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State Responsibility and Attribution of Cyber Intrusions After Tallinn 2.0

By | TLR Vol. 95-7 | No Comments
The U.S. response to the Russia DNC hack has been criticized as “late” and “weak”: the United States’ response to the Russian intrusions was delayed, and the United States limited its responses to self-help measures. Professor Banks points out that the timing and nature of the U.S. response in fact reflects the challenges posed by an underdeveloped part of the international cyber law—attribution. In this piece, Professor Banks examines Tallinn 2.0’s treatment of attribution in the cyber context. Given that this area of law is still underdeveloped, he suggests that the U.S. identify some attribution benchmarks as well as lawful responses to deter future cyber intrusions.

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Give Them an Inch, They’ll Take a Terabyte: How States May Interpret Tallinn Manual 2.0’s International Human Rights Law Chapter

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Is countering terrorism a legitimate reason to violate the right to privacy in cyberspace? Professors Barnsby and Reeves identify a potential risk under Tallinn 2.0 that the counterterrorism exception might swallow a state’s obligations to respect and protect international human rights, given the broadly defined “legitimate purpose” and the vaguely defined “terrorism” in the manual. Nevertheless, Professors Barnsby and Reeves point out that this kind of uncertainty in Tallinn 2.0 is not new. Like Tallinn 1.0, Tallinn 2.0 also intentionally left some definitional gaps for further legal developments in the cyber context. Such gaps, Professors Barnsby and Reeves argue, are necessary for a project like the Tallinn Manual and would be better filled by state practices.

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Interpretation Catalysts in Cyberspace

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In this piece, Professor Ingber explores the phenomenon of “interpretation catalysts” through the lens of the Tallinn Manual process. Specifically, she identifies two levels on which the interpretation catalysts have operated in the Tallinn Manual process—first, the catalyst that triggered the Tallinn Manual process, i.e., the 2007 Estonia cyberattack, has prompted the creation of the entire Tallinn Manual process where a group of experts defined legal rules as guidance for state actors. Second, the Tallinn Manual process itself has triggered states to respond by engaging in a rule-definition process in a broader context of cyberspace law.

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A Cyber Duty of Due Diligence: Gentle Civilizer or Crude Destabilizer?

By | TLR Vol. 95-7, Uncategorized | No Comments
In the area of cybercrime, the dilemma of attribution impedes the prevention and mitigation of cyber harm. Gaining momentum among States and commentators, a potential solution to the problem of attribution is a response proxy—an entity against whom action is taken when action against a responsible party is not feasible. However, such a proxy response by way of a cyber duty of due diligence may be counterproductive and lead to greater instability in the international system. Combining the principle of due diligence in cyberspace and the doctrine of countermeasures, a longstanding international law response to illegal acts by another State, produces an attractive solution on its face. Nonetheless, due diligence-inspired countermeasures as an attempt to close the attribution gap may yield unintended consequences, including significant costs to security, stability, and even to international law compliance.

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Did Russian Cyber Interference in the 2016 Election Violate International Law?

By | TLR Vol. 95-7 | No Comments
When it was revealed that the Russian government interfered in the 2016 U.S. presidential election by, among other things, hacking into the e-mail system of the Democratic National Committee (DNC) and releasing its e-mails, international lawyers were divided over whether the cyber attack violated international law, as none of the standard rubrics for understanding illegal interventions clearly and unambiguously apply to the facts in question. The lack of fit with the doctrinal requirements for an illegal intervention against another State’s sovereignty is simply an indication that the notions of “sovereignty” and “intervention”—though mainstays of contemporary public international law doctrine—are poorly suited to analyzing the legality of the conduct in this case. A far better rubric for analyzing the behavior is the notion of self-determination, a legal concept that captures the right of a people to decide, for themselves, both their political arrangements and their future destiny. Unfortunately, the right of self-determination has largely lain fallow since the global process of decolonization was completed, with the exception of a few cases of controversial secessions. But the Russian hacking campaign is evidence that self-determination’s departure from the scene in international law should be mourned and, if possible, reversed because there are situations and cases where the best legal categories for understanding the situation are not sovereignty and intervention but rather the notion of self-determination.

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Squinting Through the Pinhole: A Dim View of Human Rights from Tallinn 2.0

By | TLR Vol. 95-7 | No Comments
In its chapter on international human rights law (IHRL), the Tallinn Manual 2.0 fails in its stated objective of furnishing “[s]tate legal advisors charged with providing international law advice to governmental decision makers” with “an objective restatement of the lex lata.” While the editors and authors plainly intend that their audience be mindful of human rights, the fluid and rapidly developing law in this area presents challenges, and so do widening divisions of opinion that are evident between governments, international experts, and civil society on what human rights law requires in the new digital age. To get the law right, the conscientious legal advisor should look elsewhere. Military and national security lawyers, chosen as experts to formulate and draft rules, may care deeply about human rights but generally do not develop deep familiarity with IHRL and its constitutive processes—that is more typical of human rights advocates, litigators, academics, and state specialists. Legal advisors should look first to treaty obligations and then more widely at international interpretation of rights from the most experienced states and practitioners in the international-, regional-, and state-level systems.

