Law Commons^™

Can You Provide Evidence Of Insufficient Evidence? The Precautionary Principle At The Wto, Elisa Vecchione

Elisa Vecchione

This paper aims to demonstrate that the WTO jurisprudence on science-related trade disputes has become entangled with a specific vision of science that has prevented any possible application of the precautionary principle. This situation is due to reasons of both legal procedures specific to the WTO dispute settlement system and the substantive nature of precautionary measures. Indeed, their foundation on “insufficient scientific evidence” dramatically complicates the question of the probative value of science for the purpose of legal adjudication and creates a seemingly contradictory situation, of which the Panel on the EC-Biotech case confirmed to be a victim: that of …

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 …

Imperial Ignition: Ecological Debt, Greenhouse Development Rights And Climate Change, Jonathan Stribling

Jonathan Stribling

This paper argues for legal principles to remedy the harm done to those least responsible for yet most affected by climate change. It examines approaches to developing the concepts of ecological and climate debt in U.S. law. This paper argues for the importance of understanding ecological debt and particularly “climate debt” in order to sustainably remedy climate change. The paper also argues that the principles of capacity and responsibility, which are the basis of the Greenhouse Development Rights (GDR) framework, are critical to remedying climate debt and should be included in global climate negotiations and U.S. environmental law.

Why Comply? An Analysis Of Trends In Compliance With Judgments Of The International Court Of Justice Since Nicaragua., Heather L. Jones

Heather L Jones

Decisions of the International Court of Justice have been met with substantial compliance in the modern era. Direct, defiant noncompliance -- where a state deliberately and ceaselessly rejects a decision of the Court and refuses to implement its judgment -- has not occurred in any case. In cases where noncompliancy has been present, the noncompliant behavior has been only initial or slight.

Pressure from the international community and the presence of international organizations raise the reputation costs associated with noncompliance thereby minimizing the risk of disobedience with judgments. Defiant noncompliance occurs where a judgment is in discord with a state’s …

Update On The New Iraqi Commission For Public Integrity And Audit Board Laws, Faris K. Nesheiwat

Ferris K Nesheiwat

No abstract provided.

Private International Law As Global Governance: Beyond The Schize, From Closet To Planet, Horatia Muir-Watt

Horatia Muir-Watt

Despite the contemporary turn to law within the global governance debate, private international law remains remarkably silent before the increasingly unequal distribution of wealth and power in the world. By leaving such matters to its public international counterpart, it leaves largely untended the private causes of crisis and injustice affecting such areas as financial markets, levels of environmental pollution, the status of sovereign debt, the confiscation of natural resources, the use and misuse of development aid, the plight of migrating populations, and many more. This incapacity to rise to the private challenges of economic globalisation is all the more curious …

Smoked Success? Social, Cultural, And Legal Changes In The United States, Japan, And France Have Led To A Decline In Tobacco Use. Yet, Teenagers Refuse To Budge!, Dalila V. Hoover

Dalila V Hoover

Once considered a part of everyday life, tobacco consumption has become a global public health crisis that has transcended national borders. By the end of 2011, tobacco will have killed nearly six million people, including more than 600,000 of people exposed to tobacco smoke. If current smoking patterns continue, the toll will nearly double by 2030 with more than 8 million deaths. To safeguard the public’s health, the United States, Japan, and France have taken action to change the acceptability of smoking. Although they have adopted a different approach, they have successfully altered and redefined their cultural perception of tobacco …

Private International Law As Global Governance: Beyond The Schize, From Closet To Planet, Horatia Muir-Watt

Horatia Muir-Watt

Despite the contemporary turn to law within the global governance debate, private international law remains remarkably silent before the increasingly unequal distribution of wealth and power in the world. By leaving such matters to its public international counterpart, it leaves largely untended the private causes of crisis and injustice affecting such areas as financial markets, levels of environmental pollution, the status of sovereign debt, the confiscation of natural resources, the use and misuse of development aid, the plight of migrating populations, and many more. This incapacity to rise to the private challenges of economic globalisation is all the more curious …

A Critique Of The Doctrine Of Forum Non Conveniens, Markus A. Petsche

markus a petsche

In this article, I formulate a basic critique of the doctrine of forum non conveniens. Unlike other authors, I do not focus on the numerous problems posed by the actual application of this doctrine in practice (e.g. delaying effect on proceedings, incoherent decisions, and discrimination against foreign plaintiffs). Instead, I explore the validity of the theory of forum non conveniens, i.e. the question of whether forum non conveniens – if applied in the best possible manner – can at all be a useful legal rule. My starting point is the observation that, despite the prevalence of contrary views, forum non …

What Should Guide Determinations Of Foreign Official Immunity In Us Courts After Samantar?, Chris C. Morley

Chris C Morley

In the recent Samantar decision, the Supreme Court held that individual foreign officials were not covered by the Foreign Sovereign Immunities Act but might still be covered by common law immunity. This article analyzes the extent of that common law immunity and discusses whether more recent developments in domestic and international human rights law should impact the availability of immunity for officials accused of torture, extra-judicial killings, and other violations of the law of nations.

