European Law Commons^™

This Content Is Unavailable In Your Geographic Region: The United States' And The European Union's Implementation Of Anti-Circumvention Measures, Kyle Berry

Vanderbilt Journal of Transnational Law

Recently, people streaming movies and TV shows have begun to use virtual private networks (VPNs) to access content that streaming services restrict to certain geographic regions. Because of the ambiguity in international law and the implementation of the World Intellectual Property Organization (WIPO) Copyright Treaty, domestic law fails to offer streaming services a recourse to sue foreign VPN users. The WIPO Copyright Treaty established an anti-circumvention provision that would seem to apply to using VPNs to stream from other countries. But because of the provision's ambiguity, many of the WIPO Copyright Treaty member countries have adopted different standards. This problem …

European Union Law As Foreign Law, Lior Zemer, Sharon Pardo

Vanderbilt Journal of Transnational Law

The importance and significance of comparative sources to the development of Israeli jurisprudence is expressed in local legislation and rulings. The impact of foreign law on the development of Israeli law has been analyzed and vindicated in numerous studies in the local legal literature. These studies typically focus on the two most prominent legal systems—-common law (the Anglo-American system) and civil law (the Continental system). The historical reasons for this are clear, emanating from the fact that Israel’s legal system is based on these legal regimes and is amended in the spirit of changes made to them. Over the years, …

The Image Of European Union Law In Bilateral Relations, Sharon Pardo, Lior Zemer

Vanderbilt Journal of Transnational Law

The impact of foreign law on the development of national laws has been analyzed and vindicated in numerous studies in comparative legal literature. These studies typically focus on the two most prominent legal systems--common law (the Anglo-American system) and civil law (the Continental system). The historical reasons for this are clear, emanating from the fact that the world's legal systems are based on these legal regimes and are amended in the spirit of changes made to them. Over the years, however, with the many effects of legal and economic globalization, legal systems have become a diverse mosaic which has appropriated …

[Pis]Sing Off The Courts: The Pisparty's Effect On Judicial Independence In Poland, Michael Hoffmann

Vanderbilt Journal of Transnational Law

By winning both the presidency and a majority of seats in the Parliament in 2015, the Law and Justice Party assumed more control in Poland than any single political party has managed since the fall of communism. The party subsequently focused on taking control of the judiciary as well, proposing legislation that critics claim threatens the rule of law but the government insists is necessary to rid the judiciary of corruption and inefficiency. This Note discusses whether the bills go beyond the rule-of-law norms in the European Union, as well as the EU's response to the situation in Poland so …

Eu-Acp Economic Partnership Agreements: Modern Colonialism Disguised In Violation Of The Wto, Danielle Robertson

Vanderbilt Journal of Transnational Law

The Economic Partnership Agreements (EPAs) between the European Union and the African, Caribbean, and Pacific (ACP) nation-states are the most recent construct in a long history of developing countries' dependency and reliance on developed European countries. Even though Preferential Trade Agreements(PTAs) are widely used by countries party to the World Trade Organization (WTO), the European Union is hiding behind illusions of non-economic trade benefits, such as increased stability and health benefits, in their EPAs with ACP countries. The European Union has the economic bargaining power, creating an upper hand in the trade negotiations with the former colonial countries and other …

A Look Into The Data Privacy Crystal Ball: A Survey Of Possible Outcomes For The Eu-U.S. Privacy Shield Agreement, Emily Linn

Vanderbilt Journal of Transnational Law

The trade relationship between the European Union and the United States, the largest cross-border data flow in the world, is in a state of uncertainty. Operating under different notions of what privacy should look like and divergent legal protections for personal data, the European Union and United States have struggled to reach a mutually acceptable agreement in the past. This Note analyzes their latest attempt, the EU-U.S. Privacy Shield, with specific emphasis on (1) the way it has improved upon its predecessor, the EU-U.S. Safe Harbor; (2) the weaknesses that still remain; and (3) the external factors that threaten the …

Paradise Lost: Can The European Union Expel Countries From The Eurozone?, Jens Dammann

Vanderbilt Journal of Transnational Law

There was a time, not too long ago, when the introduction of the euro was hailed as a tremendous success. Yet the Eurozone now faces an existential crisis. A number of member states have, since 2008, been prevented from defaulting on their sovereign debt only by massive bailouts. Greece has teetered on the verge of insolvency for years despite repeated such measures. Many observers now believe that Greece should stay in the European Union but leave the Eurozone, a scenario often referred to as the "Grexit." This would allow Greece to devalue its currency and thereby render its economy more …

