Piracy and Due Process

This article explores in depth the law of nations, English domestic law, and English government practice from the late medieval period through the eighteenth century, and the U.S. constitutional law and government practice during the Founding and antebellum periods. I conclude that Chapman’s claims about due process and piracy suppression are incorrect. Both Parliament and the U.S. Congress; both the Crown and its counselors and U.S Presidents and their advisers; both the Royal Navy and the U.S. Navy; and commentators both English and American believed that (1) pirates on the high seas could lawfully be subject to extrajudicial killing, but that (2) the criminal justice system was usually the preferred approach to dealing with pirates, and when tried for their crimes in English or American territory respectively, accused pirates were entitled to due process of law

Disappearing Legal Black Holes and Converging Domains: Changing Individual Rights Protection in National Security and Foreign Affairs

This Essay attempts to describe what is distinctive about the way the protection of individual rights in the areas of national security and foreign affairs has been occurring in recent decades. Historically, the right to protection under the U.S. Constitution and courts has been sharply limited by categorical distinctions based on geography, war, and, to some extent, citizenship. These categorical rules carved out domains where the courts and Constitution provided protections and those where they did not. The institutional design and operating rules of the national security state tracked these formal, categorical rules about the boundaries of protection. There have been many “legal black holes” historically, domains where legal protections did not exist for certain people. Foreign affairs and national security have historically been areas defined by their legal black holes. In recent years, legal black holes are disappearing, and previously distinct domains are converging. The importance of U.S. citizenship to protection under the Constitution and courts is decreasing, formal barriers to legal protection and judicial review based on geography and war are dissolving, and the dissolution of these categorical boundaries is changing the design and operation of the national security state. National security and foreign affairs law is being domesticated and normalized, as rights protections available in ordinary, domestic, peacetime contexts are extended into what were previously legal black holes. The jurisprudence of categorization and boundary-marking is fading away. The core of this Essay identifies, names, and discusses these trends, seeking to give a vocabulary and conceptual and historical coherence to current discussions of individual rights protection in national security and foreign affairs contexts. Secondarily, this Essay suggests some factors that might be driving convergence and closing of legal black holes today. Because most of these potential causal drivers are still exerting their force on the shape of the law, this Essay concludes that the future of national security law will likely see more convergence and fewer black legal holes and then offers several specific predictions

Congress’s Under-Appreciated Power to Define and Punish Offenses against the Law of Nations

Perhaps no Article I power of Congress is less understood than the power to define and punish . . . Offences against the Law of Nations. There are few scholarly works about the Clause; Congress, the Supreme Court, and the Executive Branch have seldom interpreted the Clause, and even then they have done so in a cursory and contradictory manner. Relying on textual analysis and Founding-era history and political theory to read the Clause in a different mannner than previous commentators, this Article seeks to rescue the Clause from obscurity and thereby enrich current foreign affairs debates. Not only is the Clause a power to civilly or criminally regulate individuals when their conduct violates customary international law - as previous commentators have assumed - but it is also a power to punish states, both foreign and U.S. states, for violations of international law. This dual meaning of the Clause - operating on both individuals and states - results from the fact that the eighteenth-century law of nations was founded on an analogy between individuals and states. Relations between states in the international system were analogized to relations between individual people in the putative state of nature - made famous by Locke, Hobbes, Rousseau, and others - where mankind allegedly lived before entering civil society. In eighteenth-century thought, not only individuals but also states were capable of committing offences against the law of nations. And states, not just individuals, were liable to punish and be punished for such offenses. There are important implications of this dual reading of the Constitution\u27s Law of Nations Clause for current debates about the constitutional status of international law and the Constitution\u27s textual division of war and foreign policy powers between Congress and the President

Disappearing Legal Black Holes and Converging Domains: Changing Individual Rights Protection in National Security and Foreign Affairs

