Law Commons^™

From Incitement To Indictment? Prosecuting Iran's President For Advocating Israel's Destruction And Piecing Together Incitement Law's Emerging Analytical Framework, Gregory S. Gordon

Gregory S. Gordon

On October 25, 2005, at an anti-Zionism conference in Tehran, Iran's President, Mahmoud Ahmadinejad, called for Israel to "be wiped off the face of the map" -- the first in a series of incendiary speeches arguably advocating liquidation of the Jewish state. Certain commentators argue that these speeches constitute direct and public incitement to commit genocide. This Article analyzes these arguments by examining the nature and scope of recent groundbreaking developments in incitement law arising from the Rwandan genocide prosecutions. For the first time in the legal literature, the Article pieces together an analytical framework based on principles derived from …

New Patent Regime In India: Challenges And Future Of The Pharmaceutical Industry, Shashi Sharma

Shashi Sharma

No abstract provided.

Rubin V. The Islamic Republic Of Iran - A Struggle For Control Of Persian Antiquities In America, James A. Wawrzyniak

James A Wawrzyniak Jr

This paper analyzes the multi-jurisdictional attachment and execution proceedings taking place sub nomine Rubin v. The Islamic Republic of Iran. The Rubin litigation raises novel issues in the areas of art law and foreign relations. The first section of the paper evaluates whether third parties have standing to raise a sovereign state’s immunity under the Foreign Sovereign Immunities Act (“FSIA”). The second delves into the particulars of the commercial use exception to the FSIA. The final section considers various provisions of the Terrorism Risk Insurance Act of 2001, a new law with little judicial gloss. These three main issues are …

The Foreign Sovereign Immunities Act: Using A "Shield" Statute As A "Sword" For Obtaining Federal Jurisdiction In Art And Antiquities Cases, Lauren F. Redman

Lauren F Redman

This paper examines the emergence of art and antiquities restitution cases being brought in U.S. federal courts under the FSIA. The purpose of the paper is twofold. First, it aims to serve as a compendium of the major art and antiquities restitution cases brought under the FSIA up to this point. In addition, it examines several questions concerning the appropriateness of the FSIA being used in the way it has been in the context of the art cases. Have the jurisdiction granting provisions springing from the exceptions to the FSIA eclipsed the primary purpose of foreign sovereign immunity, which is …

Litigating Canada-U.S. Transboundary Pollution: International Environmental Lawmaking And The Threat Of Extraterritorial Reciprocity, Shi-Ling Hsu, Austen Parrish

Shi-Ling Hsu

This Article joins a spirited debate ongoing among international law scholars. Numerous articles have debated the changing nature of interna-tional law and relations: the impact of globalization, the decline of territorial-sovereignty, the ever important role that non-state actors play, and the growing use of domestic laws to solve transboundary problems. That scholarship, however, often speaks only in general theoretical terms, and has largely ignored how these changes are playing out in countries outside the United States in ways that impact American interests.

This Article picks up where that scholarship leaves off. It examines one of the perennial challenges for international …

Stronger Trade Or Stronger Embargo: What The Future Holds For United States-Cuba Trade Relations, Michael D. Margulies

Michael D Margulies

This paper provides an analysis of the history, politics, legislation and current state of affairs of United States-Cuban trade relations. Beginning with the political climate and events that have led to the existing and limited trade relations between the two countries, the article proceeds to identify the possibility for enhanced trade. The subject of the existing legislation is important in its own right and may serve as an indicator of what potential exists for future U.S.-Cuban relations. Though such a relationship may prove to be economically beneficial for both the U.S. and Cuba, there is much more at stake from …

Horizontal Human Rights Law, John H. Knox

John H Knox

One of the most controversial issues in human rights law today is whether it should place duties on individuals, corporations, and other private actors. The usual view of human rights law is that it applies vertically, to protect individuals from governments. Increasingly, however, that view is coming under attack. A UN special rapporteur has drafted a Declaration on Human Social Responsibilities, which would set out duties on all individuals, and a UN body of independent experts has adopted Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, which would set out duties on …

Asserting Foreign Patent Claims In U.S. Federal Courts: What’S Left After Voda V. Cordis?, Eric D. Chan

Eric David Chan

Patent law is inherently territorial; a patent covers infringing activity only within the borders of the nation in which it should granted. However, this makes enforcing patent rights worldwide a daunting challenge. Rather than recklessly extending the extraterritorial reach of U.S. patent law, a better alternative would be to assert claims for infringement of multiple foreign patents in a single, U.S. forum.

