Law Commons^™

Notes On Continental Constitutional Identities, Benjamen F. Gussen

Vanderbilt Journal of Transnational Law

Geo-constitutional analysis examines the reciprocal effect of geography on constitutions. Within this analysis, a continental constitutional identity focuses on the intersection between institutional geographies and institutional identities, where constitutions are understood as meta-institutions. In some constitutions, belonging to a continent is part of the national identity, while other constitutions only signal a non-geographic, usually an ethnic, identity. The US Constitution is an example of the former. The quintessential example of a non-geographic constitution is the Constitution of the Russian Federation. A similar disregard of continental identities can be found in Israel and the Arab League countries east of the Sinai …

Nonparty Jurisdiction, Aaron D. Simowitz, Linda J. Silberman

Vanderbilt Journal of Transnational Law

The Supreme Court's recent decisions on personal jurisdiction, including its 2021 decision in Ford Motor Co. v. Montana Eighth Judicial District Court, have all focused on the adjudication of plenary claims. In seven years, the Court has decided six major cases on personal jurisdiction in that context. However, these precedents also appear to guide lower courts in areas outside the traditional focus of personal jurisdiction doctrine but where personal jurisdiction is nonetheless necessary. For example, a court must have personal jurisdiction over a nonparty witness in order to compel the witness to testify or to produce documents. A court must …

"Human Rights, Responsibilities, And Democracy," Comments On Tasioulas And Moyn Papers: "Symposium On The Future Of International Human Rights Law", Kathryn Sikkink

Vanderbilt Journal of Transnational Law

It is a pleasure and a challenge to comment on these two very different Articles, "Saving Human Rights from Human Rights Law," by John Tasioulas, and 'On Human Rights and Majority Politics: Felix Frankfurter's Democratic Theory," by Samuel Moyn. Both are rich, complex, and thought-provoking. To the degree they share any common dimension, it would be their skepticism toward human rights law, and in particular toward the judicialization of human rights law. But the skepticism comes from quite different directions and from their different disciplines. In the case of Tasioulas's paper, the skepticism derives from his belief that legal human …

Religious Rights In Historical, Theoretical, And International Context: Hobby Lobby As A Jurisprudential Anomaly?, S. I. Strong

Vanderbilt Journal of Transnational Law

The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court's recent decision in Burwell v. Hobby Lobby Stores, Inc. has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.

This …

Epilog: Foreign Sovereign Immunity At Home And Abroad, Ingrid Wuerth

Vanderbilt Journal of Transnational Law

Every author writing on U.S. law for this symposium notes that the extent to which the Executive Branch can make binding immunity determinations is an important issue going forward. In addition to Legal Adviser Koh, two other authors address this issue directly. Professor Peter Rutledge provides a typology of the various roles that the Executive Branch might play in immunity (and other) cases, distinguishing in particular between views articulated by the Executive Branch independently of ongoing litigation, and those expressed with respect to particular pending cases. And Lewis Yelin of the Department of Justice has contributed a major, comprehensive article …

One New President, One New Patriarch, And A Generous Disregard For The Constitution:, Robert C. Blitt

Vanderbilt Journal of Transnational Law

The government of Russia and the Russian Orthodox Church (ROC)--the country's predominant religious group--recently underwent back-to-back changes in each institution's respective leadership. This coincidence of timing affords a unique opportunity to reassess the status of constitutional secularism and church-state relations in the Russian Federation. Following a discussion of the presidential and patriarchal elections that occurred between March 2008 and January 2009, the Article surveys recent developments in Russia as they relate to the nation's constitutional obligations. In the face of this analysis, the Article argues that the government and the ROC alike continue to willfully undermine the constitutional principles of …

Deconstructing Transnationalism: Conceptualizing Metanationalism As A Putative Model Of Evolving Jurisprudence, Paul Enriquez

