Law Commons^™

The Use Of Force And (The State Of) Necessity, Andreas Laursen

Vanderbilt Journal of Transnational Law

At the beginning of the twenty-first century, debates about international law and the use of force have gained new momentum. This is due to the armed conflicts in Kosovo, Afghanistan, and Iraq as well as the publication of two recent security strategies by the U.S. government. These strategies consider the possibility of preemptive use of force and have received considerable criticism from international law scholars. Professor Laursen asks whether the necessity excuse in international law allows for preemptive strikes of the sort envisioned by the U.S. security strategies. Following an examination of the status of the necessity excuse in international …

The World Trade Organization And Participatory Democracy: The Historical Evidence, Peter M. Gerhart

Vanderbilt Journal of Transnational Law

Although the World Trade Organization (WTO) is one of the most significant international institutions, its function, domain, and legitimacy are still heavily contested. The Author examines the history of the founding of the General Agreement on Tariffs and Trade (GATT), the WTO's predecessor, to see what history reveals about the role that GATT was originally expected to fulfill. The Author's interpretive examination shows that GATT's founders recognized that trade policy must be internationalized in order to give one country an opportunity to participate in the policy-making of other countries; otherwise, a county can impose costs on other countries without representation …

Lay Participation In The Japanese Justice System, Kent Anderson, Mark Nolan

Vanderbilt Journal of Transnational Law

The Authors introduce and critique Japan's proposed quasi-jury or lay assessor system (saiban-in seido). The proposed mixed-court will have judges and lay people deciding together both guilt and sentences in serious criminal cases. Its proponents have promised that the lay assessor system will produce better justice in the courts and a more democratic society for Japan. The Authors first expose the competing interests in the lay assessor drafting process, examining their subtly but importantly varied proposals. Second, the Authors historically review lay participation in Japan, arguing that it has failed to deliver better justice and more democracy because the existing …

Reconstruction And Constitution Building In Iraq, A. Kevin Reinhart, Gilbert S. Merritt

Vanderbilt Journal of Transnational Law

I would like to thank Vanderbilt Law School and all of the many sponsors for the invitation, and especially the Foreign Service Legal Society whose officers worked so hard to put this together. I appreciate very much the opportunity to talk to you all about Iraq. I need to begin with sort of a prelude: the things that were part of my training are in a way irrelevant to what I was doing this summer. I was not there in a professional capacity, as an Islamicist; I was there instead as a volunteer for the International Rescue Committee (IRC). I …

Oil Pollution Liability And Control Under International Maritime Law, Michael A. De Gennaro

Vanderbilt Journal of Transnational Law

Oil spills on the world's oceans and waterways are a significant environmental threats. This Note explores some of the myriad reasons why the law--in both the United States and the international community--has failed adequately to address many of the reasons spills occur in the first instance.

Beginning with a brief history of various pollution control schemes enacted over the past few years, this Note focuses on why the current international legal regimes remain ineffective in combating oil pollution. In essence, this Note argues that the current laws fail because of textual deficiencies, a failure to address the external economic realities …

The Thin State In Thick Globalism: Sovereignty In The Information Age, Adeno Addis

Vanderbilt Journal of Transnational Law

Looking at the astonishing technological developments in mass communication over the past several decades, Professor Addis explores whether and how the resulting communication revolution has undermined the notion of territorial sovereignty. Specifically, he argues that (1) although the territorial state has faced serious challenges from the communication revolution, the question is not whether state sovereignty will survive, but how thick or thin that sovereignty will (or should) be; (2) even if it were true that the territorial state is giving way to other institutional arrangements, those arrangements may not be a decentralized system of governance in that the communication revolution …

Rebuilding A Broken Regime: Restructuring The Export Administration Act, Nathan T.H. Lloyd

