Amended Article 1 of Draft Protocol I to the 1949 Geneva Conventions: The Coming of Age of the Guerrilla

This article asserts that Captain David Graham, writing in this issue of the Washington and Lee Law Review, savages amended Article 1 of draft Protocol I to the 1949 Geneva Conventions. Specifically, he attacks the Article on the following grounds: (1) it is politically motivated by third-worlders determined to remake international law according to their own preferences; (2) it is poorly drafted and therefore cannot be implemented effectively; and (3) it would legitimize wars of national liberation and lead to discriminatory treatment of combatants. These are serious charges, raised by a serious scholar, whose closeness to the subject and to several members of the United States delegation to the Geneva Conference strongly suggest that his views reflect those of his government; and they merit an equally serious answer. Dean Bond details his answer in the following pages. Briefly summarized, it is this. The political motivation behind Article 1 is irrelevant in assessing its wisdom. Its drafting defects, while egregious, are not irremediable. Moreover, fears that Article 1 will compromise the effectiveness of the law of war are exaggerated: adoption of the amended Article will neither legitimize wars of national liberation nor lead to discriminatory treatment of combatants. Article 1, for all its weaknesses, represents a positive development in the- evolution of the law of war from a body of law applicable only to international armed conflict to a cohesive legal regime regulating serious armed conflict of all kinds

Eulogy for Jim Beaver February 29, 1996

Tribute to Professor James E. Beaver 1930-199

Proposed Revisions to the Law of War Applicable to Internal Conflict

This article features a careful analysis of the law of armed conflict as it applies to internal disputes. It also provides detailed proposals for modifications in the law of war to encompass the difficult problems of human rights involved in internal disputes

Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys

James E. Bond reviews Heuman’s Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys

Internal Conflict and Article Three of the Geneva Conventions

This article suggests that the laws of war should apply to internal conflicts. The legislative history of the present rules of war began in draft agreements before formally being expressed in international compacts, and that internal conflicts observe similar rules has also been advocated by scholars in draft agreements. It appeared in limited form Article Three of the 1949 Geneva Convention, which gives hope that something tangible will be developed by the United Nations to protect vulnerable populations during internal conflicts. The article continues that in the meantime Article Three should be utilized as a diplomatic tool to hold countries to their obligations to treat all humanely. States often ignore Article Three, but are receptive to explicit provisions. Despite the generalness of Article Three’s language, its purpose was to ameliorate the suffering caused by war. Finally, this article argues that the nature of the suffering, not the nature of the conflict, is the important factor to consider

Tribute to Andrew Walkover

In a tribute to Andrew Walkover, Dean James Bond revisits the first meeting he had with Professor Walkover. Dean Bond’s impression of Professor Walkover, with whom he worked for six months, was that he had a marvelous sense of humor, a shrewd insight into other people\u27s motivations, and a detached sense of compassion. He delighted in personalities and politics, and his colleagues delighted in him

The Court Years, 1939-1975: The Autobiography of William O. Douglas

This article is a book review that highlights William O. Douglas’s character and temperament, and suggests these very traits made his legacy on the Court a disappointment. Arguing that Douglas was uncommitted to judicial craft and simply championed cases close to his heart. The article bemoans Douglas’s lack of insight into constitutional adjudication, while noting the volumes anecdotal humor, the article cites the autobiography’s disingenuousness as cause to call it a work of fiction

The National Labor Relations Act and the Forgotten First Amendment

In this article Professor Bond discusses several points. First, the freedom of association principle, whatever its constitutional paternity, is now treated by the Court as one among first amendment equals. It is thus a fundamental right which the government may limit only for the most compelling reasons and then only in that way which least intrudes upon its exercise. Second, the relationship of an employee both to his employer and to his fellow employees involves associational rights of the kind guaranteed and protected by the first amendment. Third, the exclusive representation rule\u27 of the National Labor Relations Act seriously interferes with those associational rights for reasons that cannot be fairly characterized as compelling. Moreover, the exclusive representation rule, hardly the least intrusive means by which the government might solve the problems allegedly mitigated by its observance, may in fact exacerbate those very problems. Consequently, fourth, the Court should strike down the exclusive representation rule as an abridgement of both employees\u27 and employers\u27 freedom of association rights under the first amendment. The freedom of association principle at full tide will thus sweep legal doctrine back to the high water mark reached before the freedom of contract principle began to ebb

The Original Understanding of the Fourteenth Amendment in Illinois, Ohio, and Pennsylvania

The fourteenth amendment is a second American Constitution, the new birth of freedom for which Lincoln had prayed at Gettysburg. It nationalized the protection of civil liberty and thereby revolutionized the structure of American government. In the three great clauses of its first section it guarantees the privileges and immunities of citizenship, the equal protection of the laws, and due process of law. These guarantees are the bedrock upon which the American regime of individual liberty rests. Stated as principles, these guarantees presumably embodied a particular view of man and his relationship to government. The nature of that view is of more than antiquarian interest because it should inform contemporary interpretation of those guarantees. Indeed, litigants frequently invoke, and courts frequently cite, the original understanding. These invocations and citations do not, however, reflect any consensus about the original understanding. In search of the original understanding lawyers and judges have mined many sources but have left untapped one major vein: the state ratification debates. This article reviews the state ratification debates in Pennsylvania, Ohio, and Illinois. Then as now these states were major electoral battlegrounds. In all three states the two parties fielded strong candidates and ran well-organized campaigns. Many of the nationally recognized proponents of the 14th amendment hailed from these states. Those among them who faced re-election were marked men. President Johnson himself made his famous “swing around the circle, defending My Policy in major cities in all three states. The President was only the most prominent of the many well-known outsiders who crisscrossed these states in a desperate attempt to influence the decision. Throughout the summer and fall of 1866 this debate riveted the public\u27s attention on the single issue of ratification