Although the bulk of authority from US and foreign courts suggests that foreign officials should enjoy immunity for acts committed within the scope of their …

The Role Of Women In Mediation And Conflict Resolution: Lessons For Un Security Council Resolution 1325, Roohia S. Klein

Roohia S Klein

The impact of war on women is often disproportionate and distinct from the effect it has on men. Given the second-class status of women in many societies, their skills and contributions are often under-valued and under-utilized. UN Security Council Resolution 1325 (SCR1325) recognizes the importance of increasing the role of women in all aspects of maintaining international peace and security, including encouraging women to take an active role in resolving conflicts (sections 2, 8b and 16 of SCR1325). This last aspect of SCR1325 reflects an increasing recognition of the effect of gender in conflict resolution. This paper draws upon academic …

Icj's Kosovo Decision: Economical Reasoning Of Law And Question Of Legitimacy Of The Court, Upendra Acharya

Upendra Acharya

ABSTRACT The ICJ’s recent advisory opinion on Kosovo’s unilateral declaration of independence from Serbia that the Kosovo’s declaration of independence did not violate international law ignores a set of questions that concern contentious international legal issues, including the right to self-determination via remedial secession, the law of statehood, the territorial integrity of states, and the legal effect of recognition by other states. Because these issues were ignored by the ICJ in its legal analysis by its adoption of an economy of judicial reasoning, the advisory opinion marks a state of confusion and complicates similar independence claims by other territories and …

Not All Civilians Are Created Equal: The Principle Of Distinction, The Question Of Direct Participation In Hostilities And Evolving Restraints On The Use Of Force In Warfare, Trevor Keck

Trevor Keck

The inability to easily distinguish combatant from noncombatant during contemporary warfare has generated significant scholarly debate on the notion of “Direct Participation in Hostilities,” or the scope of activities for which a civilian loses immunity in warfare. This essay critiques guidelines developed by the International Committee of the Red Cross (ICRC) on this subject, and examines whether the dynamics of asymmetric conflict merits more restrictive restraints on the use of force than traditionally required by international humanitarian law (IHL).

The essay begins by tracing the origin of the principle of distinction, and examining the challenge of observing this norm in …

Development Lending To Municipalities By The World Bank Group, Asheesh Bhalla

Asheesh Bhalla

The World Bank Group has recently shifted its development lending policies to have a greater focus on lending to municipalities and developing financial institutions and systems of market creation at the local level. The author reviews this policy shift, and the consequences of such policy changes on local government institutions and law.

A Meaningful Definition Of The Crime Of Aggression: A Response To Michael Glennon, Jennifer -. Trahan

Jennifer - Trahan

In his article “The Blank Prose Crime of Aggression,” 35 Yale J. of Int’l L. 71, Michael Glennon argues that the International Criminal Court’s newly adopted definition of the crime of aggression is so vague and overbroad that prosecutions under it would violate the prohibition on retroactive or ex post facto laws. His arguments rest on an incorrect construction of the definition, ignorance of the extensive negotiating history and travaux préparatoires that exist vis-à-vis the crime, and failure to consult the elements of the crime. His argument that the fact that past U.S. military action would be covered by the …

Variable Multipolarity And Un Security Council Reform, Bart M.J. Szewczyk

Bart M.J. Szewczyk

One of the fundamental international law questions over the past two decades, and an integral issue for US policy, has been the structure of the United Nations Security Council. In a world of variable multipolarity, whereby changing crises demand different combinations of actors with relevant resources and shared interests, the Council’s reform should be based not on expanded permanent membership—as mistakenly held by conventional wisdom—but on inclusive contextual participation in decision-making. The Council’s five permanent members continue to have collective resources relative to the rest of the world that are not significantly different than at the founding of the UN. …

International Trust Domestication: Migrating An Offshore Trust To A U.S. Jurisdiction, Christopher M. Reimer

Christopher M. Reimer

What should an estate planning attorney know before repatriating a foreign trust to the United States?

U.S. and non-U.S. residents should consider the benefits of migrating trusts from offshore jurisdictions to a domestic state, such as Wyoming. For decades, foreign trusts held allure for families seeking to preserve wealth from the steady drain of taxation and the inevitable risk of creditor attack. But the federal government now imposes burdensome reporting and tax requirements on foreign trusts. Many states also offer tax, asset protection, substantive, and structural benefits that mitigate the comparative advantage of offshore trusts.

First, this article explains rationales …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

Localizing Religion In A Jewish State, Yishai Blank Prof.

