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  Children in Armed Conflict, in The Oxford Handbook of Children’s Rights Law (Jonathan Todres & Shani M. King eds., 2020)

  Mark A. Drumbl

  This chapter addresses a particularly vulnerable population of children, namely, children associated with armed forces or armed groups. These children are colloquially known as child soldiers. This chapter begins by surveying the prevalence of child soldiering globally. It then sets out the considerable amount of international law that addresses children in armed conflict, in particular, the law that allocates responsibility for child soldiering and the law that sets out the responsibility of child soldiers for their conduct. The chapter identifies significant gaps between the law and the securing of positive outcomes for former child soldiers, notably when it comes to post-conflict reintegration. The protective impulse that envisions militarized youth as faultless passive victims may not always reflect how youthful fighters see themselves nor necessarily support an emancipatory and empowering vision of how international law should promote the rights of children.

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  Impunities, in The Oxford Handbook of International Criminal Law (Kevin Jon Heller et al. eds., 2020)

  Mark A. Drumbl

  This chapter addresses the concept of impunity, commonly envisioned as freedom from punishment (poena). It does so because ‘fighting impunity’ drives the establishment of international courts and tribunals. This chapter offers a discourse analysis of press releases of two international criminal tribunals to gauge their understanding of poena. This chapter argues that this understanding, which maps onto international justice efforts generally, is narrow to the point that ‘fighting impunity’ reduces to a carceral monologue. Instead, this chapter argues in favor of a broader vision of poena such that ‘fighting impunity’ would invoke a broader array of tools such as reparations, shame, sanction, memory, and recrimination. In the end, then, it is preferable to speak of ‘impunities’ than ‘impunity’

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  Staging International Law’s Stories: Kapo in Jerusalem, in International Law's Collected Stories (Sofia Stolk & Renske Vos eds., 2020)

  Mark A. Drumbl

  The Schutzstaffel coerced and enlisted detainees into the administration of the labor and death camps. These detainees were called Kapos. The Kapos constitute a particularly contested element of Holocaust remembrance. Some Kapos deployed their situational authority to ease the conditions of other prisoners, while others acted cruelly and committed abuses. This chapter explores one treatment of the Kapo, this being on stage: Kapo Be’Yerushalaim (Kapo in Jerusalem) (play, 2014 Motti Lerner; Hebrew, translated into English by Roy Isacowitz, derivative of a film of the same title). This chapter considers how this play speaks of victims who victimize others and narrates the pain that results. Recounting the story that this play tells—a very powerful one, forcefully voiced, of law, judgment, suicide, shame, and the deployment of violence to supposedly protect others—serves as a collected ‘picture book’ of the potential and limits of international law.

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  We’re Exhausting Ourselves, Let’s Get Busy Instead: A Comment on the Contributions by Jakob v.H. Holtermann, Mordechai Kremnitzer and Daniela Demko, in Why Punish Perpetrators of Mass Atrocities? Purposes of Punishment in International Criminal Law (Florian Jeßberger & Julia Geneuss eds., 2020)

  Mark A. Drumbl

  In his comment on the contributions by Holtermann, Demko and Kremnitzer, Mark Drumbl engages with their respective pleas for a predominance of deterrence, expressivism and retribution. In reference to Kremnitzer’s contribution on retribution, he doubts that ‘victimizers-victims’ deserve punishment. They might deserve something else, but something that is not delivered in a criminal courtroom. While he is sympathetic to the expressivist theory and the communicative function of punishment, as developed by Demko, he doubts that a court room is the best place to host those conversations. He worries that the medium – the court – becomes the message. Similarly, he doubts that the courtroom is the best place to tell the truth. The criminal trial illuminates selectively, not comprehensively. It communicates an incomplete truth that does not shed light on the bystanders, and complicity, side-standers. Finally, with regard to Holtermann, Drumbl – as one of the critics of deterrence that Holtermann criticizes – remains unconvinced that international punishment has a deterrent effect. For him, deterrence can at best be believed through a combination of anecdote, superimposition, and faith.

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  Shared Responsibility and Failures to Prevent Harm, in The Routledge Handbook of Collective Responsibility (Saba Bazargan-Forward & Deborah Tollefsen eds., 2020)

  Shannon Fyfe

  The Routledge Handbook of Collective Responsibility comprehensively addresses questions about who is responsible and how blame or praise should be attributed when human agents act together. Such questions include: Do individuals share responsibility for the outcome or are individuals responsible only for their contribution to the act? Are individuals responsible for actions done by their group even when they don’t contribute to the outcome? Can a corporation or institution be held morally responsible apart from the responsibility of its members?

