Faculty SSRN Publications

Faculty Scholarship Blog

AALS Criminal Justice Section Junior Scholars Paper Competition
Once again, the AALS Criminal Justice Section will hold a Junior Scholars Paper Competition. Honorees will be recognized at the AALS Annual Meeting in New York City in January 2014. This year the format of our Junior Scholars Paper Competition is changed in a way that we hope will enable more emerging scholars to submit […]

Professor Jost Publishes Health Law Book

George Mason Law & Economics Center Request for Proposals

Prof. Miller Delivers Paper at Swiss Institute of Comparative Law Meeting

Recent Publications

Timothy  C. MacDonnell .

Florida v. Jardines: The Wolf at the Castle Door, 7 NYU J.L. & Liberty 1 2012



Michelle  L. Drumbl .

Decoupling Taxes and Marriage: Beyond Innocence and Income Splitting, 4 Colum. J. Tax L. 94 (2012)



David  Millon .

Book Review, 52 Am. J. Legal Hist. 500 (2012) (reviewing, Blackstone in America: Selected Essays of Kathryn Preyer, Mary Sarah Bilder, Maeva Marcus & R. Kent Newmyer (eds.) 2009).



Robin  Fretwell Wilson .

The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State, 53 B.C. L. Rev. 1417 (2012).



The Law Was Never Our Own: The Robert Bosch Foundation Fellowship, the German Law Journal, and the M
Thu, 02 Feb 2012 | Russell A. Miller
For twenty years the Robert Bosch Foundation’s Fellowship has been contributing to the comparativist movement in the most poignant of ways: it has invited scores of American lawyers to work alongside their German colleagues, giving both invaluable opportunity to think about and learn from one another. These American lawyers have been given the most privileged, first-hand views on the practice of law, the legislative process, and the function of the judiciary in Germany. The Robert Bosch Found… Read more...

Much Ado, But Nothing: California's New World War II Slave Labor Law Statute of Limitations and Its
Thu, 02 Feb 2012 | Russell A. Miller
More that fifty years after the dreaded events took place in Europe and along the Pacific-Rim, the California legislature has created a new cause of action that allows residents of California to seek redress in California courts for the atrocities of Nazi Germany and the Axis powers, especially for the use of forced labor by their industries during the war. The new cause of action is supported by an extraordinary, retroactive statute of limitations that reaches across all those years and keeps… Read more...

Paradoxes of Personality: Transnational Corporations, Non-Governmental Organizations and Human Right
Thu, 02 Feb 2012 | Russell A. Miller
“A subject of the law,” according to Brownlie, “is an entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims. This definition, though conventional, is unfortunately circular since the indicia referred to depend on the existence of a legal person.” This looping definition has almost exclusively referred to states. Using the state-template for personality, the International Court of Justice (ICJ) recognized th… Read more...

U.S. National Security, Intelligence and Democracy: From the Church Committee to the War on Terror
Wed, 01 Feb 2012 | Russell A. Miller
The most sensational and unique contribution of Germany’s national security constitution has made to the common constitutional struggle to balance security and liberty is the theory of “militant democracy.” Andras Sajo, the best-known contemporary theorist of militant democracy, has written to advocate the implementation of militant democracy in the present struggle against terrorism. “The counter-terror state, following the logic of militant democracy intends to protect certain fundamental righ… Read more...

Progress in International Law – an Explanation of the Project
Wed, 25 Jan 2012 | Russell A. Miller
Three epochal developments have thrown the international legal order into a state of flux. First, the world has clearly moved beyond the Cold War stalemate between the Western and Eastern superpowers. Second, we are already confronted with what appears to be its paradigmatic successor: the era of global terrorism. Third, both of these developments have been facilitated and amplified by the rapid pace of technological change that has permitted instantaneous and ongoing transnational social, po… Read more...

Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration
Wed, 25 Jan 2012 | Russell A. Miller
Part One lays out Trail Smelter’s legal and historical foundations and its jurisprudential legacy in international environmental law. The Trail Smelter Tribunal navigated this clash of sovereignties by articulating what have come to be known as the Trail Smelter principles: (1) the state has a duty to prevent transboundary harm, and (2) the “polluter pays” principle, which holds that the polluting state should pay compensation for the transboundary harm it has caused. Part Two illustrates Tr… Read more...