Vanderbilt Journal of Transnational Law

This Article builds upon Philip C. Jessup's revolutionary scholarship to pave new pathways for interdisciplinary research and expand the normative constitutional framework of universal human problems. To that end, this Article ties American constitutional theory to the new era of international globalization and provides context that facilitates the discussion of racial and ethnic diversity in education from a domestic and international perspective. By arguing for compelling treatment of diversity in elementary and secondary learning institutions, this Article introduces a new theory of constitutional interpretation vis-&-vis international law. This theory, called metanationalism, rejects Harold Koh's theory of transnationalism and demonstrates that …

Are We There Yet?: Measuring Success Of Constitutional Reform, Maria Dakolias

Vanderbilt Journal of Transnational Law

Like many other countries in the world, the United Kingdom has been modernizing its constitutional arrangements. But unlike all other countries, there is no codified, written constitution. Since 1997, that unwritten constitution has undergone a radical overhaul. Taken together, the changes to systems and institutions represent the most sustained program of reform in the United Kingdom for a century. The main question is whether these reforms were successful. What does success mean? As is well known, implementation is the key to success. So evaluating the reforms and discussing successes and challenges are not only important for the U.K. internal dialogue …

Constitutional Conversations And New Religious Movements: A Comparative Case Study, Leigh H. Greenhaw, Michael H. Koby

Vanderbilt Journal of Transnational Law

Using the metaphor of a constitutional conversation to compare the treatment of a relatively new and unpopular religion by the legal systems of the United States, Russia, and Spain, this Article examines the methodology by which laws affecting religion are made and enforced. It uses as a case study the interaction of the Jehovah's Witnesses with the legal system of the United States, comparing it with more recent interactions in Russia and Spain. The Authors argue that while the experience in the United States was profoundly influenced by a common-law methodology, the experience in two civil-law countries, Russia and Spain, …

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 …

Books Received, Journal Editor

Vanderbilt Journal of Transnational Law

THE DISCONNECTED By Penn Kimball New York: Columbia University Press, 1972.Pp. 317. $2.95/Paperback

PUBLIC ADMINISTRATION (2d ed.). Edited by Robert T. Golembiewski, Frank Gibson & Goeffrey Y. Cornog, Chicago: Rand McNally & Company, 1972. Pp. xxxix, 617.$6.95/Paperback

THE AUSTRIAN-GERMAN ARBITRAL TRIBUNAL By Ignaz Seidl-Hohenveldern Syracuse:Syracuse University Press, 1972. Pp. xi, 261. $15.00.

CONSTITUTIONAL RIGHTS OF PRISONERS By John W. Palmer Cincinnati: The W.H.Anderson Company, 1973. Pp. xv, 710.

CONSTITUTIONAL RIGHTS OF THE ACCUSED: PRETRIAL RIGHTS By Joseph G. Cook Rochester: The Lawyer's Co-operative Publishing Company, 1972. Pp. ix, 572. $35.00.

CRIMINAL SENTENCES: LAW WITHOUT ORDER By Marvin E. Frankel New …

From Unwritten To Written: Transformation In The British Common-Law Constitution, David Jenkins

Vanderbilt Journal of Transnational Law

This Article posits that the British Constitution is changing by incorporating written principles that restrain Parliament through judicial review. The Author asserts that this constitutional model has basis in the common law and the orthodox theories of Blackstone and Dicey. In addition, the "ultra vires" doctrine supports the model and provides a basis for judicial review of Parliament. As constitutions may accommodate written and unwritten elements of law, as well as various means of enforcement and change, the Author posits that constitutions are defined by how strongly they reflect underlying legal norms. With a shift in the rule of recognition …

How We Should Think About The Constitutional Status Of The Suspected Terrorist Detainees At Guantanamo Bay, Akash R. Desai

Vanderbilt Journal of Transnational Law

In the aftermath of the September 11th attacks, the United States has held suspected terrorist detainees captured during the military campaign in Afghanistan indefinitely at the United States military facility at Guantanamo Bay, Cuba. Among those currently detained are members of the al-Qaeda terrorist group and the Taliban. Currently the detainees are in the peculiar situation of generally being outside the scope of protections offered by both the international humanitarian law and the Unites States criminal law regimes.

