Law Commons^™

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

Legal Remedies To Collective Trauma In Northern Ireland, Katherine S. Thomas

Duke Journal of Comparative & International Law

How can a country legally address collective trauma? Northern Ireland faced this daunting question in 1998, when the signing of the Good Friday Agreement heralded the end of decades of sectarian violence known as the Troubles. More than two decades later, the social and economic damage of the Troubles lingers. Years of piecemeal reconciliation efforts have proved controversial and yielded inconsistent results. The "truth" of the Troubles remains a divisive issue, and the question of how Northern Ireland can achieve lasting reconciliation still looms. This Note offers an up-to-date review of transitional justice efforts in Northern Ireland and the ongoing …

Made In China, Sued In The U.S.: The Exploitation Of Civil Procedure In Cross-Border E-Commerce Trademark Infringement Cases, Lei Zhu

Duke Journal of Comparative & International Law

During the period of economic resurgence after the subprime mortgage crisis, China became a manufacturing powerhouse, with Amazon playing a pivotal role. Amazon's attractive policies lured Chinese e-commerce sellers to its platform, subsequently drawing many more customers with their competitive pricing. This surge, however, also invited Chinese counterfeiters onto Amazon's platform. Major brands responded by suing those counterfeit sellers for trademark infringement. As most Chinese sellers failed to attend trials, these cases almost always resulted in uncontested wins for the brands, thereby granting them access to the sellers' financial accounts as a means to satisfy the damage claimed. Many U.S. …

How To Destroy The Liberal International Order, Bryan H. Druzin

Duke Journal of Comparative & International Law

This Article argues that a policy of containment directed at China could have disastrous consequences on the stability of the global system. The liberal international order, created to promote international coordination and structure global trade, comprises key institutions such as the United Nations, the World Trade Organization, the International Monetary Fund, and the World Bank. It is possible that much of the strength of these institutions stems from the fact that nations are "locked" into them simply because they are the only game in town. Put another way, the liberal order is, for lack of a better word, a "monopoly." …

Uncharted Waters: Should International Maritime Terrorism Be Included In The Jurisdiction Of The International Criminal Court?, Juan-Pablo Perez-Leon-Acevedo, Giorgi Chakhvadze

Duke Journal of Comparative & International Law

The International Criminal Court (ICC) lacks jurisdiction over international terrorism. Despite related academic literature, no academic publication discusses whether the ICC should have jurisdiction over international maritime terrorism. This deserves attention due to the increasing importance of this global phenomenon in the last few decades. Consequently, this Article considers whether international maritime terrorism should be included in the ICC’s jurisdiction. First, it discusses international maritime terrorism as a manifestation of the emerging international crime of international terrorism, examining i) whether there is an accepted or an emerging legal definition of international maritime terrorism, ii) whether international maritime terrorism is a …

The Permanent Court Of International Justice In Global History, James D. Fry

Duke Journal of Comparative & International Law

The Permanent Court of International Justice's contributions often are overshadowed by the fact that it was the predecessor of the overwhelmingly important International Court of Justice. This article is the first to look at the Permanent Court's possible contribution to global history in its own right. While the case-study method adopted in this article does not allow for the determination of causal linkages between acts of the Permanent Court and consequences in global history, it nevertheless provides compelling support for liberal institutionalism and the notion that global history has been influenced by actors other than states, even though states remain …

Discretion And The Rule Of Law: The Significance And Endurance Of Vagrancy And Vagrancy-Type Laws In England, The British Empire, And The British Colonial World, Christopher Roberts

Duke Journal of Comparative & International Law

This article explores the history of vagrancy laws in England, the British Empire, and the British colonial world, the significance of those laws, the various challenges that were made to vagrancy laws in the twentieth century, and the limits of those challenges to date. While vagrancy laws preceded the nineteenth century, the 1824 Vagrancy Act in England set a new model, which proved extremely influential around the world over the following centuries. Between the early nineteenth and the early twentieth centuries, vagrancy laws were adopted or reformulated almost everywhere the British left a footprint. The laws that were adopted covered …

Jurisprudential Hypocrisy Under Israel's Normative Umbrella: Punitive Demolitions As Pre-Conviction, Collective Punishment In The West Bank, Rebecca Mooney