This Essay attempts to describe what is distinctive about the way the protection of individual rights in the areas of national security and foreign affairs has been occurring in recent decades. Historically, the right to protection under the U.S. Constitution and courts has been sharply limited by categorical distinctions based on geography, war, and, to some extent, citizenship. These categorical rules carved out domains where the courts and Constitution provided protections and those where they did not. The institutional design and operating rules of the national security state tracked these formal, categorical rules about the boundaries of protection. There have been many “legal black holes” historically, domains where legal protections did not exist for certain people. Foreign affairs and national security have historically been areas defined by their legal black holes. In recent years, legal black holes are disappearing, and previously distinct domains are converging. The importance of U.S. citizenship to protection under the Constitution and courts is decreasing, formal barriers to legal protection and judicial review based on geography and war are dissolving, and the dissolution of these categorical boundaries is changing the design and operation of the national security state. National security and foreign affairs law is being domesticated and normalized, as rights protections available in ordinary, domestic, peacetime contexts are extended into what were previously legal black holes. The jurisprudence of categorization and boundary-marking is fading away. The core of this Essay identifies, names, and discusses these trends, seeking to give a vocabulary and conceptual and historical coherence to current discussions of individual rights protection in national security and foreign affairs contexts. Secondarily, this Essay suggests some factors that might be driving convergence and closing of legal black holes today. Because most of these potential causal drivers are still exerting their force on the shape of the law, this Essay concludes that the future of national security law will likely see more convergence and fewer black legal holes and then offers several specific predictions

Congress’s Under-Appreciated Power to Define and Punish Offenses against the Law of Nations

Perhaps no Article I power of Congress is less understood than the power to define and punish . . . Offences against the Law of Nations. There are few scholarly works about the Clause; Congress, the Supreme Court, and the Executive Branch have seldom interpreted the Clause, and even then they have done so in a cursory and contradictory manner. Relying on textual analysis and Founding-era history and political theory to read the Clause in a different mannner than previous commentators, this Article seeks to rescue the Clause from obscurity and thereby enrich current foreign affairs debates. Not only is the Clause a power to civilly or criminally regulate individuals when their conduct violates customary international law - as previous commentators have assumed - but it is also a power to punish states, both foreign and U.S. states, for violations of international law. This dual meaning of the Clause - operating on both individuals and states - results from the fact that the eighteenth-century law of nations was founded on an analogy between individuals and states. Relations between states in the international system were analogized to relations between individual people in the putative state of nature - made famous by Locke, Hobbes, Rousseau, and others - where mankind allegedly lived before entering civil society. In eighteenth-century thought, not only individuals but also states were capable of committing offences against the law of nations. And states, not just individuals, were liable to punish and be punished for such offenses. There are important implications of this dual reading of the Constitution\u27s Law of Nations Clause for current debates about the constitutional status of international law and the Constitution\u27s textual division of war and foreign policy powers between Congress and the President

Current-induced switching in single ferromagnetic layer nanopillar junctions

Current induced magnetization dynamics in asymmetric Cu/Co/Cu single magnetic layer nanopillars has been studied experimentally at room temperature and in low magnetic fields applied perpendicular to the thin film plane. In sub-100 nm junctions produced using a nanostencil process a bistable state with two distinct resistance values is observed. Current sweeps at fixed applied fields reveal hysteretic and abrupt transitions between these two resistance states. The current induced resistance change is 0.5%, a factor of 5 greater than the anisotropic magnetoresistance (AMR) effect. We present an experimentally obtained low field phase diagram of current induced magnetization dynamics in single ferromagnetic layer pillar junctions.Comment: 11 pages, 2 figure

Biodiversity change and livelihood responses: ecosystem asset functions in southern India

We investigate the livelihood responses of two ethnic communities in a village in southern India to changes in biodiversity arising from the invasion of forest by Lantana camara. The invasion of forest by Lantana has led to changes in the attributes and functions of four key livelihood assets: forest grazing, bamboo for basketry, palm leaf collection, and wild foods. We observe that differences in households’ and individuals’ ability to substitute important functions of lost or declining assets affects their ability to adapt to changes in resource availability and attributes. A focus on change in the attributes of key livelihood assets provides a useful lens through which to look at impacts of environmental change. Analysing changes in attributes for different user groups encourages the social effects of environmental change to be disaggregated, thus acknowledging social differentiation of impacts

Conceptualizing assets and asset services in livelihoods and ecosystem analyses for poverty reduction

Household assets are increasingly seen as critical in poverty dynamics, both for reducing vulnerability and escaping poverty. Asset based approaches have thus become central to poverty analysis and development policy. In this paper we contend that for a better understanding of the role of assets in poverty reduction processes we need to consider asset ‘functions’ in addition to asset stocks. Further, we propose that an analysis of asset ‘attributes’ (the factors that enable an asset to preform a particular function) provides a useful mechanism to examine social and other determinants of asset services. Asset services (or functions) can be also conceptualized as ecosystem services and this presents an opportunity to integrate poverty analysis into ecosystem services frameworks. We present an Ecosystem Asset Function Framework and illustrate its potential to contribute to the analysis of the role of natural assets in poverty reduction with a case study of biodiversity change from southern India