Introduction: U.S. National Security, Intelligence and Democracy: From the Church Committee to the W
Tue, 24 Jan 2012 | Russell A. Miller
During the past half-century, two historic confrontations – one against world-wide communism and the other against international terrorism – have presented American policy makers with the inevitably, difficult challenge of balancing intelligence and security needs against fundamental commitments to constitutional government and human liberty. In 1975, Senator Church led the first independent examination of the American intelligence community’s Cold War record. Senator Church’s determination t… Read more...

FDI Perspectives: Issues in International Investment
Mon, 23 Jan 2012 | Susan D. Franck
In late 2008, as financial markets were crashing, the Vale Columbia Center on Sustainable International Investment launched the Columbia FDI Perspectives. The first Perspective, entitled “The FDI recession has begun,” correctly forecast an FDI recession in the following year. From that first Perspective in late 2008 to the end of 2010, the series published thirty-three concise notes on topical FDI-related issues by diverse experts in the field. The purpose of these Perspectives is to inform read… Read more...

Germany's Basic Law and the Use of Force
Thu, 12 Jan 2012 | Russell A. Miller
Among the German Basic Law's (Grundgesetz or constitution) distinguishing features, and in light of its considerable success, there is one thread in its remarkable tapestry that particularly merits further attention. It is a matter of constitutional law with singular significance for transatlantic affairs and is therefore especially worthy of recognition in a "German-American Dialogue on NATO's 60th Anniversary." Six decades after the founding of NATO, scholars are still debating the roles that… Read more...

A Shared Constitutionalism: Stem Cells and the Case for Transatlanticism
Thu, 12 Jan 2012 | Russell A. Miller
These have been hard times for the Transatlantic alliance. One has come to expect rough patches in Franco-American relations, but the policies of the second Bush Presidency, clashing with Chancellor Schroder's anti-war reelection campaign in 2002, have seemingly plunged relations between the United States and Germany, stalwart Cold War allies, into crisis as well. For some, the "grosser Teich" ("big pond," as many Germans were once fond of referring to the Atlantic Ocean) is looking more oceanic… Read more...

In a Dissenting Voice: Justice Ginsburg's Federalism
Thu, 12 Jan 2012 | Russell A. Miller
This article argues that Justice Ginsburg has strongly advocated for state autonomy during her tenure on the Supreme Court. This conclusion results from a careful examination of Justice Ginsburg's dissents in cases involving federalism issues. Justice Ginsburg's nuanced, pro-states approach has two central characteristics. First, she defends states' governing autonomy and shows respect for the state agents that realize that autonomy. Second, she advocates judicial restraint in reviewing federali… Read more...

Clinton, Ginsburg and Centrist Federalism
Thu, 12 Jan 2012 | Russell A. Miller
Politics' and pathology have converged to heighten speculation that Justice Ruth Bader Ginsburg's tenure on the Supreme Court is nearing its end. Even if the imminence of her retirement is greatly exaggerated, the time to reflect on Justice Ginsburg's lasting contribution to American constitutional law has arrived. Justice Ginsburg is best known for her long campaign to promote gender equality. Her successful advocacy on that issue before the Supreme Court throughout the 1970s led President Clin… Read more...

Before the Law: Military Investigations and Evidence at the Iraqi Special Tribunal
Thu, 12 Jan 2012 | Russell A. Miller
On July 1, 2004, Saddam Hussein made his first appearance before the Iraqi Special Tribunal for Crimes Against Humanity (IST). That extraordinary moment was a brief scene in a still unfolding drama that, thus far, has included such epic moments as the American-led invasion of Iraq in the spring of 2003 and Saddam Hussein's improbable capture by Coalition forces in December of that year. The toppled dictator's full-fledged trial is still to come. With the IST, created by a statute of the now disb… Read more...

