Law Commons^™

International Arbitration Scholarship And The Concept Of Arbitration Law, Stavros Brekoulakis

Stavros Brekoulakis

This article is about the concept of arbitration law and its relationship with international arbitration scholarship. It argues that the field of international arbitration scholarship has developed in isolation and never fully engaged with the crucial movements of international legal scholarship that advanced a more progressive and humanitarian concept of international law. The dearth of interdisciplinary scholarship in arbitration has had two undesirable implications. First, it has had a negative impact on how non-arbitration scholars and the public perceive arbitration. Secondly, and more importantly for the purposes of this article, it has crucially impaired the concept and autonomy of arbitration …

Vietnam And The United States: Mining Pollution And The Tragedy Of The Commons, Heather Whitney

Heather Whitney

This paper will discuss Vietnam’s mining pollution problem, and its efforts to foster clean water create and an environmental protection framework within its Constitution, environmental laws and regulations. This paper will also juxtapose these issues with the United States’ regulatory mechanisms for mining and water quality protection, which in comparison are complex and well-rounded, but nonetheless still have regulatory and enforcement loopholes that prevent proper water quality protection. In Vietnam, like most developing countries, regulations and policy statements place socioeconomic growth above water quality protection that frustrates these efforts. Environmental and water quality laws and regulations in Vietnam have not …

No Remedy For This Wrong? Analyzing The Appropriate Remedy For Violations Of California Penal Code § 834c, Jared W. Olen

Jared W. Olen

Article 36(1)(b) of the Vienna Convention on Consular Relations provides that a foreign national of a state-party has the right to have her consulate notified of her arrest upon detention. Many United Supreme Court and other federal courts have grappled with issues stemming from that right, including whether the treaty creates privately-enforceable rights. However, California was unique in that it enacted California Penal Code § 834c, which codifies as state law the right to consular notification.

While this codification precludes much discussion about privately-enforceable rights, the statute is, however, silent on what remedy should be applied if law enforcement violate …

Class Arbitration: The Necessary Counterpart To The Arbitrability Of Statutory Rights, Laura Yvonne Zielinski

Laura Yvonne Zielinski

Why is it so problematic to restrict the availability of class arbitration in the United States? I will argue in my paper that class arbitration is a compromise between the pro-arbitration policy and the protection of weaker parties and thus necessary to sustain the liberal American model of arbitration. It is indeed the necessary counterpart to the arbitrability of statutory rights.

During the last thirty years, the policy of the United States towards arbitration has become increasingly favourable and the introduction of arbitration clauses into all sorts of contracts, including adhesion contracts between parties of highly unequal bargaining power, has …

Parliamentary Oversight Of The Executive In India, Anirudh Burman

Anirudh Burman

The need for a strong monitoring mechanism of the executive in India has been made clearer by recent allegations of corruption against high-ranking officials of the central government. The Indian Parliament is the ideal institution to perform such a monitoring function through oversight of the central executive. The executive in India is directly accountable to the Parliament. Making oversight by Parliament stronger and more effective would therefore increase the accountability of the executive. Additionally, an increased oversight role would allow for greater policy inputs from Parliament to the executive. It would also increase the general level of expertise within Parliament …

Opting Out Of The Procedural Morass: A Solution To The Class Arbitration Problem, Emanwel J. Turnbull

Emanwel J Turnbull

American class actions are internationally regarded as a procedural form to avoid and widely criticized in the United States. They have been narrowed and restricted by U.S. statutes and case law. Plaintiffs' lawyers in consumer class actions are portrayed as greedy and fraudulent, while businesses are increasingly acting to avoid class actions through mandatory pre-dispute arbitration clauses. Even class arbitration is criticized as leading to a “procedural morass.” This Article proposes that parties and arbitral fora opt out of the American procedural morass (and the attendant long-running disputes about American class actions) by adopting an English procedural rule for aggregation. …

Efficiency Themes In Tort Law From Antiquity, M Stuart Madden

M Stuart Madden

Hellenic philosophers assessed the goals of society as: (1) the protection of persons and property from wrongful harm; (2) protection of the individual’s means of survival and prosperity; (3) discouragement of self-aggrandizement to the detriment of others; and (4) elevation of individual knowledge that would carry forward and perfect such principles. Roman law was replete with proscriptions against forced taking and unjust enrichment, and included rules for ex ante contract-based resolution of potential disagreement. Customary law perpetuated these efficient economic tenets within the Western World and beyond. The common law, in turn, has nurtured many of the same ends. From …

Pirate Accessory Liability – Developing A Modern Legal Regime Governing Incitement And Intentional Facilitation Of Maritime Piracy, Roger L. Phillips

