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Immigration And Naturalization Service V. Elias-Zacarias: A Departure From The Past, Bret I. Parker
Immigration And Naturalization Service V. Elias-Zacarias: A Departure From The Past, Bret I. Parker
Fordham International Law Journal
This Comment argues that the standards enunciated by the Supreme Court in Elias-Zacarias should not be applied beyond cases involving persecution on account of political opinion. Part I sets out the relevant statutes, treaties, and international documents that control U.S. asylum law. Part II describes the majority and dissenting opinions in Elias-Zacarias. Part III analyzes the Supreme Court's decision in Elias-Zacarias and argues that the decision was misguided in its approach. This Comment concludes that Elias-Zacarias should be limited in its future application so that the United States can maintain its compliance with international treaty obligations.
1992: High Time For American Lawyers To Learn From Europe, Or Roscoe Pound's 1906 Address Revisited, James R. Maxeiner
1992: High Time For American Lawyers To Learn From Europe, Or Roscoe Pound's 1906 Address Revisited, James R. Maxeiner
Fordham International Law Journal
Events in Europe are impelling Americans to give European civil law systems more attention. While commercial considerations are providing the catalyst, better U.S. law could be a by-product. Americans familiar with European systems will recognize, as Pound did, the extent to which the causes for dissatisfaction with the administration of justice in the United States lie in our peculiar legal system. With knowledge of civil law systems, we could work better for the future that Pound sought, one where our courts will be "swift and certain agents of justice" and the "sporting theory of justice" will be just a memory.
The Right To Be Heard In Eec Competition Procedures, Julian M. Joshua
The Right To Be Heard In Eec Competition Procedures, Julian M. Joshua
Fordham International Law Journal
This Article examines the procedure under the European Community’s Regulation No. 17 and compares it with the concept of a fair hearing as it exists in English and U.S. administrative law. Far from supporting the premise that the Commission's proceedings are fundamentally flawed and unfair, a proper comparison shows that they are fully in accordance with the common law desiderata for a fair procedure. In many respects they not only meet, but also exceed, the common law standard. In the process, this Article will correct some of the more egregious misstatements which have been made regarding the alleged “unfairness” of …
International Art Theft Disputes: Harmonizing Common Law Principles With Article 7(B) Of The Unesco Convention, Maritza F. Bolaño
International Art Theft Disputes: Harmonizing Common Law Principles With Article 7(B) Of The Unesco Convention, Maritza F. Bolaño
Fordham International Law Journal
This Note argues that U.S. courts should adopt a uniform approach in assessing litigants' conduct to adjudicate art theft disputes. Part I discusses the history of the UNESCO Convention and the Convention on Cultural Property Implementation Act (the "CPIA" or "Implementation Act") and sets forth article 7(b) of the Convention which bans the import of stolen cultural property. Part II highlights the uncertainty in U.S. state and federal courts' application of common law principles to controversies concerning title to stolen art. Part III advocates the application of uniform standards in the adjudication of art theft disputes and the reconciliation of …
The U.S. Law Of Client Confidentiality: Framework For An International Perspective, Charles W. Wolfram
The U.S. Law Of Client Confidentiality: Framework For An International Perspective, Charles W. Wolfram
Fordham International Law Journal
In this Article, I will consider two general areas of the U.S. law of confidentiality. In Part I, I will reflect briefly upon what I call “the U.S. culture of lawyer-client confidentiality.” I say “culture” rather than “cult,” and one must guard against temptations to confuse those concepts. Those reflections will serve as background—by way of both match and contrast—to my sketch of the U.S. law of confidentiality in Part II.
Anonymous Bank Accounts: Narco-Dollars, Fiscal Fraud, And Lawyers, William W. Park
Anonymous Bank Accounts: Narco-Dollars, Fiscal Fraud, And Lawyers, William W. Park
Fordham International Law Journal
This Article will focus on how lawyers in countries with a tradition of bank secrecy have played a part in maintaining their clients' anonymity vis-à-vis bankers. For comparative purposes the Article will also comment on the banker's interest in knowing his or her customer's identity in a tax context, particularly when the customer claims the benefits of income tax treaties. My modest purpose is to help us all to be more aware of the divergent ethical implications of bank account anonymity.
