Law Commons^™

Endless Emergency: The Case Of Egypt, Sadiq Reza

Faculty Scholarship

The Arab Republic of Egypt has been in a declared state of emergency continuously since 1981 and for all but three of the past fifty years. Emergency powers, military courts, and other exceptional powers are governed by longstanding statutes in Egypt and authorized by the constitution, and their use is a prominent feature of everyday rule there today. This essay presents Egypt as a case study in what is essentially permanent governance by emergency rule and other exceptional measures. It summarizes the history and framework of emergency rule in Egypt, discusses the apparent purposes and consequences of that rule, mentions …

Uk Car-Flipping: The Vat Fraud Market-Place And Certified Solutions, Richard Thompson Ainsworth

Faculty Scholarship

Missing Trader Intra-Community (MTIC) fraud and its offspring carousel fraud and contra trading fraud are siphoning huge amounts of VAT revenue from the UK Treasury. This fraud is not a function of the goods involved. It is a function of the market-place. Recently another type of market-place dependent VAT fraud has taken hold in the UK - car-flipping.

In some instances the market-place where these frauds festers is a pre-existing or natural market-place, one that grows out of legitimate commercial practices. Fraudsters enter this market-place (so the argument goes) and take advantage of legitimate businesses who unwittingly get caught up …

Dual Subordination: Muslim Sexuality In Secular And Religious Legal Discourse In India, Aziza Ahmed

Faculty Scholarship

Muslim women and Muslim members of the Lesbian, Gay, Bisexual, and Transgender (LGBT) community face a specific form of dual subordination in relation to their gender and sexuality. A Muslim woman might seek solace from India's patriarchal religious judicial structures only to find that the secular system's patriarchal structures likewise aid in their subordination and create a space for new forms of such subordination. Similarly, a marginalized LGBT Muslim might attempt to reject an oppressive religious formulation only to come to find that the secular Indian state might criminalize a particular form of sexuality. This analysis explores how Indian laws …

Torture And Islamic Law, Sadiq Reza

Faculty Scholarship

This article considers the relationship between Islamic law and the absence or practice of investigative torture in the countries of today's Muslim world. Torture is forbidden in the constitutions, statutes, and treaties of most Muslim-majority countries, but a number of these countries are regularly named among those in which torture is practiced with apparent impunity. Among these countries are several that profess a commitment to Islamic law as a source of national law, including some that identify Islamic law as the principal source of law and some that go so far as to declare themselves "Islamic states." The status of …

Commentary On The U.N. International Law Commission's Draft Articles On The Law Of Transboundary Aquifers, Gabriel E. Eckstein

Faculty Scholarship

Ground water is the most extracted natural resource in the world. It provides more than half of humanity's freshwater for everyday uses such as drinking, cooking, and hygiene, as well as twenty percent of irrigated agriculture. Despite our increasing reliance, ground water resources have long been the neglected stepchild of international water law; regulation and management of and information about ground water resources are sorely lacking, especially in the international context. Presently, there is no international agreement squarely addressing ground water resources that traverse an international boundary. Moreover, there is only one treaty in the entire world pertaining to the …

Philosopher Kings And International Tax: A New Approach To Tax Havens, Tax Flight, And International Tax Cooperation, Steven Dean

Faculty Scholarship

Tax flight treaties could help to solve the $50 billion-a-year problem that tax flight (the evasion of income taxes through the use of offshore tax havens) poses for the United States. Tax flight treaties would offer tax havens a substantial portion of the increased tax revenues that they could generate by providing the United States with the enforcement assistance it needs. Those payments, potentially representing as much as half of the added tax revenue produced by tax flight treaties (and in all probability an amount that is greater than any GDP gains attributable to eliminating waste and other economic distortions …

Accommodating Concerns For International Law And Proper Governance, David H. Moore

Faculty Scholarship

No abstract provided.

Universal Proceduralism, Edward J. Janger

Faculty Scholarship

No abstract provided.

Diplomatic Immunity Ratione Personae Did The International Court Of Justice Create A New Rule Of Customary International Law In Congo V Belgium, Mark A. Summers

Faculty Scholarship

No abstract provided.

Extraordinary Crimes At Ordinary Times: International Justice Beyond Crisis Situations, Sonja Starr

Faculty Scholarship

No abstract provided.