Roger L Phillips

Despite the exponential growth of piracy off the coast of Somalia since 2008, there have been no prosecutions of those who have profited most from ransom proceeds; that is crime bosses and pirate financiers. As U.S. courts begin to charge higher-level pirates, they must ascertain the status of customary international law as reflected in the UN Convention on the Law of the Sea. UNCLOS includes two forms of accessory liability suited to such prosecutions, but a number of ambiguities remain in the interpretation of these forms of liability. These lacunae cannot be explained by reference to the plain terms of …

Defying Gravity: The Development Of Standards By States In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Matthew H Charity

The number of nations that have signed and ratified the Rome Treaty of the International Criminal Court continues to expand, but the number of cases prosecuted remains fairly small. One issue that defies resolution is the place of complementarity in the post-conflict jurisdictional decisions of the I.C.C. and national tribunals. Although the Rome Statute crystallizes definitions of core international crimes, the interpretation of processes leaving jurisdiction with the nation or allowing jurisdiction to the I.C.C. continues to lack structure.

One step that some states have taken in implementing legislation and processes in support of jurisdiction over I.C.C. core crimes is …

Regulating Tactical Nuclear Weapons, Dakota S. Rudesill

Dakota S. Rudesill

In 2013, U.S. and Russian negotiators are expected to enter the next frontier in nuclear arms control: regulating small, “tactical” nuclear weapons. This framework article will be the first squarely on the subject in the legal literature. My core arguments are that (1) to date the bilateral Washington-Moscow arms control legal regime has primarily regulated strategic (i.e., long-range) nuclear delivery vehicles (bombers, missiles, and submarines) rather than warheads; (2) contrary to common assumption, the legal regime has regulated a small number of tactical delivery vehicles (jet fighters and other short-range systems) with arguable strategic relevance, providing a regulatory precedent; (3) …

Judicial Oversight In The Comparative Context: Biodiversity Protection In The Us, Australia, And Canada, Robert B. Shaffer

Robert B Shaffer

How effective are the courts as policymaking institutions? To investigate this issue, I examine two species – polar bears, and loggerhead sea turtles – as they navigate the conservation regimes in the US and Canada and the US and Australia, respectively. Generally speaking, courts play a far larger role in American biodiversity law than they do in comparable Australian and Canadian statutory programs. As a result, studying endangered species protection offers a useful way to identify and isolate the policy impacts of judicial intervention.

Based on this analysis, I argue that courts can be effective contributors to the policymaking process. …

Museum Strategies: Leasing Antiquities, Silvia Beltrametti

Silvia Beltrametti

This is the first attempt to study leasing in the context of the international trade in cultural artifacts. This article advances a heated debate in the field of cultural heritage law, which centers on whether cultural artifacts of ancient civilizations should belong to the modern nation states from which they are excavated or to humankind in general, by proposing an alternative analytic framework based on leasing, which would make it possible for objects to circulate but at the same time stay under the ownership and jurisdiction of their respective source countries.

A Legal Standard For Post-Colonial Land Reform, Amelia Peterson

Amelia Peterson

This article proposes a legal standard for the design of post-colonial land redistribution policies. It confronts the complex interface between the need for land reform to alleviate land pressure in many developing countries, and the importance of upholding the idea of property. Regardless of which side of the post-colonial milieu we most quickly sympathize with, human rights law removes the tendency to seek out the victim by framing its language in terms of the homo sapien, not one particular race, gender, or economic status. It is in the interest of the various stakeholders enmeshed in post-colonial land imbalance debates and …

Blatant Bribery Or Locally Lawful?: Is The Foreign Corrupt Practices Act’S “Local Laws” Defense Extinct?, Erik J. King

Erik J King

Under the Foreign Corrupt Practices Act (FCPA), it is an affirmative defense if the payments in question were lawful under the written laws of a foreign country. This defense has been largely overlooked by commentators and used sparingly in the court system. This Note examines the utility of this defense, and finds that although the concept underlying the defense remains somewhat alive in certain types of foreign laws that could conceivably excuse a foreign investor, the defense has lost all practical value. U.S. judicial interpretations, multilateral efforts against similar exceptions in other anti-bribery laws, and the subsuming effect of other …

A Decade Of Progress: Promising Models For Children In The Turkish Juvenile Justice System, Brenda Mckinney, Lauren Salins

Brenda A McKinney

In the past decade, Turkey has improved its approach to dealing with children in conflict with the law and moved the country closer to a system that ensures all children have the chance they deserve to strive for a better future. This paper focuses on two promising reforms that have been instituted in Turkey and that have the potential for improving juvenile justice systems in the rest of the world. They are: 1) open model incarceration and 2) diversion. While this paper also addresses challenges inherent in these models and discusses broader issues in the Turkish juvenile justice system that …