Seeking Refuge In The Fifth Amendment: The Applicability Of The Privilege Against Self-Incrimination To Individuals Who Risk Incrimination Outside The United States, Debra Ciardiello
Fordham International Law Journal
This Note argues that the Fifth Amendment privilege prohibits the U.S. government from compelling individuals to offer testimony that would incriminate them in criminal proceedings outside the United States. Part I explores the development of the Fifth Amendment's privilege against self-incrimination. Part II discusses the conflicting positions that have emerged in lower courts concerning the Fifth Amendment's extraterritorial application. Part III argues that the Fifth Amendment protection regarding self-incrimination should apply to the risk of non-U.S. prosecution. This Note concludes that the principles reflected in the enactment of the Fifth Amendment and its treatment in both U.S. and English courts …
A Proposed Uniform Standard For U.S. Courts In Granting Requests For International Judicial Assistance, Eileen P. Mccarthy
A Proposed Uniform Standard For U.S. Courts In Granting Requests For International Judicial Assistance, Eileen P. Mccarthy
Fordham International Law Journal
This Note argues that U.S. courts should examine requests for international judicial assistance from non-U.S. courts by using a standard that looks to both the characteristics of the requesting party and the nature of the non-U.S. proceeding. Part I discusses international judicial assistance generally and examines the 1964 amendments to the Judicial Assistance Statute. Part II of this Note details the different approaches by which the U.S. circuit courts have dealt with the deletion of the word “pending” from the amended Statute. Part III suggests that U.S. courts responding to letters rogatory should uniformly institute a two-part test that reflects …
Customary Law In A New South Africa: A Proposal, Lynn Berat
Customary Law In A New South Africa: A Proposal, Lynn Berat
Fordham International Law Journal
This Article explores avenues open to South African politicians and jurists in their search for a more equitable South Africa. Part I examines the international position of customary law. Part II considers the treatment of customary law elsewhere in Africa and gives particular attention to unification of laws and legal systems. Part III reviews the experiences of legal dualism in South Africa's neighbors, Botswana, Lesotho, and Swaziland. Part IV discusses customary law in South Africa. Part V contends that although the unification of laws is a desirable long-term goal for South Africa, at present it is impractical. Part V also …
The Proposal For A Directive On The Right Of Establishment For Lawyers In The European Community, Heinz Weil
The Proposal For A Directive On The Right Of Establishment For Lawyers In The European Community, Heinz Weil
Fordham International Law Journal
This Commentary concerns the initiative of the Council of the Bars and Law Societies of the European Community to codify the right of establishment for lawyers. I would first like to give a short summary of the historical background, without which it would be rather difficult to understand the meaning of the CCBE's Draft Directive on the Right of Establishment for Lawyers. Then, without going into the technicalities of the text, I would like to summarize the content of the draft. Finally, I would like to say a few words about the present situation concerning the Draft Directive.
Lawyers In The European Community: Progress Towards Community-Wide Rights Of Practice, Roger J. Goebel
Lawyers In The European Community: Progress Towards Community-Wide Rights Of Practice, Roger J. Goebel
Fordham International Law Journal
This Article will cover the following topics: I The Context of Community Law on Lawyers' Rights; II The Rights of Professionals; III Rules on Lawyers' Freedom to Provide Services; IV Lawyers' Right of Professional Establishment; V Mutual Recognition of Higher-Education Diplomas; VI The Role of the Council of the Bars and Law Societies of the European Community; VII The State of Progress Toward Community-wide Rights of Practice; and VIII Reflections on U.S.-E.C. Cross-Border Practice.
Finland V. Denmark: A Call To Clarify The International Court Of Justice's Standards For Provisional Measures, Patricia A. Essoff
Finland V. Denmark: A Call To Clarify The International Court Of Justice's Standards For Provisional Measures, Patricia A. Essoff
Fordham International Law Journal
This Comment argues that a prima facie showing of the existence of a right on the merits is an implicit factor that must be met by a party requesting interim relief before the Court will fully examine a request for provisional measures. Part I of the Comment discusses the Court's adjudicatory power to indicate provisional measures and examines the Court's three-part test for provisional measures. Part II sets forth the factual and procedural background and holding of Great Belt. Part III argues that Great Belt demonstrates the Court's unspoken reliance on a prima facie showing of the existence of a …
Society For The Protection Of Unborn Children (Ireland) Ltd. V. Grogan: Irish Abortion Law And The Free Movement Of Services In The European Community, Cathleen M. Colvin
Society For The Protection Of Unborn Children (Ireland) Ltd. V. Grogan: Irish Abortion Law And The Free Movement Of Services In The European Community, Cathleen M. Colvin
Fordham International Law Journal
This Comment argues that a ban on information regarding the availability of abortion in other Member States violates the Treaty by obstructing the free movement of services. Part I of this Comment examines the provision in Community law for the free movement of services and tracks the development of laws regulating abortion in Ireland and the Community. Part II discusses Society for the Protection of Unborn Children (Ireland) Ltd. v. Grogan, in which the Court of Justice declined to address the validity of Ireland's ban on information regarding the availability of abortion services in England. Part III argues that the …