Duke Journal of Comparative & International Law

Since the termination of the British Mandate in 1948 and Israel's subsequent occupation of Palestine, the Israeli government has punitively demolished hundreds of Palestinian homes in the West Bank. After a slight downturn during COVID-19, numbers are once again on the rise. Israel's punitive demolition strategy targets the innocent families of Palestinians allegedly involved in security offenses against Israel. When a suspected offender is detained, Israel orders the demolition of their family home—usually, before the suspect is tried or convicted, and regardless of whether they own or permanently reside in the house. In support of its punitive demolition campaign, Israel …

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

Reversing Cfius: Analyzing The International And Constitutional Implications Of The Revised National Critical Capabilities Defense Act, Madison Cash

Duke Journal of Comparative & International Law

In 2022, congressional consideration of the Revised National Critical Capabilities Defense Act (Revised NCCDA), colloquially known as "Reverse CFIUS", caused a flurry of conversation amongst congressional committees, legal practitioners, and private companies. The bill proposed a broad outbound foreign investment review regime for industries implicating national critical capabilities. While Congress ultimately declined to pass the Revised NCCDA, a similar outbound review mechanism is soon likely to be promulgated by the Executive Branch or the Legislative Branch. This note discusses the legislative history resulting in the proposal of an outbound investment review mechanism. It criticizes the breadth and ambiguity of the …

Paternalism In International Human Rights Law, Lucas Lixinski, Noam Peleg

Duke Journal of Comparative & International Law

This article argues that international human rights law (IHRL) at a system-wide level produces paternalistic effects that undermine the work it is meant to do for rightsholders. Analyzing the work of four key United Nations human rights treaty bodies, we show how institutional arrangements exclude rightsholders from having a say on their own interests in what IHRL should mean for them, and we are instead left with a body of norms, guidelines, and institutions with self-serving dynamics that reinforce the position of IHRL institutions and only secondarily benefit rightsholders.

Law Over Legalism: International Court Legitimacy In Lautsi V. Italy, Sebastián Guidi

Duke Journal of Comparative & International Law

2009 brought an existential crisis to the European Court of Human Rights (ECtHR). In November, it unanimously ordered Italy to remove crucifixes from public schools. Backlash was unprecedented. The government promptly announced it would not comply. Politicians and social actors all across the political spectrum harshly criticized the decision and bashed the Court. Ten European countries joined Italy in referring the case to the Grand Chamber of the Court, which reversed the decision in 2011. The storm abated. Lautsi v. Italy likely received the most public attention of any ECtHR judgment. Much of the Court’s subsequent case-law was decided with …

New Perspectives On Iran: The Path To Progressive Family Law Before The Islamic Revolution, Neeki Memarzadeh

Duke Journal of Comparative & International Law

A progressive Iranian women's rights movement has slipped through the cracks of mainstream scholarship. In the 1960s, Iranian women rallied for progressive family law reforms; their efforts culminated in the Family Protection Law of 1967. This note provides an alternative view of the women's rights movement in the Middle East and highlights how a social movement gave rise to comprehensive and progressive family law reform. Over the last century, Iran has been under authoritarian rule, first in the form of a monarchy and now in a theocracy. In spite of this, Iranian women have been steadfast in the fight for …

Federal Recognition Of Native American Tribes In The United States And The International Right To Self-Determination: Why Congress Should Exercise Its Constitutional Authority To Federally Recognize The Lumbee Tribe, James Ennis Street

Duke Journal of Comparative & International Law

Native American tribal nations covet state and federal tribal recognition. The Lumbee Tribe is one of those tribes. Though North Carolina has granted the Lumbee Tribe State recognition, the Lumbee Tribe's 134-year-long quest for Federal recognition has not been successful. Neither of the two types of Federal Recognition – Administrative and Congressional – have permitted the Lumbee Tribe to benefit alongside the other federally-recognized Tribes from increased respect, sovereignty, and resources. Instead, the Lumbee Tribe has been spun around by the regulatory recognition rigmarole.