Yishai Blank

Cities in Israel are regulating religion and controlling religious liberty. They decide whether to close down roads during the Sabbath, whether to limit the selling of pork meat within their jurisdiction, whether to prohibit sex stores from opening, and whether to allocate budgets and lands to religious activities. They do all that by using their regular local powers as well as special enablement laws which the Israeli parliament enacts from time to time. The immediacy of these issues, the fact that the traditional powers—business licensing, traffic and road control, spending and more—of local authorities touch upon many of them, and …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

Globalization, Regional Integration And Taxes On The Consumption Of Goods And Services In The Mercosur, Luciano Pereira Vieira

Luciano Pereira Vieira

This article reconsiders historical, political and economic assumptions necessary to understand the processes of globalization and regional integration, by seeking to break down certain taboos on the subject matter. All phases to be completed by the States participating in a given integration process and the setbacks experienced along the path until achieving the intended degree of political & economic integration are also outlined herein. It is assumed that the economic integration entails a great deal of effort from players to adjust their domestic laws, in particular tax regulations, since the markets and taxes go hand in hand, with the first …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso Professor

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

New Custom: Customary Law As A Progressive Force In Contemporary International Law, Elizabeth Campbell

Elizabeth Campbell

This paper examines the emergence of a new form of customary international law and its use as a progressive law making tool in the field of international law. It discusses the definitional problems with the orthodox tests of customary law, state practice and opinio juris, and how these ambiguities have been exploited by States wishing support for a particular norm they feel should get customary law status. It is argued that through this laxity, customary international law has inadvertently provided a new forum for the development of progressive law. The paper begins with an examination of the difficulties in defining …

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

Juscelino F. Colares

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

Another Parallel With Silicon Valley: Non-Compete Clauses Under Israeli Law, Edo B. Royker

Edo B Royker

The attached Article contributes to the literature on the benefits of not enforcing non-compete provisions in fostering a start-up friendly environment. Many scholars have previously focused on this issue, but the current literature has primarily focused on comparing the state of the law between California and Boston alone. My article serves the novel function of providing a third focal point for this analysis – Israel – and provides an in depth analysis of Israeli statutory and case law on this issue. Introducing a third focal point will add empirical evidence to the debate on whether the failure to enforce such …

The Special Tribunal For Lebanon’S Unique Beginnings, Its Political Opposition And Role As Model For Future Ad Hoc Criminal Tribunals For Terrorism Prosecution, Daniel Runge

Daniel Runge

This article suggests that the Special Tribunal for Lebanon in many respects can serve as a model for future ad hoc international tribunals for the prosecution of terrorism. The article discusses the assassination of Rafiq Hariri and the investigation that followed, leading to the tribunal’s formation. After this background, the formation of the tribunal is analyzed. Initially designed as a hybrid international tribunal based on a treaty between the United Nations and Lebanon, the tribunal was ultimately established unilaterally by the United Nations Security Council following the failure of the Lebanese government to approve the treaty. The article then discusses …

Parents Behaving Badly: Whether, In The Wake Of Miller-Jenkins, Public Policy Considerations Should Play A Role In Custody Decisions, Ethan G. Kate

Ethan G. Kate

Miller-Jenkins v. Miller-Jenkins illustrates the dilemma facing courts in contentious custody disputes: At what point, if ever, should the best interests of one child cede to the interests of society at large? The best interests standard has become the predominant norm for settling custody disputes under both domestic and international law, yet satisfying the needs of one child can potentially establish precedent that runs counter to public policy, often forcing courts to ignore – or at least claim to ignore – these public policy considerations in order to reach a decision based on the individual child’s best interests. Undoubtedly aware …

Cyberlaw 2.0, Jacqueline Lipton

Jacqueline D Lipton

In the early days of the Internet, Judge Frank Easterbrook famously dismissed the idea of an emerging field of cyberspace law as akin to a “law of the horse”— a pastiche of unrelated legal principles tied together only by virtue of applying to the Internet, having no unifying principles that would teach us anything meaningful. This article revisits Easterbrook’s assertions with the benefit of hindsight. It suggests that subsequent case law and legislative developments in fact do support a distinct cyberlaw field. It introduces the novel argument that cyberlaw is a global “law of the intermediated information exchange.” In other …

Vietnam, China, And The United States: The Regulatory Framework Of Mining Pollution And Water Quality, Heather Whitney

Heather Whitney

This paper compares the environmental, mining, and water quality policy and regulatory framework of three countries: Vietnam, China, and the United States. There are many similarities between China and Vietnam’s legal framework and environmental protection mechanisms, by virtue of the fact that they are both socialist countries, both authoritarian governments, and both in the midst of an industrial revolution. The United States intersects in some areas of water quality standards and technological controls of effluents with both countries, as well as certain enforcement measures. This is true especially in China, where the EPA has actively consulted the Chinese government in …