Digital Commons Network^™

Our Exceptional Constitution, Timothy Zick

Timothy Zick

No abstract provided.

Inter-Country Adoption And The Special Rights Fallacy, James G. Dwyer

James G. Dwyer

No abstract provided.

Ashes To Ashes: Comparative Law Regarding Survivors’ Disputes Concerning Cremation And Cremated Remains, Eloisa Rodriguez-Dod

Eloisa C Rodríguez-Dod

One should plan for unassuming post-mortem issues, as most state laws do not provide a complete framework when there is no testamentary instruction by the deceased. Judicial determination is often needed, however reported opinions are scarce. Final disposition issues also arise in foreign law. Spain has no civil code regarding disposition of a deceased but delegates its funerary laws to local governments and autonomous communities, while the French have established an order of priority for funerary decisions and provide for a judicial determination and stay of the funerary process in case of dispute. The author gives a brief history of …

Revisiting The Notion Of Full Protection And Security Of Foreign Direct Investments In Post-Gadhafi Libya: Two Governments, Tribal Violence, Militias, And Plenty More, Nasser A. Alreshaid

Nasser A Alreshaid

The escalating violence and deteriorating conditions in today’s Libya have questioned the very likelihood of the survival of foreign investments there. Deemed an oil-producing hub, many oil concessions have been granted to foreign investors in Libya. The challenge that follows is how to legally ensure the full protection and security of investors. This notion is tested in the post-Gadhafi Libya situation in the context of a two-government state, where militias with extremist ideologies in most instances, defy an internationally recognized government and take control over Libyan territories. Such territories contain oil terminals, which leads to a partial or complete disruption …

Catholic Social Teaching, The Right To Immigrate And The Right To Regulate Borders: A Proposed Solution For Comprehensive Immigration Reform Based Upon Catholic Social Principles, Chad G. Marzen, William Woodyard

Chad G. Marzen

In the past decade, policymakers from various perspectives have discussed and debated proposals to reform America’s immigration system. This article discusses not only the history of the Catholic legal and intellectual tradition’s contribution to social teaching on the issue of immigration, but emphasizes the development of two strands of Catholic thought: the right to immigrate, and the right to regulate borders. Applying the Catholic legal and intellectual tradition, this article provides a proposal for immigration reform that incorporates key tenets of Catholic social thought.

Internet Governance Is Our Shared Responsibility, Vinton Cerf, Patrick Ryan, Max Senges

Patrick T. Ryan

This essay looks at the the different roles that institutions play in the Internet governance ecosystem. We propose a model for thinking of Internet governance within the context of the layered model of the Internet. We use the example of the negotiations in Dubai in 2102 at the World Conference on International Telecommunications to show why it is important for different institutions within the governance system to focus on their areas of expertise (e.g., the ITU, ICANN, and IGF). Several areas of conflict are reviewed, such as the desire to promote more broadband infrastructure (a topic that is in the …

Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty

Benjamin C McCarty

The drafters of the 1958 New York Convention intended Article V(2)(b) to be interpreted narrowly, and while most pro-arbitration national courts do maintain narrowly defined areas of public policy that are sufficient for refusal of the recognition and enforcement of a foreign arbitral award, this is not always the case. Developing states and jurisdictions that maintain corrupt or inefficient judicial systems have shown a greater willingness to invoke the public policy exception for a broader, amorphous variety of reasons. This phenomenon has created a sense of unpredictability among international investors, arbitrators, and business executives as to the amount of deference …

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

The Tortureres: Evaluating The Senate Select Intelligence Committee’S Torture Report And Assessing The Legal Liability Of “Company Y” In The Cia’S Post 9-11 Interrogation And Detention Program Under The Alien Tort Statute, David Satnarine

David Satnarine

The U.S. national security apparatus after September 11, 2001 engendered an emphasis of new forms of intelligence gathering. The U.S. Central Intelligence Agency, the United States and its agents sought to collect as much information as possible to prevent another attack on the homeland, and to bring to justice those responsible for the heinous acts of September 11, 2001. Through the use of private actors, corporate shells, and contractors, the United States employed a host of professional interrogators in its war on terror. Some of these private actors, through their corporate shells later become known as the architects of the …

Framing The Responsibility To Protect Doctrine As A Means Of Legal And Moral Intervention With Universal Jurisdiction Legal Obligations Of The Responsibility To Protect Doctrine And Universal Civil Jurisdiction In The Syrian Civil War Crisis, David Satnarine

David Satnarine

No abstract provided.

