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Full-Text Articles in Law
New Legal Effects Resulting From The Failure Of States To Fulfill Obligations Under European Community Law: The Francovich Judgement, John Temple Lang
New Legal Effects Resulting From The Failure Of States To Fulfill Obligations Under European Community Law: The Francovich Judgement, John Temple Lang
Fordham International Law Journal
This Article examines a decision of the Court of Justice of the European Communities that is likely both to ensure much greater protection for the rights of citizens and companies in the European Community, and to bring about a higher level of compliance with Community law by EC Member States. In brief, the Court ruled that in certain circumstances a Member State is liable to pay compensation to private parties if it has failed to implement a directive. To see how the Court of Justice reached this conclusion, and to assess the judgment's importance, it is necessary to summarize previous …
The New World Order And The Need For An International Criminal Court, William N. Gianaris
The New World Order And The Need For An International Criminal Court, William N. Gianaris
Fordham International Law Journal
This Article contends that the current status of international law enforcement is inadequate to address the newly emergent problems of international crime and that new measures are needed. Part I briefly reviews the historical background of international cooperation in the field of law enforcement, including past attempts to form an international criminal court. Part II describes and analyzes the current status of international law enforcement, including the most recent and extensive attempt to increase the level of cooperation in the field of international drug trafficking, the 1988 U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Part III …
Unilateral Humanitarian Intervention: Legalizing The Use Of Force To Prevent Human Rights Atrocities, Barry M. Benjamin
Unilateral Humanitarian Intervention: Legalizing The Use Of Force To Prevent Human Rights Atrocities, Barry M. Benjamin
Fordham International Law Journal
This Note argues that the international community should relax prohibitions against unilateral humanitarian action until the international collective security measures of the U.N. Charter designed to prevent egregious human rights abuses are effective. Because modern technology has significantly increased the ability to discern pretextual actions from altruistic actions, the potential abuse of unilateral humanitarian intervention is minimized. While the meaning of the word “intervention” in itself is subject to debate, this Note will consider only military intervention. Part I of this Note discusses the historical background of humanitarian intervention. Part II first analyzes the arguments against legalization of humanitarian intervention, …
Russia In Tomorrow's Europe - Seen From Neighboring Norway, John Björnebye
Russia In Tomorrow's Europe - Seen From Neighboring Norway, John Björnebye
Fordham International Law Journal
Seen from neighboring Norway, where we have a long tradition of brinkmanship, bordering on one superpower and being allied to the other, it seems likely that the new and looser Commonwealth of Independent States to our East will have to pass through several stages before finding a more permanent political identity. And even if the most optimistic scenario prevails, a restructuring of political and economic life in an empire historically unacquainted with democracy will be slow to come
The Court Of First Instance: The First Three Years, Marc Van Der Woude
The Court Of First Instance: The First Three Years, Marc Van Der Woude
Fordham International Law Journal
This Article examines the way the CFI has exercised its jurisdiction in the category of cases concerning EC competition matters, from the beginning of its activities until June 30, 1992. The first three sections of this Article are of an institutional nature. They deal respectively with the definition of the CFI's competence, its working methods as specified by its new Rules of Procedure, and its productivity in comparison to that of the Court of Justice. The fourth section gives a survey of some selected issues of its jurisprudence.
