Digital Commons Network^™

Smoked Success? Social, Cultural, And Legal Changes In The United States, Japan, And France Have Led To A Decline In Tobacco Use. Yet, Teenagers Refuse To Budge!, Dalila V. Hoover

Dalila V Hoover

Once considered a part of everyday life, tobacco consumption has become a global public health crisis that has transcended national borders. By the end of 2011, tobacco will have killed nearly six million people, including more than 600,000 of people exposed to tobacco smoke. If current smoking patterns continue, the toll will nearly double by 2030 with more than 8 million deaths. To safeguard the public’s health, the United States, Japan, and France have taken action to change the acceptability of smoking. Although they have adopted a different approach, they have successfully altered and redefined their cultural perception of tobacco …

A Critique Of The Doctrine Of Forum Non Conveniens, Markus A. Petsche

markus a petsche

In this article, I formulate a basic critique of the doctrine of forum non conveniens. Unlike other authors, I do not focus on the numerous problems posed by the actual application of this doctrine in practice (e.g. delaying effect on proceedings, incoherent decisions, and discrimination against foreign plaintiffs). Instead, I explore the validity of the theory of forum non conveniens, i.e. the question of whether forum non conveniens – if applied in the best possible manner – can at all be a useful legal rule. My starting point is the observation that, despite the prevalence of contrary views, forum non …

What Should Guide Determinations Of Foreign Official Immunity In Us Courts After Samantar?, Chris C. Morley

Chris C Morley

In the recent Samantar decision, the Supreme Court held that individual foreign officials were not covered by the Foreign Sovereign Immunities Act but might still be covered by common law immunity. This article analyzes the extent of that common law immunity and discusses whether more recent developments in domestic and international human rights law should impact the availability of immunity for officials accused of torture, extra-judicial killings, and other violations of the law of nations.

Although the bulk of authority from US and foreign courts suggests that foreign officials should enjoy immunity for acts committed within the scope of their …

Governing China’S Financial Disputes In The Aftermath Of The Global Financial Crisis Of 2008, Shahla F. Ali, Robin (Hui) Huang

Shahla F. Ali

In light of the recent global financial crisis of 2008, this article critically compares how China’s national arbitration commissions and local courts are responding to new challenges brought about by an increase in the number of banking related disputes. Drawing on comparative case analysis, the article examines the operation of CIETAC and the Shanghai Courts financial dispute resolution mechanisms in resolving financial disputes. Drawing on insights from selected case findings, the article provides insight into which institution is in the best position to handle financial-related cases, discusses prospects for coordination between the two and sets out proposals for further reform. …

Development Lending To Municipalities By The World Bank Group, Asheesh Bhalla

Asheesh Bhalla

The World Bank Group has recently shifted its development lending policies to have a greater focus on lending to municipalities and developing financial institutions and systems of market creation at the local level. The author reviews this policy shift, and the consequences of such policy changes on local government institutions and law.

Governing China’S Financial Disputes In The Aftermath Of The Global Financial Crisis Of 2008, Shahla F. Ali, Robin (Hui) Huang

Shahla F. Ali

In light of the recent global financial crisis of 2008, this article critically compares how China’s national arbitration commissions and local courts are responding to new challenges brought about by an increase in the number of banking related disputes. Drawing on comparative case analysis, the article examines the operation of CIETAC and the Shanghai Courts financial dispute resolution mechanisms in resolving financial disputes. Drawing on insights from selected case findings, the article provides insight into which institution is in the best position to handle financial-related cases, discusses prospects for coordination between the two and sets out proposals for further reform. …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

Localizing Religion In A Jewish State, Yishai Blank Prof.

Yishai Blank

Cities in Israel are regulating religion and controlling religious liberty. They decide whether to close down roads during the Sabbath, whether to limit the selling of pork meat within their jurisdiction, whether to prohibit sex stores from opening, and whether to allocate budgets and lands to religious activities. They do all that by using their regular local powers as well as special enablement laws which the Israeli parliament enacts from time to time. The immediacy of these issues, the fact that the traditional powers—business licensing, traffic and road control, spending and more—of local authorities touch upon many of them, and …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso Professor

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

Governing China’S Financial Disputes In The Aftermath Of The Global Financial Crisis Of 2008, Shahla F. Ali, Hui (Robin) Huang

Shahla F. Ali

In light of the recent global financial crisis of 2008, this article critically compares how China’s national arbitration commissions and local courts are responding to new challenges brought about by an increase in the number of banking related disputes. Drawing on comparative case analysis, the article examines the operation of CIETAC and the Shanghai Courts financial dispute resolution mechanisms in resolving financial disputes. Drawing on insights from selected case findings, the article provides insight into which institution is in the best position to handle financial-related cases, discusses prospects for coordination between the two and sets out proposals for further reform. …

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

Juscelino F. Colares

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

The Central American Constitutional Identity.- A Study Of The Constitutional Imitation Phenomenon In The Integration Process Of The Region, Lidia P. Castillo Amaya

