Volume 34 Number 1 -- November 2000

TABLE OF CONTENTS

THE SEVENTH ANNUAL FRITZ B. BURNS LECTURE

THE WAR POWERS RESOLUTION AND KOSOVO

INTRODUCTION

by Allan Ides

THE WAR IN KOSOVO: FAILED LESSONS OF INCREMENTALISM

by C. Boyden Gray

In his speech, Boyden Gray examines the legality of U.S. actions in the war in Kosovo and provides that in the absence of any direct threat to national security, and without congressional approval, said actions were of questionable legality (even if a court is incompetent to rule on the issue). The humanitarian goals sought by the United States through the bombings were undermined because President Clinton failed to get formal congressional authorization of war. Instead, the Clinton administration approached the war in a graduated and incremental process in order to avoid having to justify its actions domestically, thus unnecessarily prolonging the suffering on both sides. During the Vietnam War, President Lyndon Johnson applied incrementalism to his military operations and led the nation down an unfortunate path in history. Subsequent leaders have recognized that incrementalism does not win war. Rather, incrementalism undermines inter-branch relations between the executive and legislative branches, as well as prolongs armed conflict. Therefore, the Clinton administration’s return to incrementalism during the war in Kosovo not only failed to profit from the contrasting lessons of the Vietnam and Gulf Wars but also set a bad precedent for future military actions.

WAR POWERS AND THE MILLENNIUM

by Paul W. Kahn

In this Article, Professor Paul W. Kahn argues that scholars examining Congress’s power to declare war have generally failed to confront the most important contemporary issue: reconciling American constitutional law with the emerging international legal order of human rights. Congress’s war-declaring power traditionally functioned as a point of intersection between the regime of international law and that of domestic law. Both of these regimes, however, changed dramatically in the latter part of the twentieth century. With the United Nations Charter, the category of war disappeared from international law. Internationally, a declaration of war is now a meaningless act. Domestically, the structural incapacities of Congress to act in the area of foreign affairs have substantially increased in the last fifty years. The hope that the wardeclaring function of Congress can serve a legitimating function with respect to the use of force is untenable in light of this incapacity. In any case, claims that presidential uses of force are not adequately responsive to the public will mistake contemporary problems for those of the last generation. Efforts to reinvigorate Congress’s war-declaring power are unlikely to serve any significant democratic purpose, but are likely to disable the emerging international regime of human rights enforcement.

THE POWER TO MAKE WAR

by Dennis J. Kucinich

In his speech, Congressman Dennis Kucinich criticizes the Clinton administration’s involvement in the war in Kosovo as an abuse of congressional war-making power. The War Powers Resolution grants the executive the power to commit the nation to war for sixty days without the approval of Congress. Congressman Kucinich argues that this power is an encroachment upon Congress’s war-making power and antithetical to the checks and balance system of the Constitution. Additionally, because the War Powers Resolution did not require congressional authorization to wage massive war during the sixty days, he believes that the Resolution became the catalyst for the atrocious abuse of human rights by U.S.-NATO actions.

THE WAR POWERS RESOLUTION AND KOSOVO

by Abraham D. Sofaer

In his speech, Judge Abraham Sofaer examines the question whether the war in Kosovo was appropriately authorized by Congress in the manner provided by the War Powers Resolution. The War Powers Resolution provides that congressional approval is established for a military action when Congress explicitly declares its authorization in a law pursuant to the Resolution’s requirements. Judge Sofaer argues that while Congress made no such official declaration of war during Kosovo, the measures that Congress adopted following the deployment of U.S. troops into Yugoslavia implied authorization and established its approval. As such, the Resolution’s provision with respect to the form of congressional authorization of military action should be repealed because it gives Congress a way of saying that it did not approve a war that it not only tolerated, but also condoned and financially supported.

ARTICLES

A COMPARISON OF THE ADMINISTRATIVE LAW OF THE CATHOLIC CHURCH AND THE UNITED STATES

by Rev. John J. Coughlin, O.F.M

In this Article, Rev. John Coughlin compares the administrative law of the Roman Catholic Church to that of the federal law of the United States. Rev. Coughlin reviews the procedures for recourse against an act of administrative power prior to review at the supreme tribunals of each system of law. He describes the structures of both the Apostolic Signatura and the U.S. Supreme Court, and compares and contrasts the procedural safeguards of the two systems. In addition, Rev. Coughlin examines the competencies and jurisdiction of each system of administrative justice. Through this unlikely comparison, the Article promises to yield significant insight for a wide spectrum of legal experts in the fields of comparative law, canon law, constitutional law, and administrative law.

LAWLESS LAW? THE SUBVERSION OF THE NATIONAL LABOR RELATIONS ACT

by Ellen J. Dannin and Terry H. Wagar

Since the mid-1950s, the United States has witnessed a dramatic decline in union density -- especially in the private sector. Studying several hundred cases decided by the National Labor Relations Board, Professors Ellen J. Dannin and Terry H. Wagar contend that the court-developed doctrine of implementation upon impasse, which allows an employer to implement its final offer upon reaching an impasse, has now become a tool for lawlessness and has greatly contributed to the decline of union density. A law enacted to promote collective bargaining, the authors believe, has, instead, subverted the collective bargaining process. Since the doctrine has strayed so far from the goals of the National Labor Relations Act, the authors propose that the doctrine undergo major reform or even reversal.

CALIFORNIA COMMENTARY ON THE RESTATEMENT OF THE LAW THIRD, SURETYSHIP AND GUARANTY

by The UCC Committee of the Business Law Section of the State Bar of California

Since its initial adoption, the Restatements have been a source of authority and guidance for California courts. The Restatement of the Law Third, Suretyship and Guaranty is the most modern study and analysis of law and policy in this field. Although California law on the subject is formally codified, this area of California law is to a significant degree developed and embodied in judicial decisions, giving courts valuable guidance in construing the California Civil Code in light of modern notions of suretyship law. Thus, the common law of suretyship continues to be of significant relevance in California. In this report, the UCC Committee of the Business Law Section of the State Bar of California offers a commentary on the extent to which the Restatement of Suretyship is consistent with current California law.

COMMENT

APPLYING MURPHY BROS. V. MICHETTI PIPE STRINGING, INC. TO REMOVAL IN MULTIPLE-DEFENDANT LAWSUITS

by Barbara A. Wiseman

In Murphy Bros. v. Michetti Pipe Stringing, Inc., the United States Supreme Court clarified that a defendant’s thirty-day time limitation to remove a case from state to federal court begins to run only after service of process has occurred. While the Court clarified the time for removal in single-defendant lawsuits, there has been a split among circuits as to how to apply this same time limitation in cases involving multipledefendants. This Comment analyzes the different approaches taken by the Fourth, Fifth, and Sixth Circuits in light of the decision in Murphy Bros. This Comment concludes that courts should follow the Sixth Circuit’s approach to removal in multiple-defendant cases, allowing each defendant thirty days from the time in which they are officially served.