Ruminations On The Past, Present And Future Of International Labor Standards: Empowering Law In The Brave New Economic World, Marley S. Weiss

Faculty Scholarship

International labor standards are among the oldest international standards pertaining to the conduct of private, as well as public, economic actors. Far from being settled, however, nearly every aspect of the current international labor standards regime is in flux: the role of labor standards in the international legal, economic, political, and social order, as well as in the parallel domestic orders; the modes by which standards are brought into being; the manner and means of their implementation and enforcement; the degree to which they may be binding solely on nation-state parties, and enforceable only at their behest; and the extent …

Federal Suits And General Laws: A Comment On Judge Fletcher's Reading Of Sosa V. Alvarez-Marchain, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Council Of Europe Addresses Cia Rendition And Detention Program, Monica Hakimi

Faculty Scholarship

In November 2005, the U.S. media reported that the Central Intelligence Agency was operating secret detention facilities in a handful of foreign countries, including two in eastern Europe, and that detainees were often transferred between those facilities and states known to engage in torture. The news that terrorism suspects may have been denied their human rights in member states of the Council of Europe caused concern within the Council and triggered several responses. Within days of the media reports, the Council's Parliamentary Assembly appointed a rapporteur to investigate the extent to which member states were participating in the CIA program. …

Advancing The Rule Of Law: Report On The International Rule Of Law Symposium Convened By The American Bar Association November 9-10, 2005, Katharina Pistor

Faculty Scholarship

The American Bar Association hosted the first International Rule of Law Symposium in Washington, D.C. on November 9-10, 2005. The Symposium brought together representatives from all over the world who share a common interest in advancing the rule of law as a means to tackle major obstacles that hamper social and economic growth and development around the globe. Some were ministers and government officials, others entrepreneurs and business people, yet others represented non-governmental organizations or employees of multilateral donor organizations. The topics addressed at the Symposium were equally far reaching in scope, covering everything from poverty alleviation and improving public …

The Future Of International Law: Members' Reception And Plenary Panel, Georgetown University Law Center – Remarks By Lori Damrosch, Lori Fisler Damrosch

Faculty Scholarship

It is a privilege to follow Judge Owada and to take up the challenge offered by the theme statement of this panel: to assess trends that we perceive to be shifting the future of international law, while also interrogating claims of their newness. Perhaps everything that we think of as new has some resonance with the past.

Hamdan Confronts The Military Commissions Act Of 2006, George P. Fletcher

Faculty Scholarship

In 2006 the law of war experienced two major shock waves. The first was the decision of the Supreme Court in Hamdan, which represented the first major defeat of the President's plan, based on an executive order of November 2001, to use military tribunals against suspected international terrorists. The majority of the Court held the procedures used in the military tribunal against Hamdan violated common article three of the Geneva Conventions. A plurality offour, with the opinion written by Justice Stevens, based their decision as well on afar-reaching interpretation of the substantive law of war. They held that conspiracy …

China's Network Justice, Benjamin L. Liebman, Tim Wu

Faculty Scholarship

China's Internet revolution has set off a furious debate in the West. Optimists from Thomas Friedman to Bill Clinton have predicted the crumbling of the Chinese Party-state ("Party-state"), while pessimists suggest even greater state control. But a far less discussed and researched subject is the effect of China's Internet revolution on its domestic institutions. This Article, the product of extensive interviews across China, asks a new and different question. What has China's Internet revolution meant for its legal system? What does cheaper, if not free, speech mean for Chinese judges?

The broader goal of this Article is to better understand …

Expanding And Sustaining Clinical Legal Education In Developing Countries: What We Can Learn From South Africa, Peggy Maisel

Faculty Scholarship

Scholars have devoted considerable attention and resources to creating and expanding legal aid clinics, law school clinics, and university-based law clinics in order to make the law school experience more educational and relevant for law students in developing countries by introducing more skills training into the curriculum. Those who support the expansion of clinical legal education in South Africa and elsewhere have sought to achieve specific objectives related to improving legal education for students and providing assistance to economically disadvantaged groups.

