Law Commons^™

Defending Henrietta Lacks: Justification Of Ownership Rights In Separated Human Body Parts, Arseny Shevelev, Georgy Shevelev

Vanderbilt Journal of Transnational Law

Since the time of Moore v. Regents of the University of California, it has become a well-established and widespread view that a person, when their separated body parts are misappropriated, is forced to limit themselves to fiduciary and other non-proprietary claims against those who violate the bodily inviolability of their separated parts. Now, with the filing of a lawsuit in defense of the rights in body parts of the victim of racial discrimination, Henrietta Lacks, the judicial system has an opportunity to justify itself by adopting a different perception of rights in human body parts. This Article focuses on the …

Hold The High-Water Line: A Transnationally Informed Coastline Protection Scheme In The United States, Charlie Spencer-Davis

Vanderbilt Journal of Transnational Law

Climate change and sea level rise degrade the environment, infrastructure, and private property along US coastlines. The magnitude of these harms will only accelerate unless the United States improves its coastal protection scheme. Informed by approaches in Israel, the United Kingdom, and China, this Note offers a dynamic solution to coastline protection by way of a federal Rolling Coastal Conservation Easements Act. The act would authorize states to develop and implement rolling easements on private coastal properties. This flexible scheme would include compensation for those landowners who grant easements to their localities, while giving private property owners the option to …

Unintended Consequences For Reversing Rapprochement: Is The Us Government Liable For A Loss Of Us Property In Cuba?, David Kolansky

Vanderbilt Journal of Transnational Law

In 2014, the United States announced a historic reopening of ties with Cuba. This effort at rapprochement included restoring diplomatic relations and easing regulatory restrictions to facilitate greater business, trade, travel, and communication between the two nations. However, the US government's decision in 2017 to reverse course and reinstate the economic embargo against Cuba could result in significant legal and financial consequences for both US claimants who hold property in Cuba and the US government. One issue that arises is whether US corporations and individuals, who invested in property in Cuba following the Obama-era easing of restrictions, have a constitutional …

Globalizing Property Law: An Institutional Analysis, Amnon Lehavi

Vanderbilt Journal of Transnational Law

This Article identifies the key role that institutions play in moving toward an effective cross-border regime in property law. Property is based on an in rem principle, which should provide a single system for ranking rights, powers, and priorities in assets that applies to all interested parties. In a global context, this feature of property law requires a cross-border legal ordering by an array of domestic and supranational institutions: legislative, administrative, and adjudicative.

The Article argues that the present fragmentation of property norms across national borders, and the incompleteness of supranational institutions that deal with property law, may place limits …

The Case For Gmos: Dealing With Clashes Between Property Rights And Health And Safety Concerns, Kline C. Moore

Vanderbilt Journal of Transnational Law

A comparative analysis of international decisions concerning genetically modified organism (GMO) controversies reveals the judicial inconsistency that is often applied to the property rights of GMO producers and researchers. Courts often find that there are strong property right interests in GMOs, but when these rights clash with health and safety concerns, they are often minimized or completely forgotten; therefore, future growth in biotechnology is inhibited. This Note proposes a solution to this issue that better takes into account all stakeholders and allows for future investment and research into GMOs. The solution draws upon the lessons learned from current regulatory and …

Sharing And The City, Michele Finck, Sofia Ranchordas

Vanderbilt Journal of Transnational Law

The sharing of public infrastructure, the exchange of small services, and the traditional "cup of sugar borrowed from the neighbor" are practices intrinsic to most urban agglomerations. In the digital age, these sharing initiatives are facilitated by online platforms such as Feastly, Peerby, and HomeExchange. These platforms allow city residents to share the idle capacity of some of their assets (e.g., clothing, tools, or a spare bedroom) with other residents living in close proximity to them, or with tourists looking for accommodation. While these practices can be justified by efficiency and sustainability concerns, some of them appear to be in …

The Legal And Social Implications Of Insolvent Cross-Border Real Estate Developers, Edward T. Canuel

Vanderbilt Journal of Transnational Law

This article analyzes the phenomena associated with cyclical real estate markets, discussing the theoretical and market influences which motivate developers during this cycle. Fluctuating commercial real estate markets necessitate a focus on market upswings and downswings, and consideration of the roles and motivations of a wide array of actors, ranging from industry analysts and developers to lenders. Legal considerations, particularly during real estate downturns, or busts, include a variety of issues, particularly if the commercial real estate developers in question conducted business internationally. This Article details the theoretical and economic conditions found during real estate market cycles, with special emphasis …

Finding A Right To The City: Exploring Property And Community In Brazil And In The United States, Ngai Pindell