The Debate Over Constitutional Reform In Latin America, Carlos Santiago Nino
The Debate Over Constitutional Reform In Latin America, Carlos Santiago Nino
Fordham International Law Journal
This article explores the wave of democratization that swept through Latin America during the 1980s. The article addresses attempts at political reform in Bolivia, Brazil and Chile. It specifically explores the attempts at political reform in Argentina and focuses on the power of the Argentine presidency as well as efforts at constitutional reform. It examines the broad constitutional powers given to the Argentine President and delineates how hyper-presidentialism has contributed to the expansion of presidential authority. The benefits of a parliamentary system are discussed as well as the difficulties in maintaining democracy under a purely presidential system. Finally the article …
The Search For A Solution To The U.S.-Caribbean Copyright Enforcement Controversy, Valerie L. Hummel
The Search For A Solution To The U.S.-Caribbean Copyright Enforcement Controversy, Valerie L. Hummel
Fordham International Law Journal
Caribbean countries sees little advantage in enforcing copyright laws. This article searches for a solution to this copyright enforcement controversy. Part I of this Note provides background information on copyright law and examines the legal, political, and socioeconomic conditions existing in both the United States and in the Caribbean countries. It also discusses the effect of these conditions on substantive copyright laws and on the particular copyright interests and objectives of both parties. Part II reviews different approaches to international copyright protection. Part III discusses the advantages and disadvantages of each approach and concludes that, for resolution, the controversy requires …
Planned Parenthood V. Casey: From U.S. "Rights Talk" To Western European "Responsibility Talk", Danielle Keats Morris
Planned Parenthood V. Casey: From U.S. "Rights Talk" To Western European "Responsibility Talk", Danielle Keats Morris
Fordham International Law Journal
This Note discusses the U.S. Supreme Court's shift from the insulating the woman in her private choice to allowing the community greater scope to encourage her to exercise her choice in a manner the community considers reflective and responsible, a shift that parallels the French and Italian abortion legislation.
The Effectiveness Of Voluntary Jurisdiction In The Icj: El Salvador V. Honduras, A Case In Point, Maura A. Bleichert
The Effectiveness Of Voluntary Jurisdiction In The Icj: El Salvador V. Honduras, A Case In Point, Maura A. Bleichert
Fordham International Law Journal
This Comment discusses the positive aspects of consensual jurisdiction of the International Court of Justice by exploring the case that Honduras and El Salvador Voluntarily brought before a Chamber of the International Court of Justice. Part I discusses the history of the ICJ as well as the history of the dispute between Honduras and El Salvador. Part II examines the ICJ's reasoning and conclusions in the El Salvador v. Honduras case. Part III argues that this case demonstrates the advantages of a court that offers greater flexibility without sacrificing its integrity and dedication to the development of international law. This …
Bachchan V. India Abroad Publication Inc.: The Clash Between Protection Of Free Speech In The United States And Great Britain, Gregory T. Walters
Bachchan V. India Abroad Publication Inc.: The Clash Between Protection Of Free Speech In The United States And Great Britain, Gregory T. Walters
Fordham International Law Journal
This Comment argues that, although the New York Supreme Court reached the correct opinion in Bachchan v. India Abroad Publ., but the scope of the court's decision must be limited limited in its application with respect to future enforcement proceedings involving non-U.S. libel judgments. Part I examines the contrasting defamation standards in the United States and Great Britain, and details the concept of comity. Part II sets forth the factual and procedural history of the case and examines the opinion of the court. Part III analyzes the Bachchan decision and argues that, while the result was appropriate to the facts …
Patenting Living Matter In The European Community: Diriment Of The Draft Directive, David G. Scalise, Daniel Nugent
Patenting Living Matter In The European Community: Diriment Of The Draft Directive, David G. Scalise, Daniel Nugent
Fordham International Law Journal
This article attempts to disentangle the mire of European patent authority and provide some picture of how the ultimate resolution of the proposed EC Directive will appear. Part I contains introductory and background materials on the biotech industry and the importance of patent protection to the future proliferation of technological innovation. Part I exposes current issues in the scientific and political realms of biotech patent law as well as the standard justifications for recognizing inventors rights, considerations that are presently shaping the debate in Europe. Part II attempts to ground the reader in the fundamentals of biotechnology patent laws as …
A Proposal For Protecting The "Cultural" And "Property" Aspects Of Cultural Property Under International Law, Roger W. Mastalir