In this article, I first explore arguments for and against federal recognition of the Lumbee Tribe. …

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

An Ad Hoc Dispute Settlement Mechanism Or A Harmonization Mission? A Reappraisal Of Jurisprudential Fragmentation In International Investment Arbitration, Mohammad Hamdy

Duke Journal of Comparative & International Law

Contrary to the numerous accounts of fragmentation in investment arbitration case law, this Article shows that the case law depicts a high degree of cohesion. The Article argues that jurisprudence in investment arbitration is stabilized by distinct mainstream interpretations of the key provisions of bilateral investment treaties, the main legal instrument in international investment law. The Article considers the frequently cited disagreements among arbitral tribunals in light of competing commitments to either regulatory pluralism or harmonization. It demonstrates that the vast majority of tribunals interpret bilateral investment treaties in a way that circumscribes pluralism and furthers the harmonization of the …

Forced Justice: The Kosovo Specialist Chambers, Sara L. Ochs, Kirbi Walters

Duke Journal of Comparative & International Law

The Kosovo Specialist Chambers (KSC), the court created to adjudicate war crimes and crimes against humanity committed in Kosovo at the turn of the century, is the world’s newest hybrid tribunal. The KSC is classified as a hybrid tribunal because it ostensibly blends aspects of international and domestic law and resources. Upon examination, however, the KSC departs in critical ways from the traditional concept of a hybrid tribunal, representing an internationally dominated court with minimal local involvement. By detailing the history of judicial mechanisms employed to prosecute crimes committed during and in the aftermath of the Kosovo War from 1998-1999, …

Fighting Words: Catalonia At The Language Instruction Crossroads, Jane Tien

Duke Journal of Comparative & International Law

The schism between Spain and Catalonia obscures a struggle over the teaching language for non-linguistic subjects in Catalonia's public schools. The recent two decades decanted into Catalan society two Spanish Constitutional Court rulings mandating a Castilian-Catalan conjunctive instruction model—with Catalan as the "center of gravity"—and tasking the Catalan legislature with configuring that "center." Pleasing none and spurned by all, the Constitutional Court duology emboldened activist lower courts to bypass the Catalan legislature, while schools in Catalonia continued to teach almost exclusively in Catalan. With the Castilians alienated and the Catalans defiant, language instruction in Catalonia turned into a festering wound …

Bankruptcy Basics: What The U.S. Can Learn From The U.K. Filing Processes, Courtney Kobren

Duke Journal of Comparative & International Law

Although filing for bankruptcy is the primary form of economic relief for U.S. consumers in financial distress, pro se debtors lack access to the consumer bankruptcy system. An individual debtor faces many challenges when filing for bankruptcy without an attorney, since the debtor must rely on free access to the information provided by the U.S. Courts website. However, that information is vague and presented in complex legalese and dissuasive diction. On the other hand, U.K. debtors who need financial relief can file for bankruptcy through a clear and accessible bankruptcy filing process. U.K. debtors also have access to free consumer …

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

Sovereignty In The Era Of Fragmentation – Eu Trade Agreements And The Notion Of Statehood In International Law, Harri Kalimo, Shorena Nikoleishvili

Duke Journal of Comparative & International Law

In this article, we explore the theme of sovereignty in the context of fragmented international law. We observe that the sovereignty of States may become relativized, not only by the political power of other States, but by its exposure to multiple, functionally separate fields of law. We analyze this theme by asking whether trade agreements as instruments of economic law offer a venue for discussing the sovereignty of sub-statal entities that lack standing on the more traditional international forums. Our analysis focuses first on a recent decision by the Court of Justice of the European Union, which concerned the status …

Tribal Sovereignty And The Right To Life, Clare Holtzman

Duke Journal of Comparative & International Law

On August 26, 2020, the only Native American on federal death row, Lezmond Mitchell was executed by the federal government for the murder of two Navajo citizens on Navajo Nation land. Federal law typically gives Tribal Nations the right to determine whether the death penalty is used against their citizens for crimes committed between Tribal citizens on Tribal land. Yet here, the federal government utilized a loophole to seek the death penalty against the Navajo Nation's wishes. Lezmond Mitchell was not a sympathetic man by any means; indeed, he brutally killed a grandmother and her young granddaughter to steal their …

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

The International Law Of Colonialism In East Africa: Germany, England, And The Doctrine Of Discovery, Robert J. Miller, Olivia Stitz