This Note examines the extraterritorial scope of the United States Constitution as it applies to the suspected terrorist detainees at Guantanamo Bay. …

Unratified Treaties And Other Unperfected Acts In International Law: Constitutional Functions, W. Michael Reisman

Vanderbilt Journal of Transnational Law

In international law's sociology of knowledge, unperfected legal acts are routinely examined and assigned some legal valence. Scholars quite properly use such material to assess incipient changes, and treatise and monograph writers are expected to determine whether some unperfected legal material is, or is in the process of becoming, customary international law. This is a perfectly proper use of unperfected legal material, because one of the functions of the scholar is to anticipate trends and to appraise incipient developments in terms of the impacts they may have on the most important goals of the international system. The most acute problem …

Foreign Relations And Federal Questions: Resolving The Judicial Split On Federal Court Jurisdiction, Erin E. Terrell

Vanderbilt Journal of Transnational Law

The federal circuit courts have disagreed concerning a fundamental issue of federal court jurisdiction: whether cases that may implicate or involve the "foreign relations" of the United States, but do not otherwise raise a more traditional "federal question" under federal law, may be removed from state courts to federal courts. This Note examines the cases that have created the split, and proposes two potential resolutions to it, one judicial and the other legislative.

A Case Of Unconstitutional Immigration: The Importation Of England's National Curriculum To The United States, Jaime S. Boutwell

Vanderbilt Journal of Transnational Law

The decline in the quality of the American educational system continues to spawn debate and criticism across the nation. Despite many suggestions and arguments on how to improve American schools, such as voucher systems, smaller class size, and higher teacher qualifications, the concern, while deeply felt, appears to be empty rhetoric. Teachers' low salaries, the disparity in funding among schools, and the lack of parent and community involvement demonstrate America's apathy towards education reform. To effectuate meaningful changes in education, American communities must reach consensus on education's purpose and importance.

The failure of schools requires America to take action. State …

Liberty Of Expression In Ireland And The Need For A Constitutional Law Of Defamation, Sarah Frazier

Vanderbilt Journal of Transnational Law

Judicial and constitutional conservatism have allowed Irish defamation law to remain remarkably close to its English common law origins. But the common law of defamation was not designed for a modem democracy with a free press, and Ireland's libel laws have a profound effect upon freedom of expression. If Ireland is to be a modern democracy, as its constitution asserts that it is, and the European Convention on Human Rights demands, it must protect a core area of free expression in order to allow the press (without the fear of repercussion) to keep the public informed about matters of concern. …

Mandating English Proficiency For College Instructors: States' Responses To "The Ta Problem", Kenneth King

Vanderbilt Journal of Transnational Law

This Note examines the background, provisions, effects, and constitutionality of state legislation mandating English proficiency assessment for college instructors. Such legislation responds to complaints about the comprehensibility of international instructors--particularly teaching assistants--at U.S. colleges and universities. U.S. universities employ large numbers of international instructors in scientific, technical, and business fields. Such employment is only one aspect of a broader U.S. importation of scientific and technical talent. This Note first considers the background and legitimacy of complaints about international instructors, and then examines the background and details of specific state provisions. It discusses the statutes' effects and particular concerns they raise, …

Private Religious Choice In German And American Constitutional Law: Government Funding And Government Religious Speech, Ingrid B. Wuerth

Vanderbilt Journal of Transnational Law

We will never face Germany's specific problems of religion and government, arising as they do from its particular history. The sharply contested religion cases from Germany in the late 1990s do, however, point to problems with our growing reliance on private religious choice analysis that demand our attention in both government funding and speech cases. To understand the problems of funding religious groups in neutral programs, we must back up and ask the foundational question: what goals may the government pursue with its funding? The broader those goals are defined, the greater the potential distortion of private religious choice, through …

Anticipating Hong Kong's Constitution From A U.S. Legal Perspective, John M. Rogers