  Each part begins with a short introduction that provides an overview of issues and debates within that area and a brief summary of its chapters. In addition, a comprehensive index allows readers to better navigate the entirety of the volume’s contents. The result is the first major work in the field that serves as an instructional aid for those in advanced undergraduate courses and graduate seminars, as well as a reference for scholars interested in learning more about collective responsibility.

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  The Role of the Prosecutor, in Core Concepts in Criminal Law and Criminal Justice, Vol. I (Kai Ambos et al. eds., 2020)

  Shannon Fyfe

  The prosecutor’s position within the criminal justice system cannot be overstated. Robert Jackson, former United States Attorney General, who gained worldwide reputation through his role as Chief United States Prosecutor at the International Military Tribunal in Nuremberg, remarked fully seventy-five years ago that: ‘The prosecutor has more control over life, liberty, and reputation than any other person in America.’ Prosecutors are ‘the criminal justice system’s real lawmakers’ and ‘the gatekeepers to the justice system’ system’, insofar as they make the crucial decisions about which individuals enter the criminal justice system and under what conditions they move through it.

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  Profits v. Principles, in The Perilous Public Square: Structural Threats to Free Expression Today (David E. Pozen ed., 2020)

  Sarah C. Haan

  Americans of all political persuasions fear that “free speech” is under attack. This may seem strange at a time when legal protections for free expression remain strong and overt government censorship minimal. Yet a range of political, economic, social, and technological developments have raised profound challenges for how we manage speech. New threats to political discourse are mounting—from the rise of authoritarian populism and national security secrecy to the decline of print journalism and public trust in experts to the “fake news,” trolling, and increasingly subtle modes of surveillance made possible by digital technologies.

  The Perilous Public Square brings together leading thinkers to identify and investigate today’s multifaceted threats to free expression. They go beyond the campus and the courthouse to pinpoint key structural changes in the means of mass communication and forms of global capitalism

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  Foreword, in From the Texas Cotton Fields to the United States Tax Court: The Life Journey of Juan F. Vasquez (Mary Theresa Vasquez & Anthony Head, 2020)

  Brant J. Hellwig

  The story of the life of the first Hispanic American appointed to serve as a judge on the United States Tax Court. An educational and inspirational story of a professional career, the book is accessible to lawyers and laypersons of all ages.

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  Digitized Election Administration: Perils and Promise, in America Votes! Challenges to Modern Election Law and Voting Rights (4th ed. 2020)

  Margaret Hu and Rebecca Green

  Watergate brought us the modern era of campaign finance regulation. Government by the consent of the governed has become government by the consent of the rich. After Citizens United, dark money has become the currency for political engagement. At the same time, the Supreme Court in Shelby County ushered in a return to limits on access to registration and voting. The Supreme Court also continues to struggle to define unconstitutional gerrymandering. America Votes! Fourth Edition confronts these issues.

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  Criminal Procedure (9th ed. 2020)

  Paul Marcus and Melanie D. Wilson

  With the ninth edition of Criminal Procedure, Marcus and Wilson have produced a highly effective classroom teaching tool. The casebook covers all of the foundational constitutional criminal procedure cases, as well as the most recent decisions from the United States Supreme Court on the subject. In addition, it includes a number of forms, examples, problems, and questions to help students fully appreciate key principles. Although it addresses more, the book focuses on the Fourth Amendment search and seizure provision, the Fifth Amendment protections against unlawful confessions, and the Sixth Amendment right to counsel. The materials effectively cover recent Supreme Court cases analyzing searches of smart phones, searches by canine officers, and issues of "standing" that determines who may effectively complain when police violate the Constitution.

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  Compliance as an Exchange of Legitimacy for Influence, in The Oxford Handbook of Global Legal Pluralism (Paul Schiff Berman ed., 2020)

  Kishanthi Parella

  This chapter explains that business actors comply with legally nonbinding institutions because of an exchange between legitimacy and influence. Specifically, the information effects produced by both binding and nonbinding institutions can cause reputational damage to a company. To regain its legitimacy, that company associates itself with a more reputable organization than itself, regaining legitimacy through that association. However, that association often comes at a price. In exchange for conferring legitimacy, the external organization will promote its own institutions for the company’s adoption. Companies therefore adopt these institutions in order to credibly signal the quality of their association with the external organization and maximize legitimacy gains. This analysis is applicable to the wide array of nonbinding guidelines, declarations, codes of conduct, principles, and other international institutions that increasingly govern the global conduct of corporations and other business nonstate actors.