Lidia P. Castillo Amaya

This paper will present some preliminary conclusions drawn after conducting the first stage of a research project, which intends to study the constitutional characteristics of the Integration Process of Central America (in its diachronic and synchronic dimension) by means of assessing its legal and extralegal formants in order to verify if its structure and modality are a result of a specific historical and cultural context with elements of originality and innovation; or if they are a mere consequence of a strict “constitutional imitation” of foreign external models (EU) shaped by the interests of the dominant economic elite; or if we …

Another Parallel With Silicon Valley: Non-Compete Clauses Under Israeli Law, Edo B. Royker

Edo B Royker

The attached Article contributes to the literature on the benefits of not enforcing non-compete provisions in fostering a start-up friendly environment. Many scholars have previously focused on this issue, but the current literature has primarily focused on comparing the state of the law between California and Boston alone. My article serves the novel function of providing a third focal point for this analysis – Israel – and provides an in depth analysis of Israeli statutory and case law on this issue. Introducing a third focal point will add empirical evidence to the debate on whether the failure to enforce such …

Vietnam, China, And The United States: The Regulatory Framework Of Mining Pollution And Water Quality, Heather Whitney

Heather Whitney

This paper compares the environmental, mining, and water quality policy and regulatory framework of three countries: Vietnam, China, and the United States. There are many similarities between China and Vietnam’s legal framework and environmental protection mechanisms, by virtue of the fact that they are both socialist countries, both authoritarian governments, and both in the midst of an industrial revolution. The United States intersects in some areas of water quality standards and technological controls of effluents with both countries, as well as certain enforcement measures. This is true especially in China, where the EPA has actively consulted the Chinese government in …

Suicide Killing Of Human Life As Human Right - The Continuing Devolution Of Assisted Suicide Law In The United Kingdom, William Wagner

William Wagner

SUICIDE KILLING OF HUMAN LIFE AS A HUMAN RIGHT

The Continuing Devolution of Assisted Suicide Law

in the United Kingdom

PROF. WILLIAM WAGNER, PROF. JOHN KANE, AND STEPHEN P. KALLMAN

ABSTRACT

Since the beginning of time, divine, natural, and positive law traditions of the United Kingdom reflected an inviolable standard that people should not assist in the killing of human life. This article reviews and analyzes the ancient inviolable benchmark, explaining why the common and statutory law of Britain historically reflected its moral reference point to prohibit assisted suicide. We then proceed to analyze a contemporary jurisprudential shift in Britain’s …

“You’Re Creating New Categories:” Anglo-American Radical Feminism’S Constitutionalism In The Streets, Yxta M. Murray

Yxta M. Murray

In this paper, I examine the constitutional meaning of two political protests: The 1968 Miss America protest by New York Radical Women and the 1970 British radical feminist protest of the Miss World competition in London. Using the work of Reva Siegel, Jack Balkin, and Lynda G. Dodd as a foundation for my inquiry into how these social movement protests influenced constitutional culture concerning women's rights, I first engage in historical and social analyses of the protests themselves. In particular, I study the different approaches the U.S. and British feminists had to using lawbreaking, violence, and other outrageous acts in …

Can The “Formidable Shield” Last: A Re-Examination Of Copyright Law As A Means To Control Uncopyrighted Gray Market Goods, Ya Xia

Ya Xia

To fight against gray market goods, the trademark law leaves certain trademark owners uncovered, who then turn to copyright law for help. It is lawful in the U.S. for copyright owners to stop importation and distribution of uncopyrighted goods through attaching copyrighted accessories. Such practices have been rendered unlawful in Australia and denounced by the Supreme Court of Canada. The paper aims to discuss the illegitimacy under the U.S. law through both the statutory interpretation approach and the copyright misuse approach.

“You’Re Creating New Categories:” Anglo-American Radical Feminism’S Constitutionalism In The Streets, Yxta M. Murray

Yxta M. Murray

In "You’re Creating New Categories:" Anglo-American Radical Feminism’s Constitutionalism in the Streets, I examine the constitutional meaning of two political protests: The 1968 Miss America protest by New York Radical Women and the 1970 British radical feminist protest of the Miss World competition in London. Using the work of Reva Siegel, Jack Balkin, and Lynda G. Dodd as a foundation for my inquiry into how these social movement protests influenced constitutional culture concerning women's rights, I first engage in historical and social analyses of the protests themselves. In particular, I study the different approaches the U.S. and British feminists had …

Rape In Conflict: Battling The Impunity That Stifles Its Recognition As A Jus Cogens Human Right, Michelle Marie Seyler

Michelle Marie Seyler

Jus cogens is defined as “peremptory norms of general international law from which no derogation is permissible.” Among the human rights issues that fall into this category, such as slavery and genocide, there is one that has yet to be elevated to this level of importance that unequivocally should be: rape in conflict areas.