Who Speaks For The Fish? The Tragedy Of Europe's Common Fisheries Policy, Emily Self

Vanderbilt Journal of Transnational Law

The Common Fisheries Policy, enacted in 1983 as the European Union's primary overfishing regulation scheme, is widely regarded as a failure. Vast over exploitation in Europe's fisheries persists thirty years later, posing grave ecological consequences as well as economic devastation to Europe's fishing industry. In 2013, the EU overhauled the Common Fisheries Policy and enacted measures that oblige the EU and member states to support ecologically sustainable fishing practices, ban the harmful practice of discarding fish at sea, and give the member states more flexibility to tailor implementation to suit local conditions. While the 2013 reforms were momentous, those changes …

Capturing The Transplant: U.S. Antitrust Law In The European Union, Silvia Beltrametti

Vanderbilt Journal of Transnational Law

The scholarly literature on the movement of legal norms focuses almost exclusively on transfers from one jurisdiction to another. It largely ignores transfers into new regulatory regimes. Drawing on a case study of the transplantation of U.S. antitrust law into the nascent entity that was to become the European Community, and analyzing its evolution from a public choice perspective, this Article suggests that transfers into new regulatory regimes are more likely to be effective when the lack of established institutions creates opportunities for stakeholders. The endorsement of a new law will enable stakeholders to influence its application and to capture …

Secular Crosses And The Neutrality Of Secularism, Marie E. Roper

Vanderbilt Journal of Transnational Law

This Note discusses analogous themes in two religious public display cases, Lautsi v. Italy, recently decided by the Grand Chamber of the European Court of Human Rights (ECHR), and Salazar v. Buono, recently handed down by the U.S. Supreme Court. Broader critiques of ECHR religious jurisprudence are addressed in the context of the interpretation and application of the principle of neutrality and the argument that secularism is not a necessary postulate of this demand. It is this theme of the relationship between neutrality and secularism that is also prominent in the American discussion about the relationship between government and religion. …

Judicial Review Under A British War Powers Act, David Jenkins

Vanderbilt Journal of Transnational Law

This Article considers how U.K courts might exercise review under a hypothetical British "war powers act," in the event that the current Labour Government or an incoming Tory one responds to calls to reform the Royal War Prerogative and Parliament passes such a statute. The Article undertakes a comparative study, analyzing how U.S. courts apply the political question doctrine in war powers cases. It suggests that they apply the doctrine in a way that assesses the justiciability of the particular subject matter of a case, thereby supporting deference to the political branches in most war powers cases without foreclosing review …

Treaty Bodies And The Interpretation Of Human Rights, Kerstin Mechlem

Vanderbilt Journal of Transnational Law

The eight United Nations human rights treaty bodies play an important role in establishing the normative content of human rights and in giving concrete meaning to individual rights and state obligations. Unfortunately, their output often suffers from methodological weaknesses and lack of coherence and analytical rigor, which compromise its legitimacy.

This Article suggests that these deficits could in large part be addressed if the committees applied the customary legal rules of interpretation codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (Vienna Convention), which requires attention to the text, context, and object and purpose …

The Bologna Process And Its Impact In Europe: It's So Much More Than Degree Changes, Laurel S. Terry

Vanderbilt Journal of Transnational Law

The Bologna Process is a massive, multi-year project designed to create the "European Higher Education Area" by the year 2010. It began ten years ago, when four European Union(EU) countries signed a relatively vague declaration. It has grown to include forty-six countries, including all of the EU Member States and nineteen non-EU countries. The Bologna Process countries have agreed on ten "action lines" for restructuring European higher education. These action lines are nothing short of revolutionary--they address everything from a three-cycle degree system (e.g., bachelor-master's-doctorate degrees), European-wide quality assurance efforts, mobility of higher education students and staff, "recognition" in one …

Judicial Interference: Redefining The Role Of The Judiciary Within The Context Of U.S. And E.U. Merger Clearance Coordination, Yasmine B. Carson