The Creation And Dissolution Of Gran Colombia, F.E. Guerra-Pujol

F.E. Guerra-Pujol

George Washington and Simón Bolívar not only led successful revolutions against their colonial rulers, these great leaders also oversaw the drafting of concise federal constitutions and were able to establish promising constitutional unions: (i) the creation and ratification of the US Constitution and the integration of 13 separate states into a single nation, and (ii) the creation of a promising South American federal republic, the Republic of Colombia or “Gran Colombia” (1819-1830), consisting of modern-day Colombia, Ecuador, and Venezuela. Despite these similar origins, the subsequent constitutional histories of both regions could not have been more different: one constitution proved to …

It's About Time: Privacy, Information Life Cycles, And The Right To Be Forgotten, Meg Leta Ambrose

Meg Leta Ambrose

The current consensus is that information, once online, is there forever. Content permanence has led many European countries, the European Union, and even the United States to establish a right to be forgotten to protect citizens from the shackles of the past presented by the Internet. But, the Internet has not defeated time, and information, like everything, gets old, decays, and dies, even online. Quite the opposite of permanent, the Web cannot be self-preserving. One study from the field of content persistence, a body of research that has been almost wholly overlooked by legal scholars, found that 85% of content …

Judicial Non-Compliance In A Multi-Level, Non-Hierarchical Legal Order: Isolated Accident Or Omen Of Judicial Armageddon?, Arthur Dyevre

Arthur Dyevre

In a multi-level, non-hierarchical court system, where courts at the upper echelon do not have the power to reverse the decisions of courts at the lower level, judicial cooperation appears crucial to the effectiveness of the higher-level law. For this reason, the recent judgment of the Czech Constitutional Court, which declared the decision of the Court of Justice in the Landtová case ultra vires, would seem to deal a terrible blow to the authority of European Union law. As doomsayers will be quick to point out, the Czech decision could set a dangerous precedent that may well one day bring …

The Flaws Of Stem Cell Legislation: Sherley, Brustle, And Future Policy Challenges Posed By Induced Pluripotent Stem Cells, Nicholas J. Diamond

Nicholas J Diamond

In this article, I first contextualize the origins of disagreement over the nature and extent of human embryonic stem cell (hESC) research regulation. By analyzing two key pieces of hESC legislation as considered in two landmark court decisions—one from the United States and one from the European Union—I argue that current stem cell policies are deeply flawed. After surfacing the flaws of these policies, I examine novel challenges for policymakers posed by the newest advancement in stem cell science, induced pluripotent stem cells. In view of these novel challenges, I contend that current policies, which are hESC-focused and deeply flawed, …

Time For A Tune-Up: Retooling The 2012 Tip Report In Order To Better Meet International Legal Research Standards, Ashley Feasley

Ashley Feasley

The US Trafficking in Persons (TIP) Report is a valuable international report and diplomatic tool. However, the TIP Report needs to be overhauled to include documentation of sources and citations, as well as reflect relevant international legal standards. This paper points out some high-level improvements that could be made to the TIP Report to make it a better international research tool.

The United States And Iran – Decades Of Animosity: An Analysis Of The Historical And Present Conflicts., Patrick A. Mcdade

Patrick A. McDade

Lost in the international debate raging around Iran’s burgeoning nuclear weapon’s program is the deep and complex history that exists between the United States and Iran, as well as the legal rights and responsibilities that exist between the two nations. A thorough examination of the intensely adversarial relationship that has developed over the past sixty years must be undertaken before any path to a diplomatic solution is likely to succeed. The historical evidence clearly shows that Iran’s animosity towards and distrust of the United States is entirely justified, and the United States’ mistrust of Iran is equally well-grounded. Due these …

Rationalizing Risks To Cultural Loss In Resource Development, Sari M. Graben

Sari M Graben

Abstract In this article, I consider the implications of culture for valuation of cultural loss in cost benefit analysis. I argue that rational choice models have a difficult time quantifying cultural values because they have yet to grapple with the way experts tasked with cost benefit analysis translate knowledge about cultural worldviews for the purposes of comparison. This translation can alter the valuation of the risk so as to undermine the representation of a loss, rather than identify it. However, instead of rejecting the consideration of cultural loss in cost-benefit analysis outright, I build on dialogical approaches to governance that …

State Constitutional Prohibitions On Special Laws, Justin R. Long

Justin R Long

Since the nineteenth century, most states have had constitutional clauses prohibiting “special laws.” These clauses were ratified to protect the people of each state from domination by narrow economic elites, who would use their economic power to win grants of privilege from the state legislatures. To fight the corrupt favors garnered by private interests in this way, state constitutional drafters wrote clauses requiring their legislatures to pass only “general” laws that would apply equally to all members of the regulated class. For a brief period, these clauses were enforced in the courts—but more to protect economic elites than the democratic …