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Beyond Self-Defense and Countermeasures: A Critical Assessment of the Tallinn Manual’s Conception of Necessity

By | TLR Vol. 95-7 | No Comments
While the plea of necessity may be available for states in their responses to cyberattacks, frequent and pretextual invocations of necessity may destabilize international peace and security. Tallinn Manual 2.0 recognizes the plea of necessity, drawing on classic examples of necessity from traditional international customary law sources, but the application of these sources to cyberwarfare presents unique concerns. Although pleas of necessity require states to identify their essential interests, allowing states to unilaterally define these interests or limit the concept of critical infrastructure raises questions for the applicability of the necessity doctrine. Additionally, the cyber operations have uncertain and unpredictable effects, thus making it difficult to determine when the last “window of opportunity” for responsive action is about to close. States seeking to clarify vague definitions and better understand legitimate responsive action first ought to commit to procedural norms to establish accountability so that a better international consensus on the plea of necessity may emerge.

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Respect for Sovereignty in Cyberspace

By | TLR Vol. 95-7 | No Comments
Since the late 1990s, the United States has operated from the premise that international law applies in cyberspace. This remains the U.S. approach nearly two decades later. What appears to have changed since then is the Department of Defense’s position on sovereignty in cyberspace. In 1999, the question was not whether a State could violate another State’s sovereignty as a matter of law; rather, the challenge was identifying when cyber operations do so. Recently, the DoD has indicated that it may have reassessed its position that sovereignty can be violated as a matter of international law in the cyber context. In this article, Professors Schmitt and Vihul examine the point of contention between the DoD’s earlier view, as well as the Tallinn Manuals’, and that which now appears to be the revised DoD position.

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Abortion: A Woman’s Private Choice

By | TLR Vol. 95-6 | No Comments
Chemerinsky and Goodwin, believing that Roe was “unquestionably correct in its conclusion” but that its progeny—cases that shifted the law to the undue burden test and toward upholding restrictions on abortion—were misguided, assert that abortion is best regarded under the Constitution as a private choice for each woman. Their article begins by explaining what they consider to be the flawed foundation for the protection of reproductive rights under the Constitution, before attempting to reconceptualize abortion rights and underscore the value and relevance of a reproductive justice framework by offering their normative argument that the right to abortion should be seen as a private choice left to each woman. Finally, their article discusses what it would mean for abortion to be regarded as a private choice. They identify and explore three implications: restoring strict scrutiny to examining laws regulating abortions, preventing the government from denying funding for abortions when it pays for childbirth, and invalidating the countless types of restrictions on abortion that have the purpose and effect of limiting women’s access to abortion rather than promoting safety and health. Ultimately, Chemerinsky and Goodwin write their Article because they believe it is essential that the country never go back to the days when women faced the horrific choice between an unsafe back-alley abortion and an unwanted child, and think it important to explain why the Constitution must be interpreted to protect reproductive freedom, including recognizing that abortion is a private choice for each woman.
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Pennoyer Was Right

By | TLR Vol. 95-6 | No Comments

Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally. To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn’t a matter of federal law, but of general law—that unwritten law, including much of the English common law and the customary law of nations, that formed the basis of the American legal system. Founding-era states were free to override that law and to exercise more expansive jurisdiction. But if they did, their judgments wouldn’t be recognized elsewhere, in other states or in federal courts—any more than if they’d tried to redraw their borders. As Pennoyer saw, the Fourteenth Amendment changed things by enabling direct federal review of state judgments, rather than making parties wait to challenge them at the recognition stage. It created a federal question of what had been a general one: whether a judgment was issued with jurisdiction, full stop, such that the deprivation of property or liberty it ordered would be done with due process of law.

Reviving Pennoyer would make modern doctrine make more sense. As general-law principles, not constitutional decrees, jurisdictional doctrines could be adjusted by international treaty—or overridden through Congress’s enumerated powers. The Due Process Clause gives these rules teeth without determining their content, leaving space for federal rules to govern our federal system. In the meantime, courts facing jurisdictional questions should avoid pitched battles between “sovereignty” and “liberty,” looking instead to current conventions of general and international law. Pennoyer’s reasoning can be right without International Shoe’s outcome being wrong; international law and American practice might just be different now than they were in 1878 or 1945. But if not, at least we’ll be looking in the right place. General law may not be much, but it’s something: the conventional settlement of the problems of political authority at the root of any theory of personal jurisdiction. Recovering those conventions is not only useful for its own sake, but a step toward appreciating our deep dependence on shared traditions of general law.

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Toward a Science of Torture?

