Spring 2013

Much of the response to concerns about the legal implications of the U.S.’s use of unmanned drones in programs of targeted killings repeats the refrain that international law is not “real.”  Setting aside the issue of the legality of the targeted drone attacks, the fact is that it is a commonly accepted precept in American law schools that the U.S. has no need to abide by or participate in international conventions. This creates the implication that there is no such thing as “real” international law. However, while international law is not entrenched in the governmental structure of nations, it is important to understand that international law, just as with domestic law, is a system of consent-based governance.  A law is simply a representation of behavior that a particular community deems acceptable or desirable.

Consent-based governance is illustrated by the example of a busy traffic intersection. In this example, the majority of the motorists obey the traffic signals and conform to the law: they go on green and stop on red, even when no police are present to enforce the traffic laws. This consensual conformity to certain types of behavior results in the achievement of common goals: increased safety and order in the intersection. Similarly, the international community operates on this same system of consensual governance, with the goal of achieving an international legal order. States routinely observe international law, even in the absence of enforcement mechanisms or governmental infrastructure.   The international legal system is founded on the ability and willingness of States to abide by norms of accepted behavior, akin to an individual’s willingness to conform to the behavioral expectations of domestic law. 

Thus, the fiction that there is “no such thing” as international law is an unfounded oversimplification of the issue.  The U.S.’s use of drones should accordingly be held to standards of international humanitarian law.

Tucson, AZ. (February 17, 2013) – For the first time in school history, the TJSL National Trial Team won the 2013 regional competition of Texas Young Lawyers Association (TYLA) in Tucson, AZ this past weekend.  Coached by Lilys McCoy and Lea Fields-Bernard, teammates Robert Sagerian, Jay B Campbell and Michael Fabinski will compete in the national round of TYLA April 3-7, 2011 in San Antonio, TX.

After defeating Western State, Pepperdine, Loyola Maramount, and a second bout with Pepperdine, Robert Sagerian, Jay B Campbell and Michael Fabinski were crowned champions of Region 14.

The TYLA regional competition included 28 teams from Southern California, Arizona, and Hawaii. The TJSL team competed in five trials against Western State, Pepperdine and Loyola Maramount over the course of four days before being crowned Regional Champions. The TJSL team never lost a round and received the highest point total of all the teams.

The regional problem was a fictitious case titled, State of Lone Star v. John Quincy Drath. The State charged Mr. Drath with one count of murder for the death of Steppen Walker.  The State intended to prove that John Drath killed Steppen Walker out of anger after discovering that Mr. Walker, 22, was involved in sexual relationship with Mr. Drath’s 17-year-old daughter, Sally Drath.  Mr. Drath asserted the affirmative defense of insanity after he awoke in a jail cell eight days after Mr. Walker was killed, having no recollection of the previous eight days.

"This is a remarkable achievement for our team and our law school.  There has been so much support from the student body, the administration and members of the San Diego legal community leading up to this competition.  For that, I would like to thank everyone that was part of the preparation process because your assistance was instrumental to our success," says Robert Sagerian, TJSL’s team captain.

About the Texas Young Lawyers Association’s National Trial Competition

The National Trial Competition was established in 1975 to encourage and strengthen students' advocacy skills through quality competition and valuable interaction with members of the bench and bar. The program is designed to expose law students to the nature of trial practice and to serve as a supplement to their education. It is the Texas Young Lawyers Association intent to provide a meaningful contribution to the development of future trial lawyers. The top two winners of the 14 regional competitions will compete in the National Competition April 3-7, 2013 in San Antonio, TX. 

“It ain’t over ‘til it’s over,” United States Supreme Court Associate Justice Ruth Bader Ginsburg said, offering the Women and Law Conference attendees a matter of fact opinion about her thoughts on the Court having a second chance at the Citizens United case famously bestowing the same First Amendment rights of people on corporate entities.

The Justice’s candor was unexpected but very refreshing for the crowed gathered for Thomas Jefferson School of Law’s thirteenth annual conference titled Her Honor: Women in the Judiciary.

During her Q and A time with us, Justice Ginsburg shared many incredible stories, including the fact that she credits former President Jimmy Carter for changing the face of the American judicial system by adding more women than any president in history to the judiciary.

By 1981, when President Carter left office he had appointed 81 women to judicial positions across the U.S.   In comparison, President Obama has made 98 appointments so far, and about 46 have been women. 