A Proposal For Protecting The "Cultural" And "Property" Aspects Of Cultural Property Under International Law, Roger W. Mastalir
Fordham International Law Journal
The central focus of this paper is a proposal for rebalancing protection of cultural property so as to take into account preservation of the cultural as well as property aspects of cultural property. Part I distinguishes between cultural and property aspects of cultural property and demonstrates how both aspects are important to an appropriate resolution of cultural property issues. Objects of cultural property cannot be stripped of their cultural significance. They are not merely items of property any more than children are the property of divorcing parents. Recognition of cultural significance is an integral part of determining the best means …
Out Of The Lab And Into The Field: Harmonization Of Deliberate Release Regulations For Genetically Modified Organisms, Judy J. Kim
Out Of The Lab And Into The Field: Harmonization Of Deliberate Release Regulations For Genetically Modified Organisms, Judy J. Kim
Fordham International Law Journal
This Note analyzes current international regulations for the deliberate release of genetically modified organisms into the environment. Part I describes the benefits and risks associated with the introduction of GMOs into the environment and presents an overview of deliberate release regulations in various countries to show the range of standards in individual nations. Part II analyzes international multilateral efforts to regulate the deliberate release of GMOs. Part III critiques current international efforts to regulate deliberate releases and proposes harmonization of deliberate release regulations through an international body that would approve these releases upon proof of safety of the proposed release …
U.S. Territorial Sea Extension: Jurisdiction And International Environmental Protection, Carol Elizabeth Remy
U.S. Territorial Sea Extension: Jurisdiction And International Environmental Protection, Carol Elizabeth Remy
Fordham International Law Journal
This Note focuses on the United States' reluctance to extend its sovereignty over its "territorial sea." Part I of this Note discusses the history and current status of UNCLOS III, the territorial sea, the contiguous zone, the exclusive economic zone, and the 1988 Proclamation. Part II examines the ongoing controversy in the U.S. Congress concerning federal versus state jurisdiciton over the expanded territorial sea zone and refers to proposed legislation that demonstrates both positions of the debate. Part III examines the effects of domestic enactment of the Proclamation on the international community by analyzing several U.S. statues that would require …
In Re Extradition Of Khaled Mohammed El Jassem: The Demise Of The Political Offense Provision In U.S.-Italian Relations, Santo F. Russo
In Re Extradition Of Khaled Mohammed El Jassem: The Demise Of The Political Offense Provision In U.S.-Italian Relations, Santo F. Russo
Fordham International Law Journal
This Comment argues that the Al-Jawary decision is justified and that the cooperation achieved between the United States and Italy in this case reveals the importance of adhering to legal channels in the extradition of terrorists. Part I examines the history of extradition and reviews the respective approaches to the political offense doctrine adopted by both the United States and Italy. Part II discusses the factual and procedural background of AI-Jawary, the judgment of the Court of Cassation, and the reasoning behind the Court's opinion. Part III argues that AI-Jawary represents a proper interpretation of the political offense doctrine under …
The United States Should Prosecute Those Who Conspired To Assassinate Former President Bush In Kuwait, John G. Mccarthy
The United States Should Prosecute Those Who Conspired To Assassinate Former President Bush In Kuwait, John G. Mccarthy
Fordham International Law Journal
This article briefly explores the implications of criminal acts directed against U.S. citizens when traveling abroad. It reviews the basis for providing legal protection to U.S. citizens under both international criminal law and U.S. law. It argues that the U.S. government should aggressively seek the extradition of the conspirators involved in the assasination plot against Mr. Bush. The Kuwaiti government arrested sixteen individuals for conspiring to assassinate Mr. Bush during a visit to Kuwait.
Eec Competiton Practice: A Thirty-Year Retrospective, Donald L. Holley
Eec Competiton Practice: A Thirty-Year Retrospective, Donald L. Holley
Fordham International Law Journal
The choice in this Article is to focus on a limited number of points, and then to offer some general conclusions. The plan is to move as much as possible on a chronological basis, starting with the early confrontation in 1962 with the notification process under Regulation 17 and arriving at Council Regulation No. 4064/89 (the "Merger Regulation"), treating in between individual aspects of practice, such as dealing with the DG-IV staff, sources of law, the role of economics, and the role of national courts. The potential scope of each of these points of course leaves wide options to an …
International Harmonization Of Patent Law: A Proposed Solution To The United States' First-To-File Debate, Vito J. Debari