Vanderbilt Journal of Transnational Law

In December 2003, Sony and Bertelsmann AG (BMG)sought approval from the Federal Trade Commission and European Commission to effectuate a joint venture between the two companies. Remarkably, almost two years after both antitrust authorities had cleared the Sony-BMG joint venture, the Court of First Instance annulled the European Commission's decision to approve the transaction. This groundbreaking decision by the Court of First Instance has the potential to undermine coordination efforts between antitrust authorities in the United States and the European Union, as well as to frustrate the predictability and efficiency that businesses need in merger regulation. Using the regulatory review …

Free Trade And Illegal Drugs: Will Nafta Transform The United States Into The Netherlands?, Taylor W. French

Vanderbilt Journal of Transnational Law

In the postwar era, the United States typically has taken an approach to dealing with illegal drugs different from Europe. Americans have favored prohibitionist measures to combat drug use, while Europeans have gradually relaxed many of their illicit substance laws. Recently, however, there has been a growing movement within the United States to decriminalize and legalize marijuana. Numerous states have already reformed their laws to allow doctors to prescribe marijuana to patients. Moreover, many states are dramatically decriminalizing personal use of cannabis.

A review of postwar Europe's experience with drugs provides a useful paradigm to explain the U.S.'s shifting attitude. …

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 …

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. …

European Courts, American Rights: Extradition And Prison Conditions, Daniel J. Sharfstein

Vanderbilt Law School Faculty Publications

Part I of this Article discusses the rising number of extradition requests by the United States, the common grounds for denial of extradition, and the controversies that such denials have aroused. Part II examines Soering v. United Kingdom against this background and analyzes its scholarly reception, influence on international and foreign jurisprudence, and lack of effect in the United States. Part III explores the implications of SOERING for defenses to extradition based on prison conditions: whether prison conditions in the United States could conceivably rise to the level of a human rights violation, whether the European Court of Human Rights …

The European Union Data Privacy Directive And International Relations, Steven R. Salbu

Vanderbilt Journal of Transnational Law

This Article explores the European Union Data Privacy Directive and its impact upon international relations. Part II provides a background upon which the Privacy Directive is built. In Part III, the Article confronts the differences between how the United States and its European counterparts address privacy issues generally. Part IV analyzes the Privacy Directive in detail, while Part V explores possible effects that the Privacy Directive might have on international relations.

The Eu Privacy Directive And The Resulting Safe Harbor, Angela Vitale

Vanderbilt Journal of Transnational Law

The rapid growth of the Internet and the importance of international business operations have thrust the issue of Internet privacy into the center of domestic and international political debates. Varying definitions of privacy have led to numerous--often inconsistent--legislative schemes to protect privacy on the Internet. These inconsistencies have made it difficult for companies to penetrate foreign markets and to maintain international operations. Of primary concern to U.S. companies is the EU Privacy Directive. The Directive requires U.S. companies that attempt to interact with potential customers or their own employees in the European Union either to qualify for a "Safe Harbor" …

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 …

Lawyer Ethics In The Twenty-First Century, Dr. Julian Lonbay

Vanderbilt Journal of Transnational Law

This Article surveys multijurisdictional legal practice in the European Community. It details some of the types of lawyers and law practices that can be found across Europe and describes the variety of activities in which these lawyers engage. The Article then examines the regulatory regime that controls the legal industry. Specifically, it considers Article 49, Article 43, Directive 89/48/EEC, and Directive 98/5/EC. The Article concludes with a discussion of how conflicts in the regulation of lawyers may be resolved.

Innocents Abroad: Opportunities And Challenges For The International Legal Adviser, Wayne J. Carroll

Vanderbilt Journal of Transnational Law

This Article argues that some regulatory authorities have not successfully adapted to the internationalization of the practice of law. First, the Author attempts to define the terms "international legal adviser" and "international legal advice." Next, the Author compares the existing barriers to practice in the United States and the European Union. The Author goes on to outline recent challenges and changes to these barriers to practice, including international efforts such as the WTO and the IBA and local rules in the United States and the European Union. The Author then analyzes the adequacy of existing regulatory regimes with regard to …

