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Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation
Brian G. Slocum
Consider this court case: a defendant has traded a gun for drugs, and there is a criminal sentencing provision that stipulates an enhanced punishment if the defendant “uses” a firearm “during and in relation to a drug trafficking crime.” Buying the drugs was obviously a crime—but can it be said that the defendant actually “used” the gun during the crime? This sort of question is at the heart of legal interpretation.
Legal interpretation is built around one key question: by what standard should legal texts be interpreted? The traditional doctrine is that words should be given their “ordinary meaning”: words in legal texts should be interpreted in light of accepted standards of communication. Yet often, courts fail to properly consider context, refer to unsuitable dictionary definitions, or otherwise misconceive how the ordinary meaning of words should be determined. In this book, Brian Slocum builds his argument for a new method of interpretation by asking glaring, yet largely ignored, questions. What makes one particular meaning the “ordinary” one, and how exactly do courts conceptualize the elements of ordinary meaning? Ordinary Meaning provides a much-needed, revised framework, boldly instructing those involved with the law in how the components of ordinary meaning should properly be identified and developed in our modern legal system.
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Pollution of shared freshwater resources in international law
Stephen C. McCaffrey
Stephen C. McCaffrey, Pollution of Shared Freshwater Resources in International Law, in Transboundary Pollution Evolving Issues of International Law and Policy, at 81 (S. Jayakumar, Tommy Koh, Robert Beckman & Hao Duy Phan eds., Edward Elgar 2015).
This important new book provides a comprehensive overview of the international legal principles governing transboundary pollution. In doing so, the experts writing in this book examine the practical applications of the State responsibility doctrine in this context. The editors bring together leading scholars and practitioners to analyse the international legal framework and cooperative mechanisms that have been developed to address this pressing issue. The book also includes case studies of Asia and Southeast Asia to demonstrate how international law governing transboundary pollution has evolved and been applied in practice.
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The Victims’ Court? A Study of 622 Victim Participants at the International Criminal Court
Alexa Koenig, Mychelle Baltharzard, Eric Stover, and Stephen Smith Cody
When the International Criminal Court (ICC) was created in 1998, its founders hailed it as a “victims’ court,” one that would give survivors of mass atrocity an influential voice in the administration of justice. In the nearly two decades since its establishment, thousands of victims have been registered as “victim participants,” and thousands more have applied to the court for acceptance. However, there is now widespread agreement, both inside and outside of the court, that the ICC victim participation programs need reform. Court staff and outside observers have argued that current levels of outreach, care, and support are inadequate and incorporation of the views of so many victims is unworkable. Both defense and prosecution teams have also questioned whether victims’ representations, filings, and testimony have sometimes had an adverse effect on the fairness of ICC trials.
But what of the victim participants themselves? What motivated these men and women to become victim participants? Was it to tell their story and to have it acknowledged by the court? Did they wish to see the accused punished? Or was it more important to receive reparations for the harms they suffered? What did they think of the process of becoming a victim participant? What were their perceptions of the court and how it operated? How were their interactions with court staff? And did they have security or safety concerns?