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  Corruption, Ethics and Integrity in Public Administration in Ukraine, in Handbook on Corruption, Ethics and Integrity in Public Administration (Adam Graycar ed., 2020)

  Thomas H. Speedy Rice, Alora Jiang, and Artem Shaipov

  This timely Handbook unpacks the underlying common factors that give rise to corrupting environments. Investigating opportunities to deliver ethical public policy, it explores global trends in public administration and its vulnerability to corruption today, as well as proposing strategies for building integrity and diminishing corruption in public sectors around the globe.

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  Fundamentals of Business Enterprise Taxation: Cases and Materials (7th ed. 2020)

  Stephen Schwarz, Daniel J. Lathrope, and Brant J. Hellwig

  Offered as an alternative to the authors’ widely used separate texts on corporate and partnership tax, the Seventh Edition of this comprehensive casebook continues its tradition of providing an integrated approach to teaching the “fundamentals” of a highly complex subject with clear and engaging explanatory text, skillfully drafted problems, selective discussion of tax policy issues, and a rich mix of original source materials to accompany the Code and regulations. This extensive revision discusses all major developments since the last edition, emphasizing significant provisions of the 2017 tax legislation known as the Tax Cuts and Jobs Act. Highlights of new material covered in the Seventh Edition are:

  • The deduction under § 199A for 20% of qualified business income from a pass-through entity. The discussion incorporates the final regulations and includes new problems.
  • The impact on choice of entity of the 21% corporate income tax rate, lower individual rates, the 20% deduction for qualified business income, and other tax and business planning considerations.
  • The new three-year long-term holding period required for capital gains allocable to service partners with carried interests in certain investment partnerships.
  • A revised discussion of corporate capital structure to reflect the changed stakes resulting from the reduction of the corporate income tax rate and the new § 163(j) limitation on the deduction of business interest.
  • New limitations on the deduction of excess business losses.
  • Other technical changes to Subchapters K and C and regulatory developments affecting partnership liabilities and corporate divisions.
  • S corporation developments, including the requirement to pay reasonable compensation to shareholder-employees for purposes of the § 199A qualified business income deduction.

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  Concurring Opinion, in What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Jack Balkin ed., 2020)

  Catherine E. Smith

  Jack Balkin and an all-star cast of legal scholars, sitting as a hypothetical Supreme Court, rewrite the famous 2015 opinion in Obergefell v. Hodges, which guaranteed same-sex couples the right to marry. In eleven incisive opinions, the authors offer the best constitutional arguments for and against the right to same-sex marriage, and debate what Obergefell should mean for the future. In addition to serving as Chief Justice of this imaginary court, Balkin provides a critical introduction to the case. He recounts the story of the gay rights litigation that led to Obergefell, and he explains how courts respond to political mobilizations for new rights claims. The social movement for gay rights and marriage equality is a powerful example of how—through legal imagination and political struggle—arguments once dismissed as “off-the-wall” can later become established in American constitutional law.

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  Federal Income Taxation of Trusts and Estates: Cases, Problems, and Materials (4th ed. 2019)

  Mark L. Ascher and Robert T. Danforth

  Federal Income Taxation of Trusts and Estates: Cases, Problems, and Materials examines the income taxation of estates and trusts, estate and trust beneficiaries, and trust settlors; its emphasis is on the provisions of "Subchapter J"— the relevant portion of the Internal Revenue Code (sections 641 through 692)—and its first priority is to give readers an understanding of those provisions and how they work. The fourth edition brings the book completely up to date, and includes all relevant developments since the preparation of the third edition. In addition, there are numerous expansions of note materials to accommodate developments over the past ten years.

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  Women's Legal Rights, in Oxford Research Encyclopedia of African History (2019)

  Johanna E. Bond

  In the colonial and postcolonial period, African women have advocated for legal reforms that would improve the status of women across the continent. During the colonial period, European common and civil law systems greatly influenced African indigenous legal systems and further entrenched patriarchal aspects of the law. In the years since independence, women’s rights advocates have fought, with varying degrees of success, for women’s equality within the constitution, the family, the political arena, property rights, rights to inheritance, rights to be free from gender-based violence, rights to control their reproductive lives and health, rights to education, and many other aspects of life. Legal developments at the international, national, and local levels reflect the efforts of countless African women’s rights activists to improve the status of women within the region.

