Beyond Reparations: An American Indian Theory of Justice

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

“Because That\u27s Where the Money Is”: A Theory of Corporate Legal Compliance

The study and regulation of firms per se as agents of compliance may be misguided. Firms are abstractions that exist only in the legal, and not the natural, sense, and, as such, utterly lack decisional capacity. Firms do not decide whether to comply with law; people, specifically officers who exercise decisional authority on their behalf, do. Any theory that would explain or predict firm compliance must account for the individual level of analysis. However, most corporate legal compliance research minimizes the salience of personality. Accordingly, Part II traces associations between personalities of CEOs and firm compliance with obligations arising under corporate law. Part III presents historical data to test heuristically the proffered theory and offer explanations and predictions of firm behaviors regarding corporate legal compliance (CLC). Part IV, followed by a Conclusion, anticipates criticisms and suggests future research to build upon evidence that selection of CEOs on the basis of CLC propensities bears on firm survivability and prosperity, as well as on the orderly and legitimate function of the political economy

Barbarians at The Gates: A Post-September 11th Proposal to Rationalize the Laws of War

My article, Barbarians at the Gates: A Proposal to Rationalize the Laws of War. The piece proposes that in the War on Terror a new approach to the laws of war is necessary to harmonize the functional purpose of the law of war with the nature of the threat presented by terrorism to civilization

In the Minds of Men: A Theory of Compliance with the Laws of War

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

Correcting Thermal Deformations in an Active Composite Reflector

Large, high-precision composite reflectors for future space missions are costly to manufacture, and heavy. An active composite reflector capable of adjusting shape in situ to maintain required tolerances can be lighter and cheaper to manufacture. An active composite reflector testbed was developed that uses an array of piezoelectric composite actuators embedded in the back face sheet of a 0.8-m reflector panel. Each individually addressable actuator can be commanded from 500 to +1,500 V, and the flatness of the panel can be controlled to tolerances of 100 nm. Measuring the surface flatness at this resolution required the use of a speckle holography interferometer system in the Precision Environmental Test Enclosure (PETE) at JPL. The existing testbed combines the PETE for test environment stability, the speckle holography system for measuring out-of-plane deformations, the active panel including an array of individually addressable actuators, a FLIR thermal camera to measure thermal profiles across the reflector, and a heat source. Use of an array of flat piezoelectric actuators to correct thermal deformations is a promising new application for these actuators, as is the use of this actuator technology for surface flatness and wavefront control. An isogrid of these actuators is moving one step closer to a fully active face sheet, with the significant advantage of ease in manufacturing. No extensive rib structure or other actuation backing structure is required, as these actuators can be applied directly to an easy-to-manufacture flat surface. Any mission with a surface flatness requirement for a panel or reflector structure could adopt this actuator array concept to create lighter structures and enable improved performance on orbit. The thermal environment on orbit tends to include variations in temperature during shadowing or changes in angle. Because of this, a purely passive system is not an effective way to maintain flatness at the scale of microns over several meters. This technology is specifically referring to correcting thermal deformations of a large, flat structure to a specified tolerance. However, the underlying concept (an array of actuators on the back face of a panel for correcting the flatness of the front face) could be extended to many applications, including energy harvesting, changing the wavefront of an optical system, and correcting the flatness of an array of segmented deployable panels

Improved models of upper-level wind for several astronomical observatories

An understanding of wind speed and direction as a function of height are critical to the proper modeling of atmospheric turbulence. We have used radiosonde data from launch sites near significant astronomical observatories and created mean profiles of wind speed and direction and have also computed Richardson number profiles. Using data from the last 30 years, we extend the 1977 Greenwood wind profile to include parameters that show seasonal variations and differences in location. The added information from our models is useful for the design of adaptive optics systems and other imaging systems. Our analysis of the Richardson number suggests that persistent turbulent layers may be inferred when low values are present in our long term averaged data. Knowledge of the presence of these layers may help with planning for adaptive optics and laser communications.Comment: 21 pages, 15 Figures, 8 table

Marshall University Music Department Presents the Faculty Woodwind Quintet

https://mds.marshall.edu/music_perf/1079/thumbnail.jp