Democracy And Torture, Patrick A. Maurer

Patrick A Maurer

September 11th spawned an era of political changes to fundamental rights. The focus of this discussion is to highlight Guantanamo Bay torture incidents. This analysis will explore the usages of torture from a legal standpoint in the United States.

Transplanting Contractual Terms: The Influence Of The Common Law In The Civil Law Of Contracts, A View From The Periphery, Dario Laguado

Dario Laguado

This paper suggests a model of contractual innovation that takes into account the bottom-up transplant of legal devices from the core to the periphery. This model properly weighs the tension and differences between places of production and places of reception and the process of misreading that goes along with the transplant. It serves to explain the innovation that has been produced as a result of the influence of common law contracts in Colombia and South America. Evidence shows that this model can be generally applied to the process of transplantation in many jurisdictions around the world. The main features of …

Measuring State Compliance With The Right To Education Using Indicators: A Case Study Of Colombia’S Obligations Under The Icescr, Sital Kalantry, Jocelyn Getgen, Steven A. Koh

Sital Kalantry

The right to education is often referred to as a “multiplier right” because its enjoyment enhances other human rights. It is enumerated in several international instruments, but it is codified in greatest detail in the International Covenant on Economic, Social and Cultural Rights (ICESCR). Despite its importance, the right to education has received limited attention from scholars, practitioners, and international and regional human rights bodies as compared to other economic, social and cultural rights (ECSRs). In this Article, we propose a methodology that utilizes indicators to measure treaty compliance with the right to education. Indicators are essential to measuring compliance …

Copyrightability Of Music Compilations And Playlists: Original And Creative Works Of Authorship?, Marc Fritzsche

Marc Fritzsche

With the digitalization of music and the increasing popularity of online streaming services, people can conveniently create their own playlists and music compilations at will and share them worldwide. Imagine a world in which any selection and arrangement of songs, whether made by you, a DJ, a radio station, or a record label, is protected under the regime of Copyright Law. The result would be a vast amount of copyright infringements when a playlist or compilation gets mimicked by others. Thus far, only the High Court in London, UK, was confronted with this problem, but the parties settled, leaving the …

Infringement As Unfair Competition: A Blueprint For Global Governance?, Sean Pager, Eric Priest

Sean Pager

INFRINGEMENT AS UNFAIR COMPETITION: A BLUEPRINT FOR GLOBAL GOVERNANCE?

Sean A. Pager Michigan State University College of Law

Eric Priest University of Oregon School of Law

ABSTRACT

This Article examines a new approach to address persistent regulatory failures in global supply chains. In a series of recent cases, unfair competition actions have been brought in U.S. court against foreign manufacturers who infringe software overseas under the theory that the cost savings from infringement confers an unfair advantage in U.S. markets. While this theory has been advanced in the intellectual property context, the same approach could work to target abuses in …

The French Jury At A Crossroads, Valerie P. Hans, Claire M. Germain

Claire Germain

This article describes the contemporary landscape of the French jury. Putting the institution in its historical and political context, it begins with an overview of the rich history of the French jury. We describe the earliest form of community judgment in France, the introduction of a formal jury system following the French Revolution, and the political and legal influences that transformed it from an independent body of lay citizens to a mixed decision-making body of professional and lay judges. We next identify characteristic features of contemporary French jury trial procedure and the respective roles and responsibilities of professional and lay …

Unpacking The International Law On Cybersecurity Due Diligence: Lessons From The Public And Private Sectors, Scott J. Shackelford

Scott Shackelford

Although there has been a relative abundance of work done on exploring the contours of the law of cyber war, far less attention has been paid to defining a law of cyber peace applicable below the armed attack threshold. Among the most important unanswered questions is what exactly nations’ due diligence obligations are to one another and to their respective private sectors. The International Court of Justice (“ICJ”) has not yet explicitly considered this topic, though it has ruled in the Corfu Channel case that one country’s territory should not be “used for acts that unlawfully harm other States.” But …