Vanderbilt Journal of Transnational Law

The Export Administration Act (EAA) authorizes the President to control the export of "dual-use" goods and technology for national security and foreign policy purposes. "Dual-use" items are goods or technology that are commercial or civil in nature and can be used to produce sophisticated, dangerous weaponry. The EAA expired ten years ago, and although it has been continued by various Executive Orders since, Congress has failed to renew the legislation. As part of the larger export control regime in the United States, the EAA has been an utter failure. Dual-use goods have made their way into the hands of a …

Trip-Ping Over Business Method Patents, Vincent Chiappetta

Vanderbilt Journal of Transnational Law

Professor Chiappetta argues that the current effort to expand substantive international patent law harmonization to include business method patenting is ill-conceived and unsupportable. Such patents cannot be justified on the economic incentive grounds supporting the Western regimes. They are not part of the existing TRIPS agreement, and under present circumstances they should not be added. Any future agreement, bi-lateral or multi-lateral (including an extension of TRIPS), must be based on a better calibrated form of protection (less than patent) and should occur only after the persistent normative differences and the distributional consequences of international substantive harmonization have been addressed.

A Cruel Trilemma: The Flawed Political Economy Of Remedies To Wto Subsidies Disputes, Michael Showalter

Vanderbilt Journal of Transnational Law

This Note examines the effectiveness of the World Trade Organization at remedying disputes involving trade subsidies. The WTO as created in the Uruguay Round was the first multilateral trade institution that included prohibitions against trade subsidies of a more-than-aspirational nature that were agreed to by most states in the world community. The WTO was thus envisioned as ushering in an era where subsidies had significantly less detrimental effects on the international economic community.

This Note seeks to evaluate the effectiveness of the WTO's subsidy provisions through analyses of decisions in early WTO jurisprudence. These decisions will be evaluated, in part, …

Imperfect Justice: Looted Assets, Slave Labor, And The Unfinished Business Of World War Ii, Stuart E. Eizenstat

Vanderbilt Journal of Transnational Law

I want to tell you an improbable story about how fifty years after the end of World War II, long-forgotten victims of not only the greatest genocide in history, but of what we learned was also the greatest theft in history, finally achieved some belated, as I call it, imperfect justice. This includes: those who placed their most precious assets in the safest banking system in Europe--in Switzerland-to keep them out of Hitler's clutches (for fifty years after the war, they were unable to recover them); those who were forced into brutal slavery and forced labor at the hands of …

Order In The Court: Judicial Stability And Democratic Success In Haiti, Ben J. Scott

Vanderbilt Journal of Transnational Law

Haiti faces many challenges in its attempt to build a stable, liberal democracy. Haitians have endured a legacy of chaotic and heavy-handed rule in recent decades, and the success of democracy in Haiti is both hoped for and doubted by Haitians and the international community. One reason for the doubts has been the failure of the Haitian government successfully to implement free and fair elections. Citizens and candidates are often hesitant even to participate in elections. Though both were tragic, neither the failed legislative and presidential elections of 2000, nor the subsequent coup d'etat in 2004 that resulted in the …

Legal And Policy Constraints On The Conduct Of Aerial Precision Warfare, Nathan A. Canestaro

Vanderbilt Journal of Transnational Law

Focusing his historical analysis on World War II, Mr. Canestaro describes how the substantial legal and policy controls under which the U.S. military conducts its air campaigns meet or exceed the requirements of international treaties and the customary practice of states. Bombing technology has only recently developed to the point of allowing compliance with international legal standards, and the United States has implemented stringent measures in recent conflicts to minimize unintended civilian casualties in warfare. Mr. Canestaro demonstrates that because these self-imposed restrictions go beyond the point of mere compliance, they often constitute a disadvantage to the conduct of U.S. …