Lords of Democracy: The Judicialization of 'Pure Politics' in the United States and Germany
Thu, 12 Jan 2012 | Russell A. Miller
The pitched legal struggle for the United States Presidency that raged for thirty-six days after the November 7, 2000 election, culminating in the United States Supreme Court's five-to-four decision awarding Texas Governor George W. Bush the Presidency on December 12, 2000, left me feeling deeply dissatisfied. Completely independent of the result of the Court's intervention, a more generalized concern for a democratic process pursuant to which five judges could pick the President contrary to the… Read more...

German Federal Constitutional Court and Bosnian War Crimes: Liberalizing Germany's Genocide Jurispr
Thu, 12 Jan 2012 | Russell A. Miller
On 12 December, 2000, the Fourth Chamber of the Second Senate of the Bundesverfassungsgericht (Federal Constitutional Court) issued its opinion following its review, for constitutional error, of the conviction of a Bosnian Serb who had been convicted by the German ordinary courts of a broad range of crimes including, most notably, genocide. In refusing to admit the case for consideration by the full Senate, the Chamber marked out new boundaries for the international crime of genocide as it has b… Read more...

Self-Determination in International Law and the Demise of Democracy?
Thu, 12 Jan 2012 | Russell A. Miller
In his highly controversial book from 1992, The End of History and the Last Man, Francis Fukuyama triumphantly declared liberal democracy, in its co-existence with market capitalism, the victor of the Twentieth Century's ideological struggles and consequently the end-station of history. Fukuyama explained that "[a]s mankind approaches the end of the millennium, the twin crises of authoritarianism and socialist central planning have left only one competitor standing in the ring as an ideology of… Read more...

Das Bundesverfassungsgericht: Procedure, Practice and Policy of the German Federal Constitutional C
Wed, 11 Jan 2012 | Russell A. Miller
Karlsruhe was the capital city of the Grand Duchy of Baden (1806-1918). During the Weimar Republic, Karlsruhe continued as the capital of the Republic of Baden (1918-1933). After the Allies crushed Hitler's Nazi regime, they reclaimed Baden from the centralizing and totalitarian policy of Gleichschaltung and used it as an Allied Occupation Zone that was shared by American and French forces. Karlsruhe was the Zone's hub. But Karlsrughe's run as a regional capital soon met its end. As the map o… Read more...

Collective Discursive Democracy as the Indigenous Right to Self-Determination
Wed, 11 Jan 2012 | Russell A. Miller
There are radically conflicting perspectives on indigenous peoples' right to self-determination in international law. On one hand, indigenous advocates regard self-determination as a (if not the) fundamental and non-negotiable element of the international law regime concerned with indigenous rights. On the other hand, many states, including some of the states most significantly confronted with indigenous issues, are categorically opposed to granting indigenous peoples a right to self-determinati… Read more...

Balancing Security and Liberty in Germany
Wed, 11 Jan 2012 | Russell A. Miller
Scholarly discourse over America’s national security policy frequently invites comparison with Germany’s policy. Interest in Germany’s national security jurisprudence arises because, like the United States, Germany is a constitutional democracy. Yet, in contrast to the United States, Germany’s historical encounters with violent authoritarian, anti-democratic, and terrorist movements have endowed it with a wealth of constitutional experience in balancing security and liberty. The first of these… Read more...

Procedural Justice, Collateral Consequences, and the Adjudication of Misdemeanors
Thu, 17 Nov 2011 | John D. King
Scholarly analysis and popular perceptions of the American criminal justice system tend to focus on serious crimes. The majority of Americans, however, will interact with the criminal justice system (if at all) in a misdemeanor courtroom, in which dozens of defendants wait for hours to spend a few moments in front of a judge. Many of them will not be represented by a lawyer and very few of them will have a single piece of paper filed on their behalf. Individually, their cases might command the s… Read more...

Sullivan's Paradox: The Emergence of Judicial Standards of Journalism
Tue, 14 Dec 2010 | Brian C. Murchison
In this article, the authors examine the development of libel law in America since the Supreme Court's watershed decision in New York Times Co. v. Sullivan and suggest that Sullivan affords members of the press less protection than many think. Sullivan's actual malice standard invites judges to create norms of acceptable journalistic conduct for news gathering, which members of the press and their lawyers use as maps to navigate around libel liability. The authors examine a large number of thes… Read more...