Law Commons^™

Colonial Cartographies And Postcolonial Borders: The Unending War In And Around Afghanistan, Tayyab Mahmud

Tayyab Mahmud

Many of today’s pervasive and intractable security and nation-building dilemmas issue from the dissonance between the prescribed model of territorially bounded nation-states and the imprisonment of postcolonial polities in territorial straitjackets bequeathed by colonial cartographies. With a focus on the Durand Line, the border between Afghanistan and Pakistan and the epicenter of the prolonged war in the region, this article explores the enduring ramifications of the mutually constitutive role of colonialism and modern law. The global reach of colonial rule reordered subjects and reconfigured space. Fixed territorial demarcations of colonial possessions played a pivotal role in this process. Nineteenth century …

A Comparison Of The Income Tax Systems In The United States And Germany: The Rugged Individualist Meets The Social Activist, Walter Schwidetzky

Walter D Schwidetzky

There is more than one road up the mountain. Different countries find different solutions to raising revenues and taxing their citizens. The United States tends to be a bit inbred about tax policy decisions, rarely looking outside of its own borders for answers. Yet other countries may have looked at a given issue and come up with intelligent answers that could helpfully inform U.S. decisions. The converse is, of course, also the case. One of the striking things about doing comparative tax analysis is how differently, but legitimately, different countries can answer the same question. There also times when one …

Crumbs From The Table: The Syrophoenician Woman And International Law, Mark Chinen

Mark A. Chinen

In this Article I consider a story from the New Testament for what it might say to international law. A woman of Syrophoenician origin, whose daughter is possessed by an evil spirit, asks Jesus for help. Jesus protests, “First let the children eat all they want, for it is not right to take the children’s bread and toss it to their dogs.” The woman replies, “Yes, Lord, but even the dogs under the table eat the children’s crumbs.” Jesus is impressed by this reply and tells the woman her daughter is well. The way in which the story unfolds is …

It Takes Two To Tango, And To Mediate: Legal Cultural And Other Factors Influencing United States And Latin American Lawyers' Resistance To Mediating Commercial Disputes, Don Peters

Don Peters

This article examines legal cultural and other factors influencing the resistance displayed by United States and Latin American lawyers to mediating commercial disputes. After surveying current contexts in which commercial mediation occurs in the United States and Latin American countries and summarizing data regarding commercial actors’ knowledge concerning the benefits of mediating, it analyzes the relatively infrequent use of mediation despite knowledge of its potential advantages over adjudicating. Focusing on lawyers, the article next explores factors that influence U.S. and Latin American lawyers when they converse with commercial clients about selecting dispute resolution methods. Analyzing similarities arising from universal decision-making …

Odious Debt: Modernizing Ancient Problems, Seth M. Reynolds

Seth M Reynolds

So far the odious debt debate has primarily focused on proving the existence of a rule of customary international law. Rather than following this tradition, this paper will focus on another method for demonstrating that a certain legal principle should be applied in an international context; general principles of law and equity. The heart of the odious debt debate revolves around the assertion by some that a successor government is absolutely liable for every debt incurred by a previous regime. However, almost every domestic legal regime limits the ability of a creditor to recover from a successor in interest. This …

North American Futures: Canadian & U.S. Perspectives, Managing The Arctic, David Caron

David D. Caron

Presentation and discussion of issues relevant to balanced Arctic exploration, multilateral cooperation policy, growth and development and political-economic perspectives.

Currency Of Love: Customary International Law And The Battle For Same –Sex Marriage In The United States, Sonia B. Green

Sonia Bychkov Green

The battle for same-sex marriage is likely to be the civil rights issue of this decade. Developments all over the world over the last several years have caused celebration, public outcry and passionate debate. In the last year alone, the first Latin American same-sex wedding was performed, Sweden joined the nations who allow same-sex marriage, and the United States saw the “Proposition 8” debacle in California, and the new federal lawsuits that will inevitably propel the issues toward the Supreme Court. The legal debate in the United States has asked the crucial question: is there a legal right to marriage …

Constitutional Faith And Dynamic Stability: Thoughts On Religion, Constitutions, And Transitions To Democracy, David C. Gray

David C. Gray

This essay, written for the 2009 Constitutional Schmooze, explores the complex role of religion as a source of both stability and instability. Drawing on a broader body of work in transitional justice, this essay argues that religion has an important role to play in the complex web of overlapping associations and oppositions constitutive of a dynamically stable society and further contends that constitutional protections which encourage a diversity of religions provide the best hope of harnessing that potential while limiting the dangers of religion evidenced in numerous cases of mass atrocity.

