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Full-Text Articles in Law
Clinical Legal Education And The Reform Of The Higher Legal Education System In China, Mao Ling
Clinical Legal Education And The Reform Of The Higher Legal Education System In China, Mao Ling
Fordham International Law Journal
This Article presents an overview of the higher legal education system in China: its structure, purposes, teaching methods, and problems. The Article suggests ways to reform China's higher legal education system, including clinical legal education, one of the new practical teaching methods that has been used by many law schools in China with promising results.
Some Thoughts On Evidence And Procedure In European Community Competition Law, Koen Lenaerts
Some Thoughts On Evidence And Procedure In European Community Competition Law, Koen Lenaerts
Fordham International Law Journal
This Article is written in honor of Bo Vesterdorf, President of the Court of First Instance of the European Communities, ("CFI") a court in which we were both sitting as founding judges. Without diminishing the input of Judge Vesterdorf as President of the CFI, I would like to take this opportunity to revisit the first big cartel case that was brought to the CFI. In the so-called Polypropylene case, I was the Judge Rapporteur, and Judge Versterdorf officiated as the Advocate General. This case raised important issues as to evidence and procedure in European Community competition law. Therefore, the aim …
Unclos And The Arctic: The Path Of Least Resistance, Mark Jarashow, Michael B. Runnels, Tait Svenson
Unclos And The Arctic: The Path Of Least Resistance, Mark Jarashow, Michael B. Runnels, Tait Svenson
Fordham International Law Journal
This Note discusses the territorial disputes in the Arctic, which are becoming increasingly contentious as a result of the Arctic melt, and the potential resolutions through the mechanisms of international law. Part I discusses the scientific consensus regarding the changing Arctic climate and the resulting conflicts that arise from increased interests in the region. Part II evaluates the varying legal paradigms that may be utilized in order to navigate through the competing claims. Part III argues that, given the uncertainties surrounding both the outcome of any potential International Court of Justice ("ICJ") decision and entering into an Arctic Treaty, universal …
Unresolved Questions In The Bill Of Rights Of The New Iraqi Constitution: How Will The Clash Between "Human Rights" And "Islamic Law" Be Reconciled In Future Legislative Enactments And Judicial Interpretations?, Mohamed Y. Mattar
Fordham International Law Journal
This Article endeavors to answer the question, are the provisions on “human rights” and “Islamic Law” in the new Iraqi constitution compatible? The new Iraqi Constitution recognizes the concept of “human rights” in accordance with Iraq's international obligations, establishes an independent “Supreme Commission for Human Rights,” limits the work of governmental intelligence agencies in accordance with human rights, and prohibits tribal customs that contradict human rights. At the same time, the Constitution makes some references to Islamic Shari'ah: it establishes Islam as the official religion of the State, recognizes Islam as a source of legislation, recognizes Iraq as a part …
Targeted Sanctions, Human Rights, And The Court Of First Instance Of The European Community, Elizabeth F. Defeis
Targeted Sanctions, Human Rights, And The Court Of First Instance Of The European Community, Elizabeth F. Defeis
Fordham International Law Journal
In response to the increasing rise of terrorist activities throughout the European Union (“EU”) and the attacks of September 11, the Council of the European Union (“Council”) acted through its powers under the Common Foreign and Security Policy. In addition to other measures, the Council enacted regulations that froze the assets of alleged terrorist individuals and entities. In some cases, the regulations froze assets of alleged terrorists that had been placed on a list published by the U.N. Sanctions Committee, while in another, the assets of individuals were frozen after the European Council itself placed individuals on a list that …
Transparency As An Element Of Good Governance In The Practice Of The Eu And The Wto: Overview And Comparison, Friedl Weiss, Silke Steiner
Transparency As An Element Of Good Governance In The Practice Of The Eu And The Wto: Overview And Comparison, Friedl Weiss, Silke Steiner
Fordham International Law Journal
This article seeks to provide a comparative overview of relevant practice of the European Union ("EU") and the World Trade Organization ("WTO") with regard to the interpretation and use made of "good governance," and in particular with regard to "transparency," one of its core component elements.