Transatlantic Perspective On Judicial Deference In Administrative Law, Maciej Bernatt

Maciej Bernatt

The U.S. concept of judicial deference in administrative law limits the scope of judicial review of administrative agencies’ actions in the light of agencies’ superior expertise and separation of powers arguments. It may serve as an interesting point of reference for the European discussion about adequate institutional balance between administration and courts. The paper analyzes whether there are grounds for the validity of the concept of judicial deference in Continental Europe and in what areas (law, facts or both). As a starting point it is observed that it remains generally accepted in Europe that it is a role of courts …

Developing An International Carbon Tax Regime, Steven Specht

Steven Specht

As atmospheric CO2 remains in the range of 400 ppm, it is necessary to find new international coordination to deal with climate change. The best way forward is an international regime of harmonized domestic carbon taxes. By agreeing to a minimum amount of taxation on domestic, point-source producers, money can be set aside for adaptation costs and alternative means of energy production. Finally, such a plan will overcome the problem of non-participation of countries in agreements like the Kyoto Protocol. As this is a treaty dealing with economics and trade, countries can place taxes on imports of non-participatory countries under …

When “One Country, Two Systems” Meets “One Person, One Vote”: The Law Of Treaties In The Crucible Of Hong Kong’S Election Crisis, Gregory S. Gordon

Gregory S. Gordon

In Hong Kong’s recent election crisis, an uprising against China’s pre-selecting candidates for Chief Executive and thus foreclosing civic-nomination, both sides (establishment and pro-democracy) have attempted to interpret the term “universal suffrage” based exclusively on its inclusion in Hong Kong’s mini-constitution, the Basic Law. In so doing, however, they have given short shrift to the agreement that gave rise to the Basic Law in the first place: the 1984 Sino-British Joint Declaration. But while the Joint Declaration provides important textual insights, it simultaneously raises significant issues regarding application of the law of treaties. For example, did the Joint Declaration terminate …

International Trade V. Intellectual Property Lawyers: Globalization And The Brazilian Legal Profession, Vitor M. Dias

Vitor M. Dias

No abstract provided.

Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Julian Ku, Roger Alford, Bei Xiao

Julian Ku

This Article represents the most recent comprehensive effort to assess China’s record in the enforcement of arbitration awards issued outside of China. This Article fills two gaps in academic literature on China’s treatment of foreign arbitral awards. First, unlike studies that rely mainly on anecdotal evidence, this study reviews and analyzes the reasoning of leading Chinese judicial opinions interpreting and applying China’s obligations under the New York Convention. Second, unlike prior empirical studies of Chinese courts’ enforcement rates, this study also surveys global arbitration practitioners to find out information about their experiences enforcing foreign arbitral awards in China. The Article …

Buried Treasure Or Buried Hope? The Status Of Mexico-U.S. Transboundary Aquifers Under International Law, Gabriel E. Eckstein

Gabriel Eckstein

Transboundary aquifers found along the 2,000 mile-long border between Mexico and the United States are not governed by any treaty. Yet, these aquifers are the primary source of water for many of the twelve million people who live in this parched region. The region’s groundwater, however, is being over-exploited and contaminated, which is threatening the very life that it currently sustains. As populations continue to expand and current rates of haphazard development persist, the absence of an agreement for the management and allocation of this critical resource could lead to bi-national economic, social and environmental tragedies. This study reviews groundwater …

Rethinking Transboundary Ground Water Resources Management: A Local Approach Along The Mexico-U.S. Border, Gabriel E. Eckstein

Gabriel Eckstein

Despite more than forty years of promises to the contrary, neither Mexico nor the United States have shown any inclination to pursue a border-wide pact to coordinate management of the border region’s transboundary ground water resources. As a result, these critical resources – which serve as the sole or primary source of fresh water for most border communities on both sides – are being overexploited and polluted, leaving the local population with little recourse. Imminently unsustainable, the situation portends a grim future for the region. In the absence of national governmental interests and involvement on either side of the frontier, …

Secession: The Contradicting Provisions Of The United Nations Charter – A Direct Threat To The Current World Order, N. Micheli Quadros

N. Micheli Quadros

The preamble of the United Nations' Charter (hereinafter UN Charter) presents its members declaration under which justice and respect for international law and the international community is supposed to be maintained. To date, the United Nations (UN) has failed to ensure international peace by allowing powerful states to infringe upon other nations’ territorial integrity and manipulate individuals to exercise their right of self-determination.