Indianizing Hollywood: The Debate Over Bollywood's Copyright Infringement, Hariqbal Basi

Hariqbal Basi

For decades, the mainstream Indian film industry, known as Bollywood, has remade copyrighted Hollywood films for the Indian audience without legal repercussions. This practice has gone unnoticed by Hollywood until recently, and accusations have since been brought against Indian filmmakers for copyright infringement. This note provides an in depth analysis of why these potentially infringing films have only become the subject of litigation over the last two years, cultural arguments advanced by Indian filmmakers for why their remakes should constitute original, and not infringing, works, and what the effects of litigation have been. As the two industries become increasingly intertwined, …

Indianizing Hollywood: The Debate Over Bollywood's Copyright Infringement, Hariqbal Basi

Hariqbal Basi

For decades, the mainstream Indian film industry, known as Bollywood, has remade copyrighted Hollywood films for the Indian audience without legal repercussions. This practice has gone unnoticed by Hollywood until recently, and accusations have since been brought against Indian filmmakers for copyright infringement. This note provides an in depth analysis of why these potentially infringing films have only become the subject of litigation over the last two years, cultural arguments advanced by Indian filmmakers for why their remakes should constitute original, and not infringing, works, and what the effects of litigation have been. As the two industries become increasingly intertwined, …

Something Is Rotten In The State Of Denmark: The Deprivation Of Democratic Rights By Nation States Not Recognizing Dual Citizenship, Myanna Dellinger

Myanna Dellinger

No abstract provided.

Actors And Law-Making In International Environmental Law, Mark Drumbl

Mark A. Drumbl

No abstract provided.

Global Constitutional Lawmaking, Sungjoon Cho

Sungjoon Cho

No abstract provided.

Trade, Energy, And Climate Change Policies Of Basic Nations: One Step Closer To An Economic Interest-Based International Law?, Deepa Badrinarayana

Deepa Badrinarayana

No abstract provided.

Extraordinary Justice, David Gray

David C. Gray

This article is squarely opposed to views advanced by Eric Posner, Adrian Vermeule, and others that transitional justice is just a special case of “Ordinary Justice.” Paying special attention to debates about reparations, this article argues that transitional justice is extraordinary, reflecting the source and nature of atrocities perpetrated under an abusive regime, and focused on the challenges and goals that define transitions to democracy. In particular, this Article argues that transitional justice is not profane, preservative, and retrospective, but, rather, Janus-faced, liminal, and transformative. The literature on reparations in transitions is divided between critics who regard reparations as quasi-tort …

A Dark Descent Into Reality: Making The Case For An Objective Definition Of Torture, Michael W. Lewis

Michael W. Lewis

The definition of torture is broken. The malleability of the term “severe pain or suffering” at the heart of the definition has created a situation in which the world agrees on the words but cannot agree on their meaning. The “I know it when I see it” nature of the discussion of torture makes it clear that the definition is largely left to the eye of the beholder. This is particularly problematic when international law’s reliance on self-enforcement is considered. After discussing current common misconceptions about intelligence gathering and coercion that are common to all sides of the torture debate, …

Do You Swear To Tell The Truth, The Whole Truth, And Nothing But The Truth Against Your Child?, Hillary B. Farber

Hillary B. Farber

Currently in the United States forty-five states and the federal system do not recognize an evidentiary parent-child privilege. The United States Supreme Court has never granted certiorari in a case involving recognition of a parent-child privilege. For many, it is a revelation to learn that the government can compel testimony about communications and observations between parents and their children. A rights-based argument in favor of a parent-child privilege has not been articulated before in legal scholarship. This paper singles out one specific context, the prosecution of juveniles, and argues that such a privilege is essential in order to ensure children …

India's Integrated Energy Policy: A Source Of Economic Nirvana Or Environmental Disaster?, Deepa Badrinarayana

Deepa Badrinarayana

Abstract: India’s rapidly growing economy naturally demands increasing energy needs from the industrial scale down to the personal. Mindful of potential negative impacts of economic development, India is making efforts to encourage growth while preserving and protecting the environment and human rights. India’s Integrated Energy Policy sets out the roadmap for how the country plans to achieve the balance among development, environmental protection, citizens’ rights, energy security, and a host of other priorities and concerns. Though ambitious and broad in scope, the Policy may prove inadequate in mitigating environmental impacts of development, and thus inadequate in balancing India’s needs, particularly …

Aking Prevention Seriously: Developing A Comprehensive Response To Child Trafficking And Sexual Exploitation, Jonathan Todres

Jonathan Todres

Millions of children are victims of trafficking and commercial sexual exploitation each year. Governments have responded with a range of measures, focusing primarily on seeking to prosecute perpetrators of these abuses and offering assistance to select victims. These efforts, while important, have done little to reduce the incidence of these forms of child exploitation. This Article asserts that a central reason why efforts to date may not be as effective as hoped is that governments have not oriented their approaches properly toward prioritizing prevention - the ultimate goal - and addressing these problems in a comprehensive and systematic manner. Instead, …

Kant, Habermas And Democratic Peace, John C. Yoo, Robert J. Delahunty

John C Yoo

Philosophers of great stature rarely write about international law or international relations. When they do, their writing, though often illuminating, tends to be brief, episodic and marginal to the rest of their work. Major exceptions include the towering eighteenth-century Enlightenment thinker Immanuel Kant and the contemporary German thinker Jürgen Habermas, much of whose highly influential work is devoted to international affairs. The relationship between Kant and Habermas is an extremely close one, and few later thinkers have done as much as Habermas to demonstrate the continuing importance and relevance of Kant’s political thought for the contemporary world. Briefly stated, our …