Perpetuation Of The Foreign Earned Income Exclusion, Hale E. Sheppard

Vanderbilt Journal of Transnational Law

This Article discusses Section 911 of the Internal Revenue Code, also known as the Foreign Earned Income Exclusion (FEIE), as an example of a provision that has been sustained, not on the basis of sound economic analysis and compliance with established U.S. international tax policy, but rather because of effective lobbying and political circumstance. First providing an overview of the U.S. system of worldwide taxation, and the place of the FEIE within that framework, Mr. Sheppard explores the forces underlying the perpetuation of the FEIE. He demonstrates that FEIE is inconsistent with each of the primary components of U.S. international …

Turning To Tacitus, James Bacchus

Vanderbilt Journal of Transnational Law

What do we learn when, finally, we turn to Tacitus? Here, in our middle age, it is true that "the few of us that survive are no longer what we once were." Even so, we may be tempted, like some who opposed the oppressive rule in Rome, to see ourselves as "the last of the free.' If so, what, then, are we willing to do to preserve our freedom? What are we willing to sacrifice to save Rome?

Will we simply salute and shed a tear? Will it be said of us, as Tacitus said of the Romans during the …

Enhancing The Legitimacy Of The World Trade Organization, Andrea Greisberger

Vanderbilt Journal of Transnational Law

The World Trade Organization (WTO) has faced harsh criticism from developing nations in recent years. Many developing nations feel that the promises they received when they joined the WTO have not been fulfilled. These nations feel that wealthy, industrialized nations like the United States and the members of the European Union are the only ones that have benefited from the organization. Moreover, they feel that these developed nations have benefited at their expense through the WTO's dispute settlement process. Many improvements to the WTO have been proposed. However, the one that seems the most able to help developing nations, the …

Return To Europe? The Czech Republic And The Eu's Influence On Its Treatment Of Roma, Matthew D. Marden

Vanderbilt Journal of Transnational Law

The Czech Republic has faced much criticism in the past fifteen years for the treatment of its Romani minority community. The European Union has successfully applied informal, non-legal means of pressuring the Czech Republic into making some changes necessary to improve living conditions for Roma. With the Czech Republic's recent accession to the European Union, legal human rights institutions will likely play a larger role in ensuring that the Czech Republic continues to improve conditions for Czech Roma. The Author uses a case brought by a group of Roma at the European Court of Human Rights to demonstrate the potential …

Toward A Comprehensive Response To The Transnational Migration Of Unaccompanied Minors In The United States, Carolyn J. Seugling

Vanderbilt Journal of Transnational Law

The number of unaccompanied minors seeking asylum has dramatically increased in recent years. The international response has been both varied and at times opposed to the best interests of unaccompanied minors. The United States has chosen to respond through changing unaccompanied minors' care and custody without addressing the need for changes in their substantive rights. However, it is necessary to broaden the interpretation of asylum standards to secure unaccompanied minors' legal rights as children who suffer persecution because they lack primary caregivers.

Taking Back The Trash: Comparing European Extended Producer Responsibility And Take-Back Liability To U.S. Environmental Policy And Attitudes, Megan Short

Vanderbilt Journal of Transnational Law

This Note explores the mandates adopted by the European Union and individual European states and examines the feasibility of their implementation in the United States. Part II outlines the current extended producer responsibility schemes in Europe and the current waste disposal system in the United States. Part III examines the societal and cultural differences that account for varying environmental attitudes in Europe and the United States, with a focus on Germany. Part IV discusses the feasibility of developing national take-back requirements in the United States by examining legislative obstacles and other barriers. Part V offers a conclusion and recommendation for …

The Lives Of Animals, The Lives Of Prisoners, And The Revelations Of Abu Ghraib, Charles H. Brower, Ii

Vanderbilt Journal of Transnational Law

In this Article, Professor Brower suggests that the images depicting inhuman treatment of detainees at the Abu Ghraib prison contain timely lessons about the function and the importance of legal personality. To illustrate this thesis, the Author first identifies animals as a population condemned to an existence bereft of the protections that accompany legal personality. Next, the Author describes the chilling similarities between the treatment of animals and the treatment of prisoners in Iraq and in the so-called "Global War on Terror." Finally, the Author discusses three potential lessons for a nation widely perceived to have retreated from its commitment …