Vanderbilt Journal of Transnational Law

Increasing poor people's access to property and shelter in urban settings raises difficult questions over how to define property and, likewise, how to communicate who is entitled to legal property protections. An international movement--the right to the city--suggests one approach to resolving these questions. This Article primarily explores two principles of the right to the city--the social function of property and the social function of the city--to consider how to better achieve social and economic justice for poor people in urban areas. Using Brazil as one example of a country incorporating these principles within constitutional and statutory provisions and employing …

Competing Claims: The Struggle For Title In Nicaragua, Michael Roche

Vanderbilt Journal of Transnational Law

Nicaragua's Sandinista Revolution of the 1980s left the country's property scheme in a state of disarray. For eleven years, the leftist Sandinista government instituted mass land confiscations and agrarian reform that caused many individuals to lose their property and flee the country. The transition to democracy begun in 1990 has been a difficult process for the country's new presidents who have been forced to reconcile competing claims and fight corruption from within their own ranks. In this Note, the Author examines the property legacy created by the Sandinista Revolution. With another round of presidential elections scheduled for November 2006, the …

Historic Preservation In Southeast Asia: The Role Of Public-Private Partnerships, Patrick Stough

Vanderbilt Journal of Transnational Law

The role of globalization in the rapid economic success of Southeast Asia is exemplified by the growing westernization of the region's cities. While globalization has its benefits, such as encouraging investment and global connectivity, it also threatens the cultural heritage of a given area by encouraging a sort of homogeneity that makes modern cities all look alike. In particular, the goal of economic development often stands at odds with the preservation of structures and properties that reflect the cultural heritage of the region. Furthermore, many of the countries of the region are under pressure to better protect property rights, another …

Globalization In Art Law: Clash Of Interests And International Tendencies, Erik Jayme

Vanderbilt Journal of Transnational Law

In my view, it is important to articulate the different interests involved in international art cases. Globalization has added the interests of the global civil society to the traditional claims and counter claims of private parties and of states or nations. Thus, public access to art works has been fostered by anti-seizure statutes protecting international exhibitions. And, it is this line of tendencies and arguments which conceives of famous art works as treasures of mankind and which should prevail in the future.

Reflections On Litigating Holocaust Stolen Art Cases, Donald S. Burris, E. R. Schoenberg

Vanderbilt Journal of Transnational Law

In this Article we have attempted to provide an overview of the Nazi-looted art cases in their historical context. We have based the discussion on our knowledge and experience in litigating art law cases, particularly cases involving Nazi art looting, post-war restitution, and recent developments in art law.

Any discussion of the legal implications of crimes committed by Nazi authorities during the Holocaust must begin with an obvious disclaimer. While bringing cases to recover artwork stolen by Nazi authorities is self-evidently a worthy pursuit, and while our firm is very proud to be intensively involved in this effort, we cannot …

Imaginatively Public: The English Experience Of Art As Heritage Property, Joseph L. Sax

Vanderbilt Journal of Transnational Law

England was once hugely prosperous and possessed an extraordinary share of the world's great art. In the years following the French Revolution, political turmoil in Europe brought a number of superb works of art on the market, and English collectors avidly bought them. Even earlier, young aristocrats returned to England from their grand tours with a keen appreciation of the aesthetic achievements of the continent and the means to acquire any works that pleased them.

With few exceptions, these treasures entered the collections of individuals as their private property. In its scope, this was a unique experience in privatization, unlike …

International Legal Dimensions Of Art And Cultural Property, Jeffrey A. Schoenblum

Vanderbilt Journal of Transnational Law

The market for art and cultural property is international.' Demand is intense and not particularly local in terms of consumer preference. Supply responds to this intense international demand. Like most anything else, art finds its way to whomever is prepared to pay for it. Regulation affects how it arrives at its ultimate destination, but generally does not prevent it from getting there...

The symposium's contributors have sought to address the complex legal and policy issues raised by an explosive global market in art and cultural property. These articles will prove invaluable in the shaping of the international legal response to …

Nationbuilding 101: Reductionism In Property, Liberty, And Corporate Governance, O. L. Reed

Vanderbilt Journal of Transnational Law

In this Article, Professor Reed re-examines the importance of property as a formal legal institution. He continues by arguing that central to creating property is the right to exclude others from resources acquired without force, theft, or fraud. In countries where this right has been firmly established, per capita income far exceeds that of countries lacking a strong right to exclude. Professor Reed then asserts the importance to nation builders of appreciating the virtual semantic equivalence of the terms "property" and "liberty." Finally, he argues that both the specific and broad senses of corporate governance can be reduced to property …