Gender Equality And Customary Marriage: Bargaining In The Shadow Of Post-Apartheid Legal Pluralism, Tracy E. Higgins, Jeanmarie Fenrich, Ziona Tanzer
Gender Equality And Customary Marriage: Bargaining In The Shadow Of Post-Apartheid Legal Pluralism, Tracy E. Higgins, Jeanmarie Fenrich, Ziona Tanzer
Fordham International Law Journal
This Report represents the culmination of a year-long project undertaken by the Crowley Program in International Human Rights at the Fordham Law School to study issues surrounding women and customary law marriages in South Africa in light of its international legal commitments. This Report presents the findings of this research effort. Following this introduction, Part I of this Report describes South Africa's international and domestic legal obligations regarding culture and gender equality, particularly with respect to marriage, divorce, and family formation. Part I then sketches two distinct approaches to the tension between customary law and gender equality, both of which …
A Tribute To Judge Bo Vesterdorf, Roger J. Goebel
A Tribute To Judge Bo Vesterdorf, Roger J. Goebel
Fordham International Law Journal
Judge Bo Vesterdorf retires this fall after serving as Judge on the Court of First Instance (“CFI”) since its inauguration on September 25, 1989, acting as its President for three successive terms since 1998. It is accordingly highly appropriate that the editors of the Fordham International Law Journal (“ILJ”) should dedicate this annual issue devoted to European Union (“EU”) law to Judge Vesterdorf as an eminent jurist who has significantly contributed to the development of the CFI's jurisprudence, and also provided able pragmatic leadership as its presiding judge. The ILJ can be considered to act on behalf of the entire …
Industrial Policy And Competition Law And Policy, Neelie Kroes
Industrial Policy And Competition Law And Policy, Neelie Kroes
Fordham International Law Journal
This afternoon - and it's nearly evening - I would like us to try to rethink industrial policy. I think it makes no sense to speak of industrial policy and competition policy as distinct, one from the other, let alone as antagonistic policies. I would rather define industrial policy as one which frames the structural conditions necessary to ensure economic success in a globalizing economy. I therefore have no qualms in saying that competition policy should form a central plank in any industrial policy. As a member of the European Commission, I will focus my comments on the interconnect between …
Efficiency Consideration And Merger Enforcement: Comparison Of U.S. And Eu Approaches, Robert Pitofsky
Efficiency Consideration And Merger Enforcement: Comparison Of U.S. And Eu Approaches, Robert Pitofsky
Fordham International Law Journal
Discussion in this Essay is designed to explore recently introduced efficiency considerations and to compare developing law in the United States and the European Union. The following sections discuss why incorporation of efficiency factors has been controversial, explore efficiency analysis in connection with mergers under U.S. law, explore comparable developments in EU law, and, finally, offer a comparison of developments in the two jurisdictions.
Why The Private Sector Is Likely To Lead The Next Stage In The Global Fight Against Corruption, Ethan S. Burger, Mary S. Holland
Why The Private Sector Is Likely To Lead The Next Stage In The Global Fight Against Corruption, Ethan S. Burger, Mary S. Holland
Fordham International Law Journal
This Article focuses on the role of the private sector in fighting corruption. It argues that it is necessary for the private sector to take a more active role in creating meaningful deterrents to international bribery. Part I of the Article offers background on the concept and extent of corruption in general, and bribery in particular. Part II examines the existing U.S. and international legal framework for combating the payment of bribes abroad. Part III looks at non-State actors who may lead implementation efforts in the future.
John W. Head, The Future Of The Global Economic Organizations: An Evaluation Of The Criticisms Leveled At The Imf, The Multilateral Development Banks, And The Wto, Stephen Zamora
Fordham International Law Journal
This Article reviews Professor John W. Head’s book, The Future of Global Economic Organizations: An Evaluation of Criticisms Leveled at the IMF, the Multilateral Development Banks, and the WTO. Developing country advocates argue that international economic regimes reinforce unequal allocations of wealth both internally, within national economies, as well as among nations. Economic conservatives argue that the World Bank and other multilateral development banks are superfluous in an age of international capital mobility. Professor John W. Head analyzes these and other criticisms in his timely and insightful study.