International Harmonization Of Patent Law: A Proposed Solution To The United States' First-To-File Debate, Vito J. Debari
Fordham International Law Journal
As trade barriers diminish and global economies continue to expand, harmonization and enforcement of international patent protection becomes increasingly important. This note compares the U.S. system with other countries. It argues that the U.S. should harmonize with the rest of the world. Part I discusses the different systems for determining priority of invention and the recent movement towards harmonization of patent law. Part I also sets forth the recommendations of the 1992 Advisory Commission on Patent Law Reform relating to first-to-file. Part II presents the various conflicting arguments both in favor of and against adopting a first-to-file system. Part III …
Valentine Korah & Warwick A. Rothnie, Exclusive Distribution And The Eec Competition Rules: Regulations 1983/83 & 1984/83, Peter Alexiadis
Valentine Korah & Warwick A. Rothnie, Exclusive Distribution And The Eec Competition Rules: Regulations 1983/83 & 1984/83, Peter Alexiadis
Fordham International Law Journal
The second edition of Exclusive Distribution is, quite frankly, an indispensable source when reviewing the compatibility of exclusive distribution agreements with Article 85 of the Treaty Establishing the European Economic Community (the "EEC Treaty"). Its indispensability lies, in part, in the fact that distribution issues comprise the vast bulk of an EEC competition practitioner's ongoing antitrust work. The provision of exclusive territories, or the promise to purchase on an exclusive basis are, in turn, the most popular forms of distribution arrangement used in the EEC. The indispensability also lies in the fact that the book manages to cover almost every …
The Genesis Of Eea Law And The Principles Of Primacy And Direct Effect, Walter Van Gerven
The Genesis Of Eea Law And The Principles Of Primacy And Direct Effect, Walter Van Gerven
Fordham International Law Journal
The subject of this comment is the Genesis of the European Economic Area Agreement. The author reflects on the question of whether two basic principles, the principles of primacy and direct effect, which have played an important role in the making of European Community law, are also present in the EEA law.
Ethics And International Practice: A Guide To The Professional Responsibilities Of Practitioners , Robert E. Lutz
Ethics And International Practice: A Guide To The Professional Responsibilities Of Practitioners , Robert E. Lutz
Fordham International Law Journal
Taking some typical international practice situations, we can highlight the basic professional competence questions posed: (1) ABC Company, located in California, wants to establish a manufacturing facility in Mexico, (2) ABC asks a lawyer to draft a sales agency agreement that it will use in dealing with a French distributor. The lawyer has previously prepared such an agreement for this client for use with respect to distributorships in the United States. These hypothetical situations raise the following professional competence questions: (1) What are the lawyer's professional responsibilities if the lawyer undertakes sole representation of this client in the lawyer's home …
Alfadda V. Fenn: Shifting The Standard For Applying U.S. Statutes To Predominantly Non-U.S. Transactions, Tara Ann Carroll
Alfadda V. Fenn: Shifting The Standard For Applying U.S. Statutes To Predominantly Non-U.S. Transactions, Tara Ann Carroll
Fordham International Law Journal
This Comment argues that the Second Circuit, in Alfadda v. Fenn, properly held that the district court had subject matter jurisdiction over a controversy involving few U.S. activities and actors because the actors engaged in significant conduct in the United States. Part I examines the principles and pertinent case law governing the extraterritorial application of the civil RICO statute. Part II describes the facts and procedural his- tory of Alfadda v. Fenn, detailing the district court's denial of subject matter jurisdiction and the Second Circuit's subse- quent reversal. Part III argues that the Second Circuit cor- rectly applied the existing …
Cartels: Proof And Procedural Issues, Maurice Guerrin, Georgios Kyriazis
Cartels: Proof And Procedural Issues, Maurice Guerrin, Georgios Kyriazis
Fordham International Law Journal
The above considerations demonstrate, however, the importance of the questions regarding the nature and the scope of admissible cartel evidence, especially in regard to the issues of due process in general and of the obligation to safeguard the rights of the defense against the prosecution in particular. Obviously, the fundamental principle governing these issues is commonly known and universally accepted: no one can be prosecuted or condemned without concrete evidence of the infringement of which the defendant is accused. The legal and procedural requirements concerning cartel evidence are therefore closely related to the powers of investigation entrusted to the EC …
The New Germany And The New Europe. Edited By Paul B. Stares, Gregory F. Hauser
The New Germany And The New Europe. Edited By Paul B. Stares, Gregory F. Hauser
Fordham International Law Journal