Multilateral Management As A Fair Solution To The Spratly Disputes, Wei Cui

Vanderbilt Journal of Transnational Law

The Spratlys are a scattered group of islands in the South China Sea over which China, the Philippines, Vietnam, Malaysia, and Brunei have made conflicting jurisdictional claims. Although there has been significant academic discussion of this dispute, the Author argues that much of it is hampered by a discourse obsessed with the regional balance of power and security-related strategies that are only tenuously related to each nation's specific legal claims in the Spratlys. In this Article, the Author suggests that a more productive approach to the Spratly disputes is one focused on finding a solution that is "fair" to all …

Palestinian Private Property Rights In Israel And The Occupied Territories, Stacy Howlett

Vanderbilt Journal of Transnational Law

As the birth pangs of an emerging Palestinian state rage on, one question bars settlement, reconciliation, and peace: who is entitled to the land? On a macrocosmic level, this question has and will be answered through diplomatic negotiations, political pressure, and violence. The microcosmic question of the disposition of private property, however, must be taken into consideration before any lasting peace agreement can be reached.

The rights and interests of Palestinian refugees and Israeli settlers with respect to the land they have an interest in must be balanced with national needs for territorial continuity and peace. By tracing the transfer …

Significant Trends In The Trust Law Of The United States, Edward C. Halbach, Jr.

Vanderbilt Journal of Transnational Law

In examining significant trends in American trust law, several observations are worth mentioning at the outset. First, trust law in the United States is primarily a matter of state law; thus, the trends discussed below may appear in some states but not in others. Second, procedural merger of law and equity in this country has been substantially accomplished in nearly all states, but this should not be understood as eliminating the importance of equitable doctrine and remedies. Third, without abandoning the basic definition of a trust as a fiduciary relationship, there appear to be subtle but practically significant departures from …

The Innocent Buyer Of Art Looted During World War Ii, Michelle I. Tumer

Vanderbilt Journal of Transnational Law

This Note considers the legal issues relating to innocent buyers of looted art. After providing some historical background on the massive displacements of art that took place during World War II, the Note surveys recent developments, including the different types of disputes that have arisen in the past few years. It then provides a legal framework for analyzing one type of dispute, that of the innocent buyer of looted art.

Original owners face difficult evidentiary burdens and other litigation barriers, but law and policy nevertheless favor original owners above innocent buyers. In particular, courts have become increasingly impatient with the …

The Right To Stay, Patrick M. Mcfadden

Vanderbilt Journal of Transnational Law

People often fight for their homes. Once established, homes are vital centers of life, and their threatened loss generates predictable resistance. This Article shows how the human desire not to be moved is protected by the law. Such protection can be found in both U.S. domestic and international law, although the two systems of law vary widely in their approach. Since World War II, international scholars and lawmakers have been deeply concerned with promoting the legal rights of people to leave and return to their own countries. This Article emphasizes a different, but equally important right: the right of people, …

Argument For The Allocation Of Resources To The Development Of A Well-Defined System Of Real Property Law In The Czech Republic, Donovan W. Burke

Vanderbilt Journal of Transnational Law

This Note analyzes the enormous burden that the Czech Republic faces in its transition from a command to a market economy. Part of the burden is the privatization of real property. Toward privatization, the government of the Czech Republic has thus far focused its resources on allocating real property to private parties through the process of restitution. Technically, title to real property in the Czech Republic has always been held by private parties, but such ownership was meaningless because the state had virtually limitless power to use the property. The author recognizes that unless the Czech government develops substantive real …

Book Review--Global Dimensions Of Intellectual Property Rights In Science And Technology, Mark J. Patterson

Vanderbilt Journal of Transnational Law

A complete reading of the book leaves open the question of for whom the book is primarily intended. The best answer perhaps is that it has something to offer everyone--lawyer, scientist, intellectual property owner, economist, and politician--having an intellectual curiosity in how global intellectual property systems can and should evolve. From an individual reader's perspective, a cover to cover study of the book may leave the reader feeling overwhelmed and unsatisfied. However, if viewed as a resource, from which portions applicable to the reader's own field of interest are selected for close examination, the book has much to offer. Fortunately, …

An Economic And Political Policy Analysis Of Federal And State Laws Governing Foreign Ownership Of United States Real Estate, James R. Mason, Jr.