Cyprus In Europe: Seizing The Momentum Of Nice, Patrick R. Hugg

Vanderbilt Journal of Transnational Law

In December 2000 the European Council Summit in Nice fulfilled the promise for European Union enlargement made at the Helsinki Summit the year before. The leaders of the EU Member States reaffirmed their commitment to the accession of the applicant countries, making possible the broad re-unification of the continent under democratic rule of law and free market economies. This Article focuses specifically on the accession of the island of Cyprus, Europe's remaining divided state, poised strategically between East and West. The island's armed stand-off presents the clearest example of legal conflict between two ethnic communities in a discrete geographical territory, …

Phantom Menace Or New Hope: Member State Public Tort Liability After The Double-Bladed Light Saber Duel Between The European Court Of Justice And The German Bundesgerichtshof In Brasserie Du Pecheur, Markus G. Puder

Vanderbilt Journal of Transnational Law

This Article examines the interactions between European Community and national law, in the context of Member State public tort liability. Specifically, the Article analyzes Brasserie du Pecheur v. Federal Republic of Germany, a case that pitted German beer purity legislation against requirements of Community law. In that case, the European Court of Justice (ECJ) ruled that acts or omissions of the national legislator may, under certain conditions, give rise to Member State public tort liability, which is adjudicated in the national court systems. The German Federal Court of Justice dismissed the case after finding that the conditions of state liability …

European Integration: Past, Present, And Future, Martin A. Rogoff

Vanderbilt Journal of Transnational Law

From its inception in the 1950s until the early 1990s, the European Union (EU) was largely the creation of politicians, jurists, and technical experts. Its effective sphere of operations was confined for the most part to economic matters. The Single European Act, which entered into force in 1987 and called for the completion of the economic integration project by 1992, marked the end of what might be termed the first, or economic, phase of European integration. With the entry into force of the Treaty on European Union (Treaty of Maastricht) in 1993, a second, or political, phase of European integration …

Unlabel Their Frankenstein Foods!: Evaluating A U.S. Challenge To The European Commission's Labeling Requirements, John S. Fredland

Vanderbilt Journal of Transnational Law

The recent development of genetically-modified agriculture has been accepted enthusiastically by the U.S. agricultural producers, but the European public has expressed fear that the so-called "Frankenstein Foods" may be harmful to health and the environment. Faced with this public outcry, the European Commission. passed regulations, which mandated that food products containing genetically-modified agricultural products be labeled as such. Although the European Commission appears to have passed its labeling requirements without express or hidden protective intent, the regulations stand to make U.S. producers less competitive in the European market than their European counterparts. This Note contends that the United States should …

The European Union's Common Foreign And Security Policy: It Is Not Far From Maastricht To Amsterdam, Daniel T. Murphy

Vanderbilt Journal of Transnational Law

The radical shift in and expansion of the concepts of European law wrought by the now more than five-year-old Treaty on European Union (TEU) are not fully appreciated in the United States. Until the TEU of 1992, European law was bounded by the reasonably well-defined and understood contours of the Treaty of Rome and its amendments. The expressly political TEU added new dimensions to European law, the relationships among the Member States, and the scope of activities to be pursued by the European Union. This expansion was accomplished through, among other provisions, (1) the TEU's monetary union provisions; (2) its …

Predicting The Effect Of Italy's Long-Awaited Rape Law Reform On "The Land Of Machismo", Amy J. Everhart

Vanderbilt Journal of Transnational Law

In 1996, the Italian Parliament enacted a new rape law, replacing a law written in 1936 under the direction of Fascist-era leader Benito Mussolini. While the old law classified rape as a crime against public morality, the new law declares it a crime against the person. That it took sixty years to reform the law is a reflection of Italy's long history of subordinating its women. That the law has finally been reformed is a reflection that those women have united to change that attitude. This Note discusses the history of the rape law in Italy and the role of …

Kalanke V. Freie Hansestadt Bremen: The Significance Of The Kalanke Decision On Future Positive Action Programs In The European Union, Rebecca Means

Vanderbilt Journal of Transnational Law

In the landmark case Kalanke v. Freie Hansestadt Bremen, the European Court of Justice held that a German state law giving women an "absolute and unconditional priority" in the labor market was inconsistent with the European Equal Treatment Directive. Although many Europeans vehemently criticized the Kalanke decision initially, the furor now appears to have subsided. As a result of this decision, however, the European Union is currently re-examining equal treatment policies and will likely provide further guidance to Member States attempting to formulate positive action programs.

This Note first discusses the institutions of the European Union as they relate to …