Treaties as Law and the Rule of Law: the Judicial Power to Compel Domestic Treaty Implementation

The Supremacy Clause makes the Constitution, federal statutes, and ratified treaties part of the supreme law of the land. Despite the textual and historical clarity of the Supremacy Clause, some courts and commentators have suggested that the non-self-executing treaty doctrine means that ratified treaties must await implementing legislation before they become domestic law. The non-self-executing treaty doctrine has in particular been used as a shield to claims under international human rights treaties. This Article does not seek to provide another critique of the non-self-executing treaty doctrine in the abstract. Rather, I suggest that a determination that a treaty is non-self-executing only means that the treaty of its own force does not provide a private individual with cause of action. The treaty nonetheless remains domestic law under the Supremacy Clause. It is my contention that where a human rights treaty requires domestic implementation, that duty of implementation may be judicially enforced by mandamus relief. Although U.S. policymakers may attempt to modify the treaties they ratify to obviate any duty of domestic implementation, they may not do so by reliance on a misinterpretation of the non-self-executing treaty doctrine nor may they do so by a Senate declaration of non-self-execution. In short, ratified treaties are part of our law. And it is not only international law, but also our Constitution, that is flouted when the government refuses to comply with the supreme law it voluntarily creates upon ratifying a treaty

Trust Me, I\u27m a Judge: Why Binding Judicial Notice of Jurisdictional Facts Violates the Right to Jury Trial

This Article contends that the predominant practice of federal courts of completely removing the jurisdictional element from the jury violates the Sixth Amendment right to jury trial and Rule 201. Part II of this Article discusses the problems raised by binding judicial notice of the jurisdictional element of federal criminal offenses. Part III gives an overview of the factual, constitutional, and statutory prerequisites for land to fall within the special territorial jurisdiction of the United States. Part IV briefly describes the circumstances in which courts may properly take judicial notice under Rule 201. Part V discusses the requirements for judicial notice in criminal cases and the legislative history and purpose of Rule 201(g). Part VI examines selected criminal cases regarding judicial notice of jurisdictional facts. Part VII examines Supreme Court precedent on the proper division between the judge and the jury in criminal trial and explains why appellate courts should not apply the harmless error standard of review where the trial court has effectively directed a verdict in favor of the prosecution. I conclude in Part VIII by providing a proposal whereby federal courts can respect the Sixth Amendment and Rule 201(g) while still attending to the practicalities of real-world criminal litigation

Trust Me, I\u27m a Judge: Why Binding Judicial Notice of Jurisdictional Facts Violates the Right to Jury Trial

This Article contends that the predominant practice of federal courts of completely removing the jurisdictional element from the jury violates the Sixth Amendment right to jury trial and Rule 201. Part II of this Article discusses the problems raised by binding judicial notice of the jurisdictional element of federal criminal offenses. Part III gives an overview of the factual, constitutional, and statutory prerequisites for land to fall within the special territorial jurisdiction of the United States. Part IV briefly describes the circumstances in which courts may properly take judicial notice under Rule 201. Part V discusses the requirements for judicial notice in criminal cases and the legislative history and purpose of Rule 201(g). Part VI examines selected criminal cases regarding judicial notice of jurisdictional facts. Part VII examines Supreme Court precedent on the proper division between the judge and the jury in criminal trial and explains why appellate courts should not apply the harmless error standard of review where the trial court has effectively directed a verdict in favor of the prosecution. I conclude in Part VIII by providing a proposal whereby federal courts can respect the Sixth Amendment and Rule 201(g) while still attending to the practicalities of real-world criminal litigation

\u3ci\u3eWhren\u3c/i\u3e\u27s Flawed Assumptions Regarding Race, History, and Unconscious Bias

I want to talk very briefly about some of the flaws in Whren as a matter of constitutional history, doctrine, and social psychology. Those issues have been discussed throughout this symposium, so I will only touch upon them briefly. I will then discuss some legal developments in equal protection doctrine post-Whren. Finally, I will suggest a possible path forward. A great deal of my scholarship over the years has been in the field of the Thirteenth Amendment. I will, therefore, suggest that we can reconceptualize racially motivated, pretextual police encounters as a Thirteenth Amendment issue rather than as either a Fourth Amendment issue or a Fourteenth Amendment issue

First Amendment: Freedom of Expression (Spring 2019 edition)

Students and other readers should be aware that this casebook is comprised almost entirely of court cases. Unlike many law school casebooks, this casebook contains relatively few interstitial summaries, notational materials, or secondary sources. That is by design. Inasmuch as this casebook was designed for teaching an upper-level law school survey course, I believed it to be important that the course materials reflect the fact that close reading and analysis of the actual case law and the ability to synthesize rules and doctrine from a line of cases are fundamental lawyering skills. These skills, in my opinion, can only be fully developed by doing it oneself rather than relying upon others’ summaries and analyses. This is not at all to suggest that summaries, critiques, and analyses of the law in the form of law review articles, treatises, scholarly books, practice guides, etc., are unimportant or unenlightening (I’ve written plenty of them myself, so I certainly hope they add value). Nor do I suggest that practicing lawyers do not or should not turn to secondary sources as may be appropriate in order to supplement their understanding of the case law (I certainly did in practice). Rather, the fact that this casebook consists almost exclusively of cases reflects a deliberate pedagogical choice: that upper-level law students have sufficient foundation in legal reasoning and common-law methods to be expected to engage extensively and intensively with primary source material (i.e., cases), while still benefitting from further skill building in the close reading of the facts and the law, case analysis, case synthesis, and the analogizing or distinguishing of precedent. I have taken a fairly light hand in editing the cases. I have tried to remove clearly extraneous information (such as parallel and pinpoint citations) and have sometimes chosen not to include all dissents and concurrences in the cases. Beyond that, I have refrained from editing the cases stylistically except where absolutely necessary for the sake of clarity. Students and other readers may therefore find that the cases seem lengthier (or are lengthier) than is typical in casebooks. My reason for this approach was to preserve the cases as near as reasonably possible to the form in which students would encounter them in practice. Last: this first edition consists primarily of Supreme Court cases, which I thought best for an introductory First Amendment course. I may reexamine this approach in future