Vanderbilt Journal of Transnational Law

This Note surveys the complex scheme of federal and state laws addressing foreign ownership of United States real property that has developed over the course of the last two centuries, precipitated by several important events. The Note then critically analyzes the traditionally invoked economic and policy Justifications for regulating alien land ownership. The author concludes that sound economic principles militate against rather than in support of such regulation and that policy justifications, although representing valid concerns in some cases, have been used to produce overbroad regulations. The author suggests, therefore, a rethinking of the United States approach to alien land …

The Commercial Real Estate Laws Of The People's Republic Of China And Shenzhen: An Overview, David S. Kerzner

Vanderbilt Journal of Transnational Law

This Article surveys the changes in real estate laws that have occurred in China since 1980. It provides a comprehensive and specific overview of the foreign investment process, which should prove particularly useful to United States investors. The Article first provides general background on the evolution of Chinese real estate law, focusing on the granting and subsequent alienation of land use rights, as well as the recent development in the area of large parcels of land. The Article then examines the current state of real estate law in Guangdong Province, specifically in Shenzhen, and explains details such as transfer and …

The Legal Framework For Private Sector Activity In The Czech Republic, Cheryl W. Gray

Vanderbilt Journal of Transnational Law

In this Article, Dr. Gray discusses the evolving legal framework in the Czech Republic as the government there moves from a socialist to a private market economy. The author traces the major legal developments, including the Republic's establishment of significant private property rights and of a modern commercial code. The author finds that the Republic has made significant strides in developing a private market economy and in facilitating foreign investment. Dr. Gray concludes, however, that the new laws face significant challenges, including a weak and immature judicial system and problems with addressing business failures.

Privatization In Germany: A Model For Legal And Functional Analysis, Martin E. Elling

Vanderbilt Journal of Transnational Law

In this Article, Mr. Elling discusses the efforts to restructure and privatize the eastern German economy. The Article focuses on the work of the Trust Agency, or Treuhandanstalt, the agency primary responsible for privatizing property expropriated by the Nazis, the Soviet occupation forces, and the German Democratic Republic. These three regimes expropriated property under varying circumstances, and the Trust Agency now faces the task of determining the appropriate level of compensation or restitution for each property claimant. While the Trust Agency is concerned with awarding just compensation to the rightful property owners, the author notes that Germany designed the privatization …

International Space Law: Into The Twenty-First Century, Glenn H. Reynolds

Vanderbilt Journal of Transnational Law

In this Article, Professor Reynolds addresses the space law issues likely to be of most importance in the next several decades. Pressing issues include those of orbital debris and geostationary orbit crowding, private property rights in outer space resources, conflict over international trade in space goods and services, the danger of ballistic-missile technology proliferation, private remote-sensing systems, and the law of international cooperation in space. Professor Reynolds concludes with a philosophical and practical discussion of some more remote issues, including the legal systems that may govern future human societies in outer space and the legal issues that might be associated …

A Capital Tax System To Preserve America's Heritage, Valerie M. Fogleman

Vanderbilt Journal of Transnational Law

This Article looks to the British national heritage capital tax system as a model to propose provisions in the United States Internal Revenue Code to aid in preserving the United States cultural and natural heritage. After an overview of the capital tax systems in Britain and the United States, Ms. Fogleman examines features of the British tax system that promote preservation of the national heritage. The British system conditionally exempts the owners of national heritage assets from estate or gift tax liability on the transfer of those assets in exchange for permitting public access to and maintaining the assets; allows …

Property Damage Claims Against The Customs Service: Are There Adequate Remedies?, Ronald L. Cornell Jr.

Vanderbilt Journal of Transnational Law

This Note explores the availability of adequate property damage remedies following the United States Supreme Court's decision in Kosak v.United States, denying property owners the right to recover under the Federal Tort Claims Act (FTCA)." The Note also proposes several alternative remedies, including judicial adjustments to claims brought under the Tucker Act' and fifth amendment "takings" clause,, tort claims against individual customs officials, and legislative adjustments to the administrative settlement process under the Small Claims Act." Part II of this Note traces the judicial treatment of property damage claims brought against the United States Government under the FTCA, as well …

Jurisdiction Over Foreign Governments, Melissa L. Werthan, Nancie L. Combs, Jeffrey L. Deitch, Anita L. Fuoss

Vanderbilt Journal of Transnational Law

Passage of the FSIA in 1976 codified the restrictive theory of sovereign immunity, which provides that a foreign state will re-main immune from suit for its public acts but will lose immunity for its private and commercial acts. By placing the determination of a foreign government's immunity in the hands of the judiciary, Congress attempted to standardize an area of the law that had been governed by political relations between the United States and foreign governments.

The FSIA is the exclusive mechanism through which private parties can seek redress against foreign governments in United States courts. The Act provides a …