Duke Journal of Comparative & International Law

The non-European, non-Christian world was colonized under international law that is known today as the Doctrine of Discovery. This common-law international Doctrine was codified into European international law at the Berlin Conference of 1884–85 and in the Berlin Act of 1885 specifically to partition and colonize Africa. Thirteen European countries and the United States attended the four-month Conference, which ended with thirteen countries signing the Berlin Act on February 26, 1885. Under the Discovery Doctrine and the Berlin Act, these European countries claimed superior rights over African nations and Indigenous Peoples. European explorers planted crosses, signed hundreds of treaties, and …

Giving The People A Voice Where It Counts: A Presumption In Favor Of Allowing Permanent Residents To Vote In Local Elections, Robin Liu

Duke Journal of Comparative & International Law

This article proposes, as a matter of principle, that there should be a rebuttable presumption in favor of extending voting rights in local elections to permanent residents. It will justify why the proposed presumption should apply, the ways in which it could be rebutted, and offer some insight into how the presumption could serve as a guide to constitutional interpretation and design. It will review the reasons for the connection between citizenship and voting rights, and then address why permanent residents should be granted the right to vote in local elections. Three case studies will be used to illustrate how …

On The Politics And Ideologies Of The Sovereignty Discourse In Cyberspace, Henning Lahmann

Duke Journal of Comparative & International Law

This article critically examines the current discourse on the legal status and substance of the international law concept of "sovereignty" in cyberspace against the backdrop of conflicting political-ideological attitudes. It first traces the origins of the interpretation of "respect for sovereignty" as a primary rule of international law, and then discusses two approaches to cyberspace that challenge the emerging consensus: "cyber imperialism," embodied by the US and the other Five Eyes members on the one hand, and "cyber-Westphalia," represented by China, Russia, and Iran on the other. Both groups conceive cyberspace in ways fundamentally irreconcilable with prevailing legal views. A …

Hiding In The Eye Of The Storm Cloud: How Cloud Act Agreements Expand U.S. Extraterritorial Investigatory Powers, Tim Cochrane

Duke Journal of Comparative & International Law

The United States and United Kingdom will soon implement a new reciprocal international law enforcement data sharing agreement (U.S.-UK Agreement), the first of its kind under the Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act), which will enable law enforcement of one signatory state to directly request data from service providers based in the other state. The United States says CLOUD Act agreements simply remove conflicts of law and do not affect its jurisdiction over overseas providers, claiming these are strictly constrained by the personal jurisdiction requirement contained within the Constitution’s Fifth Amendment Due Process Clause. It is …

Wage Boards And Labor Revitalization: U.S. Aspirations And Uruguayan Realities*, Ana Laura Ermida, César F. Rosado Marzán

Duke Journal of Comparative & International Law

State-supported sectoral bargaining through wage boards is gaining traction among some U.S. reformers interested in revitalizing unions, collective bargaining, and labor law. New York has become a celebrated case, but the recent experience there left some activists disappointed.

Theoretically, revitalization through wage boards is also complicated. Labor law doctrine, which favors labor union autonomy from the state, might endorse state-created wage boards, but only in a qualified manner. Moreover, reformers consider union membership growth to be important for labor revitalization. And yet, empirical studies have shown that sectoral bargaining has an indeterminate impact on union membership.

Given New York's uneven …

Comparing Impeachment Regimes, John Ohnesorge

Duke Journal of Comparative & International Law

Impeachment, whether of presidents, judges, or other government officials, is increasingly common in political systems around the world, most importantly in presidential systems, where it can be used to remove heads of state who otherwise serve fixed terms. Despite this existence of a common and important legal tool in many jurisdictions, comparative scholarship on impeachment is rare, especially by legal scholars. This article responds to that scarcity by offering a methodological approach upon which future comparative impeachment scholarship can draw. The approach addresses many of the legal and political issues that impeachment raises, and incorporates insights from both law and …

Investor-State Arbitrators' Duties To Non-Parties, Perry S. Bechky

Duke Journal of Comparative & International Law

The notion that arbitrators owe duties to the parties in investor-state disputes is familiar. This article explores less-trodden terrain. It argues that, notwithstanding the party-centric norms of arbitration, investment arbitrators also owe duties to non-parties. It begins by establishing a beachhead – a clear example of a duty to a non-party, as a proof of concept – before moving into rougher territory. The article catalogs and surveys various duties owed to non-parties, discussing the nature of these duties and how they are enforced. Finally, the article shows that recognizing duties to non-parties both informs a proper understanding of the investment …