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  Comparative Law and Legal Education, in The Oxford Handbook of Comparative Law (Mathias Reimann & Reinhard Zimmermann eds., 2d ed. 2019)

  Nora V. Demleitner

  This fully revised and updated second edition of The Oxford Handbook of Comparative Law provides a wide-ranging and diverse critical survey of comparative law at the beginning of the twenty-first century. It summarizes and evaluates a discipline that is time-honored but not easily understood in all its dimensions. In the current era of globalization, this discipline is more relevant than ever, both on the academic and on the practical level. The Handbook is divided into three main sections. Section I surveys how comparative law has developed and where it stands today in various parts of the world. This includes not only traditional model jurisdictions, such as France, Germany, and the United States, but also other regions like Eastern Europe, East Asia, and Latin America. Section II then discusses the major approaches to comparative law - its methods, goals, and its relationship with other fields, such as legal history, economics, and linguistics. Finally, section III deals with the status of comparative studies in over a dozen subject matter areas, including the major categories of private, economic, public, and criminal law.

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  Histories of the Jewish ‘Collaborator’: Exile, Not Guilt, in The New Histories of International Criminal Law: Retrials (Immi Tallgren & Thomas Skouteris eds., 2019)

  Mark A. Drumbl

  The language of international criminal law has considerable traction in global politics, and much of its legitimacy is embedded in apparently 'axiomatic' historical truths. This innovative edited collection brings together some of the world's leading international lawyers with a very clear mandate in mind: to re-evaluate ('retry') the dominant historiographical tradition in the field of international criminal law. Carefully curated, and with contributions by leading scholars, The New Histories of International Criminal Law pursues three research objectives: to bring to the fore the structure and function of contemporary histories of international criminal law, to take issue with the consequences of these histories, and to call for their demystification. The essays discern several registers on which the received historiographical tradition must be retried: tropology; inclusions/exclusions; gender; race; representations of the victim and the perpetrator; history and memory; ideology and master narratives; international criminal law and hegemonic theories; and more. This book intervenes critically in the fields of international criminal law and international legal history by bringing in new voices and fresh approaches. Taken as a whole, it provides a rich account of the dilemmas, conundrums, and possibilities entailed in writing histories of international criminal law beyond, against, or in the shadow of the master narrative.

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  US Courts, Jurisdiction, and Mutual Trust: RJR Nabisco v. European Community, in Dealing with Terrorism: Empirical and Normative Challenges of Fighting the Islamic State (Marc Engelhart & Sunčana Roksandić Vidlička eds., 2019)

  Mark A. Drumbl

  In Dealing with Terrorism – Empirical and Normative Challenges for Fighting the Islamic State an international panel of experts analyses current trends and new developments in legal systems and in law enforcement in Europe as well as in the USA and the Middle East. Offering a succinct overview with special focus on criminal law, police law, and European and international law, the book provides unique insights into what dealing with terrorism means to European and non-European countries. It includes material from non-English-speaking countries that is seldom available to a broader academic community. Its comparative approach offers readers three levels of understanding: by country, in terms of the European Union, and the international community as a whole. The book is geared at specialists in national and international institutions, scholars, and students in the field but will also be of great interest to the wider legal community. Its profound insights and expert perspectives enhance the ongoing national and international debate on public security issues by striking a balance between freedom and security.

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  When Perpetrators Become Defendants, and then Convicts, in The Routledge International Handbook on Perpetrator Studies (Susanne C. Knittel & Zachary J. Goldberg eds., 2019)

  Mark A. Drumbl

  The Routledge International Handbook of Perpetrator Studies traces the growth of an important interdisciplinary field, its foundations, key debates and core concerns, as well as highlighting current and emerging issues and approaches and pointing to new directions for enquiry. With a focus on the perpetrators of mass killings, political violence and genocide, the handbook is concerned with a range of issues relating to the figure of the perpetrator, from questions of definition, typology, and conceptual analysis, to the study of motivations and group dynamics to questions of guilt and responsibility, as well as representation and memory politics. Offering an overview of the field, its essential concepts and approaches, this foundational volume presents contemporary perspectives on longstanding debates and recent contributions to the field that significantly expand the theoretical, temporal, political, and geographical discussion of perpetrators and their representation through literature, film, and art. It points to emerging areas and future trends in the field, thus providing scholars with ideas or encouragement for future research activity. As such, It will appeal to scholars across a range of disciplines, including sociology, anthropology, criminology, philosophy, memory studies, psychology, political science, literary studies, film studies, law, cultural studies and visual art.