Vanderbilt Journal of Transnational Law

This Article explores the possible nature of Hong Kong's Constitution after July, 1997, and discusses alternative ways of interpreting and enforcing the constitution. The author first proposes three definitions for the word "constitution'" (1) how political power is actually "constituted," (2) a written document and (3) a referent for disputes. The author then explains Hong Kong's unusual constitutional status where Hong Kong will be governed under a written constitution the Basic Law. and at the same time, many aspects of the Basic Law will be "guaranteed" by an international agreement, the Joint Declaration. The author proceeds to evaluate the means …

The Unconstitutionality Of State And Local Enactments In The United States Restricting Business Ties With Burma (Myanmar), David Schmahmann, James Finch

Vanderbilt Journal of Transnational Law

As a punitive measure against the military regime in Burma, state and municipal governments in the United States have adopted laws penalizing firms that conduct business in that nation. This Article analyzes the validity of these statutes and ordinances under various provisions of the U.S. Constitution.

After introducing the nature of this development and the constitutional issues raised, Part II of this Article proceeds to examine the character of the local enactments and the political backdrop which lead to their adoption. In Part II, the Authors analyze four federal constitutional issues surrounding the local legislation: implied preemption by federal legislation, …

Off The Precipice: Massachusetts Expands Its Foreign Policy Expedition From Burma To Indonesia, David R. Schmahmann, James Finch, Tia Chapman

Vanderbilt Journal of Transnational Law

This Article considers the wisdom and constitutionality of a proposed Massachusetts law penalizing companies that do business with Indonesia. In the March 1997 issue of the Vanderbilt Journal of Transnational Law, two of the authors expressed concerns about the constitutionality of state and local restrictions on business ties with Burma (Myanmar). This Article applies a similar analysis to conclude that the proposed legislation is an unconstitutional violation of the Supremacy Clause and the Foreign Commerce Clause. The authors also argue that the federal government has clearly preempted action by Massachusetts: first by providing aid to Indonesia under the generalized system …

Preface, Laurelyn E. Douglas

Vanderbilt Journal of Transnational Law

The symposium, HONG KONG'S REINTEGRATION INTO THE PEOPLE'S REPUBLIC OF CHINA: CONSTITUTIONAL ISSUES, POLICY APPROACHES & HUMAN RIGHTS CONCERNS, AND ECONOMIC & LEGAL IMPLICATIONS, was held at the Vanderbilt University School of Law on March 28-29. 1997. Featuring presentations by diverse speakers from a variety of places and perspectives, the symposium addressed a broad range of issues. Topics ranged from comparative constitutional law to human rights and practical business concerns. While differences emerged, it was clear that fully understanding any one area requires knowledge of the others: the viability of markets may well depend upon the validity of documents proclaiming …

The Incorporation Of International Law And The Impact On Constitutional Structures And Rights In Hungary, Duc V. Trang

Vanderbilt Journal of Transnational Law

In 1993, the Hungarian Constitutional Court upheld a draft law that would allow the prosecution of crimes committed during the 1956 uprising, despite the expiration of statutes of limitations. In reaching this result, the Court raised international law to the level of a constitutional standard by which Hungary's domestic laws would be judged. In this Article, the author examines the impact of the Court's decision to transform international law into domestic law. The author explores the implications of adopting international law on the relationship between the Court and other branches of the government, the development of domestic law, the growth …

Judicial Jurisdiction In The Conflict Of Laws Course: Adding A Comparative Dimension, Linda J. Silberman

Vanderbilt Journal of Transnational Law

In this Article, Professor Silberman suggests that comparative law materials can usefully be introduced in the conflict of laws course. She proposes the subject of adjudicatory jurisdiction as a good place to start. She argues that a comparison of the U.S. approach with the English and European approaches (particularly under the Brussels Convention) is evidence of the desirability of a jurisdictional system grounded more on rules and/or discretion rather than on a constitutional standard of reasonableness. She takes issue with the contention of her colleague Professor Andreas Lowenfeld that "reasonableness" has been accepted as an international standard for the assertion …

Procedure As A Guarantee Of Democracy: The Legacy Of The Perestroika Parliament, Frances H. Foster

Vanderbilt Journal of Transnational Law

In this Article, the author chronicles the rise and fall of the "perestroika parliament." While Gorbachev's reforms were ultimately unsuccessful in producing effective democratic representation, the author believes that the history of these reforms provides some valuable lessons for post-Soviet Russia. Specifically, Professor Foster concludes that current reformers in Russia should learn from the failed perestroika parliament that a democratic, "rule-of-law" state requires uniform lawmaking procedures with constitutional safeguards to guarantee their integrity.

