Digital Commons Network^™

Foreum Non Conveniens Misconstrued: A Response To Henry Saint Dahl, Michael Wallace Gordon

University of Miami Inter-American Law Review

No abstract provided.

Pragmatic Responses To Interpretive Impediments: Article 7 Of The Cisg, An Inter-American Application, Shani Salama

University of Miami Inter-American Law Review

No abstract provided.

Official Language A, B, Cs: Why The Canadian Experience With Official Languages Does Not Support Arguments To Declare English The Official Language Of The United States, Marla B. Somerstein

University of Miami Inter-American Law Review

No abstract provided.

Brazil's Ip Opportunism Threatens U.S. Private Property Rights, Lawrence A. Kogan

University of Miami Inter-American Law Review

No abstract provided.

Sovereignty Of Aves Island: An Argument Against Compulsory, Standardized Arbitration Of Maritime Boundary Disputes Subject To Review By The International Court Of Justice, M. Scott Garrison

University of Miami Inter-American Law Review

No abstract provided.

The World Court's Advisory Function: "Not Legally Well-Founded", David L. Breau

University of Miami International and Comparative Law Review

No abstract provided.

Aerospace And Antitrust: How The European Union Supports Its Interests To The Detriment Of United States' Companies, Jason Thompson

University of Miami International and Comparative Law Review

No abstract provided.

Oppression Through Violence: The Case Of Colombia - An Expansion Of The Fetish Object, Harris J. Corey

North Carolina Central Law Review

No abstract provided.

Through The Looking Glass: What A Comparison With The New Polish Legal Framework Of Arbitration Reveals About The U.S. Legal Framework Of Arbitration, Adam J. Sulkowski

ExpressO

In Poland, domestic and international arbitrations are regulated by the Civil Procedure Code. A completely new set of regulations concerning arbitration went into effect in October, 2005. A comparison of the Polish and American legal frameworks of arbitration reveals many similarities and a few key differences. The differences involve the powers of arbitrators to decide upon their own jurisdiction, the arbitrability of employment disputes and the consequences of failure to consider applicable national law. Comparing how similar cases would be resolved under the new Polish standards and U.S. standards raises the question of how U.S. standards evolved and whether they …

Theories Of Supranationalism In The Eu, Rafael Leal-Arcas

ExpressO

Supranationalism has been a topic of analysis from various points of view when trying to understand the process of European integration. This article aims at presenting the major theories of supranationalism when discussing the ongoing process of European integration. Three main theories are examined: 1) normative versus decisional supranationalism; 2) theories of partial integration, and 3) legal theories of economic integration (such as the neo-liberal economic policy, the European Community (EC) as a special-purpose association of functional integration, as well as the theory of the supranational and intergovernmental dual structure of the EC).

Tribal-State Gaming Compacts And Revenue Sharing Provisions: Are The States Upping The Ante? , Richard L. Skeen

ExpressO

In the ten years following, the Supreme Court’s ruling in the Seminole Tribe v. Florida, Indian Gaming has grown to over a $19 billion a year industry, in 26 States, involving over 241 Approved Class III Tribal Gaming Ordinances. States have been eager to get a piece of this ever-increasing pie. Some commentators have predicted that States will be reluctant to enter into new compacts or renew existing compacts, however, other’s have indicated that States will continue to demand a percentages of Gaming revenues.

This comment addresses the central issue of whether the Tribal-State compacts entered into subsequent to the …

Empire Has Its Own Hurdles: Exploring The Nature Of Exceptionalism And Its Consequences For International Law And Multilateral Decision-Making, Saptarishi Bandopadhyay

ExpressO

While it is increasingly becoming a platitude that exceptionalism exists in international law, little is being said about the nature, degrees of this exceptionalism and their differential consequences on the international legal system.

In my effort to bridge what I see as an oversight, this paper will seek to show how contemporary exceptionalist practices are creating a fault in the international legal order which will in turn provide a basis for others to argue for an overall reformulation of rules i.e. actions in contravention of the multilateral international legal framework would no longer need to be justified by manipulative rule …

Legal Consciousness And Contractual Obligations, Kojo Yelpaala

ExpressO

The Article on “Legal Consciousness and Contractual Obligations” will explore and offer an explanation of the origins of the moral foundations for contractual obligations beyond conventional analysis. Building on themes and threads across many disciplines and theories, it seeks to identify and locate certain unities and common elements that explain human consciousness in exchange relations across cultures. The term contract is used in its non-technical and most inclusive sense to cover agreements, promises, undertakings and other forms of consensus whether or not supported by consideration. Viewed within this broad conceptual framework, where do human beings get the idea that they …

The Death Of The Doha Round. What Next For Services Trade?, Rafael Leal-Arcas

ExpressO

With the indefinite suspension of the WTO multilateral trade negotiations in July 2006 by WTO Director-General Pascal Lamy, the world trading system must now find ways and means to unblock what is perceived as a danger to the world order. This article analyzes the legal and policy implications of the currently fatal Doha Round for the two main developed WTO Members, i.e., the U.S. and the EC, and the most relevant developing countries of the WTO. The specific focus of attention will be mainly on services trade. Thoughts on alternative ways to move forward in the multilateral trading system are …

Article 17 And The Scope Of Trademark Protection Afforded Under The Trips Agreement, Katja G. Weckstroem