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  Research Handbook on Child Soldiers (Mark A. Drumbl & Jastine C. Barrett eds., 2019)

  Mark A. Drumbl and Jastine C. Barrett

  Child soldiers remain poorly understood and inadequately protected, despite significant media attention and many policy initiatives. This Research Handbook aims to redress this troubling gap. It offers a reflective, fresh and nuanced review of the complex issue of child soldiering. The Handbook brings together scholars from six continents, diverse experiences, and a broad range of disciplines. Along the way, it unpacks the life-cycle of youth and militarization: from recruitment to demobilization to return to civilian life. The overarching aim of the Handbook is to render the invisible visible – the contributions map the unmapped and chart new directions. Challenging prevailing assumptions and conceptions, the Research Handbook on Child Soldiers focuses on adversity but also capacity: emphasizing the resilience, humanity, and potentiality of children affected (rather than ‘afflicted’) by armed conflict.

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  Article 38: The Rights of Children in Armed Conflict, in The UN Convention on the Rights of the Child: A Commentary (John Tobin ed., 2019)

  Mark A. Drumbl and John Tobin

  The United Nations Convention on the Rights of the Child is the most extensive and widely ratified international human rights treaty. This Commentary offers a comprehensive analysis of each of the substantive provisions in the Convention and its Optional Protocols on Children and Armed Conflict and the Sale of Children, Child Prostitution and Pornography. It offers a detailed insight into the drafting history of these instruments, the scope and nature of the rights accorded to children and the obligations imposed on states to secure the implementation of these rights. In doing so, it draws on the work of the Committee on the Rights of the Child, international, regional and domestic courts, academic and interdisciplinary scholarly analyses. It is of relevance to anyone working on matters affecting children including government officials, policy makers, judicial officers, lawyers, educators, social workers, health professionals, academics, aid and humanitarian workers, and members of civil society.

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  The Optional Protocol on Children and Armed Conflict, in The UN Convention on the Rights of the Child: A Commentary (John Tobin ed., 2019)

  Mark A. Drumbl and John Tobin

  The United Nations Convention on the Rights of the Child is the most extensive and widely ratified international human rights treaty. This Commentary offers a comprehensive analysis of each of the substantive provisions in the Convention and its Optional Protocols on Children and Armed Conflict and the Sale of Children, Child Prostitution and Pornography. It offers a detailed insight into the drafting history of these instruments, the scope and nature of the rights accorded to children and the obligations imposed on states to secure the implementation of these rights. In doing so, it draws on the work of the Committee on the Rights of the Child, international, regional and domestic courts, academic and interdisciplinary scholarly analyses. It is of relevance to anyone working on matters affecting children including government officials, policy makers, judicial officers, lawyers, educators, social workers, health professionals, academics, aid and humanitarian workers, and members of civil society.

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  Tax Credits for the Working Poor: A Call for Reform (2019)

  Michelle Lyon Drumbl

  The United States introduced the earned income tax credit (EITC) in 1975, where it remains the most significant earnings-based refundable credit in the Internal Revenue Code. While the United States was the first country to use its domestic revenue system to deliver and administer social welfare benefits to lower-income individuals or families, a number of other countries, including New Zealand and Canada, have experimented with or incorporated similar credits into their tax systems. In this work, Michelle Lyon Drumbl, drawing on her extensive advocacy experience representing low-income taxpayers in EITC audits, analyzes the effectiveness of the EITC in the United States and offers suggestions for how it can be improved. This timely book should be read by anyone interested in how the EITC can be reimagined to better serve the working poor and, more generally, whether the tax system can promote social justice.

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  Early Roadway Construction and Establishing the Norm of Just Compensation for Takings, in Property Rights in Contemporary Governance (Staci M. Zavattaro et al. eds., 2019)

  Jill M. Fraley

  Property is a concept that is seemingly simple to understand yet continually evolving in the face of cultural change and technological advance. Property Rights in Contemporary Governance examines the many meanings of property, how they have changed over time, and the roles they play in policy, society, and law. With its deeply interdisciplinary approach, the book offers perspectives from economics, environmental studies, history, law, philosophy, public administration, and public policy. The contributors discuss such topics as the origin of the corporation, the role of the takings law, the development of legal protections for financial instruments in nineteenth-century France, the impact of climate change, the shifts in philosophical conceptions of property required by advances in intellectual property rights, and the influence of new technologies, including drones. This is a comprehensive and thoughtful exploration of how our diverse understandings of property impact real-world governing strategies.