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

JAPANESE CRIMINAL JUSTICE

By A. Didrick Castberg

New York, New York: Praeger Publishers, 1990. Pp. 153. $42.95.

THE INTERNATIONALIZATION OF HUMAN RIGHTS

By David P. Forsythe

Lexington, Massachusetts; Lexington Books, 1991. Pp. 209.$34.00.

FEDERAL COURTS AND THE INTERNATIONAL HUMAN RIGHTS PARADIGM By Kenneth C. Randall

Durham, North Carolina; Duke University Press. 1990. Pp. 295. $45.00.

ROMAN LAW AND COMPARATIVE LAW

By Alan Watson

Athens, Georgia: University of Georgia Press, 1991. Pp. 328. $50.00

THE U.S. CONSTITUTION AND FOREIGN POLICY

By Victoria Marie Kraft

New York, New York: Greenwood Press, 1990. Pp. 185. $45.00.

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Books Received

GOOD FAITH IN ENGLISH LAW

By J.F. O'Connor

Brookfield, Vermont: Dartmouth Publishing Company, 1990. Pp. 148.

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LAW AND ISLAM IN THE MIDDLE EAST

Edited by Daisy Hilse Dwyer

New York, New York: Bergin & Garvey, 1990. Pp. 168.

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INTERNATIONAL SECURITIES REGULATION

By Norman S. Poser

Boston, Massachusetts: Little, Brown and Company, 1991. Pp. 799.

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COMPARATIVE CONSTITUTIONAL FEDERALISM

Edited by MarkTushnet

Westport, Connecticut: Greenwood Press, 1990. Pp. 157.

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ECONOMIC SANCTIONS AND U.S. TRADE

By Michael P. Melloy

Boston, Massachusetts: Little, Brown and Company, 1990. Pp. 752.

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

MEDICAL MALPRACTICE ABROAD BY UNITED STATES PHYSICIAN IN CONNECTION WITH DEPARTMENT OF STATE REGULATIONS GOVERNING TORT CLAIMS PROVIDED FOR AN INVESTIGATIVE PROCEDURE FOLLOWED BY AGENCY DECISION--AGENCY FOR INTERNATIONAL DEVELOPMENT HOLDS NO CONSTITUTIONAL OBLIGATIONS TO EVALUATE MEDICAL MALPRACTICE CLAIM ON THE MERITS AND IN ACCORD WITH MINIMAL DUE PROCESS. Tarpeh-Doe v. United States, 904 F.2d719 (D.C. Cir. 1990).

THE FOREIGN CORRUPT PRACTICES ACT DOES NOT CREATE AN IMPLIED PRIVATE RIGHT OF ACTION THAT KENTUCKY TOBACCO GROWERS COULD USE TO RECOVER DAMAGES FROM COMPANIES THAT ALLEGEDLY ENGAGED IN CORRUPT PRACTICES TO THE DETRIMENT OF GROWERS. THE ACT OF STATE DOCTRINE, HOWEVER, DOES …

Recent Development, Jonathan J. Cheatwood

Vanderbilt Journal of Transnational Law

The exclusionary rule requires the suppression of evidence that agents of United States Government seize abroad in violation of the fourth amendment to the United States Constitution. In contrast, the exclusionary rule does not generally apply to overseas operations conducted by agents of a foreign country, even though the operation would violate the fourth amendment if conducted by United States officials. This dichotomy is the result of a judicial realization that the exclusion of evidence seized by foreign police in violation of the United States Constitution and presented on a "silver platter" to United States law enforcement officials cannot be …