Not As Easy As Black And White: The Implications Of The University Of Rio De Janeiro's Quota-Based Admissions Policy On Affirmative Action Law In Brazil, Ricardo Rochetti

Vanderbilt Journal of Transnational Law

This Note specifically addresses the propriety of affirmative action pertaining to admissions to institutions of higher education. The focus will be on Uerj's quota system because, of all of Brazil's neophyte quota systems, it has received the most publicity and attracted the most scrutiny.

Part II of this Note will analyze Uerj's program and highlight the reasons for its ineffectiveness and the arguments that both proponents and opponents of the program have advanced. Part III will introduce the issues that the Supreme Federal Tribunal, Brazil's highest court, will encounter in deciding the challenge that the National Confederation of Teaching Establishments …

Aids Is Risky Business: Examining The Effect Of The Aids Crisis On Publicly Traded Companies In South Africa And The Implications For Both South African And U.S. Investors, Martha L. Salomon

Vanderbilt Journal of Transnational Law

The Author explores the implications of the AIDS epidemic for South African businesses. She discusses the financial impact of the disease on shareholder investments and what measures can, and should, be taken by South African businesses to assess the extent of the financial damage and to help prevent and treat infected individuals. The Author focuses on a new listing requirement recently passed by the Johannesburg Securities Exchange in South Africa that requires companies to implement corporate governance and responsible HIV/AIDS policies as a prerequisite for listing on the Exchange. In addition, she discusses a new "Socially Responsible Investment" index that …

The Death Penalty--An Obstacle To The "War Against Terrorism"?, Thomas M. Mcdonnell

Vanderbilt Journal of Transnational Law

September 11 seared our collective memory perhaps even more vividly than December 7, 1941, and has evoked a natural demand both for retribution and for measures to keep us safe. Given the existing statutory and judicial authority for capital punishment, the U.S. Government has to confront the issue whether to seek the death penalty against those who are linked to the suicide attacks or to the organization that sponsored them or both. Meting out the death penalty to international terrorists involves difficult moral, legal, and policy questions. The September 11 crimes were not only domestic crimes, but also international ones. …

Defamation Law And Free Speech: Reynolds V. Times Newspapers And The English Media, Andrew T. Kenyon, David F. Partlett, Clive P. Walker

Vanderbilt Journal of Transnational Law

The common law of defamation cut the balance between speech and reputation decisively in favor of reputation and allowed for the imposition of significant damages against media outlets that defamed. For the last four decades, U.S. media outlets have been insulated against the common law rules by the United States Supreme Court's landmark decision in New York Times Co. v. Sullivan. Following Sullivan, Commonwealth countries clung steadfastly to common law rules and are only now beginning to modify the common law rules to provide speech and media protections. Rather than following Sullivan by adopting constitutional protections, however, Commonwealth courts have …

Medication Misadventures: The Interaction Of International Reference Pricing And Parallel Trade In The Pharmaceutical Industry, Lana Kraus

Vanderbilt Journal of Transnational Law

Governments in developing countries seeking to combat the rising costs of health care have increasingly focused on the pharmaceutical industry. They often set the amount they will pay for pharmaceutical prices through reference to other countries' prices when negotiating with pharmaceutical companies in an effort to control health care expenditures. This system of international reference pricing inhibits access to essential pharmaceuticals in underdeveloped countries and decreases pharmaceutical innovation and equitable research and development cost-sharing between developed countries.