To explore these and other questions, we interviewed ICC victim participants in four countries where the ICC had initiated investigations and prosecutions of serious international crimes — Uganda, Democratic Republic of Congo, Kenya, and Côte d’Ivoire. Our interviews with 622 victim participants and dozens of key informants strongly suggest that the ICC has reached a critical juncture in its victim participation program. It is our view that the court must either invest more resources and think more creatively about how it can meet the pragmatic and psychosocial needs of victim participants in its present form or revamp the program entirely. Despite admirable efforts by ICC staff, both in The Hague and in victims’ home countries, most victim participants, our findings indicate, have only a rudimentary knowledge of the ICC and its mandate. They want more contact with the court, are deeply frustrated by the slow pace of the proceedings, and expect to receive individual reparations. What remains to be seen is if the ICC (and the states that support it) can make the necessary reforms to meet these expectations. -
Banking Law and Regulation
Michael P. Malloy
The second edition of this study, supplemented three times a year, brings into sharp focus a cascading series of events that have transformed the financial services industry in ways that would have seemed close to incredible when the first edition was published in 1994. Many dramatic developments in the twenty-first century have reshaped the regulation of banks, savings associations, credit unions, and other financial services firms. This exhaustive work provides discussion and analysis of financial services regulation, including extensive treatment of the Dodd-Frank Wall Street Reform and Consumer Protection Act—not just an isolated discussion of the Dodd-Frank Act but a fully integrated treatment of the impact of the act on all topics covered in this study. In addition, the work offers detailed discussion of all major regulatory developments of the past two decades, affecting regulatory structures, formation, branching, management, control transactions, corporate powers, securities regulation and securities activities, holding company activities, mergers and acquisitions, conversions, troubled and failing institutions, systemic risks, and international regulatory policy.
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Bearing Witness at the International Criminal Court: An Interview Survey of 109 Witnesses
Alexa Koenig, Stephen Smith Cody, Eric Stover, and Robin Mejia
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Core Principles for Effective Banking Supervision: New Concepts and Challenges
Michael P. Malloy
Michael P. Malloy, Core Principles for Effective Banking Supervision: New Concepts and Challenges, in Selected Legal Issues in Economics 11 (David A. Frenkel, ed., Athens Inst. for Educ. and Res. 2014).
This paper examines certain fundamental issues raised by the existence and application of the newly revised Core Principles for Effective Banking Supervision. First, what expectations are imposed upon jurisdictions that adopt the Core Principles? Second, are the Core Principles an effective response to the international financial crisis? Third, what is the legal status of the Core Principles–mere guidelines, a significant new source of law in international practice, or something in between? The paper argues that the Core Principles represents a distinctive and highly effective approach to the coordination of legal norms across borders that, in the context of international banking practice, may operate as a set of functionally binding norms – and possibly a new source of law in international practice.
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Engaging First-Year Law Students by Treating Them Like Colleagues
Michael Hunter Schwartz and Scott Abbott
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First Responders: An International Workshop on Collecting and Analyzing Evidence of International Crimes
Stephen Smith Cody, Alexa Koenig, Andrea Lampros, and Julia Rayner
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Immigration Federalism and Rights
Raquel Aldana
Chapter 4 in Immigration Regulation in Federal States (Sasha Baglay and Delphine Nakache, eds., Springer 2014).
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The International Law of Property
John G. Sprankling
This is the first book to explore the subject of international property law. While traditionally viewed as a national concern, identifiable areas of property law have emerged at the international level; the foundation is now being laid for a comprehensive regime. The evolution of international property law was influenced by major economic, political, and technological changes, including the embrace of private property by former socialist states after the Cold War; globalization of investments and trade; the birth of new technologies for exploiting the global commons; and increasing recognition of the human right to property. The first section of the book analyzes how international law impacts rights in specific types of property. It creates property rights in certain situations, such as rights in aboriginal lands and satellite orbits. In other areas, it harmonizes property rights that arise at the national level, such as rights in intellectual property and security interests in personal property. Finally, it sometimes restricts or prohibits the property rights that may be recognized at the national level, such as rights in celestial bodies, contraband, and humans. The second section of the book develops the thesis that a global right to property should be recognized as a general matter as to all types of property, not merely as a moral precept but rather as an entitlement that all states must honor. It examines five components of the global right: the rights to (a) acquire; (b) use; (c) destroy; (d) exclude; and (e) transfer.
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A Reflection on Transitional Justice in Guatemala 15 Years After the-Peace Agreements
Raquel Aldana
Chapter 18 of Victims of International Crimes: An Interdisciplinary Discourse 297 (Thorsten Bonacker & Christoph Safferling, eds., Springer 2013).