ExpressO

The protection of trademarks, when it raises a conflict with the protection of geographical indications is one of the most contested issues on the international trade and intellectual property arena. In European Communities - Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs a WTO panel was faced with this issue. The panel report gives some insight into what international trademark law mandates as well as some pointers on how conflicts between different IP rights should be solved. This article attempts a deeper analysis of the coexistence of rights in the framework of the TRIPS Agreement that will …

China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto

ExpressO

The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict—namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China’s impressive economic record is threatened …

Polycephalous Anatomy Of The Ec In The Wto: An Analysis Of Law And Practice, Rafael Leal-Arcas

ExpressO

This article analyzes the unique legal position of the European Community (EC) in the world trading system. Its polycephalous anatomy derives from the fact that all 25 Member States of the EC are members of the World Trade Organization (WTO) along with the EC itself. This means that when referring to the EC, the whole as well as its parts are independent Members of the WTO. This has legal and political consequences related to the allocation of powers between the national and supranational levels that will be analyzed. The article explains what is meant by a “mixed agreement” and analyzes …

Toward A New Economic Constitution: Judicial Disciplines On Trade Politics, Sungjoon Cho

ExpressO

This article first observes that protectionism is an icon of trade politics and thus likely to gather fresh momentum as a domestic election approaches. The paper then problematizes protectionism beyond mere seasonal election politics by revealing its fatal pathologies both to the United States and to the rest of the world. Protectionism basically caters to the special interest at the expense of the larger public interest, which may be coined as a Madisonian constitutional failure. It also deviates from global trading norms, which the United States hypocritically continues to preach adherence to for the rest of the world. This double …

How To Sue Without Standing: The Constitutionality Of Citizen Suits In Non-Article Iii Tribunals, David Krinsky

ExpressO

In recent years, the “injury-in-fact” standing requirement of Article III has frequently impeded attempts by concerned citizens and public interest groups to challenge government actions in federal court.

This article proposes a way in which “citizen suits”—lawsuits brought by plaintiffs who wish to challenge perceived illegalities that affect the public as a whole—can be given a federal forum. It argues that, with some limitations, Congress has authority to authorize pure citizen suits in Article I tribunals, and discusses the (surmountable) obstacles that such fora pose.

After discussing the constitutionality of citizen suits in Article I tribunals, the article then turns …

Toward An International Criminal Procedure: Due Process Aspirations And Limitations, Gregory S. Gordon

ExpressO

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial …

Digital Consumption Tax (D-Ct), Richard Thompson Ainsworth

Faculty Scholarship

Modern technology is dramatically changing the way consumption taxes are collected, but it is also changing the way policymakers assess the operation and impact of these taxes. Whether the design is a standard credit-invoice value added tax (VAT) of European design, or a retail sales tax (RST) of American design, or the credit subtraction VAT without invoices type of consumption tax (CT) of Japanese design, technology is having a profound impact.

Government certified transaction software is in place in the United States. The Streamlined Sales Tax offers taxpayers in 18 states the option of having their retail sales tax determined …

A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch

ExpressO

This Article argues that the use of structural injunction remedies by South African courts is appropriate, and, in light of demonstrated government inaction, often necessary in order to give meaning to the protection of socio-economic rights, which is mandated by their Constitution. The Article draws upon numerous United States judicial decisions where structural injunctions have been successfully implemented to address systemic institutional inaction and violations of the equal protection and due process clauses of the United States Constitution. In numerous instances, the South African government has not acted to effectively give meaning to the socio-economic rights which were broadly declared …

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …

The Relevance Of Corporate Theory To Corporate And Economic Development: Comment On The Transplantation Of The Legal Discourse On Corporate Personality Theories, Lawrence E. Mitchell

Washington and Lee Law Review

No abstract provided.

Personification In Three Legal Cultures: The Case Of The Conception Of The Corporate Unit, Gregory A. Mark

Washington and Lee Law Review

No abstract provided.

Comment On Brian R. Cheffins, Dividends As A Substitute For Corporate Law: The Separation Of Ownership And Control In The United Kingdom, Lynne L. Dallas

Washington and Lee Law Review

No abstract provided.

Administrative Agencies: A Comparison Of New Hampshire And Federal Agencies’ History, Structure And Rulemaking Requirements, Scott F. Johnson

The University of New Hampshire Law Review

[Excerpt] "In this day and age it is difficult to think of anything that is not regulated in some way by a state or federal agency. State and federal agencies routinely make decisions that impact our daily lives. The air we breathe, the water we drink, the food we eat, the clothes we wear, and the places where we live and work are all regulated to some extent.

Agencies sometimes regulate things in ways that lead to strange results. For example, New Hampshire, state regulations allow anyone to own a yak, a bison, a wild boar, or an emu, but …

Dividends As A Substitute For Corporate Law: The Separation Of Ownership And Control In The United Kingdom, Brian R. Cheffins

Washington and Lee Law Review

No abstract provided.

The Transplantation Of The Legal Discourse On Corporate Personality Theories: From German Codification To British Political Pluralism And American Big Business, Ron Harris

Washington and Lee Law Review

No abstract provided.

Water Privatization In The Philippines: The Need To Implement The Human Right To Water, Sarah I. Hale

Washington International Law Journal

Water is widely recognized as an essential element to sustain life, yet attaining universal access to clean drinking water remains a perplexing issue throughout the lesser-developed world. In 1997, with backing from private investment and the World Bank, the Philippine government privatized the municipal water utility of Manila in an effort to improve service and promote efficiency. Nearly ten years later, privatization has failed to produce results and instead has engendered a contentious and polemical debate about the merits of privatization. Indeed, for policy makers, the case study of Manila has become a focal point in the debate about whether …