In regards to being one of the first women appointed to the highest court in America, Justice Ginsburg reminisced.  She shared a story about The National Association of Women Judges holding a luncheon to honor Justice Ginsburg and Justice O’Connor.

The group presented each woman with a t-shirt. “Mine read, I’m not Sandra, and hers said I’m not Ruth.  With three (women on the bench) we look like we’re here to stay, not a one time curiosity,” Ginsburg said.

Ginsburg’s yearning for equality was evident when she responded to a question addressing something she would like to see changed.  “The ERA,” she said.  “I hope it becomes a part of the Constitution.  Even the most female oppressive countries have this type of amendment.”

Ginsburg was sharp and witty.  Her advice was sage and meaningful.  “Finding a partner who is your biggest booster helped me achieve a family-work balance, ” she advised, referring to her husband and partner of fifty-six years, Martin Ginsburg.

It’s evident Justice Ginsburg has more to do as a Supreme Court Justice.  “I will do my job as long as I am able.  I’m not going to write any book,” she said after being asked about what she has been most proud of.

Ginsburg made it clear her dissent matters.  She discussed cases she did not agree with and opined that the court will have another chance to “get it right” in these instances.  The Justice explained how writing a dissent, looking forward, is important.  She said she knows there will be a time when her colleagues will have a chance to fix things.

Of course, as students we are always searching for advice, and Justice Ginsburg did not disappoint.  First, she told the audience that she never asks herself what she would do differently.

She said the best piece of advice she ever received was from a co-worker.  “Do your best job in each case, but when it’s over don’t look back, go on and give it your all.”

She added that her mother gave her advice she still abides by today.  “Be a lady, don’t allow distractions.  Anger gets you nowhere, and jealousy is even worse.  I just look at what’s on my plate today.”

Where are we in the Shadows of the Great Emancipator?

“[S]outherners often clinched their defense of slavery by pointing to the plight of British workers.”  --Wilfred Carsel  ₁

Paul Finkelman is the President William McKinley Distinguished Professor at Albany Law School in Albany, NY and the author and editor of more than 40 books.  Professor Finkeleman noted that Lincoln’s Emancipation Proclamation, when combined with Sherman’s March to the Sea, liberated the greatest number of people in history, outdone only by Allies march into Berlin in WWII. 

Professor Finkelman dispelled the mythic image of a heroic Lincoln and replaced it with a fact-based analysis of Lincoln’s good sense and moral principles.  However, talk about his fairness and cunning may be attention misplaced. 

After federal troops were withdrawn from the South—an estimated two to three blacks were lynched each weak in the late 19^th and 20^th centuries.  Nationwide, the figure climbed to nearly 5,000. ₂  Besides lynching, many blacks suffered disproportionate imprisonment, and many more trapped in poverty and could not leaved overpriced slums.₃₄  Before and after the Civil War, one might say African Americans were within a cultural gulag.₅₆₇

 “Emancipator” implies a freedom that arguably never came.  Thus, society would do better to remember:

The European Union, a political entity of 350 million individuals, has a prison population (including violent and nonviolent offenders) of roughly only 300,000.  This is one-third the number of prisoners which America, a country of 274 million, incarcerates for just nonviolent offenders.₈

In addition, it may be profitable to examine the source of labor in the products we use every day.  Kevin Bale is one of the world’s leading experts on contemporary slavery and he estimates there are 27 million slaves in the world today.  America is a large product-purchasing nation so it has moral obligation to ensure world trade does not rest on cruel labor. ₉

I like Paul Finkleman’s talk on Lincoln.  I like how he noted the concern Lincoln had with ending slavery.  I just think any talk on slavery is incomplete if it ends with the Civil war, and does not include cheap labor or prison labor—among other things much beyond the scope of this op-ed. 

Works Cited

1. Oastler, Richard. [1835] 1972. Eight Letters to the Duke of Wellington: A Petition to

the House of Commons: and a Letter to the Editor of the Agricultural and Industrial

Magazine. London: James Cochrane & Co. Reprinted in Richard Oastler:

King of Factory Children: Six Pamphlets, 1835-I 861. New York: Arno Press. [ 1841 - 18441 1968. Fleet Papers. 4 vols. New York: Greenwood Press

2.   http://www.pbs.org/wgbh/amex/till/peopleevents/e_lynch.html

3.  http://en.wikipedia.org/wiki/Housing_Segregation 

4. Bertocchi, Graziella, and Arcangelo Dimico. Slavery, Education, and Inequality., 2010. EconLit. 17 Feb. 2013 .

5. McGlynn, Frank, and Seymour Drescher eds. The Meaning of Freedom: Economics, Politics, and Culture After Slavery. Pitt Latin American Series. Pittsburgh and London: University of Pittsburgh Press, 1992. EconLit. 17 Feb. 2013 .