This chapter is a reflection of what the wartime prosecutions in Guatemala have achieved in the past fifteen years since the signing of the peace agreements. Through their participation in emblematic wartime cases in Guatemala, victims have infused the justice system with accountability to make it harder for individual prosecutors or judges to dismiss the cases; they have brought resources that have resulted in better investigations, better trials and better evidence and even more protection for the brave prosecutors and judges and they have creatively pushed the boundaries of law to advance criminal law and procedural doctrines in accordance with international legal developments. However, these heroic efforts in important individual cases have yielded few lasting reforms in the judicial system of Guatemala. It is time for Guatemala to acknowledge that it has asked too much the victims and to consider alternative models for addressing the persistent and endemic problems of transitional justice in the country.
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Colorado River Basin Water Management: Evaluating and Adjusting to Hydroclimatic Variability
Stephen C. McCaffrey
Contributor
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Governing Foolishness: A Comparative Analysis of Executive Compensation Rules
Michael P. Malloy
Michael P. Malloy, Governing Foolishness: A Comparative Analysis of Executive Compensation Rules, in Economy and Commercial Law - Selected Issues 31 (David A. Frenkel, ed., Athens Inst. for Educ. & Res. 2013).
This paper explores three approaches to limits on executive compensation as responses to the current financial crisis. Each approach has been established or endorsed by a different policy making institution. The first approach is the executive compensation provision of the Dodd-Frank Act, which was enacted as the U.S. Government’s principal response to the financial crisis. The second approach is the European Commission’s Green Paper on executive compensation, issued just weeks before enactment of the DFA and with much the same intention. The third approach is a set of non-binding guidelines issued by the Basel Committee on Banking Supervision based at the Bank for International Settlements in Basel, Switzerland. Only the third approach is specifically intended for use in the supervision of financial services firms; the other two impose or recommend requirements on executive compensation. Despite a flurry of public attention over a few causes célèbres, in which corporate executives had their compensation threatened or actually curtailed, current empirical data on executive compensation strongly suggest that these limitations on executive compensation are of negligible effect. The paper argues that these limits are a distraction from the real issues in the financial services markets, like, for example, fraud, manipulation, gross negligence during the run-up to the crisis.
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The codification of universal norms: A means to promote cooperation and equity?
Stephen C. McCaffrey
The codification of law is a practice of long standing. This chapter looks at its use and the functions it may serve in the field of international water law. After providing a brief background on codification in general, the chapter examines more specifically efforts to codify norms of customary international law relating to the utilization of international watercourses, focusing on work within the context of the United Nations. Finally, the chapter surveys evidence on the question posed in its title: whether the codification of international water law promotes cooperation and equity.
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What the best law teachers do
Michael Hunter Schwartz, Gerald F. Hess, and Sophie M. Sparrow
What the Best Law Teachers Do introduces readers to twenty-six professors from law schools across the United States. These instructors are renowned for their exacting standards: they set expectations high, while also making course requirements—and their belief that their students can meet them—clear from the outset. They demonstrate professional behavior and tell students to approach class as they would their future professional life: by being as prepared, polished, and gracious as possible. And they prepare themselves for class in depth, even when they have taught the course for years.
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Chapter 18: Legal Protection of the Environment
Stephen C. McCaffrey and Rachael E. Salcido
Stephen C. McCaffrey and Rachael E. Salcido, Legal Protection of the Environment, in Comparative Law and Society (David S. Clark, ed., Edward Elgar 2012).
Comparative Law and Society, part of the Research Handbooks in Comparative Law series, is a pioneering volume that comprises 19 original essays written by expert authors from across the world. This innovative handbook offers both a history of the field of comparative law and society and a thorough exploration of its methods, disciplines, and major issues, presenting the most comprehensive look into this contemporary field to date.