This paper focuses on the new barriers raised to the prospects for such consolidated, multinational patent infringement proceedings by Voda v. Cordis, decided by the Federal Circuit in February. Voda held that federal supplemental jurisdiction should almost never …

The Domestic Legal Status Of Customary International Law In Comparative Perspective, David M. Ginn

David M Ginn

This essay considers the contested domestic legal status of customary international law. Two distinct positions have emerged in the debates about customary international law. The first position maintains that customary international law operates as a type of federal common law that is automatically incorporated into U.S. law and should be applied by courts in any appropriate case. The second position holds that only the political branches may incorporate customary international law into U.S. law, and that courts may only apply customary international law if a federal statute authorizes them to do so.

Drawing from the federal courts' experience with admiralty …

Legislative, Judicial, Soft Law, And Cooperative Approaches To Harmonizing Corporate Income Taxes In The Us And The Eu, Charles E. Mclure

Charles E. McLure Jr.

Legislative, Judicial, Soft Law, and Cooperative Approaches to Harmonizing Corporate Income Taxes in the US and the EU

Charles E. McLure, Jr.

Abstract

The Member States of the European Community have systems of taxing corporate income that are more appropriate for nations than for members of an economic union. This paper describes the problems of the present system, which is based on separate accounting and arm’s length pricing, the advantages of one based on consolidation and formula apportionment, such as those employed by the US states and Canadian provinces, and the desirable characteristics of such a system. The European Court …

The Challenges Of International Criminal Prosecutions In Africa, Okechukwu Oko

Okechukwu Oko

This paper evaluates the problems and challenges of using international criminal prosecutions to promote accountability and facilitate reconciliation in African countries sundered by mass violence and genocide. It examines the values of criminal prosecutions and offers some explanations of the factors that limit the effectiveness of criminal prosecutions, namely attitudinal, environmental factors, lack of cooperation from state governments and the limits of criminal law. I argue that the objectives of using criminal prosecution to reestablish social equilibrium and promote reconciliation though laudable and rhetorically inspiring are simply unattainable. International criminal prosecutions reignite painful memories of colonialism, exacerbate existing hatreds and …

United States Implementation Of The International Criminal Court: Towards The Federalism Of Free Nations, Lauren F. Redman

Lauren F Redman

The political winds are changing, and a more liberal United States government may very well be receptive to ratification of the Rome Statute of the International Criminal Court. The nature and scope of international law are also changing. Individuals are sharing responsibility with states for grave breaches of international law, and globalization has resulted in a marked increase in international tribunals deciding disputes affecting individual interests. Despite these trends, Americans have been wary of the International Criminal Court (ICC).

Federal courts principles borrowed from the legal process school can and should be implemented to govern relations between ICC and domestic …

Trade, Empires And Subjects: China-Africa Trade Relations - A New Fair Trade Arrangement Or The Tird Scramble For Africa?, Uche Ofodile

Uche Ewelukwa

This paper examines the opportunities and pitfalls that renewed Sino-Africa trade relations presents for Africa, traces the evolution in China-Africa partnership discourse, identifies the basic legal and policy framework of the unfolding relationship, and calls for a clear Africa policy regarding China. The paper will also seek to identify the core characteristics of China’s partnership with Africa. The emphasis is on the trade and investment dimension of the Sino-Africa relations. The year 2006 was dubbed “China’s Year of Africa.” Since 2000, the interest of the People’s Republic of China (“China”) in Africa has grown steadily. The Forum on China-Africa Cooperation …

Infringement & The International Reach Of U.S. Patent Law, Moin A. Yahya, Cameron Hutchison

Moin A Yahya

American Patent Law, through both judicial and legislative efforts, has evolved from a strict territorial based set of laws asserting jurisdiction only over those infringements taking place on American soil to a more expansive set of rules asserting jurisdiction over any event that may harm patent holders in the United States regardless of where the infringement is taking place. This, we argue, is contrary to the original purpose of Patent Law and inconsistent with American obligations under the International Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). We argue for a return to territorial based rules of jurisdiction. Such a …

Depletion-Safe Tuna: Has The Unclos Tribunal Usurped Its Members’ Democracy?, Etan M. Basseri

Etan M Basseri

In 1999 the International Tribunal for the Law of the Sea heard a complaint of fishing violations, with Australia and New Zealand alleging that Japan had exploited the delicate southern bluefin tuna fisheries in violation of the United Nations Convention on the Law of the Sea. Japan responded, and eventually prevailed, with the argument that the dispute was governed by a separate multilateral treaty concerning the tuna species. The issue of jurisdiction was a major issue in the case.

