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Articles 1 - 18 of 18
Full-Text Articles in Law
Mandatory Rules, Scott Dodson
Mandatory Rules, Scott Dodson
Faculty Publications
Whether a limitation is jurisdictional or not is an important but often obscure question. In an article published in Northwestern University Law Review, I proposed a framework for courts to resolve the issue in a principled way, but I left open the next logical question: what does it mean if a rule is characterized as nonjurisdictional? Jurisdictional rules generally have a clearly defined set of traits: they are not subject to equitable exceptions, consent, waiver, or forfeiture; they can be raised at any time; and they can be raised by any party or the court sua sponte. This jurisdictional rigidity …
Choice Of Law, The Constitution And Lochner, James Y. Stern
Choice Of Law, The Constitution And Lochner, James Y. Stern
Faculty Publications
No abstract provided.
Transdisciplinary Conflict Of Laws Foreword: Cavers's Double Legacy, Karen Knop, Ralf Michaels, Annelise Riles
Transdisciplinary Conflict Of Laws Foreword: Cavers's Double Legacy, Karen Knop, Ralf Michaels, Annelise Riles
Cornell Law Faculty Publications
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Corporate Taxation And International Charter Competition, Mitchell Kane, Edward B. Rock
Corporate Taxation And International Charter Competition, Mitchell Kane, Edward B. Rock
All Faculty Scholarship
Corporate Charter competition has become an increasingly international phenomenon. The thesis of this article is that this development in the corporate law requires a greater focus on the corporate tax law. We first demonstrate how a tax system’s capacity to distort the international charter market depends both upon its approach to determining corporate location and the extent to which it taxes foreign source corporate profits. We also show, however, that it is not possible to remove all distortions through modifications to the tax system alone. We present instead two alternative methods for preserving an international charter market. The first best …
Presidential Authority And The War On Terror, Joseph W. Dellapenna
Presidential Authority And The War On Terror, Joseph W. Dellapenna
Working Paper Series
Immediately after the attacks on the United States of September 11, 2001, President George W. Bush claimed, among other powers, the power to launch preemptive wars on his own authority; the power to disregard the laws of war pertaining to occupied lands; the power to define the status and treatment of persons detained as “enemy combatants” in the war on terror; and the power to authorize the National Security Agency to undertake electronic surveillance in violation of the Foreign Intelligence Surveillance Act. With the exception of the power to launch a preemptive war on his own authority (for which he …
Beyond The Article I Horizon: Congress’S Enumerated Powers And Universal Jurisdiction Over Drug Crimes, Eugene Kontorovich
Beyond The Article I Horizon: Congress’S Enumerated Powers And Universal Jurisdiction Over Drug Crimes, Eugene Kontorovich
Faculty Working Papers
This paper explores the Article I limits faced by Congress in exercising universal jurisdiction (UJ) – that is, regulating extraterritorial conduct by foreigners with no affect on or connection the U.S. While UJ is becoming increasingly popular in Europe for the punishment of human rights offenses, Congress's primary use of UJ today is under the Maritime Drug Law Enforcement Act. This obscure law allows the U.S. to punish for violating U.S. drug laws foreign defendants on foreign vessels in international waters. The MDLEA's UJ provisions raise fundamental questions about the source and extent of Congress's constitutional power to regulate purely …
Forum Shopping And The Infrastructure Of Federalism., James E. Pfander
Forum Shopping And The Infrastructure Of Federalism., James E. Pfander
Faculty Working Papers
The recent effort of environmentalists and others to secure progressive social change at the state level enacts a familiar ritual in the history of American federalism. Political actors who have found their initiatives blunted at the national level have often turned to the states. With the ebb and flow of political power between two parties over time, arguments about the relative authority of federal and state governments display far more expediency than principle, far more mutability than predictability. States may be more or less progressive than the national government, depending in good measure on the temper of the times and …
Is International Law Coercive?, Anthony D'Amato
Is International Law Coercive?, Anthony D'Amato
Faculty Working Papers
Can international law be enforced against a state? Against a superpower? Various current theories answer in the negative: dualism, consent, domestication, soft law, the New Haven school, and exceptionalism. But this Article claims that international law is enforced all the time by unilateral or multilateral reprisals. The stability of international law over time is a function of the successful working of the reprisal system. In sum, international law is a coercive order.