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The Columbia River Treaty in 2014 and beyond: International experiences and lessons learned
Stephen C. Mccaffrey, Richard Paisley, Lynette De Silva, and Aaron Wolf
This chapter identifies lessons learned from recent international experience with transboundary waters governance that may be relevant to the Columbia River Basin in 2014 and beyond, with particular reference to minimum stream flows; stream flow and other hydrological changes associated with climate change; and the role of third parties in negotiating new or adjusted governance mechanisms for international waters.
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The International Rights of Migrants
Raquel Aldana
Chapter 45 in the Handbook of Human Rights edited by: Thomas Cushman.
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Die Sache: The Foundationless Ground of Legal Meaning
Francis J. Mootz III
Chapter Die Sache: The Foundationless Ground of Legal Meaning, in The Semiotics of Law in Legal Education.
Clients do not approach their lawyer with a legal problem but they approach the lawyer with a problem in their everyday life that is articulated through narratives that are not exclusively, or perhaps not at all, legal in nature. The lawyer then must find the legal narrative to adapt to the problem and construct a narrative of law from the resources of legal reasoning. This insight about the work of lawyers as makers and managers of meaning is all too often reduced to a simplistic picture in which the lawyer tells a “story” to trigger the proper elements of the “objective” legal principles. This reinstates the dichotomy that the focus on the narrative character of law is in opposition to the fixed and objective character of the law itself, so that narrative is not appropriate with regard to the law. Hans-Georg Gadamer’s philosophical hermeneutics and the philosophical term die Sache are premised on the assumption that the other’s horizon of pre-understanding provides a different angle: hermeneutical responsibility is not owed to the other person as a supposed separate subjectivity; instead, it is owed to the subject matter about which the dialogue partners converse: die Sache. This viewpoint has practical import by considering legal reasoning as an exemplary case of our responsibility to die Sache and also has important implications for legal education.
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Disproportionality & Deterrence: The Dahiya Doctrine under International Law
Omar M. Dajani and Nicholas Gibson
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GADAMER AND RICOEUR: CRITICAL HORIZONS FOR CONTEMPORARY HERMENEUTICS
Francis J. Mootz III and George H. Taylor
Hans-Georg Gadamer and Paul Ricoeur were two of the most important hermeneutical philosophers of the twentieth century. Gadamer single-handedly revived hermeneutics as a philosophical field with his many essays and his masterpiece, Truth and Method. Ricoeur famously mediated the Gadamer-Habermas debate and advanced his own hermeneutical philosophy through a number of books addressing social theory, religion, psychoanalysis and political philosophy.
This book brings Gadamer and Ricoeur into a hermeneutical conversation with each other through some of their most important commentators. Twelve leading scholars deliver contemporary assessments of the history and promise of hermeneutical philosophy, providing focused discussion on the work of these two key hermeneutical thinkers. The book shows how the horizons of their thought at once support and question each other and how, in many ways, the work of these two pioneering philosophers defines the issues and agendas for the new century.
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Gadamer's Rhetorical Conception of Hermeneutics as the Key to Developing a Critical Hermeneutics
Francis J. Mootz III
Gadamer's Rhetorical Conception of Hermeneutics as the Key to Developing a Critical Hermeneutics, in Gadamer and Ricoeur: Critical Horizons for Contemporary.
The rhetorical dimensions of Gadamer's philosophical hermeneutics have not been fully developed by his commentators, resulting in an overly conservative rendering of his philosophy. Drawing out the rhetorical features of his work, we find that Gadamer regards textual interpretation as a rhetorical accomplishment. This characterization leads to a rich conception of critical hermeneutics. The chapter develops Gadamer's rhetorical hermeneutics by contrasting his approach with Paul Ricoeur's famous intervention in the Gadamer-Habermas debate, and looks to Gadamer's account of legal practice as a manifestation of critical hermeneutics in action.
Scholarship is a core priority for the Pacific McGeorge faculty. Among their scholarly pursuits, Pacific McGeorge faculty develop and present at scholarly symposia and conferences, author books for the legal profession, students, and the general public, and produce scholarship for top journals around the country and the world.
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