The Duality Of State Cooperation Within International And National Criminal Cases, Geert-Jan Alexander Knoops, Robert R. Amsterdam
The Duality Of State Cooperation Within International And National Criminal Cases, Geert-Jan Alexander Knoops, Robert R. Amsterdam
Fordham International Law Journal
This Article seeks to elaborate on various responses to challenges to the rule of law. The authors consider certain of the greatest of these challenges to center around illegitimate control of State organs by groups capable of infringing presumptive rights granted under treaty to States that in a systematic and continuous way resort to abuse of process. This Article, dealing with the equality of arms, is therefore only the first of a series exploring both this problem and the manner in which it may be addressed. This Article assesses whether and to what extent State cooperation, both before international tribunals …
Expanding And Sustaining Clinical Legal Education In Developing Countries: What We Can Learn From South Africa , Peggy Maisel
Expanding And Sustaining Clinical Legal Education In Developing Countries: What We Can Learn From South Africa , Peggy Maisel
Fordham International Law Journal
This Article reviews the development of clinical education in South Africa and the valuable lessons such an analysis provides for those seeking to promote clinical education elsewhere. This Article reviews the obstacles faced in South Africa and the creative ways clinicians have attempted to overcome them, some much more successful than others.
An Internet-Based Mental Disability Law Program: Implications For Social Change In Nations With Developing Economies, Michael L. Perlin
An Internet-Based Mental Disability Law Program: Implications For Social Change In Nations With Developing Economies, Michael L. Perlin
Fordham International Law Journal
This Article first briefly discusses the use of distance learning in a law school environment, and considers the special implications of distance learning for persons with disabilities. It then explains the structure and rationale of these courses, reports on a course section taught in Nicaragua in the Fall-Winter of 2002, and considers plans to replicate the Nicaraguan experience throughout other nations with developing economies in Africa, Asia, Central America, and Central and Eastern Europe. Finally, this Article assesses the potential impact of such a course on developing-economy nations.
Roadblocks To Effective Representation Of Uncharged Indefinitely Imprisoned Clients At Guantanamo Bay Military Base, Martha Rayner
Roadblocks To Effective Representation Of Uncharged Indefinitely Imprisoned Clients At Guantanamo Bay Military Base, Martha Rayner
Fordham International Law Journal
In Part I, this Note will discuss the current epidemic of human trafficking, the various ways the United Nations and the United States have attempted to combat trafficking, and highlight the importance of U.S. prosecutorial duties of witness protection that are especially implicated in human trafficking cases. Part II will present criticisms of efforts by the United Nations and the United States to protect victims of trafficking and their family members. This part will also focus on current U.S. protections afforded to families of human trafficking survivors and programs such as the Witness Security Program, from which U.S. lawmakers may …
Applicability Of The Geneva Conventions To "Armed Conflict" In The War On Terror, Miles P. Fischer
Applicability Of The Geneva Conventions To "Armed Conflict" In The War On Terror, Miles P. Fischer
Fordham International Law Journal
This Essay briefly reviews the application of the Geneva Conventions of 1949 (the “Conventions”) in the so-called war on terror since September 11, 2001 (“9/11”), highlighting a few current issues of particular interest; notably, the concept of “armed conflict,” the role of Common Article 3, the impact of the MC Act, screening by “competent tribunals,” and enforcement of the Conventions in courts martial and against Central Intelligence Agency (“CIA”) operatives.