By | TLR Vol. 95-6 | No Comments

Does torture “work?” Proponents, including President Trump and the architects of CIA “Enhanced Interrogation” say it does, by breaking terrorists’ resistance to revealing information that saves lives. Torture’s foes typically dismiss this claim as false to the point of fraud – fortuitous coincidence with torture’s unlawfulness. Neither view, I argue herein, rests firmly on evidence. Rival anecdotes, not data, have, so far, driven this debate. And a scientific answer is beyond our reach, since: (1) rigorous comparison between interrogation methods that do and don’t involve torture isn’t possible, and (2) studies of this sort would be transparently unethical. This hasn’t stopped the CIA from pursuing a research-based answer. Recently-released documents, reviewed here for the first time, reveal that the Agency looked to science for a resolution and raise the explosive possibility that the CIA conducted a clandestine program of human-subjects research on the risks and efficacy of torture. What can be said, based on the available science, is that there’s no evidence that torture is more effective than lawful interrogation, and some reason to suspect that interviewing strategies grounded in state-of-the-art understandings of persuasion and cognition work best of all. What can also be said is that: (1) America’s post-9/11 torture program wrecked lives, and (2) torture has wide appeal, as symbolic riposte to the powerlessness many feel in the face of vertiginous economic and cultural change.
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The Accidental Death Penalty

By | TLR Vol. 95-6 | No Comments

Manderly considers Carol and Jordan Steiker’s new book, Courting Death: The Supreme Court and Capital Punishment, which he calls “an extraordinary scholarly achievement” that “immediately takes its place as the seminal text” on capital punishment. He describes Courting Death “most damningly [as] a condemnation of the way the Supreme Court—and lawyers in general—talk about complicated ethical issues, a vivid illustration of how disempowering and problematic it is for judges to drape themselves ‘in the longiloquent language of a generalized logic.’”
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Potential Life In The Doctrine

By | SA Vol. 95 | No Comments
Professor Litman responds to Profesors Chemerinsky and Goodwin’s recent article and argues that while the threat to abortion rights is real, it is not just from the undue burden standard: it is from politicians who, with the help of lawyers, will continue to try and legislate abortion out of existence and drain the legal standards governing abortion of any meaning.

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Filling the Texas Federal Court Vacancies

By | SA Vol. 95 | No Comments
In this essay, Professor Tobias surveys the history of modern appointments complications and the Texas judicial vacancy crisis. Professor Tobias argues that expanding caseloads, increasing appellate and district court judgeships, and rampant partisanship have clearly undermined selection efforts across the country and Texas, which is ground zero for the “confirmation wars.”

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Understanding Immigrant Protective Policies in Criminal Justice

By | SA Vol. 95 | No Comments
Professor Jain responds to Professor Eagly’s recent article by situating Professor Eagly’s discussion of “immigrant protective policies” in the context of recent federal efforts to regulate “sanctuary” jurisdictions. Professor Jain argues for the need to unpack the motivations that guide law enforcement officials in responding to collateral consequences. The response also considers the implications of Eagly’s analysis in light of a broader blurring of the boundaries of civil and criminal law.

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Rethinking the Choice of “Private Choice” in Conceptualizing Abortion: A Response to Erwin Chemerinsky and Michele Goodwin’s Abortion: A Woman’s Private Choice

By | SA Vol. 95, Uncategorized | No Comments
Professors Rimalt and Yefet respond to Dean Chemerinsky and Professor Goodwin’s recent article by arguing for a supplementary equality framing that defines the scope and substance of the right to abortion on the basis of equal treatment standards and measures the female right against other comparable male rights.

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Against Gay Potemkin Villages: Title VII and Sexual Orientation Discrimination

By | SA Vol. 96 | No Comments
Professor Kreis examines a recent ruling from the Eleventh Circuit Court of Appeals that Title VII does not prohibit sexual orientation employment discrimination. He argues against the position taken by one member of the panel that, for Title VII’s purposes, sexual orientation as a status is severable from individuals’ same-sex attractions. The piece examines why this status-conduct dichotomy theory is both inconsistent with Supreme Court gay rights precedents and Title VII’s protections against racial and religious discrimination. Please note that this draft version is subject to change.

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Young Adults Are Different, Too: Why and How We Can Create a Better Justice System for Young People Age 18 to 25

By | SA Vol. 95 | No Comments
In this note, Stamm argues for folding young adults into the juvenile justice system by reviewing the various ways in which many states have already taken the lessons of the juvenile system—lots of treatment and programming, age-limited facilities, shorter sentences, and sealed records—and applied them to the developmentally similar young adult population.

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News

Volume 96 Editorial Board

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The Texas Law Review is proud and excited to announce the Editorial Board for Volume 96. The members of Volume 95 are happy to pass the torch to such a fantastic group of people. View the Volume 96 Editorial board Masthead.

TLR Presents: Tallinn Manual 2.0

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The Texas Law Review, the Robert S. Strauss Center for International Security and Law at the University of Texas at Austin, and the Lieber Institute for Law & Land Warfare at the United States Military Academy are hosting a symposium on the soon-to-be-released Tallinn Manual 2.0. Visit www.tallinnmanualsymposium.com for more information and registration.

Congratulations Volume 95 New Members!

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The Texas Law Review is proud to announce its volume 95 membership!  Congratulations to all our new members, and welcome to TLR! The Masthead is now available for download.

Congratulations Volume 94 New Members!

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The Texas Law Review is proud to announce its volume 94 membership!  Congratulations to all our new members, and welcome to TLR! The Masthead is now available for download.