Do semiclassical zero temperature black holes exist?

The semiclassical Einstein equations are solved to first order in $\epsilon = \hbar/M^2$ for the case of a Reissner-Nordstr\"{o}m black hole perturbed by the vacuum stress-energy of quantized free fields. Massless and massive fields of spin 0, 1/2, and 1 are considered. We show that in all physically realistic cases, macroscopic zero temperature black hole solutions do not exist. Any static zero temperature semiclassical black hole solutions must then be microscopic and isolated in the space of solutions; they do not join smoothly onto the classical extreme Reissner-Nordst\"{o}m solution as $\epsilon \to 0$.Comment: 5 pages, no figures, minor changes and corrections, to appear in Physical Review Letter

Light and flow regimes regulate the metabolism of rivers

Mean annual temperature and mean annual precipitation drive much of the variation in productivity across Earth's terrestrial ecosystems but do not explain variation in gross primary productivity (GPP) or ecosystem respiration (ER) in flowing waters. We document substantial variation in the magnitude and seasonality of GPP and ER across 222 US rivers. In contrast to their terrestrial counterparts, most river ecosystems respire far more carbon than they fix and have less pronounced and consistent seasonality in their metabolic rates. We find that variation in annual solar energy inputs and stability of flows are the primary drivers of GPP and ER across rivers. A classification schema based on these drivers advances river science and informs management.We thank Ted Stets, Jordan Read, Tom Battin, Sophia Bonjour, Marina Palta, and members of the Duke River Center for their help in developing these ideas. This work was supported by grants from the NSF 1442439 (to E.S.B. and J.W.H.), 1834679 (to R.O.H.), 1442451 (to R.O.H.), 2019528 (to R.O.H. and J.R.B.), 1442140 (to M.C.), 1442451 (to A.M.H.), 1442467 (to E.H.S.), 1442522 (to N.B.G.), 1624807 (to N.B.G.), and US Geological Survey funding for the working group was supported by the John Wesley Power Center for Analysis and Synthesis. Phil Savoy contributed as a postdoc- toral associate at Duke University and as a postdoctoral associate (contractor) at the US Geological Survey

Ovine pedomics : the first study of the ovine foot 16S rRNA-based microbiome

We report the first study of the bacterial microbiome of ovine interdigital skin based on 16S rRNA by pyrosequencing and conventional cloning with Sanger-sequencing. Three flocks were selected, one a flock with no signs of footrot or interdigital dermatitis, a second flock with interdigital dermatitis alone and a third flock with both interdigital dermatitis and footrot. The sheep were classified as having either healthy interdigital skin (H), interdigital dermatitis (ID) or virulent footrot (VFR). The ovine interdigital skin bacterial community varied significantly by flock and clinical condition. The diversity and richness of operational taxonomic units was greater in tissue from sheep with ID than H or VFR affected sheep. Actinobacteria, Bacteriodetes, Firmicutes and Proteobacteria were the most abundant phyla comprising 25 genera. Peptostreptococcus, Corynebacterium and Staphylococcus were associated with H, ID and VFR respectively. Sequences of Dichelobacter nodosus, the causal agent of ovine footrot, were not amplified due to mismatches in the 16S rRNA universal forward primer (27F). A specific real time PCR assay was used to demonstrate the presence of D. nodosus which was detected in all samples including the flock with no signs of ID or VFR. Sheep with ID had significantly higher numbers of D. nodosus (104-109 cells/g tissue) than those with H or VFR feet

Go-stimuli proportion influences response strategy in a sustained attention to response task

The sustained attention to response task (SART) usefulness as a measure of sustained attention has been questioned. The SART may instead be a better measure of other psychological processes and could prove useful in understanding some real-world behaviours. Thirty participants completed four Go/No-Go response tasks much like the SART, with Go-stimuli proportions of .50, .65, .80 and .95. As Go-stimuli proportion increased, reaction times decreased while both commission errors and self-reported task-related thoughts increased. Performance measures were associated with task-related thoughts but not taskunrelated thoughts. Instead of faster reaction times and increased commission errors being due to absentmindedness or perceptual decoupling from the task, the results suggested participants made use of two competing response strategies, in line with a response strategy or response inhibition perspective of SART performance. Interestingly, performance measures changed in a nonlinear manner, despite the linear Go proportion increase. A threshold may exist where the prepotent motor response becomes more pronounced, leading to the disproportionate increase in response speed and commission errors. This research has implications for researchers looking to employ the SAR