Kriegsraison Or Military Necessity? The Bush Administration's Wilhelmine Attitude Towards The Conduct Of War, Scott Horton
Kriegsraison Or Military Necessity? The Bush Administration's Wilhelmine Attitude Towards The Conduct Of War, Scott Horton
Fordham International Law Journal
One phrase from a memorandum issued by President George W. Bush early in the War on Terror offers an effective summary of a radically transformed military doctrine. “As a matter of policy,” Bush wrote, “the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” The statement offered a sense of assurance of continuity of U.S. military doctrine, which many generations viewed as being at or near the vanguard in assuring high standards for the treatment of military prisoners. This was …
When To Push The Envelope: Legal Ethics, The Rule Of Law, And National Security Strategy, Peter Margulies
When To Push The Envelope: Legal Ethics, The Rule Of Law, And National Security Strategy, Peter Margulies
Fordham International Law Journal
This Article argues for pushing the envelope when three conditions are met: (1) the executive engages in dialogue with other players, either before the fact or through timely ex post ratification; (2) pushing the envelope will generate a net positive aggregate of institutional consequences, viewed from an intermediate and long-term perspective; and (3) pushing the envelope harmonizes executive policy with evolving international or domestic norms. When these conditions are met, the lawyer for the executive should recommend the action, even if it appears inconsistent with the letter of existing law. While acting gives both the lawyer and her client “dirty …
Military Commission Trials At Guantanamo Bay, Cuba: Do They Satisfy International And Constitutional Law?, Jennifer Trahan
Military Commission Trials At Guantanamo Bay, Cuba: Do They Satisfy International And Constitutional Law?, Jennifer Trahan
Fordham International Law Journal
Part I of this Article discusses historical precedent for the use of military commissions. Part II discusses President Bush's Military Order of November 13, 2001 (“Executive Order”) [FN14] as well as various procedural rules issued for the military commission trials. [FN15] Part III discusses the U.S. Supreme Court's decision, Hamdan v. Rumsfeld, which struck down those arrangements. Part IV discusses the recent revisions to trial procedures made in the Military Commissions Act, and also analyzes the extent to which these recent revisions: (a) diverge from trial procedures under the Uniform Code of Military Justice; (b) alter U.S. domestic implementation of …
Guantanamo And U.S. Law, Joseph C. Sweeney
Guantanamo And U.S. Law, Joseph C. Sweeney
Fordham International Law Journal
This Article deals with the United States' presence at Guantanamo Bay, Cuba, the domestic and international law issues that have arisen, and the nature of the jurisdiction exercised there by the United States. It does not deal with the operation of the prison facility. Guantanamo Bay is near the eastern end of Cuba, 628 miles (1000 km) from the capital, Havana. It is a deep-water harbor, protected by hills from the extremes of Caribbean weather; but it has an unhealthy tropical climate. The forty-five square miles of the Guantanamo Naval Base have been occupied by the United States since the …
The Guantanamo Protective Order, Brendan M. Driscoll
The Guantanamo Protective Order, Brendan M. Driscoll
Fordham International Law Journal
This Note analyzes the Green Protective Order, and the arguments of its proponents and critics. It aims to facilitate broader public awareness of an issue that, while not commanding newspaper headlines, may actually have greater consequence for Guantánamo prisoners and their counsel than those issues that do attract mass media attention. Part I provides a brief background on protective orders in general and their use in cases involving confidential national security, before examining the Green Protective Order in detail. Part II considers, in detail, three different assessments of the Green Protective Order named above, as these positions have been articulated …
The Reform Path Of The Chinese Judiciary: Progress Or Stand-Still?, Jonas Grimheden
The Reform Path Of The Chinese Judiciary: Progress Or Stand-Still?, Jonas Grimheden
Fordham International Law Journal
In the later part of 2007 China will be at yet another watershed moment. The 17th Party Congress will be held, where new leaders of China will jockey into position. Will these leaders proceed on the slow and cautious trail set out by their predecessors? Will they regress to the demands of the ultra-conservative “left-wingers”? Or will the likely rejuvenated leadership be bold enough to face the many challenges with a more progressive agenda? This Essay addresses these questions by briefly describing and analyzing the development and the potential of the Chinese judiciary. In this analysis, the judiciary functions more …
Making Chinese Labor Law Work: The Prospects For Regulatory Innovation In The People's Republic Of China, Sean Cooney
Making Chinese Labor Law Work: The Prospects For Regulatory Innovation In The People's Republic Of China, Sean Cooney
Fordham International Law Journal