The Brookings Institution's new book, The New Germany and the New Europe, is an attempt along these lines. Actually a collection of twelve scholarly papers, it is an in-depth examination of the roiled political and economic currents that washed away the Berlin Wall and the rest of the Iron Curtain and continue to affect the flow of so much of current events. There are two more substantive shortcomings that pervade the book. The first of these; to be fair, the book shares with many of the policy debates that presently occur on the planet: a persistent failure to consider the …
The North American Free Trade Agreement: The Need To Protect Transboundary Water Resources, Farah Khakee
The North American Free Trade Agreement: The Need To Protect Transboundary Water Resources, Farah Khakee
Fordham International Law Journal
This Comment argues that because NAFTA and the IEP do not safeguard environmental interests adequately, additional measures need to be taken to preserve and prevent pollution of transboundary water resources. Part I of this Comment discusses the present status of customary international law, existing treaties, and national environmental laws that govern international water pollution abatement and its judicial enforcement. This part specifically addresses liability under the U.S. Federal Water Pollution Control Act, commonly known as the Clean Water Act (the "CWA").20 Part II discusses aspects of evolving international law, NAFTA, and the IEP with respect to transboundary environmental resources. Part …
Weakness Of The Collateral Consequences Doctrine: Counsel's Duty To Inform Aliens Of The Deportation Consequences Of Guilty Pleas, Guy Cohen
Fordham International Law Journal
This Note argues that attorneys have an affirmative duty to inform defendants of the immigration ramifications of guilty please. Part I analyzes the general test for ineffective assistance of counsel, the rules and standards related to guilty please and the overlap between criminal law and immigration law. Part II examines the split of authority in the lower courts over whether misinforming or failing to inform defendants about immigration reprecussions should result in reversal of guilty pleas. Part III argues that attorneys have a duty to inform aliens of the deportation possibilities of guilty pleas.
Pietro S. Nivola, Regulating Unfair Trade, Victor Essien
Pietro S. Nivola, Regulating Unfair Trade, Victor Essien
Fordham International Law Journal
In his earlier work, Nivola displayed his ability to urge acceptance of controversial viewpoints. In his most recent work, Regulating Unfair Trade,' Mr. Nivola has outdone himself. Even those who disagree with some of his analyses and conclusions will acknowledge that his views are informed and balanced. Furthermore, his presentation is thorough and his style is easy to follow. Mr. Nivola divides the discussion into seven chapters. In the first chapter, "Gulliver's Travail," he describes the objective for his enterprise. In the second chapter, he maps out the terrain. In chapter three, he sets the general tone for the discussion. …
The Practical Failure Of German Export Control Law: A Lesson In Modern Trade, Daniel D. Corcoran
The Practical Failure Of German Export Control Law: A Lesson In Modern Trade, Daniel D. Corcoran
Fordham International Law Journal
This Comment will argue that the process of controlling exports must change fundamentally if the foreign policy and security objectives of export controls are to be met. Part I will examine the existing international obligations of exporting nations, such as the FRG, highlighting current public international law. Part I will also analyze the structure of the relevant German legislation. Part II will discuss the practical failure of German export controls. Additionally, Part II will review the subsequent reform legislation. Part III will argue that restructuring of the current national controls is necessary. The national measures should control either categorically or …
From Association To Accession - An Evaluation Of Poland's Aspirations To Full Community Membership, Anne Wagner-Findeisen
From Association To Accession - An Evaluation Of Poland's Aspirations To Full Community Membership, Anne Wagner-Findeisen
Fordham International Law Journal
This Article has as its topic a legal assessment of Poland's aspirations towards full Community membership. This Article also postulates that the EC must continue to be mindful of maintaining the current momentum of rendering meaningful economic, legal, and political assistance to Poland, Czechoslovakia, and Hungary and so transform previously successful short- and medium-term measures into an effective long-term plan, with a view toward furthering these countries' quests for membership.
Proposals For Judicial Reform In Chile, Robert G. Vaughn
Proposals For Judicial Reform In Chile, Robert G. Vaughn
Fordham International Law Journal
This Article explores the implications of different proposals for reforms by emphasizing a perspective that relates the proposals to the performance of the judiciary during the military regime in Chile. Part I of this Article describes the role of the judiciary prior to the coup and discusses its response to the human rights abuses of the military regime. Part II presents the principal proposals for reform and discusses them against this historic background. Part III of this Article suggests that these proposals offer a more radical change in the role of the judiciary in Chile than an examination of the …