6. Persky, J. (1998). Wage slavery. History of Political Economy, 30(4), 627-651. Retrieved from http://search.proquest.com/docview/56882207?accountid=14515

7. Temperley, Howard, ed. After Slavery: Emancipation and its Discontents. Studies in Slave and Post-Slave Societies and Cultures. Slavery and Abolition, Vol. 21, no. 2, August 2000. London: Cass; distributed by International Specialized Book Services, Portland, Oreg, 2000. EconLit. 17 Feb. 2013 .

8.  http://www.hrea.org/index.phb?doc_id=430

9. Kevin Bales, Disposable People: New Slavery in the Global Economy, University of California Press, 1999. 

For more information please see:

• http://www.productsofslavery.org/
• http://www.theatlantic.com/magazine/archive/1998/12/the-prison-industria...

It was a frightening ordeal for a Carlsbad family when their teenage daughter, Baileigh Karam, ran away after a video showcasing a bully physically attacking her went viral on January 11, 2013. Baleigh had been missing for a week before she was found safe at a friends’ home. While she was missing, her family and other local parents of bullying victims began to realize the widespread effects of cyberbullying. The video broadcasted Baileigh’s attack, and a witness on Facebook posted it within minutes of the attack.

What concerned Baileigh’s mother, Karen Karam, was that the video promulgated the devastating effect of the incident on Baileigh, sparking her run-away attempt. Karen fought immediately with those investigating the teen’s disappearance and Facebook representatives to have the video removed from the social networking site. While waiting for Facebook to remove the video, Karen knew her daughter would be reading the horrible comments her peers shared, comments glamorizing the fight. In response, Karen says “It’s a very ugly world sometimes on Facebook.”[1]

            In the wake of the video, shared with Baileigh’s network of friends and family members, local parents wondered what rights they may have in controlling bullying material on Facebook. With over two-thirds of U.S. teenagers online and using social networking sites, it is to be expected the Internet brings an opportunity to send hurtful material.[2] What recourse do parents, such as Karen Karam, have against the posters of harassing content? What is the site’s liability regarding such posted material?

In an interview with Professor Aaron Schwabach, of Thomas Jefferson School of Law, he gave his opinion on Facebook’s protection from his vast experience studying Internet and property law. In the case of Zeran v. America Online, Inc. the Court held that Internet Service Providers gain immunity for the wrongs committed by their users, through the protection of the Communications Decency Act and United States statute 17 U.S.C. § 512.[3] Because the transmission of cyberbullying content is initiated by the direction of a person other than Facebook itself, the site’s liability for relief is negated[4]. Professor Schwabach states, “Practically-speaking, it would be impossible for Facebook to monitor all material on its network. But what most parents do not know, if you report the material to Facebook, they will remove that content.” Many parents do not realize Facebook provides this option. Sites like Facebook do not want to perpetuate bullying, but they cannot completely control what users post. Unfortunately, if material like the Karam video, is re-transmitted to different person’s networking profile, it must be reported again for its removal. This can become tedious, but it does give an option for parent’s to decelerate cyberbullying.

            Internet law is primarily unknown to many parents and teens, and the issues of cyberbullying are continuously developing. In some cases, the damaging consequences of cyberbullying do not end at the removal of its content. Parents may still seek recourse against those persons that produce and transmit bullying material. Professor Schwabach states, “Although it will remain a proof-of-fact issue, parents able to prove the identity of persons transmitting such material may affect the damages sought in a case, especially if the alleged person encourages the effects of bullying, suicide, or engages in cyberbullying through fraudulent misrepresentation.”[5] Even most schools are held powerless to control student Internet activity. Many claimed that Baileigh’s school should be liable for the incident involving two of their students. Unfortunately, unless a bullying incident takes place on school grounds, school administrators are generally not liable. School administrators may have a duty to instill a safe atmosphere at school, but it may also be impracticable for a school to monitor all material students post online. In the end, parents are left with minimal help to control Internet material intending to bully their children. Reporting it may help remove it, but only if parents are proactive in protecting their child’s Internet saf