This paper argues that the Tribunal’s formation and operation was and is consistent with democracy. It applies four different critiques of …

International Organizations In Us Courts: Reconsidering The Anachronism Of Absolute Immunity, Steven B. Herz

Steven B. Herz

No abstract provided.

Reconstructing The Odious Debt Exception, Bradley N. Lewis

Bradley N. Lewis

Sovereign debts are persistent--as financial obligations of a sovereign state, these debts survive the regime which contracted for them and bind future governments until the creditors are satisfied. Only under limited circumstances does international law allow for the cancellation of such debts. In the early twentieth century, Alexander Sack defined a class of sovereign debts--“odious debts”--which are particularly deserving of cancellation. To qualify as “odious,” a debt’s proceeds must have been literally or effectively stolen by a tyrant, leaving the population she once ruled to pick up the check.

Sack’s purpose for what has become known as the Odious Debt …

Childsoldiers,Slavery, And The Trafficking Of Children, Susan W. Tiefenbrun

Susan W Tiefenbrun

Despite a proliferation of international human rights treaties, labor laws, and humanitarian laws that should provide children with special protection from abduction into child soldiering, the trafficking of children and their use as soldiers is increasing. This paper will examine the relationship of human trafficking, slavery, and child soldiering. Part I will examine the root causes of the development and expansion of child soldiers. Part II will examine the international and domestic laws that protect against the use of children as soldiers. Part III will examine two literary representations of the use of child soldiers and the significant insights such …

Intermediated Securities, Legal Risk, And The International Harmonisation Of Commercial Law, Luc Thevenoz

Luc Thevenoz

Investors do not physically hold their investment securities any more. Securities are held and transferred through a complex, sophisticated, and international network of financial intermediaries, including central securities depositories, investment banks, and brokers-dealers. Investors buy and sell their holdings by having book-entries made to their securities accounts; they provide collateral to secured lenders by book-entries or by control agreements. Because transfers and collateral transactions are critical to the liquidity of the financial markets and to financial stability, market participants and regulators have become increasingly concerned with the legal soundness, the internal consistency, and the international compatibility of national laws regulating …

Defending Truth: Legal And Psychological Aspects Of Holocaust Denial, Kenneth Lasson

Kenneth Lasson

Today that form of historical revisionism popularly called “Holocaust denial” abounds worldwide in all its full foul flourish – disseminated not only on Arab streets but in American university newspapers, not only in books, articles, and speeches but in mosques and over the Internet. Can we reject spurious revisionism, or punish purposeful expressions of hatred, and still pay homage to the liberty of thought ennobled by the First Amendment? Are some conflicts between freedom of expression and civility as insoluble as they are inevitable? Can history ever be proven as Truth? This article attempts to answer those questions. Part I …

Illegal Occupation And Its Consequences, Yael Ronen

Yael Ronen

The term ‘illegal occupation’ has in various cases been used in both political and legal texts to the term ‘illegal occupation’. Yet the meaning and significance of this legal category has never been systematically investigated. This article offers such an investigation, with reference to UN practice in which specific situations of occupation have been declared ‘illegal’.

The first issue examined is the parameters for the illegality of an occupation. The article proposes that an occupation may be considered illegal if it is involves the violation of an international legal norm that operates erga omnes and is related to territorial status, …

Unintended Consequences Of Legal Westernization In Niger: Harming Contemporary Slaves By Reconceptualizing Property, Thomas A. Kelley

Thomas A Kelley III

There are slaves living today in the West African Republic of Niger and their plight is being exacerbated by that country’s aggressive program of legal westernization. Under the guidance of the United States and other Western countries, Niger recently passed a surfeit of new laws, including some that introduce and enforce the notion of private property ownership. The theory – widely accepted by donor countries and international development experts – is that uniform, easily enforceable rights in private property will spur investment and help breathe life into Niger’s moribund economy. This paper does not dispute the validity of that legal …

Le Droit De Suite: An Unartistic Approach To American Law, Jonathan D. Tepper

Jonathan D Tepper

This article investigates the expansion of copyright law to include the implementation of the droit de suite or resale royalty on the sale of art in the United States. The articles concludes that royalty rights should not be implemented in the United States because it not only conflicts with many common law doctrines, but also fails to further the goals enumerated in the Copyright Clause of the U.S. Constitution.