This Article examines the capacity of Chinese labor laws and labor institutions to combat abuses. It finds that the Chinese regulatory framework pertaining to work relationships is impeded by a failure to clarify key norms, a bureaucratic “command and control” approach to inspection and dispute resolution, and a narrow and ineffective range of tools for inducing compliance. The Article, however, also finds evidence of emerging regulatory innovation and sophistication that may lead to a much more effective legal response. The legal material relevant to China's labor abuses is vast and highly complex, so it is necessary to choose specific abuses …
The Policies Of State Succession: Harmonizing Self-Determination And Global Order In The Twenty-First Century Tai-Heng Cheng, State Succession And Commercial Obligations, Robert D. Sloane
Fordham International Law Journal
I differ with Cheng's appraisal of certain events and think that we need a more sophisticated analysis of the twin policy goals he identifies and embraces--self-determination and global order--before they can offer real policy guidance. But State Succession and Commercial Obligations stands out as a rigorously researched, original, and insightful effort to understand this quite confused and opaque body of international law. Cheng's work will both enable and encourage a more candid, reasoned, and constructive debate about the global policies at stake each time “a state fundamentally changes its structures of power and authority, and an authoritative international response is …
Some Reflections On The Notion Of "State Resources" In European Community State Aid Law, Andrea Biondi
Some Reflections On The Notion Of "State Resources" In European Community State Aid Law, Andrea Biondi
Fordham International Law Journal
In this Article the author givesPart I of this Article goes through a brief overview of the contours of state aid in the European Union. Part II is devoted to a specific aspect of the acquis communitaire. As it is well known, Article 87 [of the European Community Treaty] identifies the five preconditions for a State measure to be defined as aid: Transfer of State resources, advantage, selectivity, distortion of competition, and effect on intra-Community trade. The reflections in this Part is confined to the first of those conditions.
Standing Of Private Plaintiffs To Annul Generally Applicable European Community Measures: If The System Is Broken, Where Should It Be Fixed?, Xavier Lewis
Fordham International Law Journal
This Article will examine the problem of the standing of private litigants by putting the action for annulment in its context. It will describe briefly how the Treaty of Rome set up a complex system in which the acts of the EC Institutions could be reviewed, a task that is shared between the European Courts and the courts of the Member States. It will also describe briefly the different correctives introduced by the Court of Justice and the Court of First Instance to the system as initially envisaged. It will be seen that a good deal of flexibility has been …
The Abuse Of Girls In U.S. Juvenile Detention Facilities: Why The United States Should Ratify The Convention On The Rights Of The Child And Establish A National Ombudsman For Children's Rights, Christina Okereke
Fordham International Law Journal
This Note argues that, to address the abuse of detained girls, the United States should ratify the CRC. This Note further argues that establishing a national independent office or ombudsman to monitor children's conditions of confinement in the United States is a superior proposal to creating a U.N.-appointed special representative on violence against children. This Note concludes that, upon ratifying the CRC, the United States should establish a national ombudsman for children's rights. Part I of this Note presents the problem of physical and sexual abuse of detained girls in the United States and reviews the applicable international human rights …
Addressing The Incentive For Expropriation Within Business Groups: The Case Of The Korean Chaebol, Christopher Hale
Addressing The Incentive For Expropriation Within Business Groups: The Case Of The Korean Chaebol, Christopher Hale
Fordham International Law Journal
This Article builds upon prior empirical findings on the prevalence of pyramids and focuses on the financing subsidies derived through the internal capital markets of pyramids--particularly through affiliations with financial institutions. Part I of this Article provides a brief overview of the relevant literature and the role that pyramids can play in separating ownership and voting rights. Part II describes the phenomenon by which the financing advantages derived by firms with financial affiliates, often non-bank financial institutions (“NBFIs”), results in a distortion of the market that contributes to pyramid expansion, thereby exacerbating the risk of minority shareholder expropriation. Part III …
Irregular Maritime Migration: Refugee Protection Issues In Rescue And Interception, Barbara Miltner
Irregular Maritime Migration: Refugee Protection Issues In Rescue And Interception, Barbara Miltner
Fordham International Law Journal
This Article undertakes a review of maritime interception and rescue-at-sea practices by evaluating the nature and scope of legal protection that each mechanism affords to refugees encountered at sea. For both interception and rescue, the underlying legal framework and State practice will be discussed, and longstanding protection gaps inherent in each will be examined. Attention is then turned to recent protection improvements in both rescue and interception. These recent changes will be analyzed for their strengths and weaknesses, and some suggestions for improving maritime interception safeguards are offered.