By Prohibiting Foreign Lawyers From Participating, California Is Missing Out, David D. Caron, Leah D. Harhay

David D. Caron

California Code of Civil Procedure §1282.4 and Local Rule 9.43 govern the ability of attorneys who are not members of the State Bar of California to act as counsel in international arbitrations here. Both allow out-of-state attorneys to participate in these arbitrations, but provide no similar provisions for out-of-country attorneys. However, even out-of-state attorneys are not safe. In 2011, when §1282.4 sunsets, out-of-state attorneys will also be barred from appearing as counsel in California-based international arbitrations.

To Testify Or Not To Testify: A Comparative Analysis Of Australian And American Approaches To A Parent-Child Testimonial Exemption, Hillary B. Farber

Hillary B. Farber

Among many legal systems there are certain relationships that are deemed to possess such societal worth that despite the evidentiary value a witness may possess, he is immune from being compelled to testify against the other party in the relationship. In the United States, courts have recognized an evidentiary privilege for spouses, lawyers and their clients, psychotherapists and their patients. Surprisingly, the United States has not adopted a federal common law or statutory parent-child privilege. Among the civil law countries in Europe and Asia, a majority of countries prohibit parents and children from testifying against one another. Australia is the …

China, A Sui Generis Case For The Western Rule-Of-Law Model, Jialue Li

Jialue Charles Li

This article synthesizes the Chinese rule of law theories based on their historic and theoretical development in China, and offers in-depth comparison between the Western and Chinese rule of law models. The current rule of law discussions about China usually premise on the Western rule of law model. The article first summarizes the Western framework in broad categories of substantive theory versus formal theory. But it goes further and explores how these concepts apply in the real world, especially in the context of American jurisprudence. The in-depth analysis of the Western rule of law theories, both at the theoretical and …

A Viable "Sweatshop Free" Model? The Ilo's Better Factories Program And Labor Rights In Cambodia's Garment Industry, John A. Hall

John A. Hall

The International Labour Organization's (ILO' s) innovative program, Better Factories Cambodia ("Better Factories"), represents one of the more important attempts made by the international community to promote labor rights in a developing nation. The lessons Better Factories offers are significant for all stakeholders in the global labor market and suggest at least the outline of a practical blueprint for the future promotion of international labor standards globally. While the ILO's program in Cambodia has achieved notable success in reaching specific criteria, future ILO efforts elsewhere must be adjusted to reflect lessons learned in the Better Factories model. Specifically, future programs …

State Immunity And Jus Cogens Violations: The Alien Tort Statute Against The Backdrop Of The Latest Developments In The ‘Law Of Nations’, Michele Potestà

Michele Potestà

No abstract provided.

Property And Transitional Justice, Bernadette Atuahene

Bernadette Atuahene

Transitional justice is the study of those mechanisms employed by communities, states and the international community to deal with a legacy of systematic human rights abuses and authoritarianism in order to promote social reconstruction. There is a well developed transitional justice literature on how states can deal with past violations of civil and political rights, which discusses the value of truth commissions, and international and domestic prosecutions. The transitional justice literature on how to deal with past violations of property rights, however, is significantly less developed. The goal of this essay is to begin an important conversation about how transitional …

The Relevance Of International Law To The Domestic Decision On Prosecutions For Past Torture, Bartram Brown

Bartram Brown

Taking Prevention Seriously: Developing A Comprehensive Response To Child Trafficking And Sexual Exploitation, Jonathan Todres

Jonathan Todres

Millions of children are victims of trafficking and commercial sexual exploitation each year. Governments have responded with a range of measures, focusing primarily on seeking to prosecute perpetrators of these abuses and offering assistance to select victims. These efforts, while important, have done little to reduce the incidence of these forms of child exploitation. This Article asserts that a central reason why efforts to date may not be as effective as hoped is that governments have not oriented their approaches properly toward prioritizing prevention - the ultimate goal - and addressing these problems in a comprehensive and systematic manner. Instead, …

Stop Taking The Bait: The Dilution Of Miranda Does Not Make America Safer From Terrorism, Ryan T. Williams

Ryan T. Williams

On December 25, 2009, a Nigerian tried to blow up a plane over Detroit, Michigan. On May 1, 2010, an American tried to set off explosives in New York's Times Square. Neither man succeeded. After both arrests, lawmakers clamored for more flexibility to interrogate terror suspects and for the suspension (if not elimination) of their Miranda rights. The Supreme Court subsequently decided three cases that severely dilute Miranda protections and Fifth Amendment rights. An examination of these decisions reveals that they fail to make America safer from terrorism.

Worse still, the dilution of American citizens' rights sends a dangerous message …

Law Without The State: The Theory Of High Engagement And The Emergence Of Spontaneous Legal Order Within Commercial Systems, Bryan H. Druzin

Bryan H. Druzin