Outdated, redundant and vague provisions that proved their inefficiency have plagued the UN Charter. Chapter I, Art 1 § 2 of the UN Charter, states that one of the main purpose of the UN is “to develop …

A Comparison Of The Jurisprudence Of The Ecj And The Efta Court On The Free Movement Of Goods In The Eea: Is There An Intolerable Separation Of Article 34 Of The Tfeu And Article Of 11 Of The Eea?, Jarrod Tudor

Jarrod Tudor

Article 11 of the European Economic Area (“EEA”) and Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) prohibit quantitative restrictions on the free movement of goods. The EEA is monitored by the European Free Trade Area Court (“EFTA Court”) and the TFEU is monitored by the European Court of Justice (“ECJ”). In theory, the EFTA Court and the ECJ should interpret Article 11 and Article 34 in the same manner in order to promote harmonization of the law on the free movement of goods and allow for further economic integration between EFTA and the EU. …

Afghan Juvenile Code In Practice: Assessing Against International Juvenile Law, Christopher W. Carlson Jr.

Christopher W. Carlson Jr.

This Article assesses and compares Afghanistan’s juvenile procedures with the systems and norms advocated by the United Nations (“UN”). The Afghan Juvenile Code of 2005 is compared with the UN Convention on the Rights of the Child’s four key guidelines. The four guidelines include: (1) imprisonment of juveniles “shall be used only as a measure of last resort”; (2) any such imprisonment shall be “for the shortest appropriate period of time”; (3) juveniles who are in prison shall be “separated from adults”; and (4) they shall have the right to maintain “family contact.” These guidelines serve as a medium through …

The Free Movement Of Capital In Europe: Is The European Court Of Justice Living Up To Its Framers' Intent And Setting An Example For The World?, Jarrod Tudor

Jarrod Tudor

The benefits to free movement of international financial flows are numerous but include an efficient asset market and the opportunity for economic growth and development for countries engaged in an agreement allowing for such freedom. The free movement of capital is one of the four pillars of the Treaty on the Function of the European Union (TFEU) along with the free movement of goods, services, and labor. Article 63 of the TFEU prohibits limitations on the free movement of capital while Article 65 of the TFEU allows for some exceptions. Not only does the free movement of capital doctrine suppose …

Discriminatory Internal Taxation In The European Union: The Power Of The European Court Of Justice To Limit The Tax Sovereignty Of Member-States Under Article 110 Of The Tfeu, Jarrod Tudor

Jarrod Tudor

Protectionism can come in a variety of methods including the use of internal taxation policies that discriminate against imports making those imports more expensive on the domestic market and thus favoring domestically-produced goods. Discriminatory taxation policies have been developed by member-states to mask protectionism by distinguishing products based on import status, product similarity, product life cycle, consumption, tax collection practices, transportation charges, and state aid. The Framers of the Treaty on the Functioning of the European Union (TFEU) wrote Article 110 with the objective in mind to prohibit internal taxation policies from discriminating against goods in made in other member-states. …

“Ya Me Canse”: How The Iguala Mass Kidnapping Demonstrates Mexico’S Continued Failure To Adhere To Its International Human Rights Obligations, Justin A. Behravesh

Justin A. Behravesh

This article addresses the recent kidnapping and disappearance of forty-three college students from Iguala, Mexico (the “Iguala Mass Kidnapping”), under the lens of the International Convention for the Protection of All Persons from Enforced Disappearance (the “Convention”). While Mexico’s reporting documents on its compliance with the Convention paint a positive picture of how that country is adhering to Convention, any notion that the country was in compliance with the Convention was completely shattered through the Iguala Mass Kidnapping. The article concludes that the actions of state officials during the Iguala Mass Kidnapping violated articles one, six, and twenty-three of the …