Stewardship And Dominium: How Disparate Conceptions Of Ownership Influence Possession Doctrines, Martin Hirschprung

martin hirschprung

The law is ambiguous regarding the level and extent of possession necessary to effect ownership. It can be argued that one’s conception of the nature of ownership influences this standard of possession. I further argue that the application of the concept of stewardship to questions of possession will aid in resolving the disputes between museums and indigenous groups regarding cultural artifacts. In order to demonstrate the relationship between one’s conception of ownership and its attendant standard of possession, it is useful to contrast different legal definitions of ownership, particularly the Roman concept of dominium, with a religious model of stewardship …

Babies Without Borders: Human Rights, Human Dignity And The Regulation Of International Commercial Surrogacy, Yasmine Ergas

Yasmine Ergas

In recent decades, a robust international market in commercial reproductive surrogacy has emerged. But, as German citizens Jan Balaz and Susan Lohle discovered when they struggled to engineer the last-minute diplomatic compromise that saved their commissioned twins from becoming wards of the Indian state, conflicts among legal frameworks have placed the children born at risk of being “marooned, stateless and parentless.” States have tried to address the individual dramas through ad hoc solutions – issuing emergency entry documents for children caught at borders or compelling administrative authorities to recognize birth certificates related to surrogacy arrangements that run counter to domestic …

Babies Without Borders: Human Rights, Human Dignity And The Regulation Of International Commercial Surrogacy, Yasmine Ergas

Yasmine Ergas

In recent decades, a robust international market in commercial reproductive surrogacy has emerged. But, as German citizens Jan Balaz and Susan Lohle discovered when they struggled to engineer the last-minute diplomatic compromise that saved their commissioned twins from becoming wards of the Indian state, conflicts among legal frameworks have placed the children born at risk of being “marooned, stateless and parentless.” States have tried to address the individual dramas through ad hoc solutions – issuing emergency entry documents for children caught at borders or compelling administrative authorities to recognize birth certificates related to surrogacy arrangements that run counter to domestic …

The Influence Of Confucianism, Taoism, Sun Tsu And The Thirty Six Stratagems On Current Chinese Contract Law, Garrick Apollon Ga

Garrick Apollon GA

This article explains the legal irritants to the Westernization of the Chinese contract law system by examining how Chinese culture and traditions based on Confucianism that has evolved in China over millennia. This article explains the influence of Chinese rule of men v. American rule of law on contract law. The historical examination demonstrates that the legal transplant of the Western contract law system in China conflicts in many ways with its millennia cultural and philosophical legal structure. Overall, the author argues that the examination of the historical influence of millennia ancient Chinese philosophy of law, Confucianism, Taoism, Sun Tzu’s …

Prime Time For Japan To Take Another Step Forward In Lay Participation: Exploring Expansion To Civil Trials, Matthew J. Wilson

Matthew J. Wilson

As juries in the U.S. and other parts of the world have increasingly come under attack, many countries in Asia have recently turned to juries or quasi-juries in an effort to enhance judicial credibility, ensure justice, facilitate civic engagement, and even stimulate economic reform and recovery. In fact, Japan has led the recent movement of citizen participation in criminal judicial proceedings, and other Asian powers including South Korea, Taiwan, and China have followed its lead to varying degrees. Eyes around the world are focusing on Japan to see how its new jury system (more commonly known as its “lay judge …

The Word Commons And Foreign Laws, Thomas O. Main

Thomas O Main

Dual trends are colliding in U.S. courts. The first trend is a tidal wave of cases requiring courts to engage the domestic laws of foreign legal systems; globalization is the principal driver of this escalation. The second trend is a profound and ever-increasing skepticism of our ability to understand foreign law; the literature of pluralism and postmodernism has illuminated the uniquely local, language-dependent, and culturally embedded nature of law. Courts cope with this dissonance by finding some way to avoid the application of foreign law. But these outcomes are problematic because parties are denied access to court or have their …

Moral Hazard Within The Greek Economic Crisis: An Analysis Of European Union Law Effectiveness In Dealing With The Greek Economic Crisis, Juan Castro, Juan Castro

Juan Castro

In this paper I will present the historical background of the current Greek economic crisis. I will delve into the causes of the fiscal and current-account deficits since Greece’s euro entry in 2001. In addition to the economic and financial information provided, I will also present cultural aspects and differences between Greece and its surrounding neighbors, primarily Germany, and how moral hazard has exacerbated the conflict. Further I will discuss the legality of the countermeasures and solutions presented and how these encroach upon European Union law treaties. Lastly I will conclude that in order for Greece and Germany to stabilize …