This Note explores the tension between market forces in the pharmaceutical industry and promoting pharmaceutical innovation, equitable research, development cost-sharing, and access to …

Old Man And The Sky: The Brazilian Antitrust Implications For Rupert Murdoch's Expansion Of The Sky Global Satellite Network, Geoffrey Drake

Vanderbilt Journal of Transnational Law

To expand its global satellite network to the United States, Rupert Murdoch's News Corporation purchased DirecTV in 2003. Brazil's antitrust regulatory body, CADE, has expressed concern about a potential monopoly in the Brazilian satellite market controlled by Murdoch because News' Sky Latin America competes directly with DirecTV. If News opts to combine the two Brazilian satellite services, it will consolidate control of ninety-five percent of Brazil's satellite market, leaving satellite and cable competitors at a disadvantage. The Author argues that CADE should conditionally approve the acquisition because of the combination's ability to benefit Brazilian consumers, the government, and News Corporation …

How The New European Union Constitution Will Allocate Power Between The Eu And Its Member States--A Textual Analysis, Stephen C. Sieberson

Vanderbilt Journal of Transnational Law

The new European Union Constitution, if ratified by the EU's Member States, will replace the existing EC Treaty and Treaty on European Union. The Author analyzes the text of the Constitution to determine how it balances the functions and powers of the EU institutions with the role of the Member State governments within the EU system. Topic areas include the characteristics of the EU, the Union's values and objectives, and the substantive areas of EU activity. In each area the Constitution reveals a determined effort by its drafters to emphasize the corresponding characteristics, values, and powers of the Member States. …

Modernizing Muslim Family Law: The Case Of Egypt, Lama Abu-Odeh

Vanderbilt Journal of Transnational Law

he Author discusses the dynamics of family law reforms in modern Egypt as an instance of similar dynamics of reforms in other Muslim countries. The forces that push for reforms as well as those that try to limit them are also introduced.

The Author begins by describing the historical legal background shared by the vast majority of Muslim countries, including Egypt. An account of the general evolution of Islamic law-from a dominant system existing within an Islamic state to a subordinate system existing within an overall secularized legal system characterized by legal borrowing from European codes-is given. Islamic law has …

Equivalence At Law (And Society): Social Status In Korea, Race In America, Ilhyung Lee

Vanderbilt Journal of Transnational Law

Professor Lee's Article uses a comparison between the evolving role of social status in Korean society and that of race in the United States to explore Korean society and its legal system. Tracing the historical origins of status consciousness from the Confucianism of the Chosun dynasty to its vestiges in contemporary Korean society, Professor Lee notes several important parallels between social status in Korea and race in the United States. Emphasizing that there remain significant differences between the ways each functions in relation to law, Professor Lee argues that considering the two in equivalence is nonetheless analytically useful in both …

Enforcing International Labor Standards: The Potential Of The Alien Tort Claims Act, Marisa A. Pagnattaro

Vanderbilt Journal of Transnational Law

Professor Pagnattaro argues that courts should allow claims under the Alien Tort Claims Act (ATCA) to enforce international labor rights for alien workers. She begins by reviewing the history of the ATCA and the developing jurisprudence in the international labor context, including recent and pending cases involving employee ATCA claims against U.S. multinational corporations. After outlining what is necessary to assert an ATCA claim, including what is required to satisfy jurisdictional requirements, to state a claim under the law of nations, and to hold employers liable for violations of the law of nations, she details international foundations which can be …

Let's Dump The 1916 Antidumping Act: Why The 1994 Gatt Provides Better Price Protection For U.S. Industries, Nicole Disalvo

Vanderbilt Journal of Transnational Law

The U.S. Congress is currently considering a vote to repeal the 1916 Antidumping Act. The 1916 Antidumping Act makes the importation of foreign goods that were sold below market prices illegal if the foreign company had the "intent [to] destroy or injure an industry in the United States." Few claims have been adjudicated under the 1916 Act since its passage, and no plaintiff has won a case based solely on the 1916 Antidumping Act. Commentators reason that the strict intent requirement or the availability of remedies in other antitrust statutes has contributed to this phenomenon. Recently, there has been debate …