The provision and treatment of royalty rights on the resale of art marks a major distinction in the treatment of art between civil law countries such as France and common law …

Forgetting Lochner In The Journey From Plan To Market: The Framing Effect Of The Market Rhetoric In Market-Oriented Reforms, Joel M. Ngugi

Joel M Ngugi

Since the 1980s the developing world has been undergoing a transition styled by the World Bank as a journey from “Plan” to “Market.” This article argues, first, that rhetorically, this transition parallels a transition described by Legal Anthropologist, Henry Sumner Maine more than a century ago, as a progressive movement from “Status” to “Contract.” Second, the article demonstrates that this transition has been accompanied by a Lochnerian vision of management of the relationship between the state and the market. This vision obscures settled “lessons” about the role of and interaction between the state and the market in the service of …

Debt To Odious Finance: Avoiding The Externalities Of A Functional Odious Debt Doctrine, Christiana Ochoa

Christiana Ochoa

Christiana Ochoa* Abstract The Odious Debt Doctrine has limped along in the legal imagination for over 100 years and by some estimates even since Aristotle. In recent years, and particu-larly in recent months, legal theorists and practitioners have attempted to define the contours and details of this controversial and undeveloped doctrine. This Article looks at the generally agreed upon characteristics of the odious debt doctrine and considers the spill-over effects and externalities that would ensue if this doctrine were ever made regularly operative. Many commentators have noted the in-creased costs of borrowing and lending that would result from the doctrine. …

The Unfinished Business Of American Democracy, Ezequiel Lugo

Ezequiel Lugo

For the last two decades, U.S. courts have been using customary international law (CIL) when dealing with human rights claims. Recently, the Supreme Court has used international law to decide cases involving constitutional rights. However, U.S. courts have not used CIL to address the right to vote, one of the most fundamental human rights. This Article surveys evidence of the right to vote as CIL and concludes that the right to vote has become a norm of CIL. It cannot, however, be directly incorporated into U.S. law because of previous judicial decisions. Nevertheless, the U.S. can comply with this norm …

Foreign Plaintiffs, Forum Non Conveniens, And Consistency, Andrew R. Klein

Andrew R Klein

Few topics inspire more debate than globalization. Yet, despite controversy, a more integrated global economy seems inevitable. As former United Nations Secretary General Kofi Annan has stated, “arguing against globalization is like arguing against the laws of gravity.”

One consequence of globalization is an increased likelihood that a person will suffer harm caused by the conduct of an entity based outside her own country. This, in turn, can lead to a victim seeking compensation far from home. The trend is evident in the United States, where an increasing number of foreign plaintiffs are seeking relief based on events that took …

The Good, The Bad, And The Ugly: Moral Agency And The Role Of Victims In Reparations Programs, Carlton Waterhouse

Carlton Waterhouse

ABSTRACT Despite the growing interest in reparations, at the domestic and international level, little attention has been given to the role of victims in the design and implementation of reparations programs. Instead, most programs and commentators place emphasis upon the apology, recompense, or restitution required by former wrongdoers rather than the restoration and recovery of victims. This prevailing approach neglects the critical role that communities and individuals suffering from past abuses should play in order to reestablish their personal well being and societal standing. This methodology replicates the past subordination of victims by rendering them the passive recipients of government …

The Foreign Affairs Power: Does The Constitution Matter?, D. A. Jeremy Telman

D. A. Jeremy Telman

Peter Irons’ WAR POWERS favors congressional initiative in questions of war and peace but makes a historical argument that our government has strayed from the constitutional design in the service of an imperialist foreign policy. John Yoo’s THE POWERS OF WAR AND PEACE seeks to overthrow the traditional perspective on war powers espoused by Irons in favor of executive initiative in war. Yoo also pursues a revisionist perspective on the treaty power, which favors executive initiative in treaty negotiation and interpretation but insists on congressional implementation so as to minimize the impact of international obligations on domestic law. This Essay …

A Study Of Interest, John Y. Gotanda

Working Paper Series

In recent years, a number of tribunals, mainly those deciding investment disputes, have re-examined traditional practices concerning the awarding of interest, particularly whether interest should be awarded at market rates and on a compounded basis. However, many tribunals deciding transnational contracts disputes continue to follow the practice of applying national laws on interest, which often results in the application of domestic statutory interest rates calling for a fixed rate of interest to accrue on a simple as opposed to compound basis. These statutory rates often do not change to reflect economic conditions and thus may under compensate or over compensate …