Legal education is enhanced when it reflects the realities of the citizens within a country, such as South Africa …

Shifting Paradigms Of Parochialism: Lessons For International Trade Law, Elizabeth Trujillo

Faculty Scholarship

Much of the study of international private law has focused on exploring differences in legal systems in light of domestic issues or harmonization. Much less emphasis has been on accepting these various parochial interests as part of a global legal structure. This preliminary study into what drives parochial attitudes can help international trade scholars observe the traditions engendering these differing parochial attitudes and their impact on trade. Through a pluralist lens and in borrowing from studies in the social sciences on parochialism, this paper attempts to bring to light a world of "hybrid legal spaces" that adds complexity to the …

Book Review, Laurence R. Helfer

Faculty Scholarship

reviewing Eyal Benvenisti & Moshe Hirsch eds., The Impact of International Law on International Cooperation: Theoretical Perspectives (2004)

Tinkering With Torture In The Aftermath Of Hamdan: Testing The Relationship Between Internationalism And Constitutionalism , Catherine Powell

Faculty Scholarship

Bridging international and constitutional law scholarship, the author examines the question of torture in light of democratic values. The focus in this article is on the international prohibition on torture as this norm was addressed through the political process in the aftermath of Hamdan v. Rumsfeld. Responding to charges that the international torture prohibition -- and international law generally -- poses irreconcilable challenges for democracy and our constitutional framework, the author contends that by promoting respect for fundamental rights and for minorities and outsiders, international law actually facilitates a broad conception of democracy and constitutionalism. She takes on the question …

Constraining Dominant Shareholders' Self-Dealing: The Legal Framework In France, Germany, And Italy , Pierre-Henri Conac, Luca Enriques, Martin Gelter

Faculty Scholarship

All jurisdictions supply corporations with legal tools to prevent or punish asset diversion by those, whether managers or dominant shareholders, who are in control. As previous research has shown, these rules, doctrines and remedies are far from uniform across jurisdictions, possibly leading to significant differences in the degree of investor protection they provide. Comparative research in this field is wrought with difficulty. It is tempting to compare corporate laws by taking one benchmark jurisdiction, typically the US, and to assess the quality of other corporate law systems depending on how much they replicate some prominent features. We take a different …

Congress’S Under-Appreciated Power To Define And Punish Offenses Against The Law Of Nations, Andrew Kent

Faculty Scholarship

Perhaps no Article I power of Congress is less understood than the power to define and punish . . . Offences against the Law of Nations. There are few scholarly works about the Clause; Congress, the Supreme Court, and the Executive Branch have seldom interpreted the Clause, and even then they have done so in a cursory and contradictory manner. Relying on textual analysis and Founding-era history and political theory to read the Clause in a different mannner than previous commentators, this Article seeks to rescue the Clause from obscurity and thereby enrich current foreign affairs debates. Not only is …

Writing Other Peoples’ Constitutions, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Angelina And Madonna: Why All The Fuss? An Exploration Of The Rights Of The Child And Intercountry Adoption Within African Nations, Veronica S. Root

Faculty Scholarship

No abstract provided.

The Military Commissions Act, Habeas Corpus, And The Geneva Conventions, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

The Federal Judicial Power And The International Legal Order, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Mission Possible: Reciprocal Deference Between Domestic Regulatory Structures And The Wto, Elizabeth Trujillo

Faculty Scholarship

One of the goals of Article III of GATT is to invalidate domestic regulatory measures, including taxes and non-fiscal policies that amount to non-tariff barriers to trade (NTB) and therefore violate the principles of national treatment. While internal policies that directly discriminate between products based on nationality or origin are clearly in violation of national treatment principles, it is the facially neutral regulatory measures with protectionist and discriminatory effects that are more difficult to assess, even within transparent regulatory processes. However, with their emphasis on the likeness of the products in question, WTO panels run the risk of alienating member …

Treaties' Domains, Tim Wu

Faculty Scholarship

When and why do American judges enforce treaties? The question, always important, has become pressing in an age where the United States is party to over 12,000 international agreements. Article VI of the United States Constitution declares "all treaties" the "supreme Law of the Land," and American judges have long had the potential power, under the Constitution, to enforce treaties as they do statutes. But over the history of the United States, judges have not enforced treaties that way. Instead, judicial treaty enforcement is widely seen as unpredictable, erratic, and confusing. As a result, the question of treaty enforcement has …

U.S. Policy And The United Nations Convention On The Law Of The Sea, John E. Noyes

Faculty Scholarship

This essay examines U.S. attitudes toward the U.N. Convention on the Law of the Sea. Part I characterizes different U.S. perspectives toward foreign policy and international law, noting how these different viewpoints shape attitudes toward U.S. acceptance of the Convention. Part II then compares three concerns that U.S. Convention opponents have raised (relating to navigational freedom, U.S. participation in international institutions, and U.S. leadership in international affairs) to the perspectives associated with of one of the several different foreign policy approaches. Many followers of historically-predominant U.S. foreign policy approaches do not share the concerns of Convention opponents. However, even if …