such a broad and significant technology has created an unprecedented opportunity to craft new regulatory or oversight approaches on a clean slate. Indeed, discussions of appropriate forms of regulatory oversight for nanotechnology have shadowed the exponential growth of the technology itself, with a rapid proliferation in calls and proposals for regulation. The actual adoption of nanotechnology regulations, however, has increasingly lagged both the technology and the academic and policy debate.

Regulatory scholars, including ourselves, have raised the option of international harmonization since the outset of the discourse on nanotechnology regulation. Despite these initial calls for harmonization, however, very little has occurred and the time for progress in this area may be quickly dwindling. Ultimately, there are appealing arguments for harmonization, summarized in part I below. To be sure, for the reasons stated in part II, formal international regulation, as traditionally understood and applied, is unlikely to be feasible anytime soon. Yet less formal "governance" approaches may still hold promise for promoting the international coordination, if not harmonization, of nanotechnology regulation; we explore these approaches in Part III.

Nanotechnology, regulation, international law, technology, soft law, cognitive, harmonization, environmental

Abstract:
Regulatory oversight of nanotechnology is necessary yet problematic. The necessity of regulation, now or later, is driven by two related concerns. First, some nanotechnologies, if left unregulated, are likely to pose very real if currently unknowable risks of significant health or environmental damage. Second, public confidence in new technologies and in the regulatory agencies that govern them may be permanently damaged if injurious nanomaterials are released without adequate, or at least the perception of adequate, oversight.

Of late, we have seen numerous proposals for “soft law” solutions, at least in the short term, as well as the implementation of some soft law mechanisms. None are based on the traditional command–and-control approach, under which government agencies enact detailed regulatory requirements enforced by the threat of penalty. Instead, all reflect a variety of voluntary, cooperative or partnership approaches. However, although these approaches have many advantages, none of the currently operational regimes has fully achieved two obvious and oft-cited goals of nanotechnology regulation: (1) broad industry participation, with sufficient data submission to aid regulators in risk assessments; and (2) reassurance of public stakeholders as to government’s role in regulating emerging technologies.

This article therefore proposes another soft law option that may better achieve these goals. We propose a voluntary certification scheme under which companies that produce nanotechnology products may obtain a government-supervised certification for specific products if the firms subject those products to specified safety testing, data disclosure and risk management measures. Given differing national regulatory approaches, our proposal is designed primarily for the United States. However, there is nothing in the proposal that could not be adapted for use in other jurisdictions, indeed, nothing to prevent creation of an equivalent international scheme.

Part II sets up the need for new approaches by explaining why regulation of nanotechnology is largely infeasible under traditional approaches. Part III summarizes the experience and promise of current soft law regimes, as well as some of their limitations. This Part also identifies some features of successful certification systems and discusses their relevance to a nanotechnology certification system. Part IV introduces our proposal for a voluntary safety testing certification scheme, and discusses the ways in which such a scheme might gain the trust of consumers and other relevant audiences. Part V considers the elements of the scheme in greater detail. The final section is a brief conclusion.

nanotechnology, trust, certification, soft law, voluntary reporting, fda, reach, regulation, cognitive, psychology, governance, risk

Abstract:
In this article, we examine the legal and political controversy arising out of the execution of a Paraguayan national, Angel Breard, by the United States in violation of his rights under the Vienna Convention on Consular Relations. We examine the source, status, and judicial remedies of the Vienna Convention. We then place these treatments within the broader context of international individual rights in general. In this context, we conclude that the treatment of consular rights claims is consistent with American courts' international law jurisprudece of the last thirty years.

We also seek to place the Vienna Convention within the narrower context of criminal procedure doctrine and again demonstrate that the treatment of such claims is entirely consistent with prior case law. Despite our general rejection of scholarly criticism of Breard, we do conclude that the decision poses grave dangers for individual American citizens.

international law, criminal procedure, vienna convention, consular, death penalty, world court

Abstract:
Part I of this Article will review the factual background of the Alvarez-Machain decision and discuss the holding of the Court. Part H will critically examine the domestic precedents upon which the decision was founded. In so doing, it will show that these precedents did not require the decision that the Court reached. Part III will establish that the abduction of Alvarez-Machain did in fact violate customary international law, but will note that courts in the United States have become reluctant to apply that law against the executive. Part IV will place the courts' reluctance in the context of broad historical trends of jurisprudence. Part V will establish that, despite these trends, United States courts were originally intended to apply and enforce customary international law. Finally, Part VI will address and refute some of the major theoretical arguments against a modern judicial application of customary international law. In the end, this Article will argue that customary international law should be applied domestically against the executive, because to do so is consistent with history and with the Constitution, and is in the long-term international best interests of the United States.

Customary international law, state sovereignty, Alvarez-Machain

Abstract:
The book is reviewed on the basis of its success: (i) as a history of cyberspace; (ii) as a snapshot of current issues; and (iii) as a framework for addressing future problems. Well, hitting the trifecta is well-nigh impossible; in baseball, batting .666 is unreachable; and, as one poet has said "two out of three ain't bad".

cyberspace, internet, blackstone, legal history, framework, international, privacy

Abstract:
Alice Burks' book, 'Who Invented the Computer?' attempts to answer, once and for all, the question of who is the computer's true inventor. The book focuses on a patent infringement trial that, according to Burks, provides nearly all the answers to this question. This review questions those claims and examines the use of legal materials to support historical claims.

computers, history, patents, Mauchly, Atanasoff, Eniac, infringement