This paper first overviews the history of rape in conflict, the reasons for its prevalence, and the affects it has on women and communities. Second, it discusses the legal tools currently available in the international legal field. Third, it establishes genocide as a jus cogens human …

Ocean Governance For The 21st Century: Making Marine Zoning Climate Change Adaptable, Robin K. Craig

Robin K. Craig

The variety of anthropogenic stressors to the marine environment—including, increasingly, climate change—and their complex and synergistic impacts on ocean ecosystems testifies to the failure of existing governance regimes to protect these ecosystems and the services that they provide. Marine spatial planning has been widely hailed as a means of improving ocean governance through holistic ecosystem-based planning. However, that concept arose without reference to climate change, and hence it does not automatically account for the dynamic alterations in marine ecosystems that climate change is bringing.

This Article attempts to adapt marine spatial planning to climate change adaptation. In so doing, it …

Factors To Consider Before Arbitrating In The Arab Middle East:, Radwa S. Elsaman Ms.

Radwa S Elsaman

This article discusses two significant factors affecting arbitration in the Arab Middle East: the effect of religion on arbitration and the effect of legislative constraints on arbitration. By presenting foreign investors and practitioners with an overview of some of the unique social, legal and religious issues distinctive to arbitration in the Arab Middle East, this article will provide foreign investors and practitioners with examples of factors to consider that can affect arbitration decisions in the Middle East.

Re-Consider The Approach To Determine The Constitutionality Of Regulations On Obscene Speech ── A Comparative Perspective From Taiwan Constitutional Court, Chen-Hung Chang

Chen-Hung Chang

In determining the constitutionality of regulations of obscene speech, the Taiwan Constitutional Court tends to follow the U.S. court standard－“definitional balancing approach”, under which all types of speech are categorized by definition in deciding which level of free speech protection shall be offered. Critics challenged that this approach over-simplifies the value of the speech in each single fact and fails to consider various factors on a case-by-case basis and is subject to a fatal risk that it might wrongfully categorize the speech in a particular case. This paper attempts to address the various approaches of obscene speech law and looks …

Reorienting Feminist Strategies Relating To Adult Transactional Sex, Suzanne Bouclin

suzanne bouclin

Feminist-informed policies around transactional sex continue to highlight and reinforce the ontological, epistemological and aesthetic disagreements between abolitionists and sex workers’ rights advocates. In this paper, I examine the Canadian context to provide some geographic and social specificity to such debates occurring through the global West. I review the anchoring concepts of feminist perspectives on the sale of sexual services by adults. I then suggest an intersectional understanding of sex work and deploy it to provide guidelines for addressing feminist concerns around commercial sex that avoid checkmated arguments and binary distinctions that do little to reduce the conditions of oppression …

De La Admiración A La Recepción Crítica: El Apagado Eco De La Codificación Del Derecho Privado Europeo En América Latina, Leysser L. Leon

Leysser L. León

En este artículo se esboza el nuevo posicionamiento de los ordenamientos jurídica de América Latina frente a los proyectos de armonización de las codificaciones civiles europeas. La tesis del Autor es que de una etapa dilatada de importación normativa masiva se ha pasado (y se necesita pasar) a una recepción crítica: con el auxilio de la comparación jurídica, se debe discriminar el material legislativo extranjero, conociéndolo en su origen e informándose sobre su problemática, a fin de evitar la migración de modelos inadecuados para fructificar fuera de su contexto de producción.

Education, Labor Rights, And Incentives: Contract Teacher Cases In The Indian Courts, Varun Gauri, Nick Robinson

Varun Gauri

Since the liberalization of India\'s economy beginning in the early 1990\'s, the government has increasingly employed contract workers to perform various state functions, including in the education sector. Yet, little research has been done to examine how courts have reacted to this shift in government labor policy. This paper looks at all reported cases involving contract teachers in the Indian Supreme Court and four High Courts over the last thirty years. It finds that although almost never explicitly overturning precedent, the judiciary in India has increasingly become less sympathetic to contract teachers demands, particularly at the Supreme Court level. The …

Exploitation Of Vulnerable Persons: A Comparative Statutory Legal Analysis Of Human Trafficking And Child Pornography Laws In Arizona, Colorado, Washington, And Texas, Felicia Cantrell

Felicia Cantrell

This paper is a detailed analysis of criminal statutes in 4 U.S. states: Arizona, Colorado, Washington, and Texas. The types of statutes analyzed are each states laws that affect human trafficking, sex trafficking, child pornography, and child prostitution. The analysis looks at statutory language which includes differences in sentencing lengths, the imposition of fines, mistake of age defense, car impounding, training for law enforcement or prosecutors, victim services and prostitution prevention and intervention accounts, elements of “force, fraud, and coercion” present, the mens rea component “knowingly” present, states that outlaw distribution of child pornography, as well as possession, criminalizing intentional …

Tourists Have No Shame: Curbing Child Sex Tourism And Prosecuting Child Sex Tourists In Thailand, The United States, And Internationally, Emily Naser-Hall

Emily Naser-Hall

No abstract provided.