Why Is International Law Binding?, Anthony D'Amato
Why Is International Law Binding?, Anthony D'Amato
Faculty Working Papers
Many writers believe that international law is precatory but not "binding" in the way domestic law is binding. Since international law derives from the practice of states, how is it that what states do becomes what they must do? How do we get bindingness or normativity out of empirical fact? We have to avoid the Humean fallacy of attempting to derive an ought from an is. Yet we can find in nature at least one norm that is compelling: the norm of survival. This norm is hardwired into our brains through evolution. It is also hardwired into the international legal …
Courting Genocide: The Unintended Effects Of Humanitarian Intervention, Jide Nzelibe
Courting Genocide: The Unintended Effects Of Humanitarian Intervention, Jide Nzelibe
Faculty Working Papers
Invoking memories and imagery from the Holocaust and other German atrocities during World War II, many contemporary commentators and politicians believe that the international community has an affirmative obligation to deter and incapacitate perpetrators of humanitarian atrocities. Today, the received wisdom is that a legalistic approach, which combines humanitarian interventions with international criminal prosecutions targeting perpetrators, will help realize the post-World War II vision of making atrocities a crime of the past. This Article argues, in contrast, that humanitarian interventions are often likely to create unintended, and sometimes perverse, incentives among both the victims and perpetrators of atrocities. The problem …
Rules And Institutions In Developing A Law Market: Views From The United States And Europe, Erin O'Hara O'Connor, Larry E. Ribstein
Rules And Institutions In Developing A Law Market: Views From The United States And Europe, Erin O'Hara O'Connor, Larry E. Ribstein
Scholarly Publications
Developments in European choice of law seem to offer the United States a tantalizing opportunity for escape from the chaos of state-by-state choice-of-law rules. Specifically, the Rome Regulations provide the sort of uniform choice-of-law rules that have eluded the United States. Also, decisions of the European Court of Justice that permit firms to adopt home-country rules in some situations seem to facilitate jurisdictional choice by private parties. This top-down ordering of choice-of-law rules contrasts with the seemingly chaotic and decentralized system that prevails in the United States. However, decentralized American-style federalism might have something to offer Europe because choice of …
The Public-Private Distinction In The Conflict Of Laws, William S. Dodge
The Public-Private Distinction In The Conflict Of Laws, William S. Dodge
Faculty Scholarship
No abstract provided.
Book Review, Ralf Michaels
Book Review, Ralf Michaels
Faculty Scholarship
reviewing, Denationalisierung des Privatrechts? Symposium anlässlich des 70. Geburtstages von Karl Kreuzer" (Eva-Maria Kieninger ed., Mohr Siebeck 2005))
Appreciating Mandatory Rules: A Reply To Critics, Scott Dodson
Appreciating Mandatory Rules: A Reply To Critics, Scott Dodson
Faculty Publications
It seems that few are pleased with the Court’s recent decision in Bowles v. Russell, in which the Court held the time limit for filing a notice of appeal to be jurisdictional and therefore not susceptible to the unique circumstances doctrine. As I wrote in this original essay, I believe the Court disrupted prior precedent and missed a golden opportunity to develop, in a principled way, a framework for characterizing rules as jurisdictional or not, and I adhere to those views. Three have responded to my essay. Professor Beth Burch criticizes Bowles for some of the same …
Preemption And Federal Common Law, Ernest A. Young
Preemption And Federal Common Law, Ernest A. Young
Faculty Scholarship
No abstract provided.
Are You Still My Mother?: Interstate Recognition Of Adoptions By Gays And Lesbians, Rhonda Wasserman
Are You Still My Mother?: Interstate Recognition Of Adoptions By Gays And Lesbians, Rhonda Wasserman
Articles
Parents and their biological children routinely cross state borders safe in the assumption that the parent-child relationship will be recognized wherever they go. The central issue raised in this Article is whether the law guarantees parents and their adopted children the same security if the parents are gay. This question is part of a broader debate about the obligation of states to recognize changes in family status effected under the laws of other states, such as same-sex marriages and migratory divorces. The debate is divisive because it pits the family against the state; one state against another; and the needs …
Greater And Lesser Powers Of Tort Reform: The Primary Jurisdiction Doctrine And State-Law Claims Concerning Fda-Approved Products, Catherine T. Struve
Greater And Lesser Powers Of Tort Reform: The Primary Jurisdiction Doctrine And State-Law Claims Concerning Fda-Approved Products, Catherine T. Struve
All Faculty Scholarship
No abstract provided.
Has The Erie Doctrine Been Repealed By Congress?, Geoffrey C. Hazard Jr.
Has The Erie Doctrine Been Repealed By Congress?, Geoffrey C. Hazard